ONCJ 2017

The applicant brought a motion to strike the respondent's pleadings for failure to comply with multiple court orders for financial disclosure and to obtain costs on a full recovery basis.

The respondent opposed the motion, arguing he had provided adequate disclosure and was reluctant to provide further disclosure due to alleged identity theft and misuse of confidential information by the applicant.

The court declined to strike the pleadings, finding that while the disclosure was inadequate, the respondent had provided some disclosure, explained his reasons for non-compliance, and the child support order was in good standing.

The court gave the respondent one further opportunity to produce required disclosure with strict limits on its use and distribution.

The defendant was charged with care and control of a motor vehicle with a blood alcohol level exceeding the legal limit.

The Crown alleged the defendant was driving with a blood alcohol level of 131 and 124 (legal limit 80).

The defendant challenged the admissibility of the breath test evidence on Charter grounds, arguing that police violated her right to counsel under section 10(b) by failing to advise her of this right during a five-minute delay between the approved screening device demand and the roadside breath sample.

The court rejected the Charter challenge, finding the demand was made "forthwith" as required by section 254(2) of the Criminal Code, and that the brief delay was justified to ensure an accurate test result.

The court also rejected other defence arguments regarding identity, the intoxilyzer procedure, and the approval status of the screening device.

The defendant was found guilty.

The defendant was charged with trespassing contrary to section 2(1)(a)(i) of the Trespass to Property Act after being served with a notice of trespass and subsequently travelling on a road that crossed the Bergen property to access his landlocked parcel.

The Crown proved the essential elements of the offence beyond a reasonable doubt.

However, the court found that the defendant had a limited statutory right to use the road as an access road under the Road Access Act, which confers on users of access roads a temporary right to travel to and from their properties without being considered trespassers until a court order closing the road is obtained.

The defendant was acquitted.

The accused was initially found unfit to stand trial on murder charges on January 4, 2017, and a sixty-day "make fit" order was issued.

At the March 10, 2017 hearing, the Crown conceded that it had not met its burden of proving fitness on the balance of probabilities.

The court found the accused remained unfit to stand trial, primarily due to cognitive impairments caused by major depressive episode and schizophrenia that prevented him from meaningfully participating in trial and instructing counsel.

The accused was charged with sexual assault, sexual interference, and invitation to sexual touching of a 13-year-old complainant during the summer of 2011 when the accused was 18 years old.

The accused argued the sexual activity was consensual, that he believed the complainant to be 16 years of age, and that he took all reasonable steps to determine her age.

The court acquitted the accused of all charges, finding that the complainant's evidence regarding coercion was unreliable and that the accused, who suffered from significant intellectual disabilities including FASD and ARND, had taken reasonable steps to ascertain the complainant's age given his personal circumstances and cognitive limitations.

Motion to change parenting arrangements for a seven-year-old child.

The mother sought to reduce the father's parenting time and maintain sole custody with a modified schedule.

The father sought sole custody with the mother having alternate weekend access.

The court found a material change in circumstances since the original 2012 order, including escalated parental conflict, involvement of child protection services, and police intervention.

The court awarded sole custody to the mother with an expanded parenting schedule for the father, rejecting his request for sole custody due to concerns about his judgment, controlling behaviour, and poor insight into the child's emotional needs.

The applicant mother sought temporary child support for the child Dylan Lewis Kar-Ho in the amount of $758 per month based on an imputed income of $84,466 CAD (converted from $65,000 USD), retroactive to January 1, 2016.

The respondent father, a self-employed individual residing in New York, claimed an income of only $18,000 USD and offered to pay $300 per month.

The court found that the father had failed to provide adequate financial disclosure despite multiple court orders and opportunities to do so.

The court drew an adverse inference and imputed income to the father based on the significant discrepancies between his declared income, his stated expenses, and his bank deposits.

The court granted the applicant's motion and ordered the respondent to pay $758 per month in child support based on the imputed income of $84,466 CAD.

