Dominique Durieux Smith

In a child protection proceeding, the biological father brought a motion seeking interim care and custody of his young child, who has significant medical needs.

The child had been residing with a kin caregiver since being removed from the mother's care.

The court applied the two-part test under section 94 of the Child, Youth and Family Services Act and found that the child could not be safely returned to the mother.

In assessing the competing placement plans, the court considered the father's pending criminal charges and the child's need for stability.

The court ordered that the child remain in the care of the kin caregiver, with the father granted one overnight visit per week.

The applicant children's aid society brought a motion for summary judgment seeking a finding that the children were in need of protection and an order for extended society care.

The respondent mother and maternal grandmother opposed the motion, with the grandmother seeking a supervision order to herself.

The court found that despite the grandmother's past violations of safety plans, her recent steps in counselling and the mother's relocation to another city created a genuine issue for trial regarding her ability to protect the children.

The motion for summary judgment was dismissed and a trial was ordered.

The accused faced charges arising from a sustained online harassment campaign involving sexually explicit videos, pornographic material, and demeaning messages directed at the complainant, her then boyfriend, and others in their social and professional circles.

The Crown relied entirely on circumstantial evidence to prove identity, alleging motive, means, opportunity, exclusive knowledge, and sophisticated efforts to mask the source of the communications.

The court applied the circumstantial evidence framework and found that, although the evidence raised suspicion and pointed toward the accused in some respects, it did not establish that guilt was the only reasonable conclusion available on the whole of the evidence.

Concerns about the credibility and reliability of key witnesses, the lack of forensic linkage to the accused’s seized devices, and unresolved alternative inferences arising from third-party internet attribution created a reasonable doubt.

The accused was acquitted on all counts.

The accused, a personal support worker at a hospital, was charged with sexually assaulting two female patients.

For the first complainant, the court found that while the accused initiated a sexual relationship while caring for her, the Crown failed to prove beyond a reasonable doubt that she was induced to consent by his abuse of a position of trust.

For the second complainant, the court found her evidence unreliable due to her severe confusion and hallucinations during her hospital admission.

The accused was acquitted of both charges.

The Children's Aid Society of Ottawa brought a motion for interim care and custody of baby R. under the Child, Youth and Family Services Act, 2017, citing concerns about the parents' mental/emotional health, domestic conflict, and non-cooperation.

The parents, K.T. and E.M., opposed the motion, arguing they had made significant progress and that an interim supervision order would adequately protect the child.

The court found reasonable grounds to believe there was a risk of emotional harm to R. if returned without conditions, but ultimately determined that an Interim Supervision Order with detailed terms and conditions, including cooperation with external service providers and the Society, would adequately mitigate the risk.

The motion for Society care was dismissed, and the child was returned to the parents' care under supervision.

In a child protection proceeding, the Office of the Children's Lawyer abandoned a request to present the children's views without a clinician's affidavit.

Counsel for the foster parents sought costs for the attendance and requested an adjournment of an upcoming summary judgment motion due to a scheduling conflict.

The court noted counsel's unprofessional conduct and mischaracterization of a previous hearing involving a student-at-law, but ultimately granted the adjournment to ensure the foster parents could be represented by their counsel of choice.

A timeline for written costs submissions was established.

The Children's Aid Society brought a motion for the production of police and medical records regarding the respondent parents in a child protection proceeding.

The parents consented to the release of police records but opposed the release of their medical records, citing significant privacy interests related to their complex medical care as transgender individuals.

The court dismissed the motion for medical records, finding no sufficient nexus between the Society's concerns about emotional health and the predominantly endocrinological treatment the parents received.

The court held that the parents' privacy interests and the need to maintain their therapeutic relationships outweighed the probative value of the records at this stage.

The children's aid society brought a motion for summary judgment seeking an order to place a two-year-old child in extended society care for the purpose of adoption.

The child had been in care since birth due to the parents' long-standing alcohol addiction, domestic violence, and limited parenting capacity.

The court found no genuine issue requiring a trial, as the parents failed to demonstrate meaningful steps to address the protection concerns.

The motion was granted, placing the child in extended society care with supervised access for the parents.

On a child protection motion for temporary care and custody, the court considered whether a child with a lengthy history of sexual victimization by siblings could be safely returned to the mother with or without society supervision.

Applying s. 94 of the Child, Youth and Family Services Act, the court found reasonable grounds to believe the child was likely to suffer harm and could not be adequately protected in the mother’s care.

The court relied on evidence of repeated sexual assaults, failures of supervision, minimization of the abuse, and concerns about ongoing contact with one offending sibling.

The motion was granted and the child remained in society care during the adjournment.

In a child protection proceeding, the child's caregivers brought a motion to remove the biological father as a party to the proceeding.

The biological father brought a cross-motion for interim parenting time or care of the child.

The court dismissed the motion to remove the biological father as a party, finding that he met the statutory definition of a parent and that removing him would be a denial of natural justice.

The court granted the biological father's motion for interim access, ordering supervised visits to foster a relationship between him and the child.

