SCJ 2014

In this high-conflict family law trial, the court determined issues of child custody, child support, spousal support, and equalization of net family property.

The court ordered that the three children reside primarily with the mother, rejecting the father's request for equal parenting time and the OCL's recommendation for individual overnights, citing the father's relentless pressure on the children and focus on reducing child support.

The father was ordered to pay table child support based on an income of $118,000.

The court dismissed the mother's claim that equalizing net family property would be unconscionable under s. 5(6) of the Family Law Act, but awarded her a $25,000 lump sum for spousal support to address economic disadvantage.

After calculating equalization and post-separation adjustments, the mother was ordered to pay a net amount of $5,064 to the father.

The applicants sought a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging their right to trial within a reasonable time under s. 11(b) had been breached.

The case involved charges of kidnapping, extortion, and assault arising from a violent abduction.

The court conducted a detailed Morin analysis of delay, allocating periods to inherent requirements, defence delay, institutional delay, and Crown delay, including delay caused by a mistrial following disclosure failures.

The court determined that total Crown and institutional delay amounted to approximately 14 months and 27 days, falling within the Morin guidelines.

Although some prejudice was established, it did not reach the level required to justify a constitutional remedy, and the seriousness of the offences weighed strongly in favour of a trial on the merits.

During a murder retrial, the defence sought a jury instruction alleging the Crown breached the rule in Browne v. Dunn by failing to cross‑examine the accused on several key aspects of his testimony.

The court reviewed the rule governing fairness in cross‑examination and the circumstances in which a failure to challenge a witness’s evidence may require remedial instructions.

Considering the trial context, the prior disclosure of the Crown’s theory, and the cross‑examination that did occur, the court held that no significant Browne v. Dunn breach by the Crown had occurred.

The accused had full opportunity to address the Crown’s theory during testimony and was not ambushed.

The requested jury instruction was therefore refused.

The moving party sought to vary a prior consent order requiring payment of child support for three children based on an income of $47,255, arguing his income had substantially decreased in subsequent years and requesting retroactive reduction and rescission of arrears.

The responding party opposed the motion, alleging the moving party continued to earn unreported cash income and had voluntarily quit employment.

The court found insufficient evidence to establish hidden income but concluded the moving party had voluntarily left secure employment for minor reasons and was therefore intentionally underemployed within the meaning of the Child Support Guidelines.

Applying the principles in Drygala v Pauli, the court held there was no basis to vary the original support order.

The motion to vary was dismissed.

The applicant father brought a motion concerning jurisdiction and the habitual residence of an infant after the respondent mother unilaterally removed the child from Ontario to Newfoundland and Labrador.

The court considered s.22 of the Children’s Law Reform Act and authorities addressing whether a parent can change a child’s habitual residence without the other parent’s consent.

The court rejected the respondent’s claim that the relocation had been planned and found the removal was unilateral and without consent or acquiescence.

Applying the principle that a parent cannot unilaterally alter a child’s habitual residence, the court held the child remained habitually resident in Ontario.

Jurisdiction was accepted and the respondent was ordered to return the child to Ontario pending further proceedings.

The accused brought a motion to quash a search warrant and exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms, arguing that the Information to Obtain (ITO) contained misleading information and material omissions.

The warrant authorized a search of the accused’s rural property, resulting in the seizure of marijuana plants, firearms, and other drug-related items.

The court applied the Garofoli framework to assess whether the issuing justice could have granted the authorization based on the record, including information provided by multiple confidential informants.

The court found the informants’ information to be credible, mutually corroborative, and sufficiently detailed to establish reasonable and probable grounds.

The motion to quash the warrant and exclude the evidence was dismissed.

The accused brought a Rowbotham application seeking state-funded counsel and a conditional stay of proceedings under ss. 7, 11(d), and 24(1) of the Charter on the basis that he could not afford counsel and required representation to make full answer and defence in a complex criminal prosecution involving 21 counts, including criminal organization and drug trafficking offences.

The court accepted that the charges were serious and involved some complexity but found significant deficiencies in the evidentiary record supporting the claim of financial inability.

Evidence suggested the accused had assets, income, and potential access to seized funds, and had prioritized maintaining property interests over funding his defence.

The court held the accused had not demonstrated he exhausted all reasonable avenues to retain counsel.

