Sydney Elise MacMillan Young

In a criminal case involving sexual assault charges against a physiotherapist, the defence brought a motion for directions regarding Crown disclosure of private records.

The central issue was whether documents disclosed by the Crown required an admissibility hearing under s. 278.92 of the Criminal Code, or if Crown disclosure implied a full waiver of privacy interests by the complainant.

The court, Molloy J., affirmed the binding nature of prior Superior Court decisions (R. v. J.K., R. v. Martiuk) which established a presumption that Crown disclosure constitutes a full waiver, negating the need for a s. 278.92 hearing.

However, the judge found that in this specific case, the Crown had failed to obtain proper, informed waivers from the complainants.

This lack of valid waivers constituted "evidence to the contrary" rebutting the presumption.

Consequently, the court ruled that admissibility hearings under s. 278.92 would indeed be required for the disclosed records.

The Applicant Father and Respondent Mother brought competing motions for interim custody and access.

The Father sought sole custody and supervised access for the Mother at a supervised access facility, along with a restraining order and exclusive possession of the matrimonial home.

The Mother sought interim joint custody, exclusive possession (which became moot due to a fire), and increased supervised access transitioning to equal parenting time.

The court also addressed preliminary issues regarding the admissibility of MVA medical reports, surreptitiously recorded video/audio, and Children's Aid Society (CAS) records.

The court granted interim joint custody, finding no evidence that the parties could not agree on child-related decisions prior to separation, and noting the Father's unilateral decisions regarding residence and daycare.

The Mother was granted increased supervised access (Tuesdays, Thursdays, Saturdays, 10 am to 7 pm), supervised by Millie Fogliano or Jane Morrow, with conditions regarding alcohol/marijuana consumption and driving.

A mutual restraining order was issued, and a non-removal order.

The court emphasized the need for a review in 6 months due to ongoing conflict and the Mother's need to demonstrate stability.

The applicant brought a motion seeking reimbursement for s. 7 expenses, further advances, and orders regarding a child's treatment and custody.

The respondent had a history of non-compliance with s. 7 expense orders, including failing to pay tuition, which caused a crisis for one child.

The court ordered the respondent to immediately reimburse the applicant for a specific university tuition payment.

The remaining s. 7 claims and the motions concerning the child's custody and treatment were adjourned, with the court noting the respondent's lack of collaboration and late disclosure as contributing factors to the ongoing issues and delays.

Directions for cost submissions were also provided, with the court highlighting the respondent's conduct.

The moving party husband sought leave to appeal an order restraining him from depleting assets, requiring a certificate of pending litigation, and ordering him to post a $4 million letter of credit under sections 12 and 40 of the Family Law Act.

He also sought a stay of the order.

The Divisional Court granted leave to appeal solely on the issue of whether the court has jurisdiction under the Family Law Act to order the posting of a bond or letter of credit, finding good reason to doubt the correctness of that specific relief.

The court also granted a stay of the requirement to post the letter of credit pending the appeal.

The applicant, Zochem Inc., applied under Part IV of the CCAA for recognition of First Day Orders made by the U.S. Bankruptcy Court in Chapter 11 proceedings.

The court found that the U.S. proceeding was a foreign main proceeding, as the debtors were managed as an integrated group from the United States, despite Zochem's operations being in Ontario.

The court also recognized the interim financing order and granted a super-priority charge for the DIP lender, noting that the interim advance was necessary to meet payroll and that the directors must act in the best interests of the Canadian corporation.

In CCAA proceedings involving an educational publisher, the secured lender sought full indemnity costs following a successful motion resulting in the replacement of the monitor and related relief.

The court considered a contractual costs provision in the second lien credit agreement permitting recovery of enforcement costs, subject to the court’s supervisory discretion to ensure fairness and reasonableness.

The court confirmed that contractual provisions for full indemnity costs are generally enforceable where reasonable and declined to defer determination of costs.

Canadian counsel fees were found fair and reasonable, while the claim for U.S. counsel fees was reduced due to insufficient justification.

Costs of $194,091.59 were ordered payable to the secured lender.

In a comeback motion under the CCAA, the second lien agent challenged the appointment of the proposed monitor on the basis that its affiliate had acted for the debtor for more than two years, directed the pre-filing SISP, and participated in negotiations concerning the restructuring that would eliminate second lien recoveries.

The court held that a monitor must be independent and be seen to be independent, and found the proposed monitor could not impartially advise the court on the central issue of the reliability of the pre-filing sales process.

The court replaced the proposed monitor with another insolvency firm.

The court also ordered that, pending further order, the debtor could not pay interest or other expenses to the first lien lenders unless the same payments owing to the second lien lenders were made.