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Law Times • June 22, 2009 due to concerns about mother's cocaine and alcohol use. Mother found to be responsible parent when sober, with community support. Children were reinte- grated to her home but re-appre- hended after mother relapsed. Mother continued to relapse after apprehension of children, missing access visits when using cocaine. Youngest child appre- hended at birth. Mother, father of two older children, father of youngest child and children all tested positive for cocaine. Mother put forth alternate placements with her mother, fa- ther of older children and aunt. Society argued children needed permanent order as they had been in care for 20 to 22 months and other proposed caregivers had already shown they were unable to protect children from mother's drug use. Mother's relationships with both fathers had been marked with domestic violence. Application allowed. While mother was a good par- ent when sober, she had been an addict for 20 years and showed continuous pattern of relapse. Mother's addiction was her ul- timate priority as evidenced by missing access visits to party, which devastated children. Fa- ther of two older children had been subject of restraining or- der, missed access visits and used drugs. Neither mother nor father could properly care for children. Mother's mother did not move in timely fashion in submitting care plan, then withdrew it after an argument with daughter, demonstrating inability to provide stable envi- ronment for children. Aunt had not submitted real care plan. In best interests of children to make order of Crown wardship with no access. Finding of pro- tection made for youngest child who was also found to be non- Catholic and non-Indian. Children's Aid Society of Hamilton v. V. (L.) (Apr. 14, 2009, Ont. S.C.J., Mazza J., File No. C903/03) Order No. 009/105/438 (22 pp.). CUSTODY Child was habitually resident in India Motion by father for custody of child. Mother and father were married in India shortly before having child in Canada. Mother and father agreed to have child return to live with family in In- dia. Child's maternal grandpar- ents assumed custody of child in India. Mother was murdered by father's father. Father claimed child was only supposed to visit India for short time before re- turning to Canada. Motion dismissed. Court did not have jurisdiction to make custody order in this case. Child was not physically present in Ontario when motion was commenced so s. 22(1)(b) of Children's Law Reform Act (Ont.), did not ap- ply. Section 23 of Act did not apply since child was not physi- cally present in Ontario when motion was heard. Section 22(1)(a) of Act did not apply since child was not habitually resident in Ontario when mo- tion was commenced. Father's evidence that child was sent to India on temporary basis was not believed. Child was habitu- ally resident in India in accor- dance with s. 22(2)(c) of Act. Child had resided with mater- nal grandparents in India on permanent basis for signifi- cant period of time. Evidence of paternal grandmother in- dicating she had care of child was not believed. In any event, jurisdiction would have been declined pursuant to s. 25 of Act as India was more appro- priate jurisdiction. Dhillon v. Benipal (Mar. 27, 2009, Ont. S.C.J., Snowie J., File No. FS-09-0692-00) Order No. 009/092/165 (50 pp.). DOMESTIC CONTRACTS Agreement did not link obligation to maintain life insurance to obligation to pay support Issue raised was whether provi- sion in separation agreement requiring husband to maintain life insurance policy benefiting wife was mere security for hus- band's obligation to pay support or whether it constituted inde- pendent obligation. Agreement required husband to pay spousal support until wife reached 65 years of age and to maintain life insurance policy in amount of $100,000 until he was no longer obligated to contribute to wife's support. When husband died, he had life insurance in place. Amount designated for wife's benefit was only $43,507.15. Since wife was only 56 years old, husband in breach of terms of insurance obligation. Wife brought application against hus- band's estate and against his sec- ond wife in her personal capacity, claiming entitlement to short- fall of insurance proceeds. Trial judge found that wife entitled to full $100,000 under agree- ment and awarded her shortfall to be paid out of husband's es- tate. Husband's second wife ap- pealed, arguing that insurance policy intended not as indepen- dent benefit for wife but as secu- rity for any outstanding support obligations at time of husband's death. Appeal dismissed. Mere fact that obligation to maintain insurance linked to obligation to pay spousal or child support does not mean that damages de- fined by amount of support ow- ing. Language of agreement spe- cifically precluded husband from adjusting amount of insurance designated in favour of wife to account for diminishing future support obligations. Agreement simply did not link obligation to maintain life insurance to obli- gation to pay support. Turner v. DiDonato (Mar. 18, 2009, Ont. C.A., Cronk, Gillese and Epstein JJ.A., File No. C48889) Appeal from 167 A.C.W.S. (3d) 756 dismissed. Order No. 009/082/089 (13 pp.). Mental Health INCOMPETENT PERSONS History of antagonism prevented any of three daughters from acting as guardian of mother's property Application by respondents, mother and