Leonard Ricchetti

The applicant spouse brought an urgent motion before a case conference seeking interim spousal support, interim child support, and an $8,000 advance on a potential equalization payment.

The respondent agreed to pay guideline child support but disputed the quantum of spousal support and opposed the advance.

The court held that while the applicant had prima facie entitlement to interim spousal support under s. 15.2 of the Divorce Act, the respondent’s financial obligations—including payment of substantial joint family debt and higher accommodation expenses—significantly reduced his ability to pay.

The court determined that strict adherence to the Spousal Support Advisory Guidelines is not mandatory on interim motions and must be balanced against the parties’ means and needs.

Interim spousal support was set at $700 per month and the request for an advance on equalization was refused.

The moving defendants sought to set aside a Mareva injunction freezing their assets in a civil fraud action involving alleged fraudulent factoring transactions worth approximately $6.5 million.

The court considered whether the plaintiff continued to demonstrate a strong prima facie case of fraud and a real risk of asset dissipation.

Evidence showed that the moving defendants’ companies received substantial funds from entities involved in the fraud, that explanations for the transactions were unsupported by documentation, and that the alleged sale of a business appeared suspicious.

The court also noted conduct inconsistent with the injunction, including the use of undisclosed bank accounts.

The court held that the plaintiff continued to meet the requirements for a Mareva injunction.

The Crown sought a ruling on the voluntariness and admissibility of statements made by the accused to Canada Border Services Agency officers during a secondary inspection at an airport following his return from abroad.

The defence argued that the statements were obtained in breach of Charter rights and should be excluded due to delayed rights warnings and the absence of audio or video recordings.

The court found that the accused was not constitutionally detained until contraband was discovered in concealed compartments of containers in his luggage, at which point he was immediately arrested and properly cautioned.

Several incriminating statements were spontaneous utterances and others were made in response to brief investigative questions rather than interrogation.

The court held the Crown proved voluntariness beyond a reasonable doubt and that the lack of recordings did not undermine admissibility in the circumstances.

The father brought a motion seeking sole custody and restricted access for the mother following the parties’ separation and ongoing disputes over parenting time.

The mother brought a cross‑motion seeking sole interim custody and equal parenting time after she unilaterally retained the children.

The court found no clear basis to prefer one parent over the other pending an investigation by the Office of the Children’s Lawyer.

An interim order for joint custody was granted with equal parenting time on a rotating weekly schedule during the summer.

Issues of child support were adjourned pending further submissions.

In a motor vehicle accident action, the plaintiffs brought a pre‑trial motion seeking to admit various medical documents under ss. 35 and 52 of the Evidence Act, including clinical notes and consultation reports from several physicians.

The court considered the distinction between factual medical observations and opinion evidence following the Divisional Court’s decision in Westerhof v. Gee (Estate) and related authorities.

The court held that factual portions of a deceased treating physician’s clinical notes were admissible under the principled exception to the hearsay rule and potentially as business records, but the physician’s diagnoses could not be admitted for their truth absent compliance with Rule 53.03.

Compliance with Rule 53.03 was waived in limited circumstances to allow the diagnosis to explain treatment, subject to a limiting jury instruction.

Reports from other specialists that did not comply with Rule 53.03 were excluded due to prejudice and lack of cross‑examination.

The father brought a motion to vary an interim custody and access order to increase parenting time based on recommendations contained in an Office of the Children’s Lawyer report suggesting no more than four days between parenting periods.

The mother opposed the change and sought a stay of the motion due to the father’s failure to pay prior costs orders and requested restrictions on future motions.

The court held that while non-payment of costs could justify a stay in financial matters, it would still consider the motion because children’s best interests were engaged.

The court declined to vary the interim access arrangement, finding the assessment recommendations vague, untested by cross-examination, and insufficient to justify altering a recently established status quo pending trial.

The father’s motion was dismissed, the mother’s stay motion was dismissed, and the request to require leave for future motions was adjourned.

The appellant appealed convictions for impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml.

At trial, the accused’s statements to police were ruled inadmissible due to Charter breaches, yet the trial judge relied on those statements and other improper inferences to conclude the accused was the driver.

On appeal, the Crown conceded error on the impaired driving conviction.

The court held the trial judge materially erred by relying on inadmissible evidence and by drawing unreasonable inferences from equivocal circumstantial evidence regarding the identity of the driver.

