ONCJ 2019

A young person charged with sexual assault with a weapon and four counts of assault with a weapon applied to vary the terms of an undertaking entered into upon release from the police station.

The applicant sought to remove restrictions on contact with witnesses who were in the same grade, arguing such conditions prevented attendance at graduation, continuation of friendships, and participation in sports.

The Crown sought clarification of victim names, expansion of school property restrictions, and addition of a weapons prohibition.

The court granted the application in part, replacing the police undertaking with a court undertaking under section 515 of the Criminal Code that narrowed the no-contact provision to the two alleged victims only, permitted attendance at graduation with a parent, and added a weapons prohibition.

A motion for recusal brought by respondent M.A.R. during a child protection trial.

M.A.R. alleged that the judge's examination of a Children's Aid Society worker regarding her training during a voir dire on the admissibility of children's statements, and the incorporation of two answers into the ruling, created a reasonable apprehension of bias.

The motion was dismissed.

The court found that the judge's questions were appropriate, routine, and consistent with the expanded role judges have in child protection proceedings where the best interests of children are at stake.

Two motions were heard by the respondents D.L. and T.S. in a child protection proceeding.

The first motion sought to vary the interim access order by increasing access to the children and permitting community visits.

The second motion sought an order prohibiting access by S.M.L.B. (the biological mother of one child) to J.L. The court found a material change in circumstances and granted a modest increase in access to D.L. and T.S., conditional on their participation in parenting programming.

The court rejected the motion to prohibit access by S.M.L.B., finding that supervised access was in the child's best interests and should continue.

This is a costs decision following a seven-day family law trial concerning access to children and child support.

The respondent sought costs of $26,266.74 following trial.

The court found divided success on the main issues: the respondent succeeded on section 7 expenses and her primary position on access subject to children's wishes, while the applicant succeeded on child support arrears and his primary claim for counselling to rebuild the parent-child relationship.

The court declined to award costs, finding that both parties behaved equally unreasonably on the central issue of access and that neither party had properly constituted settlement offers under the Family Law Rules.

A costs decision following a trial on the merits regarding a prohibition on changing children's surnames.

The respondent sought to change the children's surnames from "Schaafsma" to "Schaafsma Eaton" following a prior custody order.

The applicant brought an application seeking to prohibit the name change or, alternatively, to require a hyphenated surname.

The application was dismissed, permitting the respondent to proceed with the name change applications to the Registrar General.

The court awarded costs to the successful respondent in the amount of $11,085 inclusive.

The applicant sought an order prohibiting the respondent, the sole custodial parent, from changing the surnames of two children from Schaafsma to Schaafsma Eaton.

The respondent sought to add her surname to the children's existing surname.

The court applied the best interests of the child test and considered factors including the respondent's motivation, the children's existing use of the hyphenated name, the relationship between the children and the non-custodial parent, and the applicant's failure to meet financial support obligations.

The court found that the respondent had no improper motive, that the children already identified as Schaafsma Eaton at school, and that the name change would not harm the children or their relationship with their father.

The application was dismissed, permitting the name change to proceed, with a prohibition on any further name changes.

This is a costs decision following a two-day trial in a motion to change child support.

The applicant sought to terminate child support for one child and suspend it for another, claiming a change in circumstances due to health issues preventing continued employment.

The respondent opposed the motion and sought recovery of section 7 expenses.

The court found a change in circumstances for 2016 but imputed income on the applicant from 2017 onward based on intentional underemployment.

The respondent was substantially more successful at trial.

The court awarded costs of $8,500 (inclusive) to the respondent, accounting for divided success on less dominant issues and the applicant's unreasonable conduct regarding disclosure and failure to provide an offer to settle.

Motion to change child support brought by the payor seeking to vary his child support obligation and adjust arrears.

The payor claimed a significant change in circumstances due to mental health issues arising from his employment at a correctional facility, which led to his involuntary hospitalization and subsequent departure from that employment.

The court found a change in circumstances for 2016 but determined the payor was intentionally underemployed from 2017 onward.

Income was imputed at $60,000 based on the payor's previous employment with the Canada Border Services Agency, which remained available to him.

Child support was varied accordingly, with reduced amounts during periods when children attended school away from home.

Section 7 expenses for post-secondary education were partially awarded, with a proportional split of 67% to the payor and 33% to the recipient.

The defendant pleaded guilty to owning and driving a motor vehicle without automobile insurance contrary to the Compulsory Automobile Insurance Act.

The Crown sought the minimum fine of $5,000, while the defence argued for $500 based on Gladue principles and financial hardship.

The court found that Gladue principles apply to sentencing under s. 59(2) of the Provincial Offences Act, and that the defendant's circumstances as a grandchild of residential school survivors, single mother of two children, and participant in the Indigenous Mother's Gateway Program constituted exceptional circumstances warranting relief from the minimum fine.

The court imposed a fine of $1,500 payable over 15 months and placed the defendant on probation for 15 months.

The accused was convicted of sexual interference and invitation to sexual touching of a 14-year-old complainant over a three-month period in 2016.

The offences involved multiple instances of sexual touching, both over and under clothing, occurring in the accused's motor vehicle.

A count of sexual assault was conditionally stayed under the Kienapple principle.

At sentencing, the Crown sought 18 months custody (12 months for sexual interference, 6 months for invitation to sexual touching, consecutive), while the defence sought 90 days concurrent, served intermittently.

The court imposed a 9-month concurrent custodial sentence, emphasizing the need for denunciation and deterrence given the youth of the victim, breach of trust, multiple occurrences, and significant impact on the complainant.

