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Page 26 March 30, 2015 • Law Times www.lawtimesnews.com were cast for office of regional councilor. Recount was held. Applicant brought motion pursuant to s. 88 of Municipal Election Act, 1996 (Ont.) , re- quiring municipality to provide PDF copies of electronic im- ages of ballots cast in munici- pal election. Motion dismissed. Under-votes were not disputed ballots within meaning of Act and clerk's procedures. There must be reasoned basis for dis- puted ballot and not just broad unspecified objection. This was not controverted election application. Recount was con- ducted in accordance with Act and clerk's procedures. Motion was veiled attempt to reopen re- count process without any basis. Examining electronic image was tantamount to examining ballot, which was contrary to s. 42(4)(3) (ii) of Act. Novak v. Clarington (Municipal- ity) (Jan. 9, 2015, ont. s.C.j., J. Bryan Shaughnessy J., File No. 90334/14) 248 A.C.W.S. (3d) 838. Family Law CUSTODY Joint custody would impede effective decision-making concerning children Parties had two children. Father pulled out kitchen draw force- fully causing object to f ly out and shatter oven door. Father threatened to smash mother with coconut. Father was con- victed of uttering threat and mischief against mother. Term of father's probation was that he not attend mother's home. Father had limited contact and involvement with children since separation. Mother sought sole custody asserting she was pri- mary caregiver and history of conf lict in relationship with fa- ther did not make joint custody feasible. Father sought joint cus- tody. Mother was granted sole custody and father access. Order for sole custody to mother was in best interests of children. Parties' interactions were extremely con- f lictual. Parties' ability to work together in collaborative man- ner to meet needs of children was minimal. Serious difficulties in parties' relationship were such that joint custody arrangement would not be feasible and would impede effective decision-mak- ing concerning children. There were concerns about father's an- ger management. Mother was primary caregiver. Father's con- cerns that mother would take children to United States could be addressed by order that placed restrictions on mother's right to relocate with children. Caverley v. Stanley (Jan. 29, 2015, ont. s.C.j., Deborah L. Chap- pel J., File No. F 1186/13) 248 A.C.W.S. (3d) 872. DOMESTIC CONTRACTS Contract was written in language husband did not understand Husband was born in Afghani- stan and was 57 years old. Wife was born in Iran and was 51 years old. Parties were mar- ried in civil ceremony 1991 in United Kingdom. Parties were married in Muslim ceremony in 1993 in Germany where Mahr was executed. Parties had two children. Older child was at- tending university and younger child attended private school. Parties separated in November 2007 but they both continued to live in matrimonial home until March 2008. Husband worked as emergency room physician but he changed his work schedule in 2010, which resulted in reduction in his income. Wife was also phy- sician but she was found to have committed one act of profession- al misconduct and restrictions were placed on her. Husband ap- plied to set aside Marh. Applica- tion granted. Mahr was amount husband pledged to pay wife as dowry and it was deemed wife's separate property. Mahr was in writing, was signed by both par- ties and was witnessed. However, document was written in Arabic and neither party spoke, wrote or read Arabic. Neither party re- ceived independent legal advice. As contract was written in lan- guage husband did not under- stand, court was not satisfied that he understood nature of what he was signing. Husband was not asked about what currency Mahr was to be paid in. It could not be said that parties were of like mind, knew what they were agreeing to and were agreeing to be bound by terms of agreement. Mahr was set aside and was not enforceable in Ontario. Yar v. Yar (Jan. 19, 2015, ont. s.C.j., L.M. Walters J., File No. Hamilton D705/08) 248 A.C.W.S. (3d) 880. SUPPORT Trial judge erred in determining that spousal support award should be time limited Parties cohabited for almost eight years but did not marry. They separated in May 2012. Parties were both over 60 years of age. Respondent was pharma- cist, no longer working full time. Applicant was and had been un- employed, and received CPP dis- ability benefits and some income as result of award from Workers Safety Insurance Board, totalling $1900 per month. Trial judge ordered respondent to pay appli- cant spousal support in amount of $950 per month for limited period of six years, commencing March 1, 2014. He also ordered that she was entitled to equitable trust interest in residence valued in amount of $100,000. Appli- cant appealed on basis that trial judge erred in making spousal support time limited and in fail- ing to give her equitable interest in one-half of residence. Appeal allowed in part. Quantum of support awarded by trial judge was amply supported in evi- dence. However, trial judge erred in determining that spousal sup- port award should be time lim- ited to period of six years. Spou- sal Support Advisory Guidelines suggested that where recipient's age plus duration of relation- ship we greater than 65, as with applicant, indefinite award was appropriate. Trial judge did not consider applicant's age at all, or fact that she was disabled and on small pension. Award was varied to provide for monthly payment of $950 on indeterminate basis. Trial judge's finding on wife's equitable trust interest in resi- dence was fair and reasonable. However, applicant should be entitled to pre-judgment interest on $100,000 award from date of separation. Djekic v. Zai (Jan. 20, 2015, ont. C.a., K.M. Weiler J.A., Rob- ert J. Sharpe J.A., and R.A. Blair J.A., File No. CA C58542) 248 A.C.W.S. (3d) 911. Injunctions INTERLOCUTORY RELIEF Impossible to determine spe- cific spatial reach of non-competition covenant Motion by plaintiff for inter- locutory injunction prohibit- ing defendant, its former em- ployee, from competing with plaintiff 's driving instruction business, within 20 km radius of plaintiff 's principal place of business. Plaintiff had formerly operated driving instruction business from several locations. Defendant had been employed by plaintiff as instructor. When he was hired, defendant signed employment agreement which contained non-competition covenant. Plaintiff alleged de- fendant's employment was terminated on August 1, 2014, when one of its employees dis- covered that defendant was providing clandestine driving