Shawn Patrick McNamara

This endorsement addresses costs following a successful motion by the defendants (Smiths) to set aside a noting in default.

Both the defendants, who were successful on the underlying motion, and the plaintiff sought costs.

The court clarified that there is no general rule precluding a party seeking an indulgence from being awarded costs, emphasizing that costs decisions are discretionary.

Despite the Smiths' success on the underlying motion, the court found their lack of diligence, failure to comply with court orders, and deficient materials weighed against a costs award.

Similarly, the plaintiff was denied costs due to their lack of diligence in pursuing the action and contributing to the delay.

Ultimately, the court ordered that each party bear their own costs for the motion.

The defendants, Shane Smith and Nadine Smith, successfully moved to set aside a noting in default.

The plaintiff, Norman Wong, had initiated the action alleging fraudulent conveyance.

The Smiths were noted in default after failing to file a Statement of Defence, despite having served an affidavit of documents.

The court found that the delay was excusable due to confusion and previous counsel's health issues, that the plaintiff would not suffer non-compensable prejudice, and that the Smiths had an arguable defence with an "air of reality" regarding the fraudulent conveyance allegations.

The decision emphasized the strong preference for deciding civil actions on their merits.

The Court of Appeal for Ontario considered whether a general revocation clause in a will was effective under s. 52(1) of the Succession Law Reform Act to revoke existing beneficiary designations by instrument for Registered Retirement Income Fund (RRIF) and Tax-Free Savings Account (TFSA) plans.

The court affirmed the application judge's finding that the clause, which revoked "all Wills and Testamentary dispositions," did not "expressly relate to the designation" as required by the Act.

Consequently, the prior beneficiary designations remained valid.

The court also confirmed that a conflicting Superior Court decision (Ashton Estate) on this point was "plainly wrong." The appeal was dismissed.

The applicants sought an order directing the estate trustees to pay them their designated shares of the deceased's RRIF and TFSA accounts.

The deceased had designated her four children as equal beneficiaries of the accounts, but later executed a Will containing a standard clause revoking all prior testamentary dispositions.

The court held that under s. 52(1) of the Succession Law Reform Act, a revocation in a Will is only effective if it relates expressly to the designation.

Finding that the standard revocation clause did not expressly reference the designations, the court concluded the designations were not revoked and ordered the funds distributed accordingly.

The applicant brought a motion for leave to appeal a family arbitration award.

The parties had entered into a mediation/arbitration agreement.

After shuttle mediation failed, the arbitrator issued a decision based on information obtained during mediation without holding an arbitration hearing as required by the agreement.

The court found that the failure to hold a hearing where both parties could present and respond to each other's case constituted an error of law.

Leave to appeal was granted.

The estate of a deceased elderly woman alleged that the defendant, who was a non‑contributing joint bank account holder and caregiver, breached fiduciary duties by transferring funds from the joint account to herself as compensation.

The court found that although the defendant occupied a fiduciary role in managing the account and effectively acted as a trustee de son tort, the payments were authorized pursuant to a family agreement for caregiving services.

Evidence showed the deceased approved the arrangement while capable and that the attorney for property had knowledge of the payments.

The court held the compensation was reasonable in light of extensive caregiving and financial management services.

The estate’s claim for repayment and damages was dismissed.

In this family law parenting dispute, the applicant sought to vary an earlier consent order governing joint custody and a shared parenting schedule for a school-age child.

After reviewing earlier assessment evidence, updated OCL evidence, and extensive evidence of ongoing parental conflict, the court held that significant positive changes in the applicant's circumstances neutralized the concerns that had previously favoured the respondent as primary parent.

The court found that making the respondent the primary residential parent, or imposing a true week-about shared parenting regime, would create an unnecessary and significant disruption to a child who was thriving in the current arrangement and closely bonded to a younger half-sibling.

The prior consent order was varied to continue joint custody, place the child with the applicant during the school week, give the respondent three of every four weekends, and remove police enforcement, telephone access, and exchange provisions.

The appellant appealed a summary judgment dismissing her action against the police for negligent investigation.

The appellant alleged the police negligently failed to send a needle for communicable disease testing.

The Court of Appeal dismissed the appeal, finding no basis for a negligence claim because uncontroverted evidence showed that testing the needle was impossible or unreliable, meaning no damages flowed from the failure to test.

The defendants brought a motion for summary judgment dismissing a civil claim alleging negligent police investigation and failure to test the contents of a needle that punctured the plaintiff while she was working at a women’s shelter.

The plaintiff alleged the police negligently failed to lay criminal charges and failed to arrange testing of the needle’s blood contents, causing prolonged anxiety about possible infection with communicable diseases.

The court held there was no genuine issue requiring a trial and applied the summary judgment framework articulated in Hryniak v. Mauldin.

The evidence demonstrated the police had consulted Crown attorneys who advised there were no reasonable grounds to prosecute, and the police had no authority under the Mandatory Blood Testing Act, 2006 to compel testing.

Any failure to obtain testing was attributable to the plaintiff’s own inaction rather than negligence by the defendants.

The Crown sought to admit a statement made by the accused during a polygraph interview.

The accused argued the statement was involuntary because the police officer used unsettling questions and failed to inform him that he had passed the polygraph test before continuing the interrogation.

The court applied the Oickle framework and found that the accused had an operating mind, was not subjected to threats or inducements, and understood his rights to leave or contact counsel.

The statement was ruled voluntary and admissible.

The appellant appealed his convictions and sentence for sexual assault, sexual intercourse, and luring a child using a computer.

The offences involved a 12-year-old complainant.

The Court of Appeal dismissed the appeal, finding that the trial judge properly addressed inconsistencies in the complainant's evidence, which was supported by confirmatory emails and letters.

The court also held that the facts supported the luring conviction and that the global sentence of 21 months was fit.

The appellant appealed a trial judge's finding that the parties cohabited continuously for more than three years and were "spouses" under Part III of the Family Law Act.

The appellant argued the trial judge erred in her factual findings and in her use of evidence from the respondent's psychiatrist.

The Court of Appeal dismissed the appeal, finding the trial judge applied the correct test and her findings were adequately supported by the evidence, including her conclusion that the respondent's infidelities did not negate the spousal relationship.