ONCJ 2012

Motion to change a child support order originally made in February 2005.

The applicant mother sought to increase child support from $493.00 per month based on evidence that the respondent father had substantially underreported his income at the time of the original order.

The respondent, a self-employed welder, claimed income of only $33,300 per year despite gross business revenues exceeding $100,000 annually and a prior disclosed income of $91,000.

The court found the respondent's financial disclosure inadequate and unreliable, with evidence of personal expenses written off as business deductions, undisclosed cash income, and a lifestyle inconsistent with reported earnings.

The court imputed income of $90,000 per annum and ordered retroactive support arrears.

A custody and access trial involving two children where the applicant sought sole custody or joint custody with final decision-making authority, while the respondent sought sole custody.

The court awarded sole custody to the respondent, finding that the applicant lacked the ability to cooperate with the respondent as a co-parent, had made numerous unfounded complaints to child protective authorities, and had emotionally abused the children through constant criticism of their mother.

The respondent demonstrated superior parenting ability, financial stability, and commitment to the children's education and welfare.

The applicant was granted alternate weekend access with strict conditions regarding punctuality for access exchanges.

The respondent mother brought a motion for temporary spousal support.

She had quit her retail management job due to stress and anxiety, and sought support while upgrading her education to pursue a new career.

The court found her career plan lacked concrete details and noted she was capable of working in a non-managerial role.

The court imputed income to the mother based on her work history and dismissed the motion for temporary spousal support, finding her financial need was largely self-created.

The appellant appealed his conviction for failure to properly wear a seatbelt contrary to section 106(2) of the Highway Traffic Act.

A police officer observed the appellant driving a dump truck without an apparent shoulder restraint during a brief observation of approximately 20 to 30 seconds at a traffic light intersection.

The trial justice convicted the appellant based on the officer's evidence.

On appeal, the court found that the appellant's evidence, though not explicitly stating he was wearing a seatbelt, logically conveyed that he was wearing one at all times.

The court determined the trial justice misapplied the burden of proof and failed to properly apply the W.(D.) test for assessing credibility and reasonable doubt.

The appeal was allowed, the conviction was set aside, and an acquittal was entered.

The applicant sought temporary child support for the parties' 15-year-old daughter and the respondent's pro-rata share of orthodontic expenses.

The respondent sought to fix his income at a lower amount based on medical reasons and undue hardship, and requested a reduction in child support to $300 per month.

The court fixed the respondent's income at $71,321 based on his 2010 tax return, rejected the undue hardship claim, and ordered child support at the guideline table amount.

The court also found that orthodontic treatment constituted a special expense and ordered the respondent to pay his pro-rata share after insurance coverage.

This is a preliminary motion ruling on appeals of Compliance Audit Committee decisions to order compliance audits of election campaign finances.

The appellants sought to have the appeals conducted as hearings de novo, while the respondents and the Committee argued the appeals should be limited to a review of the record.

The court determined that absent a clear statutory mandate to the contrary, appeals must take the form of a review of the record rather than de novo hearings.

The court rejected arguments that deficiencies in the record, the Committee's failure to provide reasons, or the prematurity of the audit application warranted a de novo hearing format.

The accused was charged with impaired driving and driving with excess blood alcohol.

At trial, the accused brought Charter applications alleging breaches of his right to counsel (s. 10(b)), right against arbitrary detention (s. 9), and right to be tried within a reasonable time (s. 11(b)).

The court dismissed all Charter applications, finding the police acted reasonably in facilitating access to counsel, the 5.5-hour detention was justified given the accused's intoxication and belligerence, and the 23.75-month delay was largely due to inherent time requirements and defense actions.

The court accepted the expert toxicological evidence and police observations, finding the accused guilty on both counts.

The accused was charged with impaired driving and driving with excess alcohol.

His trial was delayed for 14 months due to a lack of court time and the unavailability of a fully accredited Spanish interpreter.

The accused brought an application under s. 11(b) of the Charter, arguing that his right to be tried within a reasonable time was violated.

The court found that while the 9-month institutional delay was within the acceptable guidelines, the specific prejudice suffered by the accused, including additional legal expenses and anxiety from multiple adjourned trial dates, rendered the delay unreasonable.

The application was granted and the charges were stayed.

The applicant brought a Charter application alleging a breach of section 7 rights due to the Crown's failure to timely disclose that no video recording existed of the intoxilyzer breath tests.

The applicant argued this prevented him from assessing the strength of the Crown's case within the 90-day window required to qualify for Stream A of the ignition interlock program, which provides reduced driving suspension periods.

The court dismissed the application, finding no section 7 violation occurred.

The court noted that while disclosure obligations are continuing, there is no mandatory 90-day disclosure deadline, and the applicant suffered no prejudice as he had not intended to plead guilty within that period and entered a not guilty plea at trial.

Pre-trial motion decision in a family law matter concerning a motion to change a prior order that granted the applicant custody of two children and denied the respondent access.

The respondent sought to vary the order based on completion of substance abuse treatment.

The court addressed multiple pre-trial motions including: permission for the applicant and her spouse to participate in cross-examination via Skype from Denmark; disclosure of police records concerning the respondent; extensive mutual disclosure requests; and whether to set aside or stay prior court orders.

The court permitted Skype cross-examination based on financial hardship and the balance of convenience, ordered disclosure of police records with court screening, granted mutual disclosure requests, and stayed the order requiring production of children for supervised access while declining to set aside the original custody order.

