Eric D. McCooeye

This decision addresses a motion by Children's Aid Society of Algoma seeking to substitute Nogdawindamin Family and Community Services as the applicant in a child protection proceeding.

The motion arose from the recent designation of Nogdawindamin as a native children's aid society effective April 1, 2017.

The court examined the Minister's designation of Nogdawindamin and determined that the child in question did not fall within any of the paragraphs of the designation that were currently in effect.

The court dismissed the transfer motion, finding that Nogdawindamin lacked jurisdiction to act as the applicant society in this particular case.

The Children's Aid Society of Algoma brought a motion to transfer carriage of child protection proceedings to Nogdawindamin Family and Community Services, a newly designated native children's aid society.

The court examined the ministerial designation of Nogdawindamin CAS and determined that it had jurisdiction only over children who were members of the seven specified First Nations bands residing on reserves or who met specific criteria under the designation.

The court granted the transfer motion with respect to one child (A.M.) who was an identified Indian child entitled to membership in one of the designated bands and residing on reserve.

The court dismissed the transfer motion with respect to three other children (N.M., P.F., and M.M.) who had no connection to the designated First Nations or aboriginal status.

The decision addresses the complexities of jurisdictional issues arising from the creation of native children's aid societies and the interplay between geographical and personal designations.

This decision addresses a motion by the Children's Aid Society of Algoma to transfer carriage of a child protection proceeding to Nogdawindamin Family and Community Services, a newly designated native children's aid society.

The case involves a non-Indian child (C.C.2) whose mother is a registered member of a First Nation band.

The court examined the Minister's designation of Nogdawindamin CAS, which contains complex geographical and personal jurisdictional criteria, including conditions restricting certain services pending consultation with other communities.

The court determined that Nogdawindamin CAS has jurisdiction to provide services on First Nation reserves under paragraph 1 of its designation, as the bulk of child protection services were being provided on a reserve.

The transfer was granted, though the court expressed concerns about the superficial evidence presented and the lack of information from respondents.

Following a guilty verdict, the trial judge opened a letter purportedly from a juror.

An inquiry was held where the juror denied writing the letter.

The defence subsequently applied for a mistrial or a stay of proceedings based on a reasonable apprehension of bias, arguing that the juror's subsequent contact with the Crown tainted the process.

The trial judge dismissed the applications, finding that he was functus officio under the rule in R. v. Burke, which dictates that only an appellate court has jurisdiction to order a new trial for alleged juror bias requiring reconsideration of the verdict.

The judge also held that the Burke rule does not violate section 7 of the Charter and declined to continue the inquiry due to jury secrecy concerns.

During a trial for break and enter and assault, the court ruled on whether certain defences could be left with the jury.

The court permitted the third-party suspect defence for one accused, finding sufficient evidence connecting another individual to the crime.

However, the court refused to leave the defences of self-defence and duress for the co-accused, concluding there was no air of reality to the claim that he drew a knife from the victim's kitchen in response to a threat.

The Children’s Aid Society of Algoma brought a motion to transfer the conduct of an appeal and the care of two children to Nogdawindamin Family and Community Services.

This request followed Nogdawindamin's designation as a child protection agency for the T[...] First Nation, of which the children are registered band members.

The appellant, P.M., opposed the motion, questioning the legal authority for the transfer.

The court granted the motion, finding that the Minister's designation under section 15(2) of the Child and Family Services Act provided sufficient authority for the transfer of jurisdiction and care.

The accused brought a Charter motion seeking a stay for unreasonable delay under s. 11(b).

Applying Jordan, the court held that delay arising from a defence adjournment to contest additional committal submissions under s. 548 of the Criminal Code was defence delay because the position lacked arguable merit, and that delay caused by the accuseds' non-attendance at the preliminary inquiry was also defence delay.

After deducting that time, the net delay fell below the 30-month ceiling.

In the alternative, the court held that the matter also complied with Morin as a transitional case.

Both applications were dismissed.

The accused brought a motion for a stay of proceedings based on a breach of his section 11(b) Charter rights to be tried within a reasonable time.

The charges included assault, unlawful confinement, and three breaches of a probation order, arising from events on December 14, 2014.

The accused appeared in court 28 times over approximately 23 months, with four separate trial dates set.

The first trial date was adjourned due to insufficient time; the second was not reached because the Crown proceeded with an in-custody matter; the third was adjourned due to the complainant's scheduled caesarean section; and the fourth trial date was set for November 10, 2016.

The court applied the new framework established in R. v. Jordan and found that the total delay exceeded the presumptive ceiling of 18 months for Provincial Court matters.

The court granted the stay of proceedings.

The Crown sought a voluntariness ruling regarding an exculpatory video interview conducted with the accused following his arrest for sexual offences against his step-son.

The accused argued the statement was involuntary due to drug intoxication, a public arrest, an improper strip search, and police inducements.

The court applied the confessions rule and found that, despite the accused's complaints about the arrest and search, he possessed an operating mind and was not deprived of his ability to choose whether to speak.

The statement was ruled voluntary and admissible.

The children's aid society brought a motion for an interim order pending appeal to stay a lower court decision that permitted the paternal grandparents to supervise the father's access to two young children.

The father had been the subject of sexual abuse allegations involving other children, and the society argued the grandparents were uninformed and uncooperative.

The court applied the three-part test for a stay and considered the best interests of the children.

