Kofi Barnes

This motion concerned interim orders in a high-conflict family law dispute.

The Applicant sought various relief regarding custody, access, child support, special expenses for a child with special needs, and a restraining order.

The court granted interim sole custody to the Applicant, established a specific access schedule for the Respondent, set the Respondent's income for child support purposes, and ordered contributions towards special therapy costs and a joint debt.

The court also addressed the Respondent's personal loan and retroactive child support, and imposed conditions for the payment of a prior costs order, including striking pleadings if not paid.

The applicants sought a determination that their interest in a property had priority over the respondents' interests.

The property owner, Carolyn Lederer, had a first mortgage and a second mortgage with Patricia Bailey.

When the first mortgage defaulted, Bailey, Marchese, and Yung paid it off, adding the amount to the Bailey Mortgage principal as per its standard charge terms.

The applicants, who had a judgment against Lederer from a failed property sale, claimed reliance on a parcel abstract showing only the initial, lower amount of the Bailey Mortgage.

The court dismissed the application, finding that the standard charge terms, which allowed for the addition of paid-out encumbrances to the principal, were deemed part of the Bailey Mortgage by statute, and the applicants had deemed notice of these terms.

The court also clarified that parcel abstracts provide notice of existence, not current monetary value, requiring further inquiry.

The applicant sought to vary a previous endorsement that had upheld the revocation of a building permit and confirmed the property's zoning as R1B(3)-153, following an appeal to the Divisional Court.

The applicant attempted to introduce fresh evidence (Exhibit H) to prove a different zoning, which the court had previously found to be inauthentic.

The court refused to treat the request as a motion for final judgment but agreed to consider the applicant's list of alleged errors.

After review, the court made only one minor correction regarding a costs award amount, maintaining all other aspects of the October 2, 2015 endorsement, including the finding that Exhibit H was not authentic and the property's zoning remained R1B(3)-153.

This trial decision addresses divorce, spousal support, equalization of family property, and child support.

The applicant sought leave to amend pleadings to request a charging order, which was granted for the amendment but denied for the charging order itself.

The court granted a divorce, awarded the applicant retroactive and lump sum spousal support on a compensatory basis, and ordered an equalization payment to the applicant.

Child support for the adult child was denied without prejudice.

The moving parties brought a motion alleging the responding party was in contempt of a court order establishing a remediation timetable for zoning variances.

Although the responding party technically breached the order by applying for different variances than those specified, the court found that post-order discussions between the responding party and the Chief Building Official caused confusion.

The court halted the contempt hearing, dismissed the motion, and directed the parties to discuss a way forward.

The appellant appealed a decision of the Chief Building Official revoking a building permit for the construction of a two-family dwelling.

The court dismissed the appeal, finding it was barred by res judicata as the revocation order had been previously upheld.

On the merits, the court held that while the property had legal non-conforming use status, the appellant's proposed construction constituted an extraordinary intensification of use that required a zoning variation from the Committee of Adjustments, which falls outside the authority of the Chief Building Official.

The defence brought an application to preclude the Crown from bringing a hearsay application to admit the prior statements of a missing witness.

The defence argued the Crown failed to provide the required 30 days' notice under Rule 30.04 of the Superior Court Criminal Proceedings Rules and failed to promptly disclose that the witness could not be found.

The court found that while the police efforts to locate the witness were lacking and the Crown failed to comply with the notice rules, there was no improper motive.

The court concluded it was in the interests of justice to dispense with compliance with the rules, as the defence suffered no prejudice.

The defence applied to preclude the Crown from bringing a hearsay application to admit the prior videotaped statement and preliminary inquiry testimony of a missing victim in an attempted murder trial.

The defence argued that the Crown failed to comply with notice requirements under the Superior Court Criminal Proceedings Rules and that police efforts to locate the witness were insufficient.

The court found that while police efforts were inadequate and Crown disclosure of the witness's unavailability was late, there was no improper motive by the Crown.

