Charlotte Murray

The children's aid society brought a motion within a status review application to vacate a previous statutory finding that a child in extended society care was not a First Nations child.

The society sought a new finding that the child is a First Nations child based on new evidence of the paternal aunt's self-identification as Indigenous.

The foster parents and maternal grandfather opposed the motion, arguing the previous finding could not be varied.

The court held that a child's identity is fluid and can be revisited on a status review application if new evidence arises and it is in the child's best interests.

The court accepted the paternal aunt's self-identification and declared the child a First Nations child under the Child, Youth and Family Services Act.

The Children's Aid Society appealed an order of the Superior Court of Justice that set aside a Crown wardship declaration and directed the matter proceed to trial.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the Superior Court order was interlocutory, not final.

An order directing that a matter proceed to trial, even when it sets aside a prior final order, does not itself constitute a final order for appellate jurisdiction purposes.

The appeal was quashed, and the matter was directed to proceed to trial.

The mother appealed orders granting sole custody to the father, terminating his support obligations, and requiring her to pay child support.

The motion judge had made these orders after finding the mother in contempt for failing to return the children to Ontario from Alberta, and had prohibited the mother from participating in the hearing.

The Court of Appeal allowed the appeal, finding the motion judge erred by deciding custody without a full evidentiary record, failing to consider the children's best interests (including the father's history of domestic violence), improperly delegating access decisions to the father, and varying support without adequate evidence or consideration of statutory factors.

The orders were set aside and a new hearing was ordered.

On a family-law motion to change final parenting and financial orders, the court found a material change in circumstances because the parenting protocol established by the consent order had failed, including the breakdown of the mediation/arbitration mechanism and the anticipated process for expanding parenting time.

Applying the children's best interests, the court ordered a gradual expansion of the father's parenting time, including overnights, and removed the prior dynamic that allowed the mother to control the increase in access.

The court dismissed the request to compel school-board enrolment assessments, but held that unilateral educational decision-making without meaningful consultation could justify future change.

Financially, the court accepted that the moving party's income had fallen by more than 20 percent, reduced child support and spousal support, and held that private school tuition was no longer a reasonable section 7 expense in light of the parties' means.

The request for immediate sale of the matrimonial home was dismissed for lack of jurisdiction under the existing consent order, divorce was severed, and no costs were awarded.

This is a ruling on a preliminary jurisdictional issue concerning whether a motion to change a custody order should be heard in the Ontario Court of Justice or the Superior Court of Justice.

The original order was made by the Superior Court of Justice, Family Court Branch in Hamilton pursuant to section 57.1 of the Child and Family Services Act, granting custody to the applicants with access to the respondent mother at their discretion.

The respondent mother sought to vary the order.

The court determined that since a section 57.1 order is deemed to be a custody order under the Children's Law Reform Act, and the original order was made in the Superior Court of Justice, any variation of that order must proceed in the Superior Court of Justice.

The motion was transferred to the Superior Court of Justice in Milton.

The appellant parents appealed a decision making their two children Crown wards without access.

The children had been in the care of the Children's Aid Society since 2007 due to neglect and a volatile home environment involving domestic violence.

The Court of Appeal found no error in the trial judge's conclusion that the parents could not provide a safe, stable plan and that a supervision order would not adequately protect the children.

The appeal of the Crown wardship order was dismissed.

The appellant appealed the dismissal of an appeal from a child protection order made under the Child and Family Services Act.

The Court of Appeal held that the underlying judge made a final order that was open to him on the record and found no basis to interfere.

Alleged changes in circumstances, including stayed criminal charges and the end of restrictive bail conditions, were held to be matters for the scheduled status review hearing rather than the appeal.

The appeal was dismissed without costs.