SCJ 2016

This endorsement addresses cross-motions concerning parenting issues and child support.

The Respondent sought a specific parenting schedule and a s. 30 assessment, while the Applicant sought a different parenting schedule, an order to engage a child therapist, and temporary and retroactive child support, including s. 7 expenses.

The court established a temporary parenting schedule based on alternate 3-night weekends with specific holiday arrangements, dismissing the Respondent's request for an immediate 50/50 split and the Applicant's request for a child therapist.

A s. 30 assessment was ordered due to the toxic parental relationship and differing views on the children's needs, with costs to be shared equally.

The court determined the Respondent's income for child support at $324,923 CAD, rejected his undue hardship claim, and ordered him to pay $4,013 per month in child support.

The Applicant's claim for ongoing s. 7 expenses (except for nanny costs, which were to be negotiated) and retroactive support was dismissed or adjourned to trial.

The applicant, Shakeil Wheatle, charged with two separate murders, brought a pre-trial motion seeking severance of the two murder counts.

The court granted the severance, finding no factual nexus between the two homicides, differing strengths in the Crown's case for each, and a significant risk of prejudice to the accused if the counts were tried together.

The decision emphasized the importance of avoiding impermissible inferences and the complexity of jury instructions in such circumstances.

The defendants, having successfully obtained a stay of action based on an arbitration clause, sought partial and substantial indemnity costs totaling $68,449.55.

The plaintiff conceded entitlement to costs but argued the amount was excessive.

The court applied the principle that costs should be fair and reasonable for the unsuccessful party, not merely the actual costs incurred.

While acknowledging the importance of the matter to the defendants and the plaintiff's conduct contributing to increased costs, the court found the claimed hours excessive for a two-hour motion.

Considering an offer to settle, the court awarded costs at the higher end of a reasonable range, fixing them at $40,000.00.

This case conference endorsement addresses a plaintiff's extensive motion, which the defendants argued largely required leave under Rule 48.04(1) of the Rules of Civil Procedure.

The court, without ruling on the merits of the leave requirement, found the two-hour hearing allocation unrealistic for the motion as framed.

By consent, the scope of the plaintiff's motion was limited to specific paragraphs concerning particulars and outstanding undertakings, without prejudice to the remaining relief which may still require leave.

The court also noted the possibility of a future case conference before trial.

This decision approves two class action settlements against Furukawa and Fujikura defendants for price-fixing in the automotive wire harness systems (AWHS) industry.

The court certified the class actions for settlement purposes, finding that the requirements of the Class Proceedings Act were met.

The settlements, for $2.3 million (Furukawa) and $1,083,280 (Fujikura), were deemed fair and reasonable and in the best interests of the class, based on detailed affidavit evidence from class counsel.

The court also approved class counsel's legal fees, calculated as a 25% contingency plus disbursements and taxes, consistent with retainer agreements and prior jurisprudence.

The applicant father brought a motion seeking interim joint custody with primary residence of the children with him, citing the children's unhappiness with the respondent mother.

The respondent mother opposed the motion and brought a cross-motion for a further Office of the Children's Lawyer (OCL) report.

The court dismissed the applicant's motion, expressing significant concerns about potential parental alienation by the father and the manipulation of the children.

The court granted the order for a further OCL report and urged both parties to seek counselling and improve communication.

The applicant brought a motion to change a final order regarding child support and section 7 expenses for his three children.

Key issues included the applicant's income, whether an adult child (Ivana) remained a child of the marriage for support purposes while pursuing a second degree, and the calculation of support and arrears for another adult child (Jelena) and a minor child (Luka).

The court found no material change in circumstances to impute a higher income to the applicant beyond a conceded increase.

It ruled that support for Ivana ceased upon completion of her first degree, rejecting the respondent's claim for medical school expenses.

Support for Jelena was suspended for 2012 due to her employment but continued for 2013 despite part-time studies due to a mental health condition, payable directly to her after age 22 until age 23.

The court clarified the interpretation of section 7 expenses for post-secondary education and hockey, largely upholding the original consent order's framework.

Arrears were calculated based on these findings.

The applicant brought a motion for interim spousal support, continued medical and dental coverage, and a life insurance designation following a 16-year relationship.

The respondent consented to the medical and dental coverage but opposed the support and life insurance claims.

The court found the applicant established a prima facie entitlement to needs-based support due to her financial dependence during the relationship and her ongoing medical needs.

The court ordered interim spousal support of $1,711 per month, representing the low end of the Spousal Support Advisory Guidelines, and ordered the respondent to designate the applicant as the irrevocable beneficiary of a $250,000 life insurance policy to secure the support.

The defendant moved for summary judgment to dismiss the plaintiffs' action, alleging it was statute-barred by the Limitations Act, 2002, or alternatively, by an executed release.

The action concerned alleged defects in the basement floor slab of a new home.

The court found that the plaintiffs had discovered their claim well before the two-year limitation period preceding the statement of claim's issuance and that ongoing communications or investigations did not extend the period.

The court also upheld the validity of a release signed by the plaintiffs.

This costs endorsement followed a successful motion by the plaintiff's solicitors, Victor Ages Vallance LLP (VAV), to assert a solicitor's lien and obtain a charging order over a $48,000 costs award owed to their client.

The Conservative Party of Canada (CPC), a judgment creditor, opposed this relief and sought to garnish the funds, and subsequently requested to set off the costs awarded to VAV against an earlier costs award owed by the plaintiff to CPC.

The court awarded VAV partial indemnity costs for their successful motion, albeit reduced from their requested amount due to some over-lawyering.