The convictions were therefore unreasonable and unsupported by sufficient admissible evidence.

The appellant appealed a conviction for possession of cocaine under s. 4(1) of the Controlled Drugs and Substances Act.

The drugs were found in plain view in the appellant’s bedroom after police attended the residence for a welfare check.

The appellant argued the trial judge erred in concluding possession was proven because others could have accessed the room, and further erred by failing to identify a Charter issue concerning the search of a plastic bag containing the drugs.

The court held the evidence supported the inference that the appellant had knowledge and control over the drugs given their visibility and location in his bedroom.

The court also declined to entertain a Charter argument raised for the first time on appeal, finding it may have been a tactical decision at trial and that the evidentiary record was insufficient.

The appellant appealed a summary conviction for impaired driving following a trial where he had been acquitted of failing to provide a breath sample but convicted of impaired operation.

The appellant argued the trial judge made unreasonable and inconsistent findings, including misapprehending evidence regarding his dexterity, drawing inferences from unsuccessful breath attempts, and misstating that he had testified he was “high.” The appeal court held that the trial judge’s factual findings were entitled to deference absent palpable and overriding error.

The court found that any misstatement in the reasons was not material and did not affect the reasoning process leading to the conviction.

The conviction for impaired driving was supported by strong evidence and the appeal was dismissed.

The applicants sought certiorari with mandamus in aid to review rulings made by a preliminary inquiry judge in a first‑degree murder prosecution.

They argued the preliminary inquiry judge erred by permitting a key witness to testify by closed circuit television under s. 486.2(2) of the Criminal Code based on hearsay evidence and by refusing to hold a voir dire regarding the witness’s appearance, including alleged use of a wig and tinted glasses.

The reviewing court held that evidentiary and procedural rulings at a preliminary inquiry are not reviewable on certiorari unless they amount to jurisdictional error or a denial of natural justice.

The challenged rulings were within the preliminary inquiry judge’s jurisdiction and did not impair the accused’s right to make full answer and defence.

The application for certiorari was therefore dismissed.

An insurer sought a declaration that its commercial general liability policy issued to a lamp shade manufacturing and importing business did not respond to a personal injury action arising from a forklift accident during the unloading of heavy industrial lathes.

The injured party alleged vicarious liability and occupier’s liability against the insured company.

The court applied the duty to defend test, accepting the allegations in the statement of claim but examining the true nature of the claim and the insured business operations described in the policy declaration.

The evidence showed the accident arose from the operations of a separate company engaged in buying and selling heavy machinery, an activity unrelated to the insured’s lamp shade business.

The court held there was no possibility that the claim fell within the policy’s coverage and therefore no duty to defend.

Following a two‑day trial concerning custody, parenting time, and child support, the mother sought sole custody and continuation of an existing parenting schedule while the father sought joint custody and equal parenting time.

The court applied the best interests of the child test under the Divorce Act and considered factors under s. 24 of the Children’s Law Reform Act.

Evidence showed both parents had a positive relationship with the child and were able to communicate effectively about parenting decisions.

While the father sought equal parenting time, the court found the status quo arrangement provided stability and should continue.

Joint custody was ordered, the child’s primary residence remained with the mother, and the father was ordered to pay guideline child support based on imputed income.

In complex environmental remediation and construction lien litigation, the moving party sought production of numerous documents withheld on claims of solicitor‑client privilege, litigation privilege, and relevance.

The court reviewed over 1,600 documents including materials from a consulting engineer, internal environmental steering committee meetings, and documents produced in related environmental contamination litigation.

The court held that the party asserting privilege bears the burden of proving it on a balance of probabilities and rejected broad claims that entire meetings or communications involving counsel were privileged merely because legal issues might arise.

Applying the functional approach to third‑party communications and the dominant purpose test for litigation privilege, the court determined that many communications primarily concerned business or factual remediation matters and were not privileged.

Documents relating to the related environmental action were found relevant to the counterclaim and ordered produced, subject to further submissions regarding specific documents identified in a schedule.

The appellant appealed a conviction for impaired driving following a guilty plea, arguing the plea was involuntary and that trial counsel provided ineffective assistance.

The court found the guilty plea was voluntary because the appellant understood jail was not a possible sentence regardless of the plea.

