Barry M. Tobin

The mother sought permission to move the residence of her three children from Windsor to Mississauga prior to a summary judgment hearing in a child protection proceeding.

The Children's Aid Society and the Children's Lawyer supported the move, but the father of the youngest child opposed it.

The court applied the principles for temporary relocation in child protection cases, finding that the mother had not demonstrated compelling circumstances to justify the move before the hearing.

The court noted that the move would severely compromise the father's ability to exercise access due to financial constraints.

The motion was dismissed.

The respondent father brought a motion to change a child support order dated January 13, 2010, seeking to rescind all arrears and reduce ongoing support to $196.50 per month based on his 2015 income of $15,049.88.

The applicant mother opposed rescission of arrears and sought to fix arrears at $10,000 payable at $75-$100 per month.

The father had lost employment in 2010 and remained largely unemployed until September 2015, accumulating approximately $19,349 in arrears.

The court found a material change in circumstances but determined the father's conduct was blameworthy, including wilful non-compliance and failure to seek employment or provide disclosure.

The court reduced arrears to $9,500 as of May 31, 2016, set ongoing support at $195 per month based on imputed income of $15,000, and ordered arrears repayment at $50 per month commencing September 2016.

The respondent sought costs following a successful motion to dismiss the applicant's rule 14(4.2) motion to change on the basis that the court was functus officio.

The applicant argued that the contempt motion and the motion to change should be viewed as a continuum and that the respondent acted recklessly.

The court rejected these arguments and found that the presumption of entitlement to costs was not displaced.

However, the court reduced the claimed costs of $15,239.59 to $6,250.00, finding that the hours claimed were excessive and that certain expenses were not recoverable.

The court also disallowed claimed court attendances that should have been addressed at prior steps in the case and rejected a claim for lost wages and travel expenses.

The applicant father brought a motion to change a final custody and access order, seeking expanded and unsupervised access to his child.

The respondent mother sought a more limited expansion of access and a change to child support obligations.

The court found a material change in circumstances since the original 2009 order, as the child had grown from a toddler to nine years old with significantly changed developmental needs.

The court rejected both parties' proposed access arrangements, finding that the father's proposal was too expansive given the child's current comfort level, while the mother's proposal perpetuated an arrangement that had not fostered the father-child relationship as expected.

The court implemented a graduated access schedule with decreasing supervision over a six-month period, designed to allow the child to develop a more secure relationship with his father while respecting the child's current anxieties and the father's demonstrated behavioral concerns during access.

The respondent brought a motion to dismiss the applicant's motion to change a final custody and support order on the grounds that the court was functus officio.

The applicant had attempted to bring the motion to change under Family Law Rules subrule 14(4.2) (urgent motions for temporary orders) rather than under Rule 15 (the prescribed procedure for changing final orders).

The court held that once a final order is signed, it can only be changed by appeal or by a motion to change under Rule 15.

The applicant's attempt to use Rule 14(4.2) was procedurally improper, and the motion to dismiss was granted.

The respondent brought a motion to remove the applicant's solicitor, Ms. Avery, from the record in contempt proceedings.

The respondent argued that Ms. Avery must testify regarding her attendance at a police station with the applicant on October 7, 2015, and therefore could not continue as counsel.

The applicant opposed removal, arguing that Ms. Avery's evidence did not meet the high threshold of materiality and necessity required to deprive him of counsel of choice.

The court dismissed the motion, finding that the evidence was available from other sources and did not reach the exceptional circumstances threshold required for removal.

Motion to change a custody and access order dated November 22, 2012.

The applicant sought to change the access pick-up location, retain a psychologist to facilitate access, and modify the child support arrangement and overpayment repayment schedule.

The respondent sought appointment of the Children's Lawyer for a section 112 investigation and requested the applicant designate the respondent as beneficiary on a life insurance policy in trust for the child.

