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The Court of Appeal allowed a family law appeal and granted the mother final decision-making authority, finding the judge failed to apply the mandatory best-interests factors.
The 2016 parenting order remained in force; the father failed to prove a material change in circumstances that would justify variation of parenting time or grandparent access; the grandparents had no standing in the father's application; there was no proven breach regarding the child's surname; appeal dismissed and lower order affirmed with costs to respondent under column 3.
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The appellants sought post-trial disclosure of WPP, OPP and witness-management records to support fresh-evidence and disclosure-breach arguments. The Court dismissed all applications.
The Court of Appeal dismissed three family-law appeals involving custody conditions, passport restrictions, and contempt for non-payment of special costs.
The appeal is allowed and a new trial ordered because the trial judge failed to adequately present the defence theory and the evidence supporting it and gave flawed and incomplete instructions on post-offence conduct and on the Crown's allegation of a fabricated exculpatory statement without applying the O'Connor test for independent evidence of fabrication and without a Parrington charge, errors that cumulatively rendered the trial unfair in a wholly circumstantial case.
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The Court held that the trial judge erred in law by failing to leave the defence of accident as to the actus reus to the jury because appellant's testimony raised an air of reality that he may have accidentally kneeled on his wife; other grounds of appeal (failure to leave ss.34(1)/(2), exclusion of videotapes, summary of pathologist weaknesses) did not warrant reversal, but the error on accident required setting aside the conviction and ordering a new trial.
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On appellate disclosure motions involving third‑party privacy claims the Trotta relevancy threshold applies first; certain Provincial Crown and Barrie Police Service records that may assist in developing admissible fresh evidence about the arresting officer's alleged drug‑related activity and linked misconduct meet that threshold; Provincial Crown records created in the course of criminal investigations are not treated as presumptive employment‑privacy records and must be produced to the prosecutor (subject to redaction and privilege) for selection of relevant portions; an O'Connor‑type proce…
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The trial judge materially erred by characterizing the appellant's largely exculpatory out-of-court statements as confessions/admissions and instructing that inculpatory portions deserved greater weight than exculpatory portions, thereby effectively reversing the burden of proof and denigrating the defence of accident; coupled with an erroneous and confusing instruction concerning the appellant's failure to contact police, these errors rendered the conviction unsafe and warranted setting aside the conviction and ordering a new trial.
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The propensity evidence elicited about the appellant's violence while intoxicated was inadmissible and highly prejudicial; the trial judge erred in failing to give a blunt and specific limiting instruction on that evidence; permitting counsel to address the jury after the judge's charge was improper and risked prejudice; because credibility was central and the curative proviso did not apply, the conviction must be set aside and a new trial ordered.
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The trial judge's factual findings provided reasonable and probable grounds for the warrantless arrest under s.495(1)(a) and justified the incidental search; the cross-examination errors were minor and did not cause a miscarriage of justice; a prior judicial finding of disbelief in an unrelated case does not, by itself, constitute discreditable conduct that would have permitted impeachment sufficient to meet Palmer's requirement that fresh evidence could reasonably be expected to affect the result; therefore fresh evidence was inadmissible and the conviction stands; leave to appeal sentence g…
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