Salvatore Garcea

This decision addresses an urgent parenting motion regarding a 10-year-old child, PRW.

The father, James Rufus Walker, withheld the child from the mother, Alecia Rachelle Innes, after a scheduled visit, claiming longstanding concerns about the child's welfare.

The court found that the father’s actions did not meet the threshold of urgency required to justify unilateral action and disruption of the status quo.

The court ordered the immediate return of the child to the mother and emphasized the importance of following court orders, discouraging self-help remedies, and considering the best interests of the child above all.

The appellant appealed a trial judge's determination of the parties' separation date, arguing it was 2011 instead of 2019.

The appellant challenged the trial judge's weighing of evidence and credibility findings, specifically regarding income tax returns, residence representations, and domestic violence evidence.

The Court of Appeal found no reversible error, deferring to the trial judge's findings of fact and credibility, which were supported by the record.

The appeal was dismissed, and costs were awarded to the respondent.

The applicant mother sought the return of her child after the respondent father unilaterally withheld the child for over three months.

The father had previously brought an unsuccessful ex parte motion to obtain custody, making misrepresentations to the court and failing to serve the mother.

The parties ultimately settled the parenting issues, with the child returning to the mother's primary care.

This decision addresses the costs of the mother's emergency motion, finding the father's conduct unreasonable and sanctioning it with a costs award to the mother.

The Catholic Children's Aid Society brought a child protection application regarding a four-year-old child.

The society sought a supervision order placing the child with the mother, while the paternal grandmother and father sought custody.

The court found the child in need of protection based on a risk of emotional harm under s. 74(2)(h) of the CYFSA, stemming from the paternal family's high-conflict and alienating behaviours towards the mother.

The court found no risk of physical harm from the mother.

Concluding that the mother was a capable and loving parent who would foster the child's relationship with the paternal family, the court awarded sole custody to the mother and granted specified parenting time to the father.

The Applicant brought a motion to change child and spousal support provisions from a temporary order issued in 2013.

The court found the issues, including a claim for a significant overpayment and income imputation, to be complex and involving credibility disputes, making them unsuitable for a motion and more appropriate for a full trial.

The judge emphasized the need for efficient use of judicial resources and discouraged repetitive motions on issues that should be resolved at trial.

The Applicant was granted leave to withdraw the motion, and the matter was adjourned for a settlement conference to finalize the main application.

Following the dismissal of the applicant's Motion to Change Final Order seeking child support for an adult child with a disability, the respondent sought full recovery costs of $40,903.17.

The court found the respondent was entirely successful and presumptively entitled to costs.

While the applicant's general claim was not unreasonable, her counsel advanced highly unreasonable arguments and litigation strategies that unnecessarily protracted the trial.

However, considering the applicant's limited financial means, the adult child's active resistance to disclosure, and the respondent's inappropriate behaviour during testimony, the court declined to award full recovery costs.

Costs were fixed at $8,000, payable at $150 per month.

The applicant mother brought a Motion to Change a 2010 final order, seeking ongoing and retroactive child support for the parties' adult son, who suffers from mental health issues and receives ODSP benefits.

The court found that while a material change in circumstances occurred when the son's mental health deteriorated in 2010, the applicant failed to prove he remained unable to withdraw from her charge or obtain the necessaries of life as of 2015.

The court noted the son's ability to drive, manage a vehicle, and the lack of medical evidence proving an inability to work towards self-sufficiency.

The motion to change was dismissed.

The respondent mother brought a motion to reinstate her time-sharing with the child, D.J., as per an existing temporary order.

The applicant father had unilaterally suspended time-sharing due to concerns about D.J.'s vulnerability to COVID-19, given his special medical needs.

The court applied the "material change in circumstances" test under the Children's Law Reform Act and found that the COVID-19 pandemic, while serious, did not, by itself, constitute a material change justifying the suspension of in-person parenting time.

The court emphasized that general fears are insufficient and that each parent's ability to mitigate risks must be assessed.

Finding the respondent mother to be a responsible parent who was taking appropriate precautions, the court dismissed the applicant's position and ordered the immediate reinstatement of the respondent's time-sharing as per the original temporary order.

The respondent mother brought an urgent motion regarding parenting issues during the COVID-19 suspension of court operations.

The applicant father had unilaterally withheld the children since March 8, 2020, alleging an assault by the mother's friend, R.D., on the older child.

The mother denied the allegations and offered to restrict R.D.'s contact with the children.

The court, applying principles from Ribeiro v. Wright, found the matter urgent due to the father's unilateral action.

The court ordered the resumption of the existing equal timesharing regime effective April 2, 2020, with a temporary restriction on R.D. having any contact with the children, and ordered make-up time for the mother.

The applicant mother brought a motion to set aside a temporary custody order made in her absence.

The order granted the respondent father temporary custody and primary residence of their two minor children.

The applicant argued that her failure to respond to the original motion was due to her counsel being on vacation and a subsequent scheduling miscommunication.

The court applied the test under Rule 25(19) and the five factors for setting aside a default order.

The court dismissed the motion, finding the applicant failed to provide a satisfactory explanation for the delay and failed to demonstrate that setting aside the order would be in the children's best interests.

The respondent father brought a motion to enroll the parties' four-year-old child in a public school in Dundas, Ontario, while the applicant mother brought a cross-motion to enroll the child in Jarvis, Ontario.

