Lesley Evelyn Burke

The Respondent Mother moved to set aside the financial terms of a separation agreement, alleging unconscionable circumstances, lack of financial disclosure, material misrepresentation of income, and undue pressure by the Applicant Father.

The Applicant Father resisted, arguing the agreement was valid and enforceable.

The court found that the Respondent Mother had, with the assistance of experienced counsel, bargained away her right to financial disclosure and failed to establish unconscionability or exploitation of vulnerabilities.

The motion was dismissed.

The moving party brought a motion for summary judgment seeking a determination that the parties separated on August 5, 2018, and an order dismissing the responding party's claims for spousal support.

The court found that the parties separated on February 20, 2019, based on the objective evidence of their continued relationship and attempts at reconciliation.

The court dismissed the motion for summary judgment regarding spousal support, holding that support issues should be determined at trial alongside property and equalization issues to avoid inconsistent findings and ensure a comprehensive analysis.

The applicant father and respondent mother disagreed on whether their six-year-old child should return to in-person learning or continue online learning during the COVID-19 pandemic.

The court considered the risks of exposure to COVID-19, the lack of underlying health conditions for the child, the child's social development needs, and the safety measures implemented by the school.

The court concluded that the benefits of in-person learning outweighed the risks and ordered the child to return to school in person.

No costs were awarded due to the novelty of the issue.

The appellant appealed an interlocutory order dismissing his motion to strike the respondent's family law application for spousal support and equitable relief.

The appellant argued the claims were barred by a 2005 Nevada divorce and an ongoing civil action.

The Divisional Court dismissed the appeal regarding the motion to strike, finding triable issues regarding the validity of the foreign divorce and noting the family law equitable claims were distinct from the civil action.

However, the court granted the appeal to dispense with the appellant's attendance at the Mandatory Information Program due to his age and residency in Hong Kong.

The parties engaged in a family arbitration that resulted in an award ordering the respondent to pay $450,000 in lump sum spousal support and $185,000 in costs.

The respondent appealed the award and brought a motion to stay its enforcement pending the appeal, while the applicant moved to dismiss or stay the appeal due to the respondent's failure to pay the award.

Applying the RJR MacDonald test, the court dismissed the motion for a stay, finding that the respondent failed to establish irreparable harm or that the balance of convenience favoured a stay, particularly given the arbitrator's findings of egregious financial non-disclosure by the respondent.

The court declined to dismiss the appeal as an abuse of process but ordered that the respondent must comply with the support order by a specified date, failing which the applicant could move to dismiss the appeal.

The appellant mother sought leave to appeal an order requiring her to post $25,000 in security for costs for her appeal of a custody and access decision.

The court reviewed the test for leave to appeal under Rule 62.02(4) and found no conflicting decisions or good reason to doubt the correctness of the motion judge's order.

The motion judge had properly considered the exceptional circumstances of the high-conflict litigation and the Family Law Rules.

The motion for leave to appeal was dismissed.

The applicant mother brought a motion for temporary orders regarding child access, alleging the respondent father had an alcohol dependency, an addiction to pornography, and had placed her under surveillance.

The respondent sought equal parenting time, arguing his alcohol issues were under control.

The court ordered a graduated access schedule for the father, starting with supervised daytime visits and expanding to unsupervised overnight access, strictly conditional upon his compliance with random and scheduled alcohol testing (RAMP) and a section 30 assessment.

In a jury trial arising from a planned home invasion robbery, the court delivered written reasons for several evidentiary and procedural rulings made during the trial.

The accused sought a mistrial based on the Crown’s opening statement, challenged the admissibility of autopsy photographs and expert textile‑damage evidence, and requested a directed verdict removing first‑degree murder from the jury’s consideration for two accused.

The court dismissed the mistrial application, admitted the photographs and expert evidence, and held that there was sufficient evidence on which a jury could find the relevant accused to have been substantial and integral causes of death under the constructive first‑degree murder provisions of the Criminal Code.

Additional rulings addressed corrective jury instructions, the absence of a required Vetrovec warning for a key civilian witness, and a defence request that the Crown or court call additional witnesses.

The jury ultimately convicted one accused of first‑degree murder and the others of second‑degree murder.

The Crown applied for a ruling that a post‑arrest statement made by an accused during a police interview was voluntary and admissible at trial in a first‑degree murder prosecution.

The defence argued the statement was involuntary due to alleged physical intimidation, suggestions that the accused needed to speak, implied threats regarding the accused’s girlfriend, and inducements suggesting a robbery admission could avoid a murder charge.

The court reviewed the full interview and applied the voluntariness principles from leading Supreme Court of Canada jurisprudence.

It held that the accused had been properly cautioned, had consulted counsel, and chose to speak despite knowing his right to silence.

The court concluded the will of the accused was not overborne and that the statement, except for a later portion conceded by the Crown as induced, was voluntary and admissible.

Following a police investigation into a single-vehicle car accident where two firearms were discovered, three accused were charged with multiple firearms-related offences and breaches of court orders.

At the preliminary inquiry, the Crown presented evidence of a dark gray Mazda 3 that crashed while traveling at excessive speed.

Three males exited the vehicle and fled the scene.

Two of the males were apprehended shortly thereafter near a ravine.

The court examined whether there was sufficient evidence to commit the accused to trial on the basis of identity and possession of the firearms.

The court found sufficient circumstantial evidence to commit Williamson and Malcolm-Evans to trial on multiple counts, but discharged Lyttle due to insufficient evidence of his presence in the vehicle.

The accused was charged with sexual assault, unlawful confinement, robbery, assault causing bodily harm, and aggravated assault against a sex trade worker.

The court found the accused's testimony regarding the events leading up to the physical altercation to be plausible and the complainant's evidence to be unreliable.

The court held that the accused was justified in using force to retrieve his keys from the complainant under s. 34(1) of the Criminal Code, and that the Crown failed to prove beyond a reasonable doubt that the accused intentionally hit the complainant with his van.

The accused was acquitted of all charges.

The accused pleaded guilty to sexual assault and robbery.

The victim was a stranger whom the accused contacted by phone and met at a subway station.

In a stairwell, the accused used threats and force to attempt sexual intercourse with the victim, and subsequently stole her cell phone.

The court imposed a sentence of 20 months in custody less credit for pre-sentence custody, plus three years probation, along with ancillary orders including a SOIRA order for 20 years and a weapons prohibition for 10 years.

The court balanced aggravating factors including the use of threats, the compounding robbery, and high risk for sexual recidivism against mitigating factors including the guilty plea, youthful first offender status, and family support.