ONCJ 2020

This is a costs decision arising from motions brought by the parties regarding custody and access to their four-year-old daughter during the COVID-19 pandemic.

The mother sought enforcement of an existing custody order and requested temporary changes to limit the father to virtual access.

The father sought temporary custody of the child.

The court granted the mother's motion to enforce the existing order and dismissed the father's motion to change custody.

The court made temporary modifications to the access order, granting the father substantial parenting time including weekend access and midweek overnight visits, along with daily virtual access for both parents.

The mother was determined to be the more successful party and was awarded costs.

This is a costs decision arising from motions regarding temporary custody and parenting time for a 10-month-old child.

The respondent (father) was successful on the temporary custody issue and was the more successful party on the parenting time issue.

The applicant (mother) sought equal parenting time or alternatively three out of every four weekends, while the respondent proposed parenting time similar to what the court ultimately ordered.

The court awarded costs to the respondent but suspended payment for 2020 and ordered monthly payments of $75 starting January 1, 2021, taking into account the applicant's limited financial circumstances as a 20-year-old unemployed individual receiving only modest support from the Children's Aid Society.

The defendant pleaded guilty to eleven criminal offences including uttering counterfeit currency on two separate occasions, fraud under $5,000, multiple breaches of court orders, break and enter into a dwelling house, and assault on an intimate partner.

The court imposed a global sentence of 15 months custody followed by 24 months probation, with ancillary orders including a lifetime weapons prohibition and DNA orders.

The sentencing considered the seriousness of the offences, the defendant's extensive criminal record, the context of intimate partner violence, and the impact of the COVID-19 pandemic on incarceration conditions.

The defendant was charged with sexual assault alleged to have occurred in February 2018.

After evidence was heard over five days in February 2020, the defendant requested that closing submissions be heard by audioconference rather than in person, citing the COVID-19 pandemic and the geographic dispersal of parties and counsel.

The Crown opposed but remained circumspect.

The court considered jurisdiction, the open court principle, and practical considerations under Part XXII.01 of the Criminal Code, ultimately granting the request to proceed by audioconference supplemented by written submissions, subject to specific guidelines regarding observers, conduct, and notification procedures.

The accused pleaded guilty to multiple drug trafficking and weapons offences involving methamphetamine and firearms.

The Crown sought 18 months to two years less a day, while the defence sought a time-served disposition citing COVID-19 pandemic concerns in correctional facilities.

The court imposed five months additional custody following 207 days of presentence custody credit, followed by 18 months probation.

The judge considered the pandemic as a sentencing factor but concluded it did not warrant a substantial reduction from the range discussed at the judicial pretrial.

The father brought a motion to change seeking to reduce his child support obligation from $297 per month based on an imputed income of $19,200 to an amount based on $16,640, citing reduced employment hours and the impact of his criminal record on employability.

The mother cross-moved for an increase in support based on increased minimum wage and sought a declaration that the father owed $20,000 in arrears.

The court found no material change in circumstances regarding the father's capacity to earn, as his criminal record was the same in 2020 as in 2008 when the original order was made.

However, the court exercised discretion to impute income at minimum wage on a phased basis, allowing the father 12 months to increase to 30 hours per week and a further 6 months to reach full-time employment.

The court dismissed the father's motion to change, dismissed the mother's claim for fixed arrears, and varied the support order with a transitional schedule.

The accused received a suspended sentence with probation for 12 months.

Due to COVID-19 pandemic restrictions requiring social distancing, the judge dispensed with the requirement that the accused sign a paper copy of the probation order in person at the courthouse.

Instead, the order was provided electronically via email.

The judge provided reasons explaining that the signature requirement, while a best practice, was unnecessary given that the accused had orally confirmed understanding of the terms during the audio conference hearing and that the transcript would serve as evidence of the accused's awareness of the conditions.

The Children's Aid Society of Toronto brought a motion to vary a temporary care and custody order placing a three-year-old child with the maternal grandfather.

The motion was prompted by serious allegations of sexual abuse against the grandfather and domestic violence.

The maternal grandmother sought placement of the child in her care.

The court found a material change in circumstances and determined that placement with the society was in the child's best interests, citing the grandmother's lack of protective capacity, her historical pattern of abandonment, and her failure to disclose known abuse allegations to the society.

The applicant was charged with 20 counts including dangerous driving, drug-impaired driving, using a firearm while committing an indictable offence, and assault with a weapon.

The charges comprised two separate informations: the first laid in July 2017 relating to an incident on July 15, 2017, and the second laid in April 2018 relating to historic offences from 2016.

The charges were consolidated into a single information and tried together.

The applicant applied for a stay of proceedings on the grounds that his right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms had been violated.

The court found that the net delay on the first set of charges exceeded the presumptive 18-month Jordan ceiling and granted a stay on those counts.

However, the court treated the second set of charges separately and found the delay was within the presumptive ceiling, dismissing the stay application for those counts.

The defendant was convicted after trial of possession for the purpose of trafficking in fentanyl and cocaine, possession of proceeds of crime, and failure to comply with a probation order.

The defendant was arrested with significant quantities of fentanyl and cocaine in his backpack, along with a digital scale, cell phone, and cash.

While in custody, he was found with additional fentanyl and charged accordingly.

The Crown sought a sentence of 6 years; the defence sought 3.5 years.

The court imposed a total sentence of 2 years in custody (in addition to 18 months pre-sentence custody) followed by 2 years probation, taking into account the impact of the COVID-19 pandemic on the defendant's health circumstances.

The defendant was convicted of stunt driving under the Highway Traffic Act.

The Crown sought imprisonment of 30 days and a 30-day licence suspension, or alternatively a fine of $8,000-$10,000 with a 6-month suspension.

