Thomas J. Carey

This decision addresses the costs of an estate dispute where the applicants, two sisters, unsuccessfully challenged their father's final will, alleging undue influence by their brother.

The court reiterated the "loser pays" principle in estate litigation, finding no public policy grounds to deviate or have the estate bear the costs.

The court was critical of the applicants' persistent and personal attacks, noting their conduct prolonged an unnecessary and bitter trial.

Costs were awarded to the respondent on a partial indemnity basis.

The plaintiff brought a motion to amend its statement of claim to add a related numbered company as a defendant.

The defendants opposed, arguing prejudice and noting the plaintiff failed to request leave under Rule 48.04.

The court granted the motion, finding the failure to request leave was a technical defect that could be remedied.

The court noted the defendants and their counsel appeared to be engaged in a game of 'catch us if you can' regarding the complex ownership of the property where the materials were supplied, and found no prejudice in allowing the amendment.

The plaintiffs in two class action proceedings sought leave to appeal the dismissal of their motion for contempt against the defendants.

The contempt motion alleged that the City of Windsor breached an order limiting communication with class members during an opt-out period.

The court denied leave to appeal, finding that the original judge correctly applied the test for contempt, which requires proof beyond a reasonable doubt, a clear and unequivocal order, and deliberate and willful disobedience.

The court found no error in the original judge's conclusion that the order was ambiguous and that a wilful breach was not proven.

Furthermore, the court determined that the plaintiffs failed to identify any conflicting decisions or raise matters of such importance to warrant leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The applicants challenged the Last Will and Testament of the deceased, alleging lack of testamentary capacity and undue influence by the respondent.

The court found that the applicants failed to discharge their onus of proving undue influence and that the deceased possessed the requisite capacity to make his will.

The court upheld the August 23, 2013 Will as valid, reflecting the testator's intentions to keep the farm lands in the family and ensure fairness to all children.

The respondents brought a motion to vary a consent order, which the court determined was an interlocutory injunction, to remove restraints on their ability to deal with the assets of 1889072 Ontario Limited.

The applicant sought the continuation of this injunction.

The court found that the applicant failed to satisfy the prerequisites for an interlocutory injunction as established in RJR-MacDonald Inc. v. Canada (Attorney General), specifically regarding a strong prima facie case, irreparable harm, and an undertaking as to damages.

Consequently, the respondents' motion was granted, and the interlocutory injunction was not continued.

The parties, former friends, entered a business investment involving two properties.

The business relationship deteriorated, leading Chute to bring an application for partition and sale.

Pryor subsequently brought a motion seeking removal of Chute's personal property, authorization to operate the music hall, and a final disposition.

The court found Chute consistently interfered with the business operations and violated previous court orders.

An interim order was issued releasing Pryor from undertakings, making both parties jointly responsible for property expenses managed by counsel, and expediting an early trial date to resolve the dispute and income loss issues.

The applicant sought an order in the nature of certiorari to review and set aside his committal to trial on various firearm charges.

The central issue was whether there was any evidence from which a reasonably instructed jury could infer the applicant's knowledge of a firearm, an essential element of possession.

The court reviewed the preliminary hearing judge's reliance on circumstantial evidence, including the location of a hidden firearm, a single 9mm round in a jar, and the applicant's control over the apartment.

The court found that the inferences drawn by the preliminary hearing judge regarding the applicant's knowledge of the firearm and the link between the single round and the hidden firearm were speculative and not supported by the evidence, which was equally consistent with the co-accused's possession.

Consequently, the application for certiorari was granted, and the committal to trial was quashed.

The plaintiff brought an action for damages following an unprovoked assault by the defendant in a bar, which resulted in a severe facial laceration and PTSD.

The defendant was noted in default.

The court assessed damages, awarding $75,000 in general damages (reduced by a $25,000 prior settlement with the bar), $15,000 in punitive damages, and special damages, for a total award of $71,019.29 plus costs.

Chad Ouellette brought a motion for a declaration that no child support arrears were owed to his former wife, Lynne Ouellette (now Lynne Sawyer), and that he had overpaid.

Ms. Sawyer argued that Mr. Ouellette should be responsible for child support based on his former income, asserting that his failure to provide updated employment information disentitled him to a reduction.

She also sought to have a higher income imputed to him based on past earning potential and alleged "cash work." The court, after a trial, found Mr. Ouellette's evidence regarding his employment and cash earnings to be credible and rejected Ms. Sawyer's claims of imputed income as speculative and unsupported.

The court ordered that Mr. Ouellette's child support arrears be reduced to zero but found no evidence of overpayment.

No costs were awarded, as both parties' conduct contributed to the necessity of the trial.

The police defendants brought two motions: one to exclude the public from the court hearing pursuant to s. 135(2) of the Courts of Justice Act, and another to seal the file pursuant to s. 137(2) of the Courts of Justice Act.

Both motions were dismissed.

The court noted that the defendants could seek public exclusion on a hearing-by-hearing basis to address concerns over the release of personal and identifying information of complainants and minor witnesses.

