Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 14, 2025. Family law was the theme of the week.
In A.A. v. Z.S.M., a child abduction/relocation case, the Court allowed the appeal from an order returning a 19-month-old child to Bangladesh under s. 40 of the Children's Law Reform Act, finding that the motion judge failed to properly assess the risk of serious harm. The Court clarified that refugee claims do not automatically bar return orders and emphasized the need for a thorough analysis of serious harm, including the impact of domestic violence and the potential separation of the child from the primary caregiver. The case was remitted for a new hearing due to the failure to properly consider these factors.
In Wade v. Avery, the Court dismissed the husband's appeal from an order vesting title to the matrimonial home with the wife.
In Chapman v. Ing, a joint family venture case, the Court upheld the trial judge's finding of unjust enrichment against the appellant. The respondent had made significant unilateral improvements to a property owned by a jointly owned company.
In S.R.I.S. v. N.Z., the Court dismissed the father's appeal from the motion judge's determinations with respect to parenting time, decision making and support.
In Douglas v Faucher, the Court dismissed the appeal from a child support order.
In the only non-family law case, The North West Company LP v. Classic Furs Company Ltd., an appeal and cross-appeal related to a contract for the sale of coyote furs used on Canada Goose parkas were both partly allowed. The Court found that the trial judge made various errors with respect to her assessment of damages and by not awarding punitive damages to punish the supplier of the furs for its bad behaviour, which included unilaterally increasing the price of the product and failing to deliver that agreed-upon quantity.
Happy Easter to everyone celebrating.
Table of Contents
Civil Decisions
Wade v. Avery, 2025 ONCA 275
Keywords: Family Law, Spousal Support, Child Support, Property, Matrimonial Home, Remedies, Equalization of Net Family Property, Vesting Orders, Civil Procedure, Procedural and Natural Justice, Uncontested Trials, Notice, Family Law Act, R.S.O. 1990, c. F.3, ss. 9(1)(d)(i), 34(1)(c), Partition Act, R.S.O. 1990, c. P.4, Lamothe v. Ellis, 2022 ONCA 789, Matos v. Driesman, 2024 ONCA 271, Cosentino v. Cosentino, 2017 ONCA 593, Lynch v. Segal (2006), 82 O.R. (3d) 641 (C.A.)
Chapman v. Ing, 2025 ONCA 292
Keywords: Family Law, Property, Joint Family Venture, Unjust Enrichment, Remedies, Equitable Remedies, Constructive Trust, Business Corporations Act, R.S.O. 1990, c. B.16, s. 22(3)(b), Excise Tax Act, R.S.C. 1985, c. E-15, Insurance Act, R.S.O. 1990, c. I.8, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), Moore v. Sweet, 2018 SCC 52, Kerr v. Baranow, 2011 SCC 10, Reference re Goods and Services Tax, [1992] 2 SCR 445, Wildman v. Wildman (2006), 82 O.R. (3d) 401 (Ont. C.A.), Wildman in Lynch v. Segal (2006), 82 O.R. (3d) 641 (Ont. C.A.), BCE Inc. v. 1976 Debentureholders, 2008 SCC 69
A.A. v. Z.S.M., 2025 ONCA 283
Keywords: Family Law, Parenting, Relocation, Child Abduction, Immigration Law, Refugees, Civil Procedure, Procedural Fairness, Adjournments, Temporary Stay of Proceedings, Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 19, 22(1)(b), 23(b), 40, Immigration and Refugee Protection Act, S.C. 2001, c. 27, M.A.A. v. D.E.M.E., 2020 ONCA 486, Zafar v. Azeem, 2024 ONCA 15, R. v. Palmer, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, Bors v. Bors, 2021 ONCA 513, A.C.V.P. v. A.M.P., 2022 ONCA 283, Goldman v. Kudelya, 2017 ONCA 300, Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Halton Community Credit Union Ltd. v. ICL Computers Ltd. (1985), 1 C.P.C. (2d) 252 (Ont. C.A.), Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), New Brunswick v. G.(J.), [1999] 3 S.C.R. 46, F. v. N., 2022 SCC 51, Geliedan v. Rawdah, 2020 ONCA 254, A.M.R.I. v. K.E.R., 2011 ONCA 417, F. v. N., 2021 ONCA 614, Office of the Children's Lawyer v. Balev, 2018 SCC 16, Németh v. Canada (Justice), 2010 SCC 56, Ojeikere v.Ojeikere, 2018 ONCA 372
