Superior Court of Justice

The applicant, having been acquitted of aggravated assault but convicted of the lesser included offence of simple assault, applied to re-open the trial before sentencing.

The applicant argued that the court lacked jurisdiction to find him guilty of simple assault, asserting that aggravated assault under s. 268 of the Criminal Code does not contain a lesser included offence of assault.

The court declined to exercise its discretion to re-open the trial, emphasizing the principle of finality and noting the argument should have been raised during closing submissions.

The court also rejected the substantive argument, affirming that simple assault is a lesser included offence of aggravated assault.

The moving party brought a motion to set aside an ex parte order that froze her bank accounts and made her personally liable for a judgment regarding funds allegedly misappropriated from the responding party's elderly father.

She also argued the seized funds were exempt from seizure under the Wages Act as they originated from a WSIB settlement.

The court dismissed the motion to return the seized funds, exercising its discretion to reduce the wage exemption to 0% for the already seized amounts due to strong prima facie evidence of financial impropriety.

However, the court varied the order to allow an 80% exemption for future wages and directed a trial of the issue regarding her ultimate liability.

The defendants brought a motion to enforce a costs order made by the Supreme Court of Canada.

The Supreme Court had ordered that the parties bear their own costs in the Superior Court, based on a misdescription of the procedural history as involving two separate motions (one for certification, one for a stay).

The Superior Court interpreted the Supreme Court's ruling to mean that the plaintiff must repay the costs associated with the stay of proceedings argument, but could retain the costs awarded for the certification motion, which was not appealed to the Supreme Court.

The plaintiff was ordered to repay $12,180 to the defendants.

The appellants appealed a Master's decision denying them leave to examine non-parties to trace funds and enforce a 1997 judgment against the respondents.

The Master had also ruled that the respondent did not have to provide further answers to previously ordered questions, citing the passage of time and the expiry of limitation periods.

The Superior Court of Justice allowed the appeal, finding that the Master erred in law by invoking the doctrine of laches and the Limitations Act, 2002, as there is no limitation period for enforcing a judgment.

The court ordered the respondent to provide further answers and permitted the examination of the non-parties.

The applicants in an estate litigation matter brought a motion to remove the respondent Estate Trustee's counsel of record.

The applicants alleged bad faith, a conflict of interest arising from the lawyer's past marriage to the applicants' sister and past representation of two applicants, and the likelihood that the lawyer would be called as a witness at trial.

The court dismissed the motion, finding no disqualifying conflict of interest, no risk of misuse of confidential information, and no real basis to believe the lawyer would likely provide material evidence at trial.

The offender was found guilty by a jury of sexual assault causing bodily harm, attempting to choke, forcible confinement, and uttering a threat to cause death against a sex trade worker.

The court considered the brutal and unprovoked nature of the attack, the vulnerability of the complainant, and the severe physical and psychological impact.

The court also considered the offender's lack of a criminal record, family support, and the potential collateral consequence of deportation.

The court imposed a global sentence of 6 years' imprisonment, less 10 months of pre-sentence credit, leaving 5 years and 2 months to serve.

At a family law case conference, the applicant wife sought orders for financial disclosure and costs.

The respondent husband had delayed providing complete financial disclosure for over two years and provided an Estimate Valuation Report instead of a Comprehensive Valuation Report.

The court ordered the husband to pay $60,000 for the wife's expert disbursements, $20,000 for expenses incurred due to delayed disclosure, and $10,000 for the costs of the unproductive case conference.

Following the dismissal of the applicant's application, a dispute arose regarding the amount required to discharge the second mortgage and stop the power of sale.

The applicant tendered the amount in the Notice of Sale plus interest, but the respondents demanded all legal fees incurred to date pursuant to the mortgage terms.

The court clarified that payment of the Notice of Sale amount plus interest would stop the sale, and the issue of liability for the respondents' costs would be addressed in the requested costs submissions.

The offender, a registered massage therapist, was found guilty of two counts of sexual assault against female clients during massage treatments.

The court found significant aggravating factors, including the breach of trust, the vulnerability of one victim who suffered from a chronic illness, and the profound psychological impact on both victims.

The court rejected the Crown's request for two years less a day and the defence's request for nine months, sentencing the offender to a total of 13 months' incarceration followed by 18 months' probation.

Following a motion for temporary child and spousal support where success was divided, both parties sought costs.

The applicant husband had successfully established a prima facie entitlement to spousal support and obtained a temporary support order, despite the respondent wife's position that no support should be ordered.

The court found the husband was the successful party on the most important issues.

After considering the parties' behaviour, offers to settle, and the proportionality of the fees, the court ordered the respondent to pay costs of $33,000 to the applicant.

