Joseph M. Fragomeni

The applicant brought a motion seeking several forms of post‑judgment relief including equal division of the respondent’s pension, amendments to an access schedule, access arranged according to the father’s availability, and orders relating to life insurance securing support obligations.

The court held that many of the requested financial remedies had not been raised at trial and the trial judgment was final, rendering the court functus officio with no jurisdiction to alter the property division or support security terms.

The court also declined to amend the detailed access provisions previously ordered, finding the existing order already governed communication and scheduling issues and that the parties’ conflicting affidavit evidence was insufficient to justify modification.

The respondent was directed only to provide documentary confirmation that the applicant had been designated trustee of his life insurance policy as required by the prior judgment.

The appellant appealed convictions for assault causing bodily harm and assault with a weapon arising from a bar altercation.

The trial judge had relied on generalizations about “bar fight” cases and drew adverse credibility inferences from the accused’s failure to provide certain details during a police statement.

The summary conviction appeal court held that the trial judge improperly relied on the accused’s partial silence when assessing credibility, contrary to principles affirmed in appellate jurisprudence on the right to silence.

The court also found the trial judge’s analytical framework, which treated bar fight cases as having predictable credibility dynamics and sought a “franchise witness,” was inconsistent with the approach mandated by R. v. W.(D.).

The convictions were set aside and a new trial ordered.

In a family law proceeding, the court addressed costs following a motion where the husband sought leave to bring a further motion for disclosure concerning the wife’s income from a family trust pursuant to an earlier court order.

The husband argued he was successful and presumptively entitled to costs under Rule 24(1) of the Family Law Rules.

The wife and the family trust contended that the leave granted was significantly narrower than the broad disclosure sought in the husband’s motion materials and argued they should receive costs.

The court determined that the issue of costs should be reserved to the judge hearing the forthcoming disclosure motion, who would be best positioned to assess the scope and outcome of the disclosure request.

The defendants brought motions seeking to strike or dismiss the plaintiff’s summary judgment motion and for security for costs in a commercial dispute arising from an alleged breach of an agreement of purchase and sale for resort property.

The plaintiff alleged breach of contract, fraudulent misrepresentation, slander of title, and conspiracy relating to a failed $16 million transaction.

The court held that the action involved complex factual issues and significant credibility disputes, making it unsuitable for determination by summary judgment at an early stage.

The court further found that the corporate plaintiff failed to establish impecuniosity with sufficient evidentiary detail and that there was no proven causal link between the defendants’ conduct and the plaintiff’s financial distress.

Security for costs was therefore ordered while the summary judgment motion was stayed pending further steps in the litigation.

The offender was convicted by a jury of manslaughter after being charged with second degree murder arising from a fatal shooting during a struggle in a hotel room.

The sentencing judge considered competing theories regarding who brought the firearm and whether the killing occurred during a robbery, self‑defence, or provocation.

The court found it was not proven beyond a reasonable doubt that the offender brought the gun to commit a robbery, concluding instead that the deceased likely brought the firearm and that the offender gained control of it during an ambush and struggle.

While the killing was unlawful, the offender lacked the state of mind for murder.

Balancing denunciation, deterrence, rehabilitation, the offender’s youth and background, and aggravating factors including a prior record and probation status, the court imposed an eight‑year penitentiary sentence with credit for pre‑trial custody.

The appellant appealed a summary conviction for assault with a weapon under s. 267 of the Criminal Code.

The appeal challenged the trial judge’s admission of a 911 call under the principled exception to the hearsay rule and argued the trial judge improperly relied on judicial notice regarding the complainant’s injuries.

The appeal court held that the trial judge correctly assessed threshold reliability and necessity when admitting the 911 call and was entitled to consider surrounding circumstances, including corroborating observations by police and the complainant’s availability for cross‑examination.

The court also held that the trial judge did not improperly take judicial notice but instead made permissible credibility findings based on the evidentiary record.

Deference was owed to the trial judge’s credibility assessments and factual findings.

The Crown appealed an acquittal for refusing to provide a breath sample under s. 254(5) of the Criminal Code.

The trial judge had concluded the accused lacked a settled intention to refuse because he acted on perceived legal advice and confusion, and also relied on a “last chance request” analysis.

On appeal, the court held that the offence is one of general intent requiring only knowledge or awareness of the refusal, not wilfulness.