The applicant mother brought a motion to transfer her motion to change a final custody order from Elliot Lake to Brantford, arguing it should be heard together with a child protection proceeding involving her third child.

The respondents, who have had custody of the two children in Elliot Lake since 2003, opposed the transfer.

The court dismissed the motion, finding that the preponderance of evidence regarding the children's best interests, including their education, friends, and community ties, is located in Elliot Lake, and there was no merit to dragging the respondents into the applicant's child protection litigation in Brantford.

The accused was charged with sexual assault contrary to section 271 of the Criminal Code.

The complainant testified that she awoke to find the accused engaged in sexual activity with her while she was asleep in her bedroom.

The accused claimed the complainant was kissing him back and that he believed she had consented.

The court found that the complainant did not consent as she was incapable of consenting while asleep, and that the accused failed to take reasonable steps to ascertain consent.

The court rejected the defence of honest but mistaken belief in consent, finding no air of reality to the defence given the circumstances and the accused's self-induced intoxication.

The Criminal Lawyers' Association applied on behalf of Salma Jaffer for court-assessed fees above the legal aid rate of $88.00 per hour for work performed as amicus curiae in a serious sexual offence case.

The defendant was charged with multiple serious sexual offences, had difficulty maintaining solicitor-client relationships, and had questionable fitness.

The court appointed Jaffer as amicus to assist in ensuring the preliminary inquiry proceeded while protecting the defendant's fair trial interests.

The court granted the application and set Jaffer's remuneration at $150 per hour, finding that while the legal aid tariff is a significant factor, it is not conclusive and must be balanced against counsel's experience, the importance and complexity of the assignment, and the broader interests of the administration of justice.

Following his acquittal on weapons charges arising from the G20 protests, the applicant sought costs of $10,310 against the Crown under s. 24(1) of the Charter, alleging police and prosecutorial misconduct.

The court found no evidence of Crown misconduct or abuse of process in the exercise of prosecutorial discretion.

Regarding police misconduct, the court held that the applicant had already received a remedy through the exclusion of evidence at trial, and that a civil claim for damages was the appropriate avenue for further relief.

The application for costs was dismissed.

The offender pleaded guilty to mischief to property exceeding $5,000 and common nuisance through endangerment arising from breaking windows at Toronto Police Service headquarters during G20 protests in June 2010.

The Crown sought 6-8 months incarceration; defence sought a conditional sentence.

The court imposed 60 days intermittent custody followed by one year probation with restitution of $2,500 and 100 hours community service, finding that while general deterrence and denunciation required imprisonment, the offender's personal circumstances, genuine contrition, first-offender status, and strict bail conditions warranted a reduced custodial sentence served intermittently rather than a conditional sentence.

The offender was convicted after trial of aggravated assault and three counts of breach of probation arising from an unprovoked and vicious beating of a victim in February 2011, which resulted in severe traumatic brain injury and permanent cognitive and physical impairment.

The offender also pleaded guilty to common assault and two counts of breach of probation for assaulting another inmate while in custody in May 2011.

The sentencing court imposed a custodial sentence balancing denunciation and deterrence against rehabilitation, with particular consideration given to the offender's Aboriginal status, youth, and background trauma, while recognizing the serious nature of the violent offences and the significant harm inflicted on the victims.

A numbered company operating as an entertainment establishment/nightclub was charged with operating without the required municipal license under the City of Toronto Municipal Code.

The accused brought a motion for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms, alleging that its right to be tried within a reasonable time under section 11(b) of the Charter had been infringed.

The Crown opposed the motion.

The court found that the total delay of 17 months, comprising 12 months of Crown and institutional delay, exceeded the acceptable threshold for a routine Part III provincial offence.

The court granted the motion and stayed the proceedings.

The applicant father sought joint custody and access, while the respondent mother sought sole custody and child support.

During the trial, the mother relocated to Alberta with the child to secure better employment and family support.

The court awarded sole custody to the mother, finding the parties were unable to communicate effectively and the mother had been the primary caregiver since birth.

The court permitted the mother's relocation to Alberta, finding it was in the child's best interests, and ordered a phased-in access schedule for the father.

The father was also ordered to pay his proportionate share of section 7 child care expenses.

A custody and relocation dispute involving a three-year-old child.

The applicant mother sought permission to relocate to Alberta with the child to join her current partner, while the respondent father sought sole custody or, alternatively, a restraint on relocation.

The court awarded sole custody to the mother and permitted relocation to Alberta, finding that the mother had been the primary caregiver since birth, maintained a strong bond with the child, and had legitimate reasons for the move.

The father's involvement had been limited and sporadic, and his conduct was characterized by immaturity and lack of child focus.

Child support arrears were addressed and ongoing support was set at the guideline amount.

The accused was charged with failing to comply with a demand to provide breath samples into an approved screening device.

The court considered two issues: whether the demand was made "forthwith" as required by the Criminal Code, and whether the officer had reasonable suspicion that the accused had alcohol in his body.

The court found that while the officer detected an odour of alcohol on the accused's breath and the accused admitted to consuming one beer hours earlier, the officer's subjective state of mind did not meet the reasonable suspicion standard.

The officer appeared to be seeking to determine whether the accused had any alcohol in his system to contravene the conditions of his G2 driver's licence, rather than acting on a pre-existing reasonable suspicion.

The accused was acquitted.