Robert G. S. Del Frate

The applicant father brought a motion to change a final order for joint custody, seeking equal parenting time on a week-about basis and an order preventing the respondent mother from making final decisions regarding the children's activities.

The father argued that the mother's unilateral move and scheduling of activities reduced his parenting time and increased his expenses.

The court dismissed the motion, finding that the inconvenience caused by the move did not constitute a material change in circumstances and that altering the status quo was not in the children's best interests.

The father was ordered to pay costs of $5,000 plus HST.

The defendant brought a motion for summary judgment to dismiss the plaintiff's tort action arising from a motor vehicle collision.

The defendant argued that the plaintiff was an excluded driver under an OPCF 28A endorsement, and therefore, pursuant to s. 267.6 of the Insurance Act, was precluded from recovering damages.

The plaintiff claimed an honest but mistaken belief that the exclusion applied only to a specific vehicle and not the newly acquired vehicle involved in the accident.

The court found the excluded driver endorsement to be clear and unambiguous, applying to "ALL VEHICLES INSURED UNDER THIS WAWANESA CERTIFICATE," and deemed the plaintiff's explanations implausible.

Concluding there was no genuine issue requiring a trial, the court granted summary judgment, dismissing the plaintiff's action.

The appellant, Robert Swihart, appealed his conviction for operating a motor vehicle with a blood alcohol concentration in excess of 80 mg, contrary to s. 253(b) of the Criminal Code.

The appeal challenged the trial judge's reliance on a forensic toxicologist's expert opinion, arguing that the Crown failed to establish the absence of bolus drinking (large quantities of alcohol consumed shortly before driving) or post-offence drinking (alcohol consumed after driving but before breath tests).

The appellant contended that evidence of an empty beer bottle near his vehicle and his observation drinking from a Listerine bottle constituted "evidence to the contrary," precluding a common-sense inference.

The court found the trial judge's inferences were reasonable and supported by the evidence, noting that one beer bottle would not necessarily amount to bolus drinking, and there was no evidence the mouthwash contained alcohol.

Furthermore, the appellant's admission of no alcohol consumption an hour prior to the officer's arrival was direct evidence the trial judge could rely upon.

The appeal was dismissed.

The respondent husband brought a motion for summary judgment seeking to dismiss the applicant wife's application for spousal support, equalization of net family property, and to set aside a separation agreement.

The respondent argued that the wife's claims were barred by res judicata and abuse of process, as a divorce judgment had already been granted.

The applicant contended that the issues of support and equalization were never adjudicated in the divorce application.

The court dismissed the respondent's motion for summary judgment, finding that res judicata did not apply because the specific issues of support and pension entitlement were not previously adjudicated, and the Family Law Act permits such claims within two years of divorce.

The defendants brought a motion for summary judgment, arguing the plaintiff's claim for negligent financial advice and misrepresentation was statute-barred under the Limitations Act, 2002.

They contended the plaintiff discovered her claim by August 2009 when she had concerns about her Individual Pension Plan (IPP) and sought legal advice.

The plaintiff argued the limitation period did not begin until September 28, 2011, when the Canada Revenue Agency (CRA) officially deregistered her IPP, as she could not have known of her loss or that a legal proceeding was appropriate before this final determination, especially given the defendants' prior reassurances.

The court dismissed the defendants' motion, finding the claim was timely.

The respondent brought a motion for an order naming her the owner of a jointly owned embryo, seeking its implantation after an acrimonious divorce.

The applicant opposed, preferring donation.

The court held that the dispute was governed by valid contracts.

The Ontario contract stipulated that the patient's (respondent's) wishes were to be respected in the event of separation.

While a Georgia contract indicated court determination in divorce, the court prioritized the Ontario contract's specific provision.

The motion was granted, allowing the respondent to use the embryo, and the applicant was awarded reimbursement for his financial interest in half of the embryo.

Intact Insurance Company moved to consolidate an accident benefits action with a tort action arising from the same motor vehicle accident.

The plaintiff opposed, arguing complexity and potential jury confusion due to different causation tests and legal theories (e.g., crumbling skull) between tort and accident benefits claims.