The court dismissed the defence's application, concluding that it was in the interests of justice to permit non-compliance with the notice rules, as the defence was not prejudiced by the timing of the application itself, and the issues raised were relevant to the merits of the hearsay application.

The Applicants, judgment creditors of Wayne Sydney Novak, brought a motion to compel Lawyers Professional Indemnity Company (LAWPRO), the garnishee, to produce documents and for further cross-examination of its representative regarding Novak's professional liability insurance coverage.

LAWPRO had denied coverage to Novak and filed a garnishee statement denying indebtedness.

LAWPRO brought a cross-motion to strike portions of the Applicants' amended notice of motion, arguing lack of standing and privity of contract.

The court dismissed LAWPRO's motion to strike, finding the issue of coverage relevant to the garnishment hearing.

The court partially granted the Applicants' refusals motion, ordering further cross-examination of LAWPRO's representative on coverage and production of LAWPRO's file (excluding communications with defense counsel protected by joint solicitor-client privilege).

However, the court denied production of defense counsel's file, affirming it was protected by joint solicitor-client privilege between LAWPRO and Novak.

The defendants, including the Ministry of the Attorney General and two Crown Attorneys, brought a motion to strike the plaintiff's Statement of Claim without leave to amend.

The plaintiff had sued the defendants for defamation and malicious prosecution arising from his criminal proceedings.

The court granted the motion, finding that the action was statute-barred by section 8(1) of the Ministry of the Attorney General Act, as the defendants were acting in the performance of their duties.

Furthermore, the court held that the Statement of Claim disclosed no reasonable cause of action, as there were reasonable and probable grounds for the charges laid against the plaintiff.

The accused was charged with importing cocaine after CBSA officers found cocaine in fruit juice cans in her luggage during a secondary inspection at the airport.

The accused sought to exclude statements she made to a CBSA officer, arguing they were involuntary and obtained in violation of her s. 7 and s. 10(b) Charter rights.

The court held that the statements were voluntary, as the accused was statutorily compelled to answer routine questions at the border.

The court further held that the accused was not detained until the officer formed a sufficiently strong particularized suspicion after x-raying the cans, at which point no further statements were made.

The Charter motion was dismissed and the statements were ruled admissible.

The applicant father sought to vary a final consent order that provided for shared custody of the parties' three children, seeking sole custody, child support, and s. 7 expenses.

The court found a material change in circumstances as the shared parenting arrangement had become unworkable and the children consistently expressed a desire to live with the father.

The court awarded sole custody to the father with a specified access schedule for the mother.

The father was granted leave to amend his pleadings at trial.

The court ordered the mother to pay ongoing child support and partial retroactive child support, but denied the father's claim for retroactive s. 7 expenses due to lack of notice and his tactical use of an expert report.

The applicant, charged with fraud over $5,000, sought reconsideration of a prior decision denying a stay of proceedings pending the appointment of state-funded counsel under a Rowbotham order.

The court reconsidered the issue after receiving additional evidence regarding the proceeds of the applicant’s home sale and psychiatric evidence concerning his ability to represent himself.

Although the court accepted that the applicant appeared indigent and lacked access to the sale proceeds, the psychiatric evidence remained insufficient and procedurally deficient to establish that he could not conduct his own defence.

The applicant failed to properly introduce expert evidence or provide adequate foundation for the medical opinions.

The court concluded the applicant had not met the requirement that counsel was necessary to ensure a fair trial.

During a criminal jury trial for multiple sexual offences including incest, the accused brought a motion for a directed verdict on the incest count, arguing that penile penetration of the complainant’s anus could not constitute “sexual intercourse” under s. 155 of the Criminal Code.

The court was required to interpret the meaning of “sexual intercourse” in light of s. 4(5) of the Criminal Code and the purposes of the incest prohibition.

Applying principles of statutory interpretation, the court held that the offence aims both to prevent genetic risks associated with inbreeding and to protect vulnerable family members.

