Sarah Mae Robinson Clarke

Appeal concerning whether a mortgagee that had been denied inclusion of a $4 million collateral mortgage in a prior judicial accounting could later assert entitlement to payment from the same power-of-sale proceeds.

The majority held that res judicata had been adequately pleaded and raised at first instance and that cause of action estoppel barred the appellant from advancing a new theory in support of the same entitlement claim.

The Court held that the prior and subsequent proceedings concerned the same cause of action, namely the validity, value, and priority of encumbrances in the judicial accounting, and that all reasonably available arguments should have been advanced in the earlier proceeding.

The appeal was dismissed with party-and-party costs.

Three judges dissented, disagreeing on whether res judicata had been raised in time and whether estoppel should apply.

This case concerns a temporary care and custody motion for an Indigenous child, L.L.C., who had been residing with a maternal aunt under a Customary Care Agreement (CCA).

Following the CCA's termination, the child was placed with the father.

Kina Gbezhgomi Child and Family Services initiated a protection application seeking a protection finding and a supervision order with the father.

The court determined that the federal An Act respecting First Nations, Inuit and Métis children, youth and families (Federal Act) applies and has paramountcy over provincial legislation (CYFSA), altering the method of analysis for Indigenous children's placements.

Applying the Federal Act's national standards, the court found it was in the child's best interests to be placed with the father, without the need for society supervision, as there were no protection concerns.

The court also ordered continued contact with the maternal aunt and suggested the matter be transitioned to a Children's Law Reform Act application.

The children's aid society brought a motion within a status review application to vacate a previous statutory finding that a child in extended society care was not a First Nations child.

The society sought a new finding that the child is a First Nations child based on new evidence of the paternal aunt's self-identification as Indigenous.

The foster parents and maternal grandfather opposed the motion, arguing the previous finding could not be varied.

The court held that a child's identity is fluid and can be revisited on a status review application if new evidence arises and it is in the child's best interests.

The court accepted the paternal aunt's self-identification and declared the child a First Nations child under the Child, Youth and Family Services Act.

A motion to remove counsel for a foster parent in a child protection application.

The respondent child and family services agency sought to disqualify the applicant's lawyer, who had previously represented the agency in related proceedings involving the same child.

The court applied the test from MacDonald Estate v. Martin to determine whether a conflict of interest existed.

The court found that the lawyer had access to confidential information as counsel of record for the agency in prior proceedings, including the Customary Care Agreement and the termination of the Crown Wardship Order.

The court held that the public, represented by the reasonably informed person, would not be satisfied that no misuse of confidential information would occur.

The lawyer was removed from the record.

The appellant mother took her three children from Kuwait to Canada without the respondent father's consent and claimed refugee status, alleging domestic violence.

The father applied for the children's return to Kuwait.

The application judge ordered the children returned, finding no risk of serious harm under s. 23 of the Children's Law Reform Act.

On appeal, the Court of Appeal found the application judge erred by rejecting uncontradicted expert evidence that the children's fears of their father were independent and not influenced by the mother.

The Court also held that ordering the children's return before their refugee claims were determined violated the principle of non-refoulement.

The appeal was allowed and a custody hearing was ordered in Ontario.

The applicants brought a non-party production motion in a multi-party Children’s Law Reform Act application concerning the future care of three Indigenous children.

The motion sought records from Probation and Parole Services, the Ontario Provincial Police, and Payukotayno-James and Hudson’s Bay Family Services regarding the respondent parents and the children's older siblings.

The court granted the production order, finding the records relevant to determining the children's best interests and understanding the family's history, including constitutional questions related to Indigenous inherent rights.

The court balanced privacy interests against the need for full disclosure, noting the parents' non-engagement and the existing sealing order.

The biological mother brought a motion to appoint the Office of the Children's Lawyer to represent her two biological children in her underlying application to set aside an adoption order.

The underlying application was based on the reliance on flawed Motherisk drug testing reports in the original Crown wardship proceedings.

