Law Times

Law Times • February 23, 2015 Page 19 www.lawtimesnews.com band was to pay wife penalty of $2,500. Grech v. Grech (Oct. 31, 2014, Ont. S.C.J., Greer J., File No. FS-14-393249) 246 A.C.W.S. (3d) 809. Family Law CHILD WELFARE Purported father should have sought to participate in wardship hearing Children's Aid Society (CAS) apprehended mother's child at birth due to mother's substance abuse. Mother was granted supervised access but only at- tended about 60 per cent of visits. Mother would not con- firm identity of father. No fam- ily members came forward to care for child. CAS successfully brought application for Crown wardship without access. Ap- plication judge determined that father's identity was unknown and that he was not parent for purposes of proceeding. After child was placed for adoption, purported father unsuccessfully brought application for status review seeking to have ward- ship order declared nullity and to have paternity testing per- formed. Purported father ap- pealed and sought to challenge constitutionality of definition of "parent" in ss. 37(1) of Child and Family Services Act (Ont.), and of s. 65.1(9) of Act preclud- ing appeal after child had been placed for adoption. Appeal dis- missed. Purported father should have sought to participate in wardship hearing or to become party for purpose of appeal from wardship order. Purported fa- ther never had ability to bring status review application. Pur- ported father did not fall within any categories of persons enu- merated under s. 65.1(4) of Act, including parent. Even if pur- ported father could bring such application, he had not waited six-month period specified in s. 65.1(7) of Act. In any event, application judge was correct in law with respect to opera- tion of s. 65.1(9) of Act. Fact that purported father had not been given notice of protection proceedings did not amount to fundamental unfairness. Issue of fairness had to be considered having regard to Act's time sen- sitive context. Constitutional issues should have been raised in wardship hearing or appeal from wardship order and could not be considered here. All present proceedings amounted to collateral attack and were im- proper. F. (T.) v. Children's Aid So- ciety of Brant (Sep. 15, 2014, Ont. S.C.J., Harper J., File No. FS-13-286, FS-13-412, CSJ C418/12T) 246 A.C.W.S. (3d) 852. DOMESTIC CONTRACTS Disclosure was what would be required regardless of whether marriage contract upheld Husband lived in Ontario and had annual income of $800,000 and net worth of $14.2 million. Wife lived in Michigan and was essentially unemployed. Hus- band and wife became engaged in July 2010. Parties signed mar- riage contract on Sept. 1, 2010. Wife was to acquire only 10 per cent interest in husband's home if marriage lasted longer than five years. If marriage did not last more than five years, husband would only pay $6,000 per month for spousal sup- port, with duration dependent on length of marriage. Parties married on Sept. 11, 2010. Wife was granted permanent resi- dent status in Canada in April 2013. Parties separated later that year due to wife's alleged infidelity. Wife commenced application for spousal sup- port and division of family as- sets. Husband brought motion for disclosure from wife. Wife brought cross-motion for dis- closure from husband. Motion granted; cross-motion granted in part. Wife was required to produce unspecified disclo- sure sought by husband. Hus- band was required to produce sworn financial statement with supporting documentation with respect to all assets and li- abilities reflected in schedule to marriage contract, both on date of marriage and his alleged date of separation. Husband was also required to provide proof of income as reflected in his in- come tax returns and notices of assessment for 2009 and 2013. Files from parties' counsel in- volved in negotiation of mar- riage contract were also to be produced. Disclosure sought by husband was both reason- able and proportionate to is- sues while disclosure sought by wife exceeded what was, at this stage, reasonable and necessary for court to make determina- tion of husband's financial po- sition. One could assume that since husband intended wife to rely on schedule to marriage contract, his backup documen- tation should be readily avail- able. Disclosure required of husband was what would be required regardless of whether marriage contract was upheld. Regarding files from parties' counsel, privilege was deemed to be waived where interests of fairness and consistency so dic- tated or when communication between solicitor and client was legitimately brought into issue in action as occurred here. Balsmeier v. Balsmeier (Sep. 12, 2014, Ont. S.C.J., R.P. Kaufman J., File No. FC-12-40496-00) 246 A.C.W.S. (3d) 886. Limitations REAL PROPERTY Existence of tenancy at will over driveway was irrelevant Property owner acquired large property from his father in 1978. Owner used most of property for raising cattle and growing hay. Neighbour, who was owner's sister, had owned property south of owner's property since 1973. Neighbour constructed gravel driveway on strip of owner's property with owner's permission in 1984. In 1985, neighbour added asphalt walkway between property line and edge of driveway. At some point, neighbour had also planted trees on property line and constructed wood shed and dog houses in vicinity. Titles to properties were transferred to land titles system in 2002. Owner attempted to revoke neighbour's entitlement to use strip around 2011. Neighbour brought action against owner for declaration that she had ac- quired possessory title to strip by way of adverse possession. Action allowed in part. Neigh- bour was granted possessory title to part of strip measur- ing 4.67 metres in width from property line. Part of strip un- der trees had been used exclu- sively by neighbour and her husband without permission for requisite 10-year period in s. 15 of Real Property Limita- tions Act (Ont.). Neighbour's use of this part of strip since 1984 demonstrated intention to use it as her own property and exclude owner. Owner's use of this part of strip while attend- ing neighbour's property did not amount to acts of owner- ship. Neighbour failed to estab- lish adverse possession of gravel driveway. Neighbour had been granted permission to construct and use driveway. Neighbour's use of driveway was not exclu- sive, was not used with inten- tion to exclude owner, and did not