Stanley J. Kershman

In a family law proceeding concerning spousal support and arrears, the responding party disputed portions of a draft order prepared following earlier reasons for decision.

The court directed that the responding party bring a motion under Rule 25(19) of the Family Law Rules to address the disputed provisions.

Procedural timelines were set for service of motion materials, responses, replies, cross-examinations, and undertakings.

Pending determination of the motion, the court ordered interim payment of spousal support arrears totaling $24,000 plus an additional $5,000 payment, with compliance to be considered in the determination of costs.

Police defendants brought a motion for summary judgment dismissing a civil action alleging wrongful apprehension, unlawful detention, negligence, and Charter breaches arising from a psychiatric assessment and involuntary detention under the Mental Health Act.

The plaintiff alleged a conspiracy and misconduct by police and medical personnel but provided only a self‑serving affidavit and no expert evidence regarding the applicable standard of care.

The court held that the police had reasonable grounds under s. 17 of the Mental Health Act to take the plaintiff for psychiatric assessment and that the subsequent 72‑hour detention was a decision of hospital staff.

The court found no evidence supporting the alleged conspiracy or Charter violations and concluded there was no genuine issue requiring a trial.

Summary judgment was granted and the action against the police defendants was dismissed.

On an interim family law motion, the responding spouse sought partition and sale of a non‑matrimonial rental property, interim disbursements to retain an income valuation expert, imputation of income to the other spouse, and interim child and spousal support.

The court declined to order partition and sale on an interim motion, finding the issue better determined at trial given disputed equity and mortgage claims involving family members.

The court exercised its discretion under the Family Law Rules to order partial interim disbursements to fund an income analysis.

Applying s. 19(1) of the Child Support Guidelines, the court imputed limited income for certain employment benefits but rejected broader lifestyle‑based imputations tied to discretionary gifts from family or a family‑owned business.

Interim child support was ordered based on the adjusted income, with retroactive support, while determination of interim spousal support was deferred pending updated calculations.

The plaintiff railway company sought an ex-parte interim injunction to clear a blockade by unknown protesters on its Toronto to Montreal Main Line.

The blockade halted significant freight and passenger traffic, causing severe economic and operational disruptions.

Applying the R.J.R. MacDonald test, the court found a serious question to be tried regarding trespass, irreparable harm to the plaintiff and the public, and that the balance of convenience overwhelmingly favoured the plaintiff.

The court granted the interim injunction for ten days.

In an insolvency-related proceeding brought under the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act, the court addressed procedural issues during a case conference.

The conference was adjourned due to the absence of a court reporter and the fact that some parties had become self-represented.

The court directed the receiver to prepare a brief report updating the status of the matter.

The court further ordered that the rescheduled case conference occur in person only and that notice of the conference be circulated to all parties.

Following a family law trial addressing property division and child support, the court made findings regarding responsibility for certain debts, reimbursements, and expenses related to the matrimonial home.

The court confirmed the validity of an agreement entitling the respondent to reimbursement for renovations and allocated responsibility for specific debts between the parties.

The court also imputed additional income to the father based on a personal benefit received through his employment and recalculated historical and ongoing child support under the Ontario Child Support Guidelines.

Ongoing support for one child was fixed at $308 per month, with disclosure obligations and equal sharing of section 7 expenses ordered.

An insurer appealed a loss transfer arbitration decision that apportioned fault for a snowmobile–automobile collision under the Insurance Act regime.

The arbitrator determined that the Fault Determination Rules did not apply to the circumstances and instead assessed liability using ordinary negligence principles, finding the snowmobile operator primarily responsible and the automobile driver partially responsible.

On appeal, the insurer argued the arbitrator erred in law by concluding the collision fell outside the regulatory fault rules.

The court held that the arbitrator’s determination involved questions of mixed fact and law and was therefore outside the limited right of appeal restricted to questions of law.

Applying a deferential standard of reasonableness, the court found no reviewable error and upheld the arbitration award.

The defendants brought a motion seeking an order requiring the plaintiff to attend a further independent medical examination by a physiatrist and permitting the resulting expert report to be served after the pre-trial conference.

The plaintiff opposed the request on the basis that it constituted a second medical examination and argued the defendants had not established its necessity.

