SPOUSAL SUPPORT – The cham-
bers judge erred in law by calculating
the husband’s income based on an
average of the previous three years’
income.
Appeal from an order increasing spousal
support from $200 to $375 per month. The
wife had requested $1,000 per month. The
parties separated in 1998 after a 12-year
marriage. This was the second marriage for
both spouses. During the marriage the wife,
now 62, was a homemaker and caregiver to
the husband’s children. The husband, now
69, was employed full-time with Air Canada
during the marriage and was the primary
income earner of the family. He retired in
2005. In 2001, the wife was awarded perma-
nent spousal support of $1,000 per month
based on the husband’s annual earning cap-
acity of $48,000. In 2003, spousal support
was decreased to $475 per month as the
husband had been laid off and was unable to
work due to health problems. In 2005,
spousal support was further decreased to
$200. In 2008, the chambers judge calcu-
lated the husband’s annual income to be
$23,029 based on an average of his previous
three years’ income. The husband’s actual
2007 income was $35,333. The chambers
judge calculated the wife’s annual income at
$10,536 and increased spousal support to
$375. The effect of that increase was to dis-
qualify the wife from receiving her provin-
cial disability pension. The cancellation of
that pension in turn disqualified her from
receiving the provincial medical and dental
coverage that was included as part of her
disability allowance. She was now unable to
afford her own accommodation and had no
medical or dental coverage. Unlike the hus-
band, she had no capital to draw upon to
bridge the difference between her income
and financial needs.
and discharge from committal. Applicant
had a long history of schizophrenia and
involuntary detention. He was first admitted to the respondent centre in 2004, after
being found not criminally responsible for
harassment charges due to his mental disorder. Applicant was found incapable of consenting to treatment and detained. In 2007,
applicant was released into a boarding
house under the care of the community
treatment team. In 2010, applicant was
brought to the centre’s emergency room
because of his family’s concerns that he was
being aggressive. Applicant was involuntarily admitted. However, he filed a successful
non-suit motion and his involuntary admission was revoked and not extended. Applicant left the hospital. The centre intended to
appeal but, instead of serving applicant with
a notice of appeal, a psychiatrist served a
fresh application of psychiatric assessment
and applicant was detained again.
HELD: Application dismissed. The
fresh application requiring applicant’s
return was not correct in law since the
involuntary admission was no longer in
effect. However, habeas corpus did not
apply. The Mental Health Act (Ont.) and
the Health Care Consent Act (Ont.) provided complete procedure for review of the
involuntary admission order. Applicant
had received the Notice of Certificate and
rights advice and could apply to the Consent and Capacity Board to have the certificate reviewed, but had chosen not to. The
certificate had not been reviewed yet, so it
was still open to applicant to seek review.
He was not seeking any remedy outside the
jurisdiction of the Board.
Capano v. Centre for Addiction and
Mental Health, [2010] O.J. No. 1107,
Ont. S.C.J., Brown J., Mar. 18/10. Digest
No. 2947-014 (Approx. 10 pp.)
Respondent’s wife and litigation guardian
had provided evidence that the respondent
was doing well at the nursing home. The
minister appealed.
HELD: Appeal allowed. The Adult Protection Act (N.S.) was aimed at protecting
vulnerable adults from abuse and neglect. It
was not aimed at putting vulnerable adults
in more favourable situations than they
found themselves in. The judge too broadly
interpreted the Act’s definition of adult in
need of protection to include respondent,
where he was receiving excellent care but
simply wanted more time with his wife.
Nova Scotia (Minister of Health) v.
J.K.D., [2010] N.S.J. No. 144, N.S.C.A.,
per Hamilton J.A. (Bateman and Bever-
idge JJ.A. concurring), Mar. 24/10.
Digest No. 2947-015 (Approx. 7 pp.)
INSURANCE
HEALTH LAW
COMMITTAL OR DETENTION – An
application for a writ of habeus corpus
was dismissed because applicant could
still have his detention reviewed by the
Consent and Capacity Board.
Application for a writ of habeas corpus
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MENTALLY INCOMPETENT PER-
SONS – A judge misinterpreted the
Adult Protection Act (N.S.) in finding
respondent to be an adult in need of
protection.
Appeal from an order declaring respondent to be an adult in need of protection and
requiring the Ministry OF Health to pay for
transportation costs for his wife to visit him
in the nursing home where he lived.
Respondent was deemed an adult in need of
protection in 2008 following a Ministry
investigation. Respondent was at that time
living with his wife and was exhibiting
increasingly inappropriate behaviour due to
dementia and a congenital brain disorder.
He was placed in a Ministry-approved facility and a guardian was appointed for him.
Visits from his wife happened only once per
week due to her limited financial resources
and poor health. In May 2009, respondent’s
guardian applied for an order that he continued to be an adult in need of protection
and requiring the minister to pay for the
transportation costs of his wife to visit him
one additional time each week. The minister subsequently applied to terminate adult
protection involvement with respondent.
The judge found that respondent remained
in need of protection and that he was not
receiving adequate care and attention
because he was not able to have more than
one visit per week from his wife, his soul
mate upon whom he relied emotionally. The
judge did not refer to evidence from the staff
of the nursing home to the effect that
respondent was doing well in the home and
had stated that, although he would have
preferred to be living in his own home, he
liked the staff and food at the nursing home.
TITLE INSURANCE – Applicant was
unable to establish a defect in title or
unmarketability of title sufficient to
engage a policy of title insurance.
Application for a declaration that applicant was covered under a policy of title
insurance issued by respondent at the time
of its purchase of a commercial strip mall.
At the time of purchase, applicant understood that the five storage units in the lower
part of the building were leased by a storage
company. When the company defaulted on
the lease, applicant changed the locks and
took possession of the storage units. A third
party, B, then indicated that she had leased
two of the storage units and had paid the
monthly rent to the prior owner after applicant’s purchase of the property. There was a
written lease between the former owner and
B that had not been disclosed to applicant at
the time of purchase. Applicant argued that
the two competing leases for the two storage
units were conflicting and constituted a
defect in title at the time of the purchase
that was covered under the policy. Applicant
also argued that the alleged lease disclosed
that the lease to the company was bogus,
thereby making title unmarketable which
was also a risk covered under the policy.
HELD: Application dismissed. In order
to establish unmarketability of title within
the meaning of the policy, the claimant
must have a claim for loss or damage when
the claim was made. Even if there were two
leases in place at the time of closing for the
same space, any conflict which might have
existed between the legal rights of the tenants in relation to the two units covered by
the B lease had resolved by the time applicant discovered the second lease. The company had already defaulted and had been
locked out of the premises and the applicant
entered into a new lease with B. There was
no evidence of any loss or damage to applicant as a result of the alleged defect. Even if
applicant had a right to sue the vendor for
fraud, the potential claim did not constitute
a matter of title.
1764139 Ontario Inc. v. Stewart Title
Guaranty Co., [2010] O.J. No. 1106, Ont.
S.C.J., van Resnburg J., Mar. 18/10.
Digest No. 2947-016 (Approx. 6 pp.)
INTERNATIONAL LAW
EXTRADITION – The court rejected
appellant’s application for bail pending
appeal from a committal order for the
purpose of extradition.
Application for bail pending hearing of
his appeal from a committal order for the
