Law Times

Page 14 March 4, 2013 �� Law Times ��� CASELAW policy limit. Motion allowed. Connection to Ontario was speculative and contingent. Insurance contract would only be called upon if damages exceeded New York policy limits. Plaintiff and defendant had no relationship prior to accident. If award exceeded defendant���s policy limits and plaintiff ���s insurer refused to pay, plaintiff would still have recourse in Ontario courts and there would be no need to include defendant in those proceedings. Unfair to allow plaintiff to bootstrap defendants into Ontario action by relying on secondary and contingent claim. Defendants should not have to travel to defend claims relating to accidents sustained at home. Court of Appeal had previously held it was virtually certain that New York courts would refused to enforce Ontario judgment in such circumstances unless defendant voluntarily attorned to Ontario court���s jurisdiction. Court lacked jurisdiction so action stayed. Paraie v. Cangemi (Nov. 9, 2012, Ont. S.C.J., Lederer J., File No. CV-11-422378) 222 A.C.W.S. (3d) 385. Courts PUBLICITY Estate plan deeply private and personal Motion by non-party for order sealing documentation he produced and allowing him to testify in camera. No party was opposed to motion. Nonparty was father of respondent in divorce proceedings and had established trust for benefit of respondent and his two other children as part of his estate plan. Non-party was summonsed to produce documentation about estate plan. Non-party had made production in exchange for confidentiality agreement and maintained information and documentation were highly confidential and sensitive and it would violate his rights if it became part of public record. Non-party had taken considerable steps to keep this information confidential, even from family. Motion allowed. Prior Quebec orders had recognized fundamental privacy rights and protections in respect of an individual���s estate plan. Non-party was not party to proceedings and did not do anything to cause estate plan to become an issue; he was drawn into son���s divorce proceedings. Estate plan was deeply private and personal and there was real and substantial risk these rights would be invaded without a sealing order. Public interest in preserving confidentiality of non-party outweighed public interest in openness of courts. There were no reasonable means to protect non-party���s rights apart from sealing order. As non-party was being asked to testify almost entirely about his estate plan, in camera evidence was appropriate and issue could always be re-visited after his tes- timony. Documents were of no public significance and relevant only to narrow issue in this case. Sealing order granted. Ludmer v. Ludmer (Oct. 19, 2012, Ont. S.C.J., Penny J., File No. 05-FD-304485 FIS) 222 A.C.W.S. (3d) 394. Damages AGGRAVATED DAMAGES Punitive damages of $100,000 appropriate given defendant���s exploitation of plaintiffs Action by sons of deceased, and beneficiaries of his estate, for general, special and punitive damages against their uncle, who was the estate executor and trustee. Plaintiffs, aged 16 and 12 when their father died in 1999. Deceased���s will left half of estate to each plaintiff once younger son turned 21. Defendant advised plaintiffs��� mother funds were being invested and then made no further communications. In 2007, plaintiffs asked for accounting and defendant advised $11,428 was being held for distribution. Defendant ignored requests and court orders to provide proper accounting and no distribution was ever made. Plaintiffs provided detailed inventory of assets they remembered. Deceased was employed at time of death but defendant never itemized his wages or bank accounts. Had estate been properly administered, plaintiffs would have been able to pursue and pay for post-secondary programs of their choice, rather than being limited to cheaper ones and being encumbered by debt. Plaintiffs��� mother had paid all legal fees. Plaintiffs estimated estate value was $25,845 plus interest. Defendant ignored court orders to pass accounts, costs orders, contempt findings and fines, even after being imprisoned for seven days. Defendant noted in default on this action. Action allowed. Defendant committed egregious breach of fiduciary duty and took advantage of plaintiffs, vulnerable minors whose father had just died. Only reasonable explanation was defendant converted estate. Plaintiffs��� estimates accepted and estate valued at $42,156 including interest. Plaintiffs also entitled to $22,889 to reimburse mother for legal fees. Punitive damages appropriate given defendant���s exploitation of plaintiffs, failure to involve plaintiffs in deceased���s funeral, which caused great distress, frustration of plaintiffs��� education plans and ignoring numerous court orders. Defendant���s conduct was outrageous and $50,000 punitive damages sought by plaintiffs were not enough to redress defendant���s conduct. Plaintiffs awarded $100,000 punitive damages. Total award of $165,046 plus $19,308 substantial indemnity costs. Walling v. Walling (Nov. 20, 2012, Ont. S.C.J., Pierce J., File No. CV-12-0179-SR) 222 A.C.W.S. (3d) 395. Debtor and Creditor RECEIVERS Denying buyer���s premium would result in windfall to receiver This was appeal of motion judge���s decision denying appellant auctioneer buyer���s premium. Prior to public auction, auctioneer entered into offer to purchase with purchaser where purchaser agreed to private purchase of substantially all of debtors assets for $8.5 million. Offer did not refer to buyer���s premium. Bill of sale was also executed and was later amended to include statement that purchase price was inclusive of buyer���s premium. After offer closed, auctioneer provided respondent receiver with proposed distribution of purchase price and claimed buyer���s premium. Receiver refused to pay premium and auctioneer commenced lawsuit. Receiver brought motion for directions as to whether auctioneer was entitled to buyer���s premium in connection with sale of debtor���s assets pursuant to court-approved auction service agreement. Motion judge ordered that auctioneer was entitled to 12% buyer���s premium on sale of certain assets to individual but was not entitled to buyer���s premium on sale of assets to purchaser. Appeal allowed. Motion judge erred in finding that 12% buyer���s premium did not apply. Buyer���s premium was unqualified entitlement pursuant to auction service agreement between auctioneer and receiver. Buyer���s premium was mandatory. Revised bill of sale between auctioneer and purchaser was component of offer and documented parties��� agreement that purchase price included buyer���s premium. It would be commercially absurd for receiver to pay buyer���s premium on successful $6.5 million bid at auction but not on private sale that involved $8.5 million. But for mistake of not including buyer���s premium in offer, auctioneer expected to receive one and receiver was obligated to pay one. Awarding buyer���s premium to auctioneer did not produce unfair result. Denying buyer���s premium would result in windfall to receiver. Auctioneer was entitled to buyer���s premium of $700,890. Bank of Montreal v. Barber Glass Industries Inc. (Sep. 25, 2012, Ont. C.A., Winkler C.J.O., LaForme J.A. and Cunningham A.C.J.S.C. (ad hoc), File No. C55056) Decision at 221 A.C.W.S. (3d) 748 was reversed. 