Family List of Cases

This list contains certain frequently relied on cases which are supplied to judges hearing family law cases in the Superior Court of Justice as directed by the provisions in the Consolidated Provincial Practice Direction that address often cited family law cases.

The cases in question appear on this list under various headings or topics which are not in any way intended to provide legal advice.

Parties in family law proceedings in the Superior Court of Justice need no longer include authorities on this list in any book of authorities relied on. However, extracts from those authorities which counsel intend to refer to the court shall be included in the factum or book of authorities.

Family Law Cases
Family Law Appeals Case List Updates
Often-Cited Child Protection Cases

Family Law Cases

Parenting

  1. Gordon v. Goertz, [1996] 2 S.C.R. 27 (mobility, best interests of the child, variation of custody and access orders, material change in circumstances)
  2. Young v. Young, [1993] 4 S.C.R. 3 (religion, rights of an access parent, best interests of the child)
  3. Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.) (joint custody, best interests of the child)
  4. Ladisa v. Ladisa (2005), 193 O.A.C. 336 (C.A.)
  5. Linton v. Clarke (1994), 21 O.R. (3d) 568 (Div. Ct.) (assessments)
  6. Glick v. Cale, 2013 ONSC 893 (assessments)
  7. M. v. F., 2015 ONCA 277 (value of critique reports of s. 30 assessments under the CLRA)

Child Support

  1. D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (retroactive child support)
  2. Lewi v. Lewi (2006), 80 O.R. (3d) 321 (C.A.) (child support for adult children)
  3. Park v. Thompson (2005), 77 O.R. (3d) 601 (C.A.) (adult children)
  4. Francis v. Baker, [1999] 3 S.C.R. 250 (section 4 of the Guidelines)
  5. R. v. R. (2002), 58 O.R. (3d) 656 (C.A.) (section 4 of the Guidelines)
  6. Contino v. Leonelli-Contino, 2005 SCC 63 (child support where both parents have the children more than 40% of the time)
  7. Froom v. Froom (2004), 136 A.C.W.S. (3d) 331 (section 9 of the Guidelines)
  8. Maultsaid v. Blair, 2009 BCCA 102 (section 9 of the Guidelines)
  9. L.(L.) v. C.(M.), 2013 ONSC 1801 (section 9 of the Guidelines)
  10. Chartier v. Chartier, [1999] 1 S.C.R. 242 (child support payable by a step-parent)
  11. Ewing v. Ewing, 2009 ABCA 227, leave to appeal to SCC refused [2009] S.C.C.A. No. 386 (section 4 of the Guidelines)
  12. Tauber v. Tauber (2000), 48 O.R. (3d) 577 (C.A.) (section 4 of the Guidelines)
  13. Tauber v. Tauber (2001), 203 D.L.R. (4th) 168 (Ont. Sup. Ct.) (section 4 of the Guidelines and spousal support)
  14. Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.) (section 19 of Guidelines, intentional underemployment)
  15. DiFrancesco v. Couto (2001), 56 O.R. (3d) 363 (C.A.) (rescission of arrears)
  16. Senos v.Karcz, 2014 ONCA 459 (child support for ODSP recipients)
  17. Bak v. Dobell, 2007 ONCA 304 (imputing income; gifts as income)
  18. Thompson v. Thompson, 2013 ONSC 5500 (imputing pre-tax corporate income)
  19. Harder v. The Queen, 2016 TCC 197 (changes to the way parties with shared custody must deal with child support)

Spousal Support

  1. Miglin v. Miglin, 2003 SCC 24 (spousal support in the face a spousal support release)
  2. Fisher v. Fisher, 2008 ONCA 11 (the Spousal Support Advisory Guidelines)
  3. Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (entitlement to spousal support)
  4. Boston v. Boston, 2001 SCC 43  (pensions and “double dipping”)
  5. Willick v. Willick, [1994] 3 S.C.R. 670 (variation of support orders, material change in circumstances)
  6. Moge v. Moge, [1992] 3 S.C.R. 813  (entitlement to spousal support, objectives of spousal support, self-sufficiency)
  7. Davis v. Crawford, 2011 ONCA 294 (broadens the circumstances in which lump sum spousal support payments can be awarded)
  8. Mason c. Mason, 2016 ONCA 725 (imputing corporate income for support calculation)
  9. Halliwell c. Halliwell, 2016 ONSC 182, aff’d 2017 ONCA 349 (high income and SSAGs)

