Mark L. Hurley

The respondent mother, A.D., brought a motion to vary a previous statutory finding under subsection 90(2) of the Child, Youth and Family Services Act, 2017, to include a finding that her children, K.Re. and A.Re., are Métis persons.

The court considered its jurisdiction to revisit prior findings, interpreting the CYFSA remedially to allow for such variations in the children's best interests, especially given the Act's emphasis on Indigenous children's cultural identity and community connection.

Based on the uncontroverted evidence of the parents' self-identification and engagement with Métis community services, the court found sufficient credible and reliable evidence to support the Métis identification.

The motion was granted, vacating the previous finding and declaring the children Métis.

A biological father sought leave to bring a status review application of a Crown ward child who had been in care for over six years.

The child had been placed with the same foster parents for four years, and the Children's Aid Society had identified an adoptive family.

The court applied the five-part test from Catholic Children's Aid Society v. F.(B.A.) to determine whether leave should be granted.

The court found that the father's primary motive was to disrupt the adoption planning, that no unusual circumstances justified the review, and that the father had not established a prima facie case that placement in his care would be in the child's best interests.

The motion was dismissed.

In a child protection status review application, the respondent father sought an order granting access to the child for himself and for non-parties (the paternal aunt and paternal uncle).

The maternal grandparents, who had been granted custody of the child, opposed the access order for the non-parties, arguing the court lacked jurisdiction to grant access to persons who were not parties to the proceeding.

The court determined that it had jurisdiction to make access orders under section 58 of the Child and Family Services Act within the ongoing status review application, and that it was not a prerequisite for granting access that a person be a party to the proceeding.

The court found no unfairness to the maternal grandparents, as they had full notice of the paternal relatives' claims through active case management and disclosure.

The respondent mother brought a motion to remove Mark Hurley as counsel of record for the Windsor-Essex Children's Aid Society in a pending status review proceeding involving four children.

The motion was based on a conflict of interest arising from the fact that Hurley's law partner, Frank Philcox, had previously represented the respondent mother in protection proceedings involving the same children.

The court found that a solicitor-and-client relationship existed between the mother and Philcox, that confidential information was shared, and that insufficient safeguards were in place to protect the mother's solicitor-client privilege.

The court granted the motion and ordered Hurley's removal from the file.

A children's aid society brought a motion under subsection 64(8) of the Child and Family Services Act to vary a prior order placing four children in the care of their mother.

The society sought to place the two older children with their father and the two younger children in society care, based primarily on positive hair follicle test results indicating cocaine and cannabis use by the mother.

The mother opposed the motion, supported by counsel for the Children's Lawyer.

The court found a material change in circumstances but determined that removal from the mother's care was not necessary to protect the children's best interests.

Instead, the court imposed additional supervision terms including random drug testing, increased home visits, completion of parenting assessments, and prohibition of contact with an incarcerated father.

The Windsor-Essex Children's Aid Society brought a motion for summary judgment seeking a finding that two children remain in need of protection under the Child and Family Services Act and that they be made wards of the Crown with access to their mother.

The respondent mother opposed the motion.

The court found that the children remained in need of protection based on the mother's failure to address mental health concerns and the risk of emotional harm to the children.

The court granted the Society's motion, made the children Crown wards, and ordered supervised access to the mother.

A motion under section 64(8) of the Child and Family Services Act concerning interim care and custody of a three-year-old child.

The child was placed in the father's care subject to supervision following a prior finding of need for protection.

The child subsequently sustained significant injuries including facial bruising, black eyes, welts on the back and buttocks, and a broken elbow while in the father's care.

The Society sought to remove the child from the father's care and place the child in temporary care and custody of the Society pending final determination of a status review application.

The father disputed the cause of the injuries and argued that police investigation had not resulted in charges.

The court found a material change in circumstances and determined that the child's best interests required removal from the father's care, while maintaining supervised access.

This is a ruling on a voir dire motion during a status review trial under Part III of the Child and Family Services Act.

The respondent maternal grandmother sought to qualify Paul Adams as an expert witness to provide opinion evidence on three matters: assessing the risk status of sexual offenders regarding potential re-offending, providing relapse prevention recommendations, and providing treatment recommendations.

The Children's Aid Society opposed only the first area.

The court denied the motion to qualify Adams as an expert, finding he lacked sufficient qualifications to offer opinion evidence on sexual offender risk assessment.

A child protection application brought by the Windsor-Essex Children's Aid Society concerning four children found to be in need of protection.

The central issue was whether the children should remain in the care of their mother (T.B.) subject to supervision, or be placed in the custody of their father (M.D.).

The court found that the children should remain in the mother's care subject to a 12-month supervision order with detailed terms and conditions.

The father's request for custody without Society involvement was denied.

The court considered the mother's past conduct, including disturbing wiretap evidence of inappropriate language, but found that with ongoing Society support and services, the risks could be adequately managed.

The father's refusal to participate in a parenting capacity assessment and his inconsistent exercise of access were significant factors against his custody claim.

The Society moved under section 64(8) of the Child and Family Services Act for an order placing a child in the care of the father subject to Society supervision and access to the mother.

The child had been placed in the joint care of both parents following a protection finding.

After the parents separated, the father unilaterally removed the child from the family home without urgent cause.

The court found that the father's act of self-help should not be rewarded and that the mother, as the primary caregiver, should continue to play an active and significant role in the child's upbringing.

The court issued a temporary order placing the child in the joint care and custody of both parents with specified access arrangements and supervision conditions.

Following an appeal from the Small Claims Court where success was divided between the appellants and respondents, the court received written submissions on costs.

The appellants argued they had made an offer to settle that remained open, but the court noted that under Rule 14.03(3) of the Small Claims Court Rules, an offer expires when the court disposes of the claim.

Applying the general rule that no costs should be allowed where success is divided, the court ordered no costs.

The appellants appealed a Small Claims Court decision dismissing their claim for breach of contract against the vendor and real estate agents regarding a defective hot-tub and 'newer windows' in a purchased home.

The Divisional Court upheld the dismissal regarding the windows, finding caveat emptor applied.

However, the court allowed the appeal regarding the hot-tub, finding that the vendor's warranty that the hot-tub was in good mechanical working order was a collateral stipulation intended to survive closing and did not merge upon the transfer of title.

Damages of $4,500 were awarded, apportioned equally between the vendor and the real estate agents.