Kevin Doyle

The moving party husband brought a motion for leave to appeal a decision of Audet J. The Divisional Court dismissed the motion, finding it had no merit and was an unjustifiable waste of resources.

Costs were awarded to the responding party wife on a substantial indemnity basis.

During a case management teleconference for a motion for leave to appeal, the responding party objected to the inclusion of a previously disallowed affidavit and email communications in the moving party's materials.

The court ruled that the disallowed affidavit could remain in the record solely to assess the motions judge's decision to strike it, but not for the truth of its contents.

However, the court struck out the email communications because they were not before the motions judge and raised a challenge not previously raised.

The applicant sought leave to appeal an interim decision regarding temporary custody and access in a high-conflict family law case.

During a case management teleconference, the court set a timetable for the written motion for leave to appeal.

The court denied the applicant's request for oral argument, noting that motions for leave to appeal are typically heard in writing and this case did not present exceptional circumstances warranting a departure from the standard practice.

The applicant, a citizen of Nigeria, sought judicial review of a visa officer's refusal of his study permit application to attend George Brown College in Toronto.

The officer concluded the applicant was not a genuine student and would not leave Canada at the end of his stay.

The Federal Court granted the application for judicial review, finding the visa officer's decision unreasonable and lacking an internally coherent and rational chain of analysis.

The Court held the officer failed to meaningfully engage with the applicant's detailed study plan, financial support from his brother in Canada, and family ties in Nigeria.

The decision was set aside and remitted for redetermination by a different visa officer.

The applicants sought judicial review of a decision by the Refugee Appeal Division dismissing their appeal and confirming that they are neither Convention refugees nor persons in need of protection.

The principal applicant, a citizen of Nigeria, alleged her family would force her minor daughter to undergo female genital mutilation if returned.

The Court found the RAD's credibility assessment and rejection of corroborative evidence unreasonable, particularly its blanket rejection of family members' affidavits as self-serving.

The application for judicial review was granted and the matter remitted for reconsideration.

The applicants sought judicial review of a Refugee Appeal Division decision rejecting their refugee claims.

The applicants argued that the RAD applied an incorrect standard of proof and made unreasonable plausibility findings when it concluded that there was insufficient evidence to establish that the individuals who kidnapped the female applicant and her daughter in Bangladesh were members of the police or security forces.

The Federal Court found that while the RAD's plausibility finding regarding the principal applicant's decision to report the kidnapping to the police was unreasonable, this error did not taint the core finding that the applicants failed to establish the identity of the kidnappers on a balance of probabilities.

The application for judicial review was dismissed.

The applicant applied for judicial review of a visa officer's decision refusing her study permit application and finding her inadmissible to Canada for five years for misrepresentation.

The officer concluded that a Guaranteed Investment Certificate submitted with the application was fraudulent.

The Federal Court dismissed the application, holding that the duty of procedural fairness was met because the applicant was given an opportunity to respond to the concerns.

The Court also held that the decision was reasonable, noting that the applicant was ultimately responsible for all materials in her application, even though she claimed the fraudulent document was provided by a travel agent.

The applicant father brought a motion seeking to find the respondent mother in contempt of court for failing to comply with multiple court orders requiring her to facilitate the return of their two children from Ethiopia to Ottawa.

The mother had left the children with their maternal grandmother in Ethiopia and returned to Canada alone.

The grandmother subsequently refused to release the children to a court-ordered escort.

The court found that while the mother failed to comply with several provisions of the orders, her disobedience could not be proven beyond a reasonable doubt to be deliberate and wilful in all instances, and the court exercised its discretion to decline making contempt findings at this time.

However, the court issued a new temporary order requiring the mother to travel to Ethiopia at her own expense to retrieve the children and bring them to Ottawa by February 28, 2020, failing which she may be held in contempt.

The accused was charged with mischief endangering life after lighting a fire at a gas station, causing injury to himself and endangering others.

The Crown conceded that the accused was incapable of appreciating that his actions were wrong due to cannabis-induced psychosis, but argued that cannabis-induced psychosis does not constitute a mental disorder within the meaning of s. 16 of the Criminal Code.

The court found that the accused suffered from an underlying propensity to psychosis triggered by prolonged cannabis use, distinguishing his case from simple drug intoxication.

Applying the internal cause and continuing danger factors from R. v. Bouchard-Lebrun, the court found the accused not criminally responsible on account of mental disorder.

The defendant was sentenced for two counts of breaching a section 161 prohibition order under the Criminal Code.

The defendant had previously been convicted of sexual interference against his stepson and was subject to a prohibition order restricting contact with persons under 16 years of age.

The defendant breached this order on two occasions by being alone with children without an approved adult present.

The Crown sought consecutive jail sentences totaling 12 months, while the defence sought a conditional sentence of 9 to 12 months.

The court imposed consecutive conditional sentences of 6 months each for a total of 12 months, followed by 3 years of probation, finding that a conditional sentence was appropriate given the lower end seriousness of the breaches, the defendant's rehabilitation efforts, and the low risk of reoffending when conditions were imposed.

The accused, Zachariah Piva, was charged with sexual assault.

The complainant, LB, alleged non-consensual sexual activity, while the accused maintained it was consensual.

A third witness, KA, provided inconsistent testimony regarding consent.

