SCJ 2015

Following a high-conflict family trial involving custody, parenting, support, equalization, and property claims, the court granted the mother sole custody and primary residence of the child and rejected joint custody as impracticable.

Applying the best interests framework under the Divorce Act and the Children's Law Reform Act, the court found both parties had acted contrary to the child's interests at times, but the father's conduct was more serious, including privacy breaches, police involvement, lock changes, and interference with the home environment.

The court also found the father owed the mother reimbursement for a down payment, credit card debt, equalization, and damage to a washer/dryer, subject to set-off for utilities and personal property, resulting in judgment for $89,165.

For support purposes, the court rejected the father's disclosure and evidence, found his income to be at least $160,000, ordered child support and time-limited spousal support in favour of the mother, dismissed the restraining order claim, and granted the divorce.

The appellant sought to quash convictions for sexual interference arising from allegations that he repeatedly touched a child complainant under her clothing during family tickling incidents at a cottage.

The appeal argued that the trial reasons were insufficiently responsive to the defence theory of mistake, that the trial judge materially misapprehended the evidence, and that demeanour evidence was given undue weight.

Applying the functional sufficiency-of-reasons approach and reviewing the credibility analysis, the court held that the trial judge adequately addressed the live issues, made no material misapprehension, and did not over-rely on demeanour.

The appeal was dismissed and the surrender order was confirmed.

The plaintiff insurer sought summary judgment against the defendant insurer for equitable contribution and unjust enrichment regarding the costs of a life-saving drug, Soliris, paid on behalf of a mutual insured.

The defendant had initially denied coverage improperly.

The court found that the defendant was unjustly enriched and obligated to pay 90% of the drug costs as the primary insurer.

However, the court held that the plaintiff discovered the claim in October 2009, meaning claims for payments made more than two years before the action was commenced on April 4, 2012, were statute-barred.

Applying the principle that a new cause of action arises with each monthly payment, the court ordered the defendant to reimburse the plaintiff for all payments made after April 4, 2010.

The applicants sought judgment under the Solicitors Act and the Rules of Civil Procedure for an unpaid legal services invoice arising from a patent-related retainer.

The respondents argued that some work was unnecessary, duplicative, and of unsatisfactory quality.

The court rejected those objections, finding no evidence that the applicants departed from the requested review approach, duplicated work, or provided substandard advice.

Judgment was granted for the invoice amount plus pre-judgment interest, and partial costs were awarded, but not on a substantial indemnity basis.

The insurer brought a motion to have an insurance coverage action tried together with an earlier negligence action arising from the same residential renovation damage.

The court held that causation of the alleged property damage was a common and critical factual issue in both actions, and that the relief claimed arose out of the same occurrence or series of occurrences.

Applying the Rule 6.01 discretionary framework and the non-exhaustive factors from prior authority, the court found that overlapping evidence, risk of inconsistent findings, and avoidance of duplicate expert and witness testimony strongly favoured a joint trial.

The motion was granted, joint procedural directions were made, and there was no order as to costs.

The applicants, municipal election candidates, sought relief from forfeiture under s. 98 of the Courts of Justice Act after failing to file their campaign financial statements and auditor’s reports by the deadline required under the Municipal Elections Act.

The court applied the equitable relief-from-forfeiture framework and found the failure resulted from inadvertence and misplaced reliance on campaign and accounting assistance, not indifference to statutory obligations.

The court held the applicants acted in good faith, remedied the omission promptly, and that the harm caused by a five- and six-day delay was negligible compared to the severe statutory consequences.

Relief was granted, the filing period was extended by ten days, and no costs were ordered.

The appellant challenged a family law decision awarding sole custody, a defined access schedule, and retroactive child support.

The appeal was confined to access and retroactive support.

The court held that the trial judge applied the correct best-interests test under the Children’s Law Reform Act, was entitled to reject the OCL report as unreliable, and provided reasons that satisfied the appellate standard for adequacy.

