Renatta Tonya Austin

A wrongfully retained child was ordered returned to her country of origin after Canada granted her refugee status.

The Court of Appeal for Ontario allowed the appeal, finding that the application judge erred in failing to apply the rebuttable presumption against the return of a refugee child and in dismissing the child's objection to return.

The court held that when a child has been recognized as a Convention refugee by the Immigration and Refugee Board, a rebuttable presumption arises that there is a risk of persecution on return.

The application judge improperly questioned the refugee determination process and reweighed evidence without oral testimony or cross-examination.

Additionally, the child's clear and repeated objection to return, based on fear of violence by the father, was not given proper weight.

The matter was remitted to the Superior Court for determination of parenting and decision-making authority under section 23 of the Children's Law Reform Act.

This decision addresses the issue of costs following a focused trial on parenting issues involving two children.

The father was the successful party and sought full recovery of costs.

The court applied the amended Family Law Rules (effective January 22, 2025) and considered the reasonableness and proportionality of the parties' conduct, offers to settle, and ability to pay.

The father's non-severable offer to settle did not attract the full costs consequences under subrule 24(12) because it was not as good as or better than the trial result.

The mother was found to have acted unreasonably, including breaching court orders and failing to make an offer to settle, which increased costs.

The court awarded the father costs fixed at $8,000 with a reasonable payment plan.

The appellant mother sought costs against the Children's Aid Society of Toronto (CAS) for a second appeal to the Superior Court of Justice, which became moot after the CAS withdrew its protection application in the Ontario Court of Justice.

The case involved conflicting interim orders between the two courts and concerns about the CAS's conduct in investigation and presentation of its case, including failing to meet with the mother and withholding relevant information from the OCJ.

The court found the CAS acted unfairly and unreasonably, justifying a costs award, despite the general exception for government agencies in child protection cases.

In a status review application, the Children's Aid Society of Toronto sought extended society care for a child (N.G.-L.), while the father (W.L.), supported by the mother (N.G.), sought custody with a supervision order.

The court found intervention necessary due to the mother's long-standing substance abuse issues, the parents' past dishonesty, and minimization of risks.

However, considering the child's best interests, the father's commitment, his capacity to parent with support, and the positive influence of a friend (T.G.), the court determined that a supervision order placing the child in the father's care, following a six-week interim society care transition, was the least disruptive and most appropriate alternative.

The order included strict supervision terms for the father and clear boundaries for the mother's access, which is to be supervised solely by the society.

The respondent brought a motion to change a consent order regarding child access, child support, and travel consents.

The applicant sought to reduce the respondent's access and modify travel consent requirements.

The court varied the access schedule, granting the respondent increased day access and conditional overnight access upon suitable accommodation.

The respondent's requests to reduce child support and expunge arrears were dismissed, as no material change in circumstances was found to warrant a reduction from the previously consented amount.

Travel consent requirements were modified, allowing the applicant to travel within Canada without the respondent's written consent under specific conditions, but retaining the requirement for international travel, school removal, or if it impinged on access.

The respondent was also ordered to promptly sign government documents.

A child protection society brought a summary judgment motion seeking an order for extended society care of two children, with no access to their mother, and access to their maternal uncle.

The mother opposed the motion and sought return of the children to her care.

The court found that the mother suffered from serious untreated mental health issues, including amphetamine-induced psychosis, and had engaged in concerning behaviour including violating court orders, posting confidential information on social media, and attempting to undermine the children's foster placement.

The court granted the society's motion for extended care, denied the mother's request for access, and granted access to the maternal uncle at the society's discretion.

A Children's Aid Society brought a summary judgment motion seeking statutory and protection findings under the Child and Family Services Act, and an order for Crown wardship of a child apprehended at birth.

The respondent parents had previously been convicted of manslaughter in the death of another child due to malnutrition and failure to provide necessaries of life.

Two other children had been made Crown wards without access.

The court dismissed the motion, finding genuine issues for trial regarding whether the child was in need of protection and the appropriate disposition, despite the serious history of parental neglect and the parents' lack of demonstrated change.

The Children's Aid Society of Toronto sought access to youth criminal justice records of A.C., now an adult, for use in child protection proceedings regarding A.C.'s infant son.

The records were created when A.C. was a young person and are protected under the Youth Criminal Justice Act.

The court was required to balance the society's interest in protecting the child against A.C.'s privacy rights under the Act.

The court granted limited access to two records within the statutory access period (robbery and breach of recognizance charges) but denied access to all other records that fell outside the access periods.

The court imposed strict conditions on the use and distribution of the records granted.

This is a costs decision following a three-day family law trial in which the mother successfully obtained an order permitting her to relocate the child to British Columbia, secured a parenting schedule favourable to her position, and established ongoing child support at $566 per month.

The father was unsuccessful on the dominant issues but succeeded on secondary matters regarding travel restrictions and spousal support.

The mother sought $5,000 in costs while the father sought no costs award.

The court awarded costs to the mother as the substantially successful party, fixing the amount at $3,500 inclusive of fees, disbursements, and HST, payable in monthly instalments of $100 commencing July 1, 2016.

The mother sought to relocate with the parties' two children (ages 10 and 8) from Ontario to British Columbia to care for her ailing mother and pursue better employment opportunities.

The father opposed the relocation and sought custody if the move was permitted.

The court found a material change in circumstances and, applying the Gordon v. Goertz framework, determined that permitting the relocation was in the children's best interests.

The mother's plan provided greater financial security and family support, while the father had demonstrated a pattern of non-compliance with child support obligations and poor parenting judgment.

The court granted the relocation with modified access arrangements and increased child support.