The defence sought the minimum fine of $2,000.

The court imposed a fine of $2,500 with 240 days to pay and no licence suspension, considering the defendant's personal circumstances, the absence of actual harm, the novelty of the conviction, and the essential role of truck drivers during the COVID-19 pandemic.

The respondent father brought an urgent motion seeking resumption of parenting time, police enforcement of a court order, and a finding that the mother had moved the child's residence in contravention of a court order.

The mother sought authorization to relocate the child from Etobicoke to her parents' home in Newmarket prior to trial.

The court found that while the mother initially took the child to her parents' home for March Break during the COVID-19 pandemic, she failed to return as required by a prior court order.

The court determined that the relocation was not necessitated by the health crisis and ordered the mother to return the child to the Etobicoke residence pending trial.

The relocation issue was reserved for determination at trial.

The respondent father brought a motion seeking resumption of parenting time with his three-year-old child and police enforcement of a court order during the COVID-19 pandemic.

The parties had reached a binding agreement on February 19, 2020, providing for alternate weekend access and mid-week overnight access.

Following the closure of the child's daycare and implementation of emergency health measures, the applicant mother unilaterally withheld access from March 11 to April 3, 2020.

The court found that the mother failed to satisfy her onus to prove COVID-19 related reasons for changing the access schedule and that unilateral modifications to binding agreements cannot be condoned.

The court ordered a modified access schedule that maintained the essential structure of the parties' agreement while accommodating the daycare closure and the mother's partner's availability for exchanges.

This is a costs decision following urgent COVID-19 motions concerning parenting arrangements for twin children.

The applicant sought to enforce an existing parenting order and obtain make-up access time, while the respondent sought to suspend the applicant's access due to pandemic concerns.

The court found in favour of the applicant on the substantive motion.

In this costs endorsement, the court awarded costs to the successful party, finding that the respondent acted unreasonably by unilaterally terminating access without proper justification, making unfounded allegations, and demonstrating a pattern of non-compliance with court orders.

The court fixed costs at $5,000 inclusive of HST, representing a middle ground between the claimed amounts, to sanction the respondent's conduct while maintaining proportionality.

Following a six-day trial, the defendant was found guilty of sexual assault and sentenced to a conditional sentence of imprisonment.

The defendant, a middle-aged crisis counselling caseworker, had sexually assaulted a vulnerable teenage girl under his care by touching her and making sexualized comments.

The court rejected the defendant's request for an absolute discharge and the Crown's request for 90 days incarceration plus probation.

Instead, the court imposed a 9-month conditional sentence order with strict house arrest conditions for the first six months, followed by 15 months of probation, along with mandatory DNA collection and sex offender registration for 10 years.

The court considered the impact of COVID-19 on institutional conditions in determining to impose a conditional sentence rather than institutional imprisonment.

The appellant appealed her guilty pleas to multiple Provincial Offences Act charges, including operating a motor vehicle without insurance and failing to comply with probation.

She argued that her guilty plea was not informed, that she acted under duress, and sought to have the entire proceeding quashed and sent back for trial.

The trial court had imposed a sentence of 7 days in jail and a $5,000 fine.

The appeal court examined the validity of the guilty plea under the five conditions set out in the Provincial Offences Act and found that the appellant failed to meet her onus of demonstrating that the plea was involuntary, uninformed, or equivocal.

The appeal was dismissed.

Motion review of an emergency restraining order granted without notice on April 2, 2020.

The applicant sought to restrain the respondent from direct or indirect contact with her and their infant daughter, and from approaching their residence or workplace.

The respondent contested the order, denying allegations of abuse and arguing he had voluntarily left the home.

The court found evidence of emotional and aggressive behaviour, including the respondent's admission to breaking down a locked door.

The court granted a modified restraining order prohibiting direct contact and requiring communication through counsel, while establishing supervised access to the child through a third party facilitator.

The court also established a temporary parenting schedule pending a case conference.

The respondent brought a motion to change the final custody and access order from 2014, seeking to establish a fixed 50/50 summer parenting schedule for the child.

The applicant opposed the motion.

The court dismissed the motion, finding that the respondent failed to establish a material change in circumstances required to vary the 2014 consent order.

The court determined that the parties had established a negotiation-based process for determining summer access that was consistent with the 2014 order and that this process, while sometimes difficult, had not negatively affected the child.

The court also found that the respondent was barred by action estoppel from relitigating the summer access issue, which had been addressed in prior proceedings through settlement negotiations.

The accused was charged with possession for the purpose of trafficking fentanyl, possession for the purpose of trafficking cocaine, and possession of the proceeds of crime.

Appearing by teleconference from pre-trial custody during the COVID-19 pandemic, the accused sought to enter a guilty plea without legal representation.

The court determined that the matter qualified as urgent under pandemic protocols due to the accused's deplorable detention conditions and Charter rights considerations.

However, the court held that while teleconference proceedings were not prohibited by the Criminal Code, video conferencing was preferable and required in this case to ensure a full and fair hearing for an unrepresented accused.

The court scheduled the guilty plea and sentencing hearing for video conference two days later.

The custodial father brought a motion to suspend the mother's face-to-face parenting time with their 12-year-old son during the COVID-19 pandemic, citing the child's alleged medical vulnerability and concerns about the mother's ability to follow health protocols.

The mother opposed the motion and sought restoration of her parenting time with make-up access.

The court found a material change in circumstances warranting assessment of the child's best interests but determined that the child's medical condition did not justify suspension of access.

While the mother had engaged in one instance of non-compliance with physical distancing protocols, the court found this insufficient to warrant radical alteration of the existing parenting arrangement.

The court restored the mother's parenting time with minor modifications to address COVID-19 health concerns and granted make-up time for missed access.