Child protection

This endorsement addresses multiple motions to strike claims for contribution and indemnity brought by various Children's Aid Societies (CAS) against Dr. Gideon Koren and the Hospital for Sick Children (HSC) in the context of the "Motherisk Cases." The court partially granted the motions, striking claims for contribution and indemnity based on the Negligence Act, as the CAS was not found liable to the original plaintiffs.

However, the court dismissed the motions to strike claims for contribution and indemnity based on breach of contract, finding it was not plain and obvious that such claims, including those relying on a principled exception to privity of contract, would fail.

HSC's claim was struck as unopposed.

One of Dr. Koren's crossclaims was struck with leave to amend to properly plead a contract claim.

The court also ordered consolidation of one of Dr. Koren's actions with a related M.M. Action.

The Society brought a motion for temporary care and custody of the child S.H. in kinship placement, with supervised access for the Respondent Mother.

The Mother opposed, seeking the child's return to her care, and challenged the admissibility of photographs taken by the Society, arguing a Charter breach.

The court found a serious Charter infringement regarding the photographs but, applying the R. v. Grant framework, determined that their exclusion would not place the child at risk of harm nor significantly impact the Society's case, as the narrative evidence was sufficient.

Ultimately, the court found the Mother unable to meet parenting responsibilities due to home conditions, mental health, and interaction issues, and ordered the child to remain in kinship care with Society supervision and specific terms for the Mother, while excluding the contested photographs from evidence.

The Child and Family Services of Grand Erie brought a motion for summary judgment seeking an order for extended society care and limited access for the child, Z.S. The respondent mother, J.L.S., opposed, seeking custody or joint/sole care with a proposed support person, A.G. The court applied the summary judgment test in child protection cases, emphasizing the "trial worthy evidence rule" and the child's best interests.

The court found no genuine issue requiring a trial, as the mother failed to demonstrate a viable plan to address long-standing drug abuse and unstable housing concerns.

The proposed plan involving A.G. was deemed speculative and unviable due to A.G.'s own history and lack of cooperation.

The motion for extended care was granted, and the mother's access was limited to the agency's discretion, with a minimum of six visits per year.

This case concerns a child protection proceeding under the Child, Youth and Family Services Act, 2017, where the Children's Aid Society of Toronto sought a final custody order for the child, LN, to the father and stepmother, with supervised access for the mother.

The mother sought custody of the child for herself.

The court found a continuing need for a protection order due to the mother's untreated ketamine addiction, her inability to recognize and meet the child's needs, and her volatile behavior during visits.

The court determined that placing the child in the custody of the father and stepmother was in the child's best interests, as the child had thrived in their consistent and structured care.

The mother's access was ordered to remain supervised, and the father and stepmother were granted full control over the child's documents and travel.

The Jewish Family and Child Services of Greater Toronto brought a motion to declare the respondent Z.Y. a "special party" under subrule 2(1) of the Family Law Rules and to appoint the Public Guardian and Trustee (PGT) as her representative.

Z.Y., the mother of the subject child, opposed the motion.

The court reviewed the legal framework for determining mental incapacity, including provisions from the Substitute Decisions Act, 1992, and relevant case law.

Based on evidence of Z.Y.'s severe mental health decline, disorganized thinking, and inability to understand the proceedings or appreciate the consequences of her decisions, the court found that Z.Y. met the criteria for a "special party" due to mental incapacity.

The motion was granted, and the PGT was appointed as Z.Y.'s representative to protect her interests and ensure proper presentation of information for the child's best interests.

The Sarnia-Lambton Children's Aid Society brought a motion to add Aamjiwnaang First Nation (AFN) as a party to a child protection Status Review Application concerning a child whose father is a status member of AFN.

AFN opposed being added, arguing that its participation is an entitlement, not an imposition, and that it has limited resources and the child is not eligible for band membership.

The court granted the motion, finding that under the Child, Youth and Family Services Act (CYFSA) and federal legislation, the representative of a child's band is a mandatory party, and this status serves the child's best interests by preserving the option for future participation and ensuring all entitlements under child protection legislation.

The court emphasized that while party status is mandatory, active participation is not compelled.

