Aubrey D. Hilliard

The defendant brought a Charter application alleging a violation of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

The defendant was arrested following a failed breath screening device test during a marine safety inspection.

He challenged the admissibility of breath samples obtained after his arrest, arguing that police failed to provide sufficient information about his right to counsel and that his waiver was not informed.

The court found no breach of the defendant's Charter rights, holding that the defendant was provided adequate information about his right to counsel, that he did not assert his right to counsel, and that his waiver was clear, unequivocal, and informed.

A motion brought by a respondent mother seeking the return of a child to her joint care with the maternal grandmother, or alternatively, expanded access including alternate weekends and mid-week visits.

The child had been placed in the care of the Children's Aid Society following a breach of supervision order terms.

The court considered the appropriate legal test for changing a temporary care order on a status review application and determined that a change in circumstances sufficiently material to warrant review must be demonstrated.

While the mother failed to meet the threshold for placement review, the court found sufficient grounds to expand access based on positive access history and the child's best interests.

The appellant municipality appealed the dismissal of charges against the respondents for unlawfully operating a public storage facility on four properties zoned Highway Commercial C3.

The trial justice found the by-law unclear regarding public storage and dismissed the charges.

On appeal, the court held that the by-law contained an overall prohibition on land uses not specifically permitted, and public storage was not enumerated as a permitted use in the C3 zone.

The court found the use was unlawful both at the time of purchase in 1988 and at present, therefore the defence of legal non-conforming use failed.

The appeal was allowed and convictions were registered.

The applicant sought a finding that the respondent stood in the place of a parent to one child (Sarah) and requested child support in the amount of $342.00 per month, as well as an order requiring the respondent to meet the children's medical needs.

The respondent sought temporary custody of his biological child (Olivia) or, alternatively, joint custody with primary residence.

The court found that the respondent stood in loco parentis to Sarah based on the Chartier factors, including his financial contributions, daily caregiving, representation as a parent, and the child's lack of relationship with her biological father.

However, the court ordered reduced interim child support of $200.00 per month rather than the guideline amount, given the lack of evidence regarding other financial resources available to the child.

The respondent's motion for custody or primary residence of Olivia was dismissed as not being in the child's best interests on an interim basis.

The defendant was charged with refusing to comply with a breath demand, failing to provide assistance, and failing to exhibit required navigation lights under the Canada Shipping Act.

The defendant brought a Charter application alleging violations of sections 7, 8, 9, and 10(b) of the Charter.

The court found that the defendant's rights under sections 9 and 10(b) were violated.

The defendant was arrested for a Canada Shipping Act violation and placed in handcuffs without justification.

The officer then questioned the defendant about alcohol consumption prior to providing the right to counsel, which was found to be a breach of section 10(b) rights.

The court excluded all evidence obtained in violation of these Charter rights under section 24(2).

Grandparents sought interim access to their granddaughter following the respondent mother's unilateral termination of all contact in April 2018.

The court applied the three-part test from Chapman v. Chapman to determine whether grandparent access was in the child's best interests.

While the court found that a positive grandparent-grandchild relationship had existed, it concluded that by the time of termination, the relationship had become negative from the child's perspective due to the irreconcilable conflict between the mother and grandmother.

The court found that the child had been alienated from her grandparents and emotionally impacted by the ongoing conflict.

The court dismissed the motion for access, finding that court-ordered access against the mother's will would not be in the child's best interests and would cause stress and emotional upset.

A temporary care and custody hearing under the Child, Youth and Family Services Act regarding interim placement of two children.

The Children's Aid Society sought protection due to domestic violence, substance abuse, emotional harm, and questionable parental decision-making.

The father sought placement of the children in his care with supervision; the mother conceded she was not ready for return of the children.

The court determined that the least intrusive order was for the children to remain with the maternal grandparents under supervision, with the father's access discretionary to the Society and the mother's access structured but with supervision at the Society's discretion.

A child protection agency brought an application seeking temporary care and custody of two children.

The respondent mother challenged the court's jurisdiction, arguing that the agency failed to comply with statutory timelines for bringing the matter before the court.

The central issue was whether a customary care agreement was validly executed and, if not, whether the agency's failure to commence proceedings within five days of removing the children from the mother's care resulted in a loss of jurisdiction.

The court found that the consent to the customary care agreement was invalid due to lack of voluntariness and absence of independent legal advice, and that the mother's subsequent revocation of consent was clear and unequivocal.

The court concluded that the agency's failure to bring the matter before the court within the statutory five-day period resulted in a loss of jurisdiction.

The applicant brought a motion for a stay of proceedings based on pre-charge delay of approximately 15 months and 22 days.

The charges included possession of property not exceeding $5,000, mischief under $5,000, possession of break-in instruments, stealing a motor vehicle with a value not exceeding $5,000, driving while disqualified, and attempted theft of a motor vehicle.

The offences were alleged to have occurred on February 28, 2017.

DNA evidence was obtained and a suspect was identified in July 2017, but the investigating officer failed to follow up on the DNA warrant directive.

No investigative steps were taken from July 2017 to September 2018.

The court found that reasonable and probable grounds existed to lay charges in July 2017, and that the investigating officer's dereliction of duty, combined with a lack of supervisory oversight protocols, constituted a breach of the applicant's section 7 Charter rights under the residual category relating to the integrity of the judicial process.

The court granted a stay of proceedings.

The applicant sought permission to issue an application requesting a Child Advocacy and Assessment Program (CAAP) assessment for the subject child, along with ancillary orders for Christmas parenting time, a prohibition against the respondent attending at the child's schools, and production of the child's personal documentation.

The respondent opposed the motion on the basis that section 138 of the Court of Justice Act prohibits duplicity of proceedings while an appeal of the prior final order was outstanding.

The court found it had no jurisdiction to grant the relief sought because there were no ongoing proceedings regarding custody or access to the child, as an appeal was pending.

The court held that assessments under section 30 of the Children's Law Reform Act or section 105 of the Courts of Justice Act cannot be ordered as standalone matters but only in the context of active custody or access proceedings.

This is a costs decision arising from the court's judgment of March 25, 2019, in a family law matter involving a motion to amend pleadings and a motion for summary judgment.

The respondent sought full indemnity costs, arguing he was the successful party and had made reasonable settlement offers.

The applicant argued there should be no costs order due to divided success.

The court found divided success existed because although the respondent was somewhat more successful overall, the applicant succeeded on her motion to amend her response to the motion to change.

The court awarded costs of $2,500 payable by the applicant to the respondent, declining to enforce the award through the Family Responsibility Office.

The Children's Aid Society brought a motion for summary judgment seeking a finding that three children were in need of protection and an order placing them in extended society care.

The parents opposed the motion, arguing there were genuine issues for trial.

The court found no genuine issue for trial regarding the protection finding, as the evidence of the parents' substance abuse, inadequate supervision, and the children's needs clearly established they were in need of protection.

However, the court found a genuine issue for trial regarding disposition, as the mother had obtained housing, completed rehabilitation, and proposed a plan of care that could not be summarily dismissed.

The matter was remitted for trial on disposition.

The applicant brought a motion to amend her Response to Motion to Change to include a claim for retroactive contribution to the children's section 7 extraordinary expenses.

The respondent brought a cross-motion for summary judgment to dismiss the claim.

The court granted the applicant's motion to amend her pleadings, finding no non-compensable prejudice to the respondent.

However, the court also granted the respondent's motion for summary judgment, finding no genuine issue for trial as the applicant failed to demonstrate a material change in circumstances to justify setting aside the parties' previous comprehensive support order.

The applicant's claims were dismissed.