Thomas A. Heeney

The plaintiffs moved to strike jury notices filed by the defendants after the plaintiffs amended their Statement of Claim to double the damages sought from $750,000 to $1.5 million, prompted by new expert reports on future care costs.

The court applied the principles from Dow v. Ottawa Hospital-Civic Campus to determine if the amendment reopened pleadings for all purposes, including the timely filing of jury notices.

The court found that the amendments were necessary, implicitly contained new allegations regarding the plaintiff's limitations and future care needs, significantly changed the nature of the action, and necessitated further discoveries.

As the defendants filed the jury notices promptly and were not the party seeking the amendment, the court concluded that pleadings were reopened for all purposes, granting the defendants a statutory right to a jury trial.

The plaintiffs' motion to strike the jury notices was dismissed, as were their alternative requests for costs and further discoveries of the defendants.

The Superior Court of Justice heard appeals from a judgment ordering Crown wardship for the youngest child, T.L., with no parental access.

The father's appeal was dismissed due to his abysmal parenting record and lack of merit in his claims of bias or incompetent counsel.

The mother's appeal was allowed.

The court found the trial judge erred in law by failing to conduct a thorough "best interests of the child" analysis under s. 37(3) of the Child and Family Services Act, focusing too narrowly on the risk of inappropriate partners without balancing other factors like the child's bond with family.

Fresh evidence, demonstrating the mother's compliance with supervision conditions and positive parenting, further supported returning the child.

The Crown wardship order for T.L. was set aside, and the child was placed with the mother under a six-month supervision order with specific conditions.

The defendants brought a motion to dismiss the plaintiff's action for delay, which arose from a 2001 commercial transaction where the plaintiff sued the defendants for alleged negligence in securing deferred payments.

The court analyzed the periods of delay, finding that much of the delay was attributable to both parties or solely to the defendants.

The sole period of delay attributable to the plaintiff (16 months) was not deemed inordinate or inexcusable.

The defendants failed to demonstrate actual prejudice or rebut the presumption of prejudice, as any memory deterioration occurred before the relevant delay period, and the defendants themselves had not taken steps to preserve evidence.

The motion was dismissed, and costs were awarded to the plaintiff.

The Applicant brought a motion for a finding of contempt against the Respondent for unilaterally denying him access to their son.

The Respondent had denied access based on information from the Applicant's estranged ex-girlfriend concerning an alleged altercation and steroid use.

The court found the Respondent in contempt, ruling that the alleged incident did not constitute a "serious risk of harm" to the child, which is the only legal justification for breaching a court order.

The Applicant's original unsupervised access was reinstated, and makeup access was granted.

The Respondent's cross-motion for an interim variation of access and a s. 30 assessment was denied leave and adjourned to a Case Conference, as no urgency or clear case for relief was established.

The plaintiffs changed counsel from Grillo Barristers to Karl Arvai Professional Corporation in a personal injury action.

A dispute arose over the transfer of the file, with Grillo demanding payment of approximately $11,000 in disbursements prior to releasing the file, relying on their contingency fee retainer agreement.

Arvai refused and initiated multiple proceedings, including motions to transfer the file and set aside a certificate of assessment.

The parties ultimately settled the substantive issues, agreeing to transfer the file upon payment of $4,000 in disbursements, but could not agree on costs.

The court declined to award costs to either party, noting the shockingly disproportionate waste of legal resources and emphasizing that parties should not be discouraged from settling by the threat of a substantial costs award.

Following a successful appeal that reinstated spousal support payments, the appellant sought costs of the appeal and the original motion on a substantial indemnity basis.

The court found no bad faith conduct by the respondent but awarded substantial indemnity costs from the date of the appellant's more favourable offer to settle.

Noting that the claimed costs of over $116,000 were disproportionate and lacked detailed dockets, the court reduced the fees to account for duplication of effort.

Costs were fixed at $85,727.14 inclusive of disbursements and HST.

