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lAw Times • April 26, 2010 order was made giving mother sole custody. Child's primary residence was to be with mother. Child had stronger emotional ties to mother. Mother sincerely wished to ensure relationship between child and father. It was in child's best interests to live in Singapore with mother provided father had access as promised by mother. Mother was to obtain mirror order from Singapore court after which there would final order that mother have sole custody and mother could move with child to Singapore. Father was to have access that was set out. Hibbert v. Escano (Mar. 9, 2010, Ont. S.C.J., Spies J., File No. FS-09-16478) 185 A.C.W.S. (3d) 950 (43 pp.). Family Law PROPERTY It was when wife told husband that she would no longer do his laundry that she formed clear intention to leave Determination of date of parties' separation for purpose of deter- mining valuation date under s. 4(1) of Family Law Act (Ont.). Parties met in 1977 or 1978 and began to live together in 1980. Parties began sleeping in separate bedrooms in 1996 and parties stopped having sexual relations. Also in 1996, parties' finances separated. Parties took trips together between 1996 and 1999. Husband claimed parties separated after return of trip in 1999 when wife ceased doing laundry for him. Wife claimed that husband had girl- friend as of 1997. Date of valu- ation was determined to be July 1999. When wife told husband that she would no longer do his laundry, it was at that time that wife formed clear intention to leave. Parchment v. Parchment (Mar. 2, 2010, Ont. S.C.J., Spies J., File No. 01-FP-270856FIS) 185 A.C.W.S. (3d) 974 (12 pp.). Professions BARRISTERS AND SOLICITORS Counsel was to be removed and confidential report was to be returned Applicant sought to quash city by-law. Confidential report fell into hands of counsel for appli- cant. City alleged counsel im- properly used report to launch application. City brought mo- tion seeking return of confiden- tial report on grounds report was protected by solicitor-and-client privilege. City argued counsel for should be removed as coun- sel and application should be struck. Confidential report was privileged. It was unacceptable for counsel for applicant to re- tain possession of report for over two years and to use it exten- sively before advising city that counsel had received report. Counsel for applicant had duty to ensure court decided privilege issue in timely way before coun- sel used report. Counsel was to be removed and report was to be returned. Appropriate rem- edy was to strike both notice of application and supporting affi- davit without prejudice to appli- cant's right to commence fresh application. Applicant was to be careful not to advise new coun- sel of as to contents of privileged report. Reasons were edited to remove references to privileged contents of confidential report. Reasons could be released to public. 1784049 Ontario Ltd. v. Toronto (City) (Feb. 24, 2010, Ont. S.C.J., Code J., File No. 06-CV- 320895PD1) 185 A.C.W.S. (3d) 1073 (20 pp.). Trusts And Trustees TYPES OF TRUST There was genuine issue for trial as to whether there was constructive trust Application by plaintiff for summary judgment for moneys owed from sale of fleet trucks against defendant as dealer prin- cipal, president and majority shareholder of delivering dealer. Plaintiff granted partial summa- ry judgment on counterclaim against delivering dealer in re- lated action based on breach of contract for moneys owed from sale of fleet trucks. Claim related to same moneys that were subject of summary judg- ment against delivering dealer. Application dismissed. There was genuine issue for trial as to whether there was constructive trust relating to funds even on basis of findings of fact found by motions judge on motion for summary judgment in related action and on evidence relied upon by plaintiff. Evidence re- garding plaintiff's retention of title until it was paid and defen- dant's admission that under the Protocol, the moneys belonged to plaintiff and that delivering dealer's entitlement to moneys limited to its handling fee not sufficiently clear evidence of in- tention to create trust relation- ship. No discussions between parties concerning placing funds in separate trust account. No reference to trust in agreement or in any of paperwork. Hino Motors Canada Ltd. v. Kell (Mar. 2, 2010, Ont. S.C.J. (Comm. List), Karakatsanis J., File No. CV-09-386063; 10- 8580-00CL) 185 A.C.W.S. (3d) 1100 (7 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Accused did not establish that he was detained Accused was passenger in ve- hicle that was pulled over by police. Vehicle had been driv- ing irregularly and when asked, driver did not have his licence with him. Driver of vehicle was issued three tickets. While police were dealing with driver they ran CPIC search of accused, but nothing of interest came up. Police found knapsack on back seat, beside accused, which contained loaded semi auto- CASELAW matic handgun because portion of handle of gun was sticking out of knapsack. Prescription inhaler with accused's name on it was found inside knapsack. Application dismissed. Accused