Finding serious issues to be tried on appeal, including factual errors by the motion judge, and a risk of irreparable harm given the children's young ages and the grandparents' failure to review the evidence of risk, the court granted the society's motion and ordered that access be supervised by the society pending the appeal.

The Children's Aid Society brought two motions: (1) to remove R.J.H. as a party to child protection proceedings and terminate outstanding orders in his favor, and (2) to add D.N. as a party after DNA testing established he was the biological father of the child.

The court dismissed the motion to remove R.J.H., finding that despite not being the biological father, he qualified as a parent under section 37(1)(d) of the Child and Family Services Act by demonstrating a settled intention to treat the child as his own over many years.

The court granted the motion to add D.N. as a party, finding him to be the biological father and therefore a parent under the statutory definition, while reserving the question of whether he should be granted access or custody.

A temporary care and custody motion under the Child and Family Services Act concerning two children (ages 11 and 9) apprehended from their mother's care due to concerns regarding the mother's mental health crisis, inadequate supervision, poor home conditions, and insufficient food.

The mother was hospitalized involuntarily for exhibiting paranoid and delusional behavior.

The court found reasonable grounds to believe the children would suffer harm if returned to either parent's immediate care.

The court ordered the children remain in society care with graduated access to the mother, with an expectation of return to maternal care by September 3, 2015, contingent upon the mother's continued mental health stability and compliance with conditions.

The father's role remained uncertain pending further investigation.

The accused, charged with drug trafficking and facing a potential four-year penitentiary sentence, applied for a Rowbotham order for state-funded counsel after being denied Legal Aid due to his WSIB pension slightly exceeding the financial cut-off.

The court found that the accused lacked the means to retain counsel and that the complexity of the case, combined with the serious potential consequences, required representation to ensure a fair trial.

The application was granted, and a conditional stay of proceedings was ordered until state funding for counsel is arranged.

In a family support motion brought pending an appeal from an adjournment order, the moving party sought suspension of support payments or payment into a holding account until the validity of a separation agreement could be determined.

The court held that Rule 38(25) of the Family Law Rules is procedural only and does not confer substantive authority to grant that relief.

The court further held that the requested remedy exceeded what could properly follow even if the appeal from the adjournment were successful.

The motion was dismissed, with brief written costs submissions invited.

Following the tragic death of the children's mother, the maternal aunt and the biological father brought competing claims for interim custody.

The children had been residing with the aunt and attending school in her district prior to the mother's death.

The court found conflicting evidence regarding the father's prior involvement and noted the children's special needs required stability.

The court ordered interim joint custody, with the children residing with the aunt during the week to maintain their school placement, and with the father on weekends, pending a full trial.

In a custody dispute between a children's maternal aunt and their father following the death of the children's mother, a First Nation band sought to be added as a party or alternatively granted intervener status.

The band argued its participation was necessary to assist the court in assessing the best interests of children of First Nations heritage.

The court held that under the Children’s Law Reform Act and the Family Law Rules, a non-party should only be added where their presence is necessary to determine the issues in dispute.

Because the father was a member of the First Nation and could present cultural and community evidence, the band’s participation was not necessary.

The motion to be added as a party and the alternative request for intervener or amicus status were dismissed.

The Crown appealed from a jury verdict acquitting the accused of sexual assault.

The Crown argued the trial judge erred by excluding evidence of the accused's sexual fantasies about the complainant, allowing cross-examination of the complainant regarding prior sexual activity under section 276(2) of the Criminal Code, and inadequately charging the jury on the requirement to take reasonable steps to ascertain consent under section 273.2.

The Court of Appeal dismissed the appeal, finding the trial judge's evidentiary rulings were reasonable and legally sound, and noting the jury charge used the exact, legally correct language suggested by the Crown at trial.

The offender was sentenced following convictions on ten counts including multiple arsons, insurance fraud, identity fraud, and counselling to commit arson.

The offences involved four planned fires at residential properties and a fraudulent scheme involving a life insurance policy connected to the offender’s former spouse.

The court emphasized denunciation and deterrence, noting the offender’s role as the organizer who directed another vulnerable individual to set several of the fires.

After applying the principles of proportionality, totality, and parity, the court imposed a global sentence of seven years’ imprisonment with credit for pre‑sentence custody.

Ancillary orders included a DNA order, a lifetime firearms prohibition, and restitution payable to an insurance company for property losses.

On competing motions for interim custody and access following the recent separation of unmarried parents, the court considered allegations regarding substance use, parenting capacity, and communication difficulties.

The evidence demonstrated that prior to separation the parties successfully co‑parented their young child and both were capable caregivers.

The court found no compelling evidence that either parent posed a risk to the child and concluded that maintaining substantial involvement by both parents was in the child’s best interests.

A temporary shared parenting arrangement was ordered pending further review, with the schedule designed to reflect each parent’s work commitments.

No costs were awarded due to divided success and the parties’ limited means.

The Children's Aid Society of Algoma brought a child protection application seeking temporary care and custody of a 12-year-old child (K.A.) with placement with the child's paternal grandparents, subject to a supervision order.

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

The court found that the society met the two-part test under section 51(3) of the Child and Family Services Act, establishing reasonable grounds to believe the child was likely to suffer harm if returned to the mother's care and that the child could not be adequately protected by a non-removal order.

The court granted temporary care and custody to the paternal grandparents.