The mother brought an interim motion to relocate with the parties' three children to Kapuskasing following the sale of the matrimonial home in Smiths Falls.

The father, who had been exercising equal parenting time, opposed the move.

The court found that neither parent could afford housing in Smiths Falls and the mother had a reasonable plan and family support in Kapuskasing.

Noting the father's stated willingness to also move to Kapuskasing, the court permitted the relocation and ordered that equal parenting time continue in Kapuskasing, granting a 30-day grace period for the father to secure accommodation.

The plaintiff brought a motion to validate service of her Statement of Claim after 19 months of unsuccessful attempts to serve the defendants.

The motion was resolved when the defendants' counsel accepted service prior to the third return date.

The parties could not agree on costs.

The court found that the defendants' conduct made the motion necessary and unnecessarily lengthened the proceeding.

The court awarded the plaintiff costs fixed at $2,500.

The applicant mother brought an urgent motion seeking the return of the parties' 11-year-old child to her primary care and an order that the child attend school in-person.

The respondent father, who had temporarily assumed primary care at the onset of the COVID-19 pandemic, brought a cross-motion seeking primary residence and an order for virtual schooling, citing his and his partner's diabetes as risk factors.

The court found that the father had engaged in self-help by refusing to return the child.

Applying recent jurisprudence on COVID-19 school attendance, the court held that the benefits of in-person schooling for the child, who has learning disabilities and an Individual Education Plan, outweighed the unquantified health risks to the father's household.

The mother's motion was granted.

The applicant mother brought an urgent motion seeking to change the children's school enrolment from Palgrave to Uxbridge following her unilateral relocation, or alternatively, to have the children attend school online due to the COVID-19 pandemic.

The respondent father opposed the motion and sought an order that the children continue attending their current school in person.

The court dismissed the mother's motion, finding no compelling evidence to rebut the presumption that in-person attendance is in the children's best interests.

The court also held that it was premature to order a change in the school district before pleadings were exchanged and a parenting schedule was determined, ordering the children to continue attending their current school in person.

The successful defendants sought their costs of the trial.

The court found that the plaintiff's conduct throughout the litigation was egregious and reprehensible, including forging a signature and improperly registering notices on title to delay the sale of a property.

As a result of this malicious and unreasonable conduct, the court awarded the defendants their costs on a substantial indemnity basis.

The respondent payor brought an urgent motion to suspend ongoing spousal support pending the hearing of his motion to terminate support following his early retirement.

The applicant recipient opposed the motion, citing her inability to work due to medical conditions and the payor's historical failure to disclose significant income increases.

The court applied the four-part test for temporary variation of support, finding that while the payor demonstrated a prima facie case and potential hardship, his failure to disclose income and the recipient's precarious financial situation weighed against full suspension.

The court ordered a 50% reduction in spousal support on an interim, interim basis pending a full evidentiary hearing.

The applicant mother brought an interim motion seeking primary care of the parties' two children, specific parenting time for the respondent father, and to purchase the father's interest in the matrimonial home.

The parties had been living together in the matrimonial home post-separation, resulting in significant conflict.

The court found that the mother had been the primary caregiver and that the father's aggressive conduct in front of the children was concerning.

The court granted the mother primary care and final decision-making authority, established a parenting schedule for the father, and ordered that the mother purchase the father's interest in the matrimonial home within 90 days.

The mother brought an urgent interim motion seeking sole custody and permission to relocate the parties' two young children from London to Windsor.

The father brought a cross-motion seeking an order that the children's primary residence remain in London with him.

The mother had unilaterally removed the children from their school and home in London following an altercation that resulted in criminal charges against her.

The court applied the best interests of the child test and mobility principles, finding that the mother's unilateral relocation was not necessary and created an inappropriate 'fait accompli'.

The court dismissed the mother's motion and granted the father's cross-motion, ordering the children to reside primarily with the father in London and attend their previous school, with the mother having alternate weekend parenting time.

The respondent father brought a motion seeking expanded access to the parties' child, retroactive and ongoing spousal support, and an advance equalization payment.

The court dismissed the motion in its entirety.

The court declined to expand access pending a court-ordered section 30 assessment, noting the father had delayed the assessment by failing to pay his share of the retainer.

The claims for spousal support and an advance equalization payment were dismissed due to conflicting evidence requiring a trial and the father's failure to comply with a prior financial disclosure order.

The moving party father sought to vary a 2017 child support order due to a loss of employment and one child ceasing to be a dependent.

The responding party mother conceded the material changes in circumstances.

The court recalculated the father's child support obligations for 2018, 2019, and ongoing for 2020 based on his reduced income.

The court fixed the child support arrears at $3,870.84 and ordered the father to pay $1,500 for previously ordered section 7 orthodontic expenses, dismissing the mother's other section 7 claims.