Ross C. Stewart

Richard Hall was convicted of sexual assault against his teenage stepdaughter, which occurred between December 2011 and September 2016.

The sexual assault involved non-penetrative touching of the complainant's legs, genital areas, and breasts, primarily when she was 17-18 years old and vulnerable due to substance abuse and estrangement from her mother.

The court found significant aggravating factors, including a profound breach of trust as the accused was in a loco parentis relationship, the victim's youthful age and vulnerability, and the significant psychological impact on the complainant.

Mitigating factors included the accused's lack of a prior criminal record, stable employment, and compliance with bail conditions.

The court considered the Supreme Court of Canada's guidance in R. v. Friesen, which emphasizes denunciation and deterrence for child sexual offenses, and the collateral immigration consequences (risk of deportation for the permanent resident accused).

The court ultimately imposed a sentence of two years less one day in jail, followed by a two-year probation order, finding that a conditional sentence would be disproportionate despite the immigration implications.

Ancillary orders included a 20-year SOIRA order, DNA order, firearms prohibition, and non-communication order.

This endorsement determines costs following a motion heard on April 23, 2019.

The respondent, Joseph Patrick McAuley, was the successful party on the underlying motion and sought costs fixed at $9,221.95.

The applicant, Stephanie Melanie Caresse McAuley (also referred to as Ms. Kieffer-Wolf), opposed the requested amount, arguing the fees were excessive and that the respondent acted unreasonably.

The court found the respondent's legal fees reasonable and proportional, and that his offer to settle was as favourable or more favourable than the motion's outcome.

The court also found the applicant's conduct on the motion unreasonable, particularly her insistence on a parenting schedule that did not reflect the status quo and her failure to be forthcoming about medical issues.

Costs were fixed at $8,300 in favour of the respondent, reflecting 60% of pre-offer costs and 100% of post-offer costs, plus disbursements and tax.

The applicant sought to revert to a 2016 primary residence schedule for the children after a period of hospitalization, while the respondent sought an interim interim equal timesharing arrangement and Office of the Children's Lawyer involvement.

The court found that the pre-hospitalization status quo involved a more flexible schedule with significant time spent with the father.

The court ordered an interim interim timesharing arrangement where the children are with the mother Monday to Thursday and with the father Thursday to Monday, reflecting the pre-hospitalization flexible schedule more closely than the 2016 order.

The court also ordered a referral to the Office of the Children's Lawyer and vacated a previous temporary order.

M.L. sought a bail review after being detained by a Justice of the Peace on charges including CDSA, weapons, and ammunition offences.

The review considered new evidence, such as M.L.'s personal history of trauma and addiction, her recent commitment to recovery programs (Suboxone, AA, NA, Bible study, yoga), and the support offered by the John Howard Society for housing and supervision.

The court found that this new evidence, which was not available at the initial bail hearing, materially ameliorated the flight risk and the risk of re-offending, thereby rebutting the reverse onus for release.

Bail was granted with conditions focused on supervision, rehabilitation, and non-communication with a co-accused.

The applicant sought an equal division of the net proceeds from the sale of a property held as tenants in common.

The respondent, who was also the estate trustee of the deceased co-owner, sought an unequal division based on a claim of unjust enrichment, arguing her efforts increased the property's value after the co-owner's death.

The court dismissed the respondent's unjust enrichment claim, finding she failed to establish a corresponding deprivation or the absence of a juristic reason for her contributions, which were deemed negligible in relation to the property's value increase.

The court ordered an equal division of the remaining net proceeds.

This decision addresses costs following a motion in a family law matter.

The applicant sought partial indemnity costs, arguing success on spousal support.

The respondent contended for no costs due to divided success.

The court found the applicant successful on spousal support but noted her unreasonable conduct regarding child-related issues.

Applying the principles of costs, including reasonableness and proportionality, the court awarded the applicant fixed costs of $1,200, acknowledging her partial success while accounting for her conduct.

The Respondent moved to suspend or terminate interim spousal support, review spousal support, and change the primary residence of the youngest child for school purposes.

The Applicant cross-moved regarding the children's school and parenting schedule.

The court dismissed the Respondent's motion to suspend or terminate spousal support, maintaining the existing order.

The review of spousal support was adjourned due to lack of updated financial information.

The court ordered a return to the alternating week-on week-off parenting schedule as proposed by the Applicant and directed both parties to apply for a cross-boundary transfer for the youngest child to attend Trillium Public School, aligning with the older child's school, finding it to be in the child's best interests.

The applicant sought state funding for his defence under section 7 of the Charter.

Legal Aid Ontario (LAO) offered a certificate conditional on the applicant's spouse consenting to a lien on the matrimonial home, which was registered solely in her name.

