Law Times

PAGE 18 owner" of aircraſt. Termination of corporation' tificate was not relevant to status as "operator". Statutory require- ments for detention remedy were satisfied. Skyservice Airlines Inc. (Re) (May 2, 2012, Ont. C.A., O'Connor A.C.J.O., Cunningham A.C.J.S.C. (ad hoc) and LaForme J.A., File No. C53721) Decision at 202 A.C.W.S. (3d) 232 was af- firmed. 214 A.C.W.S. (3d) 665 (40 pp.). s air operator cer- Appeal Committee concluded to ex- pose patients to unacceptable risks for elective procedure was inconsistent with acceptable practice. Committee released penalty order. Committee or- dered two-year suspension of appellant' STAY PENDING APPEAL Public would be put at risk if stay granted istration and imposed terms and conditions on certificate for indefinite period. Appel- lant brought motion for stay of penalty order of committee pending appeal from commit- tee' s certificate of reg- Appellant sought order allow- ing appellant to perform and/or supervise no-surgical cosmetic procedures. Motion was dis- missed. Appellant did not show appellant would suffer irrepa- rable harm of nature to warrant stay. Balance of convenience did not favour appellant. Public would be put at risk if stay was granted. Yazdanfar v. College of Physicians and Surgeons of Ontario (Apr. 24, 2012, Ont. S.C.J. (Div. Ct.), Sanderson J., File No. 34/12) 214 A.C.W.S. (3d) 995 (17 pp.). s decision and penalty order. Bankruptcy and Insolvency DISCHARGE Bankrupt's vehicle left road and collided into residence occupied by three creditors opposing discharge. Bankrupt pleaded guilty to driving while under influence. Creditors brought civil action against bankrupt. Bankrupt made assignment in bankruptcy. Stay was lifted for action. Ac- tion had not yet proceeded to judgment. Application for discharge was adjourned until specified date at which time bankrupt could bring applica- tion back for hearing. If credi- tors had not moved civil action through to judgment, creditors might find it difficult to per- suade judge to adjourn appli- cation further. Reason bank- rupt made assignment was to mitigate or eliminate finan- cial consequences of damages bankrupt was alleged to have caused as result of drunk driv- ing. Couto (Re) (May 22, 2012, Ont. S.C.J., Brown J., File No. 32- 1389725) 214 A.C.W.S. (3d) 693 (7 pp.). mitigate consequences of damages caused as result of drunk driving Bankrupt made assignment to Applicants achieved success with respect to their claims against respondent. Applicants sought order requiring respon- dent substantial indemnity basis due to respondent' Applicants entitled to costs on s reprehensible conduct Civil Procedure COSTS costs of these proceedings in amount of $454,686 on substan- tial indemnity basis. Position of applicants was supported by Public Guardian and Trustee ("PGT") which also sought to recover their costs from re- spondent. PGT sought portion of its costs calculated on partial indemnity basis in amount of $20,000 plus disbursements of $2,253.95 and HST of $2,600 for total sum of $24,854. Respon- dent' foundation to pay their precipitated this application. Applicants were entitled to their costs on substantial indemnity basis throughout these pro- ceedings primarily because of respondent' s reprehensible conduct tained allegations of dishonest and deceitful behaviour against applicants; respondent' s reckless and sus- misrepresentations of fact and early offer to settle. Respondent' allegations of dishonest and de- ceitful behaviour were made without any evidentiary foun- dation and in face of their own documents that clearly contra- dicted assertions of its sole depo- nent. Applicants and PGT were awarded their costs as claimed. These costs were to be paid from funds to be transferred to VON Ontario In Trust in event that these amounts were not paid by or on behalf of respondent with- in 30 days of award. This further order was without prejudice to applicants and PGT to claim unpaid amounts of such costs awards against insurer for re- spondent foundation, directors for respondent foundation and/ or their insurer. Victoria Order of Nurses for Can- ada v. Greater Hamilton Well- ness Foundation (Mar. 7, 2012, Ont. S.C.J., Beaudoin J., File No. 09-46843) Additional s serious s to 209 A.C.W.S. (3d) 475. 213 A.C.W.S. (3d) 730 (33 pp.). reasons Motion by father for order for variation of custody of child. Parties commenced cohabita- tion in 2002, child was born that year, and parties separated within weeks following child' Child no longer had real and substantial connection with Ontario Conflict Of Laws JURISDICTION birth. Child lived primarily with mother following separation. In 2006, mother was granted sole custody of child. In 2007, moth- er moved with child from On- tario to Nova Scotia. Mother was charged with child abduction. Mother remained in custody in Ontario. Child was residing with his two half-siblings with fam- ily friend. Father commenced his motion in Ontario. Motion s CASELAW dismissed. Ontario did not have jurisdiction to hear case. Child' (Ont.). Child resided in Nova Scotia, and had lived there for five of his eight years of life. Child had closer connection to Nova Scotia than Ontario. Child was in school in Nova Scotia, and was under watchful eye of Social Services there. Child had kidney problem being moni- tored by medical community in Nova Scotia. Child no longer had real and substantial connec- tion with Ontario. Best evidence available about best interests of child was available in Nova Sco- tia and not Ontario. Baker v. Steengaard (May 7, 2012, Ont. C.J., Klein J., File No. FO 2006-08-0003) 214 A.C.W.S. (3d) 803 (12 pp.). habitual residence was in Nova Scotia as defined in s. 22(2)(d) of Children' s s Law Reform Act Motion by man for order find- ing woman in contempt. Parties commenced living together in 2007 and separated in 2010. Par- ties agreed on consent that par- ties' jointly owned home would be listed for sale and sold upon receipt of first reasonable offer to purchase. Woman did not list home for sale. Motion granted. It was ordered that woman vacate premises. Terms of order were clear and not open to variety of interpretation. Woman failed to comply with order, and did so in deliberate and wilful fashion. French v. McLaughlin (Apr. 12, 2012, Ont. S.C.J., Stach J., File No. FS-11-4991) 214 A.C.W.S. (3d) 809 (5 pp.). Terms of order clear and not open