Douglas v Faucher, 2025 ONCA 293
Keywords: Family Law, Child Support, Variation, Material Change of Circumstances, Civil Procedure, Standard of Review, Federal Child Support Guidelines, S.O.R./97-175, s. 9, Contino v. Leonelli-Contino, 2005 SCC 63, Michel v. Graydon, 2020 SCC 24
The North West Company LP v. Classic Furs Company Ltd., 2025 ONCA 295
Keywords: Contracts, Sale of Goods, Torts, Conspiracy, Damages, Punitive Damages, Civil Procedure, Standard of Review, The North West Company LP v. Classic Furs Company Ltd., 2023 ONSC 3223, Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.), leave to appeal refused, [1998] S.C.C.A. No. 516., SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 675, MS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, Housen v. Nikolaisen, 2002 SCC 33, Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, Krmpotic v. Thunder Bay Electronics Ltd., 2024 ONCA 332, Whiten v. Pilot Insurance Co., 2002 SCC 18
S.R.I.S. v. N.Z., 2025 ONCA 304
Keywords: Family Law, Parenting Time, Decision Making, Child Support, Spousal Support, Variation, Material Change of Circumstances, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Van de Perre v. Edwards, 2001 SCC 60, Hickey v. Hickey, [1999] 2 S.C.R. 518
Short Civil Decisions
Keywords: Family Law, Parenting, Support, Variation, Material Change of Circumstances, Family Law Act, RSO 1990, c F.3, Duwyn v. Ross, 2024 ONCA 637, Cuthbert v. Nolis, 2024 ONCA 21
Bortoleti De Oliveira v. Ritchie, 2025 ONCA 299
Keywords: Family Law, Child Support, Separation Agreements, Setting Aside, Civil Procedure, Leave to Appeal, Fielding v. Fielding, 2015 ONCA 901
Rout v. Firm Capital Mortgage Fund Inc., 2025 ONCA 287
Keywords: Contracts, Real Property, Mortgages, Enforcement, Penalty, Notice of Sale, Mortgages Act, R.S.O. 1990, c. M.40., Interest Act, R.S.C. 1985, c. I-15
Keywords: Torts, Defamation, Conspiracy, Real Property, Condominiums, Civil Procedure, Striking Pleadings, Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1
CIVIL DECISIONS
[Gillese, Gomery and Pomerance JJ.A.]
Counsel:
A. B. R. Drury, for the appellant
J. J. W. G. Szaefer, for the respondent
Keywords: Family Law, Spousal Support, Child Support, Property, Matrimonial Home, Remedies, Equalization of Net Family Property, Vesting Orders, Civil Procedure, Procedural and Natural Justice, Uncontested Trials, Notice, Family Law Act, R.S.O. 1990, c. F.3, ss. 9(1)(d)(i), 34(1)(c), Partition Act, R.S.O. 1990, c. P.4, Lamothe v. Ellis, 2022 ONCA 789, Matos v. Driesman, 2024 ONCA 271, Cosentino v. Cosentino, 2017 ONCA 593, Lynch v. Segal (2006), 82 O.R. (3d) 641 (C.A.)
facts:
Following the parties' separation in 2019 after 16 years of marriage, the respondent applied for a divorce. In her application, she sought child support for the parties' three children, exclusive possession of the matrimonial home, equalization of net family property, and other relief. The applicant did not file an answer or provide financial disclosure. He did not make meaningful child support payments or otherwise assist with the children's expenses, even after being ordered to do so in October 2023. He did not contribute to any payment on the parties' joint obligations, including the mortgage on the matrimonial home, car loan, and other debts. When the respondent brought a summary judgment motion in April 2023, the appellant did not respond, nor did he participate in the uncontested trial that followed a year later.
The appellant appeals the trial judge's order requiring him to pay past and ongoing child support as well as s. 7 expenses and granting the respondent a vesting order conferring to her sole title to the matrimonial home.
issues:
- Did the trial judge err in granting a vesting order?