one daughter, for order appointing daughter as CASELAW guardian of mother's property. Applicants were two other daughters. All parties agreed mother lacked capacity to man- age property independently but applicant daughters argued for appointment guardian. of Application independent dis- missed. Respondents' proposal was not practical or in mother's best interests. At present, moth- er's assets were diffused amongst feuding daughters with no workable arrangement to share information. History of antago- nism prevented any daughter from acting as guardian. While mother opposed appointment of independent guardian, she was no longer able to appreciate which course of action would be in her best interests. BMO trust appointed as independent guardian. Bennett v. Gotlibowicz (Apr. 9, 2009, Ont. S.C.J., Brown J., File No. 03-16/08) Order No. 009/103/100 (6 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY Sidewalk was in reasonable state of repair Action by plaintiff, who fell on city sidewalk, for damages under Municipal Act (Ont.). Plaintiff was walking quickly along sidewalk, which had no snow or ice accumulation when she suddenly fell flat on her face. Plaintiff testified that she looked back and saw hole in sidewalk, so believed she fell after stub- bing toe on edge of hole. Plain- tiff injured wrist, from which she quickly recovered, but had extensive facial bruising and had to be hospitalized twice for nosebleeds. City inspector de- scribed inspection process and testified that sidewalk was not in hazardous condition. Action dismissed. Photographs taken demonstrated hole was really more of a crack with a divot. Maximum depth was one inch so it was difficult to envision how plaintiff had caught her toe in it. However, plaintiff was an honest and credible witness and divot was accepted as cause of fall. Action dismissed, however, because sidewalk was in reason- able state of repair and defen- dant could not have reasonably known of any hazard. Vicari v. Toronto (City) (Apr. 8, 2009, Ont. S.C.J., Aston J., File No. 04-CV-262647CM2) Or- der No. 009/103/056 (10 pp.). Real Property EASEMENTS Easement by prescription was not established Plaintiff and defendants were owners of adjacent properties. Laneway located at rear of defen- dants' lot opened into rear yard of plaintiff's property. Defen- dants erected fence within rear property line obstructing access to parking space at rear of plain- tiff's property. In action against defendants plaintiff claimed to have acquired easement by pre- scription arising from lengthy use of laneway by plaintiff's predecessor in title. Action dis- missed. Party relying on doctrine www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM of lost modern grant must estab- lish continuous use of easement by clear evidence. Judge found that use of laneway by plaintiff's predecessor was not continuous and open over requisite 20-year period. At best, evidence estab- lished sporadic use of claimed easement. Stoddart v. Kubiak (Mar. 19, 2009, Ont. S.C.J., Stinson J., File No. 06-CV-321224 SR) Order No. 009/085/043 (9 pp.). Sale Of Land DEPOSIT Applicant entitled to rescind agreement of purchase and sale for failure to disclose registered easement Real estate transaction failed. Easements over driveways at front of houses and over each backyard were registered on title to five properties. There was no restriction on uses to which easement might be put. Applicant claimed respondent was unable to deliver good title to property. Applicant claimed return of deposit. Respondent claimed titled was satisfactory and failure to close was ap- plicant's fault. Easement over backyard and driveway was not disclosed in agreement of purchase and sale. Respondent was required to return deposit. Applicant was entitled to re- scind agreement as result of registered easement that was not disclosed in agreement of purchase and sale. Hallinan v. Coughlin (Mar. 23, 2009, Ont. S.C.J., Gray J., File No. 7579/08) Order No. 009/092/160 (8 pp.). PAGE 15 Wills And Estates ESTATE ADMINISTRATION Applicants were qualified to be appointed as estate administrators as deceased's next of kin Applicants were parents of de- ceased. They sought to be ap- pointed estate trustees with obli- gation to determine disposition of son's remains. Respondent L.B. initiated statutory declara- tion to prevent cremation of de- ceased whom she claimed had lived in conjugal relationship with her. She asserted deceased had converted to Islam and cre- mation was contrary to its laws. Application allowed. Duty to dispose of remains fell upon ad- ministrator of deceased's estate. Religious law had no bearing on court's decision as to who to appoint as estate trustee. Applicants were qualified to be appointed as estate admin- istrators as next of kin of de- ceased pursuant to s. 29(1)(b) of Estates Act (Ont.). On other hand respondent L.B. had no basis to claim appointment as estate trustee. Judge found that respondent L.B. was not in conjugal relationship with deceased immediately before time of death. Deceased and respondent L.B. did not enter into form of marriage recog- nized in law. As well deceased lived majority of life with ap- plicants and was residing with them at time of death. L. (Z.) v. B. (L.) (Apr. 2, 2009, Ont. S.C.J., Gunsolus J., File No. 60287/09) Order No. 009/097/012 (7 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. 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