Paul Lesarge

The applicant father sought unsupervised access to his five children and a reduction in child support arrears.

The respondent mother sought continued supervised access and payment of child support arrears.

The court found that due to a history of domestic violence and the children's reluctance to attend access visits, immediate unsupervised access was not in their best interests.

The court ordered continued supervised access with a transition plan involving individual and family counseling.

On the issue of child support, the court calculated arrears based on an interim order but reduced the outstanding amount by half to reflect the father's actual income, fixing the remaining arrears at $7,773.42.

The applicant father brought a motion seeking to change a prior order for supervised access to permit unsupervised access with the parties’ five children.

The supervised access order had been in place for over two years and arose in part from criminal charges and restrictions on contact with the mother.

The court noted the matter was scheduled for trial within two months and that significant factual disputes remained requiring full evidence.

Emphasizing the best interests of the children and the importance of stability pending trial, the court declined to alter the existing access arrangement.

The motion was dismissed and the parties were directed to proceed to trial.

The moving party sought to rescind child support arrears and terminate ongoing support after spending five years incarcerated with no income.

The court considered the variation provisions of s. 17 of the Divorce Act and the Child Support Guidelines, including the principles governing rescission of arrears and imputing income.

It held that the payor had no present or past capacity to pay during incarceration and that imputing income during that period would be irrational.

The court also found that a possible future residential school settlement did not constitute future capacity to pay arrears that accrued when the payor had no income.

The arrears were rescinded and ongoing support was varied to zero, subject to future variation if circumstances change.

In a child protection proceeding, the parents brought a motion seeking full documentary disclosure from the Children’s Aid Society and the Office of the Children’s Lawyer.

Although the Society ultimately consented to the requested disclosure after the motion commenced, the court considered whether costs should be awarded against the Society.

The court held that while child protection agencies do not have immunity from costs awards, costs should only be ordered where the Society conducts itself unfairly in carrying out its statutory responsibilities.

The court found that the Society’s delayed and piecemeal disclosure required the parents to bring an unnecessary motion and risked delaying the trial in a case involving a child already in care for over a year.

Partial indemnity costs were therefore ordered against the Society.

A biological father brought a motion to set aside a Crown wardship order made without notice to him in child protection proceedings.

The court considered whether a biological father who did not meet the statutory definition of “parent” under the Child and Family Services Act was nevertheless entitled to notice of the Crown wardship application.

The court held that the father had a common-law entitlement to notice and that the society had failed to take reasonable steps to identify and notify him before obtaining the order.

Applying Supreme Court of Canada authority concerning procedural fairness in child protection matters, the court concluded that the wardship order was a nullity as against the father.

The order was set aside as against him only, while the child remained temporarily in the society’s care pending further proceedings.