A motion to change a final custody and access order resulted in settlement on November 10, 2018, with the only remaining issue being costs.

The respondent father sought costs of $34,349.89 on a full recovery basis or $26,116.57 on a partial recovery basis.

The applicant mother sought no costs or nil costs.

The court declined to award costs to either party, finding that the settlement was not a clear capitulation by either party, both parties behaved unreasonably in not serving offers to settle, and the mother's financial circumstances and impact on the child's welfare were relevant considerations.

The Children's Aid Society brought a motion for summary judgment seeking a finding that three children were in need of protection and an order placing them in extended society care.

The parents opposed the motion, arguing there were genuine issues for trial.

The court found no genuine issue for trial regarding the protection finding, as the evidence of the parents' substance abuse, inadequate supervision, and the children's needs clearly established they were in need of protection.

However, the court found a genuine issue for trial regarding disposition, as the mother had obtained housing, completed rehabilitation, and proposed a plan of care that could not be summarily dismissed.

The matter was remitted for trial on disposition.

This is a costs decision arising from the court's judgment of March 25, 2019, in a family law matter involving a motion to amend pleadings and a motion for summary judgment.

The respondent sought full indemnity costs, arguing he was the successful party and had made reasonable settlement offers.

The applicant argued there should be no costs order due to divided success.

The court found divided success existed because although the respondent was somewhat more successful overall, the applicant succeeded on her motion to amend her response to the motion to change.

The court awarded costs of $2,500 payable by the applicant to the respondent, declining to enforce the award through the Family Responsibility Office.

The applicant brought a motion to amend her Response to Motion to Change to include a claim for retroactive contribution to the children's section 7 extraordinary expenses.

The respondent brought a cross-motion for summary judgment to dismiss the claim.

The court granted the applicant's motion to amend her pleadings, finding no non-compensable prejudice to the respondent.

However, the court also granted the respondent's motion for summary judgment, finding no genuine issue for trial as the applicant failed to demonstrate a material change in circumstances to justify setting aside the parties' previous comprehensive support order.

The applicant's claims were dismissed.

The defendant was charged with speeding at 135 kilometres per hour in a 100 kilometres per hour zone on the Queen Elizabeth Way in Hamilton on May 22, 2016.

The prosecution relied on lidar speed measurement evidence from a trained officer.

The defendant testified that he was traveling at approximately 90 kilometres per hour based on his constant observation of his speedometer, having limited his speed due to vehicle damage from a deer collision earlier that morning.

The court found that while the prosecution's evidence was prima facie reliable, the defendant's exculpatory evidence, when considered in the context of the totality of evidence and identified frailties in the prosecution case, raised a reasonable doubt as to guilt.

The defendant was acquitted.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding the legal limit contrary to section 253(1)(b) of the Criminal Code.

The accused brought a Charter application arguing that his rights under sections 10(a) and 10(b) were infringed and that evidence should be excluded under section 24(2).

The court found no breach of section 10(a) but found a three-minute delay in informing the accused of his right to counsel constituted a breach of section 10(b).

However, the court admitted the evidence under section 24(2) analysis, finding the breach was not serious enough to exclude the evidence.

The court also addressed the availability of the presumption of identity under transitional provisions and found it remained available for legacy cases.

The accused was found guilty.

The respondent father brought a motion to amend his pleadings and re-open a partially heard summary judgment motion to file further evidence.

He sought to add claims for joint custody, child support, and a restraining order.

The court found no evidentiary basis for joint custody or child support claims, noting the father was not the primary caregiver and the parties could not communicate.

The court permitted the father to amend his pleadings solely to advance a claim for access, as it was in the child's best interests to have a relationship with both parents.

The court also adjusted temporary child support to reflect the father's updated income.

The accused was charged with impaired operation of a motor vehicle and operation of a motor vehicle with blood alcohol over the legal limit.

The defence brought a Charter application arguing that the police violated section 8 rights by making a breath demand without reasonable and probable grounds as required by section 254(3) of the Criminal Code.

The court found no Charter violation, as the officer had reasonable and probable grounds to believe the accused was driving while impaired within the three-hour window.

However, on the trial proper, the Crown failed to prove beyond a reasonable doubt that the accused's ability to drive was impaired at the time of driving, despite proving the over 80 charge through breath sample evidence.

The defendant was charged with operating a motor vehicle with a blood alcohol level exceeding the legal limit.

Following the Crown's case, the defendant challenged the admissibility of breath test evidence on the grounds of an alleged violation of her right to counsel under section 10(b) of the Charter.

The defendant argued that police improperly steered her toward duty counsel rather than allowing her to consult with private counsel of her choice, and that police failed to confirm her satisfaction with duty counsel before conducting breath tests.

The court rejected the Charter challenge, finding that the defendant understood her rights, failed to assert a preference for private counsel, and bore responsibility for diligently exercising her right to counsel.

The defendant was found guilty.

The defendant was charged with three Highway Traffic Act offences: driving while license suspended, failing to provide an insurance card for inspection, and failing to have evidence of current validation of permit affixed to the vehicle plate.

The Crown proceeded on an ex parte basis without the defendant present.

The court dismissed all three charges, finding that the Crown failed to prove beyond a reasonable doubt: (1) the identity of the driver as the defendant; (2) the existence of a valid license suspension on the date in question; and (3) notice of suspension from the Registrar of Motor Vehicles.

The court emphasized the importance of proper identification procedures, the necessity of a Registrar's Notice of Suspension as a component element of the offence, and due process protections even in provincial offences proceedings.