The court, applying Rule 6.01 of the Rules of Civil Procedure and factors from *10148664 Ontario Limited*, found that the gateway criteria for consolidation were met.

Despite the complexities, the court concluded that consolidation was appropriate, noting that such claims are routinely consolidated.

The court ordered consolidation but directed a case conference to address procedural issues and frame jury questions, particularly on causation, to avoid a mistrial.

The applicant sought a dismissal of sexual assault charges under s. 11(b) of the Canadian Charter of Rights and Freedoms due to alleged unreasonable delay.

The court calculated the total delay from the laying of the information to the projected trial completion, deducting periods attributable to the defense, including delays in retaining counsel, medical issues of counsel, and counsel's unavailability for trial dates.

The court found the net delay to be 29.75 months, which is below the 30-month presumptive ceiling for Superior Court cases.

The applicant failed to demonstrate that the delay was unreasonable, and the application for dismissal was denied.

The appellant appealed his conviction for mischief under $5000, following a marital dispute where he was acquitted of assault charges.

The trial judge had found the appellant guilty of mischief, sentencing him to a conditional discharge.

The appeal court found that the trial judge erred in applying the principles from R. v. W.(D.) by failing to adequately explain why the complainant's evidence was preferred over the appellant's denial regarding the mischief charge, especially after stating that neither party was lying.

The conviction was quashed, and an acquittal was entered.

The accused, Raymond Roy, was found guilty on count one.

The court imposed a sentence of three years' jail, with 740 days credited for pre-trial custody, leaving an additional 355 days to serve.

A three-year probation period was ordered, including statutory conditions, complete abstention from alcohol and drugs for the first year, and a condition not to be in the company of his father if either is consuming alcohol for the remaining two years.

A lifetime weapons prohibition under section 110 of the Criminal Code, with an exception for hunting for sustenance under section 113, was imposed.

Roy was also ordered to provide a DNA sample and report to a probation officer within seven days of release, taking recommended counselling.

The applicant sought a stay of proceedings for criminal negligence causing death, alleging breaches of Charter sections 7, 11(d), and 11(b) due to pre-charge and post-charge delay.

The court found significant pre-charge delay (26 months and 23 days) and prejudice to the applicant, including the death of a material witness and the unfairness of sequential charges (provincial offence then criminal) arising from the same incident.

The court granted a stay of proceedings based on sections 7 and 11(d) of the Charter, finding an abuse of process.

The court also considered the s. 11(b) argument but would have dismissed it due to a re-calculation of defence delay, which would have brought the net delay below the presumptive ceiling.

The applicants, Brandon Dean Brooks and Bryan Frederick Styles, sought a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay in bringing their drug-related charges to trial.

The total delay from charge to anticipated trial completion was approximately 36 months.

The court applied the framework from R. v. Jordan, deducting periods attributable to a discrete event (judge's illness) and defence delay (one applicant's failure to appear).

After deductions, the net delay was 28 months, which did not exceed the 30-month presumptive ceiling for Superior Court matters.

The court also found no proven prejudice under the R. v. Morin principles.

Consequently, the application for a stay of proceedings was dismissed for both applicants.

The accused, H.B., aged 80, pleaded guilty to three counts of sexual offences against his daughter, D.B., committed between 1964 and 1980, starting when she was four years old.

The offences included indecent assault, gross indecency, and incest (sexual intercourse).

The defence sought a conditional sentence or a short period of incarceration due to the dated nature of the offences, the accused's age, severe medical conditions (including early onset dementia and PTSD from childhood sexual abuse), lack of prior record, and role as caregiver for his wife with Alzheimer's.

The Crown sought a five-year term of incarceration, emphasizing denunciation and deterrence for child sexual abuse, the breach of trust, the young age of the victim, the lengthy period of abuse, and the accused's lack of insight and remorse.

The court rejected a conditional sentence, finding the accused's actions egregious and that denunciation and deterrence required a custodial sentence.

