Cheryl Hess

Following a trial decision, the respondent raised arithmetic errors regarding the treatment of a joint line of credit and mortgage.

The court agreed that an adjustment was required for a post-valuation date mortgage payment, reducing the equalization payment owed to the applicant.

On the issue of costs, the court found that the respondent had engaged in bad faith and unreasonable behaviour throughout the litigation, including failing to comply with court orders and acting abusively.

The court awarded the applicant full indemnity costs, offset by a modest costs award to the self-represented respondent for his partial success on the post-trial corrections.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $5,000.

The respondent sought full indemnity costs of $15,123.05 following a successful motion for child support and section 7 expenses.

The applicant argued that each party should bear their own costs or that costs be fixed at $5,000.

Applying the principles of reasonableness and proportionality under Rule 24(12) of the Family Law Rules, the court rejected the request for full indemnity costs.

The court fixed the respondent's costs at $8,250, inclusive of fees, disbursements, and HST, after accounting for a $750 set-off for a prior adjournment.

The applicant father brought a motion for parenting time and Office of the Children's Lawyer involvement following his release from prison.

The respondent mother opposed direct contact, citing the children's resistance.

The court declined to order graduated access due to concerns about the children's well-being and lack of reliable evidence regarding their views.

Instead, the court ordered interim contact via a letter and a videoconference facilitated by the children's counsellor, pending further information and OCL involvement.

The respondent mother brought a motion seeking a temporary reduction in the father's parenting time by removing overnight contact, child support commencing September 2018, and contribution to Section 7 expenses from 2019.

The applicant father opposed the parenting time reduction and sought child support and Section 7 expenses to commence from January 2021.

The court allowed the motion in part, ordering that overnight visits would continue with imposed terms, child support would commence effective March 1, 2019, and the father would contribute his proportionate share to incurred daycare, Stagecraft, and piano expenses, while denying contributions for swimming and skating.

The Children's Aid Society brought a summary judgment motion seeking a finding that the child was in need of protection and an order placing her in the custody of her maternal aunt.

The mother opposed the motion, arguing that a trial was required, while the father and the child consented.

The court found that the mother had experienced a severe mental health breakdown requiring extended hospitalization, which profoundly affected the child.

Applying the principles for summary judgment in child protection cases, the court determined there was no genuine issue requiring a trial.

The court found the child in need of protection and, giving significant weight to the child's steadfast wish to live with her aunt, granted custody to the maternal aunt as being in the child's best interests.

This is a status review application by the Children’s Aid Society seeking a custody order for three children in favour of their maternal grandmother, with access to the mother at the grandmother's sole discretion.

The mother sought the children's return under a voluntary service agreement or supervision order.

The court found the children remained in need of protection due to the mother's pattern of engaging in violent relationships, domestic violence occurring in front of the children, and drug use.

The court dismissed the mother's plan and granted custody to the maternal grandmother, finding it to be in the children's best interests, emphasizing stability, safety, and the grandmother's ability to meet their needs.

The Children's Aid Society of Ottawa sought a finding that two children, A.D. (14) and E.D. (11), were in need of protection under the Child, Youth and Family Services Act, 2017.

The Society alleged risk of physical and emotional harm due to the mother's failure to adequately care for, supervise, and protect the children, a pattern of neglect, and her inability to provide or access necessary treatment for their significant special needs (Autism Spectrum Disorder, ADHD, ODD, Reactive Attachment Disorder).

The father did not participate in the trial.

The court found the children in need of protection, citing a lengthy history of child protection involvement, the mother's inconsistent care, lack of stable housing, mental health issues, drug use, and inability to regulate emotions or engage meaningfully with services.

The court ordered extended Society care for both children, determining it was in their best interests, and left access to the mother at the Society's discretion, considering the mother's attributes that could impair future adoption opportunities.

Following a motion regarding parenting and support issues where the applicant father was largely successful on the primary parenting issues, he sought full indemnity costs of $51,217.01.

The respondent mother sought partial indemnity costs of $15,242.14, arguing mixed success.

The court found the father was the more successful party but reduced his costs to reflect the mother's success on support issues and the excessive materials filed by both parties.

The court awarded the father $12,000 in costs inclusive of disbursements and HST.

The Children's Aid Society brought a motion for partial summary judgment on the eve of trial, seeking a finding that two children were in need of protection and should be placed in extended care, leaving the issue of the mother's access for trial.

The court dismissed the motion, finding that partial summary judgment would not shorten the trial significantly, risked inconsistent findings of fact, and raised fairness concerns given the mother's recent retention of new counsel and evidentiary issues.

The matter was ordered to proceed to a full trial on all issues.

The applicant father sought costs following a successful motion regarding the children's school attendance.

He claimed costs on a substantial indemnity basis due to an offer to settle.

The respondent mother argued against a costs award, citing her limited financial means and reasonable behaviour.

The court found the applicant's docketed hours excessive but acknowledged his entitlement to costs based on his successful offer to settle.

