Stanley J. Kershman

The plaintiffs sued the defendant home builder in negligence and nuisance after their basement flooded, causing over $65,000 in agreed damages.

The plaintiffs alleged that the defendant's construction activities on the adjacent lot obstructed a municipal drainage ditch, causing water to back up into their sump pump system and overheat the pump.

The court weighed conflicting expert evidence and preferred the defendant's expert, finding it more likely that spring runoff overwhelmed the sump pump or that the pump malfunctioned independently.

The court concluded the plaintiffs failed to prove on a balance of probabilities that the defendant's actions caused the flood, and dismissed the action.

In a civil forfeiture proceeding under the Civil Remedies Act, the Attorney General brought a motion to compel cross-examination on affidavits originally sworn in related Criminal Code s. 490 proceedings but later appended as exhibits to an affidavit filed in the civil application.

The respondent argued that the affidavits were “spent,” that cross-examination would constitute a collateral attack on the earlier order returning the funds, and that res judicata applied.

The court held that where affidavits are appended as exhibits to a solicitor’s affidavit and filed in the proceeding, they are deemed to be filed as part of the application.

Because the respondent had an adverse interest in the seized currency and relied on the exhibit affidavits, the Attorney General was entitled to cross-examine their deponents.

The doctrines of collateral attack and res judicata did not prevent cross-examination at this stage.

The respondent mother brought a motion to vary child support for two children.

The court determined the living arrangements and educational status of the older child to calculate the applicant father's child support obligations for specific periods.

The court also imputed income to both parties for certain years to calculate the mother's ongoing and retroactive child support obligations for the younger child.

The mother's claim for undue hardship was dismissed as she failed to meet the requirements under section 10(2) of the Child Support Guidelines.

The court ordered the mother to pay the net arrears and ongoing support.

The applicant sought interest on attendant care and housekeeping arrears after the insurer ultimately accepted that she had sustained a catastrophic impairment.

The court held that, on the narrow facts, the delayed catastrophic impairment determination rendered additional benefits overdue and interest was payable notwithstanding the insurer's good faith payments and prior denial.

Relying on the compensatory purpose of the SABS interest regime, the court awarded interest at two percent on attendant care benefits from August 1, 2005 and on housekeeping benefits from January 20, 2006.

Costs were left for further submissions if not resolved.

The plaintiff's vehicle was impounded by police in August 2009.

She filed a public complaint and later commenced a civil action in October 2013.

The defendants moved for summary judgment, arguing the claim was statute-barred under the Limitations Act, 2002.

The plaintiff moved to strike the defendants' motion, alleging the supporting affidavit was based on hearsay and violated the Rules of Professional Conduct.

The court dismissed the motion to strike, finding the affidavit proper and the documentary evidence sufficient.

The court granted summary judgment, holding that the plaintiff knew or ought to have known she had a cause of action by August 2009, making her 2013 claim out of time.

The parties sought costs following competing motions in a family law proceeding.

The applicant was substantially successful on her motion for financial disclosure and an advance on equalization, while the respondent was successful on his motion for exclusive possession of the cottage.

The court determined that both parties acted reasonably and awarded costs on a partial indemnity basis, applying maximum allowable hourly rates.

After assessing the respective costs, the court ordered a net set-off amount of $6,753.47 payable by the applicant to the respondent.

This action and amalgamated application arose from a series of informal secured and unsecured loans, mortgages, promissory notes, and related investment dealings between the plaintiff and the responding parties.

The court found that $200,000 in fire insurance proceeds received by the mortgagees as loss payees had to be treated as satisfying the secured mortgage debt to that extent, and could not be redirected to unsecured debts while the mortgagees still asserted the full secured claims.

The court held that the accounting provided by the responding parties was materially inaccurate, declared both power of sale proceedings invalid, and discharged the NUTOK mortgage.

Most unsecured promissory note claims were statute barred, but the KUL mortgage balance, the Xtra Gold debt and share proceeds, and two 2009 promissory notes remained owing.

The applicant sought leave to appeal a family law procedural order that extended the respondent's time to file an answer and financial statement, preserved the status quo, and fixed costs at $200.

The court reviewed the strict test under Rule 62.02(4) of the Rules of Civil Procedure and held there was neither a conflicting decision on principle nor sufficient reason to doubt the correctness of the order coupled with issues of broader importance.

Although the motion judge dealt with the Form 14B motion before expiry of the four-day response period under the Family Law Rules, the court found leave to appeal was still not warranted.

The motion for leave to appeal was dismissed.

In a family property trial following separation, the court determined the valuation date, ownership of two Notre Dame Street properties, treatment of inheritance funds deposited into a joint account, and competing trust claims between spouses.

Applying the Family Law Act and authorities on resulting and constructive trusts, the court held the inheritance remained excluded property because it was traceable into a property owned solely by the respondent, and the applicant failed to establish a resulting or constructive trust apart from a modest monetary credit for deck work.

The court also resolved disputed debts, allocations, and property valuations for net family property purposes.

An equalization payment of $21,421.08 was ordered in favour of the respondent, together with net post-separation adjustments of $8,368.59, with specified trust funds to remain held back pending resolution of child support arrears.

The respondent father brought a motion to change interim custody of the parties' three children from the applicant mother to himself.

Following separation, the mother unilaterally relocated with the children multiple times, changing their schools and living arrangements without the father's consent or a court order.

The court found that the mother's actions disrupted the children's stability and placed her own needs ahead of theirs.

Concluding that there were compelling reasons to change the status quo, the court granted interim custody to the father, ordered access for the mother, and terminated the father's child support obligations.

The court addressed costs relating to a motion for leave in a construction litigation matter involving a contractor, architect, and other construction parties.