The Catholic Children’s Aid Society of Toronto brought a summary judgment motion seeking a final custody order for the child to her father, S.J., under section 102 of the Child, Youth and Family Services Act.

The mother, A.P., opposed the motion, seeking the child's return to her care or more expansive unsupervised parenting time, arguing that genuine issues required a trial.

The father and the child's counsel (OCL) consented to the CCAS's proposed order.

The court granted summary judgment, finding no genuine issue requiring a trial, and ordered the child to remain in the father's primary care with sole decision-making authority, and specified supervised parenting time for the mother.

The Catholic Children's Aid Society of Toronto brought a motion to suspend the mother's in-person access visits with the child, C.B., citing concerns about the mother's conduct during visits, including unsubstantiated sexual assault allegations against the father and coaching the child.

The father supported the motion, while the mother and the Office of the Children's Lawyer (OCL) opposed it.

The court applied the "best interests of the child" test for varying an access order, requiring a change in circumstances that renders the existing order no longer in the child's best interests and that the new order sought is in the child's best interests.

The court dismissed the Society's request to suspend in-person access, finding it too drastic and contrary to the child's expressed wishes and special needs.

Instead, the court varied the access order by imposing conditions on the mother's conduct during visits, such as prohibiting discussion of adult or court-related matters and recording the child.

The Children's Aid Society of Algoma brought a motion under section 98 of the Child, Youth and Family Services Act for a psychosexual assessment of the respondent father, A.L.-S., due to his history of sexual assault convictions and concerns about risk to the child.

The maternal grandmother supported the motion, while the father opposed it, arguing it was unnecessary, invasive, and infringed his Charter rights.

The court dismissed the motion, finding that the Society failed to demonstrate the assessment was "necessary" as required by section 98, noting that the father's criminal record was already before the court and his insight could be tested via cross-examination.

The court also expressed uncertainty about the assessment's methodology, particularly the reliance solely on phallometric testing, and its relevance given the existing evidence.

In a status review application, the Children's Aid Society of Toronto sought extended society care for a child (N.G.-L.), while the father (W.L.), supported by the mother (N.G.), sought custody with a supervision order.

The court found intervention necessary due to the mother's long-standing substance abuse issues, the parents' past dishonesty, and minimization of risks.

However, considering the child's best interests, the father's commitment, his capacity to parent with support, and the positive influence of a friend (T.G.), the court determined that a supervision order placing the child in the father's care, following a six-week interim society care transition, was the least disruptive and most appropriate alternative.

The order included strict supervision terms for the father and clear boundaries for the mother's access, which is to be supervised solely by the society.

The appellant father appealed a child protection order that placed his child in the extended care of the Children's Aid Society of Toronto.

He alleged that the trial judge made factual errors regarding his insight into the mother's drug abuse, his focus on the mother, the safety of his care plan, and his credibility.

The Superior Court of Justice, applying the standard of palpable and overriding error for factual findings, dismissed the appeal.

The court found no obvious error in the trial judge's assessment of the father's credibility and the viability of his care plan, emphasizing the high degree of deference owed to trial judges in child protection proceedings where the child's best interests are paramount.

The appellants, C.O. and N.P., appealed convictions for failure to provide necessaries of life and an order for a new trial on unlawful confinement, stemming from the unsanitary conditions in their apartment and the confinement of their four-year-old daughter, J. The Court of Appeal dismissed both appeals, affirming that risk of harm is an element of the necessaries offence under s. 215(2)(a)(i) of the Criminal Code and that the conditions of confinement are relevant to the "lawful authority" defence under s. 279(2).

The court found the trial judge erred in refusing to take judicial notice of the health risks posed by the cumulative unsanitary conditions.

The matter was remitted for sentencing on the necessaries charge.

The Children's Aid Society of the Districts of Sudbury and Manitoulin brought a motion for summary judgment seeking a finding that the child was in need of protection, an order for Extended Society Care, and dismissal of maternal access.

The respondent mother opposed, seeking the child's return with or without supervision, and access.

The respondent father agreed with the Society's position.

The court found the child to be in need of protection under s.74(2)(b)(i) of the Child, Youth and Family Services Act, based on the mother's history of neglect with prior children, mental health issues, substance abuse, residential instability, and inability to care for the child.

