Barry M. Tobin

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.

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.

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 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 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 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.