Law Times

Law Times • march 7, 2011 Family Law SUPPORT Income imputed to father who operated immigration consultancy in Dubai Parties married in 1994. Early stages of marriage were fi lled with confl ict. In 1997, father de- cided to go to Dubai and open immigration consulting prac- tice. Mother followed father and worked in hospital in Dubai. In September 1997, mother gave birth to fi rst child. Mother gave birth to second child two years later. Unhappy with marriage mother returned to Canada with children. On ex parte motion mother was granted interim cus- tody of children. For three or four years father alternated spending three weeks in Canada to see chil- dren and three weeks in Dubai to take care of business. Parties were at odds on issue of child support among others. Father claimed to earn between $50,000 to $60,000 per year. Mother argued that income should be imputed to father because father had not provided suffi cient and inde- pendently verifi ed evidence with respect to income earned from business. Judge imputed salary of $60,000 to father. Father failed to provide detailed and substanti- ated verifi cation of offi ce receipts, expenses and disbursements. Im- puted amount was considered to be equivalent to $83,000 gross salary in Canada considering tax free nature of father's salary in Dubai. Father was ordered to pay $1,200 per month in child sup- port pursuant to Child Support Guidelines. McConnell v. Krisko (Dec. 17, 2010, Ont. S.C.J., Turnbull J., File No. 4216/99-01) 196 A.C.W.S. (3d) 462 (13 pp.). Insurance AUTOMOBILE INSURANCE Section 64.2(2) of SABS allowed claimant to come clean and have income replacement benefits adjusted Respondent was injured and fi led claim for income replace- ment benefi ts. Respondent fi led amended tax return and reported higher income for year in which accident occurred. Re- spondent argued respondent was entitled to have income re- placement benefi ts adjusted to refl ect higher income reported in amended return. Arbitrator found s. 64.1(2) of Statutory Accident Benefi ts Schedule - Ac- cidents on or After November 1, 1996, O. Reg. 403/96, did not permit adjustment based on income that had not been re- ported when it should have ini- tially been reported. Director's delegate overturned arbitrator's decision and found respondent's income as reported in amended return could be included in cal- culation of income replacement benefi ts. Application for judicial review was dismissed. Decision of director's delegate was rea- sonable and correct. Section 64.2(1) penalized claimant who failed to report income. Section 64.2(2) was remedial and al- lowed claimant to come clean and have income replacement benefi ts adjusted. Wawanesa Mutual Insurance Co. v. Uribe (Oct. 29, 2010, Ont. S.C.J. (Div. Ct.), Swinton, Sachs and Nadeau JJ., File No. 113/10) 196 A.C.W.S. (3d) 536 (7 pp.). Landlord And Tenant RESIDENTIAL TENANCIES Tenant was not entitled to return of deposit Landlord informed tenant that tenant's application for tenancy was accepted. Tenant advised tenant would not sign tenancy agreement and requested re- turn of rent deposit. Landlord did not return deposit. Tenant's application for repayment of rent deposit was dismissed. Ap- peal was dismissed. Words "not given" in s. 107(1) of Residential Tenancies Act (Ont.), suggested refusal or inability of landlord to provide premises that triggered obligation to return deposit to prospective tenant. In case it was tenant who refused to take unit that prevented tenant from taking possession and not act of landlord. Tenant was bound by agreement with landlord. Tenant was not entitled to return of de- posit because it was tenant's act of repudiation of agreement that prevented tenant from taking possession. Musilla v. Avcan Management Inc. (Oct. 12, 2010, Ont. S.C.J., Th en R.S.J., Matlow and Swin- ton JJ., File No. 393/09) 196 A.C.W.S. (3d) 554 (6 pp.). Limitations CONTRACT "Redeem" in s. 16(1)(f) of Limitations Act, 2002 (Ont.) related to fulfillment rather than retrieval Respondent repossessed loader from plaintiff . Plaintiff conceded claim for damages was barred by Limitations Act, 2002 (Ont.). Plaintiff argued if agreement was term sale there was no limitation period to have return of loader. Plaintiff 's claim was dismissed as being out of time. Appeal was dismissed. Word "redeem" in s. 16(1)(f) of Act related to fulfi llment rather than retrieval. Redemption here did not mean repossession but rather ability of purchaser to obtain clear title upon payment of outstanding debt. Grant v. Ironco Equipment Sales & Rentals Inc. (Dec. 13, 2010, Ont. S.C.J. (Div. Ct.), Lemon J., File No. DC-10-12-00) 196 A.C.W.S. (3d) 557 (8 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Manslaughter conviction was unreasonable Accused charged with man- slaughter. Accused and friend were alone in a room when a handgun discharged and infl icted fatal chest wound in friend. Ac- CASELAW cused told mother of deceased's child that he and deceased had been examining gun when it ac- cidentally discharged. Th eory of Crown was that accused had unlawfully