The paternal grandmother brought a motion to set aside or change an order placing an 11-year-old child in the care of her parents, K.S. and A.H., who had a long-standing addiction to crystal methamphetamine and other drugs.

The motion was brought on an urgent basis after the grandmother learned that the mother had tested positive for crystal methamphetamine on October 11, 2016, but this information was not disclosed to the grandmother until November 28, 2016.

The court applied the test under subsection 64(8) of the Child and Family Services Act, which requires that a child remain in the care of the person having charge unless the court is satisfied that the child's best interests require a change.

The court found that the parents failed to meet their onus to demonstrate that a change in custody was necessary.

The court granted the motion and ordered that the child remain in the temporary care and custody of the paternal grandmother, with weekend access to the parents subject to conditions including random drug testing and restrictions on discussing court proceedings with the child.

The defendant was convicted in absentia of three counts under the Ontario Society for the Prevention of Cruelty to Animals Act: failing to comply with prescribed standards of care by not providing adequate food and water to animals, and permitting an animal to be in distress.

The defendant owned two snakes, one of which was found dead and infested with maggots, while the other was alive but lethargic, without food or water.

The defendant admitted to owning the snakes and stated they had stopped feeding and he did not seek veterinary care.

The court imposed fines, a prohibition order on owning snakes, and a restitution order.

A costs decision following urgent motions regarding custody and access to a 12-year-old child.

The mother sought an order for the child's immediate return to her care after the father unilaterally withheld the child during summer vacation.

The father brought a cross-motion seeking custody and primary residence.

The court granted the mother's motion, ordering the child's return to her care and awarding her sole custody with restricted access to the father.

The costs decision addresses whether the mother should recover her legal costs or whether the father's conduct warrants a costs award in his favour.

This is an evidentiary ruling in a custody and mobility trial.

The court determined the admissibility of out-of-court statements made to an Office of the Children's Lawyer (OCL) clinician by persons who did not testify at trial.

The court held that such statements are presumptively admissible as original evidence unless formally challenged by a party serving and filing a statement of dispute.

The court distinguished between OCL clinician reports under section 112 of the Courts of Justice Act and expert assessor reports under section 30 of the Children's Law Reform Act, finding that the legislative framework supports different treatment of hearsay in each context.

A motion to change brought by the father seeking retroactive variation of child support obligations and rescission of arrears totalling over $205,000.

The mother had filed a Writ of Seizure and Sale to enforce arrears under a separation agreement dated February 19, 2008.

The father claimed he had a verbal agreement with the mother to pay what he could afford following his job loss in 2009, and sought retroactive adjustment of support to accord with the Child Support Guidelines.

The court found a change in circumstances but granted only partial relief, reducing child support arrears while rescinding all interest as a penalty clause.

The court also partially rescinded spousal support arrears and established a framework for future disclosure and section 7 expense sharing.

The respondent sought costs of $2,455.04 for preparing for and attending a Legal Aid Ontario-facilitated settlement meeting that did not proceed because the applicant failed to attend.

The court denied the costs award, finding that the voluntary settlement meeting was not a step in the case authorized under the Family Law Rules and therefore fell outside the court's jurisdiction to award costs.

The court distinguished the case from mandatory mediation scenarios and held that policy considerations alone cannot support a costs award for a process beyond the court's authority.

The applicant mother sought a determination that the child was habitually resident in Ontario and that an Ontario court should exercise jurisdiction over custody and access matters.

The respondent father opposed the application.

The child was born in Ontario but spent approximately 17 months of his 24-month life in Ecuador with both parents before the family came to Canada in October 2016.

Following a separation and altercation in Canada, the respondent retained the child's passport, preventing the applicant from returning to Ecuador.

The court found that the child's habitual residence was Ecuador, that substantial evidence regarding the child's best interests was available in Ecuador, and that on the balance of convenience, Ecuador was the appropriate forum.

