Proevski v. Roffel, 2020 ONCJ 310

Counsel for the Applicant, Ms. Zakiya Bhayat (Nussbaum Law)

The Applicant brought an Application on May 5, 2020, seeking a Restraining Order as against the Respondent.

Issue:

The Respondent pled that the courts had no jurisdiction to make a Restraining Order as the parties were not spouses and had not cohabited together (threshold issues under s 46(2) of the FLA)). Despite his position, the Applicant was seeking an Order pursuant to section 35 of the CLRA.

Background:

The Applicant had a child from a previous relationship. The parties had a short-term relationship from October to December 2019.

Post-breakup, the Respondent behaved in the following way:

  • Frequently texted the Applicant, threatening to call Children’s Aid Society (CAS) on her (albeit failing to suggest why);
  • Hacking the Applicant’s Facebook account and sharing a private photo of the Applicant in an unclothed state;
  • Speaking to the Applicant’s personal friends and indicating that he obtained a great deal of information from them about the Applicant; and
  • Parking in the Applicant’s parking lot of her residence.

Outcome:

With the assistance of our firm, the Applicant was successful in her claim for a Restraining Order, including:

  • Prohibiting the Respondent from having any direct/indirect contact with the Applicant or her children;
  • Prohibiting the Respondent from being within 200 metres of any location where he reasonably expects the Applicant or her children to be; and
    • Including the Applicant’s residence or employment.

Analysis:

The most crucial point of Justice Spence’s analysis was his reference to the Purewal decision. Herein, Justice Spence cited that there is no requirement that there must be a period of lengthy harassment as a pre-condition to successfully obtaining a Restraining Order. Rather, there needs to be “some element of persistence in pursuing a course of intrusive, troubling and meddlesome behaviour over some period of time.” That said, the Respondent did not show any signs of his behaviour coming towards an end.

The case in its entirety can be read here.



Al-Hadad v. Al Harash, 2020 ONCJ 269

Barry Nussbaum, Counsel for the Respondent

The Father claims a wrongful retention by the mother of their child in Canada and seeks a return to Germany, pursuant to the Hague Convention (this convention is incorporated into s 46 of the CLRA). He claimed that he only agreed to allow the Mother to vacation to Canada to visit her family. 

Issue:

The case considered whether the mother had established any of the defences set out in the Hague Convention. In the event that she failed to do so, the child would be returned to Germany.

Background:

There is one (1) child of the relationship. The parties married in Syria on February 17, 2016 and last lived together in Germany from June 2017 until the Mother and child came to Canada on March 30, 2019.

The two articles of the Hague Convention applicable here were articles 12 and 13. Under Article 13, the judicial authority is not bound to order the child to return if the person opposing its return establishes

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation

Analysis:

Justice Paulseth cited Pollastro, where the Court of Appeal held that a grave risk of harm to a child’s primary caregiver could constitute grave risk of harm to a child. The Mother was subjected to the Father’s control from the beginning of the marriage. He did not allow her to have her own bank account and did not permit her to leave the apartment or open curtains without his approval. The mother was abused verbally, physically and sexually, including but not limited to the following instances:

  • Pounding on the mother’s head with his knuckles;
  • Locking her in her apartment;
  • Kicking her;
  • Shoving her to the ground and kicking her; and
  • Ridiculing her size when pregnant.  

The Father also physically disciplined the child, including but not limited to the following:

  • Dragging the child;
  • Throwing him hard on the bed;
  • Hitting him on the arm; and
  • Breaking his toys.

Outcome:

With the assistance of our firm, the Mother was able to satisfy this very high threshold. Justice Paulseth dismissed the Father’s application, on the following:

  • There being a grave risk that the child would be exposed to ongoing physiological and psychological harm if returned;
  • The abuse will happen again. The father’s denial and minimization of the abuse indicates that he has no insight into the harm he has caused to the mother and to the child;
  • The ongoing abusive conduct by the Father towards the Mother and the child is more than likely and would place the child in an intolerable situation; and
  • That the Father exercised physical and emotional abuse of the mother, emotional abuse of the child, control over the mother and child, isolation of the mother and child, and the isolation of the community.