The Children's Aid Society and the adoptive parents opposed the motion as premature.

The court granted the motion, finding that the children's rights to participate and be heard were paramount, and appointed the Children's Lawyer pursuant to section 89(3.1) of the Courts of Justice Act.

R.A.R., the father of A.J.H-R., brought a motion in the Superior Court seeking to set aside an adoption order and extend the time to appeal a Crown Wardship order, which was granted without access in 2011.

This action was prompted by the Motherisk Commission's finding that hair follicle tests significantly influenced the original wardship decision.

The current motion was for directions on the proper procedural route, venue, and statutory pathway, with R.A.R. relying on sections 7 and 24 of the Charter of Rights and Freedoms.

The court adjourned the procedural motion to allow the newly retained counsel for the adoptive parents to take instructions and to encourage the parties to explore alternative dispute resolution, such as mediation, given the complex issues involved.

The Catholic Children's Aid Society brought a temporary care and custody motion in a child protection proceeding involving twin five-year-old girls.

The Society alleged the children were at risk of physical and emotional harm in their mother's care due to inappropriate physical discipline, exposure to parental conflict, school attendance issues, and allegations of sexual abuse against the father.

The mother opposed the motion and sought to maintain custody with minimal or no conditions.

The court found credible and trustworthy evidence of risk of harm and determined that the children could not be adequately protected by an interim supervision order given the mother's lack of cooperation with the Society and her pattern of refusing services.

The court granted the Society's motion, placing the children in the temporary care and custody of their father, subject to the Society's supervision and various terms and conditions, including supervised access for the mother.

The plaintiffs brought an unsuccessful summary judgment motion against the defendants regarding vicarious liability for the fraudulent acts of their employee.

The defendants sought their costs of the motion on a substantial indemnity basis, while the plaintiffs argued costs should be reserved to the trial judge.

The court ordered that the costs of the summary judgment motion be reserved to the trial judge, as the issues remained live and the work done would reduce trial costs.

The court also found the plaintiffs were entitled to substantial indemnity costs for their default judgment motion against the employee, but requested a revised costs outline.

This is a costs decision arising from two motions in a child protection application.

The Jewish Family and Child Service of Greater Toronto sought orders preventing children from attending court and receiving a psychological report.

The Office of the Children's Lawyer opposed both motions.

The court granted the agency's motions.

In the costs decision, the court addressed claims by the mother and the agency.

The mother's costs claims were dismissed.

The Office of the Children's Lawyer was ordered to pay costs to the agency in the amount of $3,850 due to their failure to meet agreed-upon filing deadlines, which caused additional work for the agency.

This motion arose from a child protection proceeding concerning two children, H. (15) and C. (12).

The children and their father sought a stay of two orders made by a lower court judge: one prohibiting the children from attending the protection hearing, and another restricting their access to a prepared report.

The moving parties argued that the refusal to accept late materials from the Children's Lawyer violated procedural fairness and that the children had a presumptive right to participate.

The court applied the R.J.R.-MacDonald test for a stay, considering it through the prism of the children's best interests.

It found no irreparable harm in denying the stays and that the balance of convenience favored dismissal, citing overwhelming evidence of emotional harm to the children from involvement in the high-conflict litigation.

The motion to stay the orders was dismissed.

The plaintiffs brought a motion for default judgment against Melissa Gibson-Heath for theft from an elderly resident and for summary judgment against DC Jain & Sons Inc. on the basis of vicarious liability.

The court granted default judgment against Gibson-Heath for the unrecovered stolen amount of $155,468.46 plus pre-judgment interest and costs, declaring the judgment to survive bankruptcy due to fraud and breach of fiduciary duty.

However, punitive damages against Gibson-Heath were denied given her prior criminal sentence.

The motion for summary judgment against DC Jain & Sons Inc. was dismissed, as the evidentiary record was deemed insufficient to determine vicarious liability, particularly regarding the arrangement of care services and the employer's creation of risk.

A case conference was ordered to further develop the record.

