Law Times

Law Times • June 29/JuLy 6, 2009 was in best interests of children. There was no genuine issue for trial. Applicant's evidence sup- ported respondent's position. There was no possibility grand- mother's claim could succeed. It was equally inevitable court would grant restraining order. Grandmother was entitled to send Christmas and birthday cards. Mother was to send grandmother copies of children's school report cards and recent photograph of children. MacDonald v. MacDonald (Apr. 6, 2009, Ont. S.C.J. (Fam. Ct.), Pazaratz J., File No. F529/08) Order No. 009/098/035 (22 pp.). SUPPORT Third motion to vary temporary support order was dismissed Parties shared custody of two children. Order required father to pay child support of $1,896 per month based on income of $180,367 per year for father and $30,839 per year for moth- er. Order required father to pay spousal support of $1,200 per month. Father claimed total earnings in 2008 were $69,700 exclusive of severance payment into R.R.S.P.. Father did not make complete and frank finan- cial disclosure previously. Father brought motion to vary order. It was father's third motion to vary temporary support order. Father was unsuccessful two previous times. Trial was to begin in three months. Motion was dismissed. Father did not establish interim order would be varied before trial. Trial was better forum to determine father's true financial circumstances. Father was to file new financial statement before settlement conference. Zanewycz v. Manryk (Mar. 6, 2009, Ont. S.C.J., Shaw J., File No. FS-06-0384) Order No. 009/119/001 (14 pp.). Injunctions INTERLOCUTORY RELIEF No merit to suggestion that Six Nations people had right to ownership of property Plaintiff owned property. Plaintiff sought to restrain defendants from entering prop- erty and from interfering with plaintiff's construction of resi- dential subdivision on property. Defendants argued property was subject of ongoing dis- pute between Six Nations and federal and provincial govern- ments. Defendants argued they had interest in property and were bound by aboriginal law to protect property. Plaintiff 's motion for injunction was allowed. There was no merit to suggestion Six Nations peo- ple had right to ownership of property. There was aboriginal claim for compensation for loss of usufructuary right regarding property. Plaintiff had strong case to show plaintiff was legal owner of property. Suggestion injunction could not be granted because Crown failed to con- sult with aboriginal people had no merit. Actions of defendant amounted to civil and crimi- nal misconduct. Plaintiff estab- lished there was serious issue to be tried and strong prima facie case. It was probable plaintiff would suffer irreparable damage to reputation as builder. Balance of convenience favoured plain- tiff. Plaintiff was declared owner of property and was entitled to exclusive possession of property. John Voortman & Associates Ltd. v. Haudenosaunee Confederacy Chiefs Council (Apr. 3, 2009, Ont. S.C.J., Henderson J., File No. 09/8301) Order No. 009/097/030 (23 pp.). Limitations DIVORCE No limitation in Divorce Act (Can.) for former spouse to apply for spousal support Applicant sought to vary Decree Nisi issued in 1976, which was silent with respect to corollary relief. She now sought spou- sal support, arrears of support accumulated pursuant to pro- visional order of October 21, 1971, compensation for eco- nomic disadvantage sustained as result of her role during marriage and suffered in break- down of marriage and damages for marital abuse. Respondent's motion for dismissal of applica- tion was dismissed. There was no limitation under Divorce Act (Can.) ("DA"), for former spouse to apply for order of spousal support. Courts have held that neither laches nor passage of time barred claim for spousal support. Limitation periods in Limitations Act, 2002 (Ont.), do not apply to claim for spousal support. Application was entitled to make claim for spousal support under DA and was not barred from doing so by virtue of record of past provincial court orders. This was not case where summary judgment was avail- able or appropriate. Desmoulin v. Paul (Mar. 10, 2009, Ont. S.C.J., Smith J., File No. FS-08-0149) Order No. 009/119/025 (11 pp.). Motor Vehicles USED CAR DEALERS Appeal from decision directing Registrar to carry out proposal to refuse registration was dismissed Appeal from decision of Licence Appeal Tribunal directing Registrar under Motor Vehicle Dealers Act (Ont.), to carry out proposal to refuse registration to appellant. Registrar proposed to refuse appellant's application for registration as motor vehicle salesperson on ground that past conduct afforded reasonable grounds for belief that appellant would not carry on business in accordance with law, honesty and integrity. Ontario Securities Commission had five years earlier banned appellant from trading in securities for twenty years as result of illegally selling securities, failing to deal fairly and in the best interest of client and making false and mislead- ing statements to clients. Appeal dismissed. Tribunal entitled to weigh past conduct, present attitude and character witnesses and decision not unreasonable. Goselin v. Ontario (Motor Vehicle Dealers Act, Registrar) CASELAW (Mar. 31, 2009, Ont. S.C.J. (Div. Ct.), Swinton, Low