Variations and Material Change

  1. Willick v. Willick[1994] 3 S.C.R. 670 (variation of support orders, material change in circumstances)
  2. L.M.P. v. L.S., 2011 SCC 43

Property

  1. Stone v. Stone, (2001) 55 O.R. (3d) 491 (C.A.) (equalization of net family property, unequal division of net family property)
  2. Rawluk v. Rawluk, [1990] 1 S.C.R. 70 (equalization of net family property, resulting trusts, constructive trusts)
  3. Peter v. Beblow, [1993] 1 S.C.R. 980 (constructive trusts)
  4. Serra v. Serra, 2009 ONCA 105 (unequal division of net family property)
  5. Levan v. Levan, 2008 ONCA 388 (setting aside domestic contracts, unequal division of net family property)
  6. Czieslik v. Ayuso, 2007 ONCA 305 (unequal division of net family property)
  7. Pecore v. Pecore, 2007 SCC 17 (resulting trusts and presumptions)

Marriage Contracts

  1. Hartshorne v. Hartshorne, 2004 SCC 22
  2. Le Van v. Le Van, 2008 ONCA 388

Separation Agreements and Disclosure Obligations

  1. Rick v. Brandsema, 2009 SCC 10
  2. Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 (C.A.)

Experts

  1. Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal to the Supreme Court of Canada dismissed (2015) CarswellOnt 16501
  2. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23
  3. Moore v. Getahun, 2014 ONSC 237 (S.C.J.), rev’d 2015 ONCA 55

Summary Judgment

  1. Hryniak v. Mauldin, 2014 SCC 7

Interim Costs and Disbursements

  1. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71
  2. Biddle v. Biddle (2005), 13 R.F.L. (6th) 63 (Ont. Sup. Ct.)
  3. Stuart v. Stuart 2001 CanLii 28261 (Ont. Sup. Ct.)
  4. Ludmer v. Ludmer, 2012 ONSC 4478

Partition and Sale

  1. Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.)
  2. Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.)
  3. Martin v. Martin (1992), 8 O.R. (3d) 41 (C.A.)
  4. Batler v. Batler (1988), 67 O.R. (2d) 355 (Ont. C.J.)

Occupation Rent

  1. Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.)
  2. Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. Sup. Ct.)

The Trust Doctrines

  1. Rawluk v. Rawluk, [1990] 1 S.C.R. 70
  2. Pettkus v. Becker, [1980] 2 S.C.R. 834
  3. Peter v. Beblow, [1993] 1 S.C.R. 980
  4. Campbell v. Campbell (1999), 43 O.R. (3d) 783 (C.A.)
  5. Kerr v. Baranow, 2011 SCC 10 (clarifies the law on constructive and resulting trusts and unjust enrichment on the breakdown of domestic partnerships)
  6. McConnell v. Huxtable, 2014 ONCA 86
  7. Martin v. Sansome, 2014 ONCA 14

Preservation Orders

  1. Lasch v. Lasch (1988), 64 O.R. (2d) 464 (H.C.J.)
  2. Bronfman v. Bronfman (2000), 51 O.R. (3d) 336 (Ont. Sup. Ct.)

Prejudgment and Postjudgment Interest

  1. Debora v. Debora (2006), 83 O.R. (3d) 81 (C.A.)
  2. Burgess v. Burgess (1995), 24 O.R. (3d) 547 (C.A.)
  3. LeVan v. LeVan, 2008 ONCA 388, application for leave to appeal to the Supreme Court of Canada dismissed [2008] S.C.C.A. No. 331.

