Family and Matrimonial Law - OCJ

This decision addresses a motion concerning medical decision-making authority, specifically the authority to consent to vaccinations for children placed in the care of their Paternal Aunt under a temporary order pursuant to the Child, Youth and Family Services Act, 2017 (CYFSA).

The court confirms that while the Paternal Aunt has temporary care and custody, a specific order permitting her to make medical decisions including vaccinations is appropriate and necessary to satisfy medical providers.

The court emphasizes the remedial purpose of the CYFSA and judicial notice of vaccine safety and efficacy, placing the onus on the objecting party to justify refusal of vaccination.

The Father’s request for adjournment was denied due to lack of evidence, and the Paternal Aunt was granted authority to consent to vaccinations in accordance with medical advice.

This decision addresses the issue of costs between parents in a child protection proceeding under the Child, Youth and Family Services Act, 2017.

The father, J.N., sought partial indemnity costs from the mother, J.M., arguing that he was successful and that J.M. acted unreasonably and prolonged the matter.

The court reviewed the high threshold required for awarding costs between parents in protection cases, emphasizing that costs should only be awarded for extreme unreasonable conduct or bad faith.

The court found that although J.M. initially resisted conceding primary residence, she acted reasonably in later efforts to resolve the matter, and no findings of fact or breach of court orders were made against her.

The protection application was withdrawn on consent, and the court declined to order costs, highlighting the importance of good faith and proportionality in such proceedings.

The Ontario Court of Justice granted summary judgment in favour of the Children’s Aid Society of the Region of Peel, placing three children in extended society care due to chronic and long-standing child protection concerns including domestic violence, parental substance abuse, and mental health issues.

The court emphasized the children’s expressed wishes not to return to parental care, the lack of meaningful progress despite years of intervention, and the need for permanency and closure.

The decision carefully applied the Child, Youth and Family Services Act, 2017, and the principles from Hryniak v. Mauldin regarding summary judgment, underscoring the cautious approach required in child protection cases.

The paternal grandmother (applicant) sought a contact order with her 6-year-old grand-daughter.

The mother (respondent N.J.) opposed this and sought a restraining order against the paternal grandmother.

The father (respondent T.S.) was in default.

The court applied the two-part test for grandparent contact, determining that a positive relationship did not exist at the time contact was terminated, and the mother's decision to deny contact was not arbitrary.

This was based on significant safety concerns in the paternal grandmother's home and community, her problematic parenting history, and a clear power imbalance and lack of trust between the parties.

The court dismissed both the paternal grandmother's claim for contact and the mother's claim for a restraining order, finding no sufficient grounds for the latter.

The Children's Aid Society brought a motion to add a maternal aunt as a party to a child protection proceeding, arguing that a Court of Appeal decision made it mandatory.

The child had been placed in the maternal aunt's temporary care.

The child's mother opposed the motion, expressing concerns about family division.

The maternal aunt tearfully withdrew her consent, stating she had not received independent legal advice and felt pressured by the Society.

The court dismissed the motion, finding that the Society's application of the cited case could have constitutional implications and that the process for adding parties must ensure procedural fairness, including proper notice, opportunity to respond, and independent legal advice for the proposed party.

The court also rejected the Society's argument that the temporary order should be deemed "with prejudice" due to the passage of time.

The respondent, Mr. Sterling, brought a motion to change a prior order regarding child support, section 7 expenses, and parenting time.

The applicant, Ms. Smith, opposed the motion.

The court dismissed Mr. Sterling's request to reduce child support, finding his financial disclosure inconsistent and lacking credibility, and ordered him to pay an additional $200 per month towards significant arrears.

The court clarified section 7 expenses, terminating old fixed amounts and establishing a new sharing mechanism for daycare and future agreed-upon activities.

The parenting schedule was revised by agreement of the parties.

The Children's Aid Society sought a finding that a newborn child was in need of protection under Section 74 of the Child, Youth and Family Services Act, alleging risks based on parental substance use, the father's youth justice involvement and anger management concerns, lack of engagement with the Society during pregnancy planning, and inadequate preparedness for the child's discharge from hospital.

The court rejected all grounds for the protection finding, determining that the Society failed to establish a real and likely risk of physical or emotional harm on a balance of probabilities.

The court found the parents' plan to reside with extended family support was reasonable and responsible, and that the Society's concerns were largely speculative or based on incomplete and misleading information presented in the apprehension warrant application.

A stepmother sought temporary access to a nine-year-old child on alternate weekends and three weeks during summer.

The biological parents opposed all access.

The court found that the stepmother had formed a settled intention to treat the child as her own and had a close, loving relationship with the child spanning from age one to age nine.

The court granted limited temporary access on one weekend every four weeks, finding that parental autonomy does not extend to excluding a person who has assumed the role of a third parent.

The court rejected the parents' allegations against the stepmother as lacking credibility and found the parents were acting arbitrarily and in bad faith.

The Windsor-Essex Children's Aid Society brought a motion seeking production of hospital records for the respondent mother from January 1, 2016 to August 31, 2017.

The Society sought these records to investigate its theory that the mother was a victim of domestic violence perpetrated by the father.

The respondents opposed the motion, arguing it constituted a fishing expedition.

The court found the Society's request as originally framed was over-broad but granted a narrowed version of the motion, restricting production to hospital admission records where the mother presented with physical injuries or complaints about domestic conflict.

