J. M. Johnston

The applicant mother brought a motion to find the respondent father in contempt of a temporary parenting order, alleging he intentionally undermined her relationship with their 13-year-old child, resulting in the child refusing parenting time.

The court dismissed the motion, finding insufficient evidence to prove contempt beyond a reasonable doubt or a failure to obey under Rule 1(8) of the Family Law Rules.

The court gave significant weight to the child's clear and consistent views expressing a desire to reside with the father, and ordered the parties to continue family counselling rather than utilizing the blunt instrument of contempt.

The appellant appealed his conviction and sentence for sexual assault.

The complainant testified that the appellant touched her vagina while they were in bed, but there was a discrepancy in the transcript regarding whether the touching was over or under her clothing.

The trial judge concluded the touching was intentional because it was under the clothing, but later stated during sentencing that it was over the clothing.

The summary conviction appeal judge found the trial judge provided insufficient reasons for resolving this critical discrepancy and concluding the touching was intentional.

The appeal was allowed, the conviction was set aside, and a new trial was ordered.

The plaintiff brought a motion for summary judgment to recover legal ownership of a property she transferred to her defendant daughter in 2012.

The plaintiff argued she did not understand the legal effect of the transfer documents and that the transfer was subject to a resulting trust.

The defendant argued the transfer was a completed gift.

The court dismissed the plaintiff's motion and granted summary judgment to the defendant, finding on a balance of probabilities that the plaintiff intended to gift the property while retaining a life interest, and had simply changed her mind years later.

Following a successful motion by the Attorney General of Canada to vary an ex parte order and quash a summons to witness, the court determined the quantum of costs payable by the self-represented plaintiff.

The Attorney General sought $4,000 in costs.

Considering the plaintiff's limited financial means and the court's own role in initially granting the ex parte order, the court reduced the costs award, fixing it at $600 for fees and $317.49 for disbursements.

The respondent husband brought a motion to change a final order for spousal support, seeking to terminate his $1,400 monthly payments due to his early retirement and the applicant wife's increased income.

The court found a material change in circumstances based on both parties' increased incomes and the husband's early retirement.

However, the court held that the wife was still entitled to support given the length of the marriage and her economic disadvantage.

Spousal support was reduced to $700 per month for 12 months, and thereafter to $1 per year until the husband turns 65, at which point it will terminate.

The applicant father brought a motion to change seeking child support after one of the parties' two children moved primarily into his care and he lost his employment.

The respondent mother opposed, claiming undue hardship and seeking retroactive support based on the father's previously undisclosed higher income.

The court found a material change in circumstance but imputed income to the father, finding his career change resulted in underemployment.

After considering the shared custody framework under s. 9 of the Child Support Guidelines and the parties' financial circumstances, the court rejected a strict set-off and ordered the mother to pay $750 per month, while also calculating retroactive arrears owed by both parties.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding 80 mg contrary to the Criminal Code.

He argued that the breath samples were not taken "as soon as practicable" under s. 258(1)(c)(ii) due to a 90‑minute delay between the roadside stop and the first Intoxilyzer test, and that his s. 10(b) Charter right to counsel was breached by a delay before speaking with Legal Aid.

The court held that the trial judge’s findings of fact regarding police resource allocation and transport to a detachment with a breath technician were reasonable and entitled to deference.

The evidence supported the conclusion that the breath tests were taken as soon as practicable and that the right to counsel was not violated.

Even if a breach had occurred, the breath results would not have been excluded under s. 24(2).

The defendants brought a motion for various relief, including amending their pleadings and removing a certificate of pending litigation, while the plaintiffs brought a cross-motion to strike the defence and counterclaim.

The plaintiffs were largely successful in opposing the defendants' motion.

The plaintiffs sought full indemnity costs of $11,534.35, while the defendants argued costs should be deferred to a future motion.

The court declined to defer costs, finding the defendants' motion largely unnecessary.

The court rejected the plaintiffs' request for substantial indemnity costs and fixed costs at $3,500 plus HST, payable by the defendants within 90 days.

The Crown commenced a civil action seeking to recover environmental remediation costs arising from buried waste drums that contaminated groundwater.

The defendants moved to dismiss the action for delay and as statute-barred, while the Crown sought summary judgment against certain defendants relying on prior convictions under environmental legislation.

The court held that the claim was not barred by the applicable limitation period but refused summary judgment, finding genuine issues requiring trial, including damages and apportionment of liability.

Applying the Woodheath test, the court concluded that the approximately twenty‑one‑year delay in prosecuting the action was inordinate and inexcusable and created a presumption of prejudice that was not rebutted.

Given the death of key witnesses, fading memories, and lack of preserved evidence, the court found both presumed and actual prejudice and dismissed the action for delay.

The Crown brought an application for certiorari to quash a preliminary inquiry judge's order dismissing forgery charges against the respondents, who operated a medical clinic and allegedly signed medical marijuana access forms without proper authorization or specialist concurrence.

The Crown argued the judge committed a jurisdictional error by failing to consider the definition of a 'false document' under s. 321(b) of the Criminal Code.

The Superior Court agreed, finding that the preliminary inquiry judge failed to assess the whole of the evidence against the correct elements of the offence, resulting in a loss of jurisdiction.

The dismissal of the forgery counts was quashed and the matter remitted to the preliminary inquiry judge.

The Society brought a motion for summary judgment seeking an order for Crown wardship without access for six children.

The children had been apprehended multiple times due to the mother's historic drug use, exposure to domestic violence, and deplorable housing conditions.

The mother opposed the motion, arguing she had a new stable relationship and a supervisory job.

The court found no genuine issue requiring a trial, as the mother failed to demonstrate she had addressed the issues that led to the children's apprehension.

The court granted summary judgment, making all six children Crown wards without access to facilitate adoption.

In a child protection proceeding under the Child and Family Services Act, the child protection agency sought summary judgment declaring a child in need of protection and requesting Crown wardship without access.

The court applied the Rule 16 summary judgment test from the Family Law Rules and found no genuine issue requiring trial on the question of protection status, relying on extensive evidence including prior child protection history, parental risk factors, and a psychological parenting capacity assessment.

However, the court held that the question of the child’s best interests and whether Crown wardship without access was appropriate required a full trial, particularly in light of evidence suggesting the mother possessed some caregiving capacity and had offered explanations for past conduct.

The motion was therefore granted in part, with a protection finding entered but the issue of permanent wardship reserved for trial.

The applicant sought leave to appeal two interlocutory orders made at a family law settlement conference: one adjourning the conference sine die and another permitting the respondent to amend her pleadings to claim spousal support.

The court found that the settlement conference judge properly exercised his case management powers to ensure the complex corporate issues were trial-ready, and that the order regarding pleadings was purely procedural.

Finding no conflicting decisions and no good reason to doubt the correctness of the orders, the court dismissed the motion for leave to appeal.

The applicants, lineal descendants of two brothers who purchased 64 cemetery plots in 1869, sought a declaration that they were entitled to be interred in the remaining family plots.

The respondent cemetery, relying on the newly enacted Funeral, Burial and Cremation Services Act, 2002 and advice from the Registrar of Cemeteries, refused interment without strict proof of inherited interment rights.

The court held that the 1869 Deed governed, that 'heirs' included lineal descendants, and that the new Act did not apply retroactively to remove substantive rights.

Furthermore, the cemetery was estopped from denying interment rights due to its 140-year practice of allowing descendants to be buried in the family plots.