Costs

  1. Serra v. Serra, 2009 ONCA 395
  2. Islam v. Rahman, 2007 ONCA 622
  3. M.( A.C.) v. M.(D.) (2003), 67 O.R. (3d) 181 (C.A.)
  4. Boucher v. Public Accountants Council for Ontario (2004), 71 O.R. (3d) 291 (C.A.)
  5. Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.)
  6. Biant v. Sagoo (2001), 20 R.F.L. (5th) 284 (Ont. Sup. Ct.)
  7. Fong v. Chan, 2001 CanLII 7484 (Ont. C.A.)
  8. Cindy Jahn-Cartwright v. John Cartwright, 2010 ONSC 2263
  9. Cassidy v. Cassidy, 2011 ONSC 791
  10. Jordan v. Stewart, 2013 ONSC 5037
  11. Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC)

Motions Before Case Conferences

  1. Rosen v. Rosen (2005), 2005 CanLII 480 (Ont. Sup. Ct.)

Hague Cases

  1. Thomson v. Thomson, [1994] 3 S.C.R. 551 (interpretation and application of Convention, wrongful removal)
  2. A. v. M., 2002 NSCA 127 (child’s objection)
  3. Jabbaz v. Mouammar (2003), 226 D.L.R. (4th) 494 (Ont. C.A.) (harm threshold)
  4. Chan v. Chow, 2001 BCCA 276 (habitual residence)
  5. Korutowska-Wooff v. Wooff(2004), 242 D.L.R. (4th) 385 (Ont. C.A.), leave to appeal to the Supreme Court of Canada dismissed (2008) CarswellOnt 6207 (habitual residence)
  6. Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (C.A.), (subjective approach to acquiescence)
  7. Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226 (C.A.) (adjustment periods)
  8. Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.) (determination of risk of harm)
  9. Beatty v. Schatz, 2009 BCSC 707 (child to meet with psychologist), aff’d 2009 BCCA 310
  10. Ellis v. Wentzell-Ellis, 2010 ONCA 347
  11. Balev v. Baggott, 2016 ONCA 680 (unilateral changes to a child’s residence)
  12. S.(J.) v. M.(R.), 2013 ABCA 441 (objections of child)

Declaration of Parentage Cases

Note on legislation: On January 1, 2017, the All Families Are Equal Act, 2016, came into force.  The legislation amends the Children’s Law Reform Act and 40 other statutes.  The amendments provide a streamlined process for the legal recognition of parents who use a surrogate and reduces the need for parents who use assisted reproduction to have to go to court to have their parental status recognized in law.

  1. Trociuk v. British Columbia (Attorney General), 2003 SCC 34 (unconstitutional for legislation to allow arbitrary exclusion of father from birth registration process, significance of fathers’ interests and dignity)
  2. A.A. v. B.B., 2007 ONCA 2 (declaration of third parent pursuant to parens patriae jurisdiction, importance of declaration)
  3. Raft v. Shortt (1986), 54 O.R. (2d) 768 (Ont. C.J.) (no declaration of non-parentage under CLRA but available under CJA, issue estoppel, blood tests)
  4. J.R. v. L.H., 2002 CarswellOnt 3445 (Ont. Sup. Ct.) (surrogacy, birth registration, custody, declaration of non-parentage under CJA, best interests of the child, sealing court file)
  5. T.D.L. v. L.R.L. (1994), 114 D.L.R.(4th) 709 (Ont. Sup. Ct.) (anonymous sperm donor, standing in the place of a parent, CLRA declaration, access)
  6. Rypkema v. British Columbia, 2003 BCSC 1784 (surrogacy, birth registration, genetic parents)
  7. M.S.K. v. T.L.T. (2003), 168 O.A.C. 73 (C.A.) (sealing court file, best interests of the child)
  8. B. v. P. (1982), 35 O.R. (2d) 325 (Ont. Sup. Ct.) (support, delaying exchange of financial information, sealing court file)

Family Law Appeals Case List Updates

Standard of Review

  1. Housen v. Nikolaisen, 2002 SCC 33 [Standard of review is palpable and overriding error.]
  2. L. (H.) v. Canada (Attorney General), 2005 SCC 25

Deference

  1. C. (G.C.) v. New Brunswick (Minister of Health and Community Services), [1988] 1 S.C.R. 1073 [Deference should be given to trial judge.]
  2. New Brunswick (Minister of Health and Community Services) v. L. (M.), [1998] 2 S.C.R. 534 [Deference should be given to trial judge.]
  3. Hickey v. Hickey, [1999] 2 S.C.R. 518 [Need for deference in family law cases.]

