Law Times

PAGE 18 order for no access. Appeal was allowed. Judge was required to consider whether relationship between child and mother was beneficial and meaningful to child and whether access would impair child' ties for adoption. Judge did not mention two factors and did not analyze evidence that might apply to two factors. Reasons provided no analysis of best in- terests of child. Order with re- spect to access was ambiguous. There was strong suggestion ac- cess issue was genuine issue for trial. Failure to ensure motion and/or mother' s future opportuni- opportunity to make further submissions before access or- der was varied was error of law. Children' agara Region v. B. (M.) (Apr. 27, 2012, Ont. S.C.J., Henderson J., File No. 3848/11) 216 A.C.W.S. (3d) 926 (13 pp.). s Aid Society of the Ni- Parents appealed order that child be ward of Crown with no access. Child was born in No- vember 2002. In March 2007, child was taken from care by parents following diagnosis of possible rickets by pediatrician, later determined to be caused by vitamin D deficiency. Other health concerns were identified. Police attended family home to investigate and discovered mar- ijuana grow operation. Parents were charged with respect Trial judge could intervene as much as necessary to clarify facts drug operation and with failing to provide child with necessar- ies of life. On consent, child was placed in care and custody of maternal aunt and uncle, who wanted to adopt child. In No- vember 2007, parents abducted child from supervised access visit. Child was located with parents in April 2008. Parents were arrested to ated and had not had access to child. Litigation was long and protracted and resulted in or- der that child be made ward of Crown with no access for purpose of adoption. Appeal dismissed. Updated notes of caseworker were admitted as fresh evidence, as they were highly relevant, reliable, went to determining best interests of child and could not have been adduced before. Evidence at trial was that child had not had medical treatment for years and developed serious medical is- sues. Trial judge' and incarcer- that there was failure to seek medical attention, even aſter manifestations of serious health concerns of child became ap- parent, was supported by evi- dence. There was nothing inap- propriate in trial judge asking questions of counsel or parties regarding issue. Where welfare of child was concerned, s conclusion judge could intervene as much as necessary to clarify facts and ensure appreciation of evidence was correct. Parents failed to establish bias on part of trial judge. Trial judge took into ac- count factors set out in s. 37(3) of Child and Family Services trial s counsel had Act (Ont.), in determining what was in child' al judge clearly understood fac- tors set out in Act and there was ample evidence to support find- ings. Trial judge did not misap- prehend timing of assessment of best interests of child. Trial judge' s best interests. Tri- balanced toward parents. Trial judge did not err in assessment of ongoing need for protection. Trial judge made no palpable and overriding error. Children' s analysis was fair and ronto v. L. (V.) (Apr. 25, 2012, Ont. S.C.J., Wilson J., File No. FS-10-17125) Decision at 199 A.C.W.S. (3d) 463 was affirmed. 216 A.C.W.S. (3d) 924 (10 pp.). s Aid Society of To- Application by society for or- der that child be made ward of Crown and placed in care of so- ciety with no access to mother. Society became involved with mother when child was three years of age, and mother was discovered passed out on street while child was with her. Child was apprehended in 2005 when society found child with bruis- ing on his face while in care of his mother who was intoxicated with alcohol and cocaine. Child currently aged nine. Child was returned to his mother' violent and not trustworthy Mother unpredictable, in 2007, and subsequently re- apprehended in August 2011, when child was discovered with blood on his face at his moth- er' s care man was discovered in blood and woman was half-naked. Application granted. Child was in need of protection from his mother. Mother was unpre- dictable, violent and not trust- worthy. Relationship between mother and child would not be beneficial and meaningful. Children' s apartment in which elderly ilton v. S. (S.) (July 10, 2012, Ont. S.C.J., Cavarzan J., File No. C-08/06) 216 A.C.W.S. (3d) 925 (30 pp.). s Aid Society of Ham- Respondent father sought costs in respect of child protection application respecting two bio- logical children. Mother had made allegations in past that father had sexually abused chil- dren. Police investigated and concluded that there was no ba- sis for charges. Child protection proceedings were commenced by another society but were ter- minated. Mother again made allegations and went to society claiming that father sexually abused children. Society sought finding that children were in need of protection based on risk of sexual and emotional harm and it sought supervision or- der with children remaining in mother' Absence of bad faith did not immunize society from cost consequences COSTS whether or not children were in need of protection against father based on historical al- legations that father had sexu- ally abused children. Society' s care. Focus of trial was s CASELAW supervisors acknowledged that society failed to conduct thor- ough investigation of child pro- tection concerns that mother raised. Court found that society failed to prove, on balance of probabilities, that father posed risk of sexual harm to children. Application granted. Society failed to conduct thorough in- vestigation before proceeding with child protection applica- tion. Society relied almost ex- clusively on mother. Society proceeded with tunnel vision. Society had no excuse for fail- ing to inform itself and court of all relevant background in- formation before trial began. In order to preserve access with children, father had no choice but to vigorously defend soci- ety' posed risk of sexual harm to children. There was no evidence that father failed to co-operate with society or that his conduct contributed to length and ex- pense of proceedings. Ordinary person would perceive that society had not acted fairly in matter. Society should be held accountable for actions with costs award. Absence of bad faith did not immunize society from cost consequences. Taking all circumstances into account, costs were fixed at $50,000. Hastings Children' s efforts to establish that he v. L. (J.) (May 9, 2012, Ont. C.J., Deluzio J., File No. 56/10) Addi- tional reasons to 211 A.C.W.S. (3d) 356. 