Katherine Hensel

The applicant, a self-represented off-reserve First Nations member, sought judicial review of a decision by the Chiefs of Ontario (COO) declining to intervene and provide political advocacy regarding his personal legal disputes and broader systemic concerns.

The COO brought a motion to dismiss the application for lack of jurisdiction.

The Divisional Court granted the motion, finding it plain and obvious that the application would fail.

The court held that the COO is a private voluntary association, and its decision was not public in nature, thus falling outside the scope of judicial review.

Furthermore, the political remedies sought by the applicant were deemed non-justiciable.

This is a costs endorsement following an appeal in a child protection case.

The appellant, T.M., sought partial indemnity costs against the individual respondents (parents and aunt) and the Oneida Nation of the Thames.

The Court of Appeal for Ontario, guided by the Family Law Rules, declined to award costs against the individual respondents but found it appropriate to order costs against the Oneida Nation.

The court noted that the Oneida Nation's costs submissions contained unsworn, unproven, and disrespectful statements attacking the appellant's character, and that the appellant had to bring a contested motion for continued access pending appeal.

The court ordered the Oneida Nation to pay $10,000 in costs to the appellant.

The appellant, a kin caregiver for a First Nations child, appealed an order dismissing a child protection proceeding and denying her motion to be added as a party.

The motion judge had dismissed the proceeding based on a customary care agreement signed by the biological parents, the child's aunt, the First Nation, and the Children's Aid Society, which excluded the appellant.

The Court of Appeal allowed the appeal, finding that the appellant met the statutory definition of a 'parent' under the Child, Youth and Family Services Act and was entitled to party status.

The Court further held that the proceeding could not be dismissed on consent without the appellant's participation and a proper analysis of the child's best interests.

This appeal concerns whether the appellants, who have cared for an Indigenous child (J.T.) since infancy, are entitled to bring an application for parenting orders under the Children’s Law Reform Act (CLRA).

The motion judge allowed the application, but the appeal judge overturned, finding the appellants were "foster parents" precluded from bringing such an application and that a valid customary care agreement existed.

The Court of Appeal found that Dilico Anishinabek Family Care acted without legal authority by maintaining de facto guardianship after temporary care agreements expired and that subsequent agreements were not valid customary care agreements due to lack of consent from all parties.

The Court held that judicial oversight is required and that the appellants are entitled to pursue their CLRA application, regardless of whether they are characterized as foster parents or customary caregivers, as the CLRA provides an avenue for determining the child's best interests, incorporating national standards for Indigenous children.

The plaintiff professional corporation brought an action against the Law Society of Ontario, several individuals, and a Superior Court judge, seeking damages and declarations related to a previous unsuccessful application.

The defendants requested the action be dismissed under Rule 2.1.01.

The court dismissed the action as frivolous, vexatious, and an abuse of process, finding that the judge had absolute immunity, the plaintiff corporation had no cause of action, the issues had already been decided in the previous proceeding, and the pleadings contained inflammatory and bellicose language.

The applicant, an Indigenous child welfare agency, sought judicial review of a Minister's decision amending the designations of child welfare agencies in the Thunder Bay area.

The decision expanded the jurisdiction of another Indigenous agency to provide services to its affiliated families residing in Thunder Bay.

The Divisional Court dismissed the application, finding that the Minister's decision was a policy decision that met the requirements of procedural fairness and was reasonable under the Vavilov framework.

The appellant appealed an order dismissing his application against the Law Society of Ontario and various individuals.

The motion judge had found the appellant's pleadings to be scandalous, frivolous, vexatious, and an abuse of process due to their rambling, racist, and misogynistic content.

The Court of Appeal, exercising its authority under Rule 2.1 of the Rules of Civil Procedure, dismissed the appeal as frivolous, vexatious, and an abuse of process, finding that the appellant's notice of appeal and factum continued the abusive conduct and raised no arguable grounds.

This is a costs endorsement from the Court of Appeal for Ontario.

The applicants' motion resulted in an order for them to pay costs to the respondent, Dilico Anishinabek Family Care, in the amount of $3,500, inclusive of HST and disbursements.

The moving parties, who had cared for an Indigenous child since shortly after birth, sought a stay of a Superior Court decision that struck their custody application and permitted the children's aid society to relocate the child to a different province.

The Court of Appeal granted the stay pending the final determination of the appeal, finding that there was a serious issue to be tried regarding the validity of out-of-court customary care agreements and the best interests of the child.

The court concluded that the child would suffer irreparable harm if removed from her long-term caregivers before the appeal was resolved, and that the balance of convenience favoured maintaining the current placement with conditions to ensure ongoing connection to the child's Indigenous culture and family.

Dilico Anishinabek Family Care appealed an order dismissing its motion to strike a custody application brought by the foster parents of an Indigenous child.

The child had been placed with the foster parents under an alternative care agreement, while a customary care agreement was in place with the child's First Nation.

The Superior Court of Justice allowed the appeal, finding that the motion judge erred in concluding that out-of-court customary care agreements fall outside the CYFSA.

The court held that the applicants were foster parents and thus prohibited from bringing a custody application under the CLRA, and that deference was owed to the placement decision of the agency acting under the authority of the First Nation.

