Thomas A. Heeney

Following a trial on a motion to change child and spousal support, both parties sought costs.

The court determined that the responding party (the original applicant) was the successful party, having successfully defended against the moving party's claims to drastically reduce his income for support purposes and terminate spousal support.

Comparing the final result to the various offers to settle, the court found the responding party's offers were reasonable while the moving party's offers were entirely unreasonable.

The court awarded the responding party partial indemnity costs fixed at $213,000, inclusive of disbursements and HST, noting the complexity of the case and the moving party's conduct.

The defendant brought a motion to compel the plaintiff husband to answer questions on discovery regarding the injuries sustained by his co-plaintiff wife in a motor vehicle accident.

The plaintiff had refused to answer, arguing they were 'witness questions' outside the scope of issues between him and the defendant.

The court allowed the motion, adopting the expansive approach to discovery that requires a party to answer any proper question relevant to any matter in issue in the action, not just issues between the examining party and the party being examined.

The moving party father brought a motion to change to reduce child and spousal support, claiming a decrease in his farming income.

The responding party mother brought a cross-motion to increase support, citing his increased net worth.

The original 2010 consent order was based on an imputed income of $250,000.

The court found the father's cutting horse operation was a hobby, not a business, and attributed those corporate losses to his income, resulting in an available income of over $428,000.

However, because neither party could prove how the original $250,000 imputed income was calculated, both motions to change based on income fluctuations were dismissed.

Child support was varied to reflect children ceasing to be dependents.

Spousal support was correspondingly increased to offset the loss of child support and converted into a $250,000 lump sum to effect a clean break.

The accused was sentenced on two indictments for multiple Controlled Drugs and Substances Act (CDSA) and Criminal Code offences, including possession for the purpose of trafficking in heroin, cocaine, and methamphetamine, as well as firearms offences, proceeds of crime, and breaches of prohibition orders and recognizance.

The court considered aggravating factors such as a lengthy criminal record, quantities of drugs, and commission of offences while on bail.

Mitigating factors included a guilty plea for the second indictment and an apology.

The court applied the totality principle to arrive at a global sentence of 12 years, reduced by pre-sentence custody and a one-year credit for the harsher conditions of incarceration during the COVID-19 pandemic.

The accused was charged with multiple offences under the Controlled Drugs and Substances Act (CDSA) for possession of various drugs for the purpose of trafficking, and under the Criminal Code for impaired driving by drug and several firearm-related offences.

A voir dire was conducted to address Charter breaches (s. 8, 9, 10(b)) concerning the Standardized Field Sobriety Test (SFST) demand, arrest, drug evaluation, and vehicle inventory search.

The court found no Charter breaches, ruling the evidence admissible.

Subsequently, the accused was convicted on all CDSA counts and most Criminal Code counts, including impaired driving, possession of a restricted firearm, and various careless transportation and prohibited device charges.

Acquittals were entered for two ammunition-related counts due to the ammunition being non-functional.

This case addresses the outstanding issue of retroactive child support for the child Bryce, from the parties' separation in September 2013 to an interim order in April 2017.

The court first formalized consent orders for joint custody, primary residence with the applicant, respondent's access, ongoing child support of $540 per month, proportionate share of s. 7 expenses, and annual income disclosure.

The respondent's argument for shared custody (s. 9 of the Child Support Guidelines) was rejected as the child spent less than 40% of the time with him.

Applying the principles from S. (D.B.) v. G. (S.R.), the court found the respondent engaged in blameworthy conduct by shirking support obligations, the applicant gave effective notice, and the child suffered hardship.

While the applicant initially credited the respondent for car payments, this was reversed when the respondent claimed they were for daycare.

Considering fairness for unquantified payments in kind, the court fixed retroactive arrears at $15,000, ordering a lump sum payment within 60 days.

The appellant appealed an order appointing the Public Guardian and Trustee to represent him after he was found to be a 'special party' under Rule 2(1) of the Family Law Rules.

The Divisional Court determined that the standard of review for a court's finding of incapacity is palpable and overriding error.

The court found that the motion judge made no such error, as there was sufficient evidence of the appellant's bizarre behaviour and delusional thinking to conclude he appeared mentally incapable.

The appeal was dismissed.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy based on an N11 agreement.

The tenants argued the written agreement was subject to an oral side agreement allowing them to stay until the property was sold.

The Divisional Court allowed the appeal, finding the Board erred in law by concluding the N11 was binding without making factual findings about the side agreement or providing adequate reasons.

The matter was remitted to a different Member of the Board for a new hearing.

The appellant, a former tenant, appealed decisions of the Landlord and Tenant Board dismissing her application to reopen a mediated settlement with her former landlord.

She argued the Board Member was biased and that she was denied procedural fairness when the Board refused an adjournment and excluded evidence of coercion.

The Divisional Court dismissed the appeal, finding no reasonable apprehension of bias, no error in denying the adjournment, and that the Board reasonably excluded evidence of coercion that did not relate to the mediation itself.

The appellant appealed a summary judgment order finding him jointly and severally liable for a debt.

He argued the motion judge ignored evidence that the respondent owed him money and that a settlement acknowledgement was signed under duress.

The Divisional Court dismissed the appeal, finding the motion judge properly considered the evidence, including a written acknowledgement of final settlement, and that the appellant had not requested to provide oral evidence on the duress claim at the motion.