The court approved retention of a psychologist for open intervention to assess the child's views regarding access, dismissed the Children's Lawyer appointment request, deferred the pick-up location change pending the psychologist's report, modified the child support amount based on changed income circumstances, and established a repayment schedule for the overpaid child support.

The court dismissed the life insurance beneficiary designation request as exceeding its jurisdiction.

A status review application under the Child and Family Services Act concerning the disposition of a three-year-old child (E.P.) who had been apprehended at birth due to prenatal drug exposure and Neo-Natal Abstinence Syndrome.

The child had been in continuous foster care since October 2012.

The mother sought placement of the child in her care subject to society supervision, having achieved approximately eight months of sobriety following residential treatment.

The maternal grandmother sought placement as an alternative.

The society sought Crown wardship without access to facilitate adoption by the foster parents.

The court found that while the mother had made significant progress in her recovery and compliance with the plan of care, the paramount consideration was the child's best interests, which required maintaining continuity of care with the foster parents to whom the child was deeply bonded.

The court made an order for Crown wardship without access.

Respondent parents brought a summary judgment motion to dismiss a child protection application brought by the Children's Aid Society following the sudden unexpected death of their six-week-old infant.

The Society sought to establish that the surviving child was in need of protection due to alleged inadequate supervision and neglect.

The court found that the evidence did not establish a genuine issue requiring trial.

The surviving child was in her own bedroom and could be heard by the sleeping parent.

The fact that the child may have been awake and unattended for several hours while the parent slept, and was not fed or changed during that period, was insufficient to establish a real and likely risk of physical harm.

The motion was granted and the application dismissed.

A status review application under Part III of the Child and Family Services Act concerning two young children (ages 4 and 5) who had been apprehended and placed in foster care.

The Windsor-Essex Children's Aid Society sought a finding that the children remain in need of protection and sought a Crown wardship order without access.

The respondent mother sought to have the children returned to her care subject to society supervision.

The court found that the children remain in need of protection due to the mother's inability to consistently manage the children's complex behavioural and emotional needs despite participating in numerous parenting programs over three years.

The court ordered Crown wardship with no access, finding that the children's best interests were served by remaining in their stable foster placement with Ms. Ba., where their emotional and behavioural needs were being appropriately met.

In this temporary care and custody hearing under Part III of the Child and Family Services Act, the court determined the placement of a newborn child following apprehension by the Society.

The Society sought placement with the paternal great aunt and her partner subject to supervision.

The paternal grandmother and her partner sought placement with themselves or alternatively expansive access.

The court found that the paternal grandmother alone had charge of the child immediately before apprehension and that there were reasonable grounds to believe the child would suffer harm if returned to her care due to her serious medical conditions and observations of her being overwhelmed.

However, the court found that supervision alone would not adequately protect the child.

The court ordered placement with the paternal great aunt and her partner, with the paternal grandmother having structured access and shared responsibility for medical care, recognizing the benefit of maintaining family connections while ensuring child protection.

In this temporary care and custody hearing under the Child and Family Services Act, the Windsor-Essex Children's Aid Society sought an order placing two young children in its temporary care and custody with supervised access to the respondent parents.

The respondent parents sought the return of the children to their care.

The court found reasonable grounds to believe the children were at risk of harm due to domestic conflict between the parents and the need for one child to receive services for special needs.

However, the court determined that with appropriate terms and conditions of supervision, the children could be adequately protected while remaining in the parents' care.

The court ordered the children be placed in the temporary care and custody of the respondent parents subject to Society supervision and specific conditions addressing domestic violence, counselling, and the child's special needs.

A kinship care provider sought to be added as a party respondent to a child protection proceeding and requested disclosure of a parenting capacity assessment.

The child, diagnosed with hydrocephalus, had been placed in the kinship care provider's home since 12 days old.

The Society and biological parents had reached a settlement agreement to return the child to parental care with supervision.

The court determined that kinship care placements are akin to foster care placements and that the kinship care provider, having continuously cared for the child, was entitled to enhanced participation rights under the Child and Family Services Act.

