V. Jennifer Mackinnon

Following a final consent order resolving a motion for the sale of a matrimonial home and distribution of proceeds, the court reserved the issue of costs for written submissions.

The successful party sought $7,209.91 on a full indemnity basis but provided no detailed explanation for the request.

The court found the motion was necessary because the opposing party would not consent prior to service and that the successful party was entitled to costs.

However, absent justification for full indemnity, the court fixed costs at the high end of partial recovery.

The applicant moved to set aside an administrative dismissal of a family law application seeking equalization and related relief.

The court applied the principles governing motions to set aside dismissal orders and found the delay was largely attributable to prior counsel, the applicant moved with reasonable promptness after learning of the dismissal, and the respondent suffered no prejudice.

The administrative dismissal was therefore set aside.

On the respondent’s cross-application for partition and sale of the former matrimonial home, the court held that a joint owner has a prima facie right to sale and the resisting party had not established a prima facie competing interest under the Family Law Act.

The home was ordered sold with a portion of proceeds held pending determination of equalization.

The applicant moved for temporary spousal support, while the respondent moved for possession and sale of the matrimonial home, dispensing with the applicant's consent for the sale, and a restraining order.

The court awarded temporary spousal support to the applicant, imputing a modest income to her while recognizing her need and language barriers.

The court ordered the sale of the matrimonial home but declined to dispense with the applicant's consent or to issue a restraining order due to lack of evidence.

Costs were awarded to the successful applicant.

In a family law motion concerning the distribution of proceeds from the sale of a jointly owned matrimonial home, the responding party sought an order releasing the proceeds equally to facilitate the closing of a new home purchase.

The opposing party requested release of his share together with the full equalization payment he calculated was owed.

The court held that a motion judge lacked authority on the present motion to determine the amount of the equalization payment or the method by which it should be paid.

To preserve the parties’ positions pending trial, the court ordered that one-half of the net proceeds be released to the opposing party, $65,000 be held in trust in an interest-bearing account to the credit of the action, and the remaining balance be released to the moving party.

The applicant brought a contempt motion alleging that the respondent breached multiple provisions of a prior custody and access order, including interference with access, harassment through email, parental alienation, and cancellation of the children’s cell phone service.

The court reviewed the factual circumstances surrounding the children’s refusal to attend access, the communications between the parties, and the applicant’s own non-compliance with previous financial orders.

The court held that contempt requires proof of deliberate and willful disobedience of a court order and found that the evidence did not establish such conduct by the respondent.

Allegations of parental alienation and harassment were also not proven on the record.

The motion was dismissed and costs were awarded against the applicant.

A child protection motion under the Child and Family Services Act sought temporary care and custody of three children following their apprehension from the maternal grandmother’s home.

The society relied on concerns regarding unsafe home conditions, the continued presence of the grandmother’s adult son contrary to prior warnings, and developmental progress observed while the children were in foster care.

The court found the society met the statutory burden under s. 64(8) of the CFSA only in relation to the youngest child, whose health and developmental improvements and attachment in foster care demonstrated that remaining in care was in her best interests.

The evidence did not establish that the two older children’s best interests required continued placement in care, particularly given their lengthy residence with the grandmother and improvements to the home environment.

The court therefore ordered temporary care and custody of the youngest child to the society, while placing the two older children with the grandmother subject to supervision and conditions.

Following a nine-day custody trial, the respondents sought costs against the applicant.

The court found the applicant was largely unsuccessful in seeking custody or joint custody and obtained only limited access, far less than requested in pleadings, opening statements, or settlement offers.

The respondents’ positions and settlement offers were closer to the trial outcome, though aspects of their conduct were criticized, including limited bad-faith conduct during an earlier period and a contempt finding against one respondent.

Applying the Family Law Rules regarding success, offers to settle, and litigation conduct, the court awarded the applicant costs for the contempt finding but otherwise granted partial indemnity costs to one respondent.

After set-off, the applicant was ordered to pay net costs to that respondent.

The appellant brought a summary conviction appeal challenging convictions and fines imposed for two violations of s. 65(1) of the Health of Animals Act arising from transporting and unloading a cow in a condition causing undue suffering.

The appellant argued that the trial judge applied the wrong legal test for “undue suffering,” improperly relied on expert veterinary pathology evidence, and erred in failing to apply the Kienapple principle to stay one of the convictions.

The court held that the trial judge correctly applied the causation requirement clarified in Doyon v. Canada (Attorney General) and made supported findings that both the transportation and unloading independently caused undue suffering.

The court further held that the veterinary pathologist was properly permitted to give opinion evidence within her expertise and that the two offences were distinct and did not arise from the same transaction.

The appeal against both conviction and sentence was dismissed.

In a chiropractic malpractice action alleging negligent treatment causing serious injury, the plaintiffs brought a motion seeking production of raw data underlying a population-based study relied upon by a defence expert and extensive disclosure relating to another defence medical expert.

