Fowler Byrne

The accused, Mr. David Morias, brought an application to exclude evidence obtained during a search and seizure, alleging violations of his rights under sections 7, 8, and 10(b) of the Canadian Charter of Rights and Freedoms.

The Crown conceded a violation of s. 10(b) rights (right to counsel) due to an 8-hour delay in facilitating a call to counsel, but argued against exclusion under s. 24(2).

The court found no violation of s. 8 (unreasonable search/seizure) as the search warrant was validly issued and executed, and no violation of s. 7 (excessive force) as the police's use of force was deemed reasonable given the circumstances.

Despite the serious s. 10(b) breach, the court dismissed the application to exclude evidence under s. 24(2), finding that its admission would not bring the administration of justice into disrepute, primarily because the evidence was not causally connected to the breach and was reliably obtained via a valid warrant.

The applicant wife brought a motion seeking $250,000 for interim disbursements and a $500,000 advance on an equalization payment.

The respondent husband opposed, arguing abuse of process and inability to pay, and objected to the wife's hearsay evidence regarding his asset values.

The court found no abuse of process, noting the husband's significant delay in providing financial disclosure.

The court awarded the wife $75,000 for interim disbursements and $50,000 as an advance on equalization, adjourning the remainder of the motion to allow the husband to provide outstanding disclosure, failing which an adverse inference would be drawn.

The applicant mother brought a motion to enforce an unsigned offer to settle in a family law proceeding.

The respondent father, who suffers from cognitive and visual impairments due to multiple motor vehicle accidents, argued he never instructed his former counsel to accept the offer.

The court found that no final settlement was reached because the father's counsel explicitly indicated he needed to review the documents with his client in person before signing.

Furthermore, the court held that even if an agreement had been reached, it would not enforce it due to the father's cognitive disability and the mother's failure to provide complete financial disclosure at the time of the alleged settlement.

The mother's motion was dismissed.

The offender was found guilty of one global count of sexual assault and one global count of invitation to sexual touching involving his biological daughter, aged 11-14, over a four-year period.

The court emphasized denunciation and general deterrence due to the breach of trust and vulnerability of the victim.

The offender, a 65-year-old first-time offender, received a four-year concurrent sentence for sexual assault and two years for invitation to sexual touching, along with ancillary orders including a firearms prohibition, DNA order, no-contact order, and SOIRA registration.

Following the death of the applicant in a family law proceeding, the Estate sought to continue the application for equalization and compel the respondent to produce expert reports valuing her corporate assets.

The respondent moved for security for costs, arguing the Estate was insolvent and the litigation was primarily driven by the Estate's counsel to recover unpaid fees.

The court ordered the Estate to post $5,000 in security for costs, finding that the Estate resided outside Ontario and had no assets in the province.

The court also ordered the respondent to produce expert reports to substantiate the corporate values claimed in her net family property statement.

The applicant mother and respondent father brought competing motions within a motion to change.

The mother sought a private parenting capacity assessment under section 30 of the CLRA, while the father sought a finding of non-compliance against the mother for failing to facilitate his parenting time, as well as orders for OCL involvement and reconciliation therapy.

The court found that both parents had contributed to the high-conflict dynamic and that the mother had failed to make best efforts to ensure the children attended parenting time.

However, the court declined to order reconciliation therapy without an expert recommendation, noting the potential risk to the children's well-being.

The court ordered a private section 30 assessment and imposed a gradual reintegration schedule to resume the children's contact with the father.

The appellant appealed a family arbitration award dealing with property, spousal support, and child support.

The Superior Court of Justice determined that the standard of review for family arbitration appeals is the Housen standard.

The court upheld the arbitrator's use of hindsight evidence for property valuation and his imputation of income to the respondent.

However, the court found the arbitrator erred by including a statute-barred debt in the appellant's net family property, by failing to provide adequate reasons for awarding lump sum rather than indefinite periodic spousal support, and by exceeding his jurisdiction in ordering the parties to refile tax returns.

The appeal was allowed in part, with the court substituting an order for indefinite periodic spousal support and adjusting the equalization payment.

The applicant, a cyber-insurer, sought relief from forfeiture under s. 462.42 of the Criminal Code to recover funds paid out to two insured victims of a ransomware attack.

The offender's cryptocurrency had been seized and forfeited.

The court held that the insurer had a valid interest in the forfeited property limited to the amount of Bitcoin paid as ransom by one of the victims, which had been erroneously omitted from the sentencing restitution order.

The court dismissed the claim for further restitution and for relief from forfeiture regarding other insurance payouts, such as consultation fees and lost profits, finding they did not constitute an interest in the specific forfeited property.

The plaintiff commenced an action against the corporate defendant and its director shortly after the director made an assignment in bankruptcy.

Years later, after the trustee was discharged but the director remained an undischarged bankrupt, the plaintiff obtained default judgment against the director without notice.

The court held that commencing the action during the bankruptcy stay was a curable irregularity, not a nullity, and the stay lifted when the trustee was discharged.

However, the court set aside the default judgment because the plaintiff failed to serve the motion materials on the director before she was noted in default, contrary to the Rules of Civil Procedure.

The director was ordered to attend an examination in aid of execution on behalf of the corporate defendant only.

Two consolidated applications regarding the ownership and sale of a residential property.

The applicants, Kuldeep Gill and the Estate of Amarjit Gill, sought a declaration of 100% ownership based on resulting or constructive trust, arguing the respondent Karnail Gill's initial contribution was a loan.

Karnail Gill sought partition and sale of the property, recognizing his registered one-third interest as a tenant in common.

The court dismissed the trust claims, finding Karnail contributed to the purchase and upkeep of the property, and ordered the property to be listed for sale with the proceeds divided equally among the three registered owners, subject to adjustments for mortgage, taxes, and rental income.