The tenants appealed a Landlord and Tenant Board order terminating their tenancy based on an N11 agreement.

The tenants argued the written agreement was subject to an oral side agreement allowing them to stay until the house was sold.

The Board upheld the eviction without making factual findings about the side agreement or explaining its legal consequences.

The Divisional Court allowed the appeal, finding the Board's failure to provide reasons or consider the real substance of the transaction under section 202(1) of the Residential Tenancies Act rendered the decision unreasonable and incapable of meaningful review.

The matter was remitted to a different Board member.

The appellant, a former tenant, appealed a decision of the Landlord and Tenant Board dismissing her application to reopen a mediated settlement with her former landlord.

She argued the Board Member was biased, denied her an adjournment, and improperly excluded evidence of coercion.

The Superior Court of Justice dismissed the appeal, finding no reasonable apprehension of bias, no procedural unfairness in denying the adjournment, and that the Board reasonably excluded evidence of coercion that did not relate to the mediation itself.

The court considered costs following a jury trial where the plaintiff was awarded damages and prejudgment interest.

The defendants argued they were the successful parties and sought costs under Rule 49.10, claiming their offer to settle (inclusive of an OHIP subrogated claim) was more favourable than the judgment.

The court found the defendants' offer uncertain regarding the OHIP claim, thus not triggering Rule 49.10.

While the plaintiff was the successful party in proving negligence and damages, there was divided success as the defendants prevailed on a major causation issue.

Considering the plaintiff's unreasonable settlement expectations and the divided success, the court ordered each party to bear their own costs.

The appellant appealed an order of the Licence Appeal Tribunal directing the revocation of its liquor licence.

The revocation was based on findings that the appellant permitted a patron to remove alcohol, permitted unlawful gambling, and that the manager obstructed and assaulted an inspector.

The Divisional Court dismissed the appeal, finding no error of law in the Tribunal's assessment of the evidence or its application of the test under s. 6(2)(d) of the Liquor Licence Act.

The appellant, a 50% shareholder in a corporation, brought an oppression application against his brother, the other 50% shareholder, regarding the sale and lease-back of the corporation's real estate.

The appellant appealed two motion decisions: one dismissing his claim for a certificate of pending litigation (CPL) and another denying an injunction to halt the sale.

The Divisional Court dismissed both appeals, finding that the shareholder dispute did not give rise to an interest in land to support a CPL, and that the motions judge made no palpable and overriding error in applying the RJR-MacDonald test to deny the injunction.

The court noted the purchaser could rely on the indoor management rule and the appellant's claim was readily quantifiable in damages.

The plaintiff brought a motion to set aside an order of a single judge of the Divisional Court, who had refused to quash the defendant's appeal of an order dismissing a motion to discharge construction liens.

The panel held that the original order dismissing the motion to discharge the liens was interlocutory, not final, because it did not finally determine the validity of the liens, which remained an issue for trial.

The motion was granted, the single judge's order was set aside, and the appeal was quashed.

The applicant insurer sought judicial review of a decision by a delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's ruling that the respondent insured's claim for income replacement benefits was not statute-barred.

The insurer conceded that its notice of denial did not meet the strict requirements set out in Smith v. Co-operators General Insurance Company, but argued that the delegate should have applied a contextual approach rather than a bright-line test.

The Divisional Court dismissed the application, finding that the delegate reasonably applied the bright-line test from Smith.

The court noted that the Court of Appeal in Golic confirmed that the analysis must focus on the notice itself, precluding consideration of outside circumstances to relieve an insurer of its obligation to provide proper notice.

The appellant appealed his conviction for operating a motor vehicle while impaired by alcohol, arguing that his s. 8 Charter rights were violated by an Approved Screening Device (ASD) demand.

The appellant contended that the investigating officer lacked reasonable suspicion because he also considered a medical condition as a possibility.

The court dismissed the appeal, affirming that "reasonable grounds to suspect" involves possibilities, not probabilities, and the existence of an alternate possibility does not negate a reasonable suspicion of alcohol.

The trial judge's reasons were found sufficient and correct, and claims of misapprehension of evidence were rejected.

This case involved a contested passing of accounts for an estate and under a Continuing Power of Attorney for Property.

The applicant, a sibling of the respondent, challenged several expenditures made by the respondent as executrix and attorney for their deceased father.

The court found that the respondent failed to rebut the presumption of undue influence regarding a $57,000 gift from the father, disallowed a $5,028.50 payment for a furnace and air conditioner, a $115 payment for a marriage license, and $3,362.64 in unexplained US dollar cash withdrawals.

The court also adjusted caregiving payments to another sibling, allowing $11,200 but requiring repayment of $6,400.

The respondent was ordered to repay a total of $71,906.14 to the estate.

This case addresses a property dispute between common-law spouses regarding the division of proceeds from the sale of their jointly-owned home.

The respondent sought reimbursement for his entire down payment, claiming unjust enrichment and constructive trust.

The court found a joint family venture and established unjust enrichment.

It determined that the increase in property value due to joint efforts should be split equally, while the initial contributions to the purchase price should be divided proportionately.

The court also found that an alleged verbal agreement for down payment reimbursement was unenforceable under the Family Law Act.