The claimant, residing in Michigan with a child born out of wedlock, sought child support from the respondent residing in Ontario under the Interjurisdictional Support Orders Act, 2002.

The respondent acknowledged paternity and his obligation to pay support.

The court determined that entitlement to support was governed by Michigan law (the Paternity Act), while the quantum of support was determined under Ontario law.

The court established a retroactive start date for support based on Michigan legislation and calculated monthly support payments using Ontario child support guidelines.

A child protection application brought by the Windsor-Essex Children's Aid Society seeking to place a child in the care of the mother with Society supervision and to restrict the father's access to supervised visits.

The father, a joint custodial parent under a prior family law order, opposed the motion and sought to maintain the existing shared custody arrangement.

The Society alleged risk of harm based on the father's recent criminal charges and convictions for indecent exposure and other sexual offences.

The court found reasonable grounds to believe there was risk of harm but determined that adequate protection could be achieved through supervision conditions rather than removal from the father's care.

The court ordered the child remain in the father's care on the existing schedule subject to strict supervision terms and conditions.

The respondent sought costs following a successful motion to dismiss the applicant's rule 14(4.2) motion to change on the basis that the court was functus officio.

The applicant argued that the contempt motion and the motion to change should be viewed as a continuum and that the respondent acted recklessly.

The court rejected these arguments and found that the presumption of entitlement to costs was not displaced.

However, the court reduced the claimed costs of $15,239.59 to $6,250.00, finding that the hours claimed were excessive and that certain expenses were not recoverable.

The court also disallowed claimed court attendances that should have been addressed at prior steps in the case and rejected a claim for lost wages and travel expenses.

The respondent brought a motion to remove the applicant's solicitor, Ms. Avery, from the record in contempt proceedings.

The respondent argued that Ms. Avery must testify regarding her attendance at a police station with the applicant on October 7, 2015, and therefore could not continue as counsel.

The applicant opposed removal, arguing that Ms. Avery's evidence did not meet the high threshold of materiality and necessity required to deprive him of counsel of choice.

The court dismissed the motion, finding that the evidence was available from other sources and did not reach the exceptional circumstances threshold required for removal.

The respondent mother brought a motion to set aside an order made on February 3, 2014, which declared her daughter a ward of the Crown with no access.

The mother sought to rely on facts arising or discovered after the order was made, arguing that fresh evidence would undermine important findings of fact and put the best interests of the child back in issue.

The court considered whether Rule 59.06(2)(a) of the Rules of Civil Procedure applied to child protection proceedings and, assuming it did, examined whether the mother met the conjunctive criteria for setting aside an order based on newly discovered evidence.

The court found that the evidence presented—affidavits from the child's father, a neighbour, and the mother's boyfriend—did not constitute new evidence, would not have changed the outcome, and raised credibility concerns.

The motion was dismissed.

The Children's Aid Society of Brant applied ex parte for a warrant to apprehend a child in need of protection.

The child was residing with her biological mother in a shelter following the mother's separation from the child's biological father, who faced assault charges and was bound by release conditions prohibiting contact with the mother and child.

The CAS alleged the father had repeatedly breached his release conditions and that the mother might return to the matrimonial relationship.

The court denied the application, finding that the Information to Obtain failed to establish that the child was in need of protection, particularly given that both the child and mother were safely residing in a shelter with protective measures in place.

The respondent brought a motion without notice seeking an order for substituted service of a motion to change by mailing a copy to the Family Responsibility Office.

The court found that the Family Responsibility Office is a government agency as defined in the Family Law Rules.

Consequently, the respondent's motion for substituted service could not be heard without notice and had to be served upon the Family Responsibility Office before the motion could be heard.

The court ordered that a date for the return of the motion be obtained through the trial coordination office.

The respondent brought a motion to change seeking to vary custody of the parties' daughter from the applicant to himself.

The proceedings were stalled by disputes over financial disclosure, particularly regarding the respondent's income as a self-employed real estate agent and his financial arrangement with his fiancée.

The court addressed multiple disclosure orders, finding technical compliance with procedural rules but noting the respondent's overall dilatoriness.

The court awarded costs to the applicant, stayed the respondent's custody motion pending completion of financial disclosure, and set conditions for any access requests.

The matter was adjourned for further case conference.

A status review application concerning a Crown ward child.

The Windsor-Essex Children's Aid Society sought to terminate the mother's access to the child, who had been made a Crown ward in 2009.

The mother had sought custody of the child following her removal from the paternal grandparents' home and placement in foster care.

The court found that the mother's access had been inconsistent, with numerous missed visits, and that there was no secure attachment between mother and child.

The foster parents expressed a desire to adopt the child.

The court terminated the mother's access order, finding it was no longer in the child's best interests and that the relationship was neither beneficial nor meaningful to the child.

The applicant mother brought a motion for summary judgment seeking sole custody of Daniel Pedersen and supervised access for the respondent father.

The respondent father opposed the motion, arguing that custody and access issues were triable matters.

The court found that after more than four years of acrimonious litigation, the outcome was a foregone conclusion based on clinical assessments and the children's best interests.

The court granted summary judgment, awarding sole custody of Daniel to the mother with supervised access to the father, and sole custody of Erika to the father with access to the mother as agreed.

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.