ARCTIC OBITER

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NWT DECISION DIGEST SUPREME COURT * correction – in the last issue the citation for Werner v Hay River Mobile Home Park was incorrectly indicated as 2013 NWTCA 3. The correct citation is 2013 NWTCA 4 FAMILY LAW – CHILD SUPPORT – SPECIAL EXPENSES McInnes v Hamilton 2013 NWTSC 58 (Aug. 20, 2013) Presiding: Justice L.A. Charbonneau For the Designated Authority: K. Simpson For the Respondent: Not represented The applicant mother sought a variation of a child support order made in Alberta in 2000. She sought an increase to reflect the father’s increased income and an order requiring he pay a proportionate share of special expenses. The respondent opposed only the claim for special expenses. Maureen McGuire Alberta Justice Edmonton Application for special expenses dismissed – An applicant seeking special expenses bears the burden of establishing that the expense is both necessary and reasonable. The evidence on this application was insufficient. ~ CRIMINAL LAW – SENTENCING – REQUIREMENT OF GLADUE REPORT R v Gruben 2013 NWTSC 59 (AUG 15, 2013) Presiding: Justice Germain For the Crown: B. Demone For the Defendant: T. Boyd Joint submission accepted and s e n t e n c e o f 1 4 m o n t h s ’ imprisonment imposed for assault causing bodily harm – The offender was originally charged with aggravated assault but entered a plea to the lesser included offence following the completion of evidence in his jury trial for that charge and prior to verdict. The offender was an Aboriginal man. No Ipeelee-Gladue type report was prepared. There is no absolute requirement for such a report. If a written report were required in every case the system would quickly become constipated and people would be prejudiced by delay. ~ FAMILY LAW – CHILD SUPPORT – RESCINDING ARREARS Biggin v Censner 2013 NWTSC 61 (Aug 29, 2013 Presiding: Justice K. Shaner For the Applicant: K. Allison For the Respondent: Not represented The applicant was ordered in 1990 to pay support of $250/child. Arrears began to accumulate shortly thereafter. An application to rescind arrears in 1996 was dismissed. Application dismissed – Child support is not an ordinary financial obligation. The applicant has not demonstrated that there were special circumstances which prevented him from paying support in the past, or that the amount of support he was ordered to pay should have been reduced. No explanation was offered as to what efforts the applicant made to discharge his support obligations. The applicant is not currently without assets or income. He has not shown that he cannot now, nor will he in future, be able to pay the arrears. ~ FAMILY LAW – CUSTODY AND ACCESS Lacoursiere v Penk 2013 NWTSC 62 (Sept 3, 2013),Presiding: Justice Charbonneau For Applicant: M. Nightingale For the children: K. Wilford Respondent not represented y counsel A previous order provided the respondent have Skype access for a minimum of one hour per week at a time mutually agreed on by the 22 ■ FALL 2013 ARCTIC OBITER
NWT DECISION DIGEST CONT’D parties. This type of flexible conditions works well when there is not a lot of tension between the parties. In this case, the children will benefit from predictability in the Skype access they will have with their father and the parties will benefit from a fixed schedule, not having to be in contact to arrange it. Limiting contact between the parties is in the best interests of the children. The parties’ wishes for the Christmas holidays conflicted. The respondent was granted access immediately before the holiday season for 2013. The applicant cannot expect that her preferences and plans for the holiday season will prevail year after year. It is expected that the father will seek to have Christmas next year. ~ CRIMINAL PROCEDURE – APPOINTMENT OF COUNSEL TO CROSS-EXAMINE COMPLAINANT R v Avadluk 2013 NWTSC 63 (Sept 11 , 2013) Presiding: Justice S. Smallwood For the Applicant: W. Miller For the Respondent: not represented by counsel Application allowed – It is difficult to conceive of a situation where the Court would not grant the application in a case of an alleged sexual assault. The nature of the offence of sexual assault is such that permitting the accused to cross-examine the complainant will most often raise serious concerns about the ability of the witness to provide a full and candid account if personally crossexamined by the accused. In this case, the accused has repeatedly alleged the complainant is lying and wants her to tell the truth. His insistence on cross-examining her personally is based on his desire to get her to tell the truth and that his previous counsel did not ask the questions he wanted. This provides insight into the manner in which he might be expected to conduct his cross-examination. The accused’s single-minded focus on certain issues leaves concern that he will be unable to conduct an effective and focussed crossexamination of the complainant. ~ CRIMINAL LAW – APPEALS – BURDEN OF PROOF R v Zieba 2013 NWTSC 64 (Sept 11, 2013) Presiding: Justice Schuler For the Appellant: L. Stevens, QC For the Respondent: M. Johnson Appeal from conviction for two counts of assault – The appellant argued that the trial judge’s statement commenting on the complainant’s and accused’s contradictory versions (“what actually happened probably lies somewhere between the two”), implies the trial judge did not reject the Appellant’s evidence and that the Crown evidence did not meet the criminal standard of proof. Appeal allowed and new trial ordered – The trial judge did not address a significant contradiction between Crown witnesses. The trial judge made no assessment of the complainant’s credibility, other than a finding that her evidence “might not” establish one aspect of the complaint beyond a reasonable doubt. It is not clear why, having rejected her evidence about that aspect, he accepted her evidence otherwise. The trial judge was entitled to believe some, all or none of the evidence of any witness. However, when significant aspects of the testimony of a witness are rejected, there should be some credibility analysis to explain why other aspects of that same witness’ testimony are accepted. The trial judge’s remark about the truth probably lying somewhere between the two versions suggests he was trying to come to a reconciliation of the versions – what “probably” happened – instead of determining whether the Crown had proved the case beyond a reasonable doubt. ARCTIC OBITER FALL 2013 ■ 23
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