Court Of Appeal Summaries (August 25 To August 29)

Hello everybody. Today's edition of Blaney's OCA Summaries includes decisions in the following areas: family law, child welfare, abuse of process in a solicitor's negligence case, an interesting decision where bankruptcy law, the Execution Act, the Mortgages Act and property law all intersect to determine the priority of distribution, and a quirky decision in constitutional law regarding whether the long-standing prohibition of Catholics ascending to the throne of England is constitutional or even justiciable.

Harris v. Levine, 2014 ONCA 608 [Blair, Pepall, Hourigan JJ.A.] Counsel: Joseph Markin, for the appellants Louis C. Sokolov, for the respondent

Keywords: Abuse of Process, Negligent Representation by Lawyer, Issue Estoppel, Collateral Attack

Facts: The appellant unsuccessfully appealed two convictions arising out of previous criminal proceedings. In the appeal from the convictions, he initially alleged incompetence against his former defence counsel, the respondent in this appeal, but abandoned that allegation prior to the hearing of the criminal appeal.

The appellant then sued the respondent for negligently representing him in the criminal matter. The respondent successfully moved to have the appellant's claim struck on the basis that it was an abuse of process.

Issue: Did the motion judge err in striking the appellant's claim for abuse of process?

Holding: Appeal Dismissed.

Reasoning: In order for the appellant's negligence claim to succeed, he would need to prove that he would have been acquitted but for the negligence of the respondent. Permitting the claim to proceed would constitute a collateral attack on his criminal convictions. This should not be permitted, particularly given that the issue of counsel's competence was not pursued on the criminal appeal. The proper course before bringing a negligence claim is to appeal or otherwise seek to set aside the convictions.

Katz v Katz, 2014 ONCA 606 [Doherty, Simmons & Tulloch JJ.A.] Counsel: R. David & J. Krob, for the appellant S. Harris, for the respondent

Keywords: Family Law, s 7 Federal Child Support Guidelines, Divorce, Divorce Order, Costs, Life Insurance, s 14(19) Family Law Act, Evidence, Family Law Rules, O. Reg. 114/99, Civil Contempt, Feinstat v Feinstat, s 34 Family Law Act, s 15 Divorce Act

Facts: This was an appeal from a dismissal of two motions brought by the appellant for enforcement of the respondent's obligations under a divorce order. The divorce order specified that the respondent contribute to expenses for the parties' two younger children under s 7 of the Federal Child Support Guidelines, and obtain a $500,000 life insurance policy with the children designated as beneficiaries. With respect to the first motion, the respondent sought a finding of civil contempt against the respondent; with respect to the second motion, she sought an order that the appellant be entitled to obtain the required insurance and collect the premiums in the same manner as if it were child support. The motions judge dismissed both motions and made no order as to costs.

Issues: (1) Did the motion judge err in dismissing the appellant's enforcement motion as it related to s 7 expenses? (2) Did the motion judge err in failing to award the appellant substantial indemnity costs of the enforcement motion? (3) Did the motion judge err in failing to find the respondent in contempt for failing to obtain the life insurance specified in the divorce order? (4) Did the motion judge err in dismissing the enforcement motion as it related to the appellant's obligation to obtain life insurance...