The court held that the underlying research data was not in the possession, power, or control of the defendants or their expert and could only be obtained through a proper third-party motion under the Rules of Civil Procedure.

Limited procedural directions were issued requiring the defendants to ask the expert to use best efforts to obtain the data and to confirm the existence of a video recording from the defence medical examination.

Most of the requested relief, including production of the expert’s hard drive and extensive materials from the expert’s curriculum vitae, was dismissed.

The applicant step-mother sought joint custody and extensive access to her nine-year-old step-daughter following her separation from the respondent father.

The biological parents, who shared custody, opposed the application and sought to limit access, citing the child's resistance and the high conflict between the parties.

The court found that all three adults contributed to the deterioration of the child's relationship with the applicant.

The court denied joint custody but ordered limited, graduated access, conditional on all parties attending mandatory counseling to repair the relationship.

The respondent father was also found in contempt for failing to facilitate court-ordered access.

Additionally, the court resolved child support for the parties' biological child based on current income and ordered the applicant to remove the respondent from a joint line of credit.

The applicant sought substantial indemnity costs of $86,832 following a five-day custody trial, plus costs for a prior motion.

The court denied costs for the prior motion, noting that under Rule 24(10) of the Family Law Rules, costs must be decided at each step.

The court declined to award substantial indemnity costs, finding divided success and that the respondent's pursuit of sole custody was not unreasonable.

The court fixed the applicant's costs on a lower partial indemnity scale at $27,650, subject to an $8,000 set-off from a property settlement.

The appellants appealed a Small Claims Court judgment finding them liable for breach of a contract to supply and install a custom granite countertop.

The trial judge found the corporate and personal defendants jointly liable because the corporate name was not disclosed and the personal defendant accepted payment in her own name.

The Divisional Court dismissed the appeal, finding no error of law in the liability finding, no reasonable apprehension of bias, and no palpable and overriding error in the trial judge's findings of fact regarding the defective installation and the respondent's duty to mitigate.

The appellants appealed a Master's order granting summary judgment dismissing their action against the respondents.

The action arose from the allegedly defective installation of a hot water heater in their new home, which they claimed caused carbon monoxide exposure and adverse health effects.

On appeal, the appellants argued the Master erred by denying an adjournment, exceeding his jurisdiction, reversing the burden of proof, and applying the wrong legal test for causation.

The Divisional Court dismissed the appeal, finding that the Master correctly applied the law, properly held the moving parties to their burden of proof, and correctly concluded that the appellants failed to present sufficient evidence to establish a genuine issue for trial regarding causation.

The appellant appealed a Small Claims Court costs award of $1,650, arguing the deputy judge erred by exceeding the 15 percent limit under s. 29 of the Courts of Justice Act without explicitly referencing the provision.

The Divisional Court held that leave to appeal was required because the costs award involved an exercise of discretion, and granted leave.

The court dismissed the appeal, finding that although the deputy judge did not cite s. 29, his factual findings regarding the appellant's unreasonable behaviour and failure to accept a generous settlement offer fully supported the elevated costs award.

The appellant appealed a summary judgment dismissing his medical malpractice claim against a hospital and two doctors for failing to diagnose a concussion.

The motions judge had dismissed the action under Rule 20 of the Rules of Civil Procedure.

The appellant argued that Rule 20 does not apply in Small Claims Court, relying on recent appellate jurisprudence.

The Divisional Court agreed that Rule 12.02 of the Small Claims Court Rules was the correct provision, but upheld the dismissal because the appellant had no expert evidence on the standard of care and the claim had no meaningful chance of success, rendering it a waste of time.

The appellant mother sued her son and daughter-in-law for repayment of a $52,000 loan, which she claimed was payable upon her turning 65 or retiring.

The respondents argued the money was a gift or, alternatively, a demand loan that was statute-barred.

The motion judge granted summary judgment dismissing the action.

On appeal, the Divisional Court found the motion judge made palpable and overriding errors by weighing evidence, evaluating credibility, and drawing adverse inferences without considering whether a trial was necessary in the interests of justice.

The appeal was allowed and the summary judgment set aside.

The appellant tenant sued the landlord and its independent contractor for water damage caused by a leaking roof.

The Master granted summary judgment dismissing the claim against the contractor, finding that a waiver of subrogation clause in the lease protected the landlord and those for whom it was 'in law responsible'.

The Divisional Court dismissed the tenant's appeal, holding that the Master had jurisdiction to interpret the lease and correctly concluded that the landlord could not delegate its contractual duty to repair the roof, making it responsible in law for the contractor's work.

The appellants appealed three Small Claims Court judgments regarding vandalism to their vehicle, trespass on yacht club property, and a lien on their boat.

The Divisional Court upheld the trial judge's findings that the Occupiers' Liability Act did not apply to third-party vandalism, that nominal damages for trespass were appropriate, and that the Repair and Storage Liens Act applied to boats stored in water.

However, the court allowed the appeal in part to reduce the costs awarded in the lien action, finding the trial judge exceeded the limits under the Small Claims Court Rules.