instruction to plaintiff 's clients, for personal profit. Plaintiff al- leged that since his termination in August 2014, defendant had continuously provided driv- ing instruction within 20 km radius of its principal place of business, contrary to provisions of non-competition covenant, resulting in economic loss. De- fendant denied that he engaged in such conduct. He also sug- gested he was last employed by plaintiff in August 2012. Mo- tion dismissed. Plaintiff failed to establish strong prima facie case against defendant. There was conf licting evidence with respect to circumstances sur- rounding defendant's execution of employment agreement. De- fendant said his first language was not English and that he was told he had to sign contract if he wanted job, which he did. There was also conf licting evi- dence with respect to date that defendant was last employed by plaintiff. According to record of employment dated October 16, 2012, defendant was employed by plaintiff from June 2, 2012 until August 15, 2012. Thereaf- ter, he occasionally worked as driving instructor but was paid by another corporation. Accept- ing plaintiff 's own documenta- tion, defendant did not work for plaintiff after August 15, 2012. In addition, given number of plaintiff 's locations at relevant time, it was impossible to de- termine specific spatial reach of non-competition covenant at any point in time, by reference to terms of agreement alone. Fi- nally, there was no evidence that award of damages would not be adequate remedy, if plaintiff was successful at trial. 1635770 Ontario Ltd. v. Wu (Jan. 7, 2015, ont. s.C.j., Greg- ory J. Verbeem J., File No. 14- 00021288-0000) 248 A.C.W.S. (3d) 929. ONTARIO CRIMINAL DECISIONS Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE Crown not required to disprove hypothetic theories not grounded on evidence Accused appealed conviction for impaired care or control and refusal to provide breath sample. Witness observed tractor trailer driving in erratic manner. Wit- ness testified that truck pulled up to gas pump and that he saw accused, who was swaying and unstable on his feet, trying to put card into pump. When police arrived, witness pointed out ac- cused as driver of truck and then left scene. Officers testified that accused had red-rimmed eyes, slurred speech, and was unsteady on his feet. Officer testified that accused admitted that truck was his and that he was driv- ing it. Officer made demand for breath sample into his approved roadside screening device but accused did not provide suit- able sample. Breath technician, who also noted signs of impair- ment, demanded breath sample into breathalyzer, which accused refused to provide. No keys to truck, vehicle registration, or insurance particulars were ever found on accused or elsewhere. Accused argued that trial judge erred in ruling that only reason- able inference was that he was operator of truck or that he had care and control of it. Accused argued that witness did not see him driving truck or exit its cab. Accused argued that trial judge erred in not considering whether he was gas station attendant or passenger in truck, as either sce- nario was reasonably plausible explanation and inference that could have been drawn. Accused argued that inference drawn by trial judge was matter of conjec- ture or speculation and was not reasonable inference on evidence in its totality. Appeal dismissed. Crown was not required to dis- prove hypothetic theories not grounded on evidence. While accused's admission that he was driver of truck could not be used to determine identity beyond rea- sonable doubt, it could be used in regards to reasonable and prob- able grounds. Given evidence as to erratic driving of truck, fact that accused, who exhibited signs of impairment, was refuelling it, and accused's admission that he was driver, police had reasonable and probable grounds to make breath demand. Crown did not need to prove beyond reasonable doubt that accused was driver in order to argue that reason- able and probable grounds for demand existed. Trial judge was correct in ruling that reasonable and probable grounds were over- whelming. Trial judge found that there was no other reasonable ex- planation as to why accused was refuelling truck other than that he had care and control of it. Gas area of truck stop was self-serve facility, finding inconsistent with suggestion that accused could have been gas attendant. Reason- able inference, other than that accused had care and control of truck, would have been matter of conjecture or speculation and would not have raised reason- able doubt. Trial judge did not err and had evidence before him from which he could have drawn facts necessary to support his de- cision. R. v. Pozniak (Jan. 5, 2015, ont. s.C.j., Thomas A. Bielby J., File No. SCA(P) 700/13) 118 W.C.B. (2d) 507. Charter of Rights ENFORCEMENT OF RIGHTS Police failed to ascertain whether second strip search was necessary Accused charged with im- porting cocaine into Canada. Accused applied for stay of proceedings or exclusion of evidence based on breach of s. 8 Charter rights. Upon her arrival at airport from Jamaica, officers discovered that accused had ap- proximately 1.2 kilos of cocaine hidden in her bra. Customs of- ficers conducted strip search of accused and shortly thereafter transferred custody of her to po- lice. Accused was transferred to detachment and placed in cell, where female officer conducted further strip search of her. Door of cell remained open to hallway and search was video recorded by security camera located in cell. Officers did not discuss cir- cumstances of case and whether strip search was necessary. No supervisory authorization was sought for strip search. After strip search accused provided statement that was video and audio recorded. Accused testi- fied that she felt uncomfort- able in circumstances, but that search had no real impact on her or her recorded statement. Accused argued second strip search by police was unreason- able. Accused argued that even though there was no causal connection between search and statement, statement should have been excluded. Search was not challenged until after jury had watched and listened to ac- cused's recorded statement. Ap- plication allowed, evidence ex- cluded, mistrial ordered. Other male officers did not view any part of search and there was no one else in detachment at time of search. Officers were unfamiliar with, or unaware of, any written policy or protocol regarding strip searches, but knew that they were routinely done in drug importation cases. Police failed to ascertain from CASELAW

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