The court further found the last‑chance defence inapplicable because the accused made no immediate request to provide a sample and remained adamant in refusing despite repeated explanations.

The acquittal was set aside and a new trial ordered.

The Crown appealed an acquittal on a charge of failing or refusing to comply with a demand for breath samples under s. 254(5) of the Criminal Code.

The trial judge had accepted the defence of officially induced error based in part on the police advising that the accused “may” be charged if she refused to provide a breath sample.

On appeal, the court held that the use of the word “may” was not erroneous because police retain discretion whether to lay charges.

The court further found that the accused’s own testimony demonstrated she did not rely on any police advice in deciding to refuse the demand.

The appeal was allowed, the acquittal set aside, and the matter remitted for a new trial before a different judge.

The Crown appealed a sentence imposed following guilty pleas to assault against a spouse and breach of an undertaking.

The trial judge had granted a conditional discharge with probation for the assault and an absolute discharge for the breach.

The appeal court held that the sentencing judge erred in principle by failing to properly appreciate the distinction between a conviction and a discharge and by inadequately addressing the seriousness of the prolonged domestic assault, which occurred in the presence of the couple’s child.

The court emphasized that denunciation and deterrence are controlling principles in domestic violence sentencing and that the circumstances made a discharge contrary to the public interest.

The appeal was allowed and the sentences were varied to suspended sentences with probation.

The appellant appealed a conviction for impaired operation under s. 253(1)(b) of the Criminal Code following a summary conviction trial.

He argued that he was not operating the vehicle, that his investigative detention was arbitrary contrary to s. 9 of the Charter, and that the seizure of his breath samples violated s. 8 of the Charter due to improper administration of the approved screening device.

The appeal court held that the trial judge’s credibility findings and factual determinations were entitled to deference and were supported by the evidence.

The officer had reasonable grounds to detain the appellant while investigating a nearby collision and subsequently developed reasonable suspicion of impaired driving.

The roadside breath demand and arrest were found lawful, and the breath sample procedure was properly conducted.

The applicant spouse brought an interim motion in family litigation seeking various remedies including striking the respondents’ pleadings, interim spousal support, exclusive possession of the matrimonial home, and restraining orders.

A co-owner brother of the respondent spouse brought a cross-motion seeking partition and sale of the jointly owned property under the Partition Act.

The court held that the evidentiary record raised multiple triable issues concerning ownership contributions, occupation rent, and mortgage liabilities.

The court ordered the matrimonial home to be listed for sale but directed that the net proceeds be held in trust pending trial.

Interim spousal support of $1,500 per month was ordered and the husband’s share of certain trust funds was allocated toward support.

Claims regarding child support, final distribution of sale proceeds, and other financial disputes were reserved for trial.

The plaintiff mortgagee brought a motion for summary judgment seeking possession of several mortgaged properties and payment of outstanding principal, interest, and contractual fees after the defendants defaulted on a blanket mortgage securing five properties.

The defendants admitted the mortgage and default but argued summary judgment was inappropriate because third parties might claim interests in the lands.

The court held there was no genuine issue requiring a trial, noting the mortgage was valid, the default was admitted, and the defendants provided no evidence disputing the accounting of the debt.

Alleged potential interests of third parties did not affect the plaintiff’s entitlement to judgment under the mortgage.

Summary judgment was granted with possession and payment ordered.

The applicant brought a motion for summary judgment in a family law proceeding concerning child support and related relief after the respondent failed to file responding materials or appear.

The court considered the requirements for summary judgment under Rule 16 of the Family Law Rules and reviewed affidavit evidence regarding the respondent’s sporadic contact with the children, his employment history, and ongoing failure to provide financial disclosure or consistent support payments.

Evidence demonstrated significant arrears and difficulty enforcing existing support orders through the Family Responsibility Office due to the respondent’s changing employment and lack of disclosure.

The court concluded there was no genuine issue requiring a trial and granted summary judgment with minor modifications to the proposed order, including deletion of one paragraph and an award of fixed costs.

The Crown brought a motion seeking to admit evidence of an alleged robbery occurring four days before a fatal shooting as similar fact evidence in a second degree murder trial.

The Crown argued that the earlier incident shared distinctive similarities with the charged offence, including the use of a firearm, hotel-room encounters with sex trade workers, and the use of the same cellphone number to arrange meetings.