222 A.C.W.S. (3d) 402. Family Law CHILD WELFARE Protection concerns too profound to safely return children to father���s care Society sought order placing children in temporary custody of mother subject to terms of supervision by society. Society sought order for father to have access in society���s discretion subject to terms of supervision, www.lawtimesnews.com including for father to provide full disclosure of father���s involvement with criminal justice system in Canada and United States and full disclosure of father���s treatment records from Utah. Father sought order returning children to both parents subject to supervision on weekon/week-off schedule. Mother acted sexually in inappropriate manner with children. Father either actively participated or did nothing to protect children. Father was convicted of sexual assault in Utah and spent three years in diversionary sexual offender treatment program instead of going to jail. Father was convicted in Canada of criminal harassment. There was evidence of similar sexual violence by father that was not adequately explained. Supervision terms requested by society were adequate to place children in mother���s temporary care. Mother was compliant with sexual boundaries with children since mother was warned. Mother co-operated with society since apprehension of children. Protection concerns about father were too profound to safely return children to father���s care and supervision terms were not adequate to protect children. Father showed no insight into protection concerns. Court required more information about father to assess level of risk father posed to children. It was in best interests of children for father���s access to remain at society���s discretion. Access was to be supervised. Protection, safety and best interests of children dictated that society and court have full disclosure of father���s therapeutic and criminal records. Parties were to comply with confidentiality requirements in s. 74(5) of Child and Family Services Act (Ont.). Other restrictions were replaced on information to address father���s privacy concerns. Jewish Family and Child Service of Greater Toronto v. S. (H.B.) (Oct. 24, 2012, Ont. C.J., Sherr J., File No. C57225/12) 222 A.C.W.S. (3d) 409. COSTS Mother���s offer illustrated casual and careless manner in which she approached trial Father applied for costs. Mother applied for child support arrears of $20,030. Final order was made that retroactive child support arrears owed by father to mother should be fixed at $5,000. Father made two offers to settle and mother made one offer to settle. Application granted. Father was successful party. Father���s offers to settle complied with Family Law Rules (Ont.), and were as favourable as result he obtained at trial. Mother���s offer to settle was not reasonable. Mother���s offer illustrated casual and careless manner in which she approached trial. Mother did not take obligation to assess claim seriously and realistically from outset. Hourly rate charged by lawyer was reasonable. Majority of attendances for trial management conferences were not necessary and were caused by mother���s failure to be prepared for trial. Issue was not complex or difficult. Trial preparation costs claimed were excessive given total sum in dispute and outcome achieved at trial. Mother was custodial parent and had no source of income other than child support. Children would suffer hardship if costs award was set-off from ongoing child support. However, they would not suffer hardship if costs award was setoff against child support arrears. Mother was to pay father costs fixed at $5,000, inclusive of fees, disbursements and taxes, which were to be set-off against child support arrears owed by father. Collins v. Garmoe (Oct. 1, 2012, Ont. C.J., O���Connell J., File No. 334/07) Additional reasons to 215 A.C.W.S. (3d) 420. 222 A.C.W.S. (3d) 416. CUSTODY Child���s return would post grave risk of harm Father appealed dismissal of application for return of child. Father was Peruvian and mother was Canadian. Parties were married in 2003 and separated in 2008. Child was born in Peru. Mother claimed that father was abusive. Parents were involved in litigation in Peru relating to custody and access of child. Mother brought child to Ontario pursuant to order that permitted her to travel to Canada for visit. Order required mother to return to Peru but instead she wrongfully remained in Canada with child. Father sought order for child return pursuant to Article 12 of Hague Convention. Trial judge denied father���s request based on ���grave exception��� to return requirement set out in Article 13(b) of Hague Convention. Trial judge found that mother presented sufficient evidence that child���s return to Peru would be expose her to grave risk of being in intolerable situation. Appeal dismissed. Trial judge identified and applied correct legal test to invoke Article 13(b). Trial judge did not err in principle in approach to evidence. Evidence supported findings of fact made by trial judge and conclusion that child���s return would pose grave risk of harm or otherwise place her in intolerable situation. There was no basis to interfere with trial judge���s conclusion that onus under Article 13(b) was met and child should not be returned to Peru. Landman v. Daviau (Oct. 2, 2012, Ont. C.A., Feldman, Sharpe and Ducharme JJ.A., File No. C55015) Decision at 212 A.C.W.S. (3d) 87 was affirmed. 222 A.C.W.S. (3d) 437. PROPERTY Trial judge���s conclusion contrary to binding case law Appeal by mother from trial judge���s treatment of father���s property interest at date of mar-

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