Fowler Byrne

During a jury trial for importing a controlled substance, the accused brought a Corbett application to prevent the Crown from cross-examining her on a prior conviction for unlawful possession of an identity document.

The court weighed the factors, noting the prior conviction was a crime of dishonesty highly relevant to credibility, not overly remote, and dissimilar to the current charge.

The court dismissed the application, finding the probative value outweighed the prejudicial impact, and held that a limiting instruction to the jury would adequately protect the accused's right to a fair trial.

The parties brought motions regarding parenting time for their two children.

The applicant father sought equal parenting time, while the respondent mother sought primary residence, alleging a history of emotional and verbal abuse.

A key issue was the admissibility of a surreptitious audio recording of the applicant berating the respondent.

The court admitted the recording, finding its probative value regarding the applicant's conduct and credibility outweighed the policy against secret recordings.

The court ordered that the children reside primarily with the respondent, with specified parenting time for the applicant, finding that equal parenting time was not in the children's best interests due to the applicant's anger and denigration of the respondent's family.

The parties brought cross-motions regarding interim parenting time, child support, the sale of the matrimonial home, and mobility.

The mother sought supervised parenting time for the father, alleging family violence and COVID-19 concerns, and requested permission to relocate.

The father sought unsupervised parenting time and an order for the immediate sale of the matrimonial home.

The court dismissed the mother's request for supervised access, finding insufficient evidence of risk to the children, and ordered gradual unsupervised parenting time.

The court also ordered the pre-trial sale of the matrimonial home due to financial necessity and dismissed the mother's motion to relocate due to a lack of evidence supporting the move.

The applicant father brought a motion to expand his parenting time with his four-year-old daughter to include overnights and to lift the requirement for supervision.

The respondent mother opposed, citing historical concerns about the father's mental health and alcohol use.

The court found that the mother failed to satisfy the onus of showing that supervised access remained necessary, noting the father provided medical evidence indicating he had no current mental health issues or substance abuse problems.

The motion was granted, allowing for a gradual increase to unsupervised, overnight parenting time.

The applicant and respondent separated after a 10-year relationship.

The applicant sought an interest in the respondent's home, claiming unjust enrichment and a joint family venture.

The court found a joint family venture existed and awarded the applicant half the net value of the home.

The court also addressed parenting time for their special needs child, ordering unsupervised access conditional on the respondent providing clean drug tests due to a history of opioid addiction.

Furthermore, the court found both parties had misappropriated settlement funds belonging to the child and ordered the respondent to repay the funds into court.

The applicant and respondent, both persons under a disability, reached a settlement in a protracted estate litigation dispute regarding their late father's will and power of attorney accounting.

They brought motions for court approval of the settlement.

A non-party sibling opposed the settlement, alleging unaccounted funds and lack of capacity of another beneficiary.

The court approved the settlement, finding it was in the best interests of the disabled parties, and dismissed the non-party's motion.

The court also ordered the settlement funds to be paid directly to the respondent and to the applicant's attorney for property, rather than into court.

The plaintiff in a motor vehicle accident action brought a motion to exclude surveillance evidence, strike the jury notice due to pandemic delays, and require a jury instruction on the statutory deductible.

The court excluded surveillance footage taken on the plaintiff's wedding day, finding its prejudicial effect outweighed its probative value, but allowed other footage taken from private parking lots.

The court conditionally struck the jury notice to ensure the trial proceeds on its fixed date even if a jury is unavailable.

The request for a jury instruction on the statutory deductible was dismissed, as the jury's role is to assess damages without regard to the deduction.

The accused was sitting in a parked car when police blocked his vehicle and detained him.

After discovering loose cannabis and an outstanding committal warrant, police delayed advising the accused of the reasons for his detention and his right to counsel for nearly 30 minutes while they investigated the warrant, deliberately misleading him to maintain his compliance.

A subsequent search of the vehicle yielded a firearm.

The court found violations of sections 9, 10(a), and 10(b) of the Charter.

Although the search itself was lawful under the Cannabis Control Act, the court excluded the firearm under section 24(2) due to the serious, deliberate, and reckless nature of the police conduct in suspending the accused's rights.

The defendants brought a motion to set aside a default judgment of over $1 million for unpaid fuel deliveries.

The court set aside the judgment against one personal defendant because it was irregularly obtained during the COVID-19 suspension of procedural time limits.

The court also set aside the judgment against the second personal defendant, finding she raised an arguable defence regarding her personal liability under the credit agreement, on the condition she pay the plaintiff's costs thrown away.

The motion to set aside the judgment against the corporate defendant was dismissed as no arguable defence was raised.

The applicant husband sought to set aside a separation agreement, arguing lack of financial disclosure and unconscionability.

The court found the husband had sufficient knowledge of the wife's significant assets and liabilities, and that the agreement was not unconscionable.

The court upheld the separation agreement but varied child support, imputing a higher income to the husband based on his multiple sources of undisclosed income.

The wife's claim for reimbursement of credit card debt was dismissed as the agreement stipulated each party was responsible for their own debts.

