Alicia Laura Tymec

The Office of the Children's Lawyer, acting for two young children in extended society care, brought a motion to withdraw an openness application previously filed on their behalf.

The withdrawal was sought due to the father's aggressive and threatening behaviour towards society workers and the adoptive parents' resulting fear.

The court applied factors relevant to withdrawing protection applications and granted the motion, noting the parents were access recipients without an independent right to seek openness, and that withdrawal was in the children's best interests.

This endorsement addresses two openness applications brought by siblings under Part V of the Child, Youth and Family Services Act, 2017 (CYFSA).

The applications sought to formalize access between four siblings, two of whom were in extended society care and on adoption probation, and two others who were also in extended society care but not yet legally free for adoption due to an outstanding appeal.

The court outlined the statutory pathway for openness orders, particularly concerning the impact of the sequence of extended care orders on children's legal rights and access.

The applications proceeded on consent, with the potential adoptive parents agreeing to the proposed openness order.

The court found it was in the children's best interests to make the final openness order, ensuring the continuation of beneficial sibling relationships.

Appellants appealed the motion judge's refusal to enforce a settlement agreement reached at a pre-trial conference in a motor vehicle accident action.

The motion judge found that counsel's description of witnesses as "independent" amounted to civil fraud because the witnesses' son lived across the street from the plaintiffs.

The Court of Appeal allowed the appeal, holding that counsel's statement was an opinion with a reasonable basis made in good faith, not a false statement of fact.

The court emphasized that findings of civil fraud against counsel could have devastating reputational consequences and could chill resolute advocacy.

The court also found that the defendant failed to exercise due diligence in investigating the witnesses' connection to the plaintiffs.

Following the dismissal of the plaintiffs' motion to enforce a settlement in a motor vehicle accident claim, the court determined the costs of the motion.

The defendant sought full indemnity costs of $122,826.71, arguing the plaintiffs' counsel made misleading statements during a pretrial that led to the repudiated settlement.

The court awarded partial indemnity costs fixed at $100,000 to the defendant.

The court declined to order costs personally against the plaintiffs' counsel under Rule 57.07(1), finding that while counsel's representations led to the settlement, the costs of the motion were caused by the plaintiffs' tactical decision to seek enforcement rather than proceed to trial.