SCJ 2016

The parties were involved in a protracted, high-conflict family law trial regarding custody and access.

Pending the release of full reasons for judgment, the court issued an advance ruling on the issue of 2016 Christmas holiday time-sharing.

The applicant mother sought equal time-sharing over the holidays, while the respondent father sought to limit her time.

Applying the best interests of the child test under the Divorce Act, the court found that the mother had made significant strides in addressing past concerns and had re-established a meaningful bond with the children.

The court ordered that the 2016 Christmas school break be shared equally between the parties, structured to ensure the children spent no more than three consecutive overnights with the mother.

The applicant moved for interim spousal support, seeking between $500 and $800 a month.

The parties had been married for 28 years and separated in 2013.

Both parties earned approximately $40,000 annually, with the respondent's income derived from a WSIB pension.

The applicant argued that additional income should be imputed to the respondent based on alleged cash work and unexplained deposits.

The court rejected the request to impute income, accepting the respondent's explanations that the deposits were from a cashed RRSP and transitional banking measures, and that he did not work for cash at his friend's shop.

The motion was dismissed with costs awarded to the respondent.

In supplementary reasons following a summary judgment for Crown wardship, the court revised its order to reflect that the parties' consent to finding the children in need of protection applied only to sections 37(2)(b)(i) and (ii) of the Act.

The mother's motion to adjourn the access trial was dismissed.

The access trial did not proceed as the parties filed a consent resolving the issue.

The plaintiff, who was acquitted of murder after two trials, sued the police for malicious prosecution, negligent investigation, and Charter breaches.

The defendant police board moved for summary judgment.

The court granted the motion, finding that the police had reasonable and probable grounds to arrest and charge the plaintiff based on the evidence available at the time, including a co-conspirator's statement.

The plaintiff failed to provide evidence of malice, bad faith, or that the investigation fell below the standard of care.

The applicant mother commenced proceedings in Ontario seeking sole custody and permission to relocate to Texas, despite a prior Florida order governing custody.

The respondent father consented to the relocation shortly after, and the mother moved to Texas.

The parties subsequently consented to dismiss the Ontario application and answer, leaving costs to be determined.

The court found the mother acted unreasonably in launching the Ontario proceedings and maintaining that Ontario had jurisdiction after moving to Texas.

The mother was ordered to pay $2,500 in costs to the father.

The plaintiff brought a motion to extend the time to restore its construction lien action to the trial list and to prevent an impending administrative dismissal, pending its appeal of a previous order that refused to restore the action.

The defendants argued the motion was unnecessary because the Divisional Court has jurisdiction to set aside an administrative dismissal if the appeal succeeds.

The court agreed with the defendants, finding the motion unnecessary and dismissing it, as the appellate court's powers under the Courts of Justice Act and the Rules of Civil Procedure are sufficient to remedy any intervening administrative dismissal.

The applicants sought an order under the oppression remedy provisions of the OBCA to force the sale of the respondents' shares in a jointly owned corporation, alleging an irreconcilable relationship breakdown and corporate deadlock.

The applicants also sought a winding up of related corporations.

The court found that the applicant, who was the sole director and officer, continued to operate the business successfully and had manufactured the alleged deadlock to circumvent a contractual moratorium on a shotgun buy-sell provision.

The application was dismissed as the court found no oppressive conduct and no justification for a just and equitable winding up.

The applicant, facing charges of importing a Schedule I controlled substance, brought a Rowbotham application for state funding for his defence after being denied Legal Aid.

The Crown opposed the application, arguing the applicant had not provided sufficient evidence of financial hardship.

The court found that the applicant had exhausted all Legal Aid appeals, lacked the means to privately retain counsel due to health issues and unemployment, and that legal representation was essential for a fair trial given the complexity of the case.

The application was granted, and Legal Aid Ontario was ordered to issue a certificate.

The respondent father sought costs after successfully moving to rescind an ex parte order and obtaining non-supervised access to the children.

The applicant mother had obtained the initial order based on an affidavit that contained non-disclosure and mis-disclosure, which she later admitted during questioning.

Despite these admissions, the mother maintained an intransigent position, forcing the father to incur significant legal fees.

The court found the mother's conduct unreasonable and ordered her to pay $20,000 in all-inclusive costs to the father.

The moving parties sought leave to appeal a decision dismissing their motion to disqualify the respondents' counsel of record due to an alleged conflict of interest.

The conflict allegation arose after an associate lawyer, who previously worked at the law firm representing the moving parties, joined the law firm representing the respondents.

The court applied the test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decision to satisfy Rule 62.02(4)(a) and no reason to doubt the correctness of the motion judge's order or any matter of general importance to satisfy Rule 62.02(4)(b).

The motion for leave to appeal was dismissed with costs awarded to the respondents.

The moving party, an appliance supplier, sought leave to register a certificate of pending litigation against a condominium unit owned by the responding parties.

