J.F. McCartney

The accused applied to challenge the representativeness of the 2014 Thunder Bay jury roll, arguing that Ontario failed to make reasonable efforts to include Indigenous on‑reserve residents, thereby breaching the right to a representative jury under ss. 11(d) and 11(f) of the Charter.

The court applied the test articulated in R. v. Kokopenace, assessing whether the state made reasonable efforts in compiling source lists, delivering jury questionnaires, and encouraging responses.

Evidence showed continued reliance on inaccurate band electoral lists containing off‑reserve members, inadequate review of those lists, high undeliverable rates for jury questionnaires, and extremely low return rates from on‑reserve residents without meaningful remedial action.

The court concluded that the province failed to exercise reasonable diligence in addressing known systemic problems affecting Indigenous representation on jury rolls.

A Charter breach was established.

The plaintiffs brought a motion to amend their statement of claim in a negligence action arising from a fatal motor vehicle collision.

They sought to add claims for post‑traumatic stress disorder suffered by a surviving spouse and related income loss, as well as expanded Family Law Act damages for a child.

The defendants argued the amendment introduced a new cause of action outside the limitation period and improperly pleaded evidence.

The court held the proposed amendment merely added a new head of damages arising from the same material facts already pleaded and therefore did not constitute a new cause of action.

The amendment was permitted, except for portions that improperly pleaded evidentiary details.

Costs were determined following a contested passing of accounts in two related estates.

The estate trustee sought reimbursement of most of his legal costs from the objector, arguing that her lack of cooperation caused the litigation.

The objector sought costs against the estate trustee personally and opposed the trustee recovering costs from the estates.

The court held that modern estate litigation applies ordinary costs principles and found the trustee had been unsuccessful on the principal issues and had unnecessarily retained a second law firm to prepare accounts.

Costs for both parties were fixed at $13,500, with portions payable personally by the trustee and the remainder apportioned between the two estates.

The applicant brought a summary judgment motion in a family law proceeding seeking determinations relating to custody, access, child support, equalization, and distribution of matrimonial home proceeds following separation.

The court severed the divorce claim from the corollary relief and proceeded with summary judgment under the Family Law Rules.

Custody of the children was granted to the applicant based on the best interests of the children and the parties’ poor relationship, which undermined the feasibility of joint custody.

The respondent was granted supervised access for three months followed by unsupervised access similar to the pre‑existing arrangement.

Ongoing child support was ordered based on the respondent’s income along with retroactive child support, equalization adjustments, and distribution of sale proceeds of the matrimonial home.

The plaintiff brought a motion under Rule 36 of the Rules of Civil Procedure seeking leave to examine a former defendant and corporate executive before trial.

The witness had relocated outside Canada and the plaintiff argued the examination was necessary to preserve potentially crucial evidence regarding the hiring of a defendant.

The defendants opposed the motion, arguing that witnesses should generally testify at trial, particularly before a jury, and that alternative mechanisms such as letters rogatory were available.

The court held that Rule 36 was designed for circumstances where a witness may be outside the jurisdiction and could possess important evidence.

Leave was granted to conduct a pre‑trial examination of the witness, with the examination to be videotaped and undertakings completed beforehand.

The applicant sought the release of seized cash under s. 462.34 of the Criminal Code to fund legal expenses in pending criminal proceedings.

Police had seized more than $1 million in cash during a search that also uncovered drugs and other evidence.

The court accepted that the seized funds were available for potential release and that the applicant had established sole entitlement to the money despite arguments about possible competing claims.

However, the applicant failed to demonstrate financial need, as required under s. 462.34, given inconsistencies between his claimed lack of assets and evidence that he possessed substantial unexplained cash and lived in a mortgage-free home.

The application for release of funds for legal fees was therefore denied.

The applicant brought a motion to change a final family law order arising from minutes of settlement concerning travel arrangements, child support, arrears, and access.

The court permitted modification of the travel clause allowing the applicant to take the child on vacations outside Ontario without consent if an itinerary is provided.

The court declined to increase child support, finding insufficient evidence to impute higher income to the respondent despite inconsistent earnings history.

Arrears exceeding $16,000 were acknowledged but no repayment schedule was fixed at the time.

The access provisions were varied by removing weekday access while maintaining a simplified schedule for special occasions, with exchanges to occur at an access centre.

The applicant sought to vary access and child support provisions arising from a Florida divorce judgment after child support had been terminated when the children did not attend summer access visits with the respondent.

The court found it had jurisdiction and that a material change in circumstances existed since a prior Ontario application was dismissed.

