Law Times

Law Times • January 13, 2014 could advocate for them. Applicant brought application for order making children permanent wards of Crown with access to mother at discretion of applicant and in consultation with children, and applied for summary judgment. Mother did not participate in hearing. Application allowed. Mother's failure to attend access visits demonstrated ambivalence not suggestive of parent who could be relied on to play role in children's lives longterm. Mother's inability to control use of alcohol for any extended period, or to follow through on recommended supports and services, demonstrated inability to put children's need ahead of her own. No evidence mother able to meet children's needs now or would be at any time in future. Children continued to be in need of protection. Court order necessary to protect children in future. In absence of any other alternatives, order for Crown wardship in best interests of children. Children's Aid Society of Hamilton v. M. (R.) (Sep. 11, 2013, Ont. S.C.J., Brown J., File No. C49/12) 232 A.C.W.S. (3d) 693. PROPERTY Amount wife requested for occupation rent was almost half of husband's pay Wife sought order for occupation rent. Parties were in common law relationship for 9 years and were married for 18 years. Parties had three children. Wife was stay-athome mother for most of marriage. She returned to work after children began attending school on full-time basis. She had difficulty finding employment and retrained in two separate fields. She was not able to maintain employment. Husband worked for school board earning approximately $60,000 per year. Wife voluntarily left matrimonial home. Children spent over half of time with husband in matrimonial home. Oldest child was in university, which was funded to large degree by husband without contribution from wife. Application dismissed. Amount wife requested for occupation rent was almost half of husband's pay. Claim was best left for trial judge who would be in best position to balance all relevant factors. Wu v. Wu (Sep. 13, 2013, Ont. S.C.J., Patrick Smith J., File No. FC11-2317) 232 A.C.W.S. (3d) 741. SUPPORT Father entitled to credit for overpaying child support for children after termination dates Motion by father seeking to terminate child support for four children of marriage. Children were born between 1981 and 1990 and youngest child was 22 years old at time of hearing. On April 20, 2012, court made temporary order to terminate child support payable by father on April 30, 2012. Motion granted. Child support for oldest child should have terminated on September 1, 2005, when she finished university. Child support for second oldest child should Page 15 CASELAW have terminated when he finished university on April 1, 2007. Timetable was not as clear for two younger children. One was still enrolled in university and the other took extra year to finish his degree. Court accepted date used in temporary order, April 30, 2012 as most reasonable termination date. Father was entitled to credit for overpaying child support for children on or after termination dates. Gray v. Gray (Aug. 26, 2013, Ont. S.C.J., Conlan J., File No. 4692/96 M1) 232 A.C.W.S. (3d) 757. Insurance AUTOMOBILE INSURANCE Arbitrator failed to determine when continuous conjugal relationship began Applicant insurance company appealed from award of arbitrator. Arbitrator concluded in award that two persons, female and male, were "spouses" under Insurance Act (Ont.), at time of motor vehicle accident. As result of award applicant was liable to pay accident benefits to male for injuries sustained in accident. "Spouse" was defined under s. 224(1) of Act as either of two persons who have lived together continuously in conjugal relationship outside marriage for period of not less than three years. Female and male were not married. Arbitrator found that female and male, both aged 20 at time of accident, had been in continuous, exclusive and supportive relationship from age of 13. He found conjugal relationship between them began when they were 15 years old. As time progressed, their relationship blossomed from boyfriend/girlfriend relationship to mature and adult relationship. Three years prior to accident, female and male were in high school and male lived with his parents. Appeal allowed. Term "conjugal" was legal term that generally seemed to be defined as "marriage-like relationship outside marriage". Arbitrator failed to determine precisely when female and male engaged in continuous conjugal relationship. There was no evidence that female and male started living together and acknowledging each other as husband and wife at any time during three years prior to accident. Evidence did not establish they were "spouses" under Act for those three years. Ing Insurance Co. of Canada v. CoOperators Insurance Co. (Sep. 11, 2013, Ont. S.C.J., L.C. Leitch J., File No. 8589/12) 232 A.C.W.S. (3d) 782. Personal Property LOST GOODS Defendant removed totes containing porcelain dolls and wall hangings Plaintiff sought damages for items removed from property by defendant. Plaintiff was landlord of property and defendant was tenant who occupied basement of plaintiff 's home. Parties were also co-workers and initially had very trusting relationship. Defendant was given full access to plaintiff 's home. Plaintiff 's boyfriend moved into home and took issue with defendant having access to entire premises. Locks were installed that prevented defendant from having access to upstairs of property and limiting her access to leased premises. Relationship between parties deteriorated. Defendant vacated premises. Plaintiff alleged that things were missing from her property and that it was defendant who was responsible for items that had gone missing. Plaintiff claimed that there was chicken with bacon wrapped around it left behind drywall that began to smell. Plaintiff had to remove drywall to remedy situation. Plaintiff claimed that porcelain dolls in totes had been removed from home by defendant. Plaintiff claimed that jewellery was also missing. Defendant counterclaimed for missing cell phone, broken windshield and rental car. Judgment for plaintiff; counterclaim dismissed. Plaintiff had proven part of case on balance of probabilities. Some items went missing from plaintiff 's residence. Plaintiff saw number of totes removed from residence that belonged to her and contained some of her belongings, which was corroborated by other witnesses. Plaintiff established, on balance of probabilities, that defendant removed totes containing porcelain dolls and wall hangings. Evidence relating to missing jewellery was vague. There