Jessica Gagné

The applicant mother brought a motion to stay two orders granting the respondent father overnight access and police enforcement of that access, pending her appeal.

The court found the mother did not meet the test for a stay, noting her history of non-compliance with court orders and lack of a serious issue to be tried.

However, acting in the child's best interests, the court ordered a short transitional access schedule culminating in overnight access, while maintaining the police enforcement order.

This costs endorsement follows a successful motion by L.M. for state-funded counsel to appeal a summary judgment that made her three children Crown wards with no access.

The Children's Aid Society (CAS) opposed the motion, arguing the appeal lacked merit, despite L.M. meeting all other criteria for state-funded counsel.

The court found the CAS's opposition unreasonable, particularly given the low merit threshold for such applications and L.M.'s constitutional right to a fair hearing.

The court awarded L.M. costs on a full recovery basis, totaling $12,482.49, emphasizing that costs orders serve to sanction unreasonable conduct and promote access to justice, especially when a reasonable offer to settle was rejected.

A child protection application brought by the Children's Aid Society of Toronto seeking a finding that a child is in need of protection due to risk of sexual abuse or exploitation.

The respondent mother acted as surety for her brother, who was charged with multiple counts of luring, sexual exploitation, and child pornography involving teenage female students.

The court found the child to be in need of protection based on the mother's failure to recognize or protect against the risk posed by the maternal uncle, despite overwhelming evidence of his predatory conduct.

The court made a finding of need for protection but declined to make a further order, noting that the maternal uncle's incarceration had ameliorated the imminent risk.

The moving party sought state-funded counsel to pursue an appeal from a summary judgment order making her children Crown wards without access.

Applying the Supreme Court’s state-funded counsel framework, together with an additional low-threshold merits inquiry at the appellate level, the court held that the moving party had exhausted legal aid avenues, was indigent, and could not receive a fair hearing without counsel.

The court found several arguable grounds of appeal, including the treatment of the status review for one child, the failure to consider a six-month extension under the statute, the summary judgment analysis on access, and the use of judicial notice concerning the effect of access on adoption prospects.

Denying counsel would breach s. 7 of the Charter, so further proceedings were stayed and Ontario was ordered to fund counsel, transcripts, and reasonable disbursements.

The appellant father appealed a final restraining order that prohibited him from attending within 500 metres of the respondent mother's home, work, church, or college, and their child's school or daycare.

The appellant argued the order should include a knowledge requirement since he did not know the addresses, and challenged the motions judge's imposition of preconditions (remorse and counselling) for reviewing the order.

The Superior Court of Justice dismissed the knowledge requirement ground as it was raised for the first time on appeal, but struck the preconditions, finding the motions judge breached procedural fairness by imposing them without notice and exceeded his jurisdiction under the Family Law Act.

A focused trial concerning child support for an 8-year-old child born to separated parents who had entered into a Separation Agreement providing for shared custody and a set-off child support arrangement.

The primary issues were determination of each party's income (particularly the father's rental income and expenses), retroactive and prospective child support arrears, section 7 special or extraordinary expenses (cello, mandarin, and swimming lessons), and the allocation of tax credits and benefits.

The court determined the parties' incomes after careful analysis of the father's rental properties and expenses, fixed arrears at $7,999.09, and ordered prospective child support with both parents paying the other based on their respective incomes.

The mother appealed a trial judge's decision finding her child, who has Down Syndrome, in need of protection and making him a Crown ward without access.

The appeal was allowed.

The Superior Court found the trial judge erred by failing to hold a bifurcated hearing, improperly admitting disposition evidence during the protection phase.

Furthermore, the trial judge made palpable and overriding errors by failing to consider evidence supporting the mother's position and by finding the child was at risk of physical and emotional harm without sufficient evidence, including a lack of expert evidence regarding emotional harm.

The court ordered the child to be returned to the mother's care.

The Catholic Children's Aid Society apprehended a two-year-old child from non-biological caregivers who had cared for the child since birth.

The biological mother, who has profound hearing loss and other impairments, had placed the child with them.

The biological father, who is also hearing impaired, was largely kept out of the child's life by the caregivers.

The Society, the father, the maternal grandmother, and the caregivers all proposed plans for temporary care and custody.

The court found that the caregivers did not have legal 'charge' of the child prior to apprehension, as they had established their status quo by extra-legal means and by taking advantage of vulnerable parents.

The court ordered that the child be placed in the temporary care and custody of the biological father, finding it in the child's best interests.

The applicant wife brought a motion for child and spousal support retroactive to the application date.

The respondent husband acknowledged child support but disputed spousal support, with the central issue being the determination of his qualifying support income from his self-employment through E-Limika Consulting Inc. The court found the husband failed to provide adequate and corroborated documentation for significant business expenses, leading to an imputation of income.

The court ordered retroactive and ongoing child and spousal support, to be paid from the husband's share of matrimonial home sale proceeds held in trust.

The Applicant sought full indemnity costs for various attendances concerning child custody and access, alleging the Respondent's abusive behaviour and unreasonableness.

The Respondent opposed, seeking costs for one attendance and no costs for others, arguing the Applicant's true motivation was to marginalize him.

The court, having reserved on costs until the Office of the Children's Lawyer (OCL) report was received, made a global costs award.

The court found both parties contributed to the escalation of costs due to their conduct, with the Applicant's aggressive approach and overstatements, and the Respondent's denial and resistance.

The OCL report validated concerns but did not use the term "abusive." Considering the importance and complexity of the issues, the reasonableness of conduct, lawyer's rates, and the overall outcome (Respondent eventually accepting OCL recommendations), the court fixed a global costs award of $24,000, inclusive of disbursements and taxes, payable by the Respondent to the Applicant, which was significantly less than the Applicant's requested $62,000.

On a motion to set aside portions of a default final family law order, the court applied the default judgment set-aside principles and held the moving party acted promptly, provided an adequate explanation for the default, and showed arguable merit on custody and child support.

The court emphasized that sole custody had been granted on an uncontested basis without a sufficient best-interests record and that the support order may have exceeded the relief claimed and overstated income.

The interests of justice favoured allowing participation in the proceeding, particularly given the age of the children, the ongoing dispute about parenting arrangements, and the potential prejudice arising from equalization claims.

Paragraphs dealing with custody and child support were set aside, enforcement was halted, and the moving party was permitted to file responding materials.

The plaintiffs successfully defended an appeal from a certification order and sought substantial indemnity costs, arguing the defendant's conduct was part of a litigation strategy to obfuscate and delay.

The Divisional Court rejected this argument, finding no reprehensible conduct to justify substantial indemnity costs.

The court awarded the plaintiffs partial indemnity costs fixed at $35,000, finding the defendant's costs outline of approximately $34,400 to be a more reasonable reflection of the work required for two half-day hearings.