The respondent opposed admission, arguing that the similarities were generic and that the evidentiary link between the accused and the earlier robbery was weak and largely hearsay.

The court held that the similarities were not sufficiently distinctive and that the evidence linking the accused to the earlier incident was not cogent.

As the probative value did not outweigh the prejudicial effect, the proposed similar fact evidence was ruled inadmissible.

The appellant appealed a conviction for failing or refusing to comply with a demand to provide a breath sample into an approved screening device under s. 254(5) of the Criminal Code.

She argued that the trial judge misapplied the W.D. credibility framework, misapprehended evidence relating to the police officer, her own testimony, and medical evidence regarding asthma, and convicted her on a charge not properly particularized in the information.

The appeal court held that the trial judge’s factual findings and credibility assessments were entitled to deference and were supported by the evidence, including the officer’s testimony that the appellant had numerous opportunities to provide a sample but failed to do so.

The court also concluded that the trial judge’s reasons were functionally sufficient and disclosed an intelligible basis for the verdict.

The appellant failed to establish any palpable and overriding error or miscarriage of justice.

The appellant appealed a conviction for assault arising from a domestic dispute, arguing that the trial judge demonstrated bias, made unreasonable findings of fact, and misapplied the law relating to defence of property.

The Superior Court of Justice held that the impugned comments by the trial judge were made in the context of explaining the trial process to a self-represented accused and did not give rise to a reasonable apprehension of bias.

The court further found that the trial judge’s factual findings were supported by the evidence and were entitled to deference on appeal, and that the correct legal framework for defence of property had been applied.

The appellant also sought costs and compensation for various alleged harms, but the court held that there was no basis for such an award in the absence of prosecutorial misconduct or other exceptional circumstances.

The conviction and conditional discharge were therefore upheld.

Following a successful family law motion concerning guideline child support and section 7 expenses, the applicant mother sought recovery of litigation costs.

The court applied the presumption under Rule 24(1) of the Family Law Rules that a successful party is entitled to costs.

Certain claimed expenses relating to earlier settlement conferences were disallowed because one conference had been adjourned due to improper service and the other endorsement did not address costs.

The court awarded partial indemnity costs limited to preparation and attendance for the motion.

Costs were fixed in the amount of $750 payable by the respondent father.

The appellant appealed convictions for care or control of a motor vehicle while impaired and with blood alcohol exceeding the legal limit under the Criminal Code.

He was found asleep in the driver’s seat of his parked vehicle with the keys in the ignition after a night of drinking and argued that he had no intention of driving and had planned to obtain a ride home.

The trial judge found that although the presumption of care or control had been rebutted and there was no risk of accidental movement, there remained a real risk that the appellant might change his mind and drive while still impaired.

On appeal, the court held that the trial judge’s inference of a realistic risk of a change of mind was supported by circumstantial evidence including the appellant’s level of impairment, inconsistent plans, and access to the vehicle’s controls.

The appellate court further found no error in the application of the burden of proof under W.D. and concluded that the trial judge’s reasons were adequate.

The accused was charged with theft over $5,000 arising from a series of cheques written to herself from a corporate account while employed as a manager and later shareholder.

The Crown alleged the accused lacked authority and concealed the payments.

The defence maintained the cheques were authorized and properly recorded as shareholder loans in the company’s books.

After applying the W.(D.) credibility framework, the court accepted the accused’s evidence, supported by a forensic accounting report showing the payments were transparently recorded and not concealed.

The court held the dispute was essentially civil in nature between shareholders and that the Crown failed to prove theft beyond a reasonable doubt.

Following a jury trial, the offender was convicted of sexual assault, common assault, and uttering a death threat against an intimate partner.

The offences involved forced vaginal intercourse accompanied by violence, physical assault during a dispute, and a later threat to kill the complainant.

The court considered aggravating factors including the violent nature of the sexual assault, the intimate relationship context, the victim’s vulnerability due to serious illness, and prior foreign convictions for sexual offences entered on a plea of nolo contendere.

Emphasizing denunciation and deterrence, the court imposed a penitentiary sentence.

A total sentence of four years’ imprisonment was ordered along with ancillary orders including DNA collection, a weapons prohibition, and registration under the Sex Offender Information Registration Act.