effectively exclude owner. Existence of tenancy at will over driveway was irrelevant since elements of adverse possession could not be satisfied. Paquette v. Guindon (Oct. 24, 2014, Ont. S.C.J., Marc R. Labrosse J., File No. L'Orignal 155-2012) 246 A.C.W.S. (3d) 901. ONTARIO CRIMINAL DECISIONS Extraordinary Remedies MANDAMUS Justice had absolutely no business or jurisdiction to quash this certificate of offence Regional Municipality applied for order of mandamus and cer- tiorari against order of justice of peace quashing Certificate of Offence for failure to specify section of Highway Traffic Act (Ont.) (HTA) prohibiting of- fence of speeding. Certificate did allege offence of speeding 70 kms in 60 kms zone and that it was contrary to HTA. Justice of peace quashed Certificate of Of- fence because it failed to include section of HTA for speeding. No reasons for this disposition were recorded other than "no section number for offence." Application allowed. Cursory internet or library search would have quickly cured this defect and accused was deemed not to dispute charge. Because justice of peace was dealing with this Certificate of Offence pursuant to s. 9(2) of Provincial Offences Act (Ont.) (POA) as result of this ademption, she was re- quired to determine in her of- fice without benefit of submis- sions from either side whether it was complete and regular on its face. Without benefit of any rea- sons, justice concluded that it was not. Despite this deficiency, it was evident that justice did so in face of not only compelling, but binding, authority to con- trary. If justice was not aware of this authority, she should have been. Justice had absolutely no business or jurisdiction to quash this "perfectly good cer- tificate of offence". Case was yet another in long line of hy- peractive and inappropriate in- terventions by justice of peace in this region and elsewhere in province that continually permitted form to trump over substance. These inappropri- ate interventions had not only created certain degree of chaos in Provincial Offences Court, they also displayed profound misunderstanding of role of stare decisis in our legal system. Once Superior Court has spo- ken on issue, lower courts are bound to follow those dictates whether they like them or not. This, of course, includes jus- tices of peace of this province, especially so in context of their extraordinary ex parte delib- erations exercised pursuant to s. 9(2) of POA where they enjoyed ungoverned and unobserved scope to quash proceedings. York (Regional Municipality) v. Martinez (Oct. 29, 2014, Ont. S.C.J., McIsaac J., File No. New- market CV-14-117733-00) 117 W.C.B. (2d) 285. Motor Vehicles SPEEDING Offence notice failed to describe manner in which notice was to be delivered Accused applied for leave to appeal judgment dismissing his appeal from conviction for speeding. Accused was served with offence form on January 30. Accused applicant's notice was received on February 18, but conviction was entered by justice of peace on that date. On Feb. 28, 2014, accused re- ceived letter dated Feb. 24, 2013, which stated that his re- quest for trial date was received after 15 day period had lapsed and conviction had been regis- tered. Central issue concerned calculation of period of time for him to file his notice of inten- tion to appear in court, before he could be "deemed not to dis- pute" charge. Accused argued his conviction was premature based on application of R. 4 of Rules of the Ontario Court (Provincial Division) in Pro- vincial Offences Proceedings ("Regulation 200"). Provincial Offences Appeal judge reject- ed applicability of R. 4. Judge found that person issued speed- ing ticket is strictly responsible for effecting delivery of "exer- cise of option" within 15 days. Leave to appeal granted; con- viction stayed pending appeal. It was arguable that period of "at least" 15 days under s. 9(1) (a) of Provincial Offences Act (Ont.) should have excluded January 30, day of service, and February 14, 15th day. Febru- ary 15, 16 and 17 should have also been excluded from calcu- lation of "at least 15 days" from date of service. Accordingly, last day for delivery of Offence Notice was arguably Tuesday, February 18, day of accused's conviction. It appeared there- fore, that accused's appeal on this ground may have had some merit. Offence Notice received by accused, which appeared to have been standard form, did not specify manner of delivery, other than to identify address of court office. Arguably, Of- fence Notice did not comply with statute because it failed to describe manner in which no- tice was to be delivered, if it was sent by mail. Appeal raised is- sues concerning application of Regulation 200 and calculation of time limits there under, and compliance of prescribed form with Act. Based on its plain and unambiguous meaning, R. 5 merely allowed individuals to safely assume receipt date of notices delivered by mail. It did not affect notice deadline: accused's argument on R. 5 re- jected. R. v. Hicks (Oct. 29, 2014, Ont. C.A., G.R. Strathy C.J.O., In Chambers, File No. CA M44141) Leave to appeal from 115 W.C.B. (2d) 611 was al- lowed. 117 W.C.B. (2d) 284. Trial ACCUSED NOT REPRESENTED BY COUNSEL Accused not allowed to properly cross-examine witnesses Accused appealed his convic- tion for assault for which he re- ceived 36 month probationary sentence. Trial judge found that young elementary witnesses had no motive to lie that ac- cused touched wrist of one of them; there was no conspiracy; and there was no concocted case. Evidence indicated that accused was effectively prevent- ed from trying to meet Crown's case as court appointed coun- sel did not let him pursue line of questions. Accused, aged 73, was motivated to speak to children to warn them of dan- gers of fraud. Appeal allowed, conditional discharge imposed. Accused was denied fair trial as he was not allowed to properly cross-examine witnesses. Court concluded it was not fair to put accused through new trial and rather than impose finding of de minimis decided to use its pow- ers under s. 730(1) of Criminal Code to impose conditional discharge. Court also noted probationary period of three years was too long and accused was effectively discharged as he had already complied with all terms of previous order. R. v. Thornton (Nov. 18, 2014, Ont. S.C.J., Gray J., File No. 144/13) 117 W.C.B. (2d) 227. LT CASELAW

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