Duty to Give Reasons

  1. R. v. Sheppard, 2002 SCC 26 [Why a duty to give reasons.]
  2. Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.) [Tension between right to adequate reasons and deference.]
  3. Young v. Young (2003), 63 O.R. (3d) 112 (C.A.) [Rationale for the need to give reasons in family law context.]

Adequacy of Reasons

  1. R. v. Sheppard, 2002 SCC 26 [Functional test.]
  2. R. v. Gagnon, 2006 SCC 17 [Two stage analysis for functional test.]

Appeal of Costs

  1. Mete v. Guardian Insurance Co. of Canada (1998), 165 D.L.R. (4th) 457 (Ont. C.A.) [High discretion given to costs award.]
  2. Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 [Costs award should only be set aside if there is an error in principle or award is plainly wrong.]

Reasonable Apprehension of Bias

  1. Children’s Aid Society of the Regional Municipality of Waterloo v. R.C., 2009 ONCA 840 [Active participation of trial judge in child protection case does not necessarily indicate bias.]
  2. R. v. S. (R.D.), 1997 CanLii 484 SCC
  3. Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369
  4. Wewaykum Indian Band v. Canada, 2003 SCC 45

Appeal from an Interim Order

  1. Sypher v. Sypher 1986 CarswellOnt 282 (Ont. C.A.) [The court should not interfere with an interim order unless the order is clearly wrong and exceeds the wide ambit of reasonable solutions.]

Fresh Evidence on Appeal

  1. Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 [Test for the admission of fresh evidence on appeal.]
  2. R. v. Palmer, [1980] 1 S.C.R. 759

Often-Cited Child Protection Cases

Note on legislation: Ontario has passed the Child, Youth and Family Services Act (CYFSA). Once proclaimed, the CYFSA will introduce several changes to child protection proceedings which may impact the relevance of these cases.

Key changes include:

  1. Raising the age of protection from 16 to 18 to increase protection services for more vulnerable youth in unsafe living conditions, to support their education and to reduce homelessness and human trafficking;
  2. Strengthening the focus on early intervention, helping prevent children and families from reaching crisis situations at home;
  3. Making services more culturally appropriate for all children and youth in the child welfare system, including Indigenous and Black children and youth, to help ensure they receive the best possible support; and,
  4. Improving oversight of service providers, including children’s aid societies, so that children and youth receive consistent, high-quality services across Ontario.

The CFSA remains in force until the new legislation is proclaimed.

Interpretation

  1. Syl Apps Secure Treatment v. B.D., 2007 SCC 38 [statutory duty to protect best interests of the child transcends common law duties to the child’s family]

Jurisdiction

  1. Winnipeg Child & Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 [The parens patriae jurisdiction of the court does not extend to unborn children and thus cannot support the detention order of an expectant mother.]
  2. G.(C.) v. Catholic Children’s Aid Society of Hamilton-Wentworth (1998), 40 O.R. (3d) 334 (C.A.) [The procedure under the Child and Family Services Act is paramount thereby precluding an order for custody under the CLRA of a Crown Ward.]

Onus of Proof

Temporary Care and Custody Hearings (s. 51)

  1. Children’s Aid Society of Ottawa-Carleton v. T. (2000), 2000 CanLII 21157 (Ont. Sup. Ct.) [Test for temporary care and custody requires CAS to establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his or her parents, it is more probable than not that he or she will suffer harm.]
  2. Children’s Aid Society of Waterloo (Regional Municipality) v. B.A. (2004), 2004 CanLII 12742 (Ont. Sup. Ct.) [Test for making a temporary placement order with a third party is a reasonable likelihood of risk on something less than the ordinary civil onus of proof on the balance of probabilities.]

Section 57.1 custody orders

  1. Windsor-Essex Children’s Aid Society v. J.D., 2017 ONCJ 20 [A final access order need not be made at the same time as the custody order, provided that it is made in the same case.]

