Law Times

Law Times • JuLy 23, 2018 Page 15 www.lawtimesnews.com had history of being involved in multiple violent relationships with men and both of children's fathers were physically abusive. In February 2016, children's aid society commenced protection application seeking that daugh- ter was to be placed with her paternal grandmother, S, and that access to child by parents was to be at discretion of soci- ety. Son was ordered to be made Crown ward with no access by mother or father. In September 2016, society filed amended ap- plication seeking that daughter be placed in S's custody, that access to daughter by her par- ents be at S's discretion and that son's father was to have no access to daughter. Society did not change request that son be made Crown ward with no ac- cess by mother or his father. At trial, neither of fathers filed answers and both were noted in default, and neither of them were to have any involvement with either child. S attended at opening of trial and did not file answer but she and society were fully cooperating. Daughter had been in S's care since November 2015 initially under kinship arrangement and later under temporary order. Evidence overwhelmingly supported agreement between society and S that child should be placed in S's custody under s. 57.1 of Child and Family Services Act. Mother did not attend court and fell out of touch with soci- ety despite society's reasonable efforts. Daughter was in need of protection and sole custody of child was granted to S. Ac- cess to daughter by either of her parents was to be in S's discre- tion. Son was in need of protec- tion and was made Crown ward without access. Evidence over- whelmingly supported finding that both children were in need of protection. Society fulfilled its obligations to assist family and children and attempted to implement safety plans. De- spite society's reasonable and sustained efforts to work with parents, risk concerns had not abated. Daughter's father had not been actively or benefi- cially involved in daughter's life and had been noted in default. Son's father was violent, abu- sive, lacked insight and matu- rity, and had harmed daughter. Mother lacked insight with re- spect to exposing her children to violence and had partici- pated in violence that daughter was exposed to, and failed to protect daughter. Daughter had been in S's care since November 2015 and was doing well in that placement, and S would con- tinue to act in daughter's best interests and protect her from negative or harmful contact by any adult. Proposal by son's pa- ternal grandmother that son be placed in her care was unrealis- tic, unsafe, and contrary to best interests of 21-month old child. Children's Aid Society of Hamilton v. S. (A.) (2017), 2017 CarswellOnt 5282, 2017 ONSC 2226, A. Pazaratz J. (Ont. S.C.J.). COSTS Family property applications Executor of estate awarded costs on full indemnity basis Applicant who was beneficiary of respondent estate brought motion, for leave to extend limitation periods. Beneficiary wished to file for equalization of property. Beneficiary also sought order suspending dis- tribution of estate, and for pay- ment of costs of expert in valu- ation. Beneficiary moved for this relief unsuccessfully. Beneficiary claimed that no costs should be payable by her, as deceased did not adequately provide for her and estate was author of litiga- tion. Beneficiary also claimed that her offer to settle motion should be taken to into account in costs decision. Executor of estate sought costs as successful party, on full indemnity basis as his offer to settle was favour- able to beneficiary. Costs sub- missions made by both parties. Costs awarded on full indem- nity basis. Estate was wholly suc- cessful. Beneficiary did not seek unreasonable relief, but did not establish that delay in seeking relief was reasonable. Beneficia- ry also should have accepted of- fer to settle, on issue of extension of time. Time spent by counsel for executor was excessive. Lim- ited amount of time spent by counsel for beneficiary was not fair measure of necessary time, either. Beneficiary's motion ma- terials were inadequate. Costs were properly awarded on full indemnity basis, in amount of $15,000. Lundy v. Lundy Estate (2017), 2017 CarswellOnt 7816, 2017 ONSC 3224, Liza Sheard J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 5520, 2017 ONSC 2101, L. Sheard J. (Ont. S.C.J.). SUPPORT Child support under federal and provincial guidelines Change in circumstances existed because mother became custodial parent Parties married in 1988, had two children, and separated in 2002. Court order in 2007 re- quired father to pay spousal sup- port in amount of $2,000 per month, and required mother to pay child support based on her income of $65,000 per year. Cir- cumstances changed as children moved between parents' resi- dences and went to university. Mother's employment contract was terminated in 2005, and at time of motion older child at- tended medical school outside of Canada, and younger child attended university. Mother brought motion for variation of child support, retroactive to 2009. Motion dismissed. Since mother became custodial par- ent in 2009, change in circum- stances existed. Retroactive support was not appropriate as mother accepted lower amount of child support in 2009, father did not engage in blameworthy conduct, and retroactive award would cause undue hardship. Older daughter ceased to be child of marriage on January 1, 2015, therefore no support was payable. Younger child was still child of marriage as she was pursuing undergraduate de- gree. Father was ordered to pay child support from November 1, 2015, but reduced by 50 percent as child resided at university, as well as 85 percent of child's ex- traordinary expenses. Hess v. Hamilton (2018), 2018 CarswellOnt 1010, 2018 ONSC 661, M.D. Faieta J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE No-fault benefits No difference between "material contribution to the risk of injury" and "material contribution to the disabilities suffered" Applicant A sustained injuries following two motor vehicle ac- cidents; first accident occurred on July 2, 2005 and second oc- curred on July 12, 2005. A sub- mitted application for statutory accident benefits on disability certificate to respondent insurer J Co. based on second accident, claiming non–earner ben- efit ("NEB") and housekeeping and home maintenance ben- efit ("HH"). J Co. confirmed receipt of certificate