The spouse refused.

The court found that issue estoppel did not apply to a previous funding decision as the circumstances had changed (LAO's condition).

The court also determined that the applicant could not reasonably be expected to pursue an application under the Family Law Act to encumber the matrimonial home, as the Act's provisions are for marital breakdown, not ongoing relationships, and the applicant's unregistered interest was not capable of being charged.

Citing precedent, the court affirmed that state funding should not be withheld if family members refuse to assist, provided the applicant personally lacks means.

A conditional stay was issued.

A young person was charged with driving while impaired by a drug contrary to section 253(1)(a) of the Criminal Code following a single-vehicle collision.

The defence raised two issues: whether the arresting officer had reasonable and probable grounds to arrest, and whether the Crown proved beyond a reasonable doubt that the defendant's ability to drive was impaired by a drug.

The court found that the officer had reasonable and probable grounds to arrest based on the totality of circumstances, including the accident, odour of marijuana, the defendant's admission of marijuana consumption, and observed signs of impairment.

However, the court found that the Crown failed to prove impairment beyond a reasonable doubt.

The Drug Recognition Expert's opinion was given limited weight due to concerns about the reliability of certain indicators relied upon and the significant time delay between the collision and the evaluation.

Both charges were dismissed.

The applicant father sought to terminate child support for his eldest daughter and vary support for his youngest, along with other relief.

The respondent mother opposed and sought continued support, arrears, and costs.

The court found the mother substantially successful on all issues, including continued full table child support for both children, accelerated arrears repayment, and costs for a previously withdrawn motion.

The father's position was deemed unreasonable, and he rejected two reasonable settlement offers from the mother.

The court awarded the mother $22,500 in costs, noting the father's unreasonable conduct and the lack of detailed billing records from the mother's counsel.

The court ruled on whether a Drug Recognition Officer must qualify through a Mohan voir dire before providing expert opinion evidence regarding drug impairment.

The accused challenged the scientific basis of drug recognition testing, arguing that expert evidence proving the reliability of the science was required before a DRE could testify.

The Crown argued that Parliament had already conducted its own voir dire when amending the Criminal Code and that accreditation under the applicable regulations was sufficient.

The court held that no Mohan voir dire is required if the officer meets the regulatory accreditation criteria, as Parliament has legislated the qualifications and found the science sufficiently reliable.

Any challenge to the science itself should be brought as a constitutional question.

Following a motion to change a prior consent order concerning child support, the court was required to determine entitlement to costs.

The moving party sought child support arrears, guideline support, sharing of section 7 expenses, and transfer of an RESP.

The court previously dismissed the arrears claim and ordered the RESP to remain jointly registered for the child’s educational benefit.

Both parties claimed costs and relied on competing offers to settle.

The court held that success on the motion was divided and that neither party’s offer exceeded the result obtained, and therefore declined to award costs.

The respondent mother brought a motion to change prior consent orders governing child support, seeking retroactive offset child support and s. 7 daycare expenses dating back to 2008, as well as transfer and control of an RESP account funded by the father.

The court held that the 2007 consent order barred any attempt to vary child support prior to March 1, 2013, and that the mother had knowingly consented to the subsequent 2008 order modifying the financial arrangements, including replacing child support payments with the father’s responsibility for daycare costs and RESP contributions.

The court found no basis to set aside those agreements and rejected the claim for retroactive child support arrears.

However, the court determined that fairness required restructuring the RESP arrangement to reflect the parties’ intentions and avoid unilateral control.

The RESP was ordered to be held jointly by both parents for the benefit of the child, with education expenses to be paid from the fund before proportional contributions from the parents.

The defendant corporation was charged with three offences under the Fire Protection and Prevention Act for violations discovered at a residential building following a fire on April 3, 2009.

The charges involved: (1) providing devices on required doors that could prevent them from being readily opened from the inside; (2) failing to maintain the fire alarm system in operating condition; and (3) failing to maintain smoke alarms in operating condition.

The prosecution proved the actus reus of all three charges.

The defendant raised a due diligence defence, arguing it had taken reasonable care.

The court found the defendant's fire prevention plan was inadequate, haphazard, and reactive rather than preventive, with poor coordination and no regular monitoring.

The defendant failed to meet its burden of proving due diligence and was convicted on all three charges.

Addendum to reasons for decision correcting the allocation of sentence between offences in a criminal matter.

The court confirmed that the amended warrant of committal properly reflected the distribution of the total sentence across the offences.

The total custodial sentence remained seven years after applying four years of pre‑sentence custody credit.

The addendum clarified that the amended warrant accurately corresponds with the earlier reasons for decision.