The Rowbotham application was therefore dismissed.

The defendants brought a motion for security for costs under r. 56.01(1)(d) and (e) of the Rules of Civil Procedure, alleging the corporate plaintiffs lacked sufficient assets in Ontario and that the action was frivolous and vexatious.

During the lengthy motion, additional affidavit evidence from the plaintiffs’ accountant later demonstrated that the plaintiffs’ financial circumstances had improved, leading the defendants to withdraw the security for costs motion.

The remaining issue concerned costs of the motion.

The court held the defendants were justified in bringing the motion based on the initial lack of financial disclosure and the plaintiffs’ poor financial condition at the outset.

Costs of $15,000 were awarded to the defendants, partly because the court had granted the plaintiffs an indulgence by admitting late affidavit evidence.

Following an order granting the plaintiff leave to discontinue the action, the court addressed the quantum of costs payable to the defendants.

The defendants sought over $25,000 in partial indemnity costs for the relevant period.

The court reviewed the bill of costs and disallowed several amounts, including a double-counted HST charge, time spent after the service of the notice of discontinuance, work related to unsuccessful security for costs proceedings, and excessive communication charges.

Applying the principles under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs at a fair and reasonable amount significantly lower than claimed.

After accounting for a set-off from costs previously awarded to the plaintiff on appeal, the net amount owing was reduced accordingly.

The defendants sought costs thrown away following an adjournment of a scheduled trial.

The court noted that the adjournment resulted from the plaintiff’s lack of preparation and disclosure, and criticized the plaintiff’s counsel for making statements about important facts that were later retracted as false.

The plaintiff’s counsel also failed to provide written submissions on costs despite being given a deadline.

The court awarded the defendants costs thrown away on a full indemnity basis for the futile attendance.

The accused was tried for aggravated assault arising from a late-night incident in downtown Toronto in which the victim was struck and fell, suffering catastrophic head injuries.

The victim had no recollection of the attack, and the central issue at trial was whether the accused or a companion committed the assault.

The accused testified that his friend struck the victim while he merely witnessed the event.

The court rejected the accused’s account as self‑serving and inconsistent with the surrounding evidence, including eyewitness testimony from a taxi driver who observed the assault and identified the attacker as the person wearing a red T‑shirt.

Relying particularly on that independent eyewitness evidence, the court concluded beyond a reasonable doubt that the accused pushed or struck the victim, causing the severe injuries.

The appellant appealed a summary conviction for possession of cocaine after pleading guilty in the Ontario Court of Justice and receiving a $100 fine.

He argued that his plea should be set aside because he misunderstood the consequences, believing he would receive a conditional discharge rather than a conviction that created a criminal record affecting employment prospects.

The court reviewed the requirements for a valid guilty plea under s. 606 of the Criminal Code and the governing jurisprudence that a plea must be voluntary, unequivocal, and informed.

The record showed the trial judge conducted a plea comprehension inquiry confirming the accused understood the consequences and that sentencing remained within the court’s discretion.

The court held that dissatisfaction with collateral consequences, such as employment impacts, does not invalidate a properly entered guilty plea.

The appellant appealed a probation term imposed following guilty pleas to criminal harassment, multiple counts of mischief under $5,000, breaches of recognizance, possession of a prohibited weapon, and assault with intent to resist arrest.

The sentencing judge had imposed a ten‑month conditional sentence followed by three years’ probation.

The appellant argued that the probation period should be reduced to one year and that the sentencing judge failed to properly consider mitigating factors including guilty pleas, pretrial custody, and rehabilitation prospects.

The court held that appellate intervention requires an error in principle or a demonstrably unfit sentence and found that the sentencing judge properly considered the mitigating factors and reasonably emphasized deterrence and protection of the victims.

The sentence, including the maximum probation period, was upheld.

Following a jury trial in a motor vehicle negligence action where liability was admitted but the jury found the accident caused no injuries, the defendant sought costs after the plaintiff’s action was dismissed.

The court considered the discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, as well as the effect of Rule 49 offers to settle.

The court held that Rule 49.10 did not apply because the plaintiff obtained no judgment.

Applying the principle that costs generally follow the event, the court concluded there was no misconduct justifying departure from that principle, though the plaintiff’s financial circumstances were considered in assessing quantum.

