Michael D. Frank

This case involves competing parenting motions concerning the relocation of the parties' two-year-old child with special needs.

The respondent mother unilaterally relocated with the child from Essex County to Burlington.

The applicant father sought the child's return, while the respondent mother sought ex post facto court authorization for the relocation.

The court, applying the best interests of the child framework under the Divorce Act, found the mother to be the primary caregiver and her reasons for relocation, including lack of support in Essex County and better access to special needs services in Burlington, to be valid and reasonable.

The court authorized the relocation and maintained the father's alternate weekend parenting time, with exchanges at a neutral halfway point.

The applicant father sought interim custody and shared residency of the child, Talia, following the breakdown of his common-law relationship with the respondent mother.

The court assessed the parenting abilities of both parents, noting concerns with each, including the applicant's prior conviction for dishonesty and the respondent's alleged violence and failure to facilitate contact.

Despite these issues, the court found that both parents had been extensively involved in the child's life.

The motion was heard during the COVID-19 outbreak and deemed urgent due to an allegation of wrongful removal/retention of a child.

The applicant father brought an urgent motion during the COVID-19 pandemic court suspension, alleging the respondent mother wrongfully removed their child to Ottawa without consent or notice.

The court determined the matter met the definition of urgency, specifically concerning the wrongful removal or retention of a child, as per the Chief Justice’s Notice to the Profession.

The motion was allowed to proceed, limited to issues of the child's residence, parenting time, and decision-making.

Procedural orders were issued for the exchange of affidavits and scheduling of the main motion.

This decision addresses an urgent motion brought by the applicant mother, Joann Peters, seeking the return of her children, Preston and William, from the respondent father, George Peters, who had retained them after a March Break access period.

The motion also sought a transfer of the matter to Kingston.

The court, operating under COVID-19 emergency protocols, determined whether the motion met the criteria for urgency, specifically regarding the wrongful retention of a child.

The court found the matter urgent and allowed the motion to proceed, limited to the issue of wrongful retention, while making several procedural orders for the exchange of affidavits and scheduling.

The applicant mother and respondent father both brought motions for custody of their three children following allegations of child abuse against the mother and her subsequent criminal charge.

The court found itself unable to make definitive findings of fact based on the initial evidentiary record and adjourned the matter for further evidence.

On a temporary, without prejudice basis, the court granted the respondent father temporary custody, including primary residence and decision-making authority.

The applicant mother was granted supervised access in accordance with a safety plan instituted by the Children's Aid Society, with specific conditions regarding supervision and exchanges.

Ancillary orders were made prohibiting discussion of litigation or criminal charges with the children and forbidding corporal punishment.

The respondent father sought restoration of access to his children, which the applicant mother had unilaterally terminated due to concerns about his adherence to COVID-19 public health protocols.

The court found that while the father may have initially underestimated the crisis and breached an undertaking, the mother's self-help was unacceptable.

The court also noted potential risks at the mother's home due to her boyfriend's work.

Ultimately, the court ordered the restoration of the father's access in accordance with the existing order, with both parents undertaking to follow public safety protocols.

Police enforcement was deemed inappropriate at this time.

The respondent sought leave to proceed with an urgent motion regarding access to the two younger children, alleging the applicant withheld access due to COVID-19 concerns.

The court, acting as a triage justice, determined the matter was presumptively urgent as it involved the alleged wrongful retention of children contrary to a final order.

The motion was allowed to proceed on the issue of access for the two younger children, and timelines for submissions were set.

The father brought a motion to modify a supervised access order, seeking supervision by family members after the designated supervised access centre closed due to the COVID-19 crisis.

The mother opposed, citing safety concerns related to the father's pending criminal charges for assault.

The court, acknowledging the urgency, declined to order family-supervised access without further information regarding the criminal charges.

Instead, the court ordered interim remote access via videoconferencing, facilitated by the mother's aunt, and adjourned the motion for counsel to gather more information about the criminal proceedings and specific safety concerns.

No costs were awarded.

The respondent father brought an urgent motion to vary a supervised access order, as the supervised access facility ceased operations due to the COVID-19 pandemic.

The father sought to have family members supervise access.

The court found that the request presumptively met the test for urgency, balancing the need to facilitate the father-child relationship with the safety concerns arising from a pending criminal trial and a non-association order against the father.

The court directed the applicant mother to file responding materials and scheduled an electronic hearing to address the merits.

The Applicant sought to increase spousal support from a 2010 divorce order, requesting $1327.00 per month for nine years, citing the termination of child support as a material change.

The Respondent sought to terminate spousal support entirely.

The court found the Applicant was still in need of support but noted a pattern of "under-performing" in her career efforts.

The court declined to increase support based on the Respondent's post-separation income increase, finding no direct link to the Applicant's contributions.

Spousal support was ordered to continue at the original amount of $375.00 per month for a further two years, after which it would terminate.

The applicant moved to remove the respondent's solicitor, Rayleen Cantin, on the grounds of a conflict of interest.

The applicant alleged that he had contacted Ms. Cantin's office on two occasions in May 2017, disclosing confidential information regarding criminal charges, bail conditions, his stance on allegations, his history with the respondent, and concerns about the respondent's parenting ability.

Ms. Cantin denied recalling any conversation with the applicant and deposed that she did not receive confidential information or provide legal advice.

The court found conflicting evidence but determined that the applicant failed to satisfy the balance of probabilities that confidential information was provided to Ms. Cantin.

The court applied the objective test of whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required removal of counsel, and found that removal was not warranted.

A status review application under the Child and Family Services Act concerning the disposition of a three-year-old child (E.P.) who had been apprehended at birth due to prenatal drug exposure and Neo-Natal Abstinence Syndrome.

The child had been in continuous foster care since October 2012.

The mother sought placement of the child in her care subject to society supervision, having achieved approximately eight months of sobriety following residential treatment.

The maternal grandmother sought placement as an alternative.

The society sought Crown wardship without access to facilitate adoption by the foster parents.

The court found that while the mother had made significant progress in her recovery and compliance with the plan of care, the paramount consideration was the child's best interests, which required maintaining continuity of care with the foster parents to whom the child was deeply bonded.

The court made an order for Crown wardship without access.

The respondent mother brought a summary judgment motion seeking custody of the child, ongoing child support, retroactive child support arrears, and Section 7 expense contributions.

The applicant father opposed the motion regarding custody and retroactive support but did not oppose ongoing support.

The court granted summary judgment on custody, finding the mother provided a stable home and that joint custody was inappropriate due to the parties' conflictual history and lack of communication.

The court also granted summary judgment on ongoing child support and the mother's entitlement to retroactive support from August 1, 2010, though the specific credit for payments made required a trial.

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 mother appealed a trial judge's final order making her child a Crown ward with no access.

The mother argued the trial judge failed to properly consider the parenting capacity assessments, ignored positive evidence of her progress, and erred in denying access.

The Superior Court of Justice dismissed the appeal, finding the trial judge made no palpable and overriding errors in assessing the evidence.

The court upheld the finding that neither the mother nor the maternal grandparents had the capacity to parent the child, and that the mother failed to prove access would be beneficial and meaningful without impairing future adoption opportunities.

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.

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.