Barry M. Tobin

The Children's Aid Society of London and Middlesex brought a status review application seeking a finding that the child remained in need of protection and an order granting custody to the maternal aunt and uncle.

The mother sought the child's return to her care.

The court found the child remained in need of protection due to the mother's pattern of associating with dangerous men, her difficulty perceiving and removing herself from such risks, and her inconsistent parenting skills.

The court granted custody to the aunt and uncle, finding it to be in the child's best interests, and ordered supervised access for the mother.

The applicant father brought a motion within a motion to change for a temporary order specifying access exchanges with the parties' child and requiring the respondent mother to pay for therapy sessions aimed at reconciling the child with the father.

The child, born in 2006, had been in the mother's custody since 2008 with the father having unsupervised access.

Access had been expanded informally by January 2017 but ceased in July 2017 when the mother refused the father's request for expanded summer access.

The child, now 11 years old, was resistant to access.

The court found the mother had not made sufficient effort in certain respects but had generally complied with her obligations.

The court ordered electronic communication via video chat on specified days and directed the parties to obtain a therapist's report and schedule a case conference.

A child protection application under Part V of the Child, Youth and Family Services Act, 2017 concerning a child born to parents with a history of prior child protection findings.

The respondent father had been convicted of serious sexual offences including sexual abuse of a child, possession of child pornography, and indecent exposure.

The child was apprehended at birth and placed with the paternal grandmother and uncle.

The Society sought a finding that the child was in need of protection under clause 74(2)(d) (risk of sexual abuse or exploitation) and sought placement with the paternal grandmother and uncle under Society supervision.

The respondent parents sought dismissal of the application or, alternatively, return of the child to their care.

The court found the child was in need of protection but determined that placement with the parents under Society supervision was in the child's best interests, recognizing the father's prosocial behaviour over many years, the mother's demonstrated protective capacity, and the child's strong attachment to both parents.

This is a costs decision following a trial on child support and spousal support issues.

The applicant sought costs of $115,000.00 all inclusive, while the respondent submitted that costs should be fixed at $18,000.00 with a $3,000.00 set-off.

The trial resulted in an order for ongoing child support based on structured settlement annuity payments, dismissal of the applicant's retroactive child support claim, and dismissal of the respondent's request to terminate spousal support.

The court found the applicant was substantially more successful on the significant issues and awarded costs of $47,000.00 inclusive, payable at $1,200.00 per month commencing July 1, 2018.

A support payor who became an undischarged bankrupt challenged the jurisdiction of the Ontario Court of Justice to conduct a default hearing on child support arrears.

The payor argued that bankruptcy matters fall exclusively within the Superior Court of Justice's jurisdiction and that the stay of proceedings under the Bankruptcy and Insolvency Act prevented the default hearing from proceeding.

The court held that a default hearing is a family law enforcement procedure, not a bankruptcy matter, and that support claims are not stayed by bankruptcy.

The court dismissed the jurisdictional challenge and confirmed its authority to conduct the default hearing.

The applicant sought enforcement of a separation agreement and child support for two adult children, while the respondent sought to set aside the spousal support provisions and terminate his support obligations.

The court found that structured settlement annuity payments constitute income for child support purposes and should be grossed-up for tax purposes.

The court awarded table amount child support for both children, including an adult child enrolled in post-secondary education.

The court rejected the respondent's arguments to set aside the spousal support provisions and found no material change in circumstances warranting termination.

Retroactive child support arrears were rescinded based on the parties' oral agreement and the DBS factors.

The Windsor-Essex Children's Aid Society brought a motion seeking production of hospital records for the respondent mother from January 1, 2016 to August 31, 2017.

The Society sought these records to investigate its theory that the mother was a victim of domestic violence perpetrated by the father.

The respondents opposed the motion, arguing it constituted a fishing expedition.

The court found the Society's request as originally framed was over-broad but granted a narrowed version of the motion, restricting production to hospital admission records where the mother presented with physical injuries or complaints about domestic conflict.

The applicant moved to remove the respondent's solicitor, Rayleen Cantin, on the grounds of a conflict of interest.

The applicant alleged that he had contacted Ms. Cantin's office on two occasions in May 2017, disclosing confidential information regarding criminal charges, bail conditions, his stance on allegations, his history with the respondent, and concerns about the respondent's parenting ability.

Ms. Cantin denied recalling any conversation with the applicant and deposed that she did not receive confidential information or provide legal advice.

The court found conflicting evidence but determined that the applicant failed to satisfy the balance of probabilities that confidential information was provided to Ms. Cantin.

The court applied the objective test of whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required removal of counsel, and found that removal was not warranted.

This costs endorsement arose from a child protection status review application in which a child remained in need of protection and was placed with maternal grandparents, with the remaining issue of access proceeding to trial.

After the access issue resolved on consent, the father and the maternal grandparents each sought costs against the other.

The court held that Rule 24(2) continued to apply because the access dispute remained within the child protection proceeding, notwithstanding the earlier s. 57.1 custody order.

Applying the child protection costs jurisprudence, the court found both sides acted in good faith and that neither side's conduct was so unreasonable, disproportionate, or exceptional as to justify a costs sanction between co-respondents.

Both costs claims were dismissed.

A child protection application by the Windsor-Essex Children's Aid Society seeking Crown wardship without access for a child with significant developmental delays and special needs.

The mother, who has cognitive limitations and intellectual disability, sought to have the child placed in her care subject to supervision.