The applicant child protection agency brought two motions in a protection proceeding involving two children (ages 15 and 12) arising from parental conflict following the death of a sibling and the parents' separation.

The first motion sought an order preventing the children from attending court proceedings.

The second motion sought to prevent the children from receiving a clinical assessment report prepared by a family therapist.

The court granted both motions, finding that attendance at court and access to the report would cause emotional harm to the vulnerable children who were already deeply immersed in the parental conflict and litigation.

This is a ruling on whether the definitions of "Indian" and "Native" person in the Child and Family Services Act violate equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms.

The applicant society sought summary judgment in a child protection application, requesting that the child be found not to be an Indian or Native person under the Act.

The child's mother is Indigenous and the maternal grandmother is a registered member of the Qalipu Mi'kmak First Nations Band.

However, the child does not have Indian status under the Indian Act because the mother has not applied for membership in the Band.

The court found that the statutory definitions create a distinction based on an analogous ground and perpetuate disadvantage to Indigenous children who do not fall within the narrow definitions, thereby violating section 15(1) of the Charter.

The court granted the child an individual remedy under section 24(1) of the Charter, ordering that the child be treated as if he were an Indian, Native person or Native child for all purposes of the protection application and any related proceedings.

The plaintiff First Nation, located in Quebec, commenced an action in Ontario against the federal Crown and two third-party managers for breach of fiduciary duty, breach of contract, and negligent misrepresentation regarding the management of its funding.

The defendants moved to stay the action for lack of jurisdiction.

The court applied the real and substantial connection test and section 21(1) of the Crown Liability and Proceedings Act, finding that the substance of the claims arose in Quebec where the alleged failures and losses were experienced.

The motion was granted and the action was stayed.

The appellants appealed a decision ordering Crown wardship with access to the maternal grandmother for two Aboriginal children.

The children had been apprehended and placed with a non-Aboriginal foster family for several years.

The appellants argued the trial judge failed to give sufficient weight to the children's First Nations status.

The Court of Appeal dismissed the appeal, finding that while Aboriginal heritage is an important consideration under the Child and Family Services Act, it does not override the paramount consideration of the children's best interests.

The court upheld the finding that removing the children from their established foster family would be damaging, and that their cultural connection could be maintained through access visits.

The plaintiff brought a motion for summary judgment seeking a declaration of unjust enrichment and a constructive trust against properties owned by the defendants, after $750,000 was fraudulently obtained by one defendant and deposited into the corporate account of another.

The court considered whether the recipient defendant's knowledge of the fraud was relevant to the unjust enrichment claim.

The court held that while the plaintiff does not have to prove knowledge, the defendant's lack of knowledge is relevant evidence for the defence of juristic reason.

A mini-trial was ordered to determine the defendant's knowledge and whether a juristic reason existed.

The defendants brought a motion to set aside an ex parte Mareva injunction restraining them from dealing with their assets in connection with allegations of fraud and unjust enrichment.

The plaintiff alleged that the defendant fraudulently induced the transfer of $750,000 USD to a numbered company controlled by his common-law partner and that the funds were used for personal expenses and property renovations.

The court found a strong prima facie case of fraud against the individual defendant and unjust enrichment against the other defendant, and held there was a real risk of asset dissipation.

The court rejected arguments that the plaintiff failed to make full and frank disclosure on the ex parte motion and declined to require the plaintiff to post security for its undertaking in damages.

The Mareva injunction was continued and the defendants’ motions were dismissed.

Following a summary judgment motion in a franchise dispute, the court addressed costs after the moving party was largely unsuccessful except for striking a jury notice.

The plaintiffs sought substantial indemnity costs, arguing the motion had little chance of success, while the defendant argued costs should be reserved or limited because the motion was reasonably brought.

The court held that although the motion was not unreasonable, the unsuccessful party should ordinarily pay the successful party’s costs of the motion.

Applying the Rules of Civil Procedure and considering duplication of effort and partial success on the jury issue, the court fixed partial indemnity costs at $50,000 inclusive of disbursements and tax.