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PAGE 18 Conflict Of Laws FOREIGN JUDGMENTS Italian order should be recognized and enforced in Ontario Plaintiff was trustee in bank- ruptcy for S.. Plaintiff brought motion for summary judg- ment to recognize and enforce judgment issued by Italian court against defendant K. for US $600,000. Defendant K. brought cross-motion to per- manently stay trustee's action. Defendant sought $200,000 in punitive damages and $2 million in special damages for abuse of process through fraud and for misfeasance. Trustee brought claim to strike out counterclaim. Plaintiff's mo- tion was allowed. Order issued recognizing judgment of Ital- ian court and judgment was ordered enforced. Defendant's counter-motion was dismissed including counterclaim. It was presumed real and substantial connection existed between fo- rum, cause of action and parties in case. Information and com- munications that were basis of claim were sent almost entirely to S. in Rome and received by it there. Rome was where infor- mation was acted upon by com- pany's executive management. Loss occurred in Rome. There was connection between plain- tiff and Italian forum. It was not unfair to defendant to find himself before Italian court or to have to defend himself there. There was no viable defence on basis of failure of natural justice or public policy. There was no defence based on fraud. Italian court had all facts necessary to reach conclusion it did. There were no genuine factual issues that would require new trial. There was no reason that Italian order should not be recognized and enforced in Ontario. Sincies Chiementin S.P.A. (Trustee of ) v. King (Nov. 30, 2010, Ont. S.C.J., Whalen J., File No. 07-CV-3380007PD2) 195 A.C.W.S. (3d) 681 (72 pp.). FOREIGN JUDGMENTS Registration of Vermont order was confirmed Motion by husband for order setting aside registration of spousal support order made in State of Vermont. Parties mar- ried in 1983 and separated in 2007. Wife was American citi- zen and husband was Canadian citizen. Vermont order provid- ed that husband pay wife lump sum of $298,332 for past and future spousal support obliga- tions. Motion dismissed. Ver- mont had jurisdiction. Husband attorned to Vermont jurisdiction. Hus- band actively participated in case, giving evidence and be- ing represented by Constitutional Law CHARTER OF RIGHTS Order for parents to submit hair samples was in accordance with principles of fundamental justice Motion for order that respon- dent parents submit samples of hair for purpose of deter- mining their use of cocaine over previous three to six- month period. Child, aged five, ingested co- caine during period of time while he and two siblings in care of parents. Order that respondent parents forthwith submit to drug testing by way of hair analysis. Circumstanc- es of child's having ingested serious drug over period of time combined with history of parent's involvement with cocaine in past raised serious protection concerns. Statutory authority for mak- ing order in s. 41(3.2) of Child and Family Services Act (Ont.), which gives court jurisdiction to impose reason- able terms and conditions. Relief sought in best interests of children. Relief just mini- mally invasive in that it re- quires small sample of hair to be removed from head of each of parents. Although order po- tentially violated respondents' rights under ss. 7 and 8 of Ca- nadian Charter of Rights and Freedoms, such order made in accordance with principles of fundamental justice. Order fell within reasonable limits prescribed by law as justified in free and democratic soci- ety where rights of child to be safe and secure from harm at hands of those charged with responsibility of protecting child as vulnerable being must be balanced against degree of intrusion upon Charter rights of those charged with respon- sibility of protecting child. Children's Aid Society of Halton Region v. I. (Z.) (Oct. 22, 2010, Ont. C.J., Wolder J., File No. 434/10) 195 A.C.W.S. (3d) 1038 (4 pp.). Family Law CUSTODY Not in best interests of child to change current access regime Application by father to main- tain current access regime. Parties married in 2000, had one child and separated in counsel throughout. Registration of Vermont order was confirmed. Husband had reasonable op- portunity to be heard. Ver- mont order was not contrary to public policy. Samis (Guardian of) v. Samis (Nov. 1, 2010, Ont. C.J., Sherr J., File No. DR-50728-10) 195 A.C.W.S. (3d) 995 (13 pp.). 2008. Following separation, it was ordered that parties share joint custody of child, with equal access to both parties. Mother made allegations of sexual impropriety against fa- ther. Mother sought change in access whereby father would have access every second weekend, one overnight access visit per week and one evening access visit per week. Appli- cation granted. There was no reason to change current ac- cess regime. It was not in best interests of child to change current access regime. Evi- CASELAW dence indicated that child was happy and well adjusted, and was thriving under current regime. Allegations of sexual impropriety were unfounded. Vella v. Vella (Dec. 10, 2010, Ont. S.C.J., Hourigan J., File No. 30845/08) 195 A.C.W.S. (3d) 742 (17 pp.). SUPPORT Mother's limited underemployment justified by needs of children Parties lived in common law relationship for ten years and then separated. Parties had three children. Father and mother brought motions and cross-motions for interim rul- ing on child support, among other issues. Each of parties sought to impute salary to other. Mother had always been primary income earner for family. Mother claimed having reduced work time in order to meet children's emotional needs following separation from father. Mother's salary was correspondingly reduced. Section 19(1)(a) of Federal Child Support Guidelines (Can.), permitted court to im- pute income where spouse was intentionally under-employed unless same was justified by needs of child of marriage. Judge found that mother's un- der-employment was justified. Children were demonstrating significant behavioural and psychological problems since separation. Best interests of children dictated that mother's contact time with children