216 A.C.W.S. (3d) 931 (15 pp.). s Aid Society This was appeal conclusion that greater degree of fault lied with municipalities No basis to interfere with Highways REPAIR appeal of apportionment of liability for motor vehicle ac- cident. Driver was driving to movie theatre with sister and three friends. They were travel- ling on unlit, hilly rural road. As driver neared crest of hill she was momentarily blinded by headlights of oncoming vehi- cle. Driver thought that vehicle was coming right at her so she steered right, lost control, over- steered leſt to stay on road and vehicle veered into ditch. Ve- hicle rolled and hit rock culvert. Driver and sister were rendered quadriplegic. Other passengers were also injured. Injured par- ties sued several defendants including municipalities. Li- ability was apportioned one- third to driver and two-thirds to municipalities. Appeal and cross-appeal and cross- judge's legal conclusions flowed dismissed. Trial from series of factual findings that were amply supported by evidence. At crest of hill, even prudent driver facing nighttime eastbound traffic would have only seconds to react to directly oncoming car on narrow, unlit, unmarked and unsigned rural road. Trial judge' road was in state of non-repair and conclusion that municipal- ities were at fault for non-repair s finding that www.lawtimesnews.com were reasonable. Trial judge's apportionment of fault was en- titled to substantial deference. There was no basis to interfere with conclusion that greater degree of fault lied with mu- nicipalities. There was no basis for interfering with trial judge' assigning one-third liability to driver. Deering v. Scugog (Town- ship) (June 7, 2012, Ont. C.A., Goudge, MacPherson and Cronk JJ.A., File No. C52880) Decision at 193 A.C.W.S. (3d) 1266 was affirmed. 216 A.C.W.S. (3d) 987 (6 pp.). s Landlord and Tenant Action by tenant for damages. Tenant purchased assets from numbered company, including commercial lease. Numbered company was in default of its obligations under lease. Ten- ant commenced renovations on property. Landlord did not provide its consent to assign- ment of lease. Landlord closed down renovations and began demolition of premises. Action allowed. Tenant was awarded $1.212 million to be paid by landlord, Landlord acted precipitously to close down renovations DESTRUCTION OF PREMISES awarded $18,000 to be paid by tenant. Landlord acted pre- cipitously to close down reno- vations being undertaken by tenant, and when it began to demolish premises while wait- ing for decision of court that was to determine whether ten- ant had breached lease. Tenant could not guild its damages by failing to act to minimize its loss, particularly when path to do so was made clear by orders of court. 1302207 Ontario Ltd. v. 1517979 Ontario Ltd. (June 26, 2012, Ont. S.C.J., Lederer J., File No. CV-08- 366444) 216 A.C.W.S. (3d) 1012 (17 pp.). and landlord was Plaintiff claimed damages of $2 million. Plaintiff sought declaration plaintiff remained entitled to marriage giſt set out in marriage contract. Plaintiff argued that waiver in allegedly altered divorce certificate and register of divorce was null and void. Defendants brought mo- tion to dismiss action. Defen- dants argued claims were stat- ute barred by Limitations Act, 2002 (Ont.). Plaintiff claimed first cause of action arose when divorce certificate was altered aſter 1999. Plaintiff claimed second cause of action arose when the lawyer and the hus- band caused to be filed in Ira- nian proceedings certified copy of altered certified divorce reg- ister sometime between 2007 and 2010. Plaintiff argued there was no applicable limitation pe- only to proceedings commenced in this jurisdiction Limitation defence applied Limitations GENERAL OctOber 1, 2012 • Law times riod with respect to first action because it was based on fraud. Plaintiff argued in alternative that six-year limitation period was met by commencing pro- ceeding in Iran culminating in judgment in plaintiff ' in 2005. Plaintiff argued second action was commenced within two-year limitation period from time certified divorce reg- ister was discovered by plaintiff. Action was dismissed. Logi- cal conclusion on evidence fa- voured conclusion waiver was included in divorce certificate and divorce register when doc- uments were signed by plaintiff and witnesses. Fraud was not established. Action would have been dismissed on basis action was statute-barred. Action was commenced ten and one-half years aſter alleged fraud was discovered. Fact that proceed- ings were brought in foreign jurisdiction did not assist plain- tiff as limitation defence ap- plied only to proceedings com- menced in this jurisdiction. First action based on fraud was subject to six-year limitation period. Second action was in- extricable linked to first action. Certified divorce register was exactly same as divorce register but for certification by the law- yer. Certification added noth- ing to alleged cause of action between plaintiff and the hus- band regarding entitlement to marriage giſt. Certified divorce certificate was used in 2007 by the husband to obtain injunc- tion preventing plaintiff from transferring property. Plaintiff or lawyer would have become aware of use of certified di- vorce register then. Proceeding would have been outside two- year limitation and was statute- barred. Maſtoun v. Banitaba (May 22, 2012, Ont. S.C.J., Ricchetti J., File No. 6029/10) 216 A.C.W.S. (3d) 1015 (37 pp.). s favour Wills and Estates Wife of deceased sought spou- sal support by way of lump sum or periodic payments as dependent. Wife, aged 69, did not speak English well and was unable to work for medi- cal reasons. Wife had bequest of $250,000 and deceased' DEPENDANTS' SUPPORT Estate had obligation to support wife from proceeds R.R.I.F. valued at $287,185 which paid wife monthly sum of $1,200. Deceased had no children. Aſter payment of be- quests residue of estate was to be paid to deceased' s Wife was dependent. Specific bequest to wife was reduced to $150,000. Estate had obligation to support wife from estate pro- ceeds in priority to bequests in deceased' s siblings. tate was to pay support to wife of $3,000 per month. Spousal support was to be funded by es- tate by purchase of lifetime an- nuity for wife. Annuity was to be owned by estate with rever- sionary interest if any to estate s will except wife. Es-

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