Sam 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 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 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.

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 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.

In a child protection proceeding, the maternal grandmother moved late in the process to be added as a party and advance a custody proposal for the children.

Applying the established discretionary factors for adding parties in child protection matters, the court held the motion materials were late, weak, and insufficiently responsive to the Society’s serious concerns about the proposed placement.

The court found adding the proposed party would not be shown to be in the children’s best interests, would inevitably prolong the proceeding, and was unnecessary because her proposed involvement could be advanced through the mother and by witness evidence.

The motion to add the maternal grandmother as a party was dismissed, the Society’s summary judgment motion was scheduled, and the existing order continued.

In a child protection proceeding under the Child and Family Services Act, the society brought a motion for summary judgment seeking a finding that the child was in need of protection and an order for Crown wardship with no access.

The child had been apprehended at birth and had significant developmental and medical needs, while evidence established that the mother had severe cognitive limitations and limited support resources.

Applying Rule 16 of the Family Law Rules, the court held there was no genuine issue requiring a trial and that the society had established a prima facie case that the child was in need of protection.

The court further found that less intrusive alternatives were inadequate and that permanence was urgently required given the child’s needs.

The statutory presumption against access to Crown wards was not rebutted because there was insufficient evidence that access would be beneficial and meaningful to the child or would not impair adoption prospects.

In a child protection proceeding involving two children, the mother brought a motion seeking a parenting capacity assessment of the father who sought custody of one child.

The Society, the father, and counsel for the younger child opposed the request, arguing that sufficient evidence already existed and that the request amounted to a fishing expedition.

The court reviewed the legal framework under s. 54 of the Child and Family Services Act and Ontario Regulation 25/07, emphasizing that such assessments are discretionary and should only be ordered where reasonably necessary to assist the court.

The judge found that the evidentiary record already provided comprehensive information about the parents and the children, and that no unresolved clinical issues required expert evaluation.

The motion for a parenting capacity assessment was therefore dismissed.