Rather than adding the provider as a full party, the court granted enhanced participation rights including disclosure of key documents and participation in settlement conferences.

In a child protection status review hearing under Part III of the Child and Family Services Act, the respondent mother brought a mid-trial motion requesting that two society witnesses be recalled for re-cross-examination.

The court denied the motion, finding that the respondent mother's counsel had adequate opportunity to cross-examine the witnesses prior to trial and at trial, no new evidence had emerged that would warrant re-cross-examination, and allowing the recall would cause undue delay prejudicial to the children's interests.

However, the foster mother was ordered to be recalled to give evidence regarding events occurring after April 1, 2015.

The Windsor-Essex Children's Aid Society sought leave to withdraw a child protection application.

The mother had been hospitalized for acute psychiatric distress related to imminent deportation to the Netherlands, where she feared returning to an abusive father.

The Society argued the children were no longer in need of protection following the mother's discharge from hospital.

The respondent mother and counsel for the children opposed the withdrawal, citing ongoing risks including the mother's mental health, the threat of deportation, and the presence of the abusive father in the Netherlands.

The court dismissed the motion, finding it premature to withdraw the application given the unresolved risks and the intersection of child protection and immigration law.

A summary judgment motion brought by the Children's Lawyer on behalf of two Indigenous children seeking Crown wardship without access.

The maternal grandfather and Walpole Island First Nation opposed the motion, arguing a trial was necessary.

The court found no genuine issue for trial and granted Crown wardship, finding that the children's best interests were served by remaining in their current foster placement with an Indigenous family rather than transitioning to the grandfather's care on the First Nation territory.

The court considered the children's special needs, cultural identity, continuity of care, and the grandfather's inconsistent access pattern over two years.

The applicant sought leave to file an amending agreement that reduced spousal support obligations with the Ontario Court of Justice for enforcement purposes through the Family Responsibility Office.

The Clerk of the Court refused to accept the amending agreement, taking the position that support provisions could only be amended through a motion to change under the Family Law Rules.

The court held that an amending agreement constitutes a domestic contract under the Family Law Act and can be filed for enforcement purposes without requiring a formal motion to change, provided the parties have already agreed to the amendment.

The respondent mother brought a motion to set aside an order made on February 3, 2014, which declared her daughter a ward of the Crown with no access.

The mother sought to rely on facts arising or discovered after the order was made, arguing that fresh evidence would undermine important findings of fact and put the best interests of the child back in issue.

The court considered whether Rule 59.06(2)(a) of the Rules of Civil Procedure applied to child protection proceedings and, assuming it did, examined whether the mother met the conjunctive criteria for setting aside an order based on newly discovered evidence.

The court found that the evidence presented—affidavits from the child's father, a neighbour, and the mother's boyfriend—did not constitute new evidence, would not have changed the outcome, and raised credibility concerns.

The motion was dismissed.

The applicant sought a temporary order for custody of the parties' child, born December 25, 2013, following separation on September 2, 2014.

The applicant was charged with assaulting the respondent and released on an undertaking prohibiting direct or indirect communication with the respondent.

The court determined that it was in the child's best interests to remain in the care of the respondent mother, with the applicant granted supervised access of three hours per week.

The court found the respondent was the primary caregiver during cohabitation, works part-time and is more available, and that the child benefits from remaining in the familiar home.

The applicant's request for week-about care was denied due to lack of evidence regarding the child's needs and the applicant's care plan.

Status review applications concerning three children found to be in need of protection due to parental substance abuse and domestic conflict.

The court granted custody of two older children to maternal grandparents under section 57.1 of the Child and Family Services Act.

The youngest child was placed with the grandparents subject to Society supervision for nine months.

The court established a five-week access schedule for all three children with their parents to minimize transitions and disruption while maintaining parental relationships.

The court rejected the father's request to have one child placed in his sole care, finding that keeping siblings together was in their best interests.