Elizabeth Capitano

This motion for summary judgment concerned the placement of A.M., an Indigenous child, in extended society care.

The Children's Aid Society sought an order for extended care, while the biological mother opposed it, advocating for A.M.'s return to her care.

The court emphasized the "last resort" nature of extended care, particularly for Indigenous children, and the statutory priority for family and community placements under federal legislation.

The Society failed to demonstrate that there was no genuine issue for trial, specifically lacking evidence of exhaustive efforts to find permanent family or community placements.

The motion was dismissed, preserving the possibility of A.M.'s return to her mother's care after a full trial.

The Children's Aid Society of Brant brought a motion for summary judgment seeking a finding that two Indigenous children were in need of protection and an order for their placement in the care and custody of their father, with discretionary access for the mother.

The mother conceded the protection finding but opposed the summary judgment, arguing for joint custody and a shared parenting regime.

The court granted the Society's motion in part, finding no genuine issue for trial regarding the children's primary placement with the father, due to the mother's lack of insight into past protection concerns and ongoing conflict.

However, the court found a genuine issue for trial regarding the mother's access, determining it should not be left to the father's discretion and required judicial determination.

In a child protection status review, the biological father (E.J.) brought a motion for summary judgment seeking primary care and custody of two children, S.J.M. and L.J. The Children's Aid Society and Six Nations Child and Family Services supported the father's request, while the biological mother (S.M.) opposed it, seeking the children's return to her care.

The court granted the father's motion for custody, finding no genuine issue for trial regarding placement, as the mother had not demonstrated sufficient insight or responsibility for past protection concerns.

However, the court determined that the issue of the mother's access with the children presented a genuine issue for trial and ordered it to be set for a trial management conference.

The Children's Aid Society of Brant brought a motion for summary judgment seeking continued protection findings for the child T.E.H., an order for deemed custody to the paternal aunt L.H., specific access orders for the mother and siblings, no access for the mother's partner, and discretionary access for the father.

The court found T.E.H. to be in continuing need of protection due to risk of emotional harm.

It granted deemed custody to the paternal aunt, L.H., prioritizing the child's best interests and Indigenous cultural identity.

The court made temporary access orders for the mother and siblings, but declined to make a "no access" order for the mother's partner or a discretionary access order for the father, emphasizing the court's obligation to impose specific terms and conditions for access.

The Applicant Society brought a motion for summary judgment seeking findings that three children (K.M., M.B., and J.B.) were in need of protection and should be placed in the Society's extended care.

The children's mother opposed, proposing a customary care agreement.

The court found ample evidence of the children being in need of protection due to physical and emotional abuse and sexual assault.

The court granted the Society's motion, finding no genuine issue for trial, and ordered the children into extended Society care, rejecting the customary care agreement as it could not be coercively imposed and was not agreed upon by all parties.

The Children's Aid Society of Brant sought an order placing a child in extended care with access to the grandmother at the Society's discretion.

The grandmother sought alternate weekend access and weekly virtual visits.

The court balanced the need for permanency and stability in the child's adoptive placement against the importance of maintaining consistency and routine in the child's relationship with the grandmother.

The court ordered monthly overnight access and twice-monthly virtual access, maintaining the status quo while rejecting both the Society's request for reduced access and the grandmother's request for increased access.

In a temporary care hearing under the Child and Family Services Act, the court determined whether three children should remain in the care of the Society or be returned to their mother's care.

The central issue was whether the mother had sole charge of the two younger children prior to intervention, or whether charge was shared with the father.

The court found that the mother's poor judgment in exposing the children to a serious drug trafficking situation, combined with her lack of cooperation with the Society's investigation and her provision of false information, established a reasonable basis to believe the children would suffer harm if returned to her care.

A supervision order was found inadequate to mitigate the risks.

The court ordered the oldest child to remain in the Society's care with the maternal grandmother as kin-in-care placement, and the two younger children to remain with their father subject to supervision.

A motion brought by a respondent mother seeking the return of a child to her joint care with the maternal grandmother, or alternatively, expanded access including alternate weekends and mid-week visits.

The child had been placed in the care of the Children's Aid Society following a breach of supervision order terms.

The court considered the appropriate legal test for changing a temporary care order on a status review application and determined that a change in circumstances sufficiently material to warrant review must be demonstrated.

While the mother failed to meet the threshold for placement review, the court found sufficient grounds to expand access based on positive access history and the child's best interests.

The Children's Aid Society brought a motion for summary judgment seeking protection findings and a disposition order for three children in foster care.

The Society sought to have all three children removed permanently from the mother's care and placed in extended care with a plan for adoption as a sibling group, with no access to either parent.

The court dismissed the motion, finding that the Society failed to meet its onus to demonstrate there was no genuine issue requiring trial on the issue of disposition.

The court found critical evidentiary deficiencies in the Society's case, including inadmissible hearsay evidence regarding drug testing and inadequate evidence regarding parenting capacity based on summarized access notes and group reports.

A child protection agency sought to apprehend a child based on allegations of parental alcohol abuse and impaired driving.

The respondent mother challenged the apprehension on jurisdictional grounds, arguing that the agency failed to comply with statutory prerequisites under the Child and Family Services Act, specifically the requirement to bring the matter to court within five days of apprehension and the requirement to obtain a warrant or demonstrate grounds for warrantless apprehension.

The court found that the agency unlawfully suspended the mother's court-ordered custodial time without consent, that this suspension constituted an apprehension, and that the agency failed to bring the matter to court within the statutory five-day period.

The court held that this breach of statutory requirements deprived it of jurisdiction and dismissed the protection application.

The Mississaugas of the New Credit Band Council brought a motion for release of records held by Waterloo and Brant Family and Children Services relating to the current caregiver and potential alternative caregivers in a child protection proceeding.

The motion arose in the context of an upcoming trial involving competing plans for the child's placement.

The court established a two-stage test for disclosure of kin records, requiring the moving party to first demonstrate on a balance of probabilities that the records are likely relevant, followed by judicial review to weigh probative value against privacy interests and public policy considerations.

The Attorney General of Ontario brought a motion to clarify the court's previous decision regarding a child with leukemia whose parents sought to pursue traditional Haudenosaunee medicine alongside or instead of chemotherapy.

The court had previously found that the mother's constitutionally protected right under section 35 of the Constitution to pursue traditional medicine meant the child was not in need of protection.

The Attorney General, rather than appealing, engaged in dialogue with all parties, resulting in a joint submission.

The court clarified its decision by adding paragraphs confirming that while the aboriginal right to traditional medicine must be respected, the best interests of the child remain paramount, and that the family could pursue both traditional and Western medicine collaboratively.

An 11-year-old First Nations child from Six Nations of the Grand River was diagnosed with acute lymphoblastic leukemia with a 90-95% cure rate with chemotherapy.

The child's mother withdrew consent for chemotherapy to pursue traditional medicine consistent with their longhouse beliefs.

The hospital applied under section 40(4) of the Child and Family Services Act seeking a protection order.

The court dismissed the application, finding that the mother's decision to pursue traditional medicine constituted an exercise of an aboriginal right protected under section 35(1) of the Constitution Act, 1982.

The court held that the child could not be found in need of protection when the substitute decision-maker exercised a constitutionally protected right.

The Children's Aid Society of Brant brought a motion for summary judgment seeking a Crown wardship order without access for a child born to a 15-year-old First Nations mother.

The court dismissed the motion, finding that insufficient evidence regarding the mother's background and available resources had been presented.

The court identified triable issues concerning the mother's upbringing, available community resources, and realistic rehabilitation timeframe, and adjourned the matter to a trial management conference.