The court found the child in need of protection and determined that Crown wardship was in the child's best interests, rejecting the mother's plan as inadequate given the child's sophisticated parenting needs and the mother's demonstrated inability to engage with services and retain parenting skills despite multiple opportunities and support.

The respondent brought a motion to change child support provisions in a separation agreement, seeking to terminate his obligation to pay child support effective April 25, 2016 (when the child turned 18 and was not enrolled in full-time education), and to fix arrears at either nil or $5,450.83 with repayment at $150 per month.

The applicant, residing over 150 kilometres away, did not respond or appear.

The court proceeded under section 44 of the Family Law Act to issue a provisional order.

The court found the respondent's obligation to pay child support terminated on April 25, 2016, accepted his evidence that he paid support directly to the applicant (which was corroborated by two assignees rescinding their claims), and fixed arrears at $5,450.83 to be repaid at $300 per month based on the respondent's demonstrated ability to pay.

A temporary order was issued staying ongoing support obligations and the Support Deduction Order pending confirmation of the provisional order.

A biological father sought leave to bring a status review application of a Crown ward child who had been in care for over six years.

The child had been placed with the same foster parents for four years, and the Children's Aid Society had identified an adoptive family.

The court applied the five-part test from Catholic Children's Aid Society v. F.(B.A.) to determine whether leave should be granted.

The court found that the father's primary motive was to disrupt the adoption planning, that no unusual circumstances justified the review, and that the father had not established a prima facie case that placement in his care would be in the child's best interests.

The motion was dismissed.

The claimant, residing in Michigan with a child born out of wedlock, sought child support from the respondent residing in Ontario under the Interjurisdictional Support Orders Act, 2002.

The respondent acknowledged paternity and his obligation to pay support.

The court determined that entitlement to support was governed by Michigan law (the Paternity Act), while the quantum of support was determined under Ontario law.

The court established a retroactive start date for support based on Michigan legislation and calculated monthly support payments using Ontario child support guidelines.

The paternal grandparents sought custody of a four-year-old child who had lived with a non-family member caregiver since three months of age.

The child's parents were unable or unwilling to provide care.

The grandparents sought to unite the child with her two brothers, who were already in their custody, and to raise her within their Muslim faith and cultural traditions.

The non-family caregiver sought to maintain custody, emphasizing the child's four years of continuous, stable care and attachment.

The court applied the best interests of the child analysis under the Child and Family Services Act and determined that maintaining the status quo with the non-family caregiver was in the child's best interests, while providing generous access to the grandparents.

The respondent sought costs of $2,455.04 for preparing for and attending a Legal Aid Ontario-facilitated settlement meeting that did not proceed because the applicant failed to attend.

The court denied the costs award, finding that the voluntary settlement meeting was not a step in the case authorized under the Family Law Rules and therefore fell outside the court's jurisdiction to award costs.

The court distinguished the case from mandatory mediation scenarios and held that policy considerations alone cannot support a costs award for a process beyond the court's authority.

The claimant sought retroactive child support from the respondent under the Interjurisdictional Support Orders Act for a child born in Saskatchewan to parents who did not cohabit.

The respondent initially disputed paternity but DNA testing confirmed his biological relationship to the child.

The court applied the principles from D.B.S. v. S.R.G. to determine whether retroactive support should be awarded and, if so, from what date.

The court awarded retroactive child support from January 1, 2015 to August 31, 2016, with ongoing prospective support commencing September 1, 2016.

In a child protection status review application, the respondent father sought an order granting access to the child for himself and for non-parties (the paternal aunt and paternal uncle).

The maternal grandparents, who had been granted custody of the child, opposed the access order for the non-parties, arguing the court lacked jurisdiction to grant access to persons who were not parties to the proceeding.

The court determined that it had jurisdiction to make access orders under section 58 of the Child and Family Services Act within the ongoing status review application, and that it was not a prerequisite for granting access that a person be a party to the proceeding.

The court found no unfairness to the maternal grandparents, as they had full notice of the paternal relatives' claims through active case management and disclosure.

This is a costs decision following a motion to change a custody, access, and child support order.

The applicant sought costs of $9,038.60 for both the custody and access portion and the child support portion of the motion.

The respondent, appearing self-represented, claimed inability to pay.

The court awarded partial costs of $5,000.00 inclusive of fees, disbursements, and taxes, finding the applicant acted reasonably and was substantially successful, while sanctioning the respondent's failure to provide timely financial disclosure.

The respondent brought a motion to change a child support order dated May 27, 2008, which required him to pay $194.00 per month based on imputed annual income of $22,880.00.

The respondent argued that his medical condition had worsened since the original order, rendering him incapable of any gainful employment.

The applicant opposed the motion, contending that the respondent remained capable of working and had failed to meet his parental support obligations.

The court found that the respondent had not demonstrated a material change in circumstances sufficient to vary the order.

Although the respondent's medical condition had deteriorated, the medical evidence did not support total incapacity for work, and the respondent had failed to undertake reasonable efforts to retrain or seek suitable employment within his limitations.

The motion was dismissed.

A child protection application brought by the Windsor-Essex Children's Aid Society seeking to place a child in the care of the mother with Society supervision and to restrict the father's access to supervised visits.

The father, a joint custodial parent under a prior family law order, opposed the motion and sought to maintain the existing shared custody arrangement.

The Society alleged risk of harm based on the father's recent criminal charges and convictions for indecent exposure and other sexual offences.

The court found reasonable grounds to believe there was risk of harm but determined that adequate protection could be achieved through supervision conditions rather than removal from the father's care.

The court ordered the child remain in the father's care on the existing schedule subject to strict supervision terms and conditions.