SCJ 2018

The applicant, Scott Henderson, brought a motion seeking a temporary order to fix monthly arrears payments at $3907.10 USD, pending the adjudication of his motion to vary a 2009 final support order.

The respondent, Suzanne Henderson, opposed the motion, arguing it was premature and that Arizona authorities had jurisdiction over arrears enforcement.

The court dismissed the applicant's motion, finding it improper as it sought to amend a final order without a live Motion to Change, and premature as there was no active application to vary the original order.

The court clarified that the proper remedy was a Motion to Change and noted that Arizona authorities, under the Uniform Interstate Family Support Act, were empowered to set the monthly amount to be deducted for arrears.

The appellants appealed their convictions for assault causing bodily harm and, for one appellant, threatening death.

The court upheld the convictions for assault causing bodily harm, finding the trial judge's assessment of credibility and reliability, and rejection of self-defence, to be reasonable and supported by evidence.

However, the conviction for threatening death was set aside as unsupported by evidence.

This motion concerned interim spousal and child support and interim disbursements.

The parties resolved the interim disbursements issue by agreeing to a line of credit on their jointly owned home for the applicant's litigation costs.

The primary dispute revolved around the imputation of the respondent's income for support calculations.

The applicant sought support based on an imputed income of $350,000, while the respondent proposed $120,000.

The court imputed an income of $120,000 to the respondent, finding the applicant's higher figure speculative and not sufficiently grounded in evidence.

Temporary child and spousal support orders were made based on this imputed income, with the respondent also ordered to continue paying various third-party expenses for the home and the applicant's car.

No income was imputed to the applicant at this stage.

The defendants brought a motion to transfer their action from London (Southwest Region) to the Toronto Region, which the plaintiff opposed.

The court, acting as a designate for the Regional Senior Judge, applied the holistic factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

Considering that the defendants and their businesses were located in Toronto, the court found that the interests of justice required the transfer.

However, due to a pending summary judgment motion, the action was ordered to remain in London for that specific hearing before being transferred to Toronto for any remaining issues.

Costs of the motion were reserved to the summary judgment motion judge.

The appellant was wholly unsuccessful on appeal.

The respondent sought partial indemnity costs of $8,301.47 including HST for the appeal.

The court, considering Rule 57.01 of the Rules of Civil Procedure, found the requested costs to be fair, reasonable, and proportionate, and ordered the appellant to pay them forthwith to the respondent.

The plaintiff, a minister of the Assembly of the Church of the Universe, sought an interim injunction to prevent prosecution under the Controlled Drugs and Substances Act and the Cannabis Act, arguing that such prosecutions infringed his right to freedom of religion.

The court dismissed the motion, finding that the plaintiff failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favored granting the injunction, particularly in light of the recent legalization of cannabis for personal use.

The court reviewed written costs submissions from both parties.

Noting recent amendments to the Family Law Rules regarding costs factors and a recent Court of Appeal decision on costs principles, the court invited the parties to file supplementary written submissions limited to these new developments.

Jake Rowntree brought two motions for summary judgment to dismiss negligence and occupiers liability claims against him arising from a motor vehicle accident.

The claims stemmed from an incident where Regan Brennan, who had alcohol addiction issues, consumed Rowntree's alcohol without permission at his residence and was subsequently asked to leave, later being involved in an accident while intoxicated.

The court dismissed the summary judgment motions, finding a genuine issue requiring a trial due to the absence of crucial evidence from a key witness, Jeff Mailoux, which prevented a fair and just determination of foreseeability and proximity for a duty of care.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action seeking the return of a $100,000 donation.

The plaintiffs alleged the donation was a conditional gift made for the sole purpose of purchasing a home for three young men with developmental disabilities, and claimed breach of contract and misrepresentation.

The court applied the summary judgment framework and utilized its fact-finding powers, concluding that the contemporaneous evidence and the parties' subsequent actions contradicted the plaintiffs' claim of a conditional agreement.

The court found the donation was made without strings attached and dismissed the action, awarding costs to the defendants.

This motion concerned the interpretation of a clause in Agreements of Purchase and Sale regarding the calculation of "Net Developable Area" (NDA) for land development.

The core dispute was whether storm water management (SWM) ponds located on "Protected Countryside" (Greenbelt lands) should be included in the NDA, thereby affecting the purchase price adjustment.

The court applied principles of contractual interpretation, emphasizing a holistic reading of the agreement and grounding interpretation in the text.

It found the clause unambiguous, concluding that the exception for SWM ponds applied only to "open space lands" (Group A) and not to "Protected Countryside" (Group B).

Consequently, SWM ponds on Protected Countryside do not form part of the NDA.

Stanley Moore died with a will whose residual clauses were ambiguous regarding the distribution of a predeceased brother's share.

The Estate Trustee sought judicial interpretation of these clauses.

The court applied the "arm-chair rule" to discern the testator's intent, which was to benefit two family branches roughly equally.

