SCJ 2012

Cross-motions to change a consent family law order addressing custody, access, child support, and spousal support for multiple children of the marriage.

The court considered whether a material change in circumstances justified variation of the joint custody and detailed access regime established in the consent order.

Applying the material change threshold under the Divorce Act and the Children’s Law Reform Act, the court found no sufficient change to justify altering the custody or access provisions.

However, adjustments were required for support obligations due to the payor’s temporary disability income and uncertainty regarding his return to employment.

The court ordered recalculated child support based on disability income, interim spousal support pending resumption of employment, and set-off of support arrears against a mortgage debt owed between the parties.

In bankruptcy proceedings involving several related entities operating a Ponzi scheme, a creditor sought authorization under s. 38 of the Bankruptcy and Insolvency Act to prosecute preference actions after the trustee failed to proceed due to lack of funds.

Another creditor opposed the request and sought its own assignment as a secured creditor, arguing entitlement to priority in any recovered proceeds.

The court held that s. 38 allows a creditor to pursue estate claims where the trustee refuses or neglects to act and that the opposing creditor, as a potential defendant in the preference action and lacking security over the proceeds recovered from third parties, was not entitled to the assignment.

The court also rejected arguments that a prior decision regarding secured creditor rights over recovered collateral applied to preference recoveries paid into third‑party accounts.

Authorization was granted to the moving creditor to pursue the preference actions at its own expense and risk.

The defendants moved under Rules 21.01 and 25.11 of the Rules of Civil Procedure to strike the plaintiff’s defamation action arising from allegations made during his service as a Canadian Armed Forces officer.

The court held that the claim arose directly from the employment relationship and should first be addressed through the military grievance process under the National Defence Act framework.

Because that statutory grievance procedure was capable of addressing the underlying issues, the civil action constituted an abuse of process and was premature.

The court also held that certain pleaded claims relating to publications and broadcasts were barred due to non-compliance with the notice requirements of the Libel and Slander Act.

The action was dismissed, with alternative findings that it could be stayed pending determination of entitlement to compensation for a service-related injury and that specified paragraphs of the pleading were struck.

Following a family law motion in which the respondent’s pleadings were struck for failure to provide financial disclosure, the court determined the costs consequences.

The applicant sought $15,539 on a full recovery basis, arguing that the result exceeded her Offer to Settle.

The court held that the offer was reasonable and that the respondent’s persistent failure to comply with disclosure obligations and court orders warranted substantial indemnity costs as a sanction.

After reviewing the bill of costs and considering the complexity of the motion, counsel rates, and time spent, the court reduced certain items including travel time and some junior lawyer hours.

The court ordered the respondent to pay $10,000 in costs to the applicant.

The moving parties sought an order discharging a collateral mortgage registered against a residential property, arguing the mortgage secured only an excess condominium deposit insurance facility that had been satisfied and that sufficient funds were held in trust to cover any remaining liability.

The court held that the collateral mortgage secured the entire amended financing facility, which combined Tarion warranty bonding obligations and deposit insurance obligations.

The documentation clearly indicated the security applied to all liabilities arising under the amended facility and its amendments.

The court further found that funds held in trust were not guaranteed to satisfy the insurer’s potential claims and that a court-ordered expungement of a mortgage from title through vesting orders was not equivalent to a registered discharge.

Accordingly, the moving parties were not entitled to have the collateral mortgage discharged.

Following a family law motion concerning child support issues including daycare expenses and security for support, the court determined the issue of costs.

The applicant sought over $9,000 in costs and argued the respondent's failure to file an answer, provide financial disclosure, and adopt a hard‑line litigation approach unnecessarily prolonged the proceedings.

The court found that the respondent's conduct caused delay and increased costs, though the applicant was not successful on all issues, including a request for life insurance as security.

Considering the applicant’s offer to settle and partial success by the respondent, the court awarded reduced costs.

The costs were ordered enforceable through the Family Responsibility Office as they were connected to child support.

The mother brought a motion seeking a parenting schedule she argued would better reflect the intent of a prior final order providing for near equal parenting time.