The appellant appealed the dismissal of her motion to find the respondent in contempt of court for failing to direct his pension to the Family Responsibility Office for child support arrears.

The motion judge found it impossible to determine if the respondent had failed to direct the payment, and concluded the order was a payment order not enforceable by contempt.

The Superior Court dismissed the appeal, finding that the appellant failed to prove beyond a reasonable doubt that the respondent wilfully breached the clear terms of the order, despite his reprehensible conduct in cashing out the pension.

The appellant appealed convictions for two counts of sexual assault contrary to s. 271 of the Criminal Code.

He argued that the trial judge applied different standards of scrutiny to the evidence of the complainant and the accused, and that the judge misapprehended the evidence.

The appeal court rejected the argument regarding differential scrutiny but found that the trial judge made a material misapprehension of evidence by concluding that the complainant testified she did not consent, when no such testimony was given.

Because lack of consent is an essential element of sexual assault and the trial judge relied on the mistaken belief that direct testimony established that element, the error was both palpable and overriding.

The convictions were set aside and a new trial ordered.

In a family law proceeding, the parties brought competing motions seeking various interim relief including disclosure, equalization advances, support adjustments, reimbursement claims, and other orders.

The court emphasized that interim orders are intended to provide temporary structure pending trial and discouraged repeated motions attempting to re‑litigate previously determined issues.

Several claims were dismissed or deferred to trial due to insufficient evidence or because they were more appropriately resolved on a full evidentiary record.

The court increased interim spousal support after the cessation of child support and imputed limited farming income to the husband.

A restraining order was issued preventing the wife from accessing the husband’s financial records or business premises through self‑help methods.

The applicant sought civil forfeiture under the Civil Remedies Act, 2001 of cash seized during the execution of a search warrant at a rural property associated with extensive drug activity.

Police discovered large quantities of controlled substances, trafficking paraphernalia, weapons, and significant cash bundled in a manner consistent with drug trafficking.

A claimant asserted ownership of the money, alleging it derived from a dog breeding and farm animal business and the sale of a vehicle.

The court rejected the claimant’s evidence as unsupported and internally inconsistent, noting the absence of business records and the implausibility of the explanation.

On a balance of probabilities, the court found the funds were proceeds or instruments of unlawful activity related to drug trafficking and ordered forfeiture.

The appellant appealed a sentence imposed following conviction for assault causing bodily harm, arguing that the sentencing judge erred by refusing to grant a conditional discharge and instead imposing a 30‑day conditional sentence.

The appellant contended that the sentencing judge used conclusory reasoning and failed to properly weigh mitigating factors including exemplary character, loss of employment, and significant collateral consequences.

The court held that the sentencing judge properly considered all mitigating and aggravating factors and appropriately emphasized denunciation and deterrence given the abuse of authority and breach of trust by a custodial officer against a prisoner.

Applying the deferential standard for appellate review of sentence, the court found no error in principle and no basis to conclude the sentence was demonstrably unfit.

The appellant appealed an order reducing and ultimately terminating her spousal support.

The respondent, a former police officer, had voluntarily retired at age 51 and successfully argued at first instance that this constituted a material change in circumstances.

The Divisional Court allowed the appeal, finding that the motion judge made a palpable and overriding error in concluding the parties had agreed to an early retirement date during their initial settlement.

The Court held that voluntary early retirement by a payor who retains the capacity to earn income does not constitute a material change in circumstances.

The Court also found errors in the motion judge's application of the rule against double-dipping and the imposition of a termination date on support for a disabled spouse.

The original spousal support order was reinstated.

The accused pleaded guilty to dangerous driving causing death and to refusing to provide a breath sample after a motor vehicle collision that killed a child passenger.

The collision occurred when the accused drove through a stop sign at excessive speed and struck another vehicle lawfully proceeding through the intersection.

Although alcohol had been consumed prior to the collision, the impaired driving causing death charge was withdrawn as part of a joint submission.