and Karakatsanis JJ., File No. 363/08) Order No. 009/103/078 (4 pp.). ONTARIO CRIMINAL CASES Breathalyzer TIME ELEMENT Trial judge did not err in concluding that samples were taken reasonably promptly Accused appealed conviction for "over 80". Accused failed roadside test and was arrested at 2:43 a.m.. Officers and accused arrived at police station at 2:58 a.m.. Accused booked into sta- tion which took between six and ten minutes. Breathalyzer tests administered at 4:05 a.m. and 4:24 a.m.. After booking process, several attempts made to contact counsel on behalf of accused. Accused had requested specific lawyer. Breathalyzer technician saw accused in privacy booth at police station at 3:50 a.m.. Trial judge held that only reasonable inference to be drawn from tech- nician's observation of accused in privacy booth was that he was in booth for purpose of consult- ing with counsel. Accused argued trial judge erred in finding that breath tests were taken as soon as practicable within meaning of s. 258(1)(c)(ii) of Criminal Code. Appeal dismissed. Trial judge acknowledged that direct evidence of what occurred dur- ing period between 3:10 a.m. and 3:58 a.m. was rather sketchy but was prepared to find that police were assisting accused in attempt to contact his lawyer. Trial judge entitled to infer that when accused was spotted in pri- vacy booth he was engaged in efforts to contact counsel. Trial judge not required to entertain conjectural possibilities with no evidentiary foundation. Trial judge made reasonable findings of fact and drew reasonable infer- ences from totality of evidence. Applying governing authorities to facts, trial judge did not err in concluding that samples were taken reasonably promptly and actions of officers in meantime were reasonable. R. v. Torsney (May 6, 2009, Ont. S.C.J., Trotter J., File No. 84/08) Order No. 009/131/022 (6 pp.). Charter Of Rights RIGHT TO COUNSEL Crown did not establish that accused would not have acted differently if rights to counsel had been fully respected Accused charged with dangerous driving causing death and two counts of dangerous driving caus- ing bodily harm. Crown main- tained accused and his cousin were racing at the time of the accident. Accused's cousin lost control of his vehicle and died in the collision and seriously injured the driver and passenger of an approaching vehicle. Accused was not physically involved in www.lawtimesnews.com the collision and initially left the scene. Accused returned and after some conversation with police was detained and initially arrest- ed for street racing and impaired driving. After providing a road- side statement to police and another in the interview room at the police station accused was charged with the dangerous driv- ing counts. Statement at police detachment excluded from evi- dence. Statement at detachment was given before accused was arrested for dangerous driving. Given the new charges of dan- gerous driving, the police were obligated to re-inform accused of his rights to counsel. Officer may not have been able to prevent accused from starting to speak, but he could have stopped him from continuing to speak about the accident before he had been given his rights to counsel in relation to the charges of dan- gerous driving. Crown had not established that accused would not have acted differently had his rights to counsel been fully respected. Officer obtained state- ment immediately after accused had been notified of his cousin's death and while he was overcome with grief. R. v. Kippax (Apr. 28, 2009, Ont. S.C.J., Baltman J., File No. CR-07-1969) Order No. 009/120/070 (69 pp.). Evidence WITNESSES Officer could use notes to refresh memory Ruling regarding the qualifica- tion of the notes of the attend- ing police officer during the PAGE 19 speeding trial of the accused. Officer wrote his notes at the time of the alleged offence or shortly thereafter. He kept no copies of his notes. He did not keep a copy of the Enforcement Agency Record which was the third portion of the snap set form used when a person was charged under Part I of the Provincial Offences Act (Ont.). Set also contained a Certificate of Offence and a Provincial Offences Notice. Notes were out of the officer's control from the time he filed them at the police station until he saw them again in Court. Officer testified that when shown the notes in Court he recognized them as his own and there were no addi- tions or deletions to them since they were made. He also testi- fied he had an independent rec- ollection of the events that sur- rounded the traffic stop. Court found there was no requirement for a police officer or any other witness to maintain personal control over his or her notes or any other instruments or stim- uli used to refresh a memory. Court was satisfied by the offi- cer's evidence that his memory of the events surrounding this matter would be refreshed by his use of the notes which were made contemporaneously with the incident. These conditions met the required tests as con- tained in the authorities. Notes were properly qualified and the officer could use them to refresh his memory. R. v. Gadzo (Mar. 12, 2009, Ont. C.J., Cuthbertson J., File No. 76145989) Order No. 009/092/148 (7 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. 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