was delayed total of between 10 and 15 minutes as result of investigation of driver. Officer asked accused to keep his hands on back of driver's seat so that he could see them was routine for officer safety and did not result in finding of detention. Interac- tion between accused and police was brief conversation while he was sitting in back seat. Accused did not establish that he was de- tained. R. v. Johnson (Feb. 22, 2010, Ont. S.C.J., Marrocco J., File No. 0173/09) 86 W.C.B. (2d) 955 (9 pp.). Extradition And Fugitive Offenders BAIL Fugitive to be released on bail pending extradition hearing United States sought fugitive's extradition on charge of custo- dial interference wherein it was alleged that he took his daughter to Canada without knowledge or consent of his common-law spouse. Fugitive was not ordi- narily resident in Canada and therefore faced reverse onus for bail purposes. Allegedly fugitive refused to inform child's moth- er where he was residing with child and threatened to flee to his native Guyana if victim tried to retrieve child. Child had been sent back to United States after fugitive was arrested. Fugitive had no criminal record. Fugitive had two proposed sureties who had significant financial assets in jurisdiction and who agreed to provide 24-hour supervision to fugitive. Fugitive agreed to surrender all of his travel docu- ments. Fugitive to be released on bail on terms pending his ex- tradition hearing. Fugitive dem- onstrated he was serious about defending charge in United States, having retained counsel there and posted $5,000 for bail bond. Court was troubled with aspects of case against fugitive. There were no grounds to deny fugitive bail. Mandall v. United States of Amer- ica (Feb. 22, 2010, Ont. S.C.J., Thorburn J., File No. 29/10) 86 W.C.B. (2d) 970 (10 pp.). Search And Seizure FORFEITURE Imposing forfeiture order in full amount against principal of modest financial means not in public interest Crown applied for forfeiture order against two individuals who were principal and surety on recognizance of bail. Surety pledged $100,000 without de- posit and Crown sought forfei- ture in full amount. Principal, who had been arrested due to his alleged participation in marijuana grow operation, was surrendered into custody when his original surety requested re- vocation. Surety came forward as proposed surety in principal's second bail hearing wherein he was released under terms requir- www.lawtimesnews.com ing him to stay at his surety's residence. Principal was stopped by police while operating his motor vehicle and was charged with breach of recognizance by breaching curfew and taken into custody before being sentenced and released. $10,000 forfeiture order granted against both prin- cipal and surety. Breach, where- in principal claimed to have been retrieving belongings from old residence and returning landlord his keys, was at lower end of spectrum. Imposing forfeiture order in full amount against principal, who was of modest financial means, would not have been in public interest. Surety failed to comply with his own plan in that he did not call principal's employer regularly and did not call principal when he was at home. Failure to take those steps was fatal to surety's position on forfeiture. Com- plete forfeiture was not appro- priate as surety did not totally ignore his obligations but mere- ly failed to adequately supervise principal. Financial changes in circumstances of surety and his family had to be taken into ac- count as his income had been reduced due to matters beyond his control. R. v. Li (Feb. 19, 2010, Ont. S.C.J., Gordon J., File No. F6685) 86 W.C.B. (2d) 986 (25 pp.). Young Persons SENTENCE Accused sentenced to 12-month custody and supervision order pAge 19 and probation for robbery and weapons offences Accused sentenced to 12 month custody and supervision order to be followed by one year of probation after on day of trial he pleaded guilty to robbery while armed with sawed off shotgun, possession of firearm without being holder of licence and careless transportation of firearm. First eight months were to be served in open cus- tody followed by four months of community supervision. Court found robbery was seri- ous violent offence. Accused had already been on house ar- rest for almost two years with- out incident. Accused and two of his cousins arranged to sell $1,000 worth of marijuana to victim but in reality were plan- ning to rob him. Accused sat in back seat of car with sawed off shotgun and brandished it at victim during robbery. After victim was robbed he followed robbers' car. Accused's car fled and got into accident. Police were on scene and caught ac- cused as he tried to run. Police retrieved marijuana and sawed of shotgun, which was real but unloaded. Robbery occurred eight days before accused turned 18. Accused had prior criminal record for dangerous driving. Accused had very positive pre- sentence report but court found it too reliant on self-reporting. Court accepted that accused was remorseful. R. v. P. (D.) (Mar. 9, 2010, Ont. C.J., Borenstein J.) 86 W.C.B. (2d) 1014 (9 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. 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