Kory Mikalski

A child protection agency brought a motion under the Child, Youth and Family Services Act, 2017 seeking a declaration that the father was a "special party" within the meaning of Rule 2(2) of the Family Law Rules, and an order appointing the Public Guardian and Trustee as his legal representative under Rule 4(3).

The Public Guardian and Trustee declined to consent, taking the position that the father had not met the legal test for incapacity.

The court applied the presumption of capacity under the Substitute Decisions Act and found that, despite the father's unusual, paranoid, and hostile communications, the agency had not established that the father was mentally incapable of understanding the issues and making decisions in the litigation.

The motion was dismissed.

A motion brought by Hamilton Child and Family Supports seeking an extension of time under section 122 of the Child, Youth and Family Services Act, 2017 for a Métis child to remain in society care beyond the statutory 12-month limit.

The child's mother, who was incarcerated for manslaughter, has been released and is making substantial progress toward reunification.

The court granted a six-month extension, interpreting section 122 in light of the remedial nature of the federal legislation governing Indigenous child welfare and the principles of cultural continuity and substantive equality.

The Children's Aid Society of Hamilton brought a motion for summary judgment within a Status Review Application concerning the child S.M.A.A. The Society sought an order finding the child in need of protection, placing the child in the custody of the father, and granting the mother supervised access.

The mother did not file responding materials or attend the hearing.

The father consented to the relief sought.

The court granted the summary judgment, finding no genuine issue requiring a trial regarding the child's continued need for protection and the proposed placement.

The child was placed in the father's custody, and the mother was granted supervised access by a mutually agreeable third party, with location, frequency, and duration at the father's discretion.

In a child protection proceeding under the Child and Family Services Act, counsel for a sibling sought to add the sibling as a party to the proceeding concerning a younger child.

The court applied the criteria set out in Children’s Aid Society of London and Middlesex v. H.(S.) for adding a party in child protection litigation, including best interests of the child, potential delay, necessity for determining the issues, the ability to present a plan of care, and legal interest.

The court found the moving party had minimal contact with the child and no meaningful existing relationship beyond a biological connection.

Adding the sibling would likely delay the proceeding and was unnecessary for determining access issues that could be raised by existing parties.

The court concluded the criteria were not met and declined to add the sibling as a party.

The applicant society brought a summary judgment motion within a status review application seeking a finding that three young children remained in need of protection and requesting Crown wardship without access.

The father consented to the requested relief and did not participate further in the proceedings, while the self‑represented mother filed no responding materials and failed to attend the motion.

Evidence established serious concerns including neglect, hazardous home conditions, unexplained physical injuries to a child, missed medical appointments, and the parents’ persistent failure to attend visits or engage with services.

The court held that there was no genuine issue requiring a trial under Rule 16 of the Family Law Rules and that the children required stability and permanency.

Summary judgment was granted declaring the children in need of protection, ordering Crown wardship, and denying parental access.

In a child protection proceeding involving two children, the mother brought a motion seeking a parenting capacity assessment of the father who sought custody of one child.

The Society, the father, and counsel for the younger child opposed the request, arguing that sufficient evidence already existed and that the request amounted to a fishing expedition.

The court reviewed the legal framework under s. 54 of the Child and Family Services Act and Ontario Regulation 25/07, emphasizing that such assessments are discretionary and should only be ordered where reasonably necessary to assist the court.

The judge found that the evidentiary record already provided comprehensive information about the parents and the children, and that no unresolved clinical issues required expert evaluation.

The motion for a parenting capacity assessment was therefore dismissed.