discharged fi rearm. Crown theory resting on expert evidence that gun was at least 1.4 metres away from wound at time of discharge. At trial expert acknowledged many frailties in this opinion and revised estimate to a distance of 12 inches or more at time of discharge. Accused did not testify and was convicted. Appeal allowed and acquittal entered. After change in expert opinion at trial Crown could no longer establish that gunshot was not self-infl icted and jury's verdict was unreasonable. Accused's si- lence could not be used on appeal to strengthen weak Crown case. R. v. Luu (Nov. 30, 2010, Ont. C.A., Rosenberg, Simmons and Blair JJ.A., File No. C50647) 92 W.C.B. (2d) 7 (16 pp.). Assault COMMON ASSAULT Unsafe to convict based on uncor- roborated evidence of complainant Trial of accused for three counts of assault and for two counts of assault with weapon. Com- plainant was accused's spouse. Off ences were alleged to have been committed between No- vember 2005 and May 2009. Accused acquitted. It would be unsafe to convict accused based on uncorroborated evidence of complainant. Complainant admitted to previous crimes of dishonesty. She also admitted that she stole credit card from her workplace and she used it to purchase gifts. At trial com- plainant admitted that she lied to police during investigations triggered by previous com- plaints by her to police against accused. Complainant lied to welfare offi cials in order to qualify for welfare payments. She also lied under oath at trial. Other aspects of her testimony challenged common sense and were diffi cult to accept as being true. She also acted in fashion that was completely inconsis- tent with allegations against ac- cused. As example, having ob- tained restraining order which prohibited accused from having contact with her, she initiated resumption of intimate rela- tionship with accused immedi- ately after restraining order was made. Since case depended on complainant's evidence Crown did not establish guilt of accused beyond reasonable doubt. R. v. Felix (Jan. 12, 2011, Ont. S.C.J., Murray J., File No. 103/10) 92 W.C.B. (2d) 19 (14 pp.). Mental Illness ADVISORY REVIEW BOARD Review Board overstated physician's opinion Accused found not criminally responsible on charges of mis- chief and breaching recogni- zance. Accused suff ered from schizophrenia exacerbated by use of marijuana. Over course of four years accused's con- dition would improve while www.lawtimesnews.com detained in hospital. When allowed to live in community accused would not take medi- cation and resume use of mari- juana resulting in deterioration in his condition and return to hospital. Accused had never caused physical injury to any- one. Six months before Review Board hearing, treating physi- cian concluded that accused was not signifi cant threat to public. At hearing physician testifi ed that he had changed his mind and risk existed that accused could become violent if discharged absolute. Review Board fi nding that accused would likely cause injury if released and denying absolute discharge. Appeal allowed. Review Board overstated phy- sician's opinion and failed to consider his earlier opinion based on the same evidence that accused was not signifi - cant threat. Totality of evidence could not support conclusion that accused posed signifi cant threat to the public. Absolute discharge was required. R. v. Ferguson (Dec. 1, 2010, Ont. C.A., Doherty, Feldman and Gillese JJ.A., File No. C52106; C49688) 92 W.C.B. (2d) 56 (21 pp.). Sentence PREVENTIVE DETENTION Protection in s. 672.21 of Criminal Code extends to statements made by "accused," not "offender" Accused pleading guilty to PAGE 15 off ences after violent attacks. Accused entering pleas after doctor's assessment concluded he was fi t to stand trial and criminally responsible. Ac- cused refusing to co-operate in further assessment by same doctor to determine if he was dangerous or long-term off end- er. Sentencing judge designat- ing accused dangerous off ender. Sentencing judge relying on psychiatric assessment based on statements accused had co-op- eratively made to doctor prior to entering pleas. Sentencing judge referencing fact accused would be deported to United Kingdom, not amenable to su- pervision if declared long-term off ender. Appeal dismissed. Statements made by accused during fi tness, NCR assessment not "protected statements" pur- suant to s. 672.21 of Criminal Code for purpose of dangerous off ender assessment. Protection extends to statements made by "accused" not "off ender". Ac- cused had consented to making prior statements. Extension of protection would contravene interest in relying on relevant and valuable information in sentencing. Sentencing judge's concerns regarding operation of international prison transfer law not central to decision to make dangerous off ender des- ignation. R. v. P. (S.C.) (Oct. 21, 2010, Ont. C.A., Weiler, MacPher- son and Armstrong JJ.A., File No. C48820) Decision at 76 W.C.B. 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• Cover
• Crown Uproar
• Dollars and Cents
• Focus On Immigration Law