The court held that the plaintiff’s physiatrist report introduced issues concerning mood, anxiety, and cognitive symptoms that were outside the expertise of the defendants’ orthopaedic surgeon who had previously examined the plaintiff.

Given the differing medical specialties and the need to respond to new issues raised in the plaintiff’s expert evidence, the court exercised its discretion under the Rules of Civil Procedure to order the additional examination.

The plaintiff was ordered to attend the defendants’ physiatrist examination and the expert report was permitted to be served after the pre-trial.

Multiple competing motions in a family law proceeding concerning custody, access, child support, security for costs, affidavit evidence, and disclosure.

Each parent sought interim sole custody of the child, alleging conflict and concerns about the other parent’s conduct.

The court held that neither party demonstrated a material change in circumstances sufficient to disturb the existing 50/50 custody arrangement, particularly with the Office of the Children’s Lawyer newly appointed.

The court ordered minor modifications to the exchange schedule to reduce parental conflict, ordered set‑off child support based on the parties’ incomes, and struck portions of the mother’s affidavit as irrelevant, hearsay, or argumentative.

Requests for security for costs, Children’s Aid Society disclosure, and police enforcement were dismissed.

A third party moved for summary judgment dismissing a contribution and indemnity claim on the basis that it was statute‑barred under the Limitations Act, 2002.

The defendant argued the claim was only discoverable when an invoice revealed that it had supplied the oil tank involved in the loss.

The court held that s. 18 of the Limitations Act deems the claim for contribution and indemnity to arise when the defendant was served with the statement of claim, triggering a two‑year limitation period.

The defendant knew or ought to have known the identity of its tank supplier at that time and failed to exercise due diligence.

The third party claim was therefore commenced outside the limitation period and was dismissed on summary judgment.

A bankrupt applied for a discharge from bankruptcy arising from substantial personal income tax debts exceeding $799,000, representing the entirety of unsecured claims.

The application was opposed by the Canada Revenue Agency, the trustee in bankruptcy, and the Office of the Superintendent of Bankruptcy on grounds including repeated insolvencies, failure to pay surplus income, non‑compliance with bankruptcy obligations, and gambling-related conduct.

The court applied the factors in s. 172.1 of the Bankruptcy and Insolvency Act governing tax‑driven bankruptcies and concluded that the debtor was not an “honest but unfortunate debtor.” Considering the debtor’s substantial post‑bankruptcy income and failure to pay taxes or surplus income, the court imposed a conditional discharge requiring payment of over $108,000 in surplus income and strict behavioural conditions related to gambling and tax compliance.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding the legal limit contrary to s. 253(1)(b) of the Criminal Code.

The appeal challenged the trial judge’s refusal to exclude breathalyzer evidence, arguing that the roadside demand for a breath sample was invalid because the approved screening device test was administered at the police detachment rather than at the roadside, allegedly engaging the right to counsel under s. 10(b) of the Charter.

The court applied the standard of review for summary conviction appeals, finding no palpable and overriding error in the trial judge’s factual findings and no error of law.

The court concluded that the “forthwith” requirement for the breath demand was satisfied and that the brief delay did not create a right to consult counsel before the screening test.

The conviction was upheld.

The father brought a motion seeking an order that the parties’ child attend a homogeneous French-language Catholic elementary school, while the mother sought enrollment in an English-language public school with a French immersion program.

The court applied the best interests test under s. 24(2) of the Children’s Law Reform Act.

Although the child was bilingual and the father emphasized cultural and linguistic benefits of French-language schooling, the court placed significant weight on the mother’s inability to communicate in French, assist with homework, or participate meaningfully in school activities.

The court also considered transportation difficulties and the lack of religious practice in either household despite the proposed Catholic school.

The court concluded that enrollment in a public school French immersion program better served the child’s best interests.

The appellant appealed a conviction for failing to stop a motor vehicle for police contrary to s. 249.1(1) of the Criminal Code, arguing that the trial judge misapprehended the evidence and failed to properly consider expert testimony concerning line of sight during a police pursuit.

The appellant contended that roadway configuration and intermittent loss of visual contact meant he could not have known police were pursuing him.

