Douglas Bruce Kearns

The Children's Aid Society of Algoma brought a child protection application and a motion for temporary care and custody of three children, seeking a supervision order for the mother (K.M.).

The father (D.L.) did not appear.

The court addressed procedural fairness, noting the Society's failure to provide adequate notice for both the application (30 days required) and the motion (6 days required), as materials were filed and the first court date set only four days later.

The judge declined to abridge time, finding the Society's procedure unfair and tantamount to ex parte proceedings.

Despite the Society's request for a supervision order under s.94(2)(b) of the CYFSA, the court ordered temporary care and custody to the mother without supervision under s.94(2)(a), emphasizing fairness and the lack of pressing concerns for the children.

A status review application under the Child and Family Services Act concerning two children previously found to be in need of protection due to parental neglect.

The Children's Aid Society sought to place the children with their father in Saskatchewan subject to a supervision order, with conditions for maternal access.

The mother opposed the application and sought the return of the children to her care.

The court determined that the children's best interests were served by remaining in the care of their father, and made a six-month supervision order with provisions for maternal access to be agreed upon by the parties.

This is an evidentiary ruling in a status review proceeding under the Child and Family Services Act concerning the admissibility of the views and wishes of two children (ages 14 and 11) who are represented by counsel from the Office of the Children's Lawyer.

The central issue is whether hearsay statements reflecting the children's residential preferences, expressed to their legal representative and other witnesses, are admissible at trial.

The children are not being called to testify.

The mother opposes admission of this evidence, while the father, the society, and the children's counsel support it.

The court rules that such evidence is admissible under the state of mind exception to the hearsay rule, as it reflects the children's mental state regarding their residential preferences, which is a mandatory consideration under the statute.

Motion to vary a custody and access order made on January 11, 2013, whereby custody of two minor daughters was awarded to the mother with biweekly and summer access to the father.

The father brought a motion to vary seeking to reverse the order and obtain custody, alleging material change in circumstances based on the mother's alleged non-compliance with 21 conditions of the original order.

The mother opposed the motion and denied the allegations.

The court found that while there were some instances of non-compliance, they did not constitute a material change in circumstances sufficient to warrant variation of the order.

The court dismissed the motion and imposed restrictions on future proceedings to prevent abuse of the judicial system.

The Children's Aid Society brought a motion for temporary care and custody of a child, H., who was apprehended on June 5, 2014.

The father opposed the motion and proposed that the child be placed with community members (P.C. and R.C.), while the society sought placement with itself pending completion of a kinship assessment.

The court considered whether it should defer its decision pending completion of the kinship assessment process or decide the matter on the evidence before it.

The court granted temporary care and custody to the proposed kin caregivers, finding that the decision could be made without awaiting completion of the kinship assessment.

The applicant sought a writ of possession for a residential property she owned as sole beneficiary under a will.

The respondent, her son, occupied the property and challenged her entitlement based on a separation agreement executed after the will that purportedly released estate claims.

The validity of the will had previously been upheld by the Superior Court of Justice, affirmed by the Court of Appeal, and leave to appeal to the Supreme Court of Canada had been denied.

The court held that the respondent could not re‑litigate the same issue and that the applicant was entitled to enforce the prior judgment.

A writ of possession was granted with a delayed effective date to permit the respondent time to vacate.

The plaintiffs sought an extension of time to serve a statement of claim on a contractor nearly nine years after the action was commenced, and the defendants moved to dismiss the entire action for delay.

The court found the plaintiffs’ efforts to locate and serve the contractor were lackadaisical and that significant prejudice resulted from the lengthy delay, including loss of records, faded memory, and the death of a witness.

Accordingly, the court refused to extend time for service on that defendant.

However, although the court found a period of “inexcusable delay” in prosecuting the action, it held that the remaining defendants had not demonstrated prejudice sufficient to create a substantial risk that a fair trial was no longer possible.

The motion to dismiss the entire action for delay was therefore refused.