- Did the trial judge err in ordering retroactive and ongoing child support?
holding:
Appeal dismissed.
reasoning:
1. No.
The Court found that the trial judge did not error in granting the vesting order. The appellant argued that the trial judge should not have granted the vesting order given that the appellant did not seek the order in her original application. When drafting her original application in 2020, the Court found that the respondent was not required to anticipate that the appellant would fail to respond or to contribute meaningfully to the children's support or the parties' joint debts and obligations over the years that followed. The question became whether the appellant had adequate notice that the respondent was seeking a vesting order at the uncontested trial in 2024. The court found that the appellant did have adequate notice. The respondent first asked for a vesting order in her motion for summary judgment in 2023. The motion judge who adjudicated that matter was concerned that the appellant might not have understood that a vesting order was a possible outcome and accordingly, sent the matter to an uncontested trial. She also ordered the respondent to serve a copy of the motion judge's endorsement on the appellant prior to the trial, which the respondent did. The Court found that this effectively put the appellant on notice.
The appellant also argued that the trial judge erred in granting the vesting order in the absence of evidence about the current value of the matrimonial home and this resulted in the respondent getting a windfall. The Court found that the trial judge was clearly alive to the potential unfairness of a vesting order given the limited evidentiary record and voiced it at trial. The trial judge concluded that the appellant's share of equity in the matrimonial home roughly corresponded to his debt to the respondent and that a vesting order was a reasonable resolution. The Court found that the trial judge's reasoning showed no error of principle and was a legitimate exercise of discretion.
2. No.
The Court found that the trial judge did not err in ordering retroactive and ongoing child support. The appellant argued that the motion judge should not have ordered retroactive and ongoing child support because the motion judge had already made some support orders and because the respondent had suggested that she might waive any entitlement to support going forward if a vesting order were granted. The Court found that the trial judge's orders were open for him to make on the evidence and were not inconsistent with the motion judge's earlier order.
[Paciocco, Wilson and Pomerance JJ.A.]
Counsel:
Stangarone and T. Guo, for the appellant
Kline, for the respondent
Keywords: Family Law, Property, Joint Family Venture, Unjust Enrichment, Remedies, Equitable Remedies, Constructive Trust, Business Corporations Act, R.S.O. 1990, c. B.16, s. 22(3)(b), Excise Tax Act, R.S.C. 1985, c. E-15, Insurance Act, R.S.O. 1990, c. I.8, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), Moore v. Sweet, 2018 SCC 52, Kerr v. Baranow, 2011 SCC 10, Reference re Goods and Services Tax, [1992] 2 SCR 445, Wildman v. Wildman (2006), 82 O.R. (3d) 401 (Ont. C.A.), Wildman in Lynch v. Segal (2006), 82 O.R. (3d) 641 (Ont. C.A.), BCE Inc. v. 1976 Debentureholders, 2008 SCC 69
facts:
The appellant and respondent were involved in an "on-again, off-again" relationship for several years. They were also business partners. They set up a trucking business and then used various corporate structures to buy and sell properties. Their personal and business relationships soured. After the separation, the appellant took steps that diminished the value of their shared company by selling assets for prices well under market value. The respondent, by contrast, transformed one of the properties they had purchased into a viable commercial enterprise.
The parties came to disagree about the extent of their respective entitlements. In the lower court, the appellant sought an order winding up all of the parties' mutual real estate and corporate assets, and the appointment of a receiver, arguing that he was entitled to 50 percent of the proceeds. He argued that the parties were involved in a joint family venture and that he owned the properties on a "50/50 basis", regardless of title.
The trial judge disagreed. She found that the parties were not involved in a joint family venture but instead were business partners who, from time to time, cohabited in a conjugal relationship. The trial judge further found that to split the proceeds on a "50/50 basis" would cause the appellant to be unjustly enriched given that the respondent unilaterally transformed one of the properties, purchased by a shared company, into a viable commercial enterprise.
The trial judge provided the respondent a proprietary remedy on a "value survived" basis. She directed that the appellant's shares be transferred to the respondent, upon payment to him of $39,000, which was half the purchase price of the building less the amount of the first mortgage.
On appeal, the appellant challenged the trial judge's conclusion that he was unjustly enriched. Specifically, the appellant argued that there was a juristic reason for his enrichment under s 22(3)(b) of the OBCA. Additionally, the appellant argued that the trial judge erred in granting a proprietary award when a monetary award would have sufficed.
issues:
- Did the trial judge err in finding that the appellant would have been unjustly enriched?
- Did the trial judge err in granting a proprietary award?
holding:
Appeal dismissed.
reasoning:
1. No.
The Court found that the trial judge did not err in holding that the appellant would have been unjustly enriched. The Court reviewed the three-part test for unjust enrichment which requires (1) the defendant to have been enriched by the plaintiff; (2) the plaintiff to have suffered a corresponding deprivation; and (3) the lack of a juristic reason. The Court found the following pertaining to the appellants' arguments:
(i) On juristic grounds
The appellant argued that that there was a juristic reason that justified his enrichment under s 22(3)(b) of the OBCA. The Court found s 22(3)(b) of the OBCA did not purport to allocate the family law or equitable claims that one shareholder may have against the shares registered to another shareholder. Accordingly, s 22(3)(b) of the OBCA did not offer a juristic reason for the appellant's enrichment.