to interpretation Contempt Of Court GROUNDS Family Law Society brought motion for sum- mary judgment. Society sought order that older child be placed in custody of maternal grand- parents with access to mother at discretion of grandparents. So- ciety sought order that younger child be made Crown ward with no access to either parent. Par- ents contravened court orders. There was little or no progress with respect to mother' Mother did not show she was ahead of her own CHILD WELFARE recognize risks and protect chil- dren aſter society worked with mother for five years. Mother gave priority to relationship with father. Mother presented no evi- dence. Mother did not show she was able to put children' s ability to ahead of her own. Father had ex- tensive criminal record. Father' drug tests were positive. Father did not follow through with so- ciety' s needs s to substance abuse treatment or attending parenting program. There was no genuine issue for trial in relation to either child. Children continued to be in need of protection. It was unsafe and contrary to interests of chil- dren to return either to mother' s expectation with respect www.lawtimesnews.com care. Summary judgment was granted in favour of society. C.A.S. v. S. (R.) (Mar. 8, 2012, Ont. S.C.J., Pazaratz J., File No. C-841/07) 214 A.C.W.S. (3d) 860 (29 pp.). Applicant, aged 32, and respon- dent, aged 33. Parties cohabited for seven and one-half years and were married for less than one year. Parties operated business. Applicant and third man were charged with assaulting respon- dent. Term of release was appli- cant was not permitted to return to family home. Respondent took active steps to exclude ap- plicant from business aſter sepa- ration. Respondent cut up appli- cant' abscond jurisdiction to avoid support obligations High risk respondent would SUPPORT no income and had to apply for social assistance. Applicant did not have sufficient funds to re- turn to school to obtain degree. Respondent continued to run business on respondent' s credit card. Applicant had Applicant sought temporary spousal support. Respondent complied partially with finan- cial disclosure orders. Respon- dent was in substantial arrears of support. Applicant established strong prima facie entitlement to spousal support on compen- satory and non-compensatory basis. Parties operated as joint family unit. Parties pooled mon- eys and made joint decisions to form and operate businesses. Parties made joint decision for applicant to attend school. Ap- plicant contributed to respon- dent' s own. Parties lived off applicant's access s ability to earn income. to credit when parties moved to Canada. Applicant was signifi- cantly disadvantaged by break- down of relationship. Applicant had need for support. Appli- cant' reasonable and would make ap- plicant self-sufficient. Respon- dent had ability to pay spousal support. Income of $100,000 per year was imputed to re- spondent. Applicant had abil- ity to earn $5,000 in 2010 and $10,000 in 2011. Respondent was to pay temporary spousal support of $1,125 per month. Arrears were to be paid at rate of $475 per month. Non-depletion order was made. There was high risk respondent would abscond jurisdiction to avoid support obligations. Respondent was to deposit passport with court as security for support. Jones v. Hugo (Apr. 17, 2012, Ont. C.J., Sherr J., File No. D54126/11) 214 A.C.W.S. (3d) 920 (23 pp.). s proposed career path was Insurance s Individual insured by applicant was injured in motor vehicle accident involving truck that was insured by respondent. Ap- plicant paid accident benefits to AUTOMOBILE INSURANCE Term requiring quarterly claims warranty and not condition of agreement September 3, 2012 • Law timeS individual. Applicant claimed indemnification from respon- dent. Claim was paid. Applicant made new claims for indem- nification which respondent refused to pay. Parties agreed to settlement. Respondent paid $110,000 as required by partial full and final release. Agree- ment anticipated further claims. Agreement required quarterly claims. Applicant made claim for indemnity. Respondent re- fused to pay. Respondent argued there should have been quarterly claims in default to which appli- cant was not entitled to indem- nification. Applicant continued to make payments to individual. Applicant claimed respondent reneged on written agreement to settle loss transfer claim. Ap- plicant sought order requiring respondent to pay $60,733 and for order requiring respondent to comply with s. 275 of Insur- ance Act (Ont.). Respondent argued applicant breached agreement and respondent elected to terminate agreement and respondent was discharged from further performance of agreement. Applicant breached warranty and not condition of agreement. Provision requir- ing quarterly claims was part of bargain between parties but was lesser term. Applicant' submit quarterly would entitle respondent to financial remedy of damages but would not en- title respondent to end agree- ment and to be discharged from further performance. Breach of requirement to make quarterly claims was not such serious mat- ter as to make termination of agreement fair and appropriate remedy. Circumstance that par- ties did not make time of essence was further indication that term requiring quarterly claims was warranty and not condition of agreement. In treating agree- ment as at end, respondent be- came breaching party. Applicant sought to enforce agreement by claim for damages. Applicant was entitled to $8,775. Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada (Mar. 22, 2012, Ont. S.C.J., Perell J., File No. 11-CV- 433940) 214 A.C.W.S. (3d) 951 (8 pp.). s failure to This was appeal from application judge' insanity not prevented from taking under insurance policy Person not guilty by reason of LIFE INSURANCE pellant's application to have pro- s decision dismissing ap- ceeds of insurance policy paid to him. Appellant took out group life insurance policy where wife was named beneficiary. Ap- pellant suffered from serious mental disorder for many years. Appellant killed wife. He was tried on charge of second degree murder but was found not crim- inally responsible on account of mental disorder. Appellant was granted conditional discharge. Insurance proceeds were paid into court and appellant applied to have them paid to him. Ap- plication judge found that rule

• Cover