Timothy D. Ray

The applicant father sought to vary a prior joint custody order to obtain sole custody and child support.

The court considered whether there had been a material change in circumstances under the Children’s Law Reform Act and whether the proposed variation was in the best interests of the children.

Evidence addressed school attendance, hygiene concerns, medical care, and parental communication failures while the children resided primarily with the respondent mother.

The court found a material change in circumstances and concluded that the children’s educational, medical, and developmental needs were being better met while residing with the father.

Sole custody was granted to the father with liberal access to the mother, and income was imputed to the mother for child support purposes.

The appellant appealed his conviction, arguing that the trial judge should have given a specific caution regarding the complainant's evidence and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding that the jury was capable of assessing the complainant's credibility using common sense and the general instructions provided.

The court also held that a properly instructed jury acting reasonably could have reached the verdict.

The appellant appealed his conviction, arguing that the photo lineup identification should have been given no weight because the complainant was shown a grainy video of the scene months prior, and the lineup only contained six photos.

The Court of Appeal dismissed the appeal, finding that the trial judge was alive to these considerations and carefully weighed the relevant factors in concluding the case was made out beyond a reasonable doubt.

The sentence appeal was abandoned.

The appellant sought leave to appeal a decision of the Summary Convictions Appeal Court, which dismissed an appeal from a sentence imposed by the trial judge.

The trial judge had rejected a joint submission on sentence, concluding it would bring the administration of justice into disrepute.

The Court of Appeal found no error of law, agreeing that the trial judge applied the proper legal test for rejecting a joint submission.

Leave to appeal was denied.

The appellants, two youthful first-time offenders, pleaded guilty to a variety store robbery involving planning and violence but no weapon.

They appealed their sentences.

The Court of Appeal found that the trial judge erred in principle by dismissing the sentencing principles of specific deterrence and rehabilitation.

The Court allowed the appeal, substituting a global sentence of two years less a day for each appellant, which, after accounting for pre-trial custody, resulted in a sentence of 357 days.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that the Board's decision was reasonable and based on the expert evidence of Dr. Woodside.

The Court held that the Board's order represented the least onerous and least restrictive disposition for the appellant at the time, and there was no basis to inquire into what might happen beyond the one-year term of the disposition.

During a jury trial for manslaughter (unlawful act) and assault arising from a fatal altercation, the court addressed the proper jury instruction concerning consent to assault.

The issue was whether consent is vitiated by intended bodily harm or only by intended serious bodily harm.

Relying on appellate authority, the court held that the threshold for vitiation of consent is serious bodily harm rather than the statutory definition of bodily harm.

The jury was therefore to be instructed on the Criminal Code definition of bodily harm and the jurisprudential definition of serious bodily harm, with the term “serious” left to the jury’s ordinary understanding.

The ruling clarified the correct legal standard governing consent in the context of assault forming the unlawful act for manslaughter.

Following a successful Rule 21 motion dismissing the plaintiffs’ action for lack of jurisdiction, the defendant sought costs.

The court received written submissions only from the defendant after the plaintiffs failed to respond within the time allowed.

The court reviewed the bill of costs and found the time spent and hourly rates to be reasonable given the motion work, including cross-examinations, pleadings, and preparation.

Applying the Rule 57 factors, the court awarded partial indemnity costs fixed at approximately 55% of a reasonable full indemnity bill.

Following the dismissal of the respondent’s motion for summary judgment seeking to dismiss the applicant’s claim for support, the court considered costs.

The applicant sought costs as the successful party under Rule 24(1) of the Family Law Rules.

The respondent argued no costs should be awarded because the motion narrowed issues for trial and because the applicant abandoned a motion for interim support.

The court held that the unsuccessful party should ordinarily pay costs and found no reason to depart from that rule.

Costs of the motion were fixed at $2,500 inclusive of disbursements and HST.

The accused was charged with three counts of trafficking crack cocaine under the Controlled Drugs and Substances Act and three counts of possession of proceeds of crime under the Criminal Code arising from controlled purchases conducted by an undercover officer over three consecutive days.

The defence argued that the Crown failed to prove beyond a reasonable doubt that the accused was the individual known as “Cinderella” who sold the drugs, pointing to several investigative deficiencies including failure to preserve buy money and failure to conduct a lineup.

The court rejected these arguments, finding the surveillance evidence, photographs, and continuity of observation established identification beyond a reasonable doubt.

The court also accepted the evidence of the undercover officer regarding the drug transactions and proceeds.

Convictions were entered on all trafficking and proceeds of crime counts.

Following dismissal of a motion seeking removal of the plaintiff’s solicitor for alleged conflict of interest, the court addressed costs.

The plaintiff sought substantial indemnity costs of $6,700, while the defendant argued the time spent was excessive.

The court held that costs should follow the event and that the unsuccessful party should ordinarily pay costs.

Although the motion lacked merit, the court declined to award substantial indemnity costs and instead fixed costs at a reduced amount.

Following a motion to vary a prior family law order, the responding party sought costs after partially succeeding in terminating child support but failing to vary spousal support.

The opposing party argued that no costs should be awarded because the offer to settle was not clearly bettered.