was no corroborating evidence to establish, on balance of probabilities, that defendant took plaintiff 's jewellery. Without corroboration, plaintiff had not established, on balance of probabilities, that defendant removed other items. Defendant had not established her claim on balance of probabilities. Plaintiff was awarded judgment of $1,608. Lawrence v. Thornton (May. 6, 2013, Ont. S.C.J., R. Kwolek D.J., File No. Sault Ste. Marie 159/12) 232 A.C.W.S. (3d) 804. ONTARIO CRIMINAL DECISIONS Appeal GENERAL Inference that accused's van was getaway vehicle was available Appeal from conviction. Constable on duty, short distance from pizzeria, got call regarding robbery. Constable drove towards pizza shop and saw two or three men running towards nearby movie theatre parking lot. He pursued them onto parking lot. He watched men run towards accused's silver minivan, which was running. Men appeared to be trying to get into van. Constable stopped cruiser right behind van, noting its licence plate number. When robbers ran away, constable chased them on foot yelling "Police! Stop!". Accused drove away and was arrested less than 10 minutes later still drivwww.lawtimesnews.com ing. Identification belonging to one of robbers found in accused's van. Trial judge found accused was driver of getaway vehicle and, accordingly, both party and conspirator to robbery. Accused convicted of one count each of: possession of weapon for purpose dangerous; robbery; and conspiracy to commit an indictable offence. Conviction for possession of weapon was stayed pursuant to Kienapple. Appeal dismissed. Trial judge did not misapprehend evidence or render an unreasonable verdict. There was nothing to support innocent explanation for why accused was sitting in his van in middle of night in parking lot, engine running, close to pizza shop, around time that person known to him was robbing shop, or why robbers ran straight to his van after committing robbery. Inference that accused's van was getaway vehicle was available. R. v. Lengelo (Oct. 4, 2013, Ont. C.A., Goudge J.A., Cronk J.A., and Gillese J.A., File No. CA C54249) 109 W.C.B. (2d) 523. NEW TRIAL Reasons inadequate as they failed to address key issues in case Appeal by accused from his conviction of offence of being in care or control of motor vehicle while impaired. Accused consumed many beers and then drove his mother's car into tree in middle of night. He claimed that his acquaintance was driving and he left immediately after crash. Trial judge did not accept this story because accused was observed in driver's seat shortly after crash and this established care and control. Accused had no recollection as to how he got into that seat. When police officer arrived accused was unsteady on his feet and he smelled of alcohol. Officer asked accused for his wallet and his response was to open passenger side door and fall into vehicle. Appeal allowed. Trial judge's reasons were problematic. After trial that lasted over five partial court days, judge reserved judgment and one month later he gave oral reasons which were just over 46 transcript pages in length. Judge's analysis of relevant issues did not begin until very end of page 44. Judge failed to explain why he rejected accused's evidence and he did not say whether he accepted or rejected accused's expert medical evidence. He also failed to address several important pieces of evidence that were potentially exculpatory. One important piece of exculpatory evidence were seatbelt markings on accused. Judge failed to analyze this evidence himself and court had no way of understanding how he dealt with it, if at all. This error was sufficient to set aside conviction. Judge further erred in his treatment evidence of two people who heard accident crash and who were first individuals at scene. Reasons were inadequate as they failed to address key issues in this case. Court did not accept that conviction should be set aside as unreasonable for Crown's case was capable of establishing guilt. Accused was entitled to new trial at which all important pieces of evidence would be properly considered afresh. R. v. Schmidt (Oct. 21, 2013, Ont. S.C.J., Trotter J., File No. 70/12) 109 W.C.B. (2d) 528. Breathalyzer REFUSAL TO PROVIDE SAMPLE No suggestion of any physical impediment to provision of breath sample Accused appealed conviction for refusing to provide breath sample into approved screening device. Accused drove vehicle and switched positions with female passenger before approaching police checkstop. Officer first spoke to female driver and then went to passenger side of vehicle to speak with accused, where he detected odour of alcohol from accused's breath. When approved screening device was presented to accused, he did not provide proper sample, and device indicated that insufficient air was provided for sample to be analyzed. Accused made three or four unsuccessful attempts to provide suitable breath sample before officer inserted new mouthpiece and again demonstrated for accused how to provide proper sample. Accused had several more opportunities to blow, all of which resulted in reading of insufficient air. Accused testified that he did not consume any alcohol, that he had applied aftershave lotion on his face, and that he had no reason not to provide suitable sample of his breath into device. Accused and female testified that they switched positions in vehicle since she was more familiar with area, and that they were unaware of police checkstop. Trial judge rejected accused's evidence and specifically accepted officer's evidence wherever it conflicted with accused's. Accused argued that trial judge failed to assess contradictions in evidence as to whether he had alcohol in his body preceding breath demand. Accused argued that trial judge erred in accepting officer's evidence that he failed or refused to provide breath sample. Accused argued that trial judge failed or refused to assess "mens rea" aspect in assessing whether he had some reason to fail or refuse to provide breath sample. Appeal dismissed. Trial judge had evidential basis to reasonably find that officer detected odour of alcohol from accused's breath and that accused intentionally failed or refused to provide suitable sample of his breath. Trial judge accepted and acted on evidence that accused was given several chances to provide suitable sample into device that was working properly. There was no suggestion of any physical impediment to provision of breath sample. R. v. Vieira (Oct. 21, 2013, Ont. S.C.J., B.P. O'Marra J., File No. CR125000015400AP) 109 W.C.B. (2d) 540. LT

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