SCJ 2019

The applicant mother sought the return of her four-year-old child to Virginia under the Hague Convention, alleging wrongful retention by the respondent father in Ontario.

The father conceded the retention was technically wrongful but argued the application was brought more than a year after the retention and the child was 'now settled' in Ontario under Article 12.

The court found the child had been living exclusively with the father for over two years in a stable environment, contrasting with the mother's history of substance abuse and child protection involvement.

The court concluded the child was settled in her new environment and dismissed the application for return.

The applicant sought to retroactively vary a 2003 ex parte child support order from Alberta, which had deemed his income at $43,000 and resulted in nearly $49,000 in arrears.

The applicant provided evidence of a prolonged period of severe drug addiction, homelessness, and incarceration, which prevented him from responding to the original order or seeking a variation sooner.

The court found this constituted a material change in circumstances justifying a retroactive variation.

The court recalculated the arrears based on the applicant's actual income, imputing minimum wage for years where his income fell below that threshold, reducing the total arrears to $8,531.44.

The Attorney General applied for a forfeiture order under the Civil Remedies Act for cash seized from the respondent during a drug trafficking investigation.

The respondent claimed the cash came from a real estate sale and a cultural deposit system, but provided inconsistent evidence and lacked supporting banking records.

The court found the cash was likely the proceeds of unlawful activity, given the presence of drug trafficking paraphernalia and the respondent's lack of a credible explanation for the funds.

The application was granted and the currency was ordered forfeited.

The applicant brought a motion to compel the respondent to answer undertakings and produce documents, including unredacted files from third-party lenders and a real estate file over which solicitor-client privilege was claimed.

The court found the respondent had not made sufficient efforts to comply with her undertakings and ordered her to write directly to the third parties for unredacted files.

The court also ordered the allegedly privileged emails to be produced for a privilege review process.

Costs of $7,500 were awarded to the applicant.

The parties brought cross-motions regarding the enforcement of a 2017 consent order requiring the sale of three assets: a jointly owned cottage, and the respondent's business and commercial property.

The applicant sought the appointment of a Receiver/Manager to sell all three assets due to the respondent's alleged failure to sell them.

The court declined to appoint a receiver for the cottage, ordering the applicant to list it immediately.

However, the court appointed a Receiver/Manager for the business and commercial property, finding special circumstances existed because the applicant had no other means to force the sale and the respondent lacked incentive to sell.

The defendants brought a motion for leave to conduct a second psychiatric assessment of the plaintiff, despite the action having been set down for trial almost four years prior.

The plaintiff claimed severe psychological impairment from two motor vehicle accidents.

The defendants' psychiatrist had not assessed the plaintiff since 2015, and the plaintiff's experts recently delivered updated reports indicating her condition had worsened and she was permanently unemployable.

The court granted leave under Rule 48.04(1), applying a flexible approach focused on trial fairness.

The court also ordered the plaintiff to attend a limited one-hour in-person second psychiatric assessment, finding it necessary to level the playing field and avoid prejudice to the defendants.

The plaintiff brought a motion seeking leave to issue a writ of seizure and sale and a notice of garnishment to enforce a 2010 summary judgment against the defendant for a mortgage shortfall.

The original writ had expired in 2016.

The defendant opposed the motion, arguing prejudice due to the plaintiff's nine-year delay in enforcement.

The court granted leave to issue the writ but, exercising its discretion to prevent injustice from the plaintiff's inaction, capped the accrual of interest to three years post-judgment.

The applicant brought an application to delete a temporary restraining order and caution on a property.

The court previously allowed the property to be sold, with $200,000 held in trust pending further submissions.

The court found that the respondent owed more on the mortgages than the property was worth, and the sale proceeds were insufficient to satisfy the amounts owing to the applicant.

The court ordered the $200,000 released to the applicant.

The plaintiff brought a motion seeking an order requiring the defendants to respond to written requests for information pursuant to section 39 of the Construction Act.

The defendants argued that the requests were improperly served by fax and opposed costs.

The court validated the service by fax under Rule 16.08, finding the documents came to the defendants' notice, and ordered the defendants to provide the requested information and pay the plaintiff's costs of the motion.

The accused was charged with two counts of assault and two counts of mischief against his former intimate partner.

The complainant, who suffered from a traumatic brain injury from a prior motor vehicle accident, testified that the accused strangled her on multiple occasions and destroyed her property, including a cell phone, keyboard, and air mattress.

The court found the complainant's evidence credible and reliable despite her cognitive challenges, noting significant corroboration from police photographs of the damaged property.

The accused was found guilty on all counts.

The accused, charged with 18 drug-related offences including trafficking large amounts of fentanyl, cocaine, and MDMA, brought a bail review after being detained.