Considering the mother's limited means and the principle of proportionality, the court fixed costs at $8,000, payable within 60 days of a final order in the ongoing family law proceedings.

The applicants appealed a Master's order dismissing their action.

The Superior Court of Justice found that the appeal was brought in the wrong court, as appeals from a case management master's final order lie to the Divisional Court.

The court also determined that Rule 2.1 of the Rules of Civil Procedure, which allows for dismissal of vexatious or frivolous proceedings, does not apply to appeals.

The appeal was effectively dismissed due to procedural impropriety.

The respondent children's aid society brought a motion to dismiss the parents' appeal of a Crown wardship order for delay.

The parents had failed to order transcripts or perfect their appeal within the required timelines under the Family Law Rules, instead engaging in numerous other unsuccessful legal proceedings.

The Divisional Court applied the factors for dismissing a child protection appeal for delay, finding that the parents had no prospect of ordering the transcripts, the delay prejudiced the children's need for permanency, and the appeal lacked merit.

The motion was granted and the appeal was dismissed.

A child protection trial involving three Indigenous children apprehended by a children’s aid society following earlier permanent guardianship orders involving seven siblings in another province.

The court examined allegations of parental instability, lack of financial and medical supports, transient living conditions, and the significant influence of the father over the mothers.

Expert psychological evidence raised concerns about the father’s paranoia and control over the family dynamic, and whether the mothers could protect the children from associated risks.

Although the mothers demonstrated appropriate parenting during supervised access, the court concluded the ongoing risks of physical and emotional harm remained significant.

Applying the Child and Family Services Act best‑interests framework and considering Indigenous cultural placement factors, the court ordered Crown wardship without access for the purpose of adoption.

The applicant brought a motion to strike the respondent's Answer for failing to comply with a previous court order requiring financial disclosure, payment of costs, and spousal support.

The respondent provided the disclosure and paid the costs shortly before the motion hearing.

The court declined to strike the pleadings, noting it is a remedy of last resort.

However, because the respondent resides outside Ontario and was significantly late in his compliance, the court ordered him to register a $28,000 security interest against his property and pay $5,000 for interim disbursements to allow the applicant's expert to complete a business valuation.

Following a contested family law motion involving interim custody and related relief, the court addressed the issue of costs.

The moving party had been found substantially successful on the motion and sought full indemnity costs exceeding $17,000, arguing the responding party acted unreasonably by rejecting the recommendations of the Office of the Children’s Lawyer and the wishes of the teenage children.

The court held that although the moving party was substantially successful, the responding party’s opposition was not unreasonable given conflicting affidavit evidence and legitimate issues requiring adjudication.

Applying Rule 24 of the Family Court Rules, the court reduced the claimed amount and awarded costs on a partial indemnity basis.

Costs were fixed at $7,121.83 inclusive of taxes and disbursements, payable from the proceeds of the sale of the matrimonial home.

The applicant mother brought a motion to change existing custody and access orders to permit her to relocate with the parties' 7-year-old child from Ottawa to Gander, Newfoundland.

The move was prompted by the unexpected military posting of the mother's new partner.

The court found that the new committed relationship and the unexpected posting constituted a material change in circumstances.

Applying the Gordon v. Goertz framework, the court determined that it was in the child's best interests to remain in the primary care of the mother and relocate to Newfoundland, subject to a modified access schedule that provided the father with extended blocks of parenting time.

The Children's Aid Society of the County of Renfrew brought a motion for summary judgment seeking a finding that two children were in need of protection under the Child and Family Services Act.

The respondent mother had a lengthy history of involvement with child protection services in multiple provinces, with documented concerns regarding mental health issues, substance abuse, poor home conditions, and domestic violence.

The court found that the mother had failed to put forward sufficient evidence to dispute material facts and granted summary judgment in favor of the Society, finding both children in need of protection.

The court also addressed the procedural issue of bifurcating the protection finding from the dispositional hearing.

A motion by the Children's Aid Society of the County of Renfrew to transfer child protection proceedings involving two children from Renfrew County to Ottawa, where the children currently reside with their father.

The court dismissed the motion, finding that the moving party failed to establish a preponderance of convenience favouring transfer.

The court considered the statutory test under section 48(3) of the Child and Family Services Act, the best interests of the children, the location of witnesses, the children's connections to both jurisdictions, and the availability of court resources.

The court also addressed a related summary judgment motion regarding a third child, which resulted in a consent order placing the child with the mother subject to supervision.

The appellant mother appealed a child protection judgment making her three children Crown wards.

She sought to introduce fresh evidence and argued the trial judge erred by admitting and relying heavily on a court-ordered parenting assessment by Dr. Lynch, while disregarding competing medical reports.

The Divisional Court dismissed the appeal, finding the fresh evidence inadmissible as it was available at trial.

The court held the trial judge made no palpable and overriding error in admitting Dr. Lynch's report under section 54 of the Child and Family Services Act, nor in preferring his evidence over the appellant's experts.

Claims of judicial bias and ineffective trial counsel were also dismissed.