Law Times

lAw Times • April 23, 2012 Family Law CUSTODY Mother attempted to Parties cohabited for ten years and had three children. Parties lived separate and apart in home with children. Father' undermine father's fitness to have custody of children $85,988 per year. Mother remained home to care for children. Mother assaulted father and threatened to kill father. Mother moved out of home. Mother had access to chil- dren. Father would not allow access unless it was supervised. Father alleged mother had drinking prob- lem. Society was involved. Both mother and father brought motions for interim relief in nature of cus- tody and access. Father was to have sole custody of children. Mother abdicated important decision- making responsibility to father. Children were doing well at school under father' s income was ness to have custody of children and manipulated one of children to par- ticipate in schemes. Mother appar- ently treated children inequitably. Mother was attempting to alienate children from father. Mother did not fully appreciate consequences of mother' would have difficulty with father in arriving at decisions that were in best interests of children. Mother attempted to undermine father' s direction. Mother s fit- CASELAW brought motion for order dismiss- ing application for judicial review on ground it was moot. Motion was dismissed. Question of future legal effect of board' event of return to conciliation/ strike as dispute resolution mech- anism need not be finally decided on motion. It was sufficient s decision in conclude that respondent failed to answer submission of appli- cant and so failed to establish that board decision would not in future affect legal rights of parties. Respondent failed to show there was no live controversy between parties. P.I.P.S.C. to Inspection Agency (Jan. 20, 2012, F.C.A., Dawson J.A., File No. A-117-11) 210 A.C.W.S. (3d) 814 (10 pp.). v. Canadian Food FEDERAL COURT Citizenship GENERAL Counsellor erred by not noting dis- drinking problem. Mother was to have access as set out. Access order was to remain in place for minimum of six months assuming no further incidents or breaches of terms of order. Parties could then work out mutually convenient shared parenting arrangement for remainder of interim order. Mother was not entitled to child support. Mother was entitled to spousal sup- port. Interim spousal support was fixed at $800 per month. Income of $17,500 was imputed to mother at time shared parenting was to be implemented. Once shared parent- ing commenced mother was to receive combined interim monthly child and spousal support of $1,500. There was no basis for Conseil sco- laire to be joined as party to motion. Filiatrault v. Briere (Jan. 27, 2012, Ont. S.C.J., Annis J., File No. FC-11- 2465) 210 A.C.W.S. (3d) 950 (22 pp.). FEDERAL COURT OF APPEAL Administrative Law Applicant was certified as bar- gaining agent representing VM Group employed by respondent. Parties were in negotiations for conclusion of essential services agreement ("ESA") for VM Group. Applicant applied to board for determination of matters relat- ing to ESA for VM Group. Board made order determining that respondent' JUDICIAL REVIEW Respondent failed to show there was no live controversy between parties would include provision for ser- vices it found necessary for safety of public. Applicant sought to set aside decision. VM Group changed s ESA with applicant method from conciliation/strike to arbitration. Existing collective agreement expired. Respondent dispute resolution s actions. Mother had citizenship on basis that adoption by aunt did not create genuine rela- tionship of parent and child and was entered into primarily for pur- pose of acquiring status or privilege in relation to immigration or citi- zenship. Child' s application for Canadian she was infant and she had not lived with father since she was 18 months old. Adoption in full com- pliance with Nigerian law and with approval of authorities in British Columbia. Counsellor concluded that father had not truly severed his parenting relationship to his daughter and considered himself to be a father figure and capable of financially and emotionally sup- porting her. Application allowed. Ambiguity between English and French versions of s. 5.1 of Citizenship Regulations (Can.), in that legal ties are not the same as all ties. More restrictive wording of English version must be favoured. Regulation did not call upon father to sever all social ties with child. Father no longer had any legal obli- gations under Nigerian law towards child. Minister' s mother died when biological father to maintain rela- tionship with child, particularly if that child has been adopted by a relative. Either counsellor erred in law by not noting