Law Times

Law Times • November 8, 2010 (Aug. 27, 210, Ont. S.C.J., Pattillo J., File No. 31-262569) 192 A.C.W.S. (3d) 821 (26 pp.). Family Law CUSTODY Father to have sole custody of children Parties had four children. Par- ties had high-confl ict relation- ship. Children enjoyed week- about regime. Children were accustomed to spending a lot of time with paternal grandpar- ents. Mother wished to move to diff erent province with chil- dren and new husband. Moth- er's new husband was subject of criminal charges. Th ere were allegations of sexual deviation against new husband. Court was concerned mother would be unable to distance herself from new husband's diffi cul- ties. Father was to have sole custody of children. Mother was to have week-about access should mother decide to stay in children's school catchment. Mother's partner was not al- lowed to be alone with children until testing and further assess- ment confi rmed there was no danger. If mother relocated, mother would be entitled to ac- cess set out. M.-D. (N.) v. M. (J.) (Aug. 3, 2010, Ont. C.J., Duchesneau- McLachlan J., File No. FC 424-04) 192 A.C.W.S. (3d) 875 (12 pp.). PROPERTY Money held in court to be paid to defendant to satisfy outstanding obligations from matrimonial litigation Order froze funds paid into court in fi rst action between company and O.. In second proceeding between O. and M. both claim entitlement to funds in fi rst action. O. claimed com- pany and M. were same and money in court should be ap- plied to satisfy M.'s outstanding debt to O.. M. owned company and order prohibited M. from depleting property including company. Alleged transfer of shares in company by M. was nullity because of order. Money held in court was to be paid to O. to satisfy M.'s outstanding obligations resulting from mat- rimonial litigation. Th ere was no reason to change conclusion M. and company were same. If there was money left after equalization payment, it was to be applied to reduce M.'s out- standing costs obligations. No money was to be paid to M. or company without specifi c au- thorization from court. Zoned Use Properties Inc. v. Okel (Sep. 8, 2010, Ont. S.C.J., Murray J., File No. 7087/07) 192 A.C.W.S. (3d) 899 (13 pp.). Torts ASSAULT AND BATTERY Degree of force used by correction officers disproportionate in circumstances Plaintiff brought action for damages for injuries plain- tiff sustained in assault that occurred while plaintiff was inmate in detention facility. Plaintiff sustained break to right humerus in accident involving plaintiff and two correctional offi cers. Action was allowed. Plaintiff was awarded $50,000. Assault on plaintiff was not jus- tifi ed. Defendants were liable in damages. Degree of force used was disproportionate in circumstances. Offi cers availed themselves of no other option except to bend over plaintiff and forcefully place plaintiff 's arms behind plaintiff 's back. Defendants failed to show it was reasonable to use force. Bevan v. Ontario (July 2, 2010, Ont. S.C.J., Allen J., File No. 06-CV-312396PD2) 192 A.C.W.S. (3d) 1032 (17 pp.). Trusts And Trustees TRUSTEES Appointment of children to act as estate trustees should continue Husband died leaving will. Will named wife as executrix and trustee and two children of husband from former marriage as alternate executors and trust- ees. Wife made election to re- ceive equalization of net family property. Wife brought motion seeking relief including deter- mination of as to appointment of trustee of estate of husband. Wife argued children of hus- band were adverse in interest to wife and relationship with chil- dren was acrimonious such that children should not be named as estate trustees. Children alleged that court should not interfere with wishes of husband as testa- tor. Motions judge decided that appointment of children to act as estate trustees should con- tinue. Judge agreed that wife had no entitlement under will due to fact that wife had made election to seek equalization of net family property. While par- ties may be adverse in interest children as estate trustees were obliged to follow terms of will to carry out duties and obliga- tions. Children as estate trustees were reminded to act fairly with wife in carrying out duties. Weatherdon-Oliver v. Oliver Estate (Aug. 30, 2010, Ont. S.C.J., Kershman J., File No. FC-09-2023) 192 A.C.W.S. (3d) 1037 (20 pp.). ONTARIO CRIMINAL CASES Charter Of Rights FREEDOM OF RELIGION Not plain that probation term prohibiting accused's attendance at particular church breached s. 2(a) of Charter Accused applied to delete term of probation order which pro- hibited him from attending par- ticular church. Accused argued that term breached his freedom of religion under s. 2(a) of Char- ter. Order was made pursuant to family court proceedings to restrain accused from attending church frequented by his wife and their children. Accused had criminal record which included CASELAW four convictions for criminal harassment, three of which re- lated to his former wife and her family. Application dismissed. No evidence that there was any change in circumstance that would justify deleting condi- tion and application dismissed on that basis. It was not