Dr. Benoit

Following a lengthy and acrimonious family law trial concerning custody and access to a young child, the court considered the best interests of the child under the Divorce Act and the Children’s Law Reform Act.

The parties had an extensive litigation history marked by high conflict, numerous interim orders, and serious allegations, many of which were unsupported hearsay and therefore not relied upon.

An expert parenting capacity assessment recommended sole custody to the father, finding the parents incapable of effective co‑parenting and identifying significant concerns about the stability of the mother’s household and the safety risks posed by one sibling’s behavioural issues.

The court accepted the expert’s recommendations and concluded that joint or parallel parenting would not serve the child’s best interests.

Sole custody was awarded to the father with structured daytime access to the mother, while child support was deferred due to the mother’s financial circumstances.

The appellants, a nurse and her employer, appealed a trial judge's finding that they were 50 per cent liable in negligence on a crossclaim by a hospital.

The trial judge found that the nurse's delay in diagnosing and treating a patient's vasospasm exacerbated his brain injuries.

The appellants conceded the nurse fell below the standard of care but argued the trial judge's finding on causation was unreasonable.

The Court of Appeal dismissed the appeal, holding that the evidence, viewed as a whole, supported the trial judge's conclusion that the continuing negligence exacerbated the harm.

The respondents challenged the constitutionality of three Criminal Code provisions relating to prostitution: operating a common bawdy-house, living on the avails of prostitution, and communicating for the purpose of prostitution.

The application judge struck down all three provisions as violating section 7 of the Charter.

On appeal, the Court of Appeal upheld the striking down of the bawdy-house provision (suspended for 12 months) and read in an exploitation requirement to the living on the avails provision.

However, the Court of Appeal reversed the application judge's decision on the communicating provision, finding it did not violate the principles of fundamental justice and was a justified limit on freedom of expression, binding the lower court to the Supreme Court's previous decision in the Prostitution Reference.

The appellant mother appealed a decision making her older child a Crown ward with no access.

She sought to introduce fresh evidence, arguing that the expert witness, Dr. Benoit, gave contradictory evidence in a subsequent trial regarding her younger child and lacked expertise on the effects of Cortisol.

The Court of Appeal dismissed the fresh evidence motion, noting the lack of expert evidence to support the appellant's claims.

The court upheld the trial judge's reliance on Dr. Benoit's parental capacity assessment and dismissed the appeal, emphasizing the child's need for stability in a potential adoptive home.

The appellant appealed a trial judge's decision regarding the care of his child, arguing the trial judge erred in relying on a doctor's findings about emotional harm and placed undue weight on his economic circumstances.

The Divisional Court admitted fresh evidence of the appellant's improved employment and housing but dismissed the appeal.

The court found the trial judge properly assessed the risk of emotional harm based on the appellant's history of inappropriate disciplinary measures and dysfunctional parenting.

The court also held that the trial judge appropriately considered the appellant's financial ability to provide a secure home as part of the mandated best interests analysis under the Child and Family Services Act.

The mother sought leave to appeal a trial judge's decision regarding costs in a lengthy child protection proceeding.

The trial judge had dismissed the Society's application for Crown wardship and returned the child to the mother, but only awarded the mother costs for procedural delays, not substantive issues, despite the mother beating her offer to settle.

The Divisional Court dismissed the application for leave to appeal, finding that the trial judge reasonably exercised her discretion in balancing the Society's mandate under Rule 24(2) with the offer to settle provisions in Rule 18(14).

The appellant challenged a Court of Appeal order that, after allowing his appeal from an incest conviction, directed that a conviction be entered on a sexual assault count that had been disposed of at trial under the rule against multiple convictions.

The court held that, although s. 613(3) did not authorize substitution of the lesser conviction because the appeal on the incest count was allowed rather than dismissed, the appellate court retained broad supplementary authority under s. 613(8).

In the Kienapple context, the usual rule that an acquittal cannot be disturbed absent a Crown appeal yields to an exception because the counts are inextricably linked by the same delict.

The court further held that conditional stays, rather than acquittals, are the preferable mechanism for counts barred by the rule against multiple convictions.

The appeal was dismissed and the matter remitted to the trial judge for entry of conviction on the sexual assault charge and sentencing.