distinction between English and French ver- sions of regulation or failed to give adequate reasons by not distin- guishing Operation Bulletin 183. Counsellor under duty to explain why Operation Bulletin not relied on as bulletin would likely have led to different conclusion. Adejumo v. Canada (Minister of Citizenship and Immigration) (Dec. 16, 2011, F.C., Harrington J., File No. T-955-11) 210 A.C.W.S. (3d) 834 (9 pp.). s Guidelines allow Evidence Appeal by prison inmate from deci- CROSS-EXAMINATION Questions were improper attempt to conduct wide-range discovery Application for judicial review of decision by immigration counsel- lor at Citizenship and Immigration Canada dismissing ten-year-old child' tinction between English and French versions of regulation sion of prothonotary who struck applicant' cross-examination of deponent's s written questions in his affidavit. Applicant applied for judi- cial review of what he perceived to be systemic failure of Correctional Service of Canada to deal with inmate grievances in expeditious manner. Corrections filed affida- vit that was subject of this appeal, from its Director General of Rights, Redress and Resolution. It refused to answer and it then brought its application. Prothonotary decided that questions posed were improper attempt to conduct wide-range dis- covery and to convert his applica- tion for judicial review into forum to assess effectiveness of action plan that was implemented to deal with delay. Questions were not legally relevant. Appeal dismissed. Court agreed with prothonotary' ment of questions. Prothonotary's s assess- decision was discretionary in nature. Court could not exercise discretion de novo because ques- tions raised were not vital to final issue in this case. Decision was not clearly wrong for exercise of discre- tion was not based upon wrong principle or upon misapprehension of facts. Court, however, noted that record was incomplete. It would be up to applications judge, after record was complete, to determine what was to be done with affidavit. Spidel v. Canada (Attorney General) (Dec. 12, 2011, F.C., Harrington J., File No. T-875-11) 99 W.C.B. (2d) 4 (8 pp.). CRIMINAL CASES Assault ONTARIO Accused charged with assault, assault causing bodily harm, and mischief. Bouncer tried to eject intoxicated accused from bar. Accused grabbed bouncer and they fell to floor. Bouncer testified accused pushed his thumb into bouncer' ASSAULT CAUSING BODILY HARM Witnesses truthful but testimony viewed with caution because they were intoxicated force. Bouncer denied that he was on top of accused and that accused acted in self-defence. Bouncer tes- tified he was taken to hospital and treated for torn cornea. Accused charged at glass door demand- ing to be let back in to bar, and caused it to shatter. After accused stepped inside he was grabbed by bartender, who testified that accused choked him until oth- ers intervened. Defence witnesses testified accused was involved in altercations but did not commit alleged acts. Accused found guilty of assault causing bodily harm and mischief, not guilty of assault. Defence witnesses were truthful but their testimony was viewed with caution because they were intoxicated. Defence evidence did not raise reasonable doubt. Court was not troubled by minor incon- sistencies in Crown' s right eye with extreme and could not act upon alternate explanations offered by accused. Evidence of Crown witnesses was credible and reliable and court accepted their version of events. Bouncer acted properly and with restraint and attack upon him was not in self-defence or otherwise s evidence www.lawtimesnews.com justified. Accused was criminally responsible for smashing glass window. Fact that bouncer was told he was treated for torn cor- nea did not mean he had that condition. Bouncer' more than trifling and constituted bodily harm. There was insuffi- cient evidence to prove that con- frontation between accused and bartender was more than con- sent s injuries were accused and bartender was not clear and court was not prepared to find that accused was guilty of assaulting him. R. v. Winter (Dec. 21, 2011, Ont. C.J., De Filippis J., File No. 998 10 16374) 99 W.C.B. (2d) 12 (11 pp.). fight. Altercation between Charter of Rights Trial of accused for driving with blood alcohol level above legal limit. Police officer was on foot patrol when he passed accused. He was four feet away from accused but he could smell alcoholic odour coming from his breath. Officer saw accused get into his truck and sit in driver' ARBITRARY DETENTION OR IMPRISONMENT By not making demand forthwith officer lacked authority to continue to detain accused and he saw that keys were in igni- tion. Accused admitted that he con- sumed some alcohol. Officer