The court held that the written offer to settle should have been taken seriously and that it was better than the ultimate order with respect to the child support issue.

Although success was mixed, the court exercised its discretion to award modest costs.

Costs were fixed at $1,000.

The respondent brought a motion for summary judgment under Rule 16 of the Family Law Rules seeking dismissal of a spousal support claim advanced despite a prior separation agreement containing mutual waivers of support and a property transfer.

The applicant limited her claim to the second stage analysis under Miglin, asserting that current circumstances, including alleged health issues preventing employment, constituted a significant departure from the range of outcomes contemplated by the parties.

The court held that the applicant would need to establish that current circumstances were inconsistent with the objectives of s. 15.2 of the Divorce Act.

Although the court expressed serious doubt that the applicant could meet this threshold on the affidavit record, it concluded that a genuine issue requiring a trial remained.

The motion for summary judgment was dismissed and the matter was directed to proceed to trial on the limited issue identified.

The mortgagor brought an urgent motion under the Mortgages Act seeking an order permitting payment into court of the undisputed mortgage payout amount and additional security to cover disputed prepayment penalties in order to obtain a discharge of a commercial mortgage before the closing of a property sale.

The parties agreed on the principal, accrued interest, and a three‑month interest penalty, but disagreed on the calculation of the additional interest differential payable under the mortgage’s prepayment clause.

The court held that the contractual language regarding the calculation of the “prevailing rate” was unclear and would require evidence and full argument at a later determination.

For the purpose of security pending that determination, the court ordered payment of an additional amount sufficient to protect the mortgagee without imposing an unfair burden on the mortgagor.

Upon payment of the undisputed amount and the ordered security into trust, the mortgagee was required to provide a discharge of the mortgage and personal property security.

The defendant brought a Rule 21 motion to dismiss an Ontario action alleging breach of contract and misrepresentation on the basis that the governing contract between the corporate parties contained arbitration and exclusive jurisdiction clauses requiring disputes to be resolved in New Jersey.

The plaintiffs argued the claim against the defendant was personal and therefore outside the contractual forum selection clause.

The court held that the pleadings, read as a whole, demonstrated the dispute arose from the corporate relationship governed by the fabricator agreement, despite the plaintiffs discontinuing the action against the corporate defendants.

No strong cause was shown to avoid enforcement of the contractual arbitration and jurisdiction provisions.

The action could not proceed in Ontario and was dismissed.

The plaintiffs moved for summary judgment dismissing a counterclaim on the basis that it was barred by the Limitations Act, 2002 and disclosed no reasonable cause of action against individual plaintiffs.

The court held that the evidentiary record did not establish when the counterclaiming party discovered the alleged misrepresentations concerning the product at issue, and therefore the limitation issue required a full evidentiary record at trial.

The court also found that the pleadings alleged misrepresentations through corporate communications and other channels and were not limited to personal communications with the individual plaintiffs.

The allegations were sufficiently particularized to sustain causes of action including fraudulent and negligent misrepresentation, breach of fiduciary duty, and disgorgement.

Summary judgment was therefore inappropriate.

Former leadership candidates sought a further extension of time to pay outstanding leadership campaign expenses under the Canada Elections Act after failing to comply with a prior judicial order extending the payment deadline.

The Chief Electoral Officer opposed the application, arguing that the statutory scheme permits only one judicial extension following authorization by the Chief Electoral Officer.

The court interpreted ss. 435.26 and 435.27 of the Canada Elections Act and held that the statutory precondition allowing a judge to grant an extension had already been exhausted by the earlier judicial order.

In any event, the applicants failed to establish that their inability to comply with the prior order resulted from reasons beyond their control.

The application for a further extension was dismissed.

The applicant, catastrophically injured in a motor vehicle accident, sought determination of the amount of attendant care benefits payable under the Statutory Accident Benefits Schedule, O. Reg. 34/10.

The insurer limited payments based on the number of hours of economic loss sustained by the family member providing care, rather than the full amount assessed in the Form 1.

The court interpreted the definition of “incurred” expense under s. 3(7)(e) of the SABS and held that proof of economic loss is only a threshold requirement to establish that the expense was incurred.

Once that threshold is met and the insured is obligated to pay the caregiver, the insurer must pay the reasonable and necessary attendant care expenses up to the statutory maximum.

The insurer’s proportional calculation based on lost hours was rejected.

The appellant appealed a conviction for refusing to provide a breath sample contrary to the Criminal Code.

The appellant argued that the trial judge erred in dismissing a Charter s. 10(b) claim relating to the right to counsel and in finding that the appellant refused to provide a breath sample.

The appeal court held that the trial judge’s reasons did not sufficiently explain the basis for concluding that the appellant made an unequivocal refusal, which is required for conviction.

On the evidence, the court could not identify a clear refusal prior to the charge.

The conviction was therefore set aside and a new trial ordered before a different judge.

The moving party father brought a motion to vary a 2006 order to terminate his child and spousal support obligations following his job loss.

The court found that the 23-year-old daughter was no longer a child of the marriage as she was independent and had withdrawn from parental care, terminating child support.

However, the court dismissed the motion to vary spousal support as premature, noting the father's severance package and the lack of financial disclosure from both parties, requiring a better evidentiary record.