Joseph M. Fragomeni

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 accused, on trial for second-degree murder, brought an application to exclude several documents seized by police from an abandoned apartment he formerly occupied.

The documents included a probation order, letters from a girlfriend, drawings depicting a gun, and a driver's licence suspension notice.

The Crown sought to introduce the documents to negate the accused's claim of self-defence and innocent purpose.

The court allowed the application and excluded the documents, finding they lacked relevance and probative value, and that their prejudicial effect far outweighed any potential probative value.

The accused brought a Corbett application seeking to edit his criminal record before testifying before the jury.

He requested that a prior robbery conviction be referred to as a theft and that a conviction for flight from police be excluded.

The court granted the application, finding that admitting the robbery conviction carried a serious risk of impermissible propensity reasoning given the factual matrix of the current charges.

The court also excluded the flight from police conviction, noting it was not a crime of dishonesty and its prejudicial effect outweighed any probative value, particularly since the Crown intended to lead after-the-fact conduct evidence of the accused fleeing police upon arrest.

The defence applied to exclude evidence of the accused's post-offence conduct, specifically his flight from police nine months after the alleged homicide.

The defence argued the evidence was more prejudicial than probative.

The court dismissed the application, finding the evidence relevant and probative to the issue of whether the accused committed a culpable homicide and did not act in self-defence.

The court held that the jury should be allowed to weigh the evidence with appropriate instructions.

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 Crown appealed a 90-day intermittent sentence imposed on the respondent for sexual interference involving a 15-year-old victim.

The respondent had digitally penetrated the sleeping victim and forced her to manually stimulate him.

The summary conviction appeal court found the original sentence was demonstrably unfit and failed to adequately reflect the principles of denunciation and deterrence given the egregious nature of the assault and the breach of trust.

However, because the respondent had already completed the intermittent sentence, was employed full-time, and supported his family, the court declined to re-incarcerate him and dismissed the appeal.

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 parents and two First Nations appealed a trial decision making two First Nations children Crown wards with no access for the purpose of adoption.

The appellants argued the trial judge made palpable and overriding errors of fact, erred in finding Crown wardship was the least restrictive alternative, and that the mother received ineffective assistance of counsel.

The appeal court dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the evidence, which included significant parenting deficits, developmental delays that improved in care, and the need for stability.

The court also admitted fresh evidence but concluded it did not warrant a new trial or a change to the order, affirming that Crown wardship with no access remained in the children's best interests.

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 offender was convicted by a jury of conspiracy to export ecstasy and marihuana, possession of proceeds of crime, and possession of cocaine and ecstasy for the purpose of trafficking.

The Crown sought a penitentiary term of 5 to 6.5 years, while the defence sought a conditional sentence, emphasizing the offender's recent motherhood and ADHD diagnosis.

The court found that while the offender's role was integral, she was not a principal in the operation.

Balancing the gravity of the offences with her personal circumstances, the court imposed a total penitentiary sentence of 30 months.

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.

Following a family law motion concerning exclusive possession and sale of the matrimonial home, the court determined the appropriate costs award.

The moving party sought full‑indemnity costs of approximately $15,780 after achieving success on the principal issues of exclusive possession and dispensing with the opposing party’s consent to sale of the home, although the request to strike pleadings was not granted.

Applying Rule 24 of the Family Law Rules and Rule 57.01 of the Rules of Civil Procedure, the court considered success at the motion, party conduct, settlement offers, and the principle of reasonableness.

The court found the moving party was more successful overall and that the responding party’s conduct, including failure to comply with court orders and disclosure obligations, necessitated the motion.

A fair and reasonable all‑inclusive costs award of $10,000 was ordered.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol level over 80 mg, arguing that the police failed to make an approved screening device demand under s. 254(2) of the Criminal Code and thereby breached his Charter rights under ss. 8 and 9.

The trial judge had found that no roadside screening demand was made but concluded that the officer nevertheless had reasonable and probable grounds to arrest and make a breath demand.

On appeal, the court held that there is no requirement that police administer a roadside screening test before forming reasonable and probable grounds for arrest if those grounds arise from observations during a rapidly unfolding encounter.

Considering the totality of the circumstances and the brief timeline between the stop and arrest, the court found no legal error in the trial judge’s reasoning.

The conviction was upheld.

Following a successful defence of a motion brought by the father seeking to prevent the mother from relocating with the children, the mother sought recovery of her legal costs.

The court applied the presumption under Rule 24(1) of the Family Law Rules that the successful party is entitled to costs, while considering the factors in Rule 24(11), including complexity, the parties’ conduct, and reasonableness of the fees.

Although the father’s motion was unsuccessful, the court found both parties acted in good faith and rejected the request for full recovery costs.

Applying the overarching principle of reasonableness and access to justice, the court awarded partial indemnity costs.

Costs were fixed at $5,000 payable by the father.

The applicant wife brought a motion for exclusive possession of the matrimonial home and to stay the respondent husband's pleadings due to his failure to pay prior costs awards and his share of a custody assessment retainer.

The court found that the parties' continued cohabitation was a 'warzone' contrary to the child's best interests and that the husband had the ability to find alternative accommodation.

The court ordered the husband to vacate the home forthwith, granted the wife exclusive possession, and stayed the husband's pleadings until he cured his financial defaults.

The applicant sought enforcement and clarification of a prior support order concerning child support and section 7 university expenses for an adult child attending university.

The respondent argued that he should pay only 50% of the table amount of child support for the entire year while the child attended university.

The court interpreted the earlier order to require full table support during months the child resided with the applicant and 50% of the table amount during months the child resided at university.

The court rejected the respondent’s interpretation, fixed child support arrears and section 7 expense arrears, and ordered ongoing support in accordance with the original formula.

During a trial involving wiretap evidence, the accused brought an application for a stay of proceedings after all evidence had been called and closing addresses completed.

The accused alleged that the Crown failed to disclose contact information and particulars regarding two individuals, which impaired his ability to make full answer and defence.

The court dismissed the application, finding that the accused failed to pursue disclosure diligently, did not establish prejudice, and that a stay of proceedings is a remedy of last resort not justified in these circumstances.