Subject Title. Prohibited Drug Use and Alcohol Misuse Education and Testing Program Policy for Employees Occupying Safety Sensitive Positions
Subject Title. Family law Classification Number: X.16 Custody and access -- Miscellaneous Mother and father of one child separated, with equally shared parenting arrangement established -- Father, who was paying $550 per month in child support, sought primary parenting of child -- Order issued for evaluative intervention report to be prepared with respect to child, which found that child was doing well and made recommendations including that there be therapeutic intervention process involving parents and their new partners -- Direction issued requiring parents to undertake recommended therapeutic intervention process, with father paying two-third and mother paying one-third of costs but with father granted leave to apply to have some or all of his costs repaid in future by mother -- Further submissions received on therapy process -- Direction vacated -- Costs of therapy had already been decided and any attempt by parties to reargue such issue were simply unacceptable -- Parents’ other submissions about problems with process reflected underlying dysfunction as to how they interacted with each other -- Child, who was almost 11 years old, would soon be able to make his own decisions about time he spent with each parent and activities he participated in with them -- It had become apparent that parents would not be able to agree on therapy process so, rather than waste any more time and resources attempting to resolve their concerns, requirement that they enter into it would be vacated -- Given that child was doing well despite ongoing high conflict litigation and given his age, there was no useful purpose that could be obtained at this time given various issues that parents had with respect to therapy process and its costs. VGM v. MNPW (2021), 2021 ABQB 131, 2021 CarswellAlta 372, Xxxxxx Xxx X. (Xxxx. Q.B.); additional reasons to (2020), 2020 CarswellAlta 2637, 2021 ABQB 83, Xxxxxx Xxx X. (Xxxx. Q.B.) [Alberta] FAM.XII.5.a Subject Title: Family law Classification Number: XII.5.a Child protection -- Return of child -- Under temporary order Two children, ages 14 and 12, were apprehended and taken into care by Director of Child, Family and Community Service (Director) following disappearance of mother -- Father was detained and questioned by police in relation to mother’s disappearance, but no charges were filed -- Temporary custody order was made in April 2018 with consent of father -- Order was extended by consent -- Order was further extended in June 2019 and children found ...
Subject Title. Family law Classification Number: XIV.3 Protection orders under provincial legislation -- Variation or termination of order Parties separated in October 2020 following altercation that resulted in mother being charged with two counts of assault and entering undertaking that required her to have no contact with father or be within 200 metres of various locations -- Unable to make satisfactory arrangements for care and control of or access to parties’ three-year-old child, mother filed and served family law proceeding -- In response, father brought ex parte application for and was reluctantly granted protective order for himself and child -- Mother claimed father had failed to make full and fair disclosure including in relation to previous incidents of domestic abuse that had resulted in him being charged and prohibited from contacting her, her commencement of family law proceeding and child welfare authority’s statement it took no position with respect to custody and access and had no protection concerns -- In December 2020, mother brought emergency motion to vary or set aside protection order, particularly in relation to child, and for joint custody, primary care, immediate return of child, and peace officer assistance -- Motion granted in part -- Emergency hearing was warranted by fact father had virtually eliminated mother’s access to child -- It appeared protection order had been granted without full and fair disclosure including fact mother had already commenced proceeding and fact child welfare authority had no protection concerns -- Xxxxxx in which father had applied for protection order suggested attempt to obtain litigation advantage and parental alienation -- There was no evidence supporting such severe restrictions on mother’s contact with child or, for that matter, order for supervision -- Protective order in relation to child was set aside -- Given evidence of alienating behaviour on part of father, mother was granted interim joint custody, primary care and periods of care and control for father as mutually agreed.