It was determined that the predeceased brother's share should pass to his children, giving meaning to "per stirpes" and balancing it with the "absolute" gift clause.

The court ordered that the share of the predeceased brother, John Frederick Moore, pass to his two children, Kenneth Moore and Kevin Moore, in equal shares.

The respondent brought a motion for partition and sale of the jointly owned common residence.

The applicant opposed, arguing sole equitable ownership due to extensive renovations and raising procedural objections regarding the motion's jurisdiction under the Family Law Rules.

The court affirmed its jurisdiction to hear motions for partition and sale under Rule 14 of the Family Law Rules, even for final orders, and dismissed the applicant's procedural arguments.

The motion for partition and sale was granted, as the applicant failed to demonstrate the high threshold of malicious, vexatious, or oppressive conduct required to resist the sale.

The net proceeds from the sale were ordered to be paid into court or trust.

The defendant Redi-Mix brought a summary judgment motion to dismiss the plaintiff Youssef's claim after Youssef was seriously injured when his motorcycle struck a donkey that had escaped from Redi-Mix's rented property.

Youssef cross-sought summary judgment on liability.

The court found that Redi-Mix, as a residential landlord, was negligent in failing to maintain and inspect the fences, as required by the Residential Tenancies Act and its regulations, which allowed the donkeys to escape and cause a public nuisance.

The court dismissed Redi-Mix's motion and granted summary judgment on liability in favour of Youssef against Redi-Mix, reserving damages for trial.

The Crown appealed a trial judge's decision to stay criminal harassment and distribution of intimate images charges against the respondent due to alleged late and incomplete disclosure.

The trial judge found the Crown breached its disclosure obligations regarding police notes of conversations with the complainant, which the defence claimed were necessary to determine a potential conflict of interest.

On appeal, the Superior Court found the trial judge erred in concluding the Crown breached its disclosure obligations, as the requested information was irrelevant and the defence was engaged in a fishing expedition.

The court also found the trial judge erred in his application of the stay of proceedings test and in finding a conflict of interest had crystallized.

The stay was lifted and a new trial ordered.

R.A.R., the father of A.J.H-R., brought a motion in the Superior Court seeking to set aside an adoption order and extend the time to appeal a Crown Wardship order, which was granted without access in 2011.

This action was prompted by the Motherisk Commission's finding that hair follicle tests significantly influenced the original wardship decision.

The current motion was for directions on the proper procedural route, venue, and statutory pathway, with R.A.R. relying on sections 7 and 24 of the Charter of Rights and Freedoms.

The court adjourned the procedural motion to allow the newly retained counsel for the adoptive parents to take instructions and to encourage the parties to explore alternative dispute resolution, such as mediation, given the complex issues involved.

The plaintiff, Daly Square Inc., brought a motion for summary judgment in a mortgage action seeking approximately $130,000 plus interest and possession of the mortgaged property, and dismissal of the defendants' counterclaim.

The defendants, 1786097 Ontario Inc. and Camille Mikhael, opposed, arguing for equitable set-off and that their $500,000 counterclaim for property damage was not statute-barred.

The court dismissed the plaintiff's motion for summary judgment on both its claim and the defendants' counterclaim, finding genuine issues requiring a trial regarding equitable set-off and the limitation period for the counterclaim.

The court also ruled that the defendants were not entitled to legal set-off.

The respondent brought a motion to prohibit the applicants' counsel from appearing on a pending motion to quash a summons to witness, arguing that the counsel was the primary source of contentious evidence.

The respondent also sought to strike portions of the applicants' affidavits.

The court granted the motion to prohibit counsel from appearing, finding it improper for a lawyer to act as counsel when they are the source of important and contentious evidence, even if provided via information and belief.

The motion to strike the affidavits was dismissed as premature.

Following a summary judgment granting the plaintiffs $6,000 in damages for defamation, the plaintiffs sought partial indemnity costs of $43,356.82.

The court considered the defendant's financial situation and the principle of proportionality, ultimately fixing costs at $10,000.

The accused, a transgender woman charged with murder, sought to introduce expert sociological evidence regarding the prevalence of violence against transgender people to support her claim of self-defence.

The Crown opposed the application.

The court dismissed the application, finding that the proposed evidence lacked logical relevance to the specific facts of the case, was unnecessary as the expected reactions to violence were not outside the normal experience of a jury, and carried a potential for prejudice that significantly outweighed its minimal probative value.

The applicant, charged with second-degree murder, sought to exclude a videotaped statement made to police, alleging a breach of her s. 10(b) Charter right to consult counsel without delay.

The court found a minor s. 10(b) breach due to a police officer's general practice of not facilitating counsel contact at the hospital.

However, the court determined that the subsequent statement was not obtained as a consequence of the breach, as there was a "fresh start" after the applicant consulted duty counsel, and the applicant would have spoken to the police regardless.

Applying the Grant factors, the court concluded that the breach was minor, had no impact on the applicant's Charter-protected interests, and society's interest in a trial on the merits favored inclusion.

The statement was ruled admissible.