(ii) Relating to market increase
The appellant argued that the disputed property's increase in value flowed from market forces rather than the respondent's efforts. The Court found that the market forces were of secondary importance to the effort put in by the respondent towards the property.
2. No.
The appellant argued that the trial judge erred in ordering a proprietary remedy on a "value survived" basis, in the absence of a joint family venture. The Court found that while the reference to "value survived" was arguably erroneous, it did not invalidate the reasons and conclusions, which were otherwise unassailable. It was open to the trial judge to find that a monetary award would not adequately reflect the respondent's contributions and the Court agreed with the trial judge's proprietary remedy awarded
[Roberts, Miller and Pomerance JJ.A.]
Counsel:
Mehra, A. Medhekar and Y. Abuzgaya, for the appellant
J. Stangarone, T. Guo and S. Kabir, for the respondent
Scott and C. E. Tempesta, for The Office of the Children's Lawyer
Silcoff and A. B. Sadinsky, for the intervener, Canadian Association of Refugee Lawyers
Robinson and L. Best, for the intervener, Centre for Refugee Children
Kalra and N. Chugh, for the intervener, South Asian Coalition
Keywords: Family Law, Parenting, Relocation, Child Abduction, Immigration Law, Refugees, Civil Procedure, Procedural Fairness, Adjournments, Temporary Stay of Proceedings, Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 19, 22(1)(b), 23(b), 40, Immigration and Refugee Protection Act, S.C. 2001, c. 27, M.A.A. v. D.E.M.E., 2020 ONCA 486, Zafar v. Azeem, 2024 ONCA 15, R. v. Palmer, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, Bors v. Bors, 2021ONCA 513, A.C.V.P. v. A.M.P., 2022 ONCA 283, Goldman v. Kudelya, 2017 ONCA 300, Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Halton Community Credit Union Ltd. v. ICL Computers Ltd. (1985), 1 C.P.C. (2d) 252 (Ont. C.A.), Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), New Brunswick v. G.(J.), [1999] 3 S.C.R. 46, F. v. N., 2022 SCC 51, Geliedan v. Rawdah, 2020 ONCA 254, A.M.R.I. v. K.E.R., 2011 ONCA 417, F. v. N., 2021 ONCA 614, Office of the Children's Lawyer v. Balev, 2018 SCC 16, Németh v. Canada (Justice), 2010 SCC 56, Ojeikere v.Ojeikere, 2018 ONCA 372
facts:
This appeal concerned whether the Ontario Superior Court erred in ordering the return of a 19-month-old child to Bangladesh under s. 40 of the Children's Law Reform Act (CLRA), despite pending refugee claims due to alleged domestic violence by the father. The mother and child, originally from Bangladesh, sought refuge in Canada after separating from the father. The motion judge ordered the child's return, finding no evidence of serious harm, and did not address the refugee claims or domestic violence. The appeal centered on the interpretation of M.A.A. v. D.E.M.E. and whether refugee claims automatically bar return orders under the CLRA.
issues:
- Did the motion judge deny the appellant procedural fairness during the motion hearing?
- Did the motion judge err by failing to find that the case met the tests set out in ss. 22(1)(b) and 23 of the CLRA, and err in his analysis of serious harm?
- Did the motion judge err by failing to stay the return motion under s. 40 of the CLRA given the outstanding refugee applications?
holding:
Appeal allowed
reasoning:
The Court considered two preliminary issues.
a. Motion to Admit Fresh Evidence
The Court reviewed motions to admit fresh evidence, including affidavits from the parties and the Office of the Children's Lawyer (OCL). Applying the R. v. Palmer test, the Court found much of the material inadmissible as it either repeated or expanded on evidence from the initial hearing, raising credibility issues inappropriate for an appeal. The Court declined to admit the UNHCR representative's affidavit due to lack of expertise and relevance, but accepted select portions.
b. Scope of the South Asian Coalition's Submissions
The Court limited the South Asian Coalition's intervener role to legal arguments only, excluding cultural and academic opinions on South Asian family dynamics, which fell outside the scope of permissible intervention, and confined it to making legal submissions based on the existing record.