Evidence demonstrated that the children relied primarily on the applicant for financial support while pursuing post-secondary education, and that the respondent had the ability to pay despite ceasing support in 2007.

The court imputed income to the respondent and reinstated retroactive child support, varied the access terms to reflect the children’s adulthood and autonomy, and ordered proportionate contribution to educational expenses.

The appellant appealed a conviction for committing an indecent act under s. 173(1)(b) of the Criminal Code after being found to have exposed his buttocks toward occupants of a passing vehicle.

The trial judge rejected the appellant’s explanation that his pants had accidentally slipped and accepted the testimony of the complainant witnesses.

On appeal, the court applied the reasonableness standard for reviewing verdicts and considered the credibility analysis conducted at trial using the principles from W.(D.).

The appellate judge held that the trial judge properly assessed credibility and reasonably concluded that the evidence established guilt beyond a reasonable doubt.

The conviction and the suspended sentence with probation were upheld.

Interim family law motions arising from a separation following a 13‑year marriage addressed parenting arrangements, support, exclusive possession of the matrimonial home, and sale of the home.

The court declined to determine custody pending further information and the involvement of the Children’s Lawyer, but ordered an interim alternating weekly residence schedule for the child.

Interim child support and spousal support were ordered based on the parties’ incomes and the circumstances of the marriage.

Requests for exclusive possession of the matrimonial home and for a non‑removal order preventing relocation of the child were denied, while the parties’ agreement to list and sell the matrimonial home was incorporated into the order.

The applicant father brought an ex parte motion to enforce a prior interim custody order granting him custody of three children after the respondent mother failed to return them following weekend access.

The court found that the existing custody order remained in effect and that the respondent had not complied with its terms.

The father sought a police enforcement order directing authorities to apprehend and return the children.

The court granted the motion and authorized any police force in Ontario to apprehend the children and return them to the father in accordance with the prior custody order.

The applicant father brought a motion seeking dismissal of the respondent mother's motion to change and an order preventing her from bringing further motions without leave of the court.

The underlying family litigation involved prior orders granting the father custody and restricting the mother's access, along with outstanding child support, costs, and equalization issues.

The court declined to dismiss the respondent's motion to change outright, finding that further procedural steps were necessary given the ongoing disputes regarding parenting and financial obligations.

The court ordered that the motion to change not proceed until a further case conference was held to consider potential involvement of the Office of the Children’s Lawyer, psychological assessment, mediation resources, and supervised access programming.

The applicant brought an uncontested motion to change seeking termination of existing child and spousal support orders made following divorce.

The court reviewed the parties’ financial circumstances, including the respondent’s unemployment following the collapse of the family business and his reliance on RRSP withdrawals while retraining for new employment.

The court held that one adult child remained a "child of the marriage" due to mental health difficulties and ongoing dependency.

Spousal support and child support obligations were not terminated but were reduced to nominal amounts given the respondent’s limited present income, while support for another adult child was terminated.

The applicant sought a divorce and corollary relief including parenting arrangements, child support, extraordinary expenses, spousal support, and pension division.

The court granted a divorce based on separation and addressed parenting of three children.

The court determined the children's primary residence should be with the mother, emphasizing the need for stability and continuity in the matrimonial home, while granting the father structured access.

The father was ordered to pay guideline child support and contribute proportionately to extraordinary expenses, while spousal support was reduced to a nominal amount due to limited means.

The respondent’s employment pension was ordered to be divided equally pursuant to the Pension Benefits Act.

The applicant housing co‑operative sought termination of a member’s membership and occupancy rights following complaints regarding smoking in hallways and smoke affecting other tenants.

The co‑operative’s board had previously warned the member that eviction could follow further complaints but later voted to terminate membership at a meeting held without providing the statutory notice required under s. 178(2)3 of the Co‑Operative Corporations Act.

The court held that the earlier warning letter did not constitute adequate notice of the later board meeting nearly three years later.

It also rejected the argument that the member had agreed to voluntarily relinquish her membership and tenancy during settlement negotiations.

The application to enforce the eviction and termination of membership was dismissed.

The appellant appealed a sentence imposed after pleading guilty to truancy under s. 30(5) of the Education Act.

The sentencing court had suspended sentence and imposed a period of probation.

The appellant sought to have the sentence set aside and requested an absolute discharge due to concerns that the conviction record could negatively affect future opportunities.

The Superior Court found that the matter had been commenced under the Provincial Offences Act and should have been tried in Provincial Offences Court rather than Youth Criminal Justice Court.

The court set aside both the conviction and sentence and directed that the matter be sent to Provincial Offences Court.