He proposed a new release plan involving his aunt and uncle as sureties and GPS electronic monitoring.

The court found the accused barely met his onus on the primary and secondary grounds.

However, applying the tertiary ground under s. 515(10)(c) of the Criminal Code, the court concluded that detention was necessary to maintain public confidence in the administration of justice, given the overwhelming strength of the Crown's case, the gravity of the offences involving deadly drugs, and the likelihood of a significant penitentiary sentence.

The bail review was dismissed.

Following a successful summary judgment motion dismissing the plaintiff's claim, the defendants sought full indemnity costs of $84,327.60.

The court found that while the claim was not explicitly vexatious, the lack of evidence to support the plaintiff's position warranted an award of substantial indemnity costs to express the court's disapproval.

Applying the principle of reasonableness, the court reduced the requested amount and fixed costs at $40,000 inclusive of HST and disbursements.

Class counsel brought a motion for approval of their legal fees and disbursements following a successful summary judgment motion that awarded $20 million in aggregate damages for Charter breaches related to the administrative segregation of mentally ill inmates.

The court approved the requested 33.3% contingency fee, totaling $6.66 million plus HST, finding it reasonable given the significant risks undertaken and the substantial success achieved.

The court also approved a $15,000 honorarium for each of the two representative plaintiffs in recognition of their exceptional contributions to the litigation.

The payor father brought a motion to change a 2014 child support order, seeking to terminate support for his two adult children due to his terminal cancer diagnosis, job loss, and the children's ability to support themselves.

The recipient mother sought retroactive increases in support and contributions to post-secondary expenses.

The court found material changes in circumstances and allowed both retroactive claims to proceed.

The court ordered retroactive increases in the Table amount for 2015 and 2016, but reduced the payor's obligation starting June 2017 due to his decreased income and the children's receipt of CPP disability benefits and employment income.

The court terminated the payor's child support obligation entirely effective June 30, 2018, resulting in a final arrears balance of $1,363 owed to the mother.

The appellant appealed his convictions for assault, uttering threats, and mischief arising from a domestic dispute in a parking lot.

The sole ground of appeal advanced was that the trial judge erred in applying the second branch of the W.D. test for assessing credibility.

The Superior Court of Justice dismissed the appeal, finding that the trial judge gave fulsome and detailed reasons for her credibility findings, properly applied all three branches of the W.D. test, and her conclusions were fully supported by the record.

The plaintiffs brought a motion to strike portions of the defendants' Amended Statement of Defence.

The impugned clauses alleged that the plaintiffs had unclean hands because the claim was a subrogated claim by a title insurer based on false or misleading information provided by the plaintiffs.

The court agreed with the plaintiffs that these allegations were unrelated to the main action regarding renovations and a real estate transaction, and improperly broadened the scope of discovery.

The court ordered the impugned portions struck.

The defendant, a blogger reporting on municipal affairs, brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action as a strategic lawsuit against public participation (SLAPP).

The plaintiff, a former municipal administrator, sued over blog posts alleging he was dishonest and incompetent.

The court found the posts related to a matter of public interest but concluded the defamation claim had substantial merit and the defendant's defences could reasonably be rejected.

The court held that the harm to the plaintiff's reputation and employability outweighed the public interest in protecting the expression, and dismissed the motion.

The offender pleaded guilty to robbery and using an imitation firearm after robbing a convenience store at night while armed with a BB gun.

The stolen cigarettes contained a GPS tracker, leading to his swift arrest.

The court weighed the offender's traumatic childhood and guilty plea against his lengthy criminal record, which included a prior penitentiary sentence for robbery.

The court imposed a total sentence of 32 months and 15 days in custody, consecutive to a sentence currently being served, after crediting pre-trial custody.

The applicant mother sought sole custody of the parties' two children in an uncontested trial.

The mother had moved to Ottawa with the children in 2017.

In May 2018, during a visit to Halifax, the respondent father withheld the older child and refused to return him to the mother.

The younger child remained with the mother in Ottawa.

The court granted the mother final sole custody of the younger child.

Finding that Ontario had jurisdiction under section 22 of the Children's Law Reform Act, the court granted the mother temporary sole custody of the older child and ordered his return, subject to the father's right to file responding materials.

The moving party creditor sought to lift a stay of proceedings under the Bankruptcy and Insolvency Act to seize the bankrupt's RRSPs.

Prior to the bankruptcy, the bankrupt falsely stated under oath during a judgment debtor examination that he had no RRSPs.

Seventeen days later, he filed for bankruptcy and disclosed the RRSPs.

The court found that the RRSPs were exempt from the bankrupt estate but not exempt from seizure by a creditor under the Execution Act.

The court lifted the stay on equitable grounds, noting the creditor would have seized the RRSPs prior to bankruptcy had the bankrupt been truthful.