The children's aid society brought a motion for summary judgment seeking a finding that the child was in need of protection and an order for extended society care.

The court granted summary judgment on the finding that the child was in need of protection due to the parents' long-standing alcohol abuse and history of domestic violence.

However, the court dismissed the motion for summary judgment regarding the disposition, criticizing the society for 'document dumping' by filing 460 pages of unfocused affidavit evidence, which made it impossible to determine the best interests of the child without a trial.

The mother sought an adjournment of a care and custody hearing to attend a treatment program.

The Society consented to the adjournment but requested that the existing temporary without prejudice order be converted to a with prejudice order, given it had been in place for over a year.

The court declined to convert the order, finding that the case had been on a particular path until recent events, and emphasizing the remedial nature of the CYFSA regarding First Nations, Inuit, and Métis children, which supported allowing the mother to argue her motion under the without prejudice test.

The applicant brought a motion for summary judgment in a status review application, seeking extended society care for three children and a supervision order for a fourth.

The respondent father had provided inconsistent evidence regarding whether the children identified as First Nations.

The court adjourned the motion, ordering the parties to provide further evidence clarifying the children's First Nations status and band identification, as this information is mandatory under the Child, Youth and Family Services Act, 2017 before determining the appropriate disposition.

The accused, charged with sexually assaulting his former partner, brought an application under section 276 of the Criminal Code to adduce evidence of a subsequent consensual sexual encounter with the complainant.

The accused argued the evidence was relevant to the complainant's credibility and her assertion that she feared him after the alleged assault.

The court granted the application, finding the evidence related to a specific instance of sexual activity, was relevant to the core issues of consent and credibility, and had significant probative value that was not substantially outweighed by the danger of prejudice.

This endorsement clarifies and replaces the terms of a supervision order and access conditions previously issued in a child protection matter.

The court ordered the Children's Aid Society to devise a gradual reintegration schedule for the children M and C to return to the mother's full-time care by August 14, 2017.

It also set out detailed conditions for the mother's twelve-month supervision order, including no contact with the father or other specified individuals, cooperation with the Society, drug testing, and participation in recommended programs.

For the father, limited supervised access of one hour every two weeks was granted, subject to specific conditions including cooperation with the Society and no unsupervised contact with the children.

The applicant sought Crown wardship of two young children based on allegations of severe physical, emotional, and sexual abuse by the parents against older siblings.

The court found the children in need of protection due to a real risk of physical and emotional harm, primarily stemming from the father's historical violence and the mother's failure to protect the older siblings.

However, applying the least disruptive alternative principle, the court rejected Crown wardship.

Instead, the court ordered that the children be placed in the mother's care under a 12-month supervision order with strict conditions, including that she have no contact with the father, who was granted only limited supervised access.

A respondent in a child protection trial brought a motion for the judge to recuse himself and declare a mistrial, alleging reasonable apprehension of bias.

The allegation stemmed from the judge contemplating, and seeking submissions on, whether to summon additional witnesses under s. 49 of the Child and Family Services Act (CFSA) to address conflicting evidence, a possibility the judge later decided against.

The court dismissed the motion, finding that a reasonable, informed person would not conclude that the judge would not decide the case fairly.

The decision emphasized the high threshold for proving bias, the presumption of judicial impartiality, and the unique procedural flexibilities afforded to courts in child protection proceedings under the CFSA and Family Law Rules.

The Children's Aid Society brought a motion for temporary care and custody of six children following their apprehension from the father's home.

The father had been experiencing severe mental health issues, including paranoia, and the home was found in a state of disarray with unsanitary conditions.

The mother, who also struggled with mental health issues, sought the return of the children but lacked suitable housing.

The court found reasonable grounds to believe the children would likely suffer harm if returned to either parent at this time.

The children were ordered to remain in the temporary care and custody of the Society, with supervised access granted to both parents.

The Children's Aid Society moved for summary judgment seeking Crown wardship of two young children.

The parents were facing criminal charges based on allegations by an older sibling, which led to the children's apprehension.

The Society relied heavily on hearsay evidence from the older siblings and a foster parent.

The court dismissed the motion, finding that summary judgment was not appropriate given the evidentiary deficiencies, the parents' inability to cross-examine the adult complainant, and the upcoming criminal trial.

The court ordered peremptory trial dates to be scheduled near the expiration of the statutory timeline for the children to be in care.

The appellant appealed summary conviction findings of guilt for sexual assault and sexual exploitation, arguing that the trial judge misapplied the credibility framework in R. v. W.(D.) and improperly restricted cross‑examination concerning alleged exculpatory statements made during the incident.

The appeal court held that although the trial judge’s articulation of the second branch of the W.(D.) test differed slightly from the classic formulation, the reasons as a whole demonstrated that the correct burden of proof was applied and the accused’s evidence was rejected in its entirety on credibility grounds.

The court also found no miscarriage of justice arising from the trial judge’s intervention regarding prior exculpatory statements and the requirement for assurance that the accused would testify.

Any potential confusion was addressed during the trial and did not prejudice the defence.

The convictions were therefore upheld.