1. Yes.
The appellant claimed procedural unfairness at the motion hearing, arguing she was denied an adjournment despite difficulty submitting materials and understanding the legal process due to language barriers. She also contended she was not permitted to cross-examine the respondent. The Court rejected the adjournment argument, noting she had been given two previous adjournments and had assistance at earlier attendances. While the Court acknowledged that limiting cross-examination raised fairness concerns, it found this did not constitute reversible error because the motion judge did not resolve credibility issues or rely on disputed facts. However, the Court held that the motion judge's failure to engage with the domestic violence allegations—central to the serious harm analysis—was a significant error.
2. No.
The Court upheld the motion judge's finding that Ontario lacked jurisdiction under s. 22(1)(b). The child had no substantial connection to Ontario, having only recently arrived from Bangladesh, where her extended family and support systems remained, and where a parenting proceeding had been initiated. The appellant was adequately informed on the law regarding habitual residence, and no error was found in the judge's analysis.
However, the Court found the motion judge erred in applying s. 23(b), which allows the court to assume jurisdiction if returning the child would result in serious harm. The judge mistakenly limited the analysis to direct harm by the father, neglecting broader considerations.
(i) Allegations of domestic violence
The Court stressed that domestic violence against a parent, even if not directed at the child, can constitute serious harm due to potential emotional and developmental impacts. The Court found the judge erred by not assessing the credibility of these allegations or conducting a more thorough evidentiary hearing, especially since the abuse was central to the parenting dispute.
(ii) Separation from Primary Caregiver
The judge also failed to assess whether returning the child would result in separation from her primary caregiver—the mother—which could itself amount to serious harm. Drawing on F. v. N. (SCC), the Court reiterated that this analysis must be individualized, considering the child's age, development, and the caregiver's ability to return safely. This oversight was another legal error.
(iii)Impact on Refugee Claims
The Court found the motion judge erred in failing to consider the impact of the return order on the appellant and child's refugee claims. Their potential abandonment, or the resulting separation if the mother remained in Canada to preserve her claim, could contribute to serious harm and should have been weighed. Given these cumulative errors, the Court set aside the return order and remitted the matter to the Superior Court for a new hearing on jurisdiction.
3. No.
The appellant, the OCL, and interveners argued for an automatic stay of return proceedings under s. 40 of the Children's Law Reform Act (CLRA) due to pending refugee claims, citing the precedent set in M.A.A. However, the Court rejected this, clarifying that M.A.A. did not mandate an automatic stay or bar return orders in the context of refugee proceedings. Instead, the Court emphasized that ss. 23 and 40 of the CLRA must be considered together, in line with the Supreme Court's decision in F. v. N., and that the CLRA operates on a rebuttable presumption that wrongful removal or retention typically warrants a return to the child's habitual residence, unless serious harm is proven.
The Court reiterated that the existence of a refugee claim does not preclude the court's jurisdiction or discretion under the CLRA, citing A.M.R.I. v. K.E.R., where a return order was still possible despite a child's refugee status. Moreover, it clarified that neither the CLRA nor the Immigration and Refugee Protection Act require an automatic stay or create a categorical bar to return orders during pending refugee claims.
Regarding M.A.A., the Court found that its statement against return orders in the presence of a pending refugee claim was misinterpreted. In context, M.A.A. had exercised discretion based on serious harm findings and did not establish a blanket rule. The Court concluded that a pending refugee claim is a relevant but discretionary factor in return proceedings, emphasizing the need to balance provincial child abduction objectives with international refugee protections. Finally, the Court confirmed that while an IRB decision may create a rebuttable presumption of serious harm, it is not decisive in the analysis under ss. 23 and 40, which must consider all relevant factors, including refugee claims and allegations of domestic violence.
Douglas v Faucher, 2025 ONCA 293
[Gillese, Gomery and Pomerance JJ.A.]
Counsel:
Lyon, for the appellant
Stangarone and K. Beck, for the respondent
Keywords: Family Law, Child Support, Variation, Material Change of Circumstances, Civil Procedure, Standard of Review, Federal Child Support Guidelines, S.O.R./97-175, s. 9, Contino v. Leonelli-Contino, 2005 SCC 63, Michel v. Graydon, 2020 SCC 24
facts:
This was an appeal from a final Order in a family law proceeding that decided matters of parental decision-making, parenting time, and child support. The appellant submitted that the motion judge erred in finding a material change in circumstances and in finding that the respondent's parenting time met the annual 40% threshold required by s. 9 of the Federal Child Support Guidelines. Accordingly, she sought to set aside the motion judge's determination of child support.
issues:
- Did the motion judge err in failing to find a material change of circumstances?
