Toenie Hersch

The Children's Aid Society brought a child protection application regarding a two-and-a-half-year-old child.

Both parents had serious histories of violence for which they were found not criminally responsible, but had since received absolute discharges from the Ontario Review Board and were successfully managing their mental health conditions.

The Society and the parents sought an order returning the child to the parents' care subject to a 12-month supervision order, which the Children's Lawyer opposed.

The court found the child in need of protection due to the catastrophic risk if either parent relapsed, but concluded it was in the child's best interests to be returned to the parents' care with strict supervision terms, as the risk of relapse was low and well-monitored.

This endorsement addresses the sole remaining issue in a family law trial: whether to impose a publication ban and a sealing order on the court file, and whether to dispense with notice to the media.

The underlying proceeding was a motion to change brought by the father, involving allegations of sexual abuse against the children by a third party.

The court applied the three-prerequisite test from Sherman Estate v. Donovan to the open court principle, finding that court openness posed a serious risk to the children's privacy and dignity due to the sensitive nature of the sexual abuse details.

The court concluded that a sealing order and publication ban were necessary and proportionate, outweighing the negative effects on the open court principle.

The court also exercised its discretion to dispense with the requirement to provide notice to the media, emphasizing the children's best interests.

The father brought a contempt motion and a motion to change a final parenting order after the mother withheld his parenting time for an extended period.

The mother withheld the child following two weekends where the child returned with severe diaper rash, leading to a child protection investigation that verified neglect by the father.

The court found that while the mother intentionally breached the clear terms of the order, she did not act with contumacious intent but out of a legitimate concern for the child.

The court exercised its discretion to declare a breach rather than find the mother in contempt.

The father's motion to change the order to add make-up time and a police enforcement clause was dismissed as not being in the child's best interests.

The respondent mother brought a motion seeking primary residence of her five-year-old child, who was currently in the temporary custody of the applicant paternal grandmother pursuant to an ex parte order.

The court declined to change the child's primary residence on an interim basis, citing the principle of maintaining the status quo pending a full investigation by the Office of the Children's Lawyer.

However, the court found it in the child's best interests to increase the mother's parenting time to alternate weekends and a week-about schedule during the summer.

The grandmother was ordered to facilitate most of the transportation due to the mother's circumstances.

The respondent father sought to resume access to the child, which the applicant mother had unilaterally suspended due to COVID-19 and the child's and mother's underlying health conditions.

The court found a material change in circumstances due to the pandemic and health risks but emphasized the presumption of continuing parenting arrangements.

It ordered a modified access schedule, suspending mid-week in-person access in favor of virtual contact and resuming weekend in-person access with strict adherence to COVID-19 safety protocols, facilitated by the father's adult daughter.

The father's request for a police assist order was dismissed.

The father moved for temporary care and custody of the children, subject to Society supervision, which was opposed by the Society and the mother.

The mother also moved for expanded interim access, unopposed by the Society.

The court found that despite the father's progress, significant concerns regarding his substance use, lack of corroborating medical reports, and unstable housing remained.

Applying the test from Children's Aid Society of Ottawa-Carleton v. T., the court determined that the children would likely suffer harm if returned to the father's care and could not be adequately protected by a supervision order at that time.

Consequently, the father's motion for temporary care and custody was dismissed, and the children remained in the Society's temporary care.

However, the court granted expanded interim access to both the father (including overnight access with conditions) and the mother, deeming it in the children's best interests.

The Society was also ordered to expedite a kinship assessment.

The applicant brought a motion for summary judgment seeking an order of Crown wardship for a child, with no access to the parents.

The mother opposed the motion, proposing a plan of care where she would live with her mother and step-father.

The court found no genuine issue for trial, relying on a previous psychological assessment indicating the mother's cognitive challenges and inability to parent independently, as well as uncontradicted evidence of child protection concerns regarding the maternal grandparents.

The court ordered Crown wardship and, finding the mother failed to establish a beneficial and meaningful relationship, made the order silent as to access.

The Children's Aid Society applied for a status review seeking Crown wardship for two children who had been in continuous care for over two years.

The mother, who had a lengthy history of substance abuse, sought the return of the children under a supervision order, demonstrating significant and sustained recovery efforts.

The court found that the mother had achieved a sustained recovery with a strong relapse prevention plan, and that the risk of relapse was sufficiently minimal.

The court dismissed the Society's application for Crown wardship and ordered the children returned to the mother's care subject to a 12-month supervision order with strict conditions, including ongoing substance abuse treatment and testing.

Temporary care hearing under the Child and Family Services Act concerning two children previously found in need of protection.

The children had been apprehended after allegations of sexual impropriety against the father and a breach of a supervision order prohibiting his contact with the children.

The court found reasonable grounds to believe the children were at risk of harm but concluded the risk could be adequately managed through a supervision order.

Given the father’s relocation and the availability of supervision by the society, the court ordered that the children be returned to the mother’s care under society supervision with discretionary supervision of the father’s access.

The Children's Aid Society brought a motion for summary judgment seeking an order for Crown wardship with no access.

The parents conceded to the Crown wardship, but the father sought access.

The court found that the father had not seen the child in nearly two years due to criminal activity and substance abuse.

Applying the test for summary judgment under the Family Law Rules and the statutory presumption against access to a Crown ward, the court concluded there was no genuine issue for trial regarding access, as the father could not demonstrate a beneficial and meaningful relationship with the child.

The motion was granted and Crown wardship was ordered without access.

The Children’s Aid Society sought to further restrict a biological mother’s access to two Crown ward children from supervised biweekly visits to supervised visits every two months.

The court considered the best interests of the children under the Child and Family Services Act, finding that while the mother had undermined the authority of the foster parent and the Society, there was insufficient reliable evidence linking the children’s serious behavioural and emotional challenges to her contact with them.

The court concluded that the children continued to benefit from regular contact with their mother but that closer supervision and structured conditions were necessary.

A staged access regime was ordered beginning with supervised alternating visits with each child, progressing to supervised joint visits and eventually limited unsupervised access if strict compliance with conditions occurred.

Detailed restrictions were imposed on communication, gifts, food, and disclosure of information about the children.

The father brought a motion to change seeking unsupervised access and a finding of contempt against the mother for allegedly failing to facilitate supervised access ordered on an interim basis.

The court held that contempt was not established because the evidentiary record did not demonstrate deliberate and wilful disobedience of the order beyond a reasonable doubt.

The court emphasized that custodial parents have a positive obligation to encourage access and criticized conduct that left the burden of persuading the child to attend visits on the supervisor.

The mother’s motion to vary the order to make the child’s attendance entirely voluntary was dismissed, while the existing order requiring supervised visits remained in force.

The court also authorized electronic communication between the father and the children subject to preservation and disclosure of the messages to the access supervisor.