be increased at least on tempo- rary basis to overcome turmoil introduced into family life by father's leaving. Loss of income caused by mother's underem- ployment was to be readily made up if father applied self seriously to generating income on behalf of family. As well no financial hardship was to be caused by mother's decision to reduce salary during adjust- ment period to meet needs of children. Judge sanctioned un- deremployment for period not exceeding 12 months. Income imputed to under-employed father. Lauzon v. Kennedy (Nov. 24, 2010, Ont. S.C.J., Annis J., File No. FC-10-1351) 195 A.C.W.S. (3d) 772 (10 pp.). Limitations FOREIGN JUDGMENTS Application was statute-barred Applicant sought to enforce Quebec judgment in Ontario. Respondent was doing work in Quebec and was liable to pay amounts to commission which were peculiar to construction industry in Quebec. Defendant judgment was filed against re- spondent. Respondent failed to pay amounts required un- der judgment. Respondent argued application was statute- barred because application was brought almost three years af- ter judgment became apparent to respondent. Application was dismissed. Limitation period was run against applicant. Two- year limitation period applied as set forth in Limitations Act, 2002 (Ont.). Applicant should www.lawtimesnews.com have been aware of knowledge of respondent well within two- year period. Commission de la Construction du Quebec v. Access Rigging Services Inc. (Nov. 24, 2010, Ont. S.C.J., McLean J., File No. 10-49060; 10-49062) 195 A.C.W.S. (3d) 680 (10 pp.). Planning OFFICIAL PLAN Ontario Municipal Board's decision that application did not constitute conversion of lands to non-employ- ment uses was entitled to deference Ontario Municipal Board found that application of re- spondent to develop certain lands for major retail use did not constitute conversion of lands within "Employment Area" to non-employment uses. In reaching its decision, board was required to deter- mine meaning of "conversion" in Greater Golden Horseshoe Growth Plan and to interpret Official Plan of City of To- ronto. City of Toronto's appeal of board's decision was not dismissed as premature. In ex- ceptional circumstances of this case, Divisional Court decided to determine issue concerning meaning of conversion within Growth Plan, given signifi- cance of that issue not only for parties to this case but for other cases as well. In present appeal, board applied both Planning Act (Ont.), and Places to Grow Act, (Ont.), which were among its home statutes. It also applied Growth Plan and Toronto Of- ficial Plan, which were matters within its specialized expertise in planning. Standard of review of board's decision was reason- ableness. Board's decision was entitled to deference from Di- visional Court. Board's reasons were detailed and intelligible, and they justified conclusion reached. When Official Plan was read as whole and Policy 4.6.4 was read in context, board's conclusion that major retail use was established, au- thorized or contemplated in Employment Areas, subject to location limitations, fell within range of reasonable outcomes. Toronto (City) v. Home Depot Holdings Inc. (Nov. 29, 2010, Ont. S.C.J. (Div. Ct.), Swinton, Nadeau and Harvison Young JJ., File No. 527/09) Decision at 186 A.C.W.S. (3d) 893 was affirmed. 195 A.C.W.S. (3d) 843 (11 pp.). Taxation SALES TAX Trial judge correctly interpreted Retail Sales Tax Act (Ont.) Trial judge correctly interpret- ed Retail Sales Tax Act (Ont.), in finding that Minister of Fi- nance erred in imposing retail sales tax on TTC on basis that it produced, for its own use and consumption, telecommunica- tions "service" pursuant to def- initions of "sale" and "taxable service" under Act. On plain language analysis, TTC had not created telecommunication service it uses itself. On purpo- sive analysis in context of Act as whole, legislation designed February 7, 2011 • Law Times to impose tax on persons who: (1) created taxable telecommu- nication services for others and who sued that service them- selves; and (2) who purchase more telecommunication ser- vices than can use, and who sell excess to others. TTC's sys- tem not within either category. TTC's use of telecommunica- tions system was not taxpayer's "own use" of service. Toronto Transit Commission v. Ontario (Minister of Finance) (Dec. 8, 2010, Ont. C.A., Moldaver, Feldman and Sim- mons JJ.A.) Decision at 177 A.C.W.S. (3d) 1125 was af- firmed. Appeal reasons brief. Summary derived from lower court judgment. 195 A.C.W.S. (3d) 889 (1 p.). Trusts And Trustees TRUSTEES Clause relied on by executor in support of compensation claim was not clear Applicants were personal friends of testator. Testator died. Applicants were named executors in testator's will. Ap- plicant G.A. was lawyer. Will contained clauses accounts, pertain- ing to pre-taking of executor compensation and payment of professional fees. Applicants submitted claim- ing compensation for services rendered to estate. Objectors were children of testator and beneficiaries named in will. Objectors disputed accounts submitted by G.A. alleging that G.A. was not justified in charging legal hourly rate for time spent in administration of estate, including non-solicitor work. Judge found G.A. to be entitled only to legal hourly rate when performing solici- tor work. Case law sanctioned allowance of trustee fixed by instrument only if instrument was clear on matter. Clause of will relied on by G.A. in sup- port of compensation claim was not clear. As well hours spent by G.A. were not justi- fied. Estate was not large and did not have complex legal problems. Judge reduced hours by 25% and allowed hourly rate of $137 per hour. Arrand v. MacKenzie (Dec. 13, 2010, Ont. S.C.J., Roy J., File No. 09-CV-20536E) 195 A.C.W.S. (3d) 898 (7 pp.). ONTARIO CRIMINAL CASES Breathalyzer REFUSAL TO PROVIDE SAMPLE Accused did not try to blow long enough to provide suitable sample Trial of accused for impaired driving and for refusing to comply with breath demand. Police officer stopped accused after he saw that she drove er- ratically. Officer smelled strong smell of alcohol when he ap- proached accused. Her face was flushed, she had heavy eyelids, she could not focus on him