in evidence against him. The judge also
erred in failing to take into account that
accused had answered the question about
his jacket because he was cold. Furthermore, the judge misapprehended the evidence when he found that accused
declined the offer of other jackets because
accused was not offered other jackets. A
new trial was ordered.
R. v. Brown,  O.J. No. 4059,
Ont. C.A., per Laskin, Sharpe and
Epstein JJ.A., Sept. 28/10. Digest No.
3024-012 (Approx. 5 pp.)
CUSTODY – Appellate court refused
application to stay an order transfer-
ring custody of a child to the mother
pending appeal of the order.
Application by the father for a stay
pending appeal of an order transferring
custody of his nine-year-old daughter to
her mother. The trial judge ordered the
transfer of the child to the care of her
mother with no access rights for the father
for a period of time. The father was
directed to undergo counseling regarding
his parental alienation with the goal of
restoring equal parenting. The parties’
common law relationship ended in 2006.
The parties had shared parenting until
2008, when the father refused to return
the child to the mother and made the first
of many complaints to Child, Youth and
Family Services regarding the behaviour
of the mother’s new partner, who had a
criminal record. The father alleged there
was violence in the home and that the
mother’s mental health placed the child at
risk. The father’s numerous complaints
were found to be unsubstantiated. The
judge determined that the father had
alienated the child from her mother.
custody of the four children of the marriage and for leave to move with the children to Florida. The mother was a citizen
of Spain and held an American permanent resident card. She only had visitor
status in Canada. The father was an American and Canadian citizen. The mother
had a company in the U.S. and was not
permitted to work in Canada. She claimed
that she must return to Florida to maintain and grow her business. The father
was currently unemployed and only
worked periodically. The parties had lived
in Spain from 2002 to 2009 and then
moved to Florida, where the children
attended school. The family moved to
Ontario when the father lost his employment. Due to marital problems, the
mother and children had moved to a shelter for months. The father had only supervised access.
HELD: Application allowed. The
mother was granted interim custody and
was permitted to move to Florida. Due to
the supervision requirement respecting
the father’s access, the mother must have
interim custody. Such interim custody
was consistent to the extent that the
mother had been the principal caregiver
of these young children. The children’s
well-being was directly tied to the mother’s ability to earn a living which she could
do more ably in Florida where she had a
historical and real business connection.
There was no identified business/employ-ment requirement necessitating the father
to remain in Ontario. The significant
improvement in the children’s economic
circumstances by moving to Florida could
not be ignored. The balance of convenience clearly favoured the children, as it
was in their best interests to remain in
Florida in the current schools. Considering that the father had not exercised
access for months while the children still
resided in Ontario, he could not now
argue that the children would suffer
irreparable harm due to the limited contact with him since their move to Florida.
Alcaniz v. Willoughby,  O.J. No.
4009, Ont. S.C.J., Kane J, Sept. 23/10.
Digest No. 3024-014 (Approx. 14 pp.)
The judge erred, however, by failing to
provide reasons for ordering lump sum
support. There was no evidence that the
wife would suffer any adverse tax consequences, either on a retroactive or prospective basis, if the spousal support was
periodic instead of lump sum. The husband, however, would receive a substantial tax benefit if periodic support were
ordered. The judge’s order for pre-trial
spousal support should be calculated as
$120,000 for the deficiency in payment of
the spousal support entitlement for the
44-month period from separation to trial
plus $58,418 which had been collected by
maintenance enforcement. That amount
resulted in a monthly award of $4,054 for
the 44-month period. The husband was
credited with the $58,418 already paid.
Ongoing spousal support was varied to
$800 per month for three years.
Rockall v. Rockall,  A.J. No.
1064, Alta. C.A., per Côté, Watson and
Bielby JJ.A., Sept. 27/10. Digest No.
3024-015 (Approx. 9 pp.)
CUSTODY – Mother was granted
interim custody of the four children of
the marriage and allowed to move with
the children to Florida.
Application by the mother for interim
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SPOUSAL SUPPORT – Appellate
court upheld award of spousal support
but changed lump sum payments to
Appeal from a judgment ordering the
husband to pay $120,000 lump sum
arrears of spousal support in addition to
$58,418 in support already received and a
further lump sum of $28,800 representing support of $800 per month payable over three years. The parties married
in 2001 and separated in 2006. They had
no children. The wife suffered from AIDS.
The husband knew that the wife was HIV
positive at the time of marriage. The trial
judge found that the wife’s illness impacted
on her ability to work. The husband’s
2006 income was $157,996. He indicated
that his 2009 income would be between
$140,000 and $150,000. The wife owned
little and lived in a women’s shelter at the
time of trial.
HELD: Appeal allowed in part. The
lump sum awards were converted into
monthly awards. The trial judge did not
err in finding that the wife was entitled to
spousal support on a non-compensatory
basis because of her health, which
removed both her ability to support herself and to replace the benefits she experienced while cohabiting with the husband.
– Appellate court set aside injunction
against former employee of respondent
and modified injunction against two
other former employees.
Appeal by the personal defendants
from an order granting respondent, their
former employer, an interim injunction
prohibiting employment with their new
employer and requiring the return of confidential information and disclosure of all
contacts made by them with customers
and former customers of the respondent.
Appellants entered into a written employee
confidentiality and non-disclosure agreement. Appellants had not entered into
non-competition agreements. The confidentiality and non-solicitation agreements
were unlimited both as to time and territory. Appellants eventually became
employees of A Ltd. Respondent alleged
that the appellants were key management
staff and had been targeted for employment with A Ltd., as a start-up company,
because of their access to respondent’s
confidential information. There was evidence that appellants B and L were acting
together in obtaining confidential information and that they were well aware that
this conduct was improper. Respondent
alleged that appellant M, after leaving
respondent’s employment, was in contact
with one of respondent’s customers in an
effort to solicit its business.
HELD: Appeal allowed in part. The
injunction against M was set aside.
Although an injunction was appropriate
against B and L, it was overly broad. It was
highly unlikely that respondent could justify the confidentiality and non-solicitation
agreements. A former employee was
entitled to compete with his former
employer. The clause prohibiting appellants from working for A Ltd. was set aside.
It seemed unlikely that respondent would
successfully demonstrate that fiduciary
duties were owed by M. Although she may
have fulfilled an important and central job
with respondent, her job description did
not place her in the ranks of management.
B and L were complicit in their wrongdoing against respondent. They had conducted themselves in a dishonest and disloyal way. Given their misconduct in
surreptitiously collecting confidential
information for A Ltd.’s benefit, it was