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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Bankruptcy And Insolvency DISCHARGE Husband released from equalization claim by bankruptcy and discharge Parties married in 1980, sepa- rated in 1999 and fi led for divorce in 2000. Husband re- mained living on family farm, registered in his name alone. Parties consented to accounting and valuation of assets but prior to valuation, husband made as- signment in bankruptcy. Wife not listed as creditor and re- ceived no notice of assignment. After husband discharged, mas- ter proceeded with valuation and concluded that wife en- titled to equalization payment. Master's report did not address eff ect of husband's bankruptcy and discharge on wife's equal- ization claim. Court of Ap- peal upheld master's report but found that wife's equalization claim provable in bankruptcy and extinguished by discharge. Appeal to Supreme Court of Canada dismissed. Manitoba remains equalization jurisdic- tion. Equalization scheme based on principle of equal division of value of family assets after process of accounting and valu- ation. Debtor spouse retains own property but must make equalization payment if spous- es did not own assets of equal value. Proprietary interests not granted until stage of payment of equalization claim. Under Family Property Act (Man.) ("FPA"), equalization claim is debt owed by one spouse to other. Court of Appeal properly treated wife's claim as debt. In- terpretation of Bankruptcy and Insolvency Act (Can.) ("BIA"), requires acceptance of principle that every claim swept into bankruptcy and that bankrupt released from all of them upon being discharged unless law sets out clear exclusion or exemp- tion. Parliament has not accord- ed any preferred or secured po- sition to claim for equalization payment. Provable claim under BIA includes all debts and li- abilities that exist at time of bankruptcy. Right to payment existed from time of separation and hence existed at time of bankruptcy. All that remained was to determine quantum by applying clear formula that left little scope for judicial discre- tion. Wife's claim determinable under FPA and provable under BIA. Husband released from equalization claim by bank- ruptcy and discharge. Schreyer v. Schreyer (July 14, 2011, S.C.C., McLachlin C.J.C., Binnie, Deschamps, Abella, Rothstein and Crom- well JJ., File No. 33443) Deci- sion at 179 A.C.W.S. (3d) 872, 84 W.C.B. (2d) 770 was af- fi rmed. 203 A.C.W.S. (3d) 794 (40 pp.). FEDERAL COURT Immigration PERSON IN NEED OF PROTECTION Board under obligation to explain why it had ignored evidence which corroborated applicants' allegations Applicants were a family from Mexico. Father had fi led com- plaint against two police offi - cers in Mexico who he claimed had threatened him and at- tempted to murder him. One of the police offi cers then raped his daughter. Family fl ed to Canada. Refugee claim was dis- missed as it was found that they had internal fl ight alternative. Applicants brought present ap- plication for judicial review. Ap- plication allowed. Board failed to explain why it did not accept the pertinent evidence which fully supported the applicants' arguments. Board was under an obligation to explain why it had ignored evidence which cor- roborated the applicants' allega- tions. Th is omission constituted reviewable error. Yanez v. Canada (Minister of Citizenship and Immigration) (July 4, 2011, F.C., Lemieux J., File No. IMM-5539-10) Rea- sons in French. 203 A.C.W.S. (3d) 815 (6 pp.). Parole POWERS OF PAROLE BOARD Non-imposition of duration of condition should be interpreted as imposed throughout duration of parole Petitioner sought revision of decision of board that imposed conditions for release on parole. Petitioner was sentenced to eight years in jail for four counts of sexual assault on victims aged six to nineteen. Petitioner OctOber 3, 2011 • Law times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. claimed that residence assign- ment was incompatible with his history and that board failed to establish duration of condi- tion. Application not allowed. Court affi rmed that conditions imposed were compatible with gravity of crime committed, age of victims and his attitude to minimize conduct. Court ruled that non-imposition of dura- tion of condition was allowed with jurisprudence and should be interpreted as imposed throughout duration of parole. Ross v. Canada (Procureur gen- eral) (July 6, 2011, F.C., Scott J., File No. T-1954-10) Reasons in French. 95 W.C.B. (2d) 517 (18 pp.). ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Accused's evidence non-responsive, self-serving, confusing, discursive and inconsistent Accused charged with assault, uttering death threats and forc- ible confi nement stemming from incident with his then wife. Allegedly, after an argument, accused punched complain- ant in the head and when she informed him of her intention to phone police, made remarks to the eff ect that he would bring her back to Afghanistan where he could deal with her without any legal consequences. Com- plainant, with assistance of bed sheets, left apartment by climb- ing down from the balcony. Accused found guilty of assault and uttering death threats, not guilty of forcible confi nement. Court found accused's evidence to be non-responsive, self- serving, confusing, discursive and inconsistent and likewise found testimony from other defence witnesses wholly unbe- lievable or of little value. Court accepted testimony of the man who drove complainant to po- lice station as a wholly unbiased witness whose testimony was consistent and uncontradicted. Court accepted complainant's testimony. Case for forcible confi nement not made out. R. v. Wardak (June 9, 2011, Ont. C.J., Wright J., File No. 998-11-04214-00) 95 W.C.B. (2d) 468 (12 pp.). Charter Of Rights www.lawtimesnews.com RIGHT TO COUNSEL Accused's circumstances and jeopardy never changed from time of arrest to time of interview Accused charged with three counts of arson and two counts of mischief. Accused applied to exclude evidence based on breach of s. 10(b) Charter rights. Accused was arrested after police searched his com- puter. Police were aware that accused's parents were forbid- ding their interviewing of any of their children without either their presence, or that of coun- sel retained by them. Accused spoke to counsel following his arrest. Application dismissed. No evidence that counsel was dissatisfi ed with contact he had with accused. No concern ex- pressed by accused during his interview that he needed more time, was dissatisfi ed in any way with advice received, or wished to speak to counsel again. While only 18 years and 2 months at time of his arrest, accused was considered adult and his par- ents were not in position to de- mand that his lawyer be present during interview. Accused's cir- cumstances and jeopardy never changed from time of his arrest to time of interview and no sub- sequent right or access to coun- sel was mandated. No breach of accused's rights. R. v. Gander (June 6, 2011, Ont. S.C.J., Th omas J., File No. CR-10-00002703-00MO) 95 W.C.B. (2d) 495 (15 pp.). Contempt Of Court GROUNDS Mother sentenced to probation of six months Motion by husband for order for contempt against mother for failure to comply with ac- cess orders. Parties married in 1998, had three children and separated in 2008. Follow- ing separation, children lived primarily with mother. Parties entered into minutes of settle- ment providing that mother have custody of children and father have substantial access, equivalent to 40% of residential time. Motion granted. Mother was sentenced to period of pro- bation of six months during which time she was to comply with all terms of newly specifi ed custody and access order, in- cluding provision that mother not speak negatively about fa- ther in children's presence, or allow any other person to speak negatively about father in chil- dren's presence. When mother was faced with order, she chose to participate in course of con- duct that increased children's ir- rational anxiety and fear about their father. Complication that prevented access occurring with mother's belief that transferred to children that father was abu- sive father who must be feared. Fiorito v. Wiggins (June 27, 2011, Ont. S.C.J., Harper J., File No. FS-08-00007251) 95 W.C.B. (2d) 487 (50 pp.). Sentence ARSON Accused was first-time adult offender and had substantial youth record Sentencing of accused after he pleaded guilty to one count of break and enter, two counts of mischief, two counts of theft and one count of arson. Ac- cused committed break and en- ter as a young person and other off ences as an adult. Charges and circumstances of crimes were very serious. Accused was fi rst time youthful adult off end- er and he had substantial youth record. Accused was 21-years old. He was a troubled and dis- turbed youthful off ender who had mental health issues and who suff ered from substance abuse. Accused was on strict bail terms and he resided with his mother. He was unemployed, did not attend school and he was subject to extremely strin- gent curfew terms. Conditional sentence was inappropriate and would not properly address ap- plicable sentencing principles. Proper global sentence was 18 months' custody, in addition of time served of eight days, to be followed by two years of proba- tion. During probation he had to perform 100 hours of com- munity service within fi rst 15 months of probation. Accused also had to provide DNA sam- ple. R. v. Coleman (June 13, 2011, Ont. C.J., Hearn J., File No. 10-2512; 10-2511; 10-2566; 10-1805; Y300-11) 95 W.C.B. (2d) 526 (13 pp.). ASSAULT Court found accused in breach of trust and did not accept that he was remorseful Accused, a correctional offi cer, sentenced to 60 days' incar- ceration after he pleaded guilty to charge of assaulting inmate. Accused was removing victim from his cell pursuant to inves- tigation by correctional offi cers into contraband cigarette or marijuana smoke coming from

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