The father opposed the motion and sought enforcement of the existing order, an order directing mediation pursuant to the dispute‑resolution clause in the order, and an order striking portions of the mother's affidavit that disclosed settlement negotiations.

The court held that settlement communications included in the affidavit were privileged and abusive to disclose and struck the relevant paragraph.

The court emphasized that parties who agree to mediation as a precondition to litigation should ordinarily be held to that obligation.

However, given the impending expiry of the existing schedule and the need for certainty for the child, the court imposed a parenting schedule for 2013 consistent with the parameters of the prior order.

The plaintiff supplier brought a motion for summary judgment seeking payment of outstanding invoices for wholesale jewelry sold to the corporate defendant and enforcement of alleged personal guarantees by the individual defendants.

The defendants argued that returned merchandise and diamonds supplied to the plaintiff eliminated the debt and that factual disputes required a trial.

Applying the summary judgment framework under Rule 20 and the guidance in Combined Air Mechanical Services Inc. v. Flesch, the court weighed the evidence and made credibility findings on the paper record.

The court rejected the principal defendant's evidence, found the return inventory had been properly credited at original sale prices, accepted a limited credit for diamonds, and held that the corporate defendant remained indebted.

The court also found an enforceable oral personal guarantee by one individual defendant but not by the others.

The plaintiff drywall contractor brought a construction lien action against the defendant homeowner for unpaid work and extras on a custom home project.

The parties disputed the contract price, whether certain work constituted extras, alleged cash payments, and back-charges for incomplete work and mold remediation.

The court found the defendant fundamentally breached the contract by failing to pay and denying the plaintiff access to the site.

The court awarded the plaintiff $78,262.50 plus partial GST, allowing some claims for extras while crediting the defendant for incomplete work, and dismissed the defendant's claims regarding cash payments and mold remediation.

The plaintiff railway company sought to continue an interim injunction restraining aboriginal protesters from blockading its spur line.

The blockade was causing irreparable economic harm to the plaintiff and its customers.

The local police had refused to enforce the initial injunction, citing a desire to negotiate a peaceful resolution and maintain goodwill with the aboriginal community.

The court found that the protesters were trespassing and that the balance of convenience favoured the plaintiff.

The court continued the injunction, removing a clause that explicitly recognized police tactical discretion, but declined to schedule contempt proceedings due to the police's unwillingness to enforce the court's orders.

Following the dismissal of two Rule 30 motions brought by the defendants seeking production of allegedly privileged documents in a certified class proceeding, the court determined the appropriate costs award.

Although the court agreed that solicitor-client privilege had been expressly waived during cross-examinations, the motions were dismissed because the legal advice received by an individual class member was irrelevant to the certified common issues.

On the costs issue, the court rejected the defendants’ submission that success was divided and held that the responding party was substantially successful.

Applying the factors in Rule 57.01(1) and the guidance from the Court of Appeal in Boucher, the court fixed a fair and reasonable costs award below the amount claimed.

Costs of $20,000 all-inclusive were awarded to the responding party, divided equally between the two defendants.

The plaintiffs sought an interlocutory injunction requiring the franchisor to reinstate them in control of a pharmacy during a contractual management period following notice that the franchise relationship would not be renewed.

The dispute arose under an associate agreement governed by the Arthur Wishart Act and included interpretation of provisions allowing the franchisor to assume management control during the final 60 days before expiry.

The court held the requested relief was a mandatory injunction requiring the plaintiffs to demonstrate a strong prima facie case.

The plaintiffs failed to establish even a serious issue to be tried, as the agreement clearly permitted the franchisor to assume management upon expiry by effluxion of time.

Claims of irreparable harm were speculative and the balance of convenience favoured the franchisor.

The moving party sought an order requiring the judge to recuse himself on the basis of a reasonable apprehension of bias and to set aside a prior endorsement.

The motion relied on comments made in earlier reasons, the refusal of an adjournment at a case conference, directions regarding document production, and alleged comments about a prior registrar’s order.

Applying the objective test for reasonable apprehension of bias articulated in Wewaykum Indian Band v. Canada and R. v. S. (R.D.), the court held that none of the alleged circumstances would lead an informed and reasonable person to conclude that the judge would not decide the matter fairly.