The respondent mother brought a motion to vary a final parenting order on an interim basis, seeking supervised access for the applicant father.

The mother alleged the father continued to denigrate her in front of the children, causing them emotional harm, and failed to exercise access in a stable home environment.

The court found a material change in circumstances due to the father's conduct and lack of appropriate housing.

The court declined to order supervised access but suspended overnight access until the father could prove he had appropriate housing, and imposed strict conditions on his parenting time.

A non-party in an estate litigation matter brought a motion seeking the recusal of the presiding judge, alleging a reasonable apprehension of bias.

The non-party argued that the judge breached natural justice by disclosing an ex parte Mareva injunction motion to opposing counsel and dismissing it without reading the materials.

The court dismissed the recusal motion, finding no cogent evidence to overcome the strong presumption of judicial impartiality, noting that the materials were reviewed, written reasons were provided, and the existence of the motion was public information.

The plaintiff brought a motion seeking the recusal of the presiding judge on the basis of a reasonable apprehension of bias.

The plaintiff failed to properly serve the motion on all interested parties, failed to file the motion record with the court, and failed to confirm the motion, in direct contravention of a prior court order.

The court dismissed the recusal motion on procedural grounds due to the plaintiff's clear disregard for court orders and the Rules of Civil Procedure.

The applicant, through her litigation guardians, sought a declaration that her late husband breached his fiduciary duty while acting as her power of attorney for property.

The husband had severed the joint tenancy on their home, sold it, and transferred $500,000 of the proceeds into an account for his sole benefit, leaving nothing for the applicant in his will.

The court found that the husband breached his fiduciary duty by using the funds for his own benefit without the incapable applicant's consent.

The court ordered the husband's estate to pay $253,431.95 in restitution and interest to the applicant's estate.

The accused was tried on charges of aggravated assault and attempted murder arising from a stabbing in a residential complex.

The central issue was identity, with the Crown relying primarily on the complainant’s recognition evidence, related phone-call evidence, and observations by civilian witnesses after the stabbing.

The court rejected the accused’s evidence as not credible, but held that this did not resolve the burden on the Crown under the W.(D.) framework.

Given serious credibility concerns with the complainant, weaknesses in the recognition evidence, and significant evidentiary gaps including the absence of cell phone records and further identification procedures, the Crown failed to prove identity beyond a reasonable doubt.

The accused was acquitted on both charges.

The Crown brought a dangerous offender application following the offender's convictions for robbery with a firearm and related offences.

The offender had a lengthy criminal record and history of institutional violence, alongside diagnoses of complex PTSD and antisocial personality traits.

The court found that while the offender demonstrated a pattern of reactive violence and posed a high risk of violent recidivism, his conduct was not intractable given the possibility of change through long-term, intensive federal programming.

The court dismissed the dangerous offender application, designated the offender a long-term offender, and imposed a 4-year penitentiary sentence followed by a 10-year long-term supervision order.

During a trial for attempted murder and aggravated assault, the accused testified and provided an alibi involving a visit to his doctor's office on the morning of the stabbing.

The Crown applied to call reply evidence to rebut this testimony.

The accused objected, arguing it amounted to the Crown splitting its case and that the doctor's visit was a collateral fact.

The court granted the Crown's application, finding that the accused's whereabouts prior to the stabbing related to an integral and essential issue, and the Crown could not have reasonably anticipated the specific alibi evidence.

During a trial for attempted murder and aggravated assault, the Crown applied to admit a statement made by the victim to a bystander shortly after being stabbed.

The victim, bleeding and seeking help, told the bystander that his assailant was his girlfriend's boyfriend.

The court found the statement met the criteria for the excited utterance exception to the hearsay rule, as it was made contemporaneously with the startling event and before there was time to fabricate.

The application was granted and the statement was admitted into evidence.

The mother brought a motion to change a final order to vary child support, section 7 expenses, and spousal support.

The father argued the adult child had repudiated their relationship and sought to terminate child support, or alternatively reduce it based on his decreased income.

The court found the father failed to prove repudiation.

The court imputed the father's income at $95,000 due to incomplete financial disclosure regarding his business, and set the mother's income at $58,819 for child support and $45,000 for spousal support.

The father was ordered to pay his proportionate share of the child's final year of college expenses, and child support was ordered to continue until September 2021 to allow a transition period after graduation.

Spousal support was increased to $1,495 per month commencing after child support terminates.

The plaintiff in a motor vehicle accident action brought a motion for the disclosure of unedited surveillance videos, surveillance reports, and a social media report in the defendants' possession.

The defendants claimed litigation privilege over the reports and the surveillance footage in which the plaintiff did not appear.

The court ordered the defendants to produce the unedited surveillance videos and social media images they had already partially disclosed, finding waiver of privilege by implication.

However, the court upheld the claim of litigation privilege over the investigator's reports and the surveillance footage where the plaintiff was not seen.

The defendants were also ordered to provide a further and better affidavit of documents detailing the particulars of the privileged surveillance.