Variation of orders pending trial

  1. Children’s Aid Society of Toronto v. K.D., 2011 ONCJ 55 [test for variation of temporary orders]
  2. Children’s Aid Society of the County of Simcoe v. B. (B.J.), (2005), 20 R.F.L. (6th) 74 (Ont. Sup. Ct.) [Variation of a temporary care order is a two-stage process. The party wishing the changes must show: (a) that there has been a material change; (b) if there has been a material change, the court must consider the situation using the same risk criteria set out in s. 51.]
  3. Children’s Aid Society of Metropolitan Toronto v. C.Y.(1993), 45 R.F.L. (3d) 24, (Ont. Ct. Ge. Div.) [On an adjournment of a status review application and a request for a change in interim care and custody pending trial, the test is best interests and not the risk test set out in section 51.]

Final Disposition

  1. F.H. v. McDougall, 2008 SCC 53  [There is only one standard of proof in a civil case and that is proof on a balance of probabilities. There are no degrees of probability within that civil standard.]
  2. Children’s Aid Society of the Niagara Region v. P.L.R., [2005] O.T.C. 255 (Ont. Sup. Ct.) [The onus is on the CAS and while the evidence must be convincing, the ordinary civil burden has not been changed.]
  3. Re Brown, (1976) 9 O.R. (2d) 185 [Intervention is only justified when the level of care falls below that which no child in this country should be subjected to.]
  4. Catholic Children’s Aid Society of Hamilton v. J.I. (2006), 2006 CanLII 19432 (Ont. Sup. Ct.) [Should not to judge parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child’s best interests.]

Procedural Issues

  1. Children’s Aid Society of London and Middlesex v. H. (S), [2002] O.T.C. 916 (Ont. Sup. Ct.) [Parties to a child protection case are not limited by the legislation and may be supplemented by the Court.]
  2. G.(C.) v. Catholic Children’s Aid Society of Hamilton-Wentworth (1998), 40 O.R. (3d) 334 (Ont. Sup Ct.) [Foster parents may not apply for a status review hearing.]
  3. Catholic Children’s Aid Society of Toronto v. B. (D.), 2002 CanLII 53290 (Ont. C.A.) [The test for leave to withdraw.]

Time Line Restrictions

  1. Children’s Aid Society of Ottawa-Carleton v. K.F. (2003), 123 A.C.W.S. (3d) 705 (Ont. Sup. Ct.) [The court’s discretion to extend the statutory time limit that a child can be in care under s. 70(4) of the legislation must be based on the best interests of the child.]

Appointing Counsel For the subject children

  1. R. v. Children’s Aid Society of Hamilton (2004), 70 O.R. (3d) 618 (Ont. Sup. Ct.) [Court may direct counsel be appointed for child under C.F.S.A., which is different than a referral to the OCL for consideration under the CLRA.]

Statutory Pathway For Protection Hearing

  1. C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 [statutory pathway for disposition hearings]
  2. L.(R.) v. Children’s Aid Society of Metropolitan Toronto (1995), 21 O.R. (3d) 724 (Ont. Sup.Ct.) [Importance of considering family/community placements and less restrictive alternatives throughout.]

Protection Findings

  1. Children’s Aid Society of the Niagara Region v. T.P. (2003), 35 R.F.L. (5th) 290 (Ont. Sup. Ct.) [(a) Intention is not required to prove risk of likely harm; (b) Harm must be more than trifling; (c) The finding is based on the situation at the time of apprehension.]
  2. Children’s Aid Society of Hamilton v. C.(M.) (2003), 36 R.F.L. (5th) 46 (Ont. Sup. Ct.) [The relevant time for making a protection finding is not limited to the time of the apprehension and the initiation of the case.]
  3. Jewish Family and Child Service v. K. (R.), 2008 ONCJ 774 [Domestic violence places a child at risk of harm.]
  4. Children’s Aid Society of the Niagara Region v. T.P. (2003), 35 R.F.L. (5th) 290(Ont. Sup. Ct.) [The CAS need not prove an intention to cause physical harm.]

