Francois Kasenda Kabemba

This endorsement addresses the scope of the Office of the Children's Lawyer (OCL) involvement in a family law matter.

The OCL sought to expand its order to include a section 112 clinical assessment for both children, not just the older child, citing identified parenting issues and the high-conflict nature of the case.

The respondent mother opposed the expansion for the younger child, arguing he was not the subject of current litigation and that the court lacked jurisdiction without a formal motion to vary.

The court found that a Motion to Vary involving both children was already pending, initiated by the mother in 2020 with the father's response addressing both children.

Additionally, the court affirmed its authority under section 112(3) of the Courts of Justice Act to request such a report on its own initiative.

The court ordered the OCL's involvement to be expanded to include a section 112 report for both children, deeming it necessary to determine a parenting arrangement in their best interests.

This family law trial addressed decision-making responsibility, parenting time, child support, and a minor claim for reimbursement.

The court implemented a parallel parenting regime, granting the mother sole decision-making for medical care and the father for education, dental, and extracurricular activities, with mutual consultation.

The existing week-about parenting schedule was maintained.

The father's claim for cellphone reimbursement was dismissed.

Child support arrears were calculated, and ongoing payments were ordered based on the set-off method.

The respondent father brought an urgent motion for primary residence and sole decision-making responsibility of the parties' four children after the applicant mother left the matrimonial home with them and denied the father contact for several months.

The mother brought a countermotion for primary residence and child support, alleging abuse by the father.

The court reviewed CAS records, which did not substantiate the mother's abuse allegations but highlighted concerns regarding the mother's ability to maintain a clean home and ensure the children's hygiene.

The court granted the father sole decision-making responsibility and primary residence, while ordering a week on/week off shared parenting schedule.

Ongoing child support was ordered on a set-off basis, with retroactive support reserved.

The applicants sought judicial review of a Refugee Appeal Division (RAD) decision denying their refugee protection claim.

The RAD confirmed the Refugee Protection Division's finding that the applicants failed to rebut the presumption of state protection in Belgium.

The Federal Court found the RAD's decision unreasonable due to inadequate reasons and failure to conduct an independent analysis of the record, remitting the matter for redetermination.

The applicant children's aid society and the respondent mother each brought motions regarding the temporary care and custody of two children.

The children had been removed from the mother's care due to her erratic and aggressive behavior and placed with their respective fathers.

The court applied the test under section 94 of the Child, Youth and Family Services Act, 2017, finding reasonable grounds to believe the children would be at risk of harm if returned to the mother.

The court ordered that the children remain in the temporary care of their fathers.

Following a successful appeal that increased the father's parenting time, the court issued supplementary reasons to determine the parenting schedule for the summer of 2021.

The mother opposed the father's request for time, citing the children's enrollment in summer camps and a planned trip.

The court found the mother's attitude concerning and ordered a schedule that provided the father with three weeks of parenting time, requiring the cancellation of some recently booked camps to prioritize the children's time with their father.

The appellant father appealed a trial judge's order granting the respondent mother sole custody, permitting her to relocate with the children to Montreal, setting parenting time, and awarding costs.

The father also brought a motion to introduce fresh evidence.

The Divisional Court dismissed the motion to introduce fresh evidence, finding it was offered to test the trial judge's conclusions in hindsight rather than to update the court on the children's circumstances.

The court upheld the trial judge's decisions on custody and relocation, finding no palpable and overriding errors.

However, the court allowed the appeal in part regarding parenting time, finding the trial judge failed to give sufficient weight to the maximum contact principle and the father's ability to teach the children about their Inuit heritage.

The court expanded the father's parenting time to include extended alternate weekends and significant holiday and summer blocks.

The applicant, a citizen of the Democratic Republic of the Congo residing in a refugee camp in Zambia, applied for immigration under the Private Sponsorship of Refugees Program.

An immigration officer initially found she met the criteria but later refused the application after discovering the applicant's daughter had traveled to the United States on a Congolese passport.

The applicant sought judicial review, arguing breaches of procedural fairness and unreasonableness.

The Federal Court allowed the application, finding the officer breached procedural fairness by relying on credibility concerns that were never communicated to the applicant, denying her an opportunity to respond.

The Court also found the decision unreasonable due to inconsistent and insufficient reasoning.

This endorsement addresses a dispute over costs following a previous motion.

The respondent sought to enforce a settlement agreement where the applicant would pay $3,000 in costs at $150 per month.

The applicant argued she did not agree to this amount and could not afford it.

The court found a clear and unequivocal settlement agreement between counsel, which the applicant had partially acted upon.

Applying principles of a lawyer's ostensible authority to settle, the court upheld the agreement, ordering the applicant to pay the agreed-upon costs.

The applicant applied for judicial review of an Immigration Appeal Division (IAD) decision dismissing her sponsorship appeal for lack of jurisdiction under subsection 64(3) of the IRPA, as her niece did not fall within the exception.

The Federal Court admitted new evidence of an adoption judgment obtained after the IAD decision and allowed the judicial review, remitting the matter to the IAD to reconsider its jurisdiction.