The moving party alleged it was owed $155,000 for appliances supplied to a previous project and had entered into an agreement of purchase and sale for the unit as security for the debt.

The responding parties argued the agreement prohibited the registration of a certificate of pending litigation.

The court granted the motion, finding that the potential harm to the moving party outweighed the harm to the responding parties, the responding parties' corporations were likely to become shell companies, and the responding parties were estopped from relying on the non-registration clause due to their own default.

The applicant father brought a motion to change a previous order regarding the residency schedule of the parties' child.

The father raised concerns about the mother's living conditions, including bedbugs, garbage, an impending eviction, and the mother's work schedule requiring various caregivers.

The court found it was in the best interests of the child to spend more time at the father's stable residence and ordered that the child reside primarily with the father, with the mother having alternate weekend and mid-week access.

The offender was convicted of four counts of trafficking in cocaine.

At sentencing, he brought a Charter application challenging the constitutionality of s. 742.1(c) of the Criminal Code, which eliminated conditional sentences for offences with a maximum penalty of 14 years or life, arguing it violated ss. 7 and 12 of the Charter.

The court dismissed the application, finding that the provision did not result in grossly disproportionate sentences and was not overbroad.

The offender was sentenced to 90 days of intermittent imprisonment followed by two years of probation.

The applicants challenged the validity of a will and an acknowledgment of trust purportedly executed by the deceased, alleging the signatures were forged.

The respondents, the deceased's parents and brothers, sought to uphold the documents and argued the applicant wife was separated from the deceased and not a dependant spouse.

Relying on expert handwriting evidence, the court found the will and trust documents were forged and therefore invalid.

The court also found that the applicant wife and the deceased were in a spousal relationship at the time of his death, entitling her to be appointed Estate Trustee Without a Will and declaring her and her children dependants of the estate.

The accused was tried before a judge alone on charges of sexual assault and sexual interference arising from allegations made by a child complainant concerning events said to have occurred when she was seven years old.

The Crown relied principally on the complainant’s videotaped statement and testimony, while the defence raised concerns arising from a missing second police video statement, third party records, inconsistencies in the complainant’s accounts, and evidence suggesting influence from counselling in the context of ongoing family custody litigation.

Applying the W.(D.) framework and the jurisprudence governing the assessment of child witness testimony, the court found that the complainant’s evidence about the most serious allegation, and her evidence overall, did not satisfy the Crown’s burden of proof beyond a reasonable doubt.

The accused was acquitted on all charges, and the lost evidence application was therefore moot.

The moving parties sought leave to appeal an order dismissing their motion for the appointment of an investigator under the Business Corporations Act.

They argued the motion judge erred by failing to determine if a prima facie case of oppressive conduct was established and by requiring them to prove oppression on the merits.

The court found the motion judge applied the correct test and that the proposed appeal did not involve matters of general or public importance.

The motion for leave to appeal was dismissed.

The offender was convicted of possession of cocaine for the purpose of trafficking after police seized 188.72 grams of powder cocaine and 20.75 grams of crack cocaine from his apartment.

The Crown sought a penitentiary sentence of 3 to 3.5 years, while the defence argued for a non-custodial sentence, citing exceptional circumstances and case law on addict traffickers.

The court rejected the defence's argument, finding no evidence the offender was an addict and concluding he was a commercial trafficker.

However, emphasizing rehabilitation for a youthful first offender, the court sentenced him to two years less a day in reformatory and two years of probation.

The applicant father brought a motion to terminate child support for his 20-year-old son, arguing the son was old enough to provide for himself and that they had no relationship.

The respondent mother opposed and sought an increase in support and payment of arrears.

The court found the son remained a child of the marriage as he was pursuing post-secondary education, and ordered the father to continue paying table support until at least April 2018.

The court also ordered the father to pay $3,580.32 in child support arrears, but dismissed the claim for section 7 expenses, finding the son could fund his own education through RESPs, OSAP, and part-time work.

The individual defendants brought an urgent motion to stay the execution of a summary judgment granting the plaintiff possession of their personal residences following a corporate loan default.

The defendants argued the plaintiff should first realize on the bankrupt corporation's assets.

The court found it had inherent jurisdiction to grant a stay but declined to do so, ruling the motion was an impermissible collateral attack because the defendants failed to seek this relief during the original summary judgment motion.

The court also found the defendants failed to prove the corporate assets had sufficient value to satisfy the debt.

The motion was dismissed.

The moving parties, the aunt and uncle of a child apprehended at birth, sought to be added as parties to a child protection proceeding where the Society sought Crown wardship.

The Society opposed the motion, arguing that the mother could advance the kinship plan.

The court granted the motion, finding that adding the aunt and uncle was in the child's best interests, would not delay the proceedings, and was necessary to allow them to independently advance their kinship plan.