Read the case in its entirety here.


Lonsdale v. Smart, 2018 ONSC 3991

Two associates of the office, Ms. Erika Chan (Applicant) and Ms. Ysamin McGann (Respondent) battled this custody and access case, prior to their employment with Nussbaum Law.

Issue:

The Applicant brought a Motion to Change requesting custody of the two children on the basis of interim care of the children, subject to access to the Respondent.

Background:

Since the parties’ separation in 2011, the children lived with the Respondent. The Applicant’s motion to change was brought due to his concerns with the actions of the Respondent. Specifically, the Respondent neglected the children, failed to ensure they attended school and failed to meet the children’s basic needs. In addition, one of the children was troubled with suicidal ideation. 

The Respondent did not want the motion to change, arguing that she provided a good home for the children and that any shortcomings in the children’s lives were due to her poverty issues.

The Applicant claimed that the Respondent had substance abuse issues and requested both participate in routine drug testing. However, only the Applicant was in a position to provide stable housing, with his full time job and family support system.

Outcome:

The Applicant was successful in obtaining a variation in the primary residence of the children to be placed in the immediate care of the Applicant, with access to the Respondent every second weekend and Tuesdays and Thursdays from after school to 9:00 pm.

Analysis:

This variation order was in the best interests of the children. However, when a party is seeking a change in a long-term order, further evidence is necessary. Justice J.P.L. McDermot considered the following further evidence:

  1. The court must find a material change in circumstances concerning the children; and
  2. The court must take extreme care when changing the status quo, and typically, are only provided in “exceptional circumstances where immediate action is mandated” (Grant v Turgeon). This is a high threshold because to change a custody order or the status quo runs the risk of the children having to go through two further changes.

The courts recognized that the following material changes in the circumstances of the children existed in order to warrant immediate action:

  • The Applicant having stable housing, employment and mandatory drug testing necessary to maintain his job;
  • The Applicant maintaining sobriety since July 26, 2017;
  • The Applicant’s support of his mother (social worker) and fiancé;
  • The Respondent’s failure to provide a stable home;
  • The Respondent’s alcohol consumption and criminal charges against her mother;
  • The Respondent’s failure to have the children maintain a consistent school attendance;
  • The Respondent’s failure to engage Landon regularly with his counselling attendance and plan;
  • The Respondent’s failure to provide the basic needs for the children; and
  • The Office of the Children’s Lawyer’s evidence indicating that the children have changed schools six times.

Read the case in its entirety here.


Neger v. Neger

Our firm was retained by the plaintiffs in the case of Neger v. Neger, 2018 ONSC 6739.

Background:

The Plaintiffs commenced an action for misrepresentation and breach of fiduciary duty in relation to the proceeds of a life insurance policy in the name of the deceased, Anna Neger (“Anna”).

The subject matter of the dispute was a Family Trust. The Trust was executed in New Jersey but stated that New York law governs. The Trust was created pursuant to a Trust Agreement which stated that the beneficiaries of the trust were the defendants. The Trust Agreement further stated that “it is not anticipated that this trust will have assets other than insurance on the Grantor’s life.”

The instructions of the Trust arrangement stated that the Trust was created to purchase an insurance policy insuring Anna’s life (the “Policy”). The Policy was then to be sold by the Estate Trustees on the open market to an arms’ length third party for a profit.

The policy was never actually sold to an arm’s length third party due to unfavourable market conditions and was instead sold to one of the Defendants.

When the policy eventually paid out 5-6 million dollars, the Plaintiff’s alleged causes of action for misrepresentation and breach of fiduciary against the Estate Trustees for failure to sell the Policy to an arm’s length third party. They also were seeking an accounting for their share of the proceeds.

The Defendants claimed that they were entitled to the proceeds.

Jurisdiction Claim:

The Defendants brought a motion to stay this proceeding claiming that the Ontario courts lack jurisdiction simpliciter because there was no presumptive connecting factor.

Issues:

The Defendants’ motion to stay the proceeding raises the following issues:

  • Does the Ontario court have jurisdiction simpliciter over the dispute?
  • Can the Defendants rebut the presumption of jurisdiction?
  • Is Ontario forum non conveniens?

