Roma S. Mungol

This decision concerns the conviction of Tiena Lewin, an Early Childhood Educator student, for assaulting a 17-month-old child by pulling the chair the child was sitting on with sufficient force to cause injury.

The court carefully analyzed the credibility and reliability of witnesses, particularly contrasting the testimony of a daycare assistant and the accused.

The judge applied the W.(D.) framework for assessing the accused’s testimony and found the Crown proved all elements of assault beyond a reasonable doubt, rejecting the accused’s version of events as not raising reasonable doubt.

The decision also addresses the application of the de minimis principle in criminal law, concluding the force used was neither trivial nor harmless.

This is a costs endorsement following a one-day trial where the father's motion to change child support was partially successful.

The mother, Dollen Kerr, sought full recovery costs of $14,435.75.

The court applied principles of reasonableness and proportionality, considering the parties' conduct, offers to settle, and the dominant issues at trial.

The mother was deemed the more successful party overall, particularly on the arrears issue, but her costs claim was high, and she failed to make a formal offer.

The father was found unreasonable for failing to pay child support for many years.

The court awarded the mother $5,000 in costs, inclusive of fees, disbursements, and HST, payable at $50 per month, with an acceleration clause for late payments.

The respondent father brought a motion to change child support terms and rescind arrears from a 2008 order, citing a material change in circumstances due to a back injury and inability to earn the imputed income.

The applicant mother opposed, arguing the father had consistently avoided his support obligations.

The court found a material change in circumstances from June 10, 2021 (date of formal notice), but imputed an annual income of $18,000 to the father due to his intentional underemployment and failure to follow medical advice or seek retraining.

The court dismissed the father's request to rescind arrears, citing his blameworthy conduct and the stringent test for rescission, but allowed him to pay arrears at a reduced monthly rate.

The applicant moved for the equal distribution of the net sale proceeds of a jointly owned investment condominium following the parties' separation.

The self-represented respondent objected, claiming a holdback for management fees she incurred while managing the property.

The court noted that while a joint tenant cannot typically charge management fees, the respondent's claim could be framed in equity as unjust enrichment or constructive trust.

Applying the principles for self-represented litigants, the court dismissed the applicant's motion without prejudice and granted the respondent leave to amend her pleadings to properly assert her equitable claims.

This endorsement addresses a costs application following a trial concerning parenting time.

The mother, who was largely successful at trial, sought costs on a full or partial recovery basis.

The father, self-represented, opposed any costs.

The court reviewed the principles for awarding costs, including the criteria for full recovery (unreasonable conduct, bad faith, or beating an offer to settle) as outlined in Mattina v. Mattina.

The court found that the mother did not beat her offer to settle, and the father's conduct, while not leading to settlement, did not meet the high bar for bad faith or unreasonable conduct warranting full recovery, especially given his self-represented status and efforts to resolve the matter.

Applying the factors under Family Law Rule 24(12), the court determined a partial recovery award was appropriate, considering the case's importance and lack of legal or factual complexity.

The mother was awarded $4,300 in costs.

The applicant mother sought child support and section 7 expense contributions from the respondent father for three children.

The father acknowledged his legal responsibility but disputed the income imputation and special expenses claimed.

The court found the father was intentionally under-employed and imputed annual income of $36,960.00, resulting in monthly child support of $717.00.

The court awarded contributions toward swimming lessons, religious studies, and child care for the youngest child only.

The restraining order against the father was terminated.