The court sentenced H.B. to five years imprisonment for incest, with two years concurrent for indecent assault and gross indecency, along with a DNA order, SOIRA registration for life, and a 10-year weapons prohibition.

The applicant, convicted of sexual interference involving his 14-year-old stepdaughter, challenged the 45-day mandatory minimum sentence under s. 12 of the Canadian Charter of Rights and Freedoms, arguing it was grossly disproportionate.

The court considered the gravity of the offence, mitigating factors including the applicant's Indigenous status and community recommendations for restorative justice, and aggravating factors such as the breach of trust.

The court found the appropriate sentence for the applicant was 90 days intermittent imprisonment.

The constitutional challenge to the 45-day mandatory minimum was dismissed, as the court found it was not grossly disproportionate, even when considering reasonable hypotheticals.

The applicant brought a motion to enforce a settlement agreement reached by counsel regarding the division of matrimonial property and other issues.

The respondent opposed the motion, arguing that the minutes of settlement did not accurately reflect her understanding of the agreement and that she was not ad idem on the essential terms.

The court found that experienced counsel had negotiated a comprehensive resolution, confirmed verbally and in writing, and that the respondent's counsel had ostensible authority to bind her.

The motion was granted, and judgment was ordered to issue pursuant to the minutes of settlement.

The accused, H.B., brought an application to withdraw his guilty pleas to charges of indecent assault, gross indecency, and sexual intercourse with his daughter, which stemmed from incidents between 1964 and 1980.

H.B. contended that his pleas were not voluntary, informed, or unequivocal due to his health issues, stressors, and financial situation, and that he did not understand the proceedings.

The court considered the evidence of H.B., his physician (Dr. Jacques), and his former counsel (Mr. Beckett).

The court found that H.B.'s plea was voluntary, informed, and unequivocal, noting his active involvement in plea negotiations and his understanding of potential penalties, despite his claims of memory loss and confusion.

The application to withdraw the pleas was dismissed.

The applicant sought child support, beneficial ownership of a vendor take-back mortgage and an RRSP, and the release of trust funds to indemnify purchasers of the matrimonial home.

The respondent, who was self-represented and did not attend the trial, had his claims dismissed.

The court imputed an income of $100,000 to the respondent for child support purposes, declared the applicant the beneficial owner of the mortgage and RRSP, and ordered the release of trust funds.

Costs were awarded to the applicant on a substantial indemnity basis due to the respondent's dishonest conduct and unreasonable litigation approach.

The respondent brought a motion for interim spousal support following a separation.

The court found that the financial information provided by both parties was outdated and insufficient to make a determination.

The motion was not decided, and the parties were ordered to provide updated financial statements, year-to-date earnings, and particulars regarding a live-in boyfriend's income and contributions for a further hearing.

The plaintiffs, judgment creditors of Transport Development Inc. (TDI), brought a motion seeking an order compelling Vale Canada Limited (garnishee) and two interested numbered companies to answer questions and produce documents related to the assignment of a contract originally between Vale and TDI.

The plaintiffs sought this information to quantify amounts for a garnishment hearing, alleging the assignment might have been to avoid garnishment.

The interested parties opposed, arguing garnishment rules apply only to "debts" not "contracts," and citing delay, cost, and privacy concerns.

The court found that Rule 60.08(16)(d) provided broad jurisdiction to determine "any other matter in relation to a notice of garnishment," encompassing assigned debts and contracts.

The court emphasized the duty of honest performance in contracts and the relevance of the subsequent assignment to determine rights and liabilities.

The motion for disclosure was granted, subject to a sealing order, with costs reserved.

Following guilty pleas to criminal negligence causing death and trafficking in drugs, the court conducted a Gardiner hearing to determine aggravating and mitigating factors for sentencing.

The evidence established that the accused possessed and crushed opioid capsules at a gathering, leaving the drugs accessible for others to ingest.

A guest consumed the drugs and later died from an overdose.

The court found that the accused knowingly made the drugs available and failed to prevent their consumption despite knowledge of the deceased’s substance abuse history.

These circumstances were proven beyond a reasonable doubt as aggravating factors to be considered at sentencing.