Result:

With the assistance of Barry Nussbaum, the Plaintiff was able to prove that the court had jurisdiction simplicter and was a convenient forum. Additionally, the Defendants had to pay the Plaintiffs costs of $12,000 in this matter.

The case can be read in its entirety here.


Somerville v. Vassileva

Our firm was retained by the Plaintiff in the case of Somerville National Leasing and Rentals Ltd. v. Vassileva, 2019 ONSC 2693.

In 2014, a sales representative for the Plaintiff, arranged a lease of a 2011 Rolls Royce Ghost vehicle to the Defendant. The Lease Contract stated that in the event of any loss, the Defendant shall pay any deficiency to the Plaintiff. The Defendant denied having read/signed the Lease Agreement and therefore denied payment when the car was eventually returned in 2015 with considerable damages in the amount of $25,744.79.

The Plaintiff commenced a court proceeding, seeking $86,024.36 in claims for damages and outstanding fees under the Lease.

The Defendant, while not disputing the damage value, did deny having ever leased the vehicle, instead claiming that someone had forged her signature.

With the assistance of Barry Nussbaum, the Plaintiff was successful in their claim and entitled to a Judgment in the full amount of $86,024.36 plus pre-judgment interest at the rate of 2 per cent per annum.

The case can be read in its entirety here.


Sipsas v 1299781 Ontario Inc

Our firm was retained by the Defendants in the case of Sipsas v 1299781 Ontario Inc., 2016 ONSC 212.

Background

The Plaintiffs and Defendants owned adjoining properties. The Defendants were selling their land, and the Plaintiffs sought a declaration that they owned a portion of the Defendants land, through adverse possession, as they had been using part of the Defendants land since they had purchased the property four years prior.

As the Plaintiffs had only owned the land for four years, it had to be determined the previous owners use and intention of use in the land too as the law of adverse possession requires that adverse possession has been ongoing for at least ten years.

In this case the Court canvassed the law of adverse possession of land:

The trial judge applied a three-part test in that to show adverse possession, a claimant must have:

(1) had actual possession;

(2) had the intention of excluding the true owner from possession, and

(3) effectively excluded the true owner from possession.

Barry Nussbaum successfully argued to the court that these factors did not sufficiently exist in this case and thus the judge dismissed their claim.

The case can be read in its entirety here.


Alqudsi v. Dahnus, 2016 ONCJ 707

In this case, Mr. Nussbaum successfully argued that the Father should have sole custody of the children. Even though the Mother was the children’s primary caregiver while the family lived in the Middle East, the Father’s parenting role evolved in Canada and he became an equal caregiver. Post-separation, the parents had a shared parenting regime. The judge ultimately found that the Father was supportive of the children’s relationship with the children while the Mother sought to limit the Father’s parenting role and time with the children. The Mother tried to argue that the children required the stability of one home, however she presented no evidence to suggest that the children were not doing well under the status quo shared parenting regime. Ultimately, the Father was the only parent who understood the importance of the children having both parents actively involved in their lives and having as much contact with each parent as possible.


Children’s Aid Society Children’s Aid Society of Toronto v. C.D., 2015 ONCJ 36

Mr. Nussbaum defeated the Children’s Aid Society of Toronto after the Society apprehended two children from their parents. The parents in this case had a very untidy home and the Father was in possession of drugs. After demonstrating that these concerns, among others, could be addressed by the parents to better the environment for the children, the judge decided that the least intrusive option for these children was to return them to their parents’ home, with continued supervision and support from the Society.


Pearson v. Whittingham

In this case, the Father consented to the Mother primarily caring for the child. However, he did not consent to her relocating outside of Ontario and when he discovered that she relocated to Alberta, Mr. Nussbaum successfully argued that there is no presumption in favour of a primary caregiver who wants to relocate with a child. The child’s best interests is the primary consideration in these scenarios. Mr. Nussbaum also successfully argued that Ontario was the proper jurisdiction to hear the case, given that he brought his Application soon after the Mother relocated and the judge found that the child’s habitual residence remained in Ontario.

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