Law Times

Page 18 April 15, 2013 Law Times • CASELAW Kingdom pursuant to CPA was marriage as defined by CMA. Parties were spouses as defined by Divorce Act (Can.), and Family Law Act (Ont.). Hincks v. Gallardo (Jan. 7, 2013, Ont. S.C.J., Mesbur J., File No. FS-11-367046) 223 A.C.W.S. (3d) 832. Education COLLEGES AND UNIVERSITIES Academic advisors could not be sued in their personal capacities Motion by two academic advisors for summary judgment dismissing student's actions against them. Student began experiencing psychiatric and academic difficulties in 2006. Student met with first academic advisor who referred him to psychiatrist. Student was diagnosed with paranoid schizophrenia in 2007 and was strongly encouraged to take medication. Student did not accept diagnosis and did not agree that he needed medication. Between 2008 and 2010, student met with second academic advisor and made bizarre complaints about professors and fellow students. Student commenced action against academic advisors for damages for negligence. Motion granted. Evidence indicated academic advisors had done all they could to help patient. In any event, academic advisors could not be sued in their personal capacities. In case of one academic advisor, action had been commenced after expiration of limitation period. Kim v. Choi (Dec. 4, 2012, Ont. S.C.J., Wilson J., File No. CV11-430125; CV-11-417575; CV-12-444262; CV-12-444549; CV-12-444551; CV-12-4441) 223 A.C.W.S. (3d) 885. Family Law CHILD WELFARE Requested access definitely would impair adoption opportunities Appeal by Children's Aid Society ("CAS") from part of judgment granting mother access to child who was made Crown ward. Child was born in 2001. CAS had been continuously involved with mother and child since 2004. Concerns included substance abuse, domestic violence, and inadequate care of child. In 2007, child reported that mother's partner had slapped her on back about 15 times and left marks. Child was apprehended in January 2008 due to deplorable living conditions and drug use. Mother never managed to overcome her problems. CAS successfully applied for order of Crown wardship but trial judge also granted mother access that included unsupervised overnight access. Trial judge had applied legislative amendments relating to access that had come into force after trial but before judgment was rendered. Appeal allowed. Part of judgment granting mother access was set aside. Trial judge's application of post-trial legislative amendments had not in itself amounted to error of law. Trial judge had erred in law in assuming amendment allowing for access in context of adoption had effect of no longer requiring person seeking access to establish that access would not impair opportunities for adoption. Relevant test, approach, and onus for this issue remained unchanged. Evidence in this case should have led trial judge inexorably to conclusion that requested access definitely would impair adoption opportunities. Trial judge had further erred in finding relationship between mother and child was beneficial and meaningful to child. Trial judge seemed to have relied primarily if not exclusively on close and loving bond between mother and child. Such considerations were not sufficient, especially in face of evidence that uncertainty created by ongoing access was causing child significant stress. Nothing indicated consideration of whether relationship between mother and child presented any significant advantage from child's perspective. Finally, allowing mother unsupervised overnight access was hard to reconcile with finding that child would be at risk if returned to mother's care. Huron-Perth Children's Aid Society v. F. (J.) (Nov. 7, 2012, Ont. S.C.J., Leach J., File No. 11194-AP) 223 A.C.W.S. (3d) 820. Child had care workers who spent more time with him than mother did Application by mother for openness order for purpose of resuming access. Mother had child in 2006 at 17 years of age while very immature for her age. Mother and child lived with paternal aunt until child was placed with great grandmother in April 2008. Child was apprehended by Children's Aid Society ("CAS") in July 2009. Child was made Crown ward with access in March 2010 with mother's consent. Child was diagnosed with autism and global developmental delays at some point. Child made significant progress and was considered adoptable. No family members were interested in adoption. Mother failed to exercise access for considerable period of time due to housing issues. Mother chose to miss Family Group Decision Making meeting since she opposed adoption. Mother was served with notice of termination of access. Application dismissed. Mother had notable good qualities but could not offer certainty of tomorrow much less next weeks and months and years. Mother had not been able to achieve structure, routine, and calm in her own life and so could not offer it to child throughout his. Lack of access for over one year was particularly significant when dealing with four-year-old child. Child had numerous care workers who had spent more time with him than mother. Historical relationship that child had with mother could not objectively be as meaningful and unique for him now as it undoubtedly was for mother. It was unwise to permit reintroduction of mother into child's life at this time. M. (L.) v. Children's Aid Society of Simcoe (County) (Nov. 27, 2012, Ont. S.C.J., Eberhard J., File No. FC-08-65-01) 223 A.C.W.S. (3d) 819. CUSTODY Existing supervision overly restrictive and limited relationship between child and father Father applied to vary access. Parties had one child. Parties separated five months after child was born. Mother claimed that she left relationship because of father's anger and temper issues. She claimed father assaulted her while she was pregnant. Father had exercised regular access to child but it had been supervised. Father was in new relationship and he lived with new partner and her child. Father sought order that time with child be extended to include overnight access. Application granted. Child had been in care of mother since birth and she had always been primary caregiver. Status quo favoured keeping child in primary care of mother. No custody order was made at this stage but status quo was to be maintained. Father had taken courses and had raised