The court further held that the trial judge properly applied the D.B.S. framework holistically and made no reviewable error in awarding retroactive child support to the child’s birth based on blameworthy conduct and the recipient’s delay explanations.

The appeal was dismissed, the trust funds were applied against arrears, and appeal costs were awarded to the respondent.

In a mid-trial application under s. 276.1 of the Criminal Code, the accused sought to cross-examine the complainant and another witness about prior unprotected sexual activity to support an argument that fraud did not vitiate consent.

The court held that reframing the proposed evidence as going to risk tolerance rather than consent did not avoid the prohibition on the prohibited inferences associated with prior sexual conduct.

The evidence remained inadmissible because its probative value depended on impermissible reasoning tied to the twin myths.

The court permitted only conventional impeachment through prior inconsistent statements or where the complainant voluntarily raised the subject in her testimony.

Competing family law motions arose after the death of a spouse during unresolved divorce proceedings involving a challenged marriage contract, equalization, and support claims.

The estate trustee sought security for costs and disclosure, while the surviving spouse sought preservation of former matrimonial home sale proceeds and orders relating to inventory and valuation of property and business interests.

The court held that security for costs was not justified under Rule 24(13) because there was insufficient evidence that the claims were a waste of time or a nuisance, despite concerns about the spouse’s asset transfers and lack of assets in Ontario.

The court instead made detailed disclosure and case-management directions, ordered a business valuator selection process funded from sale proceeds held in trust, and reserved costs.

In a construction lien action arising from residential renovation work, the court held that an oral time-and-materials contract existed between the plaintiff contractor and one defendant owner, notwithstanding confusion about whether a site foreman was the true contracting party.

Applying an objective approach to contract formation, the court found the agreed pricing was based on actual hourly labour rates plus HST, with any blended-rate adjustment contingent on the job going well, which did not occur.

The plaintiff proved labour and material costs totalling $29,540.71, of which $20,527.00 had been paid, leaving $9,013.71 outstanding.

No WSIB amount, profit, or overhead was allowed, and the owners' claim for set-off for deficiencies and completion costs failed.

The court further held that, if no contract existed, the same amount would have been recoverable in quantum meruit.

In a jury murder trial arising from a planned robbery, the court ruled on the admissibility of text messages extracted from two accused persons' cell phones.

Applying the principles governing relevance, bad character evidence, and the balance between probative value and prejudicial effect, the court excluded one partial text exchange as too context-deficient and speculative to support the inference urged by the Crown.

Two other exchanges, accepted for the purpose of the ruling as drug-related communications, were admitted because their prejudice was minimal in the trial context and they provided relevant contextual evidence about the relationship between two accused.

The court directed that limiting instructions would address any propensity risk.

The plaintiff commenced an action against her former legal and financial advisors alleging negligence and breach of fiduciary duty in connection with advice provided during negotiation of a marriage contract.

The defendants brought summary judgment motions asserting that the action was statute‑barred under the Limitations Act, 2002 and constituted an abuse of process because the plaintiff had a statutory remedy under s. 56(4) of the Family Law Act to set aside the marriage contract against her spouse.

The court held the plaintiff failed to rebut the presumption of discoverability and knew or ought to have known of the material facts giving rise to her claims more than two years before commencing the action.

The court further held that attempting to obtain, through damages against advisors, relief that should have been pursued through family law proceedings constituted an abuse of process.

Criminal prosecution arising from the possession, production, advertising, sale, import and export of films marketed as nudist films depicting boys.

The court held that numerous films and related images were child pornography because their dominant characteristic was the depiction of sexual organs and buttocks of persons under 18 for a sexual purpose, applying an objective contextual analysis under s. 163.1 of the Criminal Code.

The court accepted an officially induced error argument in part, finding that state advice in 2006 that certain films were lawful barred conviction for five specific films later found to be child pornography.

The accused was convicted on multiple child pornography and proceeds counts, but acquitted of the criminal organization count.

Summary conviction appeal from a conviction for driving over 80 arising from a roadside stop during a RIDE program.