Status Review Hearings

  1. Catholic Children’s Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165 [Court’s function on a status review hearing; Status review hearing is a two part process.]
  2. Catholic Children’s Aid Society of Hamilton v. M.A.M. (2003), [2003] O.J. No. 1274 (Ont. Sup. Ct.) [The repealing of subsection 65(3) is consistent with the overall thrust of the amendments which focus the Court’s attention on the child in preference to the parent]
  3. Children’s Aid Society of Ottawa v. C.W. (2008), 2008 CanLII 13181 (Ont. Sup. Ct.) [A status review hearing cannot retry the original need for a protection order. The issue is whether the child continues to be in need of protection and, if so, what order is in the best interests of the child.]
  4. Children’s Aid Society of the Region of Peel v. M.J.W. (1995), 23 O.R. (3d) 174 (C.A.) [Role of familial plans in status review hearings as they relate to the least restrictive placement concept.]

Evidentiary Issues

  1. R. v. Khan, [1990] 2 S.C.R. 531 [Ability of child to testify and when to accept evidence of child’s spontaneous statements.]
  2. R. v. Blackman, 2008 SCC 37 [Principled approach to the admissibility of hearsay evidence.]
  3. Stefureak v. Chambers(2004), 6 R.F.L. (6th) 212 (Ont. Sup. Ct.) [Admissibility of hearsay evidence of a child’s out-of-court statements is governed by necessity and reliability.]
  4. Sh. E.C. v. G.P (2003), 41 R.F.L. (5th) 250 (Ont. Sup. Ct.) [Considerations governing the compelled testimony of a child.]
  5. Children’s Aid society of Toronto v. L.L., 2010 ONCJ 48 [Admissibility of first-hand hearsay business records is governed by relevancy.]
  6. Children’s Aid Society of the Regional Municipality of Waterloo v. C. (R.), 1994 CanLII 4520 (Ont. C.J.) [Boundaries for evidence on past parenting conduct.]
  7. Children’s Aid Society of Niagara Region v. D.P. (2003), 36 R.F.L. (5th) 265 (Ont. Sup. Ct.) [If adoptability is an issue, expert evidence is required.]
  8. L. (R.) v. Children’s Aid Society of the Niagara Region (2002), 34 R.F.L. (5th) 44 (Ont. C.A.) [The Act does not envisage a contest between members of a child’s family and a foster parent at a hearing to declare whether the child should be declared to be a society or Crown ward.]
  9. Children’s Aid Society of Toronto v. B.H., [2007] O.J. No. 2446 (ONCJ), [society obliged to provide a balanced perspective of the case]
  10. Children’s Aid Society of Algoma v. P.(D.), 2006 ONCJ 170, [evidence adduced under s.74 of the CFSA must be relevant.]
  11. S.L. v. N.B., 2005 CanLII 11391 (ON CA) [disclosure of youth records]
  12. Children’s Aid Society of the Niagara Region v. D.M., [2002] O.J. No. 1421 (Ont. Sup. Ct.) [opinion evidence]

Access

  1. Children’s Aid Society of Niagara Region v. J.C. (2007), 281 D.L.R. (4th) 328 (Ont. C.A.)
    [(a) Presumptive burden of proof against access to a Crown Ward;
    (b) Person seeking access must prove that relationship is beneficial and meaningful to child based on relationship that exists at the time of trial (not one that is hoped for in the future) and that access will not hinder future opportunities for adoption.]
  2. Children’s Aid Society of Ottawa v. C. W. (2008), 2008 CanLII 13181 (Ont. Sup. Ct.) [Onus on parent to obtain access to a Crown Ward.]
  3. Children’s Aid Society of Toronto v. D.P. (2005), 19 R.F.L. (6th) 267 (Ont. C.A.) [Even where a Crown wardship order gives no right of access to a parent, the CAS may, as a custodial parent of the child, permit the parent to visit the child unless the order expressly states that there will be no contact.]
  4. Jewish Family and Child Service of Greater Toronto v. H.B.S., 2012 ONCJ 663 [temporary access]
  5. Children’s Aid Society of the Niagara Region v. J.C., 2007 CanLII 8919 (ON SCDC) [sibling access]

