Caterina E. Tempesta

A wrongfully retained child was ordered returned to her country of origin after Canada granted her refugee status.

The Court of Appeal for Ontario allowed the appeal, finding that the application judge erred in failing to apply the rebuttable presumption against the return of a refugee child and in dismissing the child's objection to return.

The court held that when a child has been recognized as a Convention refugee by the Immigration and Refugee Board, a rebuttable presumption arises that there is a risk of persecution on return.

The application judge improperly questioned the refugee determination process and reweighed evidence without oral testimony or cross-examination.

Additionally, the child's clear and repeated objection to return, based on fear of violence by the father, was not given proper weight.

The matter was remitted to the Superior Court for determination of parenting and decision-making authority under section 23 of the Children's Law Reform Act.

This appeal concerns the interaction between a provincial legislative scheme governing child protection (CYFSA) and a federal legislative scheme for removing those without citizenship or immigration status from Canada (IRPA).

Specifically, it addresses a disclosure order granted to the Minister of Public Safety and Emergency Preparedness in a child protection status hearing.

The motion judge granted the disclosure, which was upheld by the Superior Court.

The appellants (the parent, the Children's Aid Society, and the Office of the Children's Lawyer) argued that the disclosure order improperly prioritized the Minister's interests over the children's privacy and best interests.

The Court of Appeal found that while the motion judge had jurisdiction to order disclosure, she erred by not requiring the Minister to establish a prima facie basis for the scope of submissions or the requested disclosure.

The appeal was allowed, and the matter remitted to the motion judge for reconsideration based on a new framework requiring the Minister to justify the scope of submissions and disclosure.

The Minister of Public Safety and Emergency Preparedness brought a motion within ongoing child protection proceedings, seeking disclosure of case documents and the right to make submissions regarding a final supervision order.

This was prompted by an existing deportation order against the mother and one child, which is stayed if the Minister has an opportunity to make submissions under the Immigration and Refugee Protection Act.

The Catholic Children’s Aid Society of Toronto, the mother, and the Office of the Children’s Lawyer opposed the extent of the Minister's requested involvement, arguing for limited submissions and no disclosure.

The court found it had jurisdiction, either explicitly under the Family Law Rules or implicitly, to order disclosure to a non-party.

It ruled that the Minister was entitled to make informed and meaningful submissions on all relevant issues, including whether a genuine lis existed between the parties, and ordered the society to provide past and future relevant documents, with strict conditions on their use to protect privacy.

The applicants brought a non-party production motion in a multi-party Children’s Law Reform Act application concerning the future care of three Indigenous children.

The motion sought records from Probation and Parole Services, the Ontario Provincial Police, and Payukotayno-James and Hudson’s Bay Family Services regarding the respondent parents and the children's older siblings.

The court granted the production order, finding the records relevant to determining the children's best interests and understanding the family's history, including constitutional questions related to Indigenous inherent rights.

The court balanced privacy interests against the need for full disclosure, noting the parents' non-engagement and the existing sealing order.

This appeal addressed habitual residence under Article 3 of the Convention on the Civil Aspects of International Child Abduction after a parent retained children in Canada beyond a time-limited consent period.

The Court adopted a hybrid, multi-factor approach that evaluates all relevant circumstances, including but not limited to parental intent and the child's links to each state.

The Court also endorsed a non-technical approach to Article 13(2), requiring proof of sufficient maturity and a genuine objection before discretion is exercised.

Although the matter was moot, the appeal was resolved to clarify national law and emphasize expeditious handling of return proceedings.

This motion arose from a child protection proceeding concerning two children, H. (15) and C. (12).

The children and their father sought a stay of two orders made by a lower court judge: one prohibiting the children from attending the protection hearing, and another restricting their access to a prepared report.

The moving parties argued that the refusal to accept late materials from the Children's Lawyer violated procedural fairness and that the children had a presumptive right to participate.

The court applied the R.J.R.-MacDonald test for a stay, considering it through the prism of the children's best interests.

It found no irreparable harm in denying the stays and that the balance of convenience favored dismissal, citing overwhelming evidence of emotional harm to the children from involvement in the high-conflict litigation.

The motion to stay the orders was dismissed.

The Office of the Children's Lawyer brought a motion to stay an order requiring a mother to return her two children to Germany pursuant to the Hague Convention, pending an anticipated application for leave to appeal to the Supreme Court of Canada.

The father opposed the stay and challenged the OCL's standing.

The court assumed standing but dismissed the stay motion, finding no serious issue to be tried, no irreparable harm to the children, and that the balance of convenience favoured their prompt return to Germany to have custody determined in their habitual residence.

In child protection appeal proceedings, the society brought a motion seeking disclosure of the Office of the Children’s Lawyer’s clinical investigator notes, which the court held were protected by solicitor-client privilege and refused to disclose.

The motion was dismissed and the responding parties sought costs.

Although costs are not presumptively awarded against a children’s aid society under rule 24 of the Family Law Rules, the court exercised its discretion under s. 131 of the Courts of Justice Act.

The court found the society engaged in procedural misconduct by attempting to re‑litigate disclosure issues after previously withdrawing a similar motion, causing unnecessary expense to the opposing parties.

Exceptional circumstances justified a costs award against the society.

In a child protection appeal, the moving party sought disclosure of the Office of the Children’s Lawyer’s clinical investigator notes and records relating to a child represented by counsel.

The request was brought under s. 74 of the Child and Family Services Act after the Office of the Children’s Lawyer filed affidavits in support of a motion to admit fresh evidence on appeal.

The court held that communications between the child, counsel, and the clinical investigator assisting counsel formed part of the solicitor‑client relationship and were protected by solicitor‑client privilege.

The privilege belonged to the child and could not be waived by other parties.

The court further found that compelling disclosure would undermine the confidentiality essential to effective child representation and would also amount to an abuse of process given earlier opportunities to seek the material.

The appellant appealed a motion judge's order designating them as a special party under section 2(1) of the Family Law Rules.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's identification of the proper legal test or her conclusion, which was supported by the evidence.

The appellants appealed an order regarding the permanent placement of a child.

The Court of Appeal dismissed the appeal, finding that the appeal judge gave thorough reasons, applied the proper test, and did not misapprehend the evidence.

Given the lengthy delay and the appellants' inability to provide an alternative plan, the Court held that it was in the child's best interests to have a permanent home without further delay.

The appellants appealed a trial management order in a child protection proceeding.

The Court of Appeal dismissed the appeal, finding no error in the exercise of discretion.

The Court clarified that the statutory requirement for a child to be 'brought before the court' does not mandate physical presence in the courtroom, and confirmed that the governing legislation permits a bifurcated, non-continuous hearing.