Sara C. Wisking

This decision addresses two Applications for Openness brought by the Office of the Children's Lawyer on behalf of two Metis children placed for adoption with their younger siblings.

The court considered the best interests of the children, the meaningfulness and benefit of ongoing contact with birth parents, and the importance of cultural connection under both the Child, Youth and Family Services Act (CYFSA) and the Federal Act respecting First Nations, Inuit and Métis children.

The court balanced the children's strong desire for contact and cultural connection against the risks posed by the birth parents' aggressive and disruptive behavior, particularly the father's history of threats and criminal charges.

The final openness order permits indirect contact through annual updates and messages, with strict conditions to protect the adoptive placement's stability and safety.

The court considered a motion by Brian Joseph Serapiglia to stay enforcement of a support order by the Family Responsibility Office (FRO) and suspend his obligation to pay spousal support.

The court found a material change in circumstances justifying a stay and suspension of spousal support effective December 31, 2023, but declined to grant the full relief sought.

The decision reviews the jurisdiction of the Superior Court to grant such relief, the applicable legal test, and the evidence of hardship, urgency, and clean hands.

This endorsement addresses two openness applications brought by siblings under Part V of the Child, Youth and Family Services Act, 2017 (CYFSA).

The applications sought to formalize access between four siblings, two of whom were in extended society care and on adoption probation, and two others who were also in extended society care but not yet legally free for adoption due to an outstanding appeal.

The court outlined the statutory pathway for openness orders, particularly concerning the impact of the sequence of extended care orders on children's legal rights and access.

The applications proceeded on consent, with the potential adoptive parents agreeing to the proposed openness order.

The court found it was in the children's best interests to make the final openness order, ensuring the continuation of beneficial sibling relationships.

The applicant brought a motion under the Hague Convention seeking to enforce a Superior Court order for Skype access by requiring the respondent to produce the three children at a supervised access centre.

The applicant, a British citizen residing in Japan, sought to compel compliance with a 2011 access order.

The respondent, a Canadian citizen residing in Ontario with the children, opposed the motion, arguing the children were unenthusiastic about the access.

The court declined to grant the order, finding that Skype access at a supervised access centre without a forward-looking plan would not be in the children's best interests and that the enforcement matter was inextricably linked to unresolved issues in the underlying Superior Court action.

The respondent sought costs following a motion brought by the applicant to restrict the respondent's access to their child, require a section 30 custody and access assessment, and mandate drug and alcohol testing.

The motion was largely dismissed on June 16, 2015, with only incidental orders made regarding disclosure of records, alcohol consumption restrictions during access, and video recording prohibitions.

The court awarded costs to the respondent as the successful party, but significantly reduced the claimed amount due to excessive hours billed and work not directly related to the motion.

Motion to change child support and section 7 expenses.

The applicant sought to vary the original child support order based on the respondent's actual income and to obtain contribution to child care expenses.

The court found that the respondent's actual 2014 income was $41,805.00 (not the estimated $30,500.00 used in the original order), resulting in underpayment of child support.

For 2015, the court attributed income of $30,000.00 to the respondent based on his employment with Morgan Roofing Contractors and prior employment.

The court ordered the respondent to pay child support arrears and to contribute 62% of ongoing child care expenses based on his proportionate share of combined parental income.

The applicant sought costs following the dismissal of a motion to change brought by the respondent on July 16, 2013.

The applicant was entirely successful in opposing the motion.

The court awarded costs on a substantial indemnity basis, finding that the applicant acted reasonably while the respondent's motion was misguided and poorly executed.

The respondent's conduct, including making a surreptitious audio recording of court proceedings and making mean-spirited statements in cost submissions, was found to approach bad faith but not quite reach that threshold.

The respondent brought a motion to continue supervised access to his two children following an order that had set a termination date of February 16, 2014.

The applicant opposed the motion and sought termination of access.

The court reviewed the history of the case, which involved multiple gaps in access spanning nearly five years, the respondent's criminal record including domestic violence convictions and breaches of court orders, his lack of insight into his behavior, and his abandonment of access from May to November 2013.

The court found that while access is generally presumed to be in the best interests of children, the cumulative harm caused by the respondent's pattern of rejection and inconsistency outweighed the benefits of contact.

The motion was dismissed and supervised access was terminated.

The respondent brought a motion to change a custody and access order made by Justice MacKenzie on July 15, 2011, seeking joint custody, increased access, and reconsideration of a costs award.

The applicant responded with a motion for summary judgment.

The respondent withdrew his joint custody claim at the hearing, acknowledging his pending criminal harassment charges.

The court found it lacked jurisdiction to review the costs order, which had been addressed on appeal and was res judicata.

On the access issue, the court found no material change in circumstances meeting the threshold under the Children's Law Reform Act.

The respondent's retirement from the military had been contemplated at the original trial.

The court dismissed the motion to change in its entirety, finding that any expansion of access would generate further disputes and would not be in the child's best interests given the high-conflict nature of the relationship and the respondent's pattern of aggressive conduct.

The respondents were charged with sexual assault.

The trial judge stayed the charges under s. 11(b) of the Charter due to a 25-month delay from arrest to the scheduled trial date, attributing the delay beyond the Morin guidelines to the Crown's late disclosure.

The Crown appealed.

The Court of Appeal allowed the appeal, finding the trial judge erred by failing to deduct 7.5 months for inherent time requirements and by isolating the delay in the Superior Court.

After deducting the intake period, the 17.5-month delay fell within the Morin guidelines.

The stay was set aside and a new trial ordered.