- Did the motion judge err in finding the respondent's parenting time met the annual 40% threshold necessary to engage s. 9 of the Guidelines?
- Did the motion judge err in failing to properly determine the amount of retroactive child support?
holding:
Appeal dismissed.
reasoning:
1. No.
The motion judge found that the shared parenting arrangement led to the respondent having more than 40% of the parenting time. The Court held that this was a material change in circumstances because when the underlying child support orders were made, the appellant occupied the position of primary parent and the respondent had less than 40% of the parenting time.
2. No.
The Court held that it was open to the motion judge to prefer the evidence of the respondent over that of the appellant on the amount of parenting time and to find that the respondent met the 40% threshold. The Court explained that, based on the evidence that he accepted, the motion judge found that the respondent's parenting time exceeded 40% from 2017 to the time the motion was heard.
3. No.
The Court noted that in using January 1, 2018, as the start date for determining the amount of retroactive child support, the motion judge chose a date which operated to the appellant's advantage. The Court also noted that the appellant conceded that the motion judge correctly stated the governing legal principles as set out in Contino and that arriving at a fair disposition of retroactive child support is a highly discretionary process.
The Court stated that the law is clear that child support orders attract deference on appeal – the hearing judge's findings and inferences of fact may not be disturbed on appeal absent an error on an extricable question of law, a palpable and overriding error, or a fundamental mischaracterization or misapprehension of the evidence: Michel v. Graydon. The Court held that the motion judge properly applied the Contino framework.
The North West Company LP v. Classic Furs Company Ltd., 2025 ONCA 295
[Pepall, Miller and Wilson JJ.A.]
Counsel:
MacLeod, for the appellant/respondent by way of
cross-appeal
Businger, for the respondents and appellant by way of
cross-appeal
Keywords: Contracts, Sale of Goods, Torts,
Conspiracy, Damages, Punitive Damages, Civil Procedure, Standard of
Review, The North West Company LP v. Classic Furs Company
Ltd., 2023 ONSC 3223, Martin v. Goldfarb (1998), 41
O.R. (3d) 161 (C.A.), leave to appeal refused, [1998] S.C.C.A. No.
516., SS&C Technologies Canada Corp. v. The Bank of New
York Mellon Corporation, 2024 ONCA 675, MS Lighting Ltd.
v. KJS Transport Inc., 2014 ONCA 1, Housen v.
Nikolaisen, 2002 SCC 33, Southcott Estates Inc. v. Toronto
Catholic District School Board, 2012 SCC 51, Krmpotic v.
Thunder Bay Electronics Ltd., 2024 ONCA 332, Whiten v.
Pilot Insurance Co., 2002 SCC 18
facts:
The North West Company LP ("NWC") supplied furs to Classic Furs Company Ltd. ("CF") for Canada Goose parkas. In 2012, NWC commenced an action to recover unpaid invoices for furs it said it delivered to CF in 2011. CF disputed that any funds were owing, and alleged that NWC engaged in a conspiracy to defraud it, with employees of NWC issuing false invoices to CF to cover up their embezzlement from NWC. CF also counterclaimed for breach of contract.
The trial judge found that the parties' dealings were governed by contract and that NWC had breached it by unilaterally raising the unit price, falling to deliver the quantity of goods it had to provide and by providing substandard quality goods. The trial judge further found that NWC had issued two inaccurate invoices but that this was not an attempt to defraud CF, but simply a mistake caused by poor administrative practices at NWC. The trial judge issued a judgment in favor of NWC for unpaid invoices. The amount payable was subject to a set-off for damages awarded to CF for NWC's breach of contract.
Both parties appealed the trial judge's assessment of damages. CF appealed the trial judge's dismissal of its claims founded on conspiracy and punitive damages. NWC cross-appealed the trial judge's finding that there was a binding contract at all.
issues:
- Did the trial judge err by finding that there was an enforceable contract?
- Did the trial judge err in her findings related to the disputed invoices?
- Did the trial judge err by dismissing the conspiracy claim?