The court emphasized that adverse findings, scheduling decisions, and case management directions do not establish bias when grounded in the evidence and procedural context.

The motion for recusal and to set aside the earlier endorsement was dismissed.

The plaintiff railway company brought an ex parte motion for an interim injunction to restrain protesters from blocking its Spur Line on the Chippewa of Sarnia First Nation Reserve.

The protesters were blocking the tracks to protest federal legislation (Bill C-45).

The court applied the RJR-MacDonald test and found a serious issue to be tried regarding trespass, irreparable harm due to significant economic disruption, and that the balance of convenience favoured the plaintiff since the protest was directed at the federal government, not the property owner.

The court granted the interim injunction for a limited duration.

The plaintiff was catastrophically injured in a motor vehicle accident involving an underinsured driver.

The plaintiff's employer's fleet insurance policy, issued by the defendant insurer through a broker, did not include OPCF 44R (Family Protection Coverage).

The plaintiff sued the insurer, alleging it owed a duty of care to advise on the need for such coverage, similar to a broker, and that it was vicariously liable for the broker's failure to do so.

The insurer moved for summary judgment.

The court granted the motion, finding that the insurer did not owe a duty to advise the insured on coverage gaps, as it conducted risk assessments solely for underwriting purposes, and that the broker was not acting as the insurer's agent.

The applicant wife brought a motion for interim spousal support, child support, and other relief, seeking to set aside the spousal support waiver in the parties' marriage contract.

The parties separated after a 30-year marriage during which they enjoyed a lavish lifestyle, and the respondent husband's net worth grew to approximately $500 million.

The court found the marriage contract's support waiver to be unconscionable and severed it from the agreement.

The court ordered the respondent to pay interim spousal support of $175,000 per month, retroactive to the date of separation, and to maintain life insurance and health benefits for the applicant.

The claim for interim child support was dismissed.

A child protection agency brought a motion for summary judgment seeking findings that two children were in need of protection and requesting Crown wardship without access for the purpose of adoption.

The court considered whether any genuine issue for trial existed under the Family Law Rules and the Child and Family Services Act.

The evidence showed longstanding instability, domestic violence, mental health issues, and parenting incapacity affecting the parents, as well as sporadic parental contact and delayed paternal involvement.

The court concluded that neither parent established a triable issue regarding placement or access and that the children’s best interests required permanent placement.

Crown wardship orders without access were granted.

Following a family law trial in which custody of two children was varied in favour of the applicant, the court addressed costs.

The successful applicant sought over $23,000 in costs, including full indemnity from the date of a written settlement offer under the Family Law Rules.

While the court acknowledged the presumption that costs follow the event and the enhanced costs consequences of an offer to settle, it found that both parties contributed significantly to the conflict leading to the litigation.

Taking into account the respondent’s limited financial means and the impact of a costs order on her ability to pay child support, the court exercised its discretion to significantly reduce the costs award.

The applicant sought retroactive child support and contribution toward post-secondary education expenses for the parties’ adult child.

The respondent had failed to provide annual financial disclosure as required by a prior support order and continued paying child support based on an outdated imputed income despite increases in income and retained corporate earnings.

The court found the respondent engaged in blameworthy conduct and imputed additional income, including retained earnings, personal benefits, and income splitting with a spouse.

Applying the principles in S. (D.B.) v. G. (S.R.), the court ordered retroactive child support for three years and determined the adult child regained “child of the marriage” status upon returning to full-time university studies.

The respondent was ordered to contribute a fixed annual amount toward the child’s post‑secondary education expenses.

In an interim family law motion following a recent separation, the court addressed parenting arrangements for a young child where the parties were engaged in escalating litigation and had not yet established effective communication.

The court found that both parents had been actively involved in the child’s life but were unable to cooperate sufficiently to implement joint custody immediately.

To prevent marginalization of either parent and promote stability for the child, the court ordered a shared parenting regime with divided decision-making authority.

The mother was granted responsibility for medical and educational decisions, while the father was given responsibility for extracurricular activities.

The order also set out a detailed parenting schedule, holiday arrangements, child support pursuant to the Child Support Guidelines, and proportional sharing of section 7 expenses.