Public Guardian and Trustee motions

  1. Children’s Aid Society of the Niagara Region v. W.D., 2003 CanLII 2293 (ON SC), [2003] O.J. No. 3244 (OCJ) [test for mental capacity]
  2. CAS v J.H.V. et al, 2016 ONSC 4996 [test for mental capacity]
  3. C.C. v. Children’s Aid Society of Toronto, [2007] O.J. No. 5613 (ONSC) [lack of sophistication, education or cultural differences are not sufficient evidence of mental incapacity]
  4. CAS v J.H.V. et al, 2016 ONSC 4996 (CanLII) [test for incapacity is objective]

Charter Issues

  1. Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48 [State apprehensions without prior judicial authorization in non-emergency situations do not violate s. 7 of the Charter, so long as there is a prompt post-apprehension hearing.]
  2. B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 [Crown wardship violates parents’ s. 7 rights to refuse medical treatment for their child, but does not violate the principles of fundamental justice.]
  3. A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 [Court’s ability to mandate treatment for children under 16 years of age does not violate ss. 2(a), 7, or 15 of the Charter.]
  4. New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 [State-funded counsel required by s. 7 in the context of custody proceedings involving the state.]
  5. Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165 [Section 11(b) of the Charter does not apply to the Child and Family Services Act.]
  6. Catholic Children’s Aid Society of Metropolitan Toronto v. S. (1989), 69 O.R. (2d) 189 (Ont. C.A.) [Denial of birth parent’s access to child after adoption is constitutional.]

Summary Judgment Motions

  1. Hryniak v. Mauldin, 2014 SCC 7 [test for summary judgment]
  2. Children’s Aid Society of Toronto v. T. (K.) (2000), 2000 CanLII 20578 (Ont. C.J.) [Where a prima facie case for summary judgment is made out, the responding party must present evidence to show there is a genuine issue for trial.]
  3. Children’s Aid Society of Toronto v. R.H. (2000), 2000 CanLII 3158 (Ont. C.J.) [Specific facts reflecting a genuine issue for trial must be provided, not simply a heartfelt expression of a desire to resume care of the child.] [Mere denials do not raise triable issue of fact.]
  4. R.A. v. Jewish Family and Child Services, [2001] O.J. No. 47 [Not every disputed fact or question gives rise to a finding that there is a genuine issue for trial.]
  5. F.B. v. S.G. (2001), 199 D.L.R. (4th) 554 (Ont. Sup. Ct.) [A “genuine issue” must relate to a material fact or facts.]
  6. J.C.J.-R v. Children’s Aid Society of Oxford County2003 CanLII 2388 (Ont. Sup. Ct.) [« aucune véritable question litigieuse » équivaut à « aucune chance de réussite » et « il est évident que l’action ne va pas réussir ».]
  7. Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.), 1995 CanLII 6216  (Ont. Sup. Ct.) [Summary judgment can be ordered when the outcome is a foregone conclusion.]

Appeals

  1. Housen v. Nikolaisen, 2002 SCC 33 [Standard of review of law, fact, and mixed law and fact on appeal.]
  2. Children’s Aid Society of Toronto v. C. (S.A.), 2005 CanLII 43289 (Ont. S.C.), affirmed on appeal, 2007 ONCA 474 [Standard of review in family law cases.]
  3. Genereux v. Catholic Children’s Aid Society of Metropolitan Toronto, (1985) 53 O.R. (2d) 163 (Ont. C.A.) [Appeal court judge is granted a “wide discretion” in deciding whether or not to admit further evidence.]
  4. Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 [Admission of fresh evidence on appeal.]
  5. F.B. v. S.G. (2001), 199 D.L.R. (4th) 554 (Ont. Sup. Ct.) [The standard of review on an appeal from a court initiated summary judgment motion is correctness.]
  6. L.C. v. Catholic Children’s Aid Society of Metropolitan Toronto, 2002 CanLII 2672 (Ont. Sup. Ct.) [Reasonable apprehension of bias and trial fairness.]
  7. L.(R.) v. Children’s Aid Society of Metropolitan Toronto (1995), 21 O.R. (3d) 724 (Ont. Sup. Ct.) [Appeal court may substitute the order