- Did the trial judge err in her assessment of damages and by not awarding punitive damages?
holding:
Appeal and cross-appeal allowed in part.
reasoning:
1. No.
NWC, by way of cross-appeal, argued that the trial judge erred in finding that there was a binding and enforceable contract between CF and NWC. It argued that the trial judge erred in finding that the parties were ad idem and that her findings were inconsistent. The Court did not agree with NWC's arguments and dismissed this ground of appeal. The trial judge did not accept the evidence of NWC with respect to how many units of furs were required under the contract. She instead accepted the evidence of CF and repeatedly explained the basis for her finding. The trial judge was satisfied that the parties had agreed to the essential terms of the contract and the Court found that NWC had not provided any basis to conclude that the trial judge erred in this regard.
2. Yes, in part.
CF ordered 1,472 units of furs from NWC under invoice #2491, dated February 25, 2011. The invoices stated that 265 units were delivered to CF on February 25, 2011, the same day. The trial judge found that the remaining 1,207 units were delivered in March 2011. CF's position was that there was one attempt by NWC to deliver the outstanding furs but that it was rejected because the furs were of such poor quality that they could not be used. Furthermore, CF argued that the rejected furs were not the 1,207 units from invoice #2491 and that those 1,207 furs were never delivered.
CF appealed the trial judge's finding that the 1,207 units corresponding to invoice #2491 were delivered. The trial judge found that there had been three deliveries totaling 1,472 units based on the documentary evidence and the fact that CF had paid the invoice. The Court held that the trial judge misapprehended the evidence before her and wrongly discounted the testimony of CF's president. As a result, the trial judge made an unreasonable finding that CF had received all the furs corresponding to invoice #2491.
Furthermore, CF appealed the trial judge's award of damages to NWC for breach of contract for CF's purchase of an Inuit sculpture. CF purchased art from NWC for $3,500 and CF's president signed an invoice for it. The next year, NWC faxed another invoice to CF for the same amount, however it was for furs. At the trial a director of NWC testified that the invoice was false and that in reality the false invoice was for the Inuit sculpture and not furs. The trial judge found that CF had not paid for the Inuit sculpture, and whether for furs or for art, the false invoice was payable. The Court agreed with the trial judge that CF had purchased the art and not paid for it. Accordingly, the Court held that the trial judge made no error in granting judgment against CF for the $3,500.
3. No.
The trial judge dismissed CF's claim of conspiracy as she found that CF did not satisfy its onus of proving that that relevant individuals from NWC acted unlawfully in concert to harm CF. The trial judge found that the false invoices sent to CF were a result of administrative incompetence, and held that even if they were not, CF did not pay the invoices and did not suffer any loss. The Court found that the trial judge made no error in finding that CF had not satisfied its evidentiary burden to prove the allegations.
4. Yes.
The Court noted that the plaintiff bore the burden of proving the existence and amount of damages. The Court then explained that, in this case, the trial judge was placed in a very difficult situation when it came to assessing damages. This was because there was no expert evidence on damages, and CF did not produce its financial statements or other records. Furthermore, there was no documentation from Canada Goose and no witnesses to attest to the deliveries made.
The Court explained that when reviewing an assessment of damages, it is necessary to bear in mind the standard of review. Errors of law are reviewed on a standard of correctness, and errors of fact and errors of mixed fact and law are reviewed on a standard of palpable and overriding error. A trial judge's findings with respect to damages are entitled to deference. Be that as it may, the Court found an error in principle and misapprehensions of evidence in the trial judge's assessment of damages in this case.
The Court held that the trial judge made an error of law when she decided to reduce the damages awarded by 50% because of CF's failure to establish that it had not mitigated its damages. The Court held that CF was under no obligation to establish that it could have mitigated its losses and failed to do so. That burden rested with NWC, and NWC did not advance any evidence on which such a finding could be made.
Furthermore, the trial judge found that Canada Goose paid $25 per strip, and that the furs that NWC actually provided produced an average on 5 strips per fur. However, the trial judge also found that the furs of the quality that NWC was obligated to provide would have generated an average of 9 strips per fur. In calculating loss of profit on the furs that NWC failed to provide, the Court found that it was an error to base the calculation on 5 strips per fur instead of 9 strips per fur. In other words, the calculation should have been based on the quality of furs NWC was contracted to provide, not on the quality of furs it actually provided.
Furthermore, the trial judge dismissed the claim for punitive damages. The Court held that the commercial dealings of NWC did warrant an award of punitive damages as a result of the unilateral raising of prices midseason, the delivery of subprime products, and the non-delivery of thousands of units. The Court held that compensatory damages were not sufficient to achieve the goal of punishment and deterrence for NWC's highly reprehensible conduct and awarded punitive damages against NWC in the amount of $25,000.