However, defence counsel failed to review all Crown disclosure, including videotape evidence showing the appellant in a police station washroom, which could have raised potential Charter s. 8 privacy issues.

The court held that failing to review the disclosure before advising the appellant constituted conduct falling below the standard expected of defence counsel.

Because proper review and advice could reasonably have affected the outcome, the court found a miscarriage of justice and set aside the guilty plea.

In a family law motion concerning interim parenting arrangements, the father sought the return of the parties’ children to the matrimonial home after the mother unilaterally removed them without notice or court authorization.

The court reviewed allegations of abuse raised by the mother, noting they were denied, unproven, and had not resulted in findings by child protection authorities.

Emphasizing the importance of discouraging unilateral self-help measures that disrupt the existing parenting status quo, the court concluded that the father’s proposed schedule best approximated the prior parenting arrangement.

An interim order for joint parenting was granted with the father receiving regular weekend parenting time.

The order was made without prejudice pending further proceedings.

The plaintiff corporation brought a motion for partial summary judgment arising from an alleged fraudulent investment scheme involving a purported $900 million bond‑trading program.

The plaintiff had transferred $2 million to a company account controlled by the principal defendant, believing the funds would be used in a short‑term bond transaction, but the funds were diverted through various accounts and ultimately used to purchase personal assets including a luxury residence.

The defendants asserted the transaction was legitimate and that the funds had been used for the bond program, but produced no reliable documentation supporting the existence of the bonds or the investment structure.

The court found overwhelming evidence that the scheme was fraudulent and that the principal defendant had knowingly misappropriated the funds.

Partial summary judgment was granted for $2 million against the principal defendant and related companies, while claims against other parties were left for trial.

The plaintiffs brought a motion to strike portions of the defendants’ Statement of Defence that referenced allegations of sexual assault involving a non‑party.

The plaintiffs argued the allegations were irrelevant and scandalous.

The defendants maintained that the timing of the criminal complaint and the civil claim was relevant to the existence of an alleged trust agreement over shares in a corporation operating a retail business.

The court held that the circumstances surrounding the reporting of the alleged assault and the timing of the civil action could be relevant to the credibility of the plaintiffs and the existence of the alleged trust.

Applying Rule 25.11 of the Rules of Civil Procedure and guidance from appellate authority, the court found the impugned allegations were not of marginal probative value and did not unfairly prejudice the plaintiffs.

Parents brought cross-motions seeking interim sole custody of two young children following separation.

The court considered conflicting allegations of abuse, the parties’ work schedules, the children’s established residence, schooling, and involvement of paternal grandparents.

Applying the best interests test under s. 16 of the Divorce Act, the court prioritized stability and continuity in residence and schooling.

The father’s home offered continuity with the children’s long‑time residence, school, and extended family support.

The court granted the father interim sole custody with substantial weekend and mid‑week parenting time to the mother and directed the Office of the Children’s Lawyer to investigate.

The Crown brought a certiorari application seeking to quash a preliminary inquiry judge’s decision discharging the accused on first degree murder and committing them only on second degree murder following the death of a child.

The Crown argued the preliminary inquiry judge failed to consider the whole of the evidence when assessing whether there was some evidence of planned and deliberate murder or murder while committing forcible confinement under ss. 231(2) and 231(5) of the Criminal Code.

The Superior Court held that the preliminary inquiry judge had reviewed the relevant evidence and determined that the circumstantial evidence did not permit a reasonable inference of planning, deliberation, or forcible confinement forming part of the same transaction as the killing.

Errors relating to the sufficiency of the evidence, even if wrong, are within the preliminary inquiry judge’s jurisdiction and do not justify certiorari.

The court found no jurisdictional error.

The accused was charged with assault with a weapon and assault causing bodily harm after striking the complainant on the head with a broomstick during a confrontation inside a residence.

The defence argued that the accused acted in self-defence, asserting that the complainant possessed a pocket knife and posed a threat.

The trial judge rejected this version of events, finding the defence witness unreliable and concluding there was no credible evidence that the complainant had a weapon or acted aggressively.

Applying the principles governing self-defence and the air of reality test, the court found that none of the essential elements of self-defence were supported by the evidence.

The Crown proved beyond a reasonable doubt that the accused intentionally struck the complainant with the broomstick, causing bodily harm.