Subject Title. Contracts Classification Number: XIV.3 Remedies for breach -- Recovery of money paid under contract Creditor signed commitment letter to lend $15.2 million to four related debtors, with two guarantors providing guarantees, as part of construction project refinancing -- Creditor terminated commitment letter for failure to meet conditions as debtors did not inject additional capital to comply with loan-to-value ratio, were unwilling to enter into expected absolute standstill agreement relating to other financing, and did not provide certain information requested -- Creditor brought action against debtors and guarantors for damages for breach of contract, and debtors and guarantors brought counterclaim for damages for breach of contract -- Creditor brought successful motion for summary judgment allowing action and dismissing counterclaim, and debtors brought unsuccessful cross-motion for summary judgment dismissing action and allowing counterclaim in part, with issue of special damages to proceed to trial -- Motion judge awarded creditor $508,071.09 as claimed -- Award consisted of standby interest of $101,958.82, expenses of $60,112.27, and lender fee of $346,000 -- Debtors appealed -- Appeal allowed in part -- Motion judge erred in granting judgment for lender fee -- Lender fee was not payable without advance of loan pursuant to language in commitment letter -- Motion judge made no error in granting judgment for other amounts -- Judgment was varied from $508,017.09 to $162,071.09. Marshallzehr Group Inc. v. Ideal (BC) Developments Inc. (2021), 13 B.L.R. (6th) 1, 2021 ONCA 229, 2021 CarswellOnt 5068, 155 O.R. (3d) 200, B.W. Xxxxxx X.X., Xxxxx Xxxxx X.X., Xxxx Xxxxxxx X.X. (Ont. C.A.); varying (2020), 100 B.L.R. (5th) 66, 2020 CarswellOnt 3526, 2020 ONSC 1547, Xxxxxx X. (Ont. S.C.J.); additional reasons at (2020), 2020 ONSC 2478, 2020 CarswellOnt 5568, Xxxxxx X. (Ont. S.C.J.); additional reasons at (2021), 2021 CarswellOnt 6461, 2021 ONCA 299, B.W. Xxxxxx X.X., Xxxxx Xxxxx X.X., Xxxx Xxxxxxx X.X. (Ont. C.A.) [Ontario] CON.XIV.5.q Subject Title: Contracts Classification Number: XIV.5.q Remedies for breach -- Damages -- Miscellaneous Pursuant to two data service agreements, applicant provided respondents with market pricing for securities of various types -- Applicant claimed that each agreement restricted use of data to entity signing agreement, and respondent BNY breached its agreement by sharing data widely within larger corporate group -- Applicant claimed ...
Subject Title. Real property Classification Number: V.6.o Landlord and tenant -- Nature and elements of lease -- Miscellaneous Tenant operated major department store in shopping mall -- Lease provided that tenant’s consent was required for major changes to merchandising balance of mall or material change to pedestrian flow or change that would detrimentally affect tenant’s merchandising environment -- Tenant refused consent for landlord to lease second-largest space in mall to bank for call centre -- Space had been vacant for over three years -- Landlord applied for declaration that it could rent space to bank -- Application dismissed -- Proposed lease met all three criteria for requiring tenant’s consent -- Proposed use as office space would offer fewer synergies to retail tenant -- Call centre did not deal with members of public on site and employees earned lower-end wages -- Proposed new corridor would direct pedestrian flow relative to parking and shopping areas in materially different ways -- Fact that shoppers would be replaced with workers would have adverse effect on tenant’s merchandising environment -- Tenant had not waived right to consent -- Decision to withhold consent was objectively reasonable in all circumstances -- Fact that efforts to locate suitable tenants were put on hold by pandemic did not establish that retail leasing opportunities were permanently non-viable -- No evidence that tenant asserted rights in bad faith or for collateral purpose. 713949 Ontario Limited x. Xxxxxx’x Bay Company ULC (2021), 2021 ONSC 1103, 2021 CarswellOnt 2036, X.X. Xxxxxx J. (Ont. S.C.J.) [Ontario] REA.VIII.5.a.ii Subject Title: Real property Classification Number: VIII.5.a.ii Easements -- Particular easements -- Right of way -- Extent or limits Neighbour owned abutting landlocked lot with deeded right-of-way (ROW) that provided access to water over owners’ waterfront property -- Both parcels had common predecessor -- Current ROW by express grant in 2017 replaced original ROW in different location that was surrendered and removed from title in 2017 by predecessor and owners before neighbour bought property -- Agreement (ROWA) relating to current ROW was signed by predecessor and owners before neighbour bought property (although he was aware of it), but was not registered on title -- Both ROWs and ROWA spoke to access to swimming beach, but parties disagreed on who could access beach, particularly, neighbour’s AirBnB tenants -- Owners objected to neighbour’s installation ...
