J.J. Avery

This case involves two motions within the context of a father's motion to change a final parenting order.

The applicant father sought to confirm interim parenting arrangements for the two children, while the respondent mother moved to strike the father's affidavit containing a surreptitiously recorded telephone conversation with the maternal grandmother.

The court granted the mother's motion to strike the recorded evidence, citing public policy against surreptitious recordings in family law, the involvement of a third party, and the hearsay nature of the evidence.

The court also granted the father's motion, confirming the de facto parenting schedule of alternate weekends with the mother (supervised) and the remaining time with the father, finding a material change in circumstances and that this arrangement served the children's best interests, particularly for the younger child requiring stability.

No costs were awarded due to divided success.

The appellant mother appealed a trial judge's decision placing her two children in the extended care of the Children's Aid Society without access.

The mother argued the trial judge erred in finding the children were not Métis children under the CYFSA, in finding they were in need of protection due to sexual abuse or exploitation, and in excluding certain documentary evidence.

The appeal court found the trial judge erred in law by failing to identify the children as Métis, but concluded this error did not render the proceeding a nullity or change the ultimate disposition, as extended Society care was the only viable option to protect the children from the risks of domestic violence and sexual exploitation.

The appeal was dismissed.

The appellant father appealed a final order of custody granting care of his biological child to the maternal grandmother.

The child, who has Native status, was found in need of protection after the mother passed away.

The father argued the trial judge erred in applying the best interests test, weighing his criminal record, and assessing the grandmother's commitment to the child's cultural heritage.

The appeal court dismissed the appeal, finding the trial judge made no palpable and overriding errors and properly considered the child's Native status and best interests.

The respondent sought costs following a successful motion to dismiss the applicant's rule 14(4.2) motion to change on the basis that the court was functus officio.

The applicant argued that the contempt motion and the motion to change should be viewed as a continuum and that the respondent acted recklessly.

The court rejected these arguments and found that the presumption of entitlement to costs was not displaced.

However, the court reduced the claimed costs of $15,239.59 to $6,250.00, finding that the hours claimed were excessive and that certain expenses were not recoverable.

The court also disallowed claimed court attendances that should have been addressed at prior steps in the case and rejected a claim for lost wages and travel expenses.

The respondent brought a motion to dismiss the applicant's motion to change a final custody and support order on the grounds that the court was functus officio.

The applicant had attempted to bring the motion to change under Family Law Rules subrule 14(4.2) (urgent motions for temporary orders) rather than under Rule 15 (the prescribed procedure for changing final orders).

The court held that once a final order is signed, it can only be changed by appeal or by a motion to change under Rule 15.

The applicant's attempt to use Rule 14(4.2) was procedurally improper, and the motion to dismiss was granted.

The respondent brought a motion to remove the applicant's solicitor, Ms. Avery, from the record in contempt proceedings.

The respondent argued that Ms. Avery must testify regarding her attendance at a police station with the applicant on October 7, 2015, and therefore could not continue as counsel.

The applicant opposed removal, arguing that Ms. Avery's evidence did not meet the high threshold of materiality and necessity required to deprive him of counsel of choice.

The court dismissed the motion, finding that the evidence was available from other sources and did not reach the exceptional circumstances threshold required for removal.

A parent appealed an order granting Crown wardship without access that had been granted on a summary judgment motion.

The court found the trial judge erred by proceeding when the parent had recently lost appointed counsel and had been unable, despite efforts, to secure replacement counsel in time for the hearing.

The court held that the seriousness of permanently severing the parent‑child relationship required a full hearing with witnesses subject to cross‑examination, and that summary judgment was inappropriate in the circumstances.

The denial of an opportunity to be heard constituted a palpable and overriding error.

The appeal was allowed, the wardship order set aside, and the matter remitted to the Ontario Court of Justice for further case management.

A summary judgment motion brought by the Children's Lawyer on behalf of two Indigenous children seeking Crown wardship without access.

The maternal grandfather and Walpole Island First Nation opposed the motion, arguing a trial was necessary.

The court found no genuine issue for trial and granted Crown wardship, finding that the children's best interests were served by remaining in their current foster placement with an Indigenous family rather than transitioning to the grandfather's care on the First Nation territory.

The court considered the children's special needs, cultural identity, continuity of care, and the grandfather's inconsistent access pattern over two years.

The respondent mother brought a motion to set aside an order made on February 3, 2014, which declared her daughter a ward of the Crown with no access.

The mother sought to rely on facts arising or discovered after the order was made, arguing that fresh evidence would undermine important findings of fact and put the best interests of the child back in issue.

The court considered whether Rule 59.06(2)(a) of the Rules of Civil Procedure applied to child protection proceedings and, assuming it did, examined whether the mother met the conjunctive criteria for setting aside an order based on newly discovered evidence.

The court found that the evidence presented—affidavits from the child's father, a neighbour, and the mother's boyfriend—did not constitute new evidence, would not have changed the outcome, and raised credibility concerns.

The motion was dismissed.

The applicant sought a temporary order for custody of the parties' child, born December 25, 2013, following separation on September 2, 2014.

The applicant was charged with assaulting the respondent and released on an undertaking prohibiting direct or indirect communication with the respondent.

The court determined that it was in the child's best interests to remain in the care of the respondent mother, with the applicant granted supervised access of three hours per week.

The court found the respondent was the primary caregiver during cohabitation, works part-time and is more available, and that the child benefits from remaining in the familiar home.

The applicant's request for week-about care was denied due to lack of evidence regarding the child's needs and the applicant's care plan.