Jill Presser

This was a two-day trial to determine the date of separation between the parties.

The respondent argued the parties separated in May 2015 when the applicant left the matrimonial home and her lawyer sent separation letters.

The applicant argued the parties reconciled when she returned in July 2015 and did not separate until April 3, 2022, when she communicated her unequivocal intention to leave.

The court found that the parties reconciled after the applicant's return in 2015 and continued to live as a married couple, albeit an unhappy and atypical one, until April 3, 2022.

The court rejected the respondent's interpretation of the marriage contract's "breakdown of relationship" clause as being determinative without regard to reconciliation.

The court considered whether a marriage should be annulled for non-consummation.

The applicant husband claimed the marriage was never consummated and sought an annulment; the respondent wife claimed consummation occurred and sought a divorce.

After reviewing the evidence, including the parties' testimony and medical records, the court found that the marriage was not consummated within the meaning of the law and that both parties were incapable of consummating it, not merely unwilling.

The court granted a declaration of nullity (annulment) and declined to find any other ground for annulment, such as immigration fraud or lack of consent.

The applicant, Virginia Louise Bustin, sought temporary spousal support from the respondent, Rick Hendricus Vandenberg, despite a prior separation agreement waiving such support.

The court found that there were triable issues as to the validity and enforceability of the spousal support waiver, including concerns about power imbalance, lack of financial disclosure, and lack of legal advice.

The court exercised its discretion to order temporary spousal support of $5,300 per month, finding that the applicant had established a prima facie entitlement on both compensatory and needs-based grounds, and that the respondent had the ability to pay.

The court declined to order retroactive support at this stage, leaving that issue for trial.

The court granted, in part, the applicant's motion for preservation and restraining orders over the respondent's assets in Ontario, a Mareva injunction over worldwide assets, and remedies for breach of court orders in a high-value family law dispute.

The respondent, who had moved millions of dollars out of Canada and failed to comply with multiple court orders, was precluded from further participation in the case, and a date for an uncontested trial was ordered.

The court declined to find contempt or impose a monetary penalty, but awarded full recovery costs to the applicant.

The respondent, Dario Jackson, brought a motion to dismiss the application of the applicant, Thea Jackson, for divorce and child support, arguing lack of jurisdiction, failure to state a claim, and failure to rebut his "affidavit of fact." The court rejected all arguments, finding it had jurisdiction under the Divorce Act and Constitution Act, 1867, and that the applicant's claims were properly before the court.

The court characterized the respondent's arguments as Organized Pseudolegal Commercial Arguments (OPCA) and dismissed the motion.

The appellant, Andrew Haley, appealed his convictions for assault and assault with a weapon, arguing that the trial judge erred in refusing to order disclosure of a video depicting a prior altercation involving the complainant.

The Ontario Superior Court of Justice found that the video was "obviously relevant" to the defence and should have been disclosed.

The failure to disclose violated the appellant’s right to make full answer and defence, and a new trial was ordered.

Dale Bowen pleaded guilty to possession of a loaded restricted firearm, possession of a firearm while prohibited, and possession for the purpose of trafficking cocaine.

The court considered aggravating factors including the gravity of the offences, the combination of drugs and guns, and a lengthy criminal record with prior drug and weapons offences, as well as five breaches of firearms prohibition orders.

Mitigating factors included the guilty plea, remorse, rehabilitative efforts, and the impact of systemic anti-Black racism on the offender's moral blameworthiness and life choices.

The court imposed a global sentence of 56 months (4 years and 8 months), with 44 months credit for pre-sentence custody, resulting in a net sentence of 12 months imprisonment, along with a lifetime weapons prohibition, DNA order, and forfeiture.

The defendant, Nathan Gagnon, was tried on two counts: sexual assault (s. 271 Criminal Code) and sexual exploitation (s. 153(1) Criminal Code) involving a 16-year-old drug-addicted complainant.

The Crown alleged vitiated consent due to a power imbalance (s. 273.1(2)(c)) and an exploitative relationship.

The defence conceded sexual touching but argued consent was not vitiated and the relationship was not exploitative.

The court assessed the credibility and reliability of both the defendant and the complainant, noting the complainant's impaired memory due to drug use and potential hindsight bias.

Ultimately, the court found that both the Crown's theory and the defence's position might reasonably be true, leaving a reasonable doubt.

The defendant was acquitted on both counts.

The appellant, Andrew Thomas, appealed a suspended sentence with 12 months of probation for an unprovoked assault.

He argued the sentencing judge erred by overemphasizing the victim impact statement, failing to adequately consider his mental health as a mitigating factor, not properly applying *R. v. Morris* regarding systemic racism and collateral consequences, and narrowly construing the public interest for a conditional discharge.

The court dismissed the appeal, finding no errors in principle and that the sentence was not demonstrably unfit, noting the sentencing judge properly considered all factors, including mental health and the impact of systemic racism, but found deterrence and denunciation paramount given the serious nature of the assault and the appellant's prior criminal record.

The defendant, Ganon Nathan, applied for directed verdicts of acquittal on charges of sexual assault and sexual exploitation.

The court reviewed the legal tests for directed verdicts and the essential elements of the offences, particularly concerning vitiated consent due to abuse of a position of power (sexual assault) and the existence of an exploitative relationship (sexual exploitation).

The court found sufficient evidence on all essential elements for both charges, including evidence of a power imbalance and an exploitative relationship, and dismissed the application for directed verdicts.

The Crown applied for an order remanding the defendant, Gregory Eze, for an assessment under s. 752.1(1) of the Criminal Code, to determine if he might be declared a dangerous or long-term offender.

The court found that the predicate sexual assault offences qualified as "serious personal injury offences" under s. 752(a).

The court then assessed whether there were reasonable grounds to believe Eze might be found to be a dangerous or long-term offender, applying a low threshold of "real possibility." Reviewing Eze's extensive criminal record, including multiple aggravated assaults and other violent offences, the court found a pattern of repetitive and persistent aggressive behaviour involving significant violence and physical control over victims, coupled with a lack of remorse and insight.

The court concluded that the Crown met the burden under s. 752.1(1), allowing the application for a 60-day assessment.

The complainant (J.N.) alleged sexual assault by her former family doctor, Romeo Tan, during a physical exam in May 2014.

J.N. had no memory of the incident for three and a half years until she read a newspaper article.

The defence argued the assault did not occur and highlighted inconsistencies in J.N.'s memory and the implausibility of the events.

The court found J.N. to be a sincere and credible witness but was not satisfied beyond a reasonable doubt that her recovered memory was reliable, given her general poor memory, suggestibility, the delay in recollection, and the lack of independent corroboration.

The defendant was acquitted.