In the end, the Court dismissed NWC's cross-appeal on liability and costs and allowed CF's appeal in part.
S.R.I.S. v. N.Z., 2025 ONCA 304
[Lauwers, Nordheimer and Wilson JJ.A.]
Counsel:
S.R.I.S., acting in person
Okola, for the respondent
Keywords: Family Law, Parenting Time,
Decision Making, Child Support, Spousal Support, Variation,
Material Change of Circumstances, Divorce Act, R.S.C.
1985, c. 3 (2nd Supp.), Van de Perre v. Edwards, 2001 SCC
60, Hickey v. Hickey, [1999] 2 S.C.R. 518
facts:
This appeal arose from an acrimonious family law dispute involving former spouses and their two children. The couple separated after nine years of marriage and the Father was charged with sexual assault and forcible confinement involving the Mother, but the charges were withdrawn in favour of a peace bond. The Father then told the police that the Mother had physically and sexually assaulted the children, an allegation which the police and Durham Children's Aid Society ("DCAS") were unable to substantiate. The parties' parenting of the children was governed by a final order dated February 11, 2019, obtained on consent, requiring shared parenting time on a week-about schedule. Support was governed by a separate final order which required the Father to pay child and spousal support of $1,067 and $433 monthly, respectively.
The Mother brought a motion to change, asserting there had been several material changes since the final parenting order was obtained. She sought sole decision-making authority, primary care of the children and authority to travel with the children to Pakistan. The Father brought a cross-motion seeking sole decision-making authority and 80% primary care of the children. He also sought an order that the children be prevented from travelling outside of Canada until they were 19 years old, the termination of spousal support and a reduction in child support. The trial judge varied the orders, mostly on the terms sought by the Mother. However, she could not travel outside of Canada with the children without the Father's written consent. The trial judge also varied the support order to require the Father to pay the increased Table amount for child support, $1,347, based on his 2023 income, and to continue to pay spousal support with a set termination date. The Father appealed.
issues:
Did the trial judge err in her findings on the motions?
holding:
Appeal dismissed.
reasoning:
No.
The Court found that the trial judge's reasons were clear and sound, based solidly on the evidence and consistent with the Divorce Act. In high-conflict circumstances, the trial court must assess the evidence and make credibility findings in order to determine what is in the best interest of the children and this factual exercise attracts a high degree of deference on appeal: Van de Perre v. Edwards and Hickey v. Hickey. It was not the Court's function to retry the case and the Father had not shown that the trial judge made any errors of law or overriding errors of fact.
Regarding the support orders, again, the Father did not persuade the Court that the trial judge had made any errors of law or palpable and overriding errors of fact.
SHORT CIVIL DECISIONS
[Gillese, Gomery and Pomerance JJ.A.]
Counsel:
D., self represented
B., self represented
Keywords: Family Law, Parenting, Support, Variation, Material Change of Circumstances, Family Law Act, RSO 1990, c F.3, Duwyn v. Ross, 2024 ONCA 637, Cuthbert v. Nolis, 2024 ONCA 21
Bortoleti De Oliveira v. Ritchie, 2025 ONCA 299
[Lauwers, Favreau and Dawe JJ.A.]
Counsel:
Okundaye, for the appellant
B. D. O., acting in person
Keywords: Family Law, Child Support, Separation Agreements, Setting Aside, Civil Procedure, Leave to Appeal, Fielding v. Fielding, 2015 ONCA 901
Rout v. Firm Capital Mortgage Fund Inc., 2025 ONCA 287
[Huscroft, Coroza and George JJ.A.]
Counsel:
Soutter, for the appellants
Chadwick, for the respondents
Keywords: Contracts, Real Property, Mortgages, Enforcement, Penalty, Notice of Sale, Mortgages Act, R.S.O. 1990, c. M.40., Interest Act, R.S.C. 1985, c. I-15
[Coroza, George and Monahan JJ.A.]
Counsel:
A. Marinic, for the appellant
R.G. Cook and D. Bikic, for the respondents, T. Duggan, Elia Associates, B. Horlick, and S. Inkol
L. Di Pietro, for the respondents C. Debbert, Durham Condominium Corporation #45, and MCD Enterprises
Keywords: Torts, Defamation, Conspiracy, Real Property, Condominiums, Civil Procedure, Striking Pleadings, Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1
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