The court reviewed sentencing ranges for dangerous driving causing death and emphasized the high threshold for rejecting a joint submission.

Finding the proposed disposition within the reasonable range and not contrary to the public interest, the court imposed a penitentiary sentence totaling 27 months and a four‑year driving prohibition.

Purchasers of a hotel condominium unit sought return of a $228,250 deposit after the transaction failed to close by the contractual deadline.

The developer argued the purchasers breached the agreement by failing to close and forfeited the deposit.

The court found the developer’s solicitor had effectively extended the closing date through assurances that the parties need not close while concerns about increased common expenses were addressed.

No revised disclosure statement or statutory notice under the Condominium Act, 1998 was delivered despite a significant increase in common expenses.

Because the transaction failed to close through no fault of the purchasers, the agreement was terminated and the purchasers were entitled to the return of their deposits with prejudgment interest.

The defendant brought a motion seeking a stay of a scheduled Writ of Possession following a mortgage enforcement judgment.

The prior summary judgment had fixed the amount owing on the second mortgage at $64,200, payable within 60 days, failing which the plaintiff could take possession.

The defendant later obtained financing sufficient to pay the judgment amount, but the plaintiff demanded additional interest and collection costs previously waived and not awarded by the court.

The court held that the amount owing had already been judicially determined and that demanding additional sums created an injustice.

Enforcement of the Writ of Possession was stayed pending payment of the judgment amount.

The plaintiff sought $150,000 in damages against a municipality for trespass and conversion after the municipality entered his property and removed debris pursuant to a clean yard by-law and an order to comply.

The plaintiff alleged that certain items removed fell outside the order and that the municipality had no right to dispose of the materials without accounting for their value.

The court held that the municipality acted within its statutory authority under the Municipal Act and its by-law, and that the power to dispose of debris was implicit or alternatively permissible under principles of bailment provided the municipality acted reasonably.

The court found the municipality acted reasonably throughout the enforcement process, including granting multiple compliance extensions and reasonably disposing of junk and scrap materials.

The plaintiff’s claim was dismissed.

The applicant mother brought a motion for interim sole custody of the parties' two children and supervised access for the respondent father.

The father had previously been granted primary residence of the older child on a without prejudice basis, but circumstances had materially changed, including the father facing new criminal charges and the release of a highly concerning Report of the Children's Lawyer.

The court found it was in the best interests of the children to reside with the mother in her sole custody, and ordered supervised access for the father pending his completion of counselling and a drug test.

The appellant appealed a trial decision that dismissed his claim for spousal support and awarded no costs.

The parties had a significant income disparity, with the respondent earning substantially more.

The Divisional Court found that the trial judge erred by failing to conduct an analysis of the means and needs of the parties and the impact of child support on the appellant's ability to support himself.

The court allowed the appeal, awarded spousal support of $800 per month based on the Spousal Support Advisory Guidelines, and awarded costs of the trial and appeal to the appellant.

The appellant appealed a trial decision regarding custody, access, and section 7 expenses.

He argued the trial judge was biased, improperly curtailed his questioning, and erred in granting the respondent final decision-making power and ordering him to pay 100% of extraordinary expenses.

The Divisional Court dismissed the appeal, finding the trial judge's interventions appropriate, the custody arrangement sensible to minimize conflict, and the section 7 order a reasonable exercise of discretion given the significant income disparity between the parties.

This was a post-trial family costs decision arising from a short marriage involving child support, equalization, and spousal support claims.

The applicant succeeded on all substantive issues and was presumptively entitled to costs, but the court held that the legal fees claimed were grossly disproportionate to the amounts in dispute and the parties' modest means.

Applying the costs factors and emphasizing reasonableness, affordability, and proportionality, the court fixed all-inclusive costs at $25,000, subject to a $2,000 credit for a prior payment by the respondent.

The court declined to direct immediate payment from trust funds pending further submissions concerning former counsel's claimed solicitor's lien.