The parties shared equal parenting time under a temporary order, but lived an hour apart.

The court applied the best interests of the child test, focusing on stability and the child's status quo.

Finding that the child's ordinary residence had historically been Dundas and that the father's plan offered more stability with fewer unsettling features, the court granted the father's motion and ordered the child enrolled in Dundas.

The Children's Aid Society of Hamilton brought a motion for summary judgment within a Status Review Application, seeking extended society care for three children (aged 16, 11, and 3) due to the parents' ongoing issues with alcohol abuse, mental health, domestic violence, and inability to meet the children's needs.

The parents failed to file responding materials or attend the motion.

The court granted the motion, finding the children remained in need of protection and that extended society care was in their best interests, with discretionary access for the two older children to the parents and all siblings, but no access for the youngest child to the parents to facilitate adoption.

This is a costs decision arising from a custody and access appeal concerning three children.

The father's appeal to the Court of Appeal was dismissed on all four grounds.

The court awarded the mother costs fixed at $25,000, representing 60-70% of her actual costs.

The decision addresses the presumption of costs in favour of successful parties in family law matters, the application of the Family Law Rules cost framework, and the impact of unreasonable conduct by both parties.

The court also addressed costs related to an unsuccessful appeal to the Divisional Court, declining to award costs for that stage due to the confusing nature of family law appeal routes in Ontario.

The appellant father appealed a custody and access order from the Superior Court of Justice concerning his three sons.

The motions judge granted summary judgment in favour of the respondent mother, awarding her sole custody of two of the three children and ordering that the father's access and communication with the children be at the children's discretion.

The father challenged the appropriateness of summary judgment, the weight given to the custody assessment, the best interests analysis, and alleged Charter violations.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's decision to proceed by summary judgment, his consideration of the evidence, his analysis of the children's best interests, and his costs award.

The appellant father appealed a final custody and access order to the Divisional Court.

The panel raised the issue of jurisdiction, noting that the order was made in a proceeding where both parties sought a divorce.

Under section 27 of the Children's Law Reform Act, claims for custody and access are stayed in favour of the Divorce Act when a divorce is claimed.

Because the order was made under the Divorce Act, the appeal route lies to the Court of Appeal under section 6(1)(b) of the Courts of Justice Act, not the Divisional Court.

The Divisional Court found the father had a meritorious appeal regarding the termination of his access and transferred the appeal to the Court of Appeal pursuant to section 110(1) of the Courts of Justice Act.

The applicant father brought a motion for summary judgment seeking sole custody of his three children and an order forcing them into a reunification program (Family Bridges) with a 90-day no-contact period with the respondent mother.

The mother brought a cross-motion for summary judgment seeking sole custody and access at the children's discretion.

The court found no genuine issue for trial, concluding that the children's refusal to see their father was a justified estrangement resulting from his past violence, rather than parental alienation by the mother.

The court respected the strong and consistent views and preferences of the children, dismissed the father's motion, and granted the mother's motion for sole custody with access at the children's discretion.

During a child protection trial involving allegations of sexual abuse, the parents moved for a mistrial after the presiding judge raised concerns that the Society's counsel had inadvertently undermined the credibility of the key witness, a vulnerable 17-year-old complainant, during examination-in-chief.

The judge granted the mistrial, finding that it was impossible to rule out that the witness's subsequent testimony was affected and that a reasonable apprehension of bias would arise if the trial continued, thereby compromising fairness to the parties and the integrity of the court process.

In a child protection proceeding under Part III of the Child and Family Services Act, the Society brought a motion for summary judgment seeking findings that the child was in need of protection and requesting Crown wardship without access.

Evidence demonstrated a prolonged history of parental substance abuse, domestic violence, criminal involvement, and failure to engage with child protection services, as well as prior Crown wardship orders for the parents’ other children.

The parents did not participate meaningfully in the proceeding and failed to present evidence establishing any realistic prospect of improved parenting capacity.

Applying the summary judgment standard in child protection matters, the court found no genuine issue requiring a trial and concluded that the child’s best interests required permanence without delay.

Crown wardship without access was ordered.

In a child protection status review proceeding, the child protection agency brought a summary judgment motion seeking custody of the child to the mother, termination of the supervision order, no access to the father, and a restraining order.

The father opposed and sought a trial and placement of the child with him.

The court held there was no genuine issue requiring a trial, finding ongoing protection concerns regarding the father including domestic violence history, inability to cooperate with the agency, inconsistent access, problematic interactions with the child, and lack of a viable parenting plan.

The court determined that continued access would undermine the child's stability with the mother and was not in the child’s best interests.

Custody was granted to the mother with no access to the father and a restraining order issued.

In a child protection summary judgment motion under Part III of the Child and Family Services Act, the society sought Crown Wardship without access for a child who had been in care since birth.

The court held there was no genuine issue for trial as against either the mother or the maternal grandmother, finding the evidence showed ongoing concerns about domestic violence, failure to protect, instability, and the absence of a sufficiently secure and permanent kin placement.

Applying the statutory best interests factors, the court concluded that delay would be harmful and that the proposed family placements did not provide the necessary permanency.

The court also held that continued access would not be beneficial and meaningful from the child’s perspective and would likely impair future adoption opportunities.