The court denied CPC's request for set-off, reasoning that it would unfairly penalize the solicitors for asserting a valid right.

The plaintiff in a personal injury claim moved for partial summary judgment to strike the defendants' Limitations Act defence.

The plaintiff argued she did not discover her "threshold injuries" until almost three years after the motor vehicle accident, commencing her claim within a year of that discovery.

The court dismissed the motion, finding genuine issues for trial regarding the discoverability of the claim, particularly concerning the "permanent serious impairment" threshold under the Insurance Act.

The judge declined to exercise enhanced fact-finding powers under Rule 20.04(2.1) due to the risk of duplicative proceedings, inconsistent findings of fact, incomplete medical evidence, and issues with the plaintiff's cross-examination affecting credibility assessment.

The Ontario Superior Court of Justice reconsidered spousal support and costs following a direction from the Court of Appeal.

The Court of Appeal had found the trial judge's initial determination of the wife's income for support purposes unclear.

The trial judge, Harper J., was tasked with re-evaluating the wife's income, particularly regarding capital gains from a one-time share sale, and its impact on periodic spousal support, as well as reconsidering the costs award.

The court imputed an annual income of $282,119 to the wife based on the reasonable investment yield of her capital resources and pension income, and ordered the husband to pay $8,000 per month in spousal support.

The court also found the wife's conduct amounted to bad faith in driving litigation, leading to a substantial costs award against her, requiring her to pay $322,125.70 to the husband.

The defendant Saad Amjad, a G1 driver, caused a motor vehicle accident injuring plaintiffs Jonathan Caithesan and Christo Delina.

Their respective insurers, Dominion General Insurance Company and Royal & Sun Alliance Insurance Company of Canada, settled the claims and then brought motions for summary judgment on their cross-claims against Amjad for recovery of the settlement payments.

The court found Amjad negligent in operating the vehicle and that the settled damages were reasonable.

The court dismissed Amjad's defence of contributory negligence by the passengers, finding that passenger knowledge of an inexperienced driver or influence to take a car does not constitute contributory negligence.

Summary judgment was granted in favour of both insurance companies against Amjad.

The applicant, Ethan Miazad, sought certiorari to challenge his committal to stand trial on charges of fraud over $5,000.

The Crown alleged that Miazad and a co-accused defrauded Dr. Rhuel Maano by using him as a "straw man" to secure a $350,000 business loan for a medical clinic, personally guaranteed by Maano, while diverting funds to companies associated with the accused and failing to repay the loan, leaving Maano with the debt.

The court reviewed the preliminary inquiry judge's decision and the law of fraud and certiorari, finding sufficient evidence for committal based on the overall "straw man" fraud theory and non-disclosure of related-party transactions.

The application for certiorari was dismissed.

The defendant Civita Vitiello brought a motion for summary judgment, arguing the plaintiff's claim was statute-barred due to the expiration of the limitation period.

The central issue was discoverability, specifically when the plaintiff, Marie Leblanc, discovered or ought to have discovered her claim against Civita Vitiello.

The court found that Marie Leblanc had sufficient knowledge or suspicion of Civita Vitiello's involvement by December 2010, and her son's 2014 disclosure did not constitute new information to trigger a fresh limitation period.

The plaintiff failed to demonstrate reasonable diligence in pursuing her claim.

Consequently, the action was dismissed as statute-barred.

The plaintiff, a lawyer, sued her former law firm for wrongful dismissal, asserting she was an employee.

The defendant firm contended she was a partner.

The court applied the "substance over form" principle to determine the true nature of the relationship, examining factors such as participation in firm management, access to financial information, tax filings, and benefits.

The court concluded that the plaintiff was a partner, not an employee, and therefore dismissed her claim for wrongful dismissal.

The applicant sought substantial indemnity costs after successfully litigating a right-of-way dispute.

The respondents, through new counsel, argued for lower costs, citing ineffective prior representation and a late concession.

The court awarded the applicant $20,000 in all-inclusive costs, finding that the respondents' conduct, including an adjournment, unhelpful affidavits, and a late major concession, warranted more than partial indemnity.

The court also clarified its earlier order regarding the registration of the court orders on title at the respondents' expense.

This is a voir dire ruling on the voluntariness of statements made by the accused, Anthony Alas, who was charged with second-degree murder.

The primary issue was whether the statements were the product of an atmosphere of oppression, specifically due to the police's alleged failure to provide the accused with stomach medication.

The court found that the Crown proved beyond a reasonable doubt that the statements were voluntary, concluding that the accused's will was not overborne by police conduct or the circumstances.

The court considered the accused's mental state, the absence of threats or inducements (including any suggestion regarding his partner's potential arrest), and the presence of oppressive circumstances.

Despite some concerns about how the accused's medical needs were handled, the court determined that the overall police conduct was polite and accommodating, and the interview was calm and non-confrontational.

Following a judge-alone criminal trial, the court considered disputed counts arising from an accused's conduct while subject to a long term supervision order at a community correctional centre.

The Crown proved that the accused used multiple cell phones and text-message deception to impersonate a real person known to the complainant, thereby inducing her to agree to sexual intercourse she would not otherwise have permitted.

The court also accepted the complainant's evidence that she was drugged and sexually assaulted in a hotel room, and that additional non-consensual sexual touching occurred during a later arranged sexual encounter whose scope had been strictly limited.

Applying the W.(D.) framework and the principle that delayed disclosure does not undermine credibility, the court convicted on the disputed counts and confirmed guilt on the conceded supervision-order breaches.