Andrew Burgess

The applicants, daughters of the respondent, sought a declaration that their father's transfer of his interest in a $4.3 million mortgage to a family trust was a valid gift.

The father argued he lacked donative intent, believing he controlled and was a beneficiary of the trust, and alternatively claimed his daughters unduly influenced him.

The court found the father had donative intent, understanding the estate freeze and trust terms after receiving independent legal and accounting advice.

The court also found no undue influence, as the father acted freely and the daughters were not in a position to dominate his will.

The transfer was upheld as a valid gift.

The mother appealed a trial judge's finding that her child was in need of protection due to a risk of sexual abuse or exploitation.

The risk stemmed from the mother's brother, who lived in the home and was convicted of luring and child pornography offences involving his students.

The mother argued the trial judge erred by making the finding without expert evidence, by rejecting an expert report filed on consent, and by not requiring the risk to be present at the time of the hearing.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence and upholding the flexible approach to the timing of risk in child protection matters.

The Crown appealed the respondent's acquittal on a charge of refusing to provide a breath sample.

The trial judge had acquitted the respondent on the basis that the Crown failed to prove he was presented to a breath technician 'as soon as practicable' following the breath demand.

On appeal, the Superior Court held that presenting an accused to a breath technician 'as soon as practicable' is not an essential element of a valid demand under section 254(3) of the Criminal Code for the purposes of a refusal charge.

The appeal was allowed, the acquittal set aside, and a conviction entered.