The court held that the trial judge was entitled to give little or no weight to the defence expert’s opinion regarding what the parties could have seen during the pursuit and that the officer’s evidence supported the findings regarding the appellant’s knowledge and conduct.

Applying the standard of palpable and overriding error, the court found no reviewable error in the trial judge’s reasoning.

The evidence reasonably supported the conclusion that the appellant knowingly failed to stop for police.

The applicant sought retroactive child support and a determination of the payor’s income for child support purposes after the payor began working in Dubai and claimed non-resident tax status in Canada.

The central issue was whether child support should be calculated using the payor’s pre-tax income, given that he paid little or no tax while residing abroad.

The court held that the payor’s minimal ties to Canada and non-payment of income tax justified calculating support based on pre-tax income under the Federal Child Support Guidelines.

Applying the principles in D.B.S. v. S.R.G., the court ordered retroactive child support but limited it to January 1, 2010 rather than the earlier date sought.

Arrears were ordered payable by monthly installments.

The plaintiff bank brought a motion for summary judgment to recover a credit card debt of $46,033.24 together with contractual interest.

The defendants had filed a statement of defence asserting lack of knowledge of the claim and referring to personal financial hardship but filed no responding affidavit materials and did not attend the motion.

Applying the summary judgment framework and the “full appreciation test” articulated in Combined Air, the court held that the record disclosed no genuine issue requiring a trial.

The defence consisted only of bald assertions unsupported by evidence.

Summary judgment was granted in favour of the bank together with contractual interest and costs.

The defendant brought a motion for summary judgment to dismiss the plaintiff's action, which sought to rescind a 2001 settlement agreement regarding a disability insurance policy.

The plaintiff had previously settled the claim, surrendered the policy, and signed a full and final release while represented by counsel.

The court found no evidence of duress, unilateral mistake, or inadequate legal representation to justify setting aside the settlement.

Furthermore, the court held that the plaintiff's action was statute-barred under the Limitations Act.

The motion for summary judgment was granted and the action was dismissed.

The defendant brought a motion to strike the plaintiff’s statement of claim without leave to amend under Rules 21.01 and 25.11 of the Rules of Civil Procedure.

The claim alleged conspiracy, fraudulent misrepresentation, and negligence arising from the defendant’s conduct and counsel’s conduct in a separate ongoing action between the same parties.

The court held that the pleading disclosed no reasonable cause of action because a separate lawsuit cannot be used to challenge litigation conduct occurring in another proceeding.

The court further found that another proceeding between the same parties concerning the same subject matter was already pending, rendering the new action improper and abusive.

The statement of claim was struck without leave to amend, the action was dismissed, and the plaintiff was prohibited from commencing further proceedings against the defendant without leave of the court.

The plaintiffs sought declarations that a 40‑foot road allowance adjacent to their property constituted a public highway and alternatively claimed ownership of portions of neighbouring land through adverse possession or similar equitable remedies.

The Township and the neighbouring landowner brought motions for summary judgment, while the plaintiffs brought a cross‑motion to amend their statement of claim.

The court granted leave to amend under Rule 26.01 of the Rules of Civil Procedure, finding the proposed amendments legally tenable and not causing irremediable prejudice.

Summary judgment was granted to the Township because the evidence established the road allowance was a private roadway never dedicated to or accepted by the municipality as a public highway.

However, summary judgment was refused with respect to the neighbouring landowner because significant factual disputes, including inconsistent permission agreements and issues surrounding encroachments and use rights, required a full trial.

A debtor company operating a glazing and glass manufacturing business brought a motion under s. 50.6 of the Bankruptcy and Insolvency Act seeking approval for debtor‑in‑possession (DIP) financing and an interim financing charge during notice of intention proceedings.

The secured creditor opposed the proposed financing, arguing that the company was not viable and that the charge would prejudice its security position.

The court considered the statutory factors under s. 50.6, including the likelihood of a viable proposal, the trustee’s report, the nature of the debtor’s assets, and potential prejudice to creditors.

Finding that the business would cease operations without interim funding and that the prejudice to the secured creditor was minimal relative to the benefits of continued operations, the court approved a first tranche of DIP financing and granted a corresponding interim financing charge.