Chaudhary v. Canada (Attorney Gen-
eral), [2010] O.J. No. 4751, Ont. S.C.J.,
Belobaba J., Nov. 9/10. Digest No. 3031-
012 (Approx. 7 pp.)
GUARANTEES
FAMILY LAW
ACCESS – Father was granted access
to the parties’ child on a gradual basis.
Application by the mother for custody of
the parties’ two-year-old son. Since the parties’ relationship ended in 2008 the son had
been in the care of the mother and the
father had little access. The mother asserted
that the father and his family ought to have
no access to the boy. The father sought joint
custody and weekend access, plus an order
preventing the mother from leaving the
jurisdiction with the boy without his written
consent. The mother now had a new partner and was seven months pregnant. She
was a college student and was studying to
become a social service worker, and she was
supported by her parents. The father had
two children by another mother, to whom
he had access on weekends. He was presently attending school full time to obtain his
high school diploma. The mother alleged
the father was a heavy marijuana user and
that he engaged in smuggling.
HELD: Application allowed in part. The
child had been in his mother’s care since
birth. He was normal, healthy and happy.
The father and his family were virtually
strangers to him. However, the father had a
partner and appeared to be in a stable rela-
tionship. There was no cogent evidence
that the father was presently involved in
cigarette smuggling and he had no criminal
record for domestic violence. The mother
was granted sole custody. However, it was
in the boy’s best interests to have access
with his father. The father had persevered
in the litigation, taken a parenting program
and an anger management course. He
ought to be given the opportunity to prove
his commitment to the boy. The father was
to have a one hour supervised visit with the
boy for the first three weeks, increasing to
two visits for three weeks, etc. After three
months, the matter was to be brought back
to the court for review. The father was to
attend drug testing.
SPOUSAL SUPPORT – Court
refused husband’s motion to terminate
spousal support.
Motion by the husband to terminate
child and spousal support. The parties
agreed that the children had not been
dependent since 2007. The parties resided
together for 18 years. They separated in
1998. The husband paid $1,000 per moth in
spousal support pursuant to a 2000 separa-
tion agreement. At the time, the husband
earned $75,000 and the wife earned
$11,075. The husband was now in a new
relationship and had a new child. He
planned to retire in 2012. He earned
$100,000. The wife’s income had increased
to $17,128 and she had some rental income
from a daughter. The wife was a full-time
homemaker for most of the relationship and
suffered from multiple sclerosis, which sig-
nificantly affected her ability to work.
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UNDUE INFLUENCE – Guarantee
executed by respondent was
unenforceable based on the defence of
economic duress.
Appeal from the dismissal of appellant’s
action for enforcement of a guarantee.
Appellant agreed to lend respondent
$75,000 pursuant to a commitment letter.
It was last resort financing for respondent.
The security portion of the loan commitment made no reference to a personal
guarantee. However, in its written instructions to its solicitor, appellant listed personal guarantees as required security. At
closing, the solicitor presented the guarantees to respondent. Respondent protested
that the guarantees were not a requirement
of the loan commitment. Respondent was
told that funds would not be advanced
without the guarantees. The guarantees
were ultimately signed and the loan was
advanced. In appellant’s action for enforcement, the trial judge found that the guarantee was unenforceable, as it was obtained
through undue influence due to respondent’s precarious debt position.
HELD: Appeal dismissed. The appropriate legal analysis was based on the doctrine
of economic duress rather than that of undue
influence. The binding nature of the loan
commitment letter was the critical starting
point for the determination of whether coercion arose. Here, appellant’s representative,
in the absence of a contractual provision
requiring personal guarantees, and knowing
that respondent was under pressure from an
existing lender, coerced respondent to agree
to vary the terms of the loan commitment
without further consideration. There was no
suggestion or insistence by appellant’s counsel that respondent should first obtain
independent professional advice. The guarantee was unenforceable based on the
defence of economic duress. In addition,
appellant failed to comply with the legal
requirements for a proper and enforceable
demand on the guarantee.
Burin Peninsula Community Business
Development Corp. v. Grandy, [2010]
N.J. No. 357, Nfld. & Lab. C.A., per Har-rington J.A. (Mercer and White JJ.A.
concurring), Nov. 17/10. Digest No. 3031-
016 (Approx. 11 pp.)
INJUNCTIONS
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SPOUSAL SUPPORT –Husband
ordered to pay spousal support of
$1,500 for two more years.
Appeal from an order increasing
spousal support payable by the husband
from $1,175 to $2,750 per month retroactive to 2008 and directing a review
within two years. The parties married in
1983 and separated in 1993. The three
children of the marriage resided with the
wife after separation. The wife left the
workforce in 1985 after the birth of the
first child. She had not worked since. She
claimed she was unable to work due to
postural deficiency syndrome. The children moved in with the father and he
eventually stopped paying child support.
The wife then sought an increase in
spousal support. The chambers judge concluded that although there was no reason
the wife had taken no steps towards self-sufficiency, the cost of living had increased
since the 1993 order warranting an
increase in support. The husband’s income
for the past three years had been around
$150,000 per annum.
HELD: Appeal allowed. Support was
decreased to $1,500 per month payable for
two years. There was no error in the chambers judge’s decision to continue spousal
support for two years. It was reasonable to
provide the wife with support over a transitional period while she finally addressed
her need to become self-sufficient. The
judge erred, however, in setting the
amount of support at $2,750. Her reasons
neither explained nor justified that
amount. Nothing in the reasons indicated
that the judge considered the economic
hardship suffered by the husband in shouldering financial responsibility for the three
children and the wife that was far beyond
what was required by the 1993 order. The
wife had a marginal entitlement to future
support. Her financial hardship could not
be attributed to the marriage or its breakdown. The judge erred in ordering a
review. The wife had 17 years since the
marriage breakdown to take the steps
necessary to attain self-sufficiency. Her
failure to do so was due solely to her own
improvident choices. There was also no
basis for a retroactive order.
Aspe v. Aspe, [2010] B.C.J. No. 2209,
B.C.C. A., per Neilson J. A. (Finch C.J.B.C.
concurring), reasons dissenting in part
by Frankel J.A., Nov. 16/10. Digest No.
3031-015 (Approx. 11 pp.)
PICKETING – Plaintiff was granted an
interlocutory injunction to limit the abil-
ity of picketers to block the entrances to
its office complex.
Motion for an interlocutory injunction
restraining unionized receiving and shipping employees, who had been locked out in
a labour dispute, from blocking vehicular
entrance or exit from plaintiff’s office complex. The office complex housed more than
235 business and retail tenants, and more
than 11,000 people worked in the complex.
The office complex had a large underground
parking garage, containing 1,037 parking
spaces, most of which were used by employees of tenants who had monthly passes.
Deliveries of materials to the complex were
made through a receiving entrance located
near the entrance to the parking garage.
After failed negotiations for a new collective
agreement between plaintiff and the union,
members of the bargaining unit were locked
out. Thereafter, an informal picketing line
protocol was negotiated which permitted
bargaining unit employees to hold up