The court dismissed the mother's request for the child's return and for access, concluding that there was no genuine issue requiring a trial and that the Society had met its onus.

This case involved two motions in a Status Review proceeding under the Child, Youth and Family Services Act.

The Children's Aid Society sought to change the placement of child A.A-L.C. to the maternal grandmother, V.C., while the respondent father, J.T., sought placement of his biological child, J.C-T., in his care.

Both children were currently in the care of their mother, A.C., under supervision orders.

The court dismissed both motions, finding that despite the mother's non-compliance with supervision terms and some inappropriate behavior, there was insufficient evidence to demonstrate a change in circumstances requiring the children's removal from her care, particularly given the lack of evidence of direct harm to the children and the importance of sibling bonds.

The Children's Aid Society of Brant brought a motion for summary judgment seeking continued protection findings for the child T.E.H., an order for deemed custody to the paternal aunt L.H., specific access orders for the mother and siblings, no access for the mother's partner, and discretionary access for the father.

The court found T.E.H. to be in continuing need of protection due to risk of emotional harm.

It granted deemed custody to the paternal aunt, L.H., prioritizing the child's best interests and Indigenous cultural identity.

The court made temporary access orders for the mother and siblings, but declined to make a "no access" order for the mother's partner or a discretionary access order for the father, emphasizing the court's obligation to impose specific terms and conditions for access.

The Children's Aid Society of Toronto brought a motion for summary judgment on a status review application concerning two children, De. (12) and Da. (11).

The agency sought custody of the children to their father under s. 102 of the Child, Youth and Family Services Act, with specified access to the mother.

The mother opposed the motion, seeking the children's return to her care or, alternatively, generous access, arguing genuine issues requiring a trial.

The father supported the agency's request.

The court found no genuine issue requiring a trial, noting the mother's lack of insight into protection concerns and the children's settled placement with the father.

The motion for summary judgment was granted, awarding custody to the father and establishing a detailed access schedule for the mother, along with orders for passports and travel without the mother's consent.

The Children's Aid Society of Peel brought a summary judgment motion seeking protection findings for the child A.J. and an order for placement with the maternal aunt under Society supervision.

The child's mother and maternal aunt consented to the motion, but the father opposed the placement, advocating for the child to be placed in his care.

The court found the child to be in need of protection, a finding consented to by all parties.

Applying Rule 16 of the Family Law Rules and considering the child's best interests under the Child, Youth and Family Services Act, the court dismissed the father's plan, citing concerns about his undisclosed criminal history, inconsistent living arrangements, and inability to cooperate with the maternal aunt.

The court granted the Society's motion, ordering the child's placement with the maternal aunt, emphasizing the stability and positive care provided by the aunt since the child's birth as the least disruptive alternative.

The Jewish Family and Child Service of Greater Toronto (JFCS) brought a motion to appoint amicus curiae in a child protection proceeding concerning a 2-year-old child.

The respondent mother, N.D., had a history of mental health issues, inconsistent access, and had twice terminated counsel, indicating a desire to self-represent despite the society seeking permanent care and adoption.

The court considered the complex nature of child protection cases, the serious relief sought, and the mother's inability to maintain legal representation.

The motion was granted, and Tammy Law was appointed as amicus curiae to assist the court, with specific duties outlined, even if the mother later retained counsel.

The court issued an evidentiary ruling regarding the proper use and interpretation of Requests to Admit and Responses to Requests to Admit under Rule 22 of the Family Law Rules in a child protection status review case.

The ruling clarified that a Request to Admit should be tailored to each party's knowledge, and that gratuitous corrections or qualifications in responses are not permitted.

The court held that a fact or document is only deemed admitted if all served parties admit it or fail to respond; if even one party denies or refuses to admit with a reason, the fact or document is not deemed admitted and must be proven otherwise.

The applicant father brought a Rule 14B motion seeking an order to seal the entire court record of his application to vary a custody and access order.

The original custody order was granted as a disposition in a child protection case, and the father was concerned that filing his materials, which included the original order identifying the children and sensitive facts, would violate the Child, Youth and Family Services Act's prohibition on publishing identifying information from child protection proceedings.

The court granted the sealing order, finding that the privacy protections for children in child protection matters, combined with the children's best interests, outweighed the open court principle at this preliminary stage.