Subject Title. Family law Classification Number: X.8 Custody and access -- Parallel parenting Parties brought cross-applications in relation to parenting of two children -- Interim order granted primary care to father, generous access to mother and required children to commence counselling -- Psychologist expressed concern children were exhibiting signs of significant stress as result of exposure to and involvement in parental conflict -- Counsel appointed to represent children expressed similar concerns -- By time cross-applications came on for hearing some 18 months after interim order, parties agreed older child, aged 17, was able to determine own parenting schedule -- While father submitted younger child, aged 12, should also be permitted to do so, mother was concerned about alienation and sought order for shared parenting -- Child advised counsel that he wanted to spend every second Wednesday to Sunday with mother and have father make all decisions about hockey -- Order accordingly -- Although counsel seemed satisfied younger child’s views were his own, court was less convinced -- There appeared to be some merit to mother’s concern father had been influencing children, exerting some pressure on them to adopt his views -- Parallel parenting regime, in which younger child spent alternating weeks with each parent, would be appropriate in circumstances -- If that did not result in reduction in conflict or father’s attempts to limit younger child’s contact with mother, there would have to be further consideration about how best to repair damage to children’s relationship with her -- Although day to day decisions were to be made by parent in whose care child was at relevant time, major decisions were to be made jointly -- Both parents were required to ensure child could participate in hockey while in their care.
Subject Title. Family law Classification Number: X.1.i Custody and access -- Best interests of child generally -- Miscellaneous Parties were in married for three years, they had one child together, and they both had children from previous relationships -- Mother made allegations of family violence against father -- Mother applied for relief, including sole parenting responsibility and determination of parenting arrangements -- Application granted in part -- Each party spent significant time attempting to diminish other’s parenting abilities -- Alleged incidents, individually or collectively, were insufficient to diminish court’s opinion that each party was fit parent -- It was not possible for court to determine whose version of events was accurate with respect to allegation of family violence -- If there was family violence, it was situational and was not directed at child, and it was not factor in decision -- Parental responsibilities should continue to be shared -- Father was now in long-term relationship, he had secure housing and secure employment -- Child would benefit from having more time with father -- Father’s situation had materially changed, he had greater stability and flexibility, but equal time was not workable or in child’s best interests -- Parenting time was to be primarily with mother, with father’s parenting time set out.
Subject Title. Torts Classification Number: XIV Misfeasance in public office Xxxxx died due to complications from strep throat in remote fly-in First Nation community -- Child had shown symptoms of simple cold one week earlier and when child’s symptoms worsened, family asked nursing station for appointment, but was denied -- Coroner did not attend first nation community, did not take detailed statement from any medical staff, did not keep family informed and determined that inquest was not required -- Child’s family commenced action against investigating, supervising and chief coroners and province concerning coroner’s investigation and decision not to recommend that inquest be held -- Judge granted defendant’s motion to strike out proceeding as disclosing no reasonable cause of action -- Family appealed -- Appeal allowed in part -- Motion judge erred in striking out claim for misfeasance in public office without leave to amend -- Family’s core misfeasance allegation on unlawful act element was that coroners exercised their discretion to knowingly discriminate against class of persons which included them, which could be understood as exercise of discretion for improper purpose -- Pleadings included numerous allegations that coroners knew, were reckless to, or were careless of potential that their conduct in child’s case was unlawful and likely to harm family -- Statement of claim contained material facts which were sufficient to support allegations of recklessness or carelessness and pleadings were as detailed and fact-specific as family could be at this stage of proceeding -- Compensability and causation should be determined on factual record. Meekis v. Ontario (2021), 2021 ONCA 534, 2021 CarswellOnt 10777, X. xxx Xxxxxxxx X.X., X. Xxxxxx X.X., X.X. Xxxxxxxx X.X. (Ont. C.A.); reversing in part Meekis v. Ontario (AG) (2019), 2019 ONSC 2370, 432 C.R.R. (2d) 133, 2019 CarswellOnt 6110, X.X. Xxxxxxx J. (Ont. S.C.J.) [Ontario]
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Subject Title. Real property Classification Number: III.6.h Sale of land -- Judicial sale -- Miscellaneous Cancellation -- Plaintiff attended auction advertised in Ontario Gazette and made winning bid of $260,000 on property of judgment debtor valued at $520,000 -- No agreement of purchase and sale was entered into, but plaintiff provided required deposit of $26,000 -- Following day, plaintiff was advised that sale had been cancelled and deposit would be returned as Attorney General’s policy was not to accept bids of less than 60 per cent of lowest appraised value -- Judgment debtor subsequently satisfied judgment against her and judgment creditor withdrew writ of seizure and sale -- Sale notice posted at courthouse stated sale was subject to cancellation without further notice up to time of satisfaction of sales terms while notice posted in Ontario Gazette indicated sale was subject to cancellation without further notice up to time of sale -- Plaintiffs action for damages for breach of contract was summarily dismissed on basis that contract permitted unilateral cancellation of sale at time it was cancelled, among other reasons -- Plaintiff appealed -- Appeal dismissed -- Inference that rules governing auction read out by auctioneer were taken from notice of sale posted at courthouse was available to motion judge on evidence before him -- Plaintiff had been alerted by notice in Ontario Gazette that sale would be subject to other conditions announced and therefore conditions read by auctioneer from sale notice posted at courthouse were contemplated by terms contained in Ontario Gazette -- Notice of sale allowed for unilateral cancellation of sale up to time of satisfaction of sale terms -- At time sale was cancelled, matter had not advanced to point of drawing up formal agreement of purchase and sale.