The father brought a motion seeking a 2/2/3 interim parenting schedule, while the mother brought a cross-motion for child support, sale of the matrimonial home, and sole decision-making.

The court dismissed the mother's motion as the issues had not been conferenced and lacked urgency.

The court denied the father's request for a 2/2/3 schedule, finding that his unpredictable work schedule and reliance on extended family did not support it.

The court ordered a parenting schedule that maintained the pre-separation status quo, with the children residing primarily with the mother and the father having alternate weekends and Wednesday evenings.

The applicant mother brought a motion for an interim parenting order after the respondent father withheld their six-year-old child following a visit.

The mother had previously obtained an ex parte order for the child's immediate return.

The court found compelling reasons to deviate from the pre-separation status quo due to the father's criminal charges, lack of suitable living arrangements, and poor judgment in withholding the child.

The court ordered that the child reside primarily with the mother and granted the father unsupervised daytime parenting time, with no overnight visits until he secures suitable accommodations.

The applicant mother and respondent father separated after a five-year relationship.

The mother sought final decision-making responsibility and primary residence of their three children, while the father sought equal parenting time and joint decision-making.

The court found a history of physical and psychological family violence perpetrated by the father against the mother, as well as emotional harm to the children.

The court concluded that cooperative parenting was not possible and granted the mother final decision-making authority and primary residence, with the father having parenting time on alternate weekends and one weeknight.

The father was also ordered to pay child support and his proportionate share of section 7 expenses.

The accused brought a pre-trial motion to exclude evidence, including an imitation firearm and a construction vest, arguing his rights under ss. 8, 9, and 10(b) of the Charter were violated during his arrest for a home invasion.

The court found the detention and searches were lawful, but the police breached the implementational component of the accused's s. 10(b) right to counsel by unreasonably delaying his access to a lawyer due to an internal policy.

Applying the Grant framework under s. 24(2), the court concluded that despite the serious s. 10(b) breach, the evidence should not be excluded because the impact on the accused's protected interests was minimal and society's interest in adjudicating the case on its merits favoured admission.

The parties brought cross-motions regarding interim parenting issues for their 6-year-old child, including school enrollment, afterschool care, summer camps, and health decision-making.

The father sought to change the child's school to Mineola Public School, while the mother sought to keep the child at Owenwood Public School.

The court found no material change in circumstances to justify varying the previous interim order regarding schooling.

The court also ordered the father to un-enroll the child from afterschool care at Mineola, as the mother had final decision-making authority for daycare.

The court split the summer camp schedule between the parents' choices and set exchange times for non-school days.

The matter was directed to a trial management conference.

The applicant father brought a motion to vary an interim parenting order to increase his parenting time to a 2/2/3 schedule, along with requests for summer access, possession of the child's documents, and the use of OurFamilyWizard.

The court found no material change in circumstances to justify varying the regular interim parenting schedule, noting the child's upcoming transition to kindergarten and slight aging were insufficient.

The court granted a gradual increase in summer parenting time, ordered the mother to hold the child's official documents while providing notarized copies to the father, and declined to order the use of OurFamilyWizard due to cost concerns.

The applicant mother brought a motion under the Hague Convention seeking the return of her 12-month-old child from Mexico to Ontario.

The parties had travelled to Mexico temporarily, but the respondent father subsequently refused to return the child to the mother.

The court applied the hybrid approach to determine habitual residence and found that the child was habitually resident in Ontario.

The court concluded that the father wrongfully retained the child and ordered the child's immediate return to Ontario.

The Crown sought a ruling on the admissibility of statements made by the accused, Viraphone Savina Ackharath and Alea Sabira Baksh, who are charged with importing and conspiracy to import a controlled substance.

Ackharath challenged the admissibility of her statements, arguing a violation of her s. 9 Charter rights due to an arbitrary arrest without reasonable and probable grounds.

The court found that the Border Services Officer had objective reasonable and probable grounds for the arrest, considering factors such as the accused being a travelling companion of someone arrested for smuggling, their origin from a known source country for controlled substances, and being flagged for secondary inspection.

Consequently, no s. 9 Charter breach was found.

Furthermore, the court determined that even if a breach had occurred, the admission of the statements would not bring the administration of justice into disrepute under s. 24(2) of the Charter, given the non-serious nature of any potential breach and the minimal impact on the accused's rights, particularly as she was immediately advised of and given access to counsel.

The Crown's application for the admissibility of all statements was granted.

The Appellant Mother appealed a child protection order that placed her child in the Father's custody with supervised access for the Mother.

The Mother alleged denial of procedural fairness, errors in admitting child's hearsay statements, allowing an expert to testify beyond his expertise, and an erroneous discretionary access order.

The court dismissed the appeal, finding no denial of procedural fairness, proper handling of child's statements, appropriate expert testimony, and valid discretionary access order under the Child, Youth and Family Services Act.

The applicants sought a declaration that their property's current use (outside storage of vehicles, machinery, equipment, commercial/business operation, storage of trucks/trailers, shipping containers) constituted a legal non-conforming use under s. 34(9) of the Planning Act, which would set aside municipal Orders to Comply.

The respondent sought dismissal, or a declaration limiting the non-conforming use to 4 trucks and 7 trailers.

The court found that while the property had a prior legal non-conforming use as a trucking business with ancillary parking and storage, the applicants' current use had significantly changed in nature and intensity, including storage of derelict vehicles, a fuelling station, and a junk yard, which were too remote from the original use and caused undue neighbourhood impact.

Consequently, the applicants lost the protection of s. 34(9) of the Planning Act, and their application was dismissed, making the Orders to Comply enforceable.