The appellant argued that, after unsuccessful efforts to reach counsel of choice, police failed to provide the additional informational warning required when a detainee appears to change course on exercising the right to counsel.

The court held that the trial judge erred by not undertaking the required Prosper analysis and that the failure to give the warning breached s. 10(b) of the Charter.

Applying the Grant framework, the court excluded the Intoxilyzer readings and set aside the conviction, ordering a new trial before a different judge.

The plaintiffs moved to amend post-trial reasons to obtain a formal adjudication of the phrase “the necessary funds” in a shareholders’ agreement, or alternatively to recalculate share value by treating cash calls entirely as equity.

The court held that the requested procedure was inappropriate because the moving parties had appeal rights and the authorities relied on were distinguishable.

The court further observed that the interpretation now advanced had been implicitly rejected, was not grounded in the trial record, was not within the parties’ reasonable contemplation when negotiating the agreement, and was not reflected in the pleadings.

The alternative valuation argument was also rejected because it had been abandoned at trial and was inconsistent with the moving parties’ prior position.

The motion was dismissed with costs.

On an ex parte application arising from a police investigation, the court considered whether subscriber name and address information linked to cellular telephone numbers could be compelled through an assistance order issued with a transmission data recorder warrant.

The responding telecommunications company argued that such subscriber information required a general warrant, relying principally on privacy reasoning from Spencer.

The court held that subscriber information was not itself encompassed by the definition of transmission data, but that an assistance order under s. 487.02 could properly compel disclosure where reasonably required to give effect to a valid warrant.

The court further held that a general warrant under s. 487.01 is a remedy of last resort and was unavailable because another statutory route existed.

On a motion to change, the respondent sought to vary an existing child support order in a shared parenting arrangement based on the recipient parent's repartnering, alleged underemployment, and the payor's new family obligations.

The court found a material change of circumstances, concluded the recipient parent remained intentionally underemployed, and imputed income of $36,000 under s. 19(a) of the Ontario Child Support Guidelines.

Applying the shared custody analysis under s. 9 and considering the parties' means, needs, and household circumstances, the court reduced support from the prior set-off amount to $347 per month.

Applying the retroactive support framework, the court ordered the variation effective October 1, 2013 and allowed repayment of the resulting overpayment over three years to minimize hardship.

The Crown appealed the acquittal of a youth charged with drug possession.

Police officers had searched the youth's partially unzipped backpack found in a vehicle after observing an open bottle of vodka nearby and noting the youth was intoxicated.

The trial judge found the search violated section 8 of the Charter and excluded the evidence under section 24(2).

The Superior Court of Justice allowed the appeal, finding the search was authorized under section 32(5) of the Liquor Licence Act because the officer had reasonable grounds to believe liquor was unlawfully kept in the vehicle and the backpack was not fastened closed.

The court further held that even if a breach occurred, the evidence should not have been excluded under section 24(2).

A new trial was ordered.

In a judge-alone sexual assault trial, the defence sought to call expert opinion evidence on memory to challenge the reliability of the accused's apparently inculpatory police statement and apology letter.

Applying the Mohan and Abbey framework, the court held that the proposed evidence was logically and legally relevant, necessary to assist the trier of fact on technical concepts concerning false and illusory memory, and not barred by any exclusionary rule.

The court also found that the benefits of admission outweighed any minimal litigation costs or risk of confusion.

The defence expert was therefore permitted to testify in specified memory-related areas, though not in the broader fields of cognitive psychology and memory generally.

On a motion to change a temporary custody and access order, the applicant sought permission to relocate the children from Hamilton to Wasaga Beach after securing better full-time employment.

Applying the two-step mobility framework from Gordon v Goertz and s. 29 of the Children’s Law Reform Act, the court found a material change in circumstances and concluded the move was in the children’s best interests.

The responding party relied largely on unsupported allegations already rejected in prior proceedings and offered no compelling evidence that the relocation would harm the children.

The motion was granted, the access exchange location was revised to a half-way point, and the existing order remained temporary.