Family and Matrimonial Law - OCJ

A Form 14b motion brought by the respondent seeking summary judgment on custody, access, and child support matters.

The applicant, who was self-represented, had effectively abandoned the proceedings and had not seen the child for over a year.

The court found that the applicant had abdicated his parental responsibilities and granted the respondent sole custody of the child.

Access was granted at the sole discretion of the respondent.

Child support was ordered retroactively from June 1, 2019, based on an imputed income of $35,500 per annum.

The respondent was permitted to travel outside Ontario and move residence without the applicant's consent.

Issues regarding First Nations status and costs were reserved for a future return date.

The Children's Aid Society of Brant brought a Form 14B motion seeking an order requiring respondent parents to file Answers and Plans of Care by October 5, 2020, with a conditional order noting them in default if they failed to comply.

The motion arose from COVID-19 pandemic-related suspension of time limits under Ontario Regulation 73/20.

The court found that the parents had not engaged with the process, had not participated in services, and had not attended hearings.

The children, ages 16 and 12, had resided with their maternal uncle for eight months and expressed a clear wish to remain with him.

The court exercised its discretion to lift the presumptive suspension of the parents' time to file pleadings, finding it was in the best interests of the children to bring the litigation to conclusion.

The parents were noted in default, and a final order was made placing the children in the custody of the maternal uncle with access to the parents.

The applicant sought enforcement of a separation agreement and child support for two adult children, while the respondent sought to set aside the spousal support provisions and terminate his support obligations.

The court found that structured settlement annuity payments constitute income for child support purposes and should be grossed-up for tax purposes.

The court awarded table amount child support for both children, including an adult child enrolled in post-secondary education.

The court rejected the respondent's arguments to set aside the spousal support provisions and found no material change in circumstances warranting termination.

Retroactive child support arrears were rescinded based on the parties' oral agreement and the DBS factors.

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.

The respondent brought a motion to change a child support order dated May 27, 2008, which required him to pay $194.00 per month based on imputed annual income of $22,880.00.

The respondent argued that his medical condition had worsened since the original order, rendering him incapable of any gainful employment.

The applicant opposed the motion, contending that the respondent remained capable of working and had failed to meet his parental support obligations.

The court found that the respondent had not demonstrated a material change in circumstances sufficient to vary the order.

Although the respondent's medical condition had deteriorated, the medical evidence did not support total incapacity for work, and the respondent had failed to undertake reasonable efforts to retrain or seek suitable employment within his limitations.

The motion was dismissed.

Motion to change a custody and access order dated November 22, 2012.

The applicant sought to change the access pick-up location, retain a psychologist to facilitate access, and modify the child support arrangement and overpayment repayment schedule.

The respondent sought appointment of the Children's Lawyer for a section 112 investigation and requested the applicant designate the respondent as beneficiary on a life insurance policy in trust for the child.

The court approved retention of a psychologist for open intervention to assess the child's views regarding access, dismissed the Children's Lawyer appointment request, deferred the pick-up location change pending the psychologist's report, modified the child support amount based on changed income circumstances, and established a repayment schedule for the overpaid child support.

The court dismissed the life insurance beneficiary designation request as exceeding its jurisdiction.

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.

Respondent parents brought a summary judgment motion to dismiss a child protection application brought by the Children's Aid Society following the sudden unexpected death of their six-week-old infant.

The Society sought to establish that the surviving child was in need of protection due to alleged inadequate supervision and neglect.

The court found that the evidence did not establish a genuine issue requiring trial.

The surviving child was in her own bedroom and could be heard by the sleeping parent.

The fact that the child may have been awake and unattended for several hours while the parent slept, and was not fed or changed during that period, was insufficient to establish a real and likely risk of physical harm.

The motion was granted and the application dismissed.

A status review application under Part III of the Child and Family Services Act concerning two young children (ages 4 and 5) who had been apprehended and placed in foster care.

The Windsor-Essex Children's Aid Society sought a finding that the children remain in need of protection and sought a Crown wardship order without access.

The respondent mother sought to have the children returned to her care subject to society supervision.

The court found that the children remain in need of protection due to the mother's inability to consistently manage the children's complex behavioural and emotional needs despite participating in numerous parenting programs over three years.

The court ordered Crown wardship with no access, finding that the children's best interests were served by remaining in their stable foster placement with Ms. Ba., where their emotional and behavioural needs were being appropriately met.

In this temporary care and custody hearing under Part III of the Child and Family Services Act, the court determined the placement of a newborn child following apprehension by the Society.

The Society sought placement with the paternal great aunt and her partner subject to supervision.

The paternal grandmother and her partner sought placement with themselves or alternatively expansive access.