Limiting sexual intercourse to penile-vaginal penetration would undermine the protective purpose of the provision and exclude male victims.

The court concluded that sexual intercourse includes penile penetration of the anus and therefore sufficient evidence existed for the jury to consider the incest charge.

In a prosecution for first degree murder, the Crown brought an application seeking admission of several out-of-court statements made by the deceased to friends and associates describing a deteriorating relationship with the accused and expressing fear that the accused and his family intended to kill him.

The court conducted a voir dire on the admissibility of the statements under the hearsay rule.

The court held that the statement expressing fear that the accused would kill the deceased with his own guns was admissible under the traditional state of mind exception to the hearsay rule.

The remaining statements describing prior disputes, business dealings, and a recent altercation between the deceased and the accused were admitted under the principled exception because necessity was established and sufficient indicia of reliability existed through corroborating evidence and contextual circumstances.

The probative value of the evidence relating to animus and motive outweighed any prejudicial effect, including concerns about prior discreditable conduct.

The accused, a Black man charged with the murder of an Asian man, brought a motion to allow multiple-choice questions to be put to prospective jurors during the challenge for cause process, arguing the standard Parks question is insufficient to uncover subconscious racial bias.

The Crown opposed the motion, arguing there was no evidentiary basis to depart from the standard question.

The court dismissed the motion, finding no evidence that the proposed multiple-choice format would be an improvement over the standard Parks question, but directed that jurors be instructed they may provide detailed answers rather than just 'yes' or 'no'.

The accused brought an application for a Rowbotham order seeking a stay of criminal charges until the Attorney General funded defence counsel.

The court considered the test requiring proof that legal aid had been refused and exhausted, that the accused was indigent, and that the absence of counsel would compromise the right to a fair trial.

Although the court accepted that the accused likely required counsel for a fair trial and might be able to demonstrate indigence, it found that the lack of state funding resulted from the accused’s own conduct in repeatedly discharging counsel and causing trial delays.

The court held that this conduct disentitled the accused from obtaining a Rowbotham order.

The application was dismissed and amicus curiae was appointed to assist the trial court.

The applicant sought an order requiring consumer reporting agencies to remove debts older than two years from his credit report, arguing that once the two‑year limitation period under the Limitations Act, 2002 expires, such debts cannot be legally enforced and should not be reported.

The court considered whether the limitation period governing civil proceedings should apply to the time frame for reporting debts under the Consumer Reporting Act.

The court held that the statutes serve distinct purposes: the Limitations Act governs the enforcement of legal claims, while the Consumer Reporting Act regulates consumer credit reporting.

Because neither statute incorporates the other, the two‑year limitation period does not restrict the reporting of debts under the Consumer Reporting Act.

The applicant’s Charter argument also failed because the actions complained of involved private entities rather than governmental action.

The Crown sought a ruling that an accused’s inculpatory statement made to a police officer while awaiting medical treatment was voluntary and admissible.

The statement was made after the accused had earlier invoked the right to silence during a recorded interview and after consulting counsel.

The defence argued the statement was involuntary and obtained in breach of ss. 7 and 10(b) of the Charter, emphasizing gaps in the officer’s notes and inconsistencies in recollection.

The court applied the contextual voluntariness analysis and concluded that uncertainties about the unrecorded portions of the conversation and the officer’s unreliable recollection raised a reasonable doubt about voluntariness.

The statement was ruled inadmissible and the Charter exclusion argument became moot.

The appellant brought a motion to reopen a final judgment based on fresh evidence, specifically a document ('exhibit H') purporting to show the correct zoning for his property, which would resolve a dispute over a revoked building permit.

The court found it had jurisdiction to reopen the case under Rule 59.06(2)(a) to prevent a miscarriage of justice, despite the appellant's lack of reasonable diligence in bringing the document forward.

However, after reviewing the evidence, the court concluded that exhibit H was not an authentic document.

The motion to alter the previous judgment was dismissed, and the original remediation timetable remained in effect.