his awareness regarding child's needs. There were no concerns with father being exposed to new partner's child. Risk of violence could be managed. Existing supervision was not necessary and was overly restrictive and limited relationship between child and father. Father's contact to child could be overseen. Access should gradually increase to include overnight access. Morey v. Morey (Nov. 29, 2012, Ont. S.C.J., Johnston J., File No. 494/11) 223 A.C.W.S. (3d) 825. Fact that proceedings commenced in Bulgaria first only one factor to consider Husband sought to stay or dismiss action on grounds that he had commenced similar proceeding in Bulgaria and it was more appropriate forum. Parties were born in Bulgaria, were Bulgarian citizens and married in Bulgaria in 1997. They owned apartment in Bulgaria. They had one child who was born in Bulgaria. Parties moved to Canada in 2006. They purchased condominium, which was in wife's name. Parties separated in 2012 and husband moved back to Bulgaria. Wife and child remained in Ontario. Husband brought action in Bulgaria for divorce, custody and access. Wife brought action in Ontario for divorce, custody and access. Application dismissed. Ontario clearly had jurisdiction over all issues raised in applicawww.lawtimesnews.com tion. Fact that proceedings were commenced in Bulgaria first was only one factor to consider. Ontario had jurisdiction related to child's custody and access. It might be that both Bulgaria and Ontario courts had jurisdiction to entertain divorce. However, Ontario was more appropriate forum. Parties resided in Ontario for most recent six years. Child resided in Ontario. He went to school, had friends, received medical attention and engaged in activities in Ontario. Potential witnesses in relation to child's life were in Ontario. Ontario was jurisdiction in which most recent evidence connected to child's best interests was located. Custody and access were most important issues and should be litigated in Ontario. Ontario was parties' last jurisdiction of common residence. Family home was located in Ontario. There was also potential juridical disadvantage to wife if divorce was granted in Bulgaria, as it would bar her from seeking spousal support in Ontario. Husband was able to travel back and forth from Bulgaria to Ontario while wife recently obtained minimum wage employment and could not afford to travel to Bulgaria to pursue claims. Husband failed to establish that Bulgaria was more appropriate forum. Gyuzeleva v. Angelov (Nov. 22, 2012, Ont. S.C.J., Mackinnon J., File No. FC-12-1893) 223 A.C.W.S. (3d) 828. Landlord and Tenant OVERHOLDING TENANT Tenant not entitled to remain in possession under overholding clause absent landlord's consent Landlord appealed application judge's decision that tenant was validly overholding pursuant to lease. Parties entered into written lease of commercial premises. Term of lease was for five years commencing January 1, 2007 and ending December 31, 2011. Lease contained surrender clause and overholding clause. Landlord gave tenant written notice that it required premises on January 1, 2012 but tenant remained in possession. Landlord changed locks and removed tenant's property from premises. Tenant brought emergency application seeking declaration that it was entitled to re-enter premises. It claimed to be overholding tenant and that lease had become monthto-month tenancy, which landlord had not given notice to terminate. Application judge found in favour of tenant. Application judge found that tenant was validly overholding and was entitled to re-enter premises. Appeal allowed. For overholding tenancy to arise, landlord must agree that tenant may stay in premises, which was normally evidenced by landlord's acceptance of rent. Overholding clause in commercial lease that did not refer to landlord's acceptance of rent had been consistently interpreted as effectively implying that term. To interpret overholding clause at issue here in same way that such clause had always been interpreted and understood accorded with principles of commercial efficacy and good business sense. Interpreting overholding clause in lease in same way that clause had always been interpreted and understood also gave full effect to surrender clause. Overholding clause did not extend lease. It specifically provided not that lease continued but that new monthly tenancy arose. Properly interpreted, if tenant overholds with landlord's consent then landlord effectively waived tenant's obligation to vacate. Without waiver, tenant was obligated to comply with surrender clause. Landlord here made it clear that it required premises by end of term. Tenant remained in possession without landlord's consent. Landlord did not create new tenancy with tenant but signed lease with another tenant. Having refused to deliver vacant possession at end of term, tenant became trespasser. Tenant was in breach of obligation to deliver vacant possession of premises at end of term of lease. Tenant was not entitled to unilaterally remain in possession under overholding clause absent evidence that landlord consented. AIM Health Group Inc. v. 40 Finchgate Limited Partnership (Nov. 20, 2012, Ont. C.A., Feldman, Gillese and Epstein JJ.A., File No. C54997) Decision at 210 A.C.W.S. (3d) 784 was reversed. 223 A.C.W.S. (3d) 875. FEDERAL COURT OF APPEAL Arbitration STAY OF PROCEEDINGS No basis to conclude that claims could not be determined by arbitration Appellant appealed Federal Court Judge's decision staying action. Appellant was a small business owner registered as independent business owner under umbrella of respondent. Appellant signed registration agreement that included arbitration agreement where parties agreed to submit any possible claims to arbitration. Appellant commenced proceedings in Federal Court of Canada pursuant to s. 36 of Competition Act (Can.) ("CA"). Appellant began proposed class action against respondent claiming that business practices were in violation of ss. 52, 55 and 55.1 of CA. Respondent filed motion to dismiss or stay action and to compel arbitration. Judge first determined that substantive issue raised by motion had to be determined by Federal Court and not by arbitrator. Federal Court Judge concluded that arbitration agreement was ap-

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