Following the dismissal of the applicant's proceeding, the successful respondents sought costs.

The court found the application to be scandalous, frivolous, and vexatious, noting the applicant, a self-represented lawyer, engaged in egregious misconduct including racist and personal attacks against the respondents and their counsel.

The court awarded substantial indemnity costs to the Law Society of Ontario in the amount of $33,000 and to the individual respondent in the amount of $12,742.86, emphasizing the need to sanction the applicant's abuse of the justice system.

Following the withdrawal of a status review application by the child protection society, the respondent foster parents, maternal grandmother, and First Nation band sought costs against the society.

The court reviewed the principles for awarding costs against a child protection agency, noting that costs are only appropriate if the society acted in a patently unfair or indefensible manner.

The court found that the society's actions in bringing the application to address access issues and a breakdown in the foster placement were reasonable based on the information available at the time.

The requests for costs were dismissed.

The applicant lawyer commenced an application seeking to halt a Law Society of Ontario investigation into complaints regarding his social media posts, and claiming damages against the LSO and the individual complainants.

The respondents moved to strike the application.

The court dismissed the application on the basis that it was improperly commenced by Notice of Application rather than a Statement of Claim.

In the alternative, the court held it would have struck the applicant's pleadings in their entirety without leave to amend under Rule 25.11, finding them to be scandalous, frivolous, vexatious, and an abuse of process.

The self-represented applicant filed voluminous, non-compliant, and electronically restricted materials, including an unauthorized transcript of a prior hearing.

The court struck the unauthorized transcript for contravening section 136 of the Courts of Justice Act and issued strict procedural directions to manage the unwieldy litigation, scheduling special appointments for the applicant's publication ban motion and the substantive application.

The self-represented applicant lawyer brought an application against the Law Society of Ontario and several individuals following online disputes and subsequent professional complaints.

The matter came before the court on a regular motions list but was plagued by procedural irregularities, including improper service, failure to file application records, and disputes over representation.

The court adjourned the matter to a special appointment hearing, provided strict timetables for the filing of materials, and dismissed the applicant's request to remove opposing counsel from the record for alleged sharp practice.

The appellant appealed a motion judge's decision staying her application for sole custody of an Indigenous child under the Children's Law Reform Act.

The child was placed with the appellant pursuant to a Customary Care Agreement under the Child, Youth and Family Services Act.

The motion judge stayed the custody application under section 103 of the CYFSA, finding that the customary care agreement ousted the custody application.

The Superior Court dismissed the appeal, holding that while section 103 may not strictly apply to customary care agreements, the legislative intent of the CYFSA prioritizes customary care for Indigenous children, and the court's inherent jurisdiction under section 106 of the Courts of Justice Act properly supported the stay.

A case management teleconference was held regarding two related applications involving Indigenous child and family services.

Counsel for the moving party did not attend due to an administrative error by court staff.

The court noted ongoing discussions to convert one of the applications into an action and directed the parties to resolve the issue or bring a motion.

The court also addressed scheduling, noting that a return date before the end of 2020 would require proof of readiness and urgency, and encouraged the parties to agree on a schedule.

Following the dismissal of the applicants' motions for a stay of a Ministerial Directive, the court determined the costs of the motions.

The intervenor's request for costs was denied, as the opposition to the stay was already mounted by the respondents.

The respondent Tikinagan sought partial indemnity costs of approximately $108,000.

The court found this amount excessive, noting the public interest nature of the case, the overlap of work with the main applications, and the principle of proportionality.

Costs were fixed at $50,000 payable to Tikinagan, with each applicant responsible for $25,000.

In a group of six child protection appeals, the appellant J.B. brought a motion to reconstitute the panel, seeking to replace one of the judges due to her involvement in a prior unanimous decision that had reinstated a no-access order against J.B. The appellant argued for a reasonable apprehension of bias.

The Court of Appeal denied the motion, reaffirming the strong presumption of judicial impartiality and the high burden on the party alleging bias.

The court held that a judge's prior ruling against a party on a legal issue in a different case does not create a reasonable apprehension of bias for a new case involving different legal issues, even if the parties are the same.

This appeal concerned the liability of Children's Aid Societies (CAS) and the Ontario government for damages arising from flawed hair follicle drug and alcohol test results from the Motherisk Drug Testing Laboratory (MDTL) used in child protection proceedings.

Family members (parents and siblings) of children apprehended by CASs sued for negligence, negligent investigation/supervision, intentional infliction of mental distress, bad faith, breach of fiduciary duty, misfeasance in public office, and Charter breaches.

The motions judge dismissed these claims, finding that CASs and Ontario did not owe a private law duty of care to parents or family members, as their primary duty is to the child's best interests, creating an untenable conflict of interest.

The Court of Appeal upheld the motions judge's decision, affirming that the CAS's duty is solely to the child, and Ontario's duties are general public duties, not private law duties to individuals in child protection matters or related to laboratory oversight.

The court also rejected claims of bad faith and Charter breaches as being disguised negligence claims, and dismissed claims for breach of fiduciary duty and s. 35(1) of the Constitution Act, 1982, finding these duties are owed to the Indigenous child, not the Indigenous parent.