The court found that the paternal grandmother alone had charge of the child immediately before apprehension and that there were reasonable grounds to believe the child would suffer harm if returned to her care due to her serious medical conditions and observations of her being overwhelmed.

However, the court found that supervision alone would not adequately protect the child.

The court ordered placement with the paternal great aunt and her partner, with the paternal grandmother having structured access and shared responsibility for medical care, recognizing the benefit of maintaining family connections while ensuring child protection.

In a child protection status review hearing under Part III of the Child and Family Services Act, the respondent mother brought a mid-trial motion requesting that two society witnesses be recalled for re-cross-examination.

The court denied the motion, finding that the respondent mother's counsel had adequate opportunity to cross-examine the witnesses prior to trial and at trial, no new evidence had emerged that would warrant re-cross-examination, and allowing the recall would cause undue delay prejudicial to the children's interests.

However, the foster mother was ordered to be recalled to give evidence regarding events occurring after April 1, 2015.

A summary judgment motion brought by the Children's Lawyer on behalf of two Indigenous children seeking Crown wardship without access.

The maternal grandfather and Walpole Island First Nation opposed the motion, arguing a trial was necessary.

The court found no genuine issue for trial and granted Crown wardship, finding that the children's best interests were served by remaining in their current foster placement with an Indigenous family rather than transitioning to the grandfather's care on the First Nation territory.

The court considered the children's special needs, cultural identity, continuity of care, and the grandfather's inconsistent access pattern over two years.

The applicant sought a temporary order for custody of the parties' child, born December 25, 2013, following separation on September 2, 2014.

The applicant was charged with assaulting the respondent and released on an undertaking prohibiting direct or indirect communication with the respondent.

The court determined that it was in the child's best interests to remain in the care of the respondent mother, with the applicant granted supervised access of three hours per week.

The court found the respondent was the primary caregiver during cohabitation, works part-time and is more available, and that the child benefits from remaining in the familiar home.

The applicant's request for week-about care was denied due to lack of evidence regarding the child's needs and the applicant's care plan.

Status review applications concerning three children found to be in need of protection due to parental substance abuse and domestic conflict.

The court granted custody of two older children to maternal grandparents under section 57.1 of the Child and Family Services Act.

The youngest child was placed with the grandparents subject to Society supervision for nine months.

The court established a five-week access schedule for all three children with their parents to minimize transitions and disruption while maintaining parental relationships.

The court rejected the father's request to have one child placed in his sole care, finding that keeping siblings together was in their best interests.

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.

This is a status review application under the Child and Family Services Act brought by the Windsor-Essex Children's Aid Society seeking a finding that a child remains in need of protection and an order of Crown wardship without access.

The Society sought to introduce hearsay statements made by the child's siblings to third parties.

The court conducted a voir dire to determine the admissibility of these statements under both the state of mind exception and the principled approach to hearsay.

The court found that certain statements met the threshold reliability requirements and were admissible, while others did not satisfy the criteria for admission.

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.

This is a ruling on a voir dire in a child protection application brought by the Society seeking a finding that four children are in need of protection under the Child and Family Services Act due to physical abuse and risk of physical and emotional abuse, and seeking an order of Crown wardship without access.

The court considered the admissibility of numerous statements made by the children to third parties, applying both the state of mind exception to the hearsay rule and the principled exception for hearsay evidence.

The court admitted certain statements meeting the threshold reliability test while rejecting others that failed to meet the required criteria.

The respondent brought a motion to suspend or terminate the applicant's access to two children pending trial, following a section 112 report from the Children's Lawyer that raised concerns regarding the applicant's behaviour, including allegations of sexual abuse of the younger child and parental alienation of the older child.

The court found a material change in circumstances since the original custody order and determined that a temporary variation of access was necessary in the best interests of the children pending trial.

The court suspended access to the younger child entirely and restricted access to the older child to alternate weekend visits with specific conditions prohibiting negative statements about the respondent.

The applicant mother and respondent father both brought motions to change a custody and access order made by Phillips J. on April 19, 2011, which had permitted the mother to relocate with the two children to Warren, Michigan.

The preliminary issue was whether the Ontario Court of Justice had jurisdiction to hear the motions to change when the children were no longer habitually resident in Ontario.

The court found that none of the four jurisdictional bases under the Children's Law Reform Act were satisfied: the children were habitually resident in Michigan under s. 22(2)(b); they were not physically present in Ontario at the commencement of the motions; s. 23 did not apply as there was no evidence of serious harm; and the Ontario Court of Justice has no parens patriae jurisdiction.

Consequently, both motions to change were dismissed for want of jurisdiction.