The court assessed the credibility and reliability of all witnesses, applying the R. v. W. (D.) test.

The court found that the Crown did not prove the charge beyond a reasonable doubt, particularly regarding the complainant's subjective lack of consent, due to inconsistencies in her testimony and the corroborating evidence from the third witness and the accused.

The accused was acquitted.

In a child protection summary judgment motion, the applicant society sought a protection finding and a final custody order in favour of the mother based largely on the child’s out-of-court statements alleging abuse while in the father’s care.

The court held that, although necessity was established, threshold reliability was not, because the evidentiary record relied heavily on layered hearsay without better available evidence such as direct affidavits, notes, an expert report, or the police interview video.

Excluding the hearsay, the remaining evidence did not permit the court to reject the father’s theory of improper influence over the child.

The court found a genuine issue requiring trial and dismissed the motion.

The appellant father appealed a summary judgment order granting sole custody of the children to the mother with supervised access for the father under the Child and Family Services Act.

The father argued the motion judge erred by refusing an adjournment, proceeding by summary judgment, and applying child protection principles instead of family law principles.

The Divisional Court dismissed the appeal, finding no errors of law or fact.

The court noted the father had been given an opportunity to present his case and that the evidence supported the finding that the children were in need of protection due to the father's mental health and parental conflict.

The accused was tried on a historic sexual assault allegation involving repeated touching of the complainant at a family cottage when she was a child.

The court rejected defence arguments based on delay in disclosure, asserted inconsistencies, alleged physical implausibility, and an alleged motive to fabricate connected to a family property dispute.

Applying established principles governing delayed disclosure and childhood memory, the court accepted the complainant's evidence and found corroborative surrounding circumstances.

The accused's police statement and trial testimony were found untruthful on his prior knowledge of the allegations.

The Crown proved guilt beyond a reasonable doubt.

The applicant father was entirely successful on a motion for summary judgment regarding child custody, access, and support.

He sought costs on a full indemnity basis.

The respondent mother argued against a costs award due to financial hardship and the nature of the family law dispute.

The court found the mother's conduct unreasonable and in bad faith, as she brought an unrealistic custody claim to discourage the father's support application.

Despite her limited income, the court awarded the father costs of $2,200 on a partial indemnity basis.

A custody and access dispute concerning a child with developmental delays was tried following a period during which the father retained the child after the mother’s hospitalization arising from a mental health episode.

The court considered extensive evidence from educators, child protection workers, and the Office of the Children’s Lawyer regarding school attendance issues, alleged parental alienation, and the ability of each parent to meet the child’s special needs.

Numerous abuse allegations made by the father against the mother were investigated and found unsubstantiated.

Applying the best interests test under the Children’s Law Reform Act, the court found the father had repeatedly failed to meet the child’s educational, medical, and developmental needs and had attempted to alienate the child from the mother.

The mother was found capable of providing a more stable and child‑focused environment.

On a family law motion to vary child support, the moving party sought relief based on one child of the marriage having moved into his residence and sought findings regarding arrears and support obligations during a period when both children resided with him.

The responding party brought a competing motion for retroactive adjustment of support to reflect the moving party's actual income since an earlier order.

The court varied child support retroactive to June 1, 2014 using the parties' respective incomes and the Child Support Guidelines on the basis that each party had care and control of one child.

The retroactive adjustment request was dismissed because it was brought on short notice and because such relief is generally unsuitable on an interim motion with limited evidence.

Costs were fixed in favour of the moving party.

The applicant children's aid society sought judicial review of a decision by the Child and Family Services Review Board.

The Board had overturned the society's refusal of an adoption plan proposed by the children's paternal aunt and uncle, who resided in another province, and ordered the children placed with them primarily to preserve their native cultural identity.

The society argued the decision was unreasonable as it ignored the children's strong attachment to their foster parents of three and a half years and the oldest child's explicit wish to remain.

The Divisional Court agreed, finding the Board made palpable and overriding errors by giving undue weight to the cultural heritage factor while ignoring the children's overall best interests, stability, and the negative assessments of the proposed adoptive home.

The court quashed the Board's decision and reinstated the society's approval of the foster parents' adoption plan.

Following a motion determining that a child was habitually resident in Quebec and that Ontario lacked jurisdiction over custody and access, the court addressed costs.

The successful party sought costs on either a partial or substantial indemnity basis under Rule 24 of the Family Law Rules.

The court applied the presumption that the successful party is entitled to costs and considered the factors in Rule 24(11), including complexity, conduct of the parties, and time spent.

Finding the issue required court intervention but involved no unreasonable behaviour, the court awarded modest partial indemnity costs.

Child protection motion concerning whether an individual previously declared the father of a child should be removed as a party after DNA testing established he was not the biological father.

The child protection agency sought to revoke the prior declaration of paternity and strike the individual from the proceeding under the Rules of Civil Procedure.

Although the court accepted that the individual was not the biological father, it held he had been granted and exercised access to the child and therefore qualified as a “parent” within the meaning of s. 37(1)(e) of the Child and Family Services Act.

The evidence did not demonstrate that removing him from the proceeding would serve the child’s best interests or that any prejudice would arise from his continued participation.

The motion to strike him as a party was therefore dismissed.