Shivani Balcharan

This decision addresses a high-conflict family law trial regarding the primary residence of a four-year-old child, S.P., following the separation of her parents, Sanjay Patel and Beejal Yogesh Sesha Patel.

The court considered issues of relocation, parenting time, decision-making responsibility, child and spousal support, and equalization of net family property.

The court found that it was in S.P.'s best interests to continue residing with her mother in London, England, and for the existing parenting schedule to remain in place.

The court also ordered retroactive and ongoing child support, retroactive spousal support, and set out directions for the continuation of the trial on outstanding financial issues.

The Crown appealed stays of proceedings granted to three respondents on the basis of their s. 11(b) Charter right to trial within a reasonable time.

The trial judge had found breaches of the Jordan ceilings, but the Court of Appeal found that she did not adequately account for the systemic disruptions to court operations caused by the COVID-19 pandemic as discrete exceptional circumstances.

The Court provided guidance on how trial courts should account for pandemic-related delays, emphasizing a holistic approach and treating province-wide closures, jury blackouts, local restrictions, and backlog prioritization as discrete exceptional circumstances.

The appeals were allowed, and the stays of proceedings were set aside.

This costs endorsement followed a successful appeal where the appellants were wholly successful on the underlying motion.

The appellants sought costs of approximately $28,800 for the motion.

The court found this amount reasonable, considering the respondent had previously been awarded $34,663.03 on partial success of the same motion.

The court ordered the respondent to pay the appellants $28,800 in all-inclusive costs for the motion.

The appellants appealed a motion judge's decision that partially set aside a default judgment against them and imposed substantial indemnity costs, including a personal costs order against their counsel.

The default judgment stemmed from their inability to close on a home purchase agreement, leading to the respondent retaining their down payment and selling the property at a significant loss.

The Court of Appeal allowed the appeal in full, finding that the motion judge erred in her assessment of the appellants' arguable defence, misapplied principles regarding promptness and prejudice, and made palpable and overriding factual errors.

The personal costs order against counsel was set aside due to a breach of procedural fairness and factual errors.

The Court ordered the default judgment and noting in default to be set aside entirely, allowing the appellants to file a full statement of defence and counterclaim, and awarded substantial indemnity costs of the appeal to the appellants.

This is an appeal from a Superior Court decision concerning the enforceability of a non-competition covenant in an employment agreement.

The appellant employer sought to enforce the covenant against a former employee, a pharmacist, who left to work at a competing pharmacy.

The application judge found the covenant unenforceable due to ambiguity and overbreadth.

The Court of Appeal upheld this decision, affirming that the covenant's broad wording, which prohibited the employee from being "concerned with" or "interested in" any similar business, extended beyond what was reasonably required to protect the employer's legitimate interests.

The court reiterated that it cannot rewrite an unreasonable restrictive covenant.

The appellant sought to overturn a motion judge's order declining to restore their action to the trial list, dismissing it for delay, and discharging a certificate of pending litigation.

The Court of Appeal found no error in the motion judge's conclusions that the delay in prosecuting the action was entirely the appellant's responsibility, was unexplained, inordinate, and inexcusable.

The court agreed that an inference of prejudice arose from the lengthy delay, jeopardizing the likelihood of a fair trial due to the passage of time, impact on witness memories, and lack of proper discoveries.

The appeal was dismissed with costs.

The father appealed a trial judge's order granting the maternal uncle monthly weekend access to the children following the mother's death.

The trial judge had awarded sole custody to the father but ordered that the uncle have access one weekend per month, including overnight visits.

The father argued the trial judge erred in finding that access would not occur without a court order, that the trial judge failed to provide sufficient reasons for disbelieving his evidence that he would voluntarily provide access, and that the trial judge failed to consider potential psychological harm to the father.

The Court of Appeal dismissed the appeal, finding the trial judge's decision was properly driven by the children's best interests and entitled to deference.

The applicant father brought a motion seeking compliance with information-sharing provisions of a final order related to the parties' four children.

The motion was dismissed due to improper affidavit evidence, as the applicant relied on affidavits from lawyers who lacked personal knowledge of the contentious facts, violating rules of evidence.

The court strongly disapproved of this practice, emphasizing that parties should file their own affidavits.

While the motion was dismissed, the issues raised were permitted to be addressed at a pre-existing trial.

The respondent was awarded costs for the motion.