Subject Title. Family law Classification Number: X.6 Custody and access -- Shared custody Parties were separated parents of young child -- In October 2019, parties signed consent order which gave mother interim day-to-day care and control of child, and scheduled supervised access time for father -- Supervised access continued for several months -- In August 2020, due to concerns about mother’s ability to act in child’s best interests, order was made granting father sole custody and day-to-day care of child, with supervised access for mother -- Parenting Arrangements Assessment was also ordered -- Order made in November 2020 continued father’s sole custody, day-to-day care and control, and authority for major decision making for child -- Parties negotiated agreement for shared parenting and in December 2020, order was made for parenting on 4-4-3-3 schedule on two week rotation -- Updated Assessment was requested and review was set for March 2021 -- Hearing was held for review of parenting -- Joint custody ordered -- Child was happy, confident, and well-adjusted in care of both parents -- Parties should have joint custody of child in shared parenting arrangement -- Current parenting schedule was continued -- Parties were to continue to engage services and support of parenting coordinator -- Parties were to have joint decision making with respect to all major decisions, including health and education -- However, father was to have final decision on medical issues if parties could not agree due to mother’s views on vaccinations and similar types of medical care.
Subject Title. Family law Classification Number: IV.1.g Support -- Spousal support under Divorce Act and provincial statutes -- Retroactivity of order Parties married on December 9, 1978, and separated on August 25, 2006 -- Parties had three children -- Parties' youngest child, K, was born on March 21, 1990 -- On November 29, 2006, parties entered into separation agreement -- Child support and spousal support provisions in agreement were based on husband's annual income of $65,000 -- Agreement provided for top-up of support in event that husband's income exceeded $65,000 -- On May 18, 2007, husband's employment was terminated -- In 2009, husband ceased to pay support -- In March 2010, consent order provided that husband pay spousal support of $400 per month -- Among other relief, wife's claim for retroactive child support and spousal support proceeded to trial -- Wife's claim was allowed in part -- Although husband was retired, he was ordered to pay ongoing spousal support of $400 per month -- Mother appealed -- Trial judge had evidence before him upon which he could make determination of appropriate amount of spousal support -- Decision was entitled to deference -- Trial judge in decision canvassed employment prospects of husband, reviewed his age, medical condition, total income for 2010, inheritance received from mother's estate, and background in repair of small appliances. Xxxxxxxx x. Xxxxxxxx (2012), 2012 NSCA 86, 2012 CarswellNS 594, Xxxxxx X.X., Xxxxxxx X.X., Xxxxx X.X. (N.S. C.A.); affirming (2011), 4 R.F.L. (7th) 279, 2011 CarswellNS 237, 302 N.S.R. (2d) 188, 955 A.P.R. 188, 2011 NSSC 145, Xxxxxx X. Xxxxxxx C.J.S.C. (N.S. S.C.); affirming (2011), 4 R.F.L. (7th) 291, 306 N.S.R. (2d) 92, 968 A.P.R. 92, 2011 CarswellNS 546, 2011 NSSC 293, Xxxxxx X. Xxxxxxx C.J.S.C. (N.S. S.C.); affirming (2011), 4 R.F.L. (7th) 279, 2011 CarswellNS 237, 302 N.S.R. (2d) 188, 955 A.P.R. 188, 2011 NSSC 145, Xxxxxx X. Xxxxxxx C.J.S.C. (N.S. S.C.) [Nova Scotia] FAM.IV.1.j.iii.B Subject Title: Family law Classification Number: IV.1.j.iii.B Support -- Spousal support under Divorce Act and provincial statutes -- Variation or termination -- Change in financial circumstances -- Change in needs of spouse Parties married on December 9, 1978, and separated on August 25, 2006 -- Parties had three children -- Parties' youngest child, K, was born on March 21, 1990 -- On November 29, 2006, parties entered into separation agreement -- Child support and spousal support provisions in agreement were ba...
