WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.—(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.—(3) Offences re publication.— A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO. C11584/17
ONTARIO COURT OF JUSTICE
B E T W E E N:
CHILDREN’S AID SOCIETY OF TORONTO
MARGARIDA M. PACHECO, for the APPLICANT
APPLICANT
- and –
M.M. and C.L.
THE RESPONDENT M.M., ACTING IN PERSON
THE RESPONDENT C.L., ACTING IN PERSON
JULIA TREMAIN, for the OFFICE OF THE CHILDREN’S LAWYER, on behalf of the subject child
RESPONDENTS
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
1The respondent M.M. (the mother) has brought a Form 14B motion, asking for a long motion date to seek an order to set aside the final order of Justice Carolyn Jones, dated September 22, 2025 (the trial decision), under subrule 25 (19) of the Family Law Rules (the rules).
2After a 5-day trial, Justice Jones ordered that the subject child, now 14 years old, be placed in the custody of the respondent C.L. (the father) under section 102 of the Child Youth and Family Services Act, 2017 (the Act). She also ordered that the mother’s parenting time with the child shall be in the father’s discretion. She circumscribed how that discretion was to be exercised in her order.
3The mother unsuccessfully appealed the trial decision, first to the Superior Court of Justice, and then to the Ontario Court of Appeal.
4The Children’s Aid Society of Toronto (the society) and the Office of the Children’s Lawyer (the OCL), on behalf of the child, seek a dismissal of the mother’s motion. The respondent, C.L. (the father) did not respond to the Form 14B motion.
Part Two – Legal considerations
5Subrule 25 (19) of the rules reads as follows:
Changing order — fraud, mistake, lack of notice
(19) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
6In Gray v. Rizzi, 2011 ONCA 436, at paragraph 16, the court found that clause 25 (19) (b) of the rules cannot be used to address alleged mistakes that go to the correctness of the order. These are not the types of mistakes contemplated by the subrule. Those can only be made on appellate review. Also see: Courchesne v. Seguin, 2022 ONSC 6775, paragraph 5.
7In Berta v. Berta, 2021 ONSC 2823, the court distinguished between the use of clause 25 (19) (b) and an appeal, at paragraph 15, as follows:
In my view, Rule 25 (19) (b) of the Family Law Rules is intended to permit the court to address inaccuracies in a result in the most streamlined, efficient and cost-effective manner – that is, by simple return to the same level of court, preferably before the same judge, to address the issue. One could easily contemplate this jurisdiction to include amending typographical errors which impact a result (i.e. reversing the terminology of “Applicant” v. “Respondent”), correcting errors in mathematical calculations, etc. However, such jurisdiction to remedy a mistake does not include the authority to consider whether a judge sitting at the same level of court made an analytical error in deciding a case. That is the subject-matter of an appeal.
8In Gray v. Gray, 2017 ONCA 100, the appellant appealed a default trial order. He also moved to set aside the order in the Superior Court of Justice under subrule 25 (19) (e). The Court of Appeal delisted the appeal. It wrote at paragraph 33:
In my view, the proper procedural route in this case was to bring a motion under rule 25(1) of the Family Law Rules rather than to appeal to this court. While this court retains jurisdiction to hear any appeal of a final order, rule 25(19) provides a more effective way to correct orders within its ambit.
9In Catholic Children's Aid Society of Toronto v. E.S., [2016] O.J. No. 2558 (OCJ), Justice Ellen Murray discussed the common law doctrine of abuse of process as follows:
78 The common law doctrine of abuse of process engages the inherent power of the court to "prevent misuse of its procedure, in a way that would... bring the administration of justice into disrepute". Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 v. City of Toronto, et al., (2003) 3. S.C.R. 77 para. 37.
79 The doctrine is flexible, and unencumbered by the specific requirements of concepts such as issue estoppel".Canam Enterprises Inc. v. Coles, (2000) 2000 CanLII 8514 (ON CA), 51O.R. (3d) 481 at. Para. 55.
80 The doctrine may be used to prevent "relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice". Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 v. City of Toronto, et al., (2003) 3. S.C.R. 77 para. 37
81 The Supreme Court of Canada has made observations as to why relitigation of an issue is to be avoided as a matter of public policy:
- There can be no assumption that relitigation will yield a more accurate result than the original proceeding;
Relitigation is a waste of judicial resources.
- An inconsistent result in the subsequent proceeding "in and of itself will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality".
Part Three – Discussion and order
10The mother did not meet her onus, on a prima facie basis, to establish one of the grounds to set aside or change the trial decision under subrule 25 (19).
11There is no credible evidence that the trial decision was obtained by fraud under clause 25 (19) (a) of the rules.
12The mother is not asking to deal with a matter that was before the court but was not decided, under clause 25 (19) (c) of the rules.
13The trial decision was reached after a lengthy trial. The mother fully participated in the trial. Clauses 25 (19) (d) and (e) of the rules do not apply here.
14In her Form 14B motion, the mother characterizes as mistakes in the trial decision what are, in substance, alleged errors of facts that go to the correctness of the order. For instance, she alleges that:
a) Justice Jones falsely said that she did not care for her son by keeping him in virtual school.
b) Justice Jones said the condition of her home was not proper, however the mother says it was in a suitable condition when the child was apprehended.
c) The society misled the court about the condition of her home without any evidence.
d) The doctor who testified at trial stated further harm would be caused if the proceedings were prolonged, however no such harm occurred except for the stress she has suffered.
15These are not the types of mistakes contemplated by subrule 25 (19) (b) of the rules. These alleged mistakes or misapprehensions of the evidence are properly the subject matter of an appeal.
16The mother either raised or could have raised these issues on her two appeals. Her attempt at this stage to set aside the trial decision is an indirect appeal of the trial decision and improper. Both of her appeals have been dismissed by higher courts. She is now attempting to relitigate the trial decision through a subrule 25 (19) motion. To permit her to do so would be an abuse of process.
17The mother’s Form 14B motion for a long motion date to set aside the trial decision is dismissed.
Released: July 27, 2026
Justice Stanley B. Sherr