On consent of the parties, the court fixed the costs of the motion for leave.

The plaintiff was ordered to pay $6,000 plus HST to one defendant and $6,000 plus HST to the remaining defendants.

The costs were ordered payable in the cause of the appeal.

In bankruptcy proceedings concerning the estate of the bankrupt, the court considered two motions: a trustee motion to approve the sale of the estate’s one‑half interest in a residential property to a secured claimant for $25,000, and a creditor’s motion alleging fraud, seeking annulment of the bankruptcy, sanctions against the trustee, and authorization for criminal prosecution under the Bankruptcy and Insolvency Act.

The court approved the trustee’s proposed sale, finding the offer commercially reasonable given uncertainty in valuation, litigation risk, and potential costs of partition and sale.

The creditor’s extensive allegations of fraud and misconduct were rejected due to lack of cogent evidence and the court declined to authorize prosecution under s. 205(3) of the Act.

The request to annul the bankruptcy under s. 181 was also dismissed due to delay and insufficient grounds.

The court held that the trustee had acted reasonably in administering the estate and dismissed all claims against it.

The bankrupt applied for a discharge from bankruptcy, which was opposed by the Department of National Defence and the bankrupt’s former spouse.

The court considered several grounds under s. 173(1) of the Bankruptcy and Insolvency Act, including that the bankrupt’s assets were worth less than fifty cents on the dollar of his unsecured liabilities, that he contributed to the bankruptcy through unjustifiable extravagance, and that he had previously been convicted of fraud by a Standing Court Martial.

Evidence also established that the bankrupt failed to disclose the disposition of a boat transferred to his children prior to bankruptcy.

Because multiple s. 173 facts were proven, the court held that an absolute discharge could not be granted.

A conditional discharge was ordered requiring payments totaling $8,500 to the trustee.

A government department brought a motion under the Bankruptcy and Insolvency Act to lift the automatic stay of proceedings to pursue recovery of funds obtained through fraud.

The bankrupt had previously pleaded guilty to two fraud counts involving false education allowance claims while serving in the Canadian Armed Forces and had admitted to additional improper claims.

The court considered whether the claim could survive bankruptcy under s. 178(1)(e) of the Act as a debt arising from fraudulent misrepresentation.

Finding that the criminal convictions and admissions constituted sound reasons and that public funds were involved, the court concluded the creditor would be materially prejudiced if the stay remained.

The stay was lifted to permit the creditor to pursue its claim in the ordinary courts.

The moving party sought an order lifting the automatic stay of proceedings under s. 69.3 of the Bankruptcy and Insolvency Act to permit continuation of family law proceedings seeking equalization of net family property.

The dispute concerned whether the stay should prevent the moving party from pursuing remedies against exempt assets such as a pension and RRSPs that do not vest in the bankruptcy trustee.

Applying the principles from Schreyer v. Schreyer, the court held that lifting the stay would not prejudice the bankrupt estate because exempt assets are not available to ordinary creditors.

It was therefore equitable under s. 69.4 of the BIA to permit the family law proceedings to continue to determine equalization rights.

The stay was lifted and the trustee was directed to hold the estate open for a period related to the family law determination.

Creditors who had provided legal services and financing to an insolvent debtor sought declarations of a solicitor’s lien and a salvage lien against funds arising from the sale of a matrimonial home.

The debtor had filed a Notice of Intention and proposal under the Bankruptcy and Insolvency Act, triggering a stay of proceedings.

The court held the stay should not be lifted for the alleged salvage lien because the creditor had failed to properly perfect any assignment of execution debts or security interests.

Although the stay was lifted to consider potential solicitor’s liens, the court declined to grant charging orders, finding that equitable considerations weighed against relief where the lawyers failed to secure available mortgage protection and delayed seeking the lien while other creditors obtained competing claims.

The motion for liens and charging orders was denied.

In insolvency proceedings under the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act, the court addressed multiple matters including disclosure issues, approval of settlements between the applicants and various parties, and procedural directions regarding questions to the receiver.

Several settlements were approved and a sealing order was granted respecting certain settlement terms.

The court granted a limited adjournment to allow a specific party to submit written questions to the receiver concerning the receiver’s reports.

Costs of $4,000 were ordered payable by a party seeking the adjournment, failing which the receiver would not be required to answer the questions.

On a motion for interim spousal support, the court determined the quantum of support and whether the applicant husband should receive credit for paying the respondent wife's car insurance.

The court granted the husband credit for the car insurance payments made in 2013 and 2014.

Regarding spousal support, the court rejected the wife's request for the high end of the Spousal Support Advisory Guidelines range, noting she was not working or going to school despite having a full-time nanny and shared custody.

The court ordered interim spousal support at the mid-range of $4,211 per month.

Following a motion regarding child and spousal support, the applicant mother sought costs on a partial indemnity basis.

The court found the mother was substantially successful on the motion, particularly regarding spousal support, section 7 expenses, and insurance designations.

The court applied the maximum hourly rates set out in OGT Holdings and reduced the claimed fees and disbursements to reflect a fair and reasonable amount that the unsuccessful party would expect to pay.

The respondent father was ordered to pay costs of $14,250 inclusive of disbursements and HST.

The payor spouse brought a motion to change seeking termination of indefinite spousal support following early retirement at age 55 due to alleged depression and reduced income.

The court held that voluntary retirement and a decrease in income do not automatically constitute a material change in circumstances under s. 17 of the Divorce Act.

The evidence did not establish that the retirement was medically necessary or that the payor lacked continued earning capacity.

The court also found deficiencies and inconsistencies in the payor’s financial disclosure.

The motion to terminate support was dismissed and support of $1,000 per month was ordered to continue until the recipient reaches age 64.