did not have roadside device with him and it had to be brought to him. Accused took roadside test and failed it. Accused was arrested for having care or control over 80 and he was transported to police sta- tion. He spoke to duty counsel and then provided breathalyzer samples that were both 120. Accused testi- fied that he went to pub and he consumed several beers. When he left pub he returned to his truck with intention to gather up some books he left there and his keys and to secure truck and take taxi home. At that time accused had habit of leaving his keys in ignition when he was out of truck. This practice was corroborated by his female companion of 30 years. Accused therefore disputed officer' s seat. He went to truck that he was holding his keys on his way back to truck. He claimed that his rights under Canadian Charter of Rights and Freedoms were vio- lated because authorities failed to disclose video recording of accused while he was being booked. Once he became aware of its existence it was no longer available. It was retained for seven months until it was erased. Under technology that was available to police this was lon- gest time it could be retained for. Accused acquitted. Destruction of video was not due to unacceptable negligence. It was retained for suf- ficient time to allow for its pro- duction and disclosure. Acceptable explanation was provided for why evidence was destroyed. Accused' s claim rights under s. 7 of Charter were not violated. There was credible evi- dence that officer tested accused with approved screening device. Arresting officer was entitled to rely on word of officer who brought him device that it was calibrated. However, roadside demand was not made forthwith once officer formed his grounds to make demand. Accused was detained for 19 min- utes until he could comply with demand. By not making demand s PAGE 15 forthwith officer lacked author- ity to continue to detain accused and s. 9 of Charter was violated. Seizure of samples was done pursu- ant to unlawful demand and s. 8 of Charter was violated. However, breathalyzer samples were admit- ted because to do so would not bring administration of justice into disrepute. Testimony of accused and his companion about his keys was believable. Crown failed to prove that accused had keys in his hand when he walked to his truck. Presumption of care or control was rebutted. Actual care or control was also not proven. R. v. Rogers (Nov. 21, 2011, Ont. C.J., Masse J.) 99 W.C.B. (2d) 61 (22 pp.). Contempt Of Court Motion by wife for declaration of contempt in respect of transfer by husband of significant amount of funds to offshore account in con- travention of non-dissipation order. Motion granted. Declaration of contempt was issued. Husband was afforded 60 days to purge his con- tempt by paying into court sum of $723,999.12 to credit of action. Husband admitted transfer of funds contrary to non-dissipation order. Transfer of funds could not be said to be accidental. Husband, by not consulting with counsel, was will- fully blind as to transfer of funds. It was not relevant whether or not husband used funds to pay debt or to purposefully avoid wife' GROUNDS Husband willfully blind as to transfer of funds Kondrasheva v. Davydov (Jan. 27, 2012, Ont. S.C.J., McDermot J., File No. FC-11-37596-00) 99 W.C.B. (2d) 27 (7 pp.). s claims. Defences Trial judge staying proceedings for entrapment after finding accused guilty of child luring. Police initiat- ing investigation against accused after school principal complain- ing accused had sex with teen- age student, and broadcast video of sex online. Police deciding to investigate accused for child lur- ing. Police creating false identity of 13-year-old girl to "chat" with accused. Accused initiating sexu- ally explicit conversation with girl online. Accused sexually propo- sitioning girl, arrested at place of proposed meeting with girl. Trial judge holding police actions amounted to entrapment for cre- ating opportunity for accused to commit offence of child lur- ing without reasonable suspicion he was involved in that criminal activity. Crown appeal allowed, stay of proceedings set aside, mat- ter remitted for sentencing. Trial judge erred by holing police con- duct of creating false identity of girl, creating "chat" friendship with accused online created opportu- nity to commit offence. Merely initiating friendship not creation of opportunity. Accused initiated overt, sexually charged aspect of conversation himself. R. v. Bayat (Dec. 13, 2011, Ont. C.A., Doherty, Rosenberg and Juriansz JJ.A., File No. C52990) 99 W.C.B. (2d) 33 (13 pp.). ENTRAPMENT Initiating friendship not creation of opportunity to commit offence LT

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