Subject Title. Real property Classification Number: IV.2 Real estate agents -- Creation of agency Purchasers bought property intending to develop resort -- Approximately 60 percent of property was in agricultural land reserve ("ALR") -- Property was subject of boundary review -- There was proposal to add remaining acreage to ALR, but owner had option to opt out -- Purchasers claimed they were unaware of information related to ALR -- After purchase, property was added to ALR and purchasers were prevented from developing property without exemption -- Purchasers brought action in negligence against listing agent, seeking damages attributable to changes and delays in development of property -- Action allowed -- Facts supported conclusion that implied agency relationship between purchasers and listing agent was created -- Listing agent breached duty to make full and fair disclosure of material information regarding property, which included existence of boundary review and particularly, opt-out option -- Alternatively, there was customer relationship between parties and listing agent breached duty to recommend that purchasers secure independent assistance with purchase, boundary review and option -- Duty to disclose not limited to physical defects -- Causation was established -- If listing agent had met standard of care, purchasers would have been in position to pursue original development plan through exercise of option -- Contributory negligence not established -- Damages claimed were inflated -- Purchasers awarded $1,536,180 for costs thrown away, increased capital costs, consultant fees and past loss of profits.
Subject Title. Real property Classification Number: III.8 Sale of land -- Miscellaneous Security for costs -- Plaintiff numbered corporation was incorporated by its principal, E, who was resident of Alberta, for purpose of acquiring and managing Ontario property -- Numbered corporation defaulted on mortgage with defendant mortgagees -- Subsequently, Ontario property was sold under power of sale -- Numbered corporation had commenced action claiming mortgagees’ sale was improvident -- Mortgagee sought order for security of costs in amount of $68,000 -- Order for security for costs was made in amount of $60,000, to be paid in installments -- There was no injustice to require numbered corporation to post security for costs -- Parties agreed that numbered corporation had insufficient assets in Ontario to pay potential costs awarded to mortgagee -- Numbered corporation conceded that since E was not impecunious, it was also not impecunious -- Numbered corporation did not demonstrate it had good case on merits -- Although numbered corporation’s action for improvident sale was not "plainly devoid of merit", it should have demonstrated stronger case on merits.
