Bonnie R. Warkentin

Sentencing decision arising from convictions for sexual touching, sexual assault, and invitation to sexual touching committed by a parent against a child.

The court emphasized denunciation and deterrence, treated the parental breach of trust, the complainant's young age, the use of alcohol, and the invasive nature of the abuse as major aggravating factors, and found little mitigating value in the offender's personal circumstances or asserted low actuarial risk.

Applying appellate sentencing guidance for sexual abuse of children by adults in positions of trust, the court fixed an appropriate range and imposed a penitentiary sentence.

One conviction was stayed because it arose from the same facts, and multiple ancillary protective orders were made.

The Crown brought an application for certiorari and mandamus to overturn a preliminary inquiry judge's decision to discharge the respondents on charges of first degree murder and commit them on second degree murder.

The Crown argued the judge committed jurisdictional error by weighing competing inferences, usurping the role of the trier of fact, and failing to consider the whole of the evidence regarding planning and deliberation and unlawful confinement.

The Superior Court dismissed the application, finding the preliminary inquiry judge correctly applied the test for committal and did not commit any jurisdictional error in concluding there was insufficient evidence for a properly instructed jury to return a verdict of first degree murder.

The applicant brought a motion to change seeking retroactive child support, variation of an arbitration award, and contributions toward post‑secondary expenses.

The court considered the framework for retroactive child support set out in the Supreme Court of Canada decision in D.B.S. v. S.R.G., including the recipient parent's delay, the payor parent's conduct, the circumstances of the children, and potential hardship.

The court found the payor parent had engaged in blameworthy conduct by misleading the recipient parent about his income after early retirement while earning substantially more through pension and employment.

Retroactive child support was ordered beginning May 1, 2007, based on the Child Support Guidelines and the payor parent’s actual income.

Ongoing support was recalculated on a split custody basis from May 2010, and the parties were ordered to contribute to post‑secondary expenses proportionate to their incomes.

Following dismissal of a legal negligence action against a lawyer and her firm, the court considered the appropriate costs award.

The defendants sought full indemnity costs after an eight‑day trial, arguing the plaintiff pursued unfounded allegations, including claims impugning the lawyer’s honesty, and continued litigation despite evidence showing no negligence or damages.

The court applied the principles governing costs under Rule 57 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, including the purposes of indemnification, encouraging settlement, and discouraging improper conduct.

Finding the plaintiff advanced serious unsubstantiated allegations, changed evidence at trial, and pursued the action despite knowing it lacked merit, the court held the conduct was exceptional and reprehensible.

Full indemnity costs were therefore awarded.

The appellant appealed a decision of the Consent and Capacity Board confirming the renewal of a Community Treatment Order under the Mental Health Act.

The appellant argued that the tribunal failed to determine his capacity to consent to treatment at the time of the mandatory review and that, if he had regained capacity, the substitute decision maker’s prior consent would be invalid.

The court held that the tribunal was required to consider capacity as part of the statutory review criteria and found that it had done so.

The tribunal reasonably concluded that the appellant lacked the ability to understand and appreciate the consequences of refusing treatment, based primarily on medical evidence regarding persistent delusional beliefs and lack of insight into illness.

The tribunal’s reasoning was adequate and entitled to deference as a specialized body.

The appeal was dismissed.

The appellant appealed a Master's order dismissing his action for delay under Rule 48.14 of the Rules of Civil Procedure and awarding costs to the defendant.

The underlying claim alleged constructive dismissal arising from a family business arrangement relating to the development and operation of a golf club.

The appellant argued that his delay in prosecuting the action was explained by depression and anxiety that prevented him from instructing counsel and advancing the litigation.

The court held that the Master correctly applied the two-part test requiring both a satisfactory explanation for delay and absence of prejudice to the defendants.

Given the prolonged inactivity and the death of a key defence witness during the delay, the Master committed no error in dismissing the action and awarding costs.

The Crown brought an application seeking admission of similar fact evidence across three robbery counts in a jury trial to establish identity.

The robberies occurred within eleven days at three banks located within one kilometre of each other and involved similar methods, including handwritten notes containing distinctive phrases such as “no ink”, brief interactions with tellers, and similar clothing and demeanour.

The court applied the two‑stage similar fact evidence test, finding a high degree of similarity rendering coincidence objectively improbable.

Evidence linking the accused to the acts included DNA found on clothing recovered after the third robbery and anticipated identification evidence from surveillance video.

The court concluded that the probative value of the evidence substantially outweighed its minimal prejudicial effect and permitted the jury to consider the evidence on each count when determining guilt on the others.

The applicant father was successful in an emergency motion regarding the parties' son's residence after the respondent mother unilaterally withheld the child.

The applicant sought $9,000 in costs on a full recovery basis.

The respondent argued she was unable to pay due to being on Ontario Works and having a medical condition.

The court awarded nominal costs of $150 to the applicant, considering the respondent's financial circumstances and the ongoing changes to the child's residence.

The plaintiff brought a solicitor negligence claim against her former family lawyer arising from advice provided during the negotiation and execution of a separation agreement.

The plaintiff alleged the lawyer failed to meet the standard of care by not ensuring full financial disclosure, by allegedly mischaracterizing settlement funds from employment litigation, and by permitting a final spousal support release.

The court found that the lawyer repeatedly advised the plaintiff not to sign a final agreement without full financial disclosure and even proposed a partial agreement pending further disclosure, but the plaintiff chose to proceed due to time pressure related to a home purchase.

Expert evidence established that the lawyer’s conduct met the standard of care for family law practitioners in the circumstances.

The court further held that the plaintiff failed to prove causation or damages, as later financial disclosure demonstrated the separation agreement was fair and reasonable.

The applicant sought a stay of criminal proceedings unless the state funded her legal representation through a Rowbotham order under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

She faced multiple drug trafficking and possession charges and alleged she lacked the financial means to retain counsel after her Legal Aid certificate was cancelled.

The court held that the applicant failed to demonstrate that she exhausted all Legal Aid appeal avenues, that she was indigent, or that her right to a fair trial would be materially compromised without state-funded counsel.

Evidence showed the applicant had employment income and discretionary expenses and could potentially benefit from legal arguments advanced by a co‑accused’s counsel challenging the search warrant.

The application for state-funded counsel and a stay of proceedings was dismissed.

The appellant appealed a Small Claims Court decision regarding the ownership of $9,000 in a joint bank account held by the deceased and his niece, the respondent.

The trial judge found that the deceased intended to gift the balance of the account to the respondent through survivorship, thereby rebutting the presumption of resulting trust.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and concluding that the correct legal test was applied.