The moving party successfully brought a motion to quash the responding party's appeal of an interlocutory order from the Small Claims Court.

The moving party sought costs on a substantial indemnity basis, relying on a settlement offer made prior to the motion.

The court found that the moving party obtained a result as favourable as the terms of her offer and awarded substantial indemnity costs fixed at $1,550.

The applicant sought an order for partition and sale of the matrimonial home and for a portion of the proceeds to be held in trust pending resolution of family law issues including child support, spousal support, and equalization of net family property.

The court dismissed the application without costs, finding that relief related to the matrimonial home should be sought within the existing family law litigation (commenced in 2013) to avoid prejudicing parties' rights and to address all related issues holistically.

The court also noted the applicant's delay in pursuing the matter and her own contribution to the urgency claimed, as she was a joint tenant and defaulted in the bank's action.

The respondent obtained a default judgment against the appellant in Small Claims Court.

The appellant successfully moved to set aside the default judgment, but the deputy judge imposed a condition that the appellant pay $25,000 into court.

The appellant appealed this condition to the Divisional Court.

The respondent brought a motion to quash the appeal, arguing the conditional order was interlocutory.

The Divisional Court agreed that the order was interlocutory and that under section 31 of the Courts of Justice Act, there is no right of appeal to the Divisional Court from an interlocutory order of the Small Claims Court.

The motion to quash the appeal was granted.

The defendants moved for summary judgment to dismiss a professional negligence action arising from a gas station purchase.

The plaintiffs, former shareholders of a bankrupt corporation, alleged their lawyer failed to update a TSSA certificate, leading to deficiencies.

The court found the plaintiffs' claims were personal, not corporate, and were barred by the Limitations Act, 2002, as they were discovered in May 2008, but the action was commenced in December 2010.

The court also ruled that a nunc pro tunc order under s. 38 of the Bankruptcy and Insolvency Act was invalid as it was sought after the limitation period expired, and that the rule in Foss v. Harbottle barred the plaintiffs' claims for loss of investments and income.

The defendants' motion for summary judgment was granted, and the plaintiffs' cross-motion was dismissed.

The appellant brought a motion to extend the time to perfect his appeal and to stay a paragraph of the trial judge's order that terminated child support payable by the respondent.

The respondent brought a cross-motion to dismiss the appeal or for security for costs.

The court granted the extension of time to perfect the appeal, finding the appellant had an intention to appeal and the delay was explained by a death in the family.

However, the court dismissed the motion for a stay of the child support termination, finding no irreparable harm to the appellant and that the respondent would suffer greater prejudice if the stay were granted.

The applicant father brought a motion for a final order for joint custody, arguing the parties had reached an oral agreement in the courthouse hallway.

The respondent mother opposed the motion and brought a cross-motion to modify the father's access rights, arguing he failed to pay child support arrears as agreed.

The court found that no final agreement on joint custody had been reached, as essential terms including child support and decision-making were not resolved.

The court also declined to modify the existing interim custody order, finding no material change in circumstances.

Both motions were dismissed without costs.

Le requérant et l'intimée ont présenté une motion pour fixer la pension alimentaire pour enfants payable rétroactivement.

La question principale était de savoir si l'intimée avait tenu lieu de mère (in loco parentis) envers l'enfant biologique du requérant issu d'une union précédente.

La Cour a conclu que l'intimée n'avait pas tenu lieu de mère, notant l'absence d'implication dans la vie scolaire et médicale de l'enfant, la relation difficile entre eux, et le rôle actif de la mère biologique.

Par conséquent, aucune pension alimentaire n'est payable par l'intimée pour cet enfant.

La Cour a également fixé les montants de pension alimentaire et de dépenses spéciales payables par le requérant pour les enfants du mariage.

Following the dismissal of the applicant's property claim, the respondent parties sought costs on a substantial indemnity basis.

The court reviewed the factors under Rule 57.01, noting the applicant's conduct unnecessarily prolonged the proceedings and complicated a simple contractual dispute.

However, the court declined to award substantial indemnity costs, finding the settlement offers did not trigger Rule 49.10 consequences.

The court reduced the requested amounts due to duplication of effort, excessive use of senior counsel, and unreasonable refusal of a settlement offer by one respondent, awarding total costs of $47,500 across the three respondents.

The plaintiff, Nissan Canada Finance, brought a motion for summary judgment against the defendants for amounts outstanding on a vehicle lease.

The defendants leased a vehicle which immediately went into arrears and was later involved in an accident and sold at auction.

The defendants opposed the motion, arguing there were genuine issues for trial, including the amount owing, whether the plaintiff had to pursue insurance, and the vehicle's sale price.

The court found no genuine issue for trial, as the amounts were readily ascertainable from the contract and the plaintiff had no obligation to pursue the defendants' insurer.

Summary judgment was granted in favour of the plaintiff.

The applicant sought a declaration of ownership over a 13-acre parcel of land, relying on concepts of constructive/resulting trust, unjust enrichment, proprietary estoppel, and adverse possession.

The court dismissed the application, finding that the applicant failed to establish the legal requirements for these remedies and was barred by the doctrine of laches due to significant delay in asserting his claim after multiple property transfers.