The court declined jurisdiction and ordered the respondent to release the child's passport and documents to the applicant, along with travel costs to Ecuador.

The respondent brought a motion to file an amended answer over three-and-a-half years after filing the original answer, seeking to change final orders that had been in place for nearly three years.

The respondent sought joint custody with shared residency, substantially increased access, termination of child support obligations, and dismissal of the applicant's spousal support claim.

The court dismissed the motion, finding that an amended answer should not be accepted in proceedings to amend final orders, and that accepting it would disadvantage the applicant and restart the entire litigation.

The court held that the proper forum for such requests is a motion to change, not an amended answer under the Family Law Rules.

In this highly contested family law motion, the court addressed competing disclosure and procedural requests from both parents in a custody and access dispute involving allegations of sexual abuse.

The respondent sought production of communications with experts and the applicant's mental health records, while the applicant sought questioning of the respondent and an expert, as well as Crown disclosure.

The court granted partial relief to both parties, balancing the need for fair trial preparation against privacy interests and litigation efficiency.

The court approved mutual questioning of the parties but denied questioning of the jointly retained expert, granted production of the applicant's mental health records to the respondent's counsel (with restrictions), denied production of privileged communications with experts, and ordered a structured timeline for Crown disclosure.

The respondent mother brought an urgent motion seeking the return of a child to the United Arab Emirates on the basis that the applicant father had wrongfully abducted the child from the U.A.E. and that the Ontario court lacked jurisdiction.

The father had taken the child to Canada on August 16, 2016, following a family dispute.

The mother obtained a custody order in the U.A.E. on January 9, 2017, providing her with custody and ordering the child's return.

The court found that the child was habitually resident in the U.A.E. at the time of removal, that Ontario lacked jurisdiction, and that no exception applied.

The court recognized the U.A.E. order and directed the immediate return of the child to the mother.

The accused was charged with refusing to comply with a lawful breath demand contrary to the Criminal Code.

Following a citizen complaint of impaired driving, police located the accused in the driver's seat of a vehicle with the engine running.

After failing an Approved Screening Device test, the accused was arrested and taken to the station where he was demanded to provide breath samples on an Approved Instrument.

The accused refused to comply.

The trial addressed multiple Charter issues including care or control, reasonable grounds for the demand, timing of the demand, the validity of the refusal, potential reasonable excuse based on mistrust of police, and alleged breaches of sections 10(a), 10(b), 8, and 9 of the Charter.

The court found the Crown proved all elements of the offence beyond a reasonable doubt and rejected all Charter defences.

A 17-year-old university student sought child support from her father after withdrawing from his parental control.

The father moved for summary judgment to dismiss the application, arguing that the daughter's withdrawal from parental control under the Family Law Act disentitled her to support.

The court found that although the daughter had withdrawn from parental control, her withdrawal was involuntary due to the father's controlling nature, his failure to consider her best interests, his lack of attempts to repair the relationship, and the fact that she did not withdraw from both parents.

The court dismissed the father's motion and found the daughter entitled to child support.

The court also determined temporary child support of $6,500 per month, retroactive to August 1, 2016, and ordered the father to pay all college expenses as section 7 special and extraordinary expenses.

The quantum of final support was left for trial.

The accused was charged with impaired driving and over 80 following a traffic stop at approximately 5:05 a.m. on April 12, 2015.

Police received a radio call about a possible impaired driver who appeared to be asleep at the wheel.

Upon stopping the vehicle, the officer observed signs of impairment and arrested the accused.

A Charter application was brought challenging the lawfulness of the arrest and the seizure of breath samples.

The trial judge found reasonable and probable grounds for the arrest existed based on the totality of circumstances.

However, the trial judge found a violation of section 8 of the Charter because the officer gave an approved screening device demand rather than the required approved instrument demand.

Despite this violation, the evidence was admitted under section 24(2) of the Charter.

The accused was found guilty of impaired driving, and the over 80 charge was stayed pursuant to the Kienapple principle.