Subject Title. Family law Classification Number: IX.11 Custody and access -- Evidence Ontario Superior Court of Justice recognized and enforced judgment of Georgia court and children, who were in Ontario with mother, had been returned to father's custody in Georgia -- Applicant mother appealed decision seeking order setting it aside and requiring that father return children to custody of mother in Ontario -- Mother brought motion seeking order compelling number of third-party organizations in Ontario and Georgia to produce documents in their possession for purpose of appeal -- Motion dismissed -- Threshold for application of s. 43 of Children's Law Reform Act was high hurdle -- Mother's record in appeal contained no evidence that even attempted to address presumption that Georgia court was well able to assess any and all information regarding best interests of children and protect them from harm -- Without such evidence, mother's appeal was doomed to fail. Ireland v. Ireland (2011), 2011 ONCA 623,
Subject Title. Family law Classification Number: XV.9 Children in need of protection -- Unmanageable children 14-year-old child had been in temporary care of children's aid society for several years while there was ongoing child protection proceeding involving her and number of her siblings -- Proceeding was terminated by order for Crown wardship with parental access -- Child did not do well in xxxxxx home placement -- Child's behaviour was problematic -- Child was depressed, irritable, had difficulty following direction and was prone to angry outbursts -- In 2008, child was transferred to treatment centre because her behaviour had escalated -- In 2008, treatment centre discharged child from its programs and facilities, and child was placed in group home -- Child's problematic behaviour had not abated -- Child was involved in several incidents against staff members, one of which resulted in charges under Youth Criminal Justice Act for assault and assault with weapon -- Children's aid society applied for order committing child to secure treatment program -- Application granted -- Order for secure treatment was appropriate in circumstances -- Prerequisite set out in s. 117 of Child and Family Services Act had been met -- Child had been diagnosed with post-traumatic stress disorder, oppositional defiant disorder and mood disorder -- Child had caused serious bodily harm to staff member and had attempted to cause serious bodily harm to herself -- In past year, child had had many other incidents involving threats or actual attempts to seriously harm herself and other persons -- Child had signed consent to application -- Secure treatment centre would be effective to prevent child from causing or attempting to cause serious bodily harm to herself or others, and in treating her mental disorders -- There were no less restrictive methods of providing treatment. Children's Aid Society of Algoma v. M. (K.A.L.) (2010),
Subject Title. Real property Classification Number: III.6.h Sale of land -- Judicial sale -- Miscellaneous Selling officer -- Applicant financial institution applied unsuccessfully for order to permit its counsel to be appointed as selling officer under order nisi for sale by real estate listing -- Mortgagors had granted non-purchase money mortgage and there was no equity in property to be sold -- Applicant appealed -- Appeal dismissed -- Principle that independent selling officer for judicial sale is required and underlying reasons were set out in case law -- Over time, dicta that it was inappropriate to appoint solicitor for creditor as selling officer because it would create conflict of interest became established as governing law -- Recognition of potential conflict where selling officer is not independent has been long established -- Issue of conflict of interest is broader than just whether right of mortgagee to bid at sale conflicts with appointment of its representative as selling officer -- There exists inherent conflict between mortgagor and mortgagee in foreclosures and judicial sales as seen from viewpoint of equity -- That conflict continues to exist and is perhaps highlighted where selling officer is, in fact, mortgagee’s solicitor -- To ameliorate that conflict, real and perceived, courts have required independent selling officer or persons who are not retained by mortgagee -- Decision to appoint selling officer is discretionary -- Reliance solely on comity may constitute fettering of judicial discretion where there is insufficient analysis of relevant factors, however, xxxxxxxx judge’s decision and case law recognized conflict of interest, real or apparent, that appointment of mortgagee’s lawyer would create -- Applicant had made sweeping factual assertions about behaviour of mortgagees and interests of mortgagors without evidence to underpin those assumptions -- Mortgagees would be advised that, if in particular case, they wished to have their solicitors appointed as selling officer, they must show that there are compelling reasons why, despite real or perceived conflict, such appointment should be made. The Toronto-Dominion Bank x. Xxxxx (2021), 2021 SKCA 154, 2021 CarswellSask 686, Xxxxxxxx X.X., Xxxxxx X.X., Xxxxxxxxxx X.X. (Sask. C.A.); affirming Toronto-Dominon Bank x. Xxxxx (2021), 2021 CarswellSask 347, 2021 SKQB 160, M.D. Tochor J. (Sask. Q.B.) [Saskatchewan] REA.V.8.c.iv Subject Title: Real property Classification Number: V.8.c.iv Landlord and t...
Subject Title. Real property Classification Number: III.1.d Sale of land -- Agreement of purchase and sale -- Effect of collateral agreement Parties contracted for purchase and sale of resort property, but plaintiff purchaser failed to complete transaction -- Final agreement provided that $400,000 of $900,000 deposit became non-refundable on specified date -- Purchaser brought action seeking return of deposit -- Vendors counterclaimed, seeking damages for loss of bargain and on basis of collateral contracts -- Action was allowed; counterclaim was dismissed -- Return of some of purchaser’s funds ordered -- Trial judge determined that because final agreement had superseded any previous agreements, there was presumption that it constituted entire agreement between parties -- Trial judge concluded that vendors had not rebutted this presumption and no damages were awarded on this basis -- Vendors appealed -- Appeal allowed in part on other grounds -- Vendors were entitled to damages for loss of bargain as difference between contract price of $9 million less market value of $2.54 million -- Trial judge’s conclusion involved interpretation of relationship between final agreement and alleged other agreements in light of his assessment of factual background -- Trial judge did not make extricable error of law or palpable and overriding error in concluding that collateral contract was displaced by final agreement.