Subject Title. Family law Classification Number: III.1 Division of family property -- Standing Parties married in 1998 and separated in 2005 -- Parties had one child, born in 1999 -- Parties drafted separation agreement in 2005 which dealt with issues of child support, custody and division of property -- Parties had disputed about these issues -- Both parties made separate applications for relief including custody, child support, and equalization of property -- Mother's application was granted in part -- Father's application was granted in part -- Both parties were insolvent and had not made assignment in bankruptcy -- Debt and property was to be equally shared in separation agreement -- Father could not reopen agreement on this issue as there was no jurisdiction to divide debt -- Parties had complied with debt obligations in separation agreement and court could not assist in this area -- Costs were not awarded due to mixed success. Law v. Law (2011), [2011] O.J. No. 1737, 2011 XxxxxxxxXxx 8841, 2011 ONSC
Subject Title. Family law Classification Number: XIV.2 Protection orders under provincial legislation -- Protection and restraining orders Parties’ child grew up primarily in mother’s care -- Mother sought and obtained protection order, alleging emotional and physical abuse of child by father -- Mother reported alleged assault to police and father was arrested for assault and released on undertaking with condition that he not have contact with child -- Application judge made interim protection order on without-prejudice basis pending full hearing and later ordered continuation of protection order -- Draft order pertaining to interim child protection order provided that father could bring leave to set aside interim protection order on basis of new evidence -- Application judge granted father leave to bring application to set aside protection order -- Father’s application for leave to appeal was dismissed on basis that it was not in interests of justice to grant it on basis of no-contact undertaking -- Xxxxxxxx judge accepted that arguable grounds existed respecting protection order but that it was not in interests of justice to grant leave because of no-contact undertaking -- Father applied to vary order dismissing his application for leave to appeal -- In support of application to vary, father filed affidavit disclosing that Xxxxx entered stay of proceedings on assault charge -- Resultant of stay, father was no longer bound by undertaking -- Father had applied to Supreme Court of British Columbia to set aside protection order and that application was underway -- Application to vary xxxxxxxx judge’s order dismissed -- Protection orders are form of interim relief, which is why leave to appeal is required -- Court is generally reluctant to interfere with interim orders in family law matters -- Application before case management judge to set aside protection order would be continuing in under two weeks’ time -- Time and resources of parties and judicial system were best spent litigating whether protection order should be set aside in Supreme Court of British Columbia. XxXxxxxxx x. Xxxxxxxx (2021), 2021 CarswellBC 109, 2021 BCCA 23, XxXxxx-Xxx Xxxxxx X.X., Xxxxxxx X.X., Xxxxxx X.X. (B.C. C.A.) [British Columbia]
Subject Title. Family law Classification Number: XII.4.c Child protection -- Permanent custody and wardship -- Access Children’s Aid Society brought protection application with respect to child, now five years old, due to concerns about mother’s drug use and housing instability, leading to final order finding child was in need of protection and placing him in care of mother pursuant to supervision order -- Society removed child from mother’s care and applied for status review seeking extended Society care -- Applicant brought motion for summary judgment -- Motion granted -- Given expert evidence establishing mother’s mental health condition permanently impairing her parenting capacity, child would be placed in Society’s extended care -- Child had never had relationship with father, and it would not be in his best interests to have access with father -- Mother had made extraordinary progress, securing stable home and beating drug addiction, while accessing some of services recommended by Society and consistently exercising access with child in positive manner -- Mother lacked parenting capacity to be full-time caregiver for child, but she and child were attached to one another -- It was clear that contact with mother was beneficial and meaningful to child -- Given evidence suggesting that current xxxxxx parents, who were known to mother, were putting forward plan to adopt child, there was no basis for concluding that making mother access holder would hinder child’s adoption prospects -- Mother’s right of access to child should be reciprocal, with access reduced from its current weekly frequency -- Child would also have right of access to maternal grandparents and to sibling.