plain that probation term prohibit- ing accused's attendance at one church location breached his s. 2(a) Charter right. Th is was not only location in area in which he could practice his religion. If order and probation term did restrict accused's freedom of re- ligion, restriction was minimal and reasonable limit on that right. R. v. Riad (Sep. 17, 2010, Ont. C.J., Kenkel J.) 90 W.C.B. (2d) 149 (2 pp.). TRIAL WITHIN REASONABLE TIME Application for stay dismissed where s. 11(b) used more as offensive weapon than defensive shield Application by accused to stay criminal charges against him because he was not tried within reasonable period of time, con- trary to s. 11(b) of Canadian Charter of Rights and Free- doms. Accused was charged on May 4, 2008 with impaired driving and driving with blood alcohol level of more than 80. Length of delay between swear- ing Information and conclusion of trial was one year and 313 days. First trial date set for Au- gust 17, 2009 did not proceed. Trial was adjourned because CD of relevant disclosure was not received until late morning of August 14. New trial date was set for March 25, 2010. Application dismissed. Trial de- lay was neutral time because it was caused by both accused and Crown. Institutional delay was six and half months, which was well within limit. If this was er- ror combined institutional and Crown delay was 12 and half to 14 months. Court found that since accused was not preju- diced by delay 14-month de- lay was acceptable. Absence of prejudice allowed guideline to move upward. Th is was case where s. 11(b) was used more as off ensive weapon than as de- fensive shield. Accused showed little interest in having trial within reasonable time. Breach of s. 11(b) was not established. R. v. Eadie (Sep. 13, 2010, Ont. C.J., Keast J., File No. 08-204) 90 W.C.B. (2d) 95 (23 pp.). Sentence DRUG OFFENCES Sentences for doda-related offences should generally be harsher than those imposed for soft drugs Accused sentenced to 74 days' intermittent imprisonment, in addition to 16 days pre-sen- tence custody, following guilty plea to one count of traffi cking in opium and 20-month-con- ditional sentence, consecutive, for possession of crushed opi- um poppy pod for purpose of traffi cking. Joint submission by counsel. Accused sold opium three times to undercover offi - cers. Months after accused was www.lawtimesnews.com released on bail, police executed search warrant at his store and seized over 3 kg of doda. Ac- cused was 44-years old and had no criminal record. Accused had no addictions or other non-greed reasons to sell doda. Accused was known within his Punjabi community to have been arrested and charged and, given publicity that case had received, community members would know of arrest, convic- tion and sentence. Th is was fi rst doda sentencing in region in which evidence was called. Sen- tences for doda-related off ences should generally be harsher than those imposed for soft drugs and closer to those imposed for cocaine than for marijuana of- fences. Joint recommendation was appropriate. House arrest for fi rst six months of condi- tional sentence and curfew for next seven months. Weapons prohibitions, DNA order. R. v. Bhangal (Sep. 13, 2010, Ont. S.C.J., Durno J., File No. 3653/09; 124/10) 90 W.C.B. (2d) 142 (24 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Insufficient evidence that accused in care or control of car when officer arrived Accused charged with care or control "over 80." Accused applied for directed verdict of acquittal. Offi cer attended single car accident and saw ac- cused standing beside vehicle. No evidence as to whether engine was running, whether PAGE 15 lights were on, whether car was in gear, location of keys, when accident occurred, who drove car, or who owned car. Offi cer did not see accused enter car or do anything to it or to its fi xings. Offi cer waited 27 minutes from time that he formed reasonable and prob- able grounds to make breath demand. Accused argued there was not suffi cient evidence of care or control. Accused ar- gued there was not suffi cient evidence that breath demand was made as soon as practicable and that Crown could not rely on presumption that accused's blood-alcohol concentration was same at time of driving as at time he took breath tests. Application allowed, acquittal entered. Th ere was not suffi - cient evidence that accused was in care or control of car when offi cer arrived. Crown, at most, adduced evidence that accused was in mere custody of car, only casting suspicion that he was in care or control of it. Evi- dence did not even prove prima facie case. If decision on care and control was wrong, direct verdict would not have been granted on second ground. Once accused acceded to offi - cer's breath demand and gave breath samples, absent success- ful application under Canadi- an Charter of Rights and Free- doms, results were admissible even if demand was not made as soon as practicable. R. v. Harizanov (Sep. 21, 2010, Ont. C.J., Bovard J., File No. 10007685-00) 90 W.C.B. (2d) 160 (21 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business

• Cover
• Revising Retainers
• Victim Impacts
• Focus On Family Law