Law Times

Law Times • February 6, 2017 Page 15 www.lawtimesnews.com Family Law CUSTODY AND ACCESS Factors to be considered in custody award Court would not intervene in change of custody order Parties married in 1996 and had two sons born in 1997 and 1999. Both parents were verbally ag- gressive and physically violent. Parties separated in 2012 and sons remained in mother's pri- mary care for three years follow- ing separation. Final order for custody made in February 2015 incorporated, on consent, terms of arbitration award granting sole custody for sons to father. Arbitrator found that father's relationship with sons was seri- ously damaged by campaign of parental alienation by mother. Order prohibited communica- tion between sons and mother and between sons. Older son re- fused to go with father, younger son ran away from father, and both sons refused to attend re- unification treatment. Sons con- tinued to reject order and refuse all contact with father. Police were called enforce order in re- spect of younger son only. Po- lice made some attempts but did not persist. Police successfully brought motion to remove police enforcement provisions from order. Mother was partially suc- cessful in motion to change or- der to provide her with custody of sons. Father brought motion to enforce existing custody order. Sons supported both motions to change order and asked that there be no custody order. Father appealed and asked court to re- instate prior final custody order granting him exclusive custody of older son. Appeal dismissed. Motions judge carefully consid- ered father's submissions and gave cogent reasons for reject- ing them, having regard to older son's best interests. In absence of any palpable and overriding error in exercise of discretion, which had not been demon- strated, court cannot intervene in change of custody order. L. (N.) v. M. (R.R.) (2016), 2016 CarswellOnt 19110, 2016 ONCA 915, K.M. Weiler J.A., R.A. Blair J.A., and K. van Rens- burg J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 1639, 2016 ONSC 809, Perkins J. (Ont. S.C.J.). SUPPORT Spousal support under Divorce Act and provincial statutes Trial judge erred in terminating spousal support Husband and wife married in Northern Ireland in 1992, and husband worked with his father on farm property there. Par- ties had two children, and wife stopped working full-time. Par- ties moved to Canada in 2002 but separated in November 2006. Children primarily resided with wife, but older child started living with husband in March 2013. Wife applied for spousal support and was awarded $239 per month from November 2011 to end of December 2016 based on husband's annual income of $44,870 and her imputed income of $8,000. Wife appealed. Appeal allowed. Spousal support was in- creased to $900 per month com- mencing January 2016 and was to decrease to $800 per month on later of January 2017 or month after father's child support obli- gation ended. Trial judge erred in terminating spousal support in December 2016 and not calcu- lating proper amount. It was un- necessary to determine retroac- tivity issue in light of analysis re- garding termination, though any further retroactivity would not have been significant and hus- band had relied on prior denial of interim spousal support. Re- gardless of when spousal support commenced, it should continue indefinitely having regard to 7 to 14-year period recommended in Spousal Support Advisory Guidelines and inability to fore- see when wife would become self sufficient. Trial judge had ig- nored guidelines in establishing duration without explanation, and there was nothing in record supporting conclusion that wife would be self-sufficient by end of December 2016. Wharry v. Wharry (2016), 2016 CarswellOnt 19345, 2016 ONCA 930, George R. Strathy C.J.O., G. Pardu J.A., and David Brown J.A. (Ont. C.A.). Labour and Employment Law LABOUR LAW Collective agreement Police service's application for judicial review was dismissed Grievors were retired employ- ees of respondent police service, who were rehired on part-time basis. Grievors discovered they were receiving 4% pay in lieu of benefits, rather than 12% other part-time employees were re- ceiving. Union brought griev- ance on grievors' behalf, seeking discrepancy of 8% for workers. Grievance was dismissed by chief of police. Police services board upheld dismissal, without issuing written response. Matter was referred to arbitration under Police Services Act. Arbitrator ruled in favour of grievors. Po- lice service applied for judicial review of arbitrator's decision. Application dismissed. Arbitra- tor's decision was reasonable. Ar- bitrator properly found that 12% pay was not "double-dipping", as it was for part-time work which was separate from retirement benefits. Arbitrator did not ex- ceed jurisdiction by awarding pay dating back to 2007, under expired collective agreements. Arbitrator properly considered relevant statutes and collective agreement to reach this decision. As matter was not Labour Rela- tions Act grievance, arbitrator was not bound by current collec- tive agreement. Arbitrator was not bound to follow precedent that stated that current collective agreement governed dispute. Ar- bitrator reasonably determined that principles in other caselaw were more applicable to dispute. Costs were awarded to union in agreed-upon amount of $4,500. Cornwall Community Police Services Board v. Cornwall Po- lice Assn. (2016), 2016 Carswel- lOnt 19529, 2016 ONSC 7733, Molloy J., Sachs J., and Ramsay J. (Ont. Div. Ct.); application for judicial review refused (2016), 2016 CarswellOnt 3922, Howard Snow Member (Ont. Arb.). Ontario Criminal Cases Criminal Law NARCOTIC AND DRUG CONTROL Offences New trial was ordered Evidence. Accused drove trans- port truck loaded with raspber- ries from California to Ontario. When Canada Border Services Agency officers opened trailer of accused's truck at border cross- ing, they saw two suitcases on top of skids of raspberries, which contained 39 kilograms of co- caine. Accused was charged with importing and possessing co- caine for purpose of trafficking. Accused denied seeing luggage on load in truck. Crown led evi- dence that accused had consider- ably under-reported length of his stop in California, and evidence suggesting it was unlikely that luggage was loaded on truck at same time as berries. Accused was acquitted and Crown ap- pealed. Appeal allowed. Trial judge erred by making findings of fact based on speculation, and relied on those findings to con- clude that accused was not "only" person who would be in position to retrieve drugs. Significance of that conclusion to trial judge's ul- timate determination was read- ily apparent when considered in context of defence that accused was "blind courier". Trial judge also erred by failing to consider all of evidence in relation to ul- timate issue of guilt by using piecemeal approach, effectively requiring Crown to prove each individual piece of evidence be- yond reasonable doubt. Failure to consider evidence as whole is error of law warranting appellate intervention. Trial judge's legal errors clearly affected his verdict of acquittal. New trial ordered. R. v. Knezevic (2016), 2016 CarswellOnt 18886, 2016 ONCA 914, John Laskin J.A., E.E. Gillese J.A., and David Watt J.A. (Ont. C.A.). Appeal of convictions was allowed Constructive possession. Dur- ing search of bedroom, police found accused sleeping on bed with his wallet and letters on table and glass pipe in his pocket. Police found glass pipes used to smoke methamphetamine and bag with marijuana in bedroom, and found bags of methamphet- amine inside light fixture in closet. Accused was convicted of possession of methamphet- amine for purpose of trafficking, possession of marijuana, and failure to comply with probation order. Accused appealed convic- tions. Appeal allowed. Evidence at trial was entirely circumstan- tial. It was not reasonable for trial judge to find that accused's guilt was only reasonable conclusion available on totality of evidence. Owner of residence, not accused, was target of police investigation. At time of raid, there were seven individuals in house, includ- ing three in basement bedroom, where no scales or cell phones were found. Drugs were hidden in light fixture in closet where there were no fingerprints. Ac- cused had not been identified before raid and fact that he was sleeping in room was not enough to establish that he lived there. Finding glass pipe in accused's pocket supported inference of use but not of trafficking. Cir- cumstantial evidence could not lead to reasonable conclusion that accused had knowledge, ei- ther actual or inferred, of drugs behind light fixture in closet. R. v. Biggs (2016), 2016 Car- swellOnt 18793, 2016 ONCA 910, J.C. MacPherson J.A., R.A. Blair J.A., and David Watt J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Detention and release after trial Continued detention was warranted Accused, now 63 years old, was found not guilty by reason of insanity of using weapon while committing sexual assault and had been detained under juris- diction of Ontario Review Board for over 30 years. At his last an- nual hearing, accused was un- represented and his request for adjournment to retain counsel was denied because hearing date was marked peremptory. Hospi- tal sought accused's continued detention but asked Board to transfer him to another hospital because he was unmanageable. Board found that accused's con- tinued detention was warranted because he remained significant threat to safety of public, but refused to order his transfer to another hospital. Appeal by ac- cused dismissed. Board erred in its approach to accused's request for adjournment and in not specifically addressing his com- plaint about sleep deprivation. Peremptory designation did not exhaust Board's discretion or preclude it from granting ad- journment if one was required in interests of justice. Refusing ad- journment solely because hear- ing date had been designated peremptory amounted to error in principle. However, in practi- cal terms, issue was moot. On central issue of whether accused should be transferred to another hospital, Board concluded that evidence of doctors who testified as to ongoing abuse and trauma that accused had allegedly in- f licted on numerous hospital staff members was outweighed by dramatic improvements in accused's condition while at hos- pital. Accused insisted on being awakened for hourly checks on his condition during night, lead- ing to ongoing sleep deprivation. Board did not address issue in its reasons. Board was obliged to explore what hospital had done to address accused's sleep prob- lem in more detail than it did at last hearing. Board was urged to explore issue of accused's sleep deprivation and, if not already done, was directed to obtain in- dependent opinion. Conway, Re (2016), 2016 Car- swellOnt 19061, 2016 ONCA 918, John Laskin J.A., E.E. Gil- lese J.A., and David Watt J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3966, N.D. McRae Alt. Chair, J. Burnside Member, G. Nexhipi Member, T. Verny Member, and J. Cyr Member (Ont. Review Bd.). Accused was not deprived of his right to make submissions Procedure. Accused was found NCRMD nearly two decades ago, and was bound by terms of disposition made by panel of Ontario Review Board. Accused appealed ruling of Board reject- ing his claim for relief under Canadian Charter of Rights and Freedoms. Accused brought mo- tion for panel to review and set aside order made by single judge dismissing his request to adjourn hearing of appeal. Motion dis- missed. Accused alleged that de- cision of single judge refusing his request for adjournment of hear- ing of his appeal was grounded on misapprehension of fact and consideration of irrelevant fac- tor. There was no basis on which to interfere decision. Even if single judge was mistaken in her reference to prior adjournment of scheduled hearing at accused's request, that did not form cen- trepiece of her reasoning for re- fusing adjournment request. She considered all of circumstances in reaching her conclusion. Pen- dency of accused's annual review and desirability of it being held in timely way was relevant factor for her to consider. Accused was provided with accurate advice that he could apply to list judge or bring motion to panel of court to review single judge's order. That advice was provided after decision and could afford no ba- sis upon which to set it aside. As self-represented litigant, accused was under no obligation to file factum for use on hearing of his appeal. Accused had opportu- nity to make oral submissions to panel hearing appeal, and was in no way deprived of his right and opportunity to make submis- sions in support of his claims. Court has statutory obligation to hear appeals from dispositions as soon as practicable after day on which notice of appeal is given. Almeida, Re (2016), 2016 CarswellOnt 19316, 2016 ONCA 929, David Watt J.A., K.M. van Rensburg J.A., and Grant Hu- scroft J.A. (Ont. C.A.). CASELAW

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