The defendant was awarded partial indemnity costs and reduced disbursements in an amount the court considered fair and reasonable.

The appellant appealed a decision of the Consent and Capacity Board finding him incapable of consenting to treatment with antipsychotic medication under the Health Care Consent Act, 1996.

The court considered whether the Board lacked jurisdiction due to panel composition, the proper legal test for capacity under s. 4(1) of the Act, the applicable standard of review, and whether the Board’s application of the test was reasonable.

The court held that tribunal expertise justified deference regardless of the individual qualifications of panel members and that the standard of review for the Board’s application of law to facts was reasonableness.

The Board reasonably concluded that although the appellant could understand relevant information, symptoms described as perseveration and grandiosity prevented him from appreciating the reasonably foreseeable consequences of refusing treatment.

The Board’s decision fell within a range of defensible outcomes and was upheld.

Following a lengthy and highly contentious separation, the court conducted a trial addressing custody, parenting time, child support, spousal support, equalization of net family property, section 7 expenses, and related financial issues.

Applying the best interests of the children test under the Divorce Act and the Children’s Law Reform Act, the court awarded sole custody to the mother due to the parties’ inability to communicate and the children’s special developmental needs.

A structured parenting schedule was imposed to reduce conflict.

The court determined the father’s income for support purposes by examining corporate revenue and imputing income beyond reported Line 150 amounts under the Child Support Guidelines.

Orders were made for ongoing child support, spousal support, contribution to section 7 expenses, reimbursement of life‑insurance premiums, equalization of property, and sale of the matrimonial home, while the father’s contempt allegations were dismissed.

Former union members sued a union, its local, and trustees of a health and welfare trust seeking an accounting and payment of alleged surplus contributions accumulated in a “dollar bank” benefit system after their expulsion following employer decertification.

The defendants brought a Rule 21 motion to strike the claim for disclosing no cause of action and argued the Superior Court lacked jurisdiction.

The court held the motion was improperly brought without leave after the matter had been set down for trial and was not brought promptly, as the pleadings had been unchanged for over three years.

In any event, the claim raised numerous factual issues requiring evidence, including the interpretation of trust agreements, the effect of an employee benefit booklet, and entitlement to credits upon termination of union membership.

The court also held that the Superior Court had jurisdiction because issues of fiduciary duty and punitive damages fell outside the Labour Relations Board’s authority.

The bankrupt brought a motion under s. 178(1.1) of the Bankruptcy and Insolvency Act seeking an order that student loan debt be released from the statutory non-dischargeability provisions in bankruptcy.

The court considered whether the applicant had acted in good faith regarding the student loan obligations and whether the applicant had and would continue to experience financial hardship preventing repayment.

The evidence showed little effort to repay the loans and demonstrated ongoing employment and earning capacity.

The court found the applicant failed to establish both good faith efforts and continuing financial inability to repay.

The motion to discharge the student loan debt was dismissed.

The applicant brought a motion seeking a finding of contempt against several respondents for failing to comply with a Mareva injunction and subsequent court orders requiring disclosure of financial information and accounting for funds obtained following a tax sale.

The respondents failed to provide sworn financial statements, refused to fully participate in examinations, failed to surrender passports as ordered, and did not produce required documentation tracing the disposition of funds.

The court applied the test for civil contempt and found the orders were clear and unequivocal and that the respondents deliberately failed to comply despite multiple opportunities and a consent order specifying detailed disclosure obligations.

The court concluded the evidence established contempt beyond a reasonable doubt.

The respondents were found in contempt but were given an opportunity to purge the contempt before sentencing by complying with the outstanding disclosure orders.

Corporate applicants sought equitable rectification of directors’ resolutions relating to the redemption of preference shares in a corporate reorganization.

The redemption had triggered an unintended foreign exchange gain and resulting tax assessment due to a mistaken belief that earlier tax planning steps had been implemented.

The applicants argued the transactions were always intended to be tax‑neutral, while the respondent contended the request amounted to impermissible retroactive tax planning.

The court held that a common continuing intention that transactions occur on a tax‑neutral basis was sufficient even if the precise mechanism had not been determined at the time.

Rectification was granted to replace the share redemption with loan transactions consistent with the original tax‑neutral objective.