A. Macdonald

The plaintiff, a golf course operator, sought an interim injunction to regain possession of the golf course after the defendant owner purported to terminate their lease agreement.

The lease included a profit-sharing arrangement.

The defendant alleged breaches including failure to obtain a liquor license, poor record-keeping, and self-dealing by the plaintiff's principals, specifically pocketing cash from memberships and restaurant sales.

The court dismissed the plaintiff's motion, finding that the plaintiff failed to establish a strong prima facie case or irreparable harm, and that the balance of convenience favored the defendant due to the plaintiff's "unclean hands" and the irreparable breakdown of trust in the profit-sharing venture.

In a child protection proceeding, the court held a focused hearing to determine whether three children were First Nations, Inuk or Métis children under the Child, Youth and Family Services Act.

The court found that the two older children were First Nations children based on their own self-identification and ancestral connection through their father.

The youngest child, who had a different father and no paternal Indigenous ancestry, was also found to be a First Nations child based on her sibling relationship with the older children, despite the court's concerns regarding the mother's standalone claim of Indigenous identity.

The Children's Aid Society brought a protection application regarding a six-year-old Indigenous child due to the mother's severe and ongoing alcohol abuse.

The child had been residing with the maternal grandmother under a voluntary safety plan.

The Society and the father sought to have the child placed in the father's care, while the mother sought to have the child remain with the maternal grandmother under a supervision order.

The court found the child in need of protection and determined that the mother had 'charge' of the child prior to intervention.

However, returning the child to the mother was unsafe.

The court concluded it was in the child's best interests to be placed in the custody of the father, who offered long-term stability and supported the child's Indigenous heritage.

A final custody order was granted to the father, with supervised parenting time for the mother and contact time for the maternal grandmother.

The respondent father applied for a mistrial in a child protection proceeding, alleging numerous procedural irregularities and disclosure failures by the applicant agency.

The Office of the Children's Lawyer joined the application, while other parties opposed it.

The court reviewed the established test for mistrial, emphasizing it as a measure of last resort for fatally wounded trial processes.

While acknowledging the applicant's chaotic and haphazard disclosure practices and inefficient trial management, the court found that the cumulative effect of the issues did not fatally compromise trial fairness.

The court ordered certain evidence struck and mandated further disclosure from the applicant, but ultimately dismissed the mistrial application, prioritizing the child's best interests and avoiding further delay.

The applicant child protection agency sought to qualify an expert in child maltreatment.

The court conducted a voir dire to determine the admissibility of the expert's opinion evidence.

The court found that "child maltreatment" as a general field of scientific inquiry lacked threshold reliability as a novel science, as there was no evidence of tested theories/techniques, peer review of the general discipline, or established standards for information quality.

Furthermore, the court determined that the expert was engaged for litigation purposes, not as a "participation expert" and thus failed to comply with Rule 20.2(2) of the Family Law Rules.

Consequently, the expert was not qualified, and his report was not admitted, as the risks of admitting unreliable evidence outweighed any benefit.

The Children's Aid Society brought a motion for summary judgment seeking a final order for the extended care of twin children and specific access arrangements, based on the mother's history of mental health issues, domestic violence, and substance misuse.

The court found the children to be in continuing need of protection.

However, it dismissed the Society's motion for summary judgment regarding the disposition, finding a genuine issue for trial.

The judge emphasized the mother's recent significant progress in addressing protection concerns, including during her pre-trial detention, and cautioned against unduly emphasizing the length of time children have been in care when court delays are caused by the COVID-19 pandemic.

The matter will proceed to trial on the issue of disposition.

This is a temporary care hearing under section 94 of the Child, Youth and Family Services Act to determine placement of a nine-year-old child during adjournment of a child protection application.

The central issue is the effect of a Kinship Services Agreement (KSA) entered into between the mother, maternal grandparents, and the Society in May 2019, which placed the child with the grandparents due to the mother's substance misuse.

The father, who had access rights only under a 2013 custody order, was not notified of the KSA.

The court determined that the KSA was a voluntary safety plan, not a statutory intervention under Part V, and therefore did not crystallize intervention until the protection application was commenced.

The court found the grandparents had charge of the child at the time of formal intervention and ordered the child remain in their temporary care.

A Form 14b motion brought by Brant Family and Children's Services seeking a final order in accordance with an Agreed Statement of Facts.

The court found the child continues to be in need of protection and that placement with paternal grandparents is in the child's best interests.

However, the court rejected many of the proposed access terms as overly broad and not properly tailored to harm reduction.

The court modified the order to remove conditions requiring parents to complete programming and demonstrate sobriety as prerequisites to access, while maintaining supervision and a restriction on the father's residence in the grandparents' home.

The respondent father brought a motion to amend his pleadings and re-open a partially heard summary judgment motion to file further evidence.

He sought to add claims for joint custody, child support, and a restraining order.

The court found no evidentiary basis for joint custody or child support claims, noting the father was not the primary caregiver and the parties could not communicate.

The court permitted the father to amend his pleadings solely to advance a claim for access, as it was in the child's best interests to have a relationship with both parents.

The court also adjusted temporary child support to reflect the father's updated income.

The respondent sought to amend his pleadings to advance claims for joint custody, child support, and access to the subject child, and to re-open a partially heard motion for summary judgment.

The court found that while the respondent had a right to amend pleadings under the Family Law Rules, many of the proposed claims lacked legal or evidential merit, including joint custody, section 7 extraordinary expenses for transportation, and a restraining order.

The court permitted amendment only for access-related claims, adjusted temporary child support based on the respondent's disclosed income, and scheduled the motion for summary judgment to continue.

The court emphasized that the respondent's primary deficiency was not deficient pleadings but rather the lack of a practical and workable access plan.

The accused was charged with impaired driving.

A Charter application was brought challenging the reasonable and probable grounds for the breathalyzer test based on the possibility of residual mouth alcohol affecting the accuracy of the roadside device.

The court distinguished the case from R. v. Becker on three grounds: the presence of a passenger who admitted to drinking, the beverages being at room temperature rather than cold, and the officer's administration of a residual mouth alcohol disclaimer to which the accused responded that consumption was an hour prior.

The court found no Charter breach and entered a finding of guilt.

The accused was stopped at a RIDE program and failed a roadside breath test.

Before leaving the scene, the arresting officer discovered open alcohol in the vehicle and the accused admitted to drinking while being stopped.

Despite knowing the risks of mouth alcohol, the officer did not conduct a second roadside test.

The court found this failure vitiated the officer's reasonable and probable grounds for arrest.

Additionally, there was an unexplained seven-minute delay in providing the accused with his right to counsel.

Due to these multiple Charter breaches, the court excluded the breathalyzer readings under section 24(2) and acquitted the accused.

The accused was stopped at a RIDE program and subjected to a roadside breath test which he failed.

He was arrested and transported to the detachment for an Intoxilyzer test.

Open alcohol was discovered in his vehicle, and the accused subsequently admitted to consuming alcohol in the car.

The arresting officer, despite 18 years of experience and knowledge of mouth alcohol risks, failed to conduct a second breath test or consider the 15-minute rule.

The court found two Charter breaches: first, the failure to reassess reasonable and probable grounds after discovering open alcohol and the accused's admission of recent consumption; and second, a section 10(b) right to counsel violation.

The court excluded the Intoxilyzer readings and acquitted the accused.