in 2006 but requested updated dis- ability certificate in early 2011, which A then submitted. J Co. determined, based on conclu- sions of its assessors, that A was not entitled to EB payment and did not address HH claim. A brought application for arbitra- tion under Statutory Accident Benefit Schedule ("SABS"). Ar- bitrator dismissed application. Director's delegate dismissed A's appeal and upheld the De- cision. A brought application for judicial review. Application dismissed. Arbitrator held that A had failed to establish that second accident was cause of injuries that he continued to experience and that A had not established proof of entitlement to either NEB or HH payments claimed. A's problems of proof regarding cause of his injuries were not related to either lapse of time or to multiple accidents that he suffered but rather to conf licting evidence regarding his condition before and after two accidents and failure of his treating physician to testify, which was necessary to permit reliance on his statements in disability certificates he signed. In present circumstances, there was no difference between con- cept of "material contribution to the risk of injury" and arbitra- tor's consideration of whether there was "material contribu- tion to the disabilities suffered" as result of accident. Latter was reasonable approach to require- ment of SABS that A establish that he sustained impairment as result of second accident. Sec- tion 12(1)1 of SABS required that A establish that second ac- cident contributed to injuries on balance of probabilities and that it was material contribution. Arbitrator's conclusions were reasonable. Agyapong v. Jevco Insur- ance Company et al (2018), 2018 CarswellOnt 2140, 2018 ONSC 878, Wilton-Siegel J., Thorburn J., and Ellies J. (Ont. Div. Ct.); application for judi- cial review refused (2016), 2016 CarswellOnt 1966, John Wilson Member (F.S.C.O. Arb.). CONTRACTS OF INSURANCE Cancellation and termination Contracts of insurance remain in force until compliance with Insurance Act requirements for termination are met Insurer E issued motor vehicle policy to V which required installation and use of "auto- graph" device that would record driving information. Some five weeks before end of second six- month term, E informed V that it did not intend to renew for third term because he had failed to register to receive device in previous 12 months. V obtained regular motor vehicle policy from insurer A but cancelled that policy before he was in- volved in motor vehicle accident in relation to which he claimed and received statutory accident benefits from Motor Vehicle Accident Claims Fund. Prov- ince, on behalf of Minister of Finance, administrator of Fund, brought proceeding disputing obligation to pay in priority to E and A. Parties agreed to refer issue of E's priority to arbitrator who found that E's notice of non- renewal did not satisfy require- ments of s. 236 of Insurance Act or Declination Rule 56 because it had been served prematurely and was, therefore, invalid. Ar- bitrator also found, however, that policy issued by E had not been in force at time of accident with result E was not priority insurer. Province appealed. E cross-appealed. Appeal allowed; cross-appeal dismissed. Arbi- trator's finding that E's notice of non-renewal was invalid be- cause facts in support of decli- nation, failure to register to re- ceive device within previous 12 months, were not in existence at time notice was given was reasonable. Arbitrator's finding that policy issued by E had not been in force at time of accident was, however, not reasonable. Words of s. 236(5) of Act, when read in context of provisions addressing termination or non- renewal of contracts, and when given their grammatical and ordinary meaning consistent with scheme of Act, mean what they say. Contracts of insur- ance remain in force until there is compliance with ss. 236(1), (2) and (3) of Act. Provision clearly displaces common law principles applicable to renew- als of lapsed contracts. Since E had never given valid notice of non-renewal, V's policy with E remained in force at time of accident. Arbitrator's finding policy automatically renewed at end of second term, but for six months, at most, was in error. E was priority insurer responsible for payment of statutory acci- dent benefits. H.M. The Queen in Right of Ontario v. Axa Insurance Canada (2017), 2017 Carswel- lOnt 8326, 2017 ONSC 3414, P.J. Cavanagh J. (Ont. S.C.J.). Judges and Courts JURISDICTION Superior courts Fact that motion before single judge of Divisional Court led to dismissal of entire application did not mean leave to appeal to court of appeal was available Energy company obtained ap- proval from Ministry of the En- vironment and Climate Change to construct certain wind tur- bines subject to conditions re- lating to protection of habitat of particular species of turtle. Letter from branch of ministry indicated construction that was proceeding at one site outside of desired period was unavoid- able and that ministry was monitoring situation. Public interest group brought applica- tion for judicial review of this purported "decision". Group unsuccessfully brought motion for stay of decision pending determination of application. Ministry and company suc- cessfully brought cross-motion for dismissal of application as having no basis. Group brought motion for leave to appeal to court of appeal. Group brought motion for stay of approval pending determination of mo- tion for leave to appeal. Motion quashed. Since leave to appeal was being sought from motion judgment of single judge of Di- visional Court, s. 21(5) of Courts of Justice Act required group to bring motion to panel of Divi- sional Court to set aside or vary judgment. Fact that motion be- fore single judge of Divisional Court led to dismissal of entire application did not mean leave to appeal to court of appeal was available under s. 6(1)(a) of Act. Prior authority that indicated "most sensible interpretation" was that terms in s. 21(5) of Act should "take precedence over and exclude the general terms of " appeal right in s. 6(1)(a) of Act was agreed with. Structure of Act required person to ex- haust remedial jurisdiction of Divisional Court before coming to court of appeal. Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change) (2018), 2018 Carswel- lOnt 9855, 2018 ONCA 576, P. Lauwers J.A. (Ont. C.A.). CASELAW

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