Material for a future summary judgment motion (Rule 20) may be sealed upon filing, subject to the motion judge's discretion.

Costs were reserved.

The applicant mother brought a motion for interim custody and an interim parenting schedule, while the respondent father brought a cross-motion seeking joint custody and a flexible schedule based on his work travel.

The court emphasized the children's need for stability and predictability, finding that the father's proposal sacrificed certainty for his employment schedule.

The court ordered the temporary parenting schedule proposed by the mother, noting that the father's employment should be flexible to accommodate his parental responsibilities.

This endorsement addresses a dispute between self-represented parties regarding arrears or overpayment of support.

Following a prior order terminating the respondent's support obligation effective May 2, 2012, the court was tasked with determining the financial balance.

The applicant claimed approximately $41,000 in arrears, while the respondent asserted an overpayment of about $4,000.

The court found the applicant's material largely irrelevant to the specific issue and an attempt to re-litigate previous orders.

Relying on the Statement of Arrears from the Director of F.R.O. and the respondent's calculations, the court concluded that the applicant had been overpaid by $4,060.

No costs were awarded due to the unreasonableness of both parties' positions on costs.

The Crown appealed a sentencing decision where victim surcharges were ordered concurrently for two theft offences.

The court examined whether victim surcharges, considered ancillary orders rather than fines or penalties, could be imposed concurrently.

It concluded that there is no legal impediment to concurrent victim surcharge orders, consistent with the totality principle and judicial discretion in sentencing, and that the jurisprudence precluding concurrent fines does not apply.

The appeal was dismissed, and the concurrent victim surcharge orders were upheld.

The applicant wife brought a motion for interim spousal support.

The parties disputed the length of their pre-marital cohabitation and the wife's ability to earn income.

The wife, aged 64, was receiving CPP disability benefits, while the husband earned approximately $70,000 annually.

The court found the wife established a prima facie case for interim support based on her needs and the husband's means.

The court ordered the husband to pay interim spousal support of $1,200 per month and awarded $2,000 in costs to the applicant.

The respondent husband brought a motion to strike the applicant wife's claim for equalization of net family properties, arguing her prior assignment in bankruptcy disentitled her from making the claim.

He also sought security for costs.

The wife produced evidence that her Trustee in Bankruptcy had returned the right to sue for equalization to her after her discharge.

The court found this distinguished her case from the authorities relied upon by the husband and concluded he had not shown she had no reasonable claim in law.

The motion to strike was dismissed, and the request for security for costs was denied without prejudice due to an insufficient record.

The appellant appealed a Consent and Capacity Board decision refusing to appoint him as the substitute decision-maker for his mother regarding her admission to a care facility.

The Board had found the appellant did not meet the criteria under s. 33(6) of the Health Care Consent Act, relying on the 'best interests' factors in s. 42(2).

The Superior Court of Justice allowed the appeal, finding the Board erred in law by misapplying the statutory test, improperly discounting the mother's previously expressed wishes to be cared for by family, and misinterpreting the definition of 'available'.

The Court quashed the Board's decision and appointed the appellant as his mother's representative.

The appellant appealed his conviction for operating a motor vehicle while impaired.

He argued the trial judge erred by rejecting the evidence of his stepson solely because of their familial relationship.

The summary conviction appeal judge found that the trial judge properly assessed the stepson's credibility, noting the witness was not forthcoming during cross-examination and had only observed the appellant for a few seconds.

The trial judge's preference for the arresting officer's detailed evidence of the appellant's erratic driving and signs of impairment was reasonable.

The appeal was dismissed.

A parent appealed an order granting Crown wardship without access that had been granted on a summary judgment motion.

The court found the trial judge erred by proceeding when the parent had recently lost appointed counsel and had been unable, despite efforts, to secure replacement counsel in time for the hearing.

The court held that the seriousness of permanently severing the parent‑child relationship required a full hearing with witnesses subject to cross‑examination, and that summary judgment was inappropriate in the circumstances.

The denial of an opportunity to be heard constituted a palpable and overriding error.

The appeal was allowed, the wardship order set aside, and the matter remitted to the Ontario Court of Justice for further case management.

The applicant mother sought sole custody of the parties' two children with weekend access to the respondent father, alleging abusive and controlling behaviour.

The respondent father sought a shared parenting arrangement, arguing he had been equally involved in parenting prior to separation.

The court found the mother's allegations of abuse unpersuasive and determined that a shared parenting arrangement was in the children's best interests, maintaining the pre-separation status quo.

The court ordered a two-day-on, two-day-off shared custody schedule and calculated child support on an offset basis pursuant to section 9 of the Child Support Guidelines.

The defendant brought a second motion for summary judgment to dismiss the derivative Family Law Act claim of the severely injured plaintiff's father.

The main action, brought on behalf of the injured plaintiff, had been settled for a nuisance value and dismissed because there was no evidence of negligence by anyone other than the injured plaintiff himself.

The court granted the summary judgment motion, holding that a derivative claim under the Family Law Act cannot survive the dismissal of the main action.

No costs were awarded against the self-represented father.