Lene Madsen

The mother (M.W.) appealed a summary judgment decision that placed her child (M.N.D.) in the custody of the father (M.S.) with discretionary access for the mother.

The appeal court admitted fresh evidence regarding the mother's ongoing non-cooperation with the Children's Aid Society (CAS) and her failure to comply with court orders concerning her other children.

The court dismissed the appeal, finding no palpable and overriding errors in the motions judge's factual findings or application of law regarding summary judgment and status review applications.

The fresh evidence further confirmed the appropriateness of the original decision, emphasizing the child's best interests and the need for permanence.

The applicant father sought an urgent hearing for the return of his two daughters to Nigeria, alleging wrongful removal by the respondent mother.

The court, operating under COVID-19 protocols, determined whether the matter was urgent.

Despite the father's claim of international kidnapping, the court found the matter not urgent due to global travel restrictions and the children's safety and well-being being protected by remaining with the mother in Ontario.

The court emphasized that the urgency determination was summary and without prejudice to the substantive motion.

The Children's Aid Society sought a finding that the child was in need of protection and an order for sole custody to the mother with supervised access to the father.

The court found the child in need of protection under section 74(2)(b)(i) and (ii) of the Child, Youth, and Family Services Act due to risks of physical harm arising from the paternal grandparents' long-term opioid addiction and recent cocaine use, the paternal uncle's drug issues, and the father's lack of insight into these risks and his own anger management difficulties.

The court granted sole custody to the mother and ordered weekly supervised access for the father at a third-party facility, emphasizing that unsupervised access would only be considered if the father addressed his living situation and anger management issues.

The initial finding that the child was also in need of protection under section 74(2)(h) was later corrected and removed.

The respondent father brought a motion to change seeking to set aside a 2012 final order for spousal and child support that was obtained by the applicant mother on an uncontested basis.

The father argued the mother failed to make full and frank disclosure when she proceeded without notice.

The court found that while the mother's disclosure was lacking in some respects, the omissions were not material.

Applying rule 25(19) of the Family Law Rules, the court dismissed the request to set aside the order due to the father's significant and unexplained delay in bringing the motion, the lack of an arguable defence, and the prejudice that setting aside the order would cause to the mother.

The parties, parents of a 10-year-old child, resolved custody and primary residence at the start of a three-day trial.

The remaining issues were the father's access schedule, sharing of special expenses, and retroactive child support.

The court granted the father's request for expanded access, including alternate weekends and holiday time, finding it in the child's best interests.

The court also ordered the father to pay retroactive child support from December 2016 based on the Child Support Guidelines, rejecting his argument that a prior informal agreement should govern.

Special expenses for dance and braces were ordered to be shared equally.

The applicant sought to confirm a 2013 provisional child support order from the United Kingdom under the Interjurisdictional Support Orders Act.

The provisional order set arrears at £7,000 for two adult children and ongoing support of £50 per week for a third adult child attending post-secondary education.

The Superior Court of Justice declined to confirm the order, finding that the respondent had already paid the arrears in full through the Family Responsibility Office.

The court also refused to confirm the ongoing support for the third child due to a lack of evidence regarding his continued enrollment in post-secondary studies.

The Children's Aid Society sought a temporary order to keep a prematurely born child in its care.

The child was apprehended shortly after birth due to the father's history of sexual offences against children and current serious criminal charges, as well as the mother's lack of insight into the risk posed by the father.

Although a transition plan to return the child to the mother was initiated, it was halted when the mother refused to cooperate with Society workers and denied them full access to her home.

The court found a real possibility of harm if the child was returned to the mother and ordered the child to remain in the temporary care of the Society.

The Children's Aid Society brought a motion for summary judgment seeking an order for extended society care without access for a 22-month-old child who had been in care since birth.

The mother opposed the motion, seeking a six-month supervision order.

The Society argued that the mother's longstanding mental health issues and inconsistent access justified the order.

The court dismissed the motion, finding that genuine issues for trial existed, particularly given the Society's acknowledgment that the mother's mental health had been 'fairly stable' since early 2018 and conflicting evidence regarding the quality of her access visits.

The court emphasized the highly cautionary approach required for summary judgment in child protection cases.

The Children's Aid Society sought an order for extended society care without access for two children who had been in care for 27 months.

The mother sought the return of the children or joint care with the maternal grandmother.

The court first determined that the children were First Nations but had no identified band.

The court found the children continued to be in need of protection due to the mother's transience, untreated mental health issues, and high-conflict behaviour.

Concluding that no less disruptive alternatives were viable, the court ordered extended society care.

Access was denied as it was not in the children's best interests and would likely impair adoption opportunities.

This is a costs endorsement following a successful contempt motion brought by the Applicant against the Respondent for breaching two non-depletion orders.

The court had previously found the Respondent in contempt for withdrawing funds from his RRSP to defeat the Applicant's claims.

The Applicant sought full indemnity costs of $24,615.80.

The court found the Respondent acted in bad faith, justifying costs on a full recovery basis, and awarded the Applicant $23,429.30, after a minor adjustment for duplication of counsel time.

This is a costs endorsement following a nine-day trial concerning a maternal grandmother's access to her grandson, which was opposed by the father.

The grandmother was partially successful in obtaining access, though less than she sought.

The court awarded the grandmother $10,000 in costs, inclusive of HST and disbursements, payable by the father.

Key considerations included the grandmother's partial success, her unreasonable failure to make an offer to settle, and the father's financial circumstances, though the latter did not lead to a reduction in costs due to insufficient evidence.

The court also affirmed that a party's legal aid status is not a factor in determining costs.

The Children's Aid Society of Hamilton brought a motion for summary judgment within a Status Review Application, seeking extended society care for three children (aged 16, 11, and 3) due to the parents' ongoing issues with alcohol abuse, mental health, domestic violence, and inability to meet the children's needs.

The parents failed to file responding materials or attend the motion.

The court granted the motion, finding the children remained in need of protection and that extended society care was in their best interests, with discretionary access for the two older children to the parents and all siblings, but no access for the youngest child to the parents to facilitate adoption.

The mother (A.H.) brought a motion for temporary care of her child (D.), seeking placement with her under supervision or expanded access.

The Children's Aid Society of Hamilton (CAS) opposed, seeking continued care and a finding that the child was not First Nations, Inuk, or Métis.

The Office of the Children's Lawyer supported the mother.

The court found no reasonable grounds to believe the child would suffer harm if returned to the mother under supervision.

Applying the two-part test under the Child, Youth and Family Services Act, the court ordered the child's return to the mother's care via an eight-week transitional schedule with specific supervision terms.

The finding regarding the child's Indigenous status was unopposed and granted.

This costs endorsement relates to a child protection appeal where the non-party foster parent, T.N., sought costs against the maternal grandmother, M.T., following the dismissal of M.T.'s appeal.

The court declined to order costs against M.T., reiterating that in child protection cases, cost awards are rare and require more than mere success.

The court found that M.T.'s appeal, though unsuccessful, did not demonstrate unreasonable conduct or bad faith sufficient to warrant a costs order, aligning with the principle that the right to oppose child protection proceedings should not be lightly interfered with.

The maternal grandmother sought access to her young grandchild over the sole custodial father's objection after he terminated all contact.

Applying the governing grandparent-access jurisprudence under the Children's Law Reform Act, the court found a substantial pre-existing, loving, and nurturing relationship that had been imperilled by the father's decision, and concluded that complete denial of contact was arbitrary in its effect.

The court declined to defer to the father's decision notwithstanding that he was otherwise a loving and attentive parent, emphasizing the child’s interest in maintaining ties to the maternal family and to siblings, particularly where the mother was incarcerated and effectively absent.

Access was ordered on a phased reintroduction schedule progressing to overnight visits every fourth weekend, with conditions excluding the mother and maternal grandfather from attendance during access.

Following motions regarding child access, contempt, and a publication ban, both parties sought costs.

The father had brought a motion to change access after being criminally charged, and a contempt motion which he later withdrew.

The mother had sought a publication ban and severely restricted access.

The court found divided success, noting the father's contempt motion was inappropriate and the mother's position on access was unreasonable.

Applying Rule 24 of the Family Law Rules, the court ordered that each party bear their own costs.

The applicant brought a motion for contempt against the respondent for allegedly depleting assets in contravention of two court orders that restrained both parties from depleting their property.

The respondent admitted to withdrawing over $100,000 from his RRSPs, claiming it was for living and legal expenses, and argued that the applicant was also in breach of orders.

The court found the respondent in contempt, ruling that the non-depletion orders were clear and that the withdrawals impaired the applicant's claim for support.

The respondent was given until January 18, 2019, to purge his contempt by repaying the withdrawn funds, failing which his pleadings would be struck.

The respondent father sought an interim order to vary the access provisions of a final order due to criminal charges laid against him, including sexual assault and sexual interference involving children.

The applicant mother opposed the father's proposed terms, advocating for stricter, professionally supervised access.

The court found a material and exceptional change in circumstances warranting an interim variation under its parens patriae jurisdiction.

Balancing the seriousness of the unproven allegations against the father's lack of prior record and the child's need for contact, the court ordered supervised access by the father's wife, S.M., with specific conditions, rejecting the mother's request for professional supervision due to cost and the availability of an approved supervisor.

The applicant mother sought a sealing order, a publication ban, and permission to disclose a criminal bail hearing transcript to herself and the family court, following the respondent father's criminal charges.

The court applied the Dagenais/Mentuck test, balancing the open court principle with the need to protect the child from harm and prevent circumvention of the criminal court's publication ban.

The court granted a publication ban and initialization of parties and the child, finding these measures sufficient to prevent identified risks without a full sealing order.

Permission was also granted for the redacted bail hearing transcript to be provided to the mother and filed with the court.

The applicant sought an order to reserve the determination of costs for a previous motion regarding daycare pick-up times until his leave to appeal that decision was complete.

He argued that assessing costs while a leave to appeal was pending would be prejudicial.

The court dismissed the motion, noting that the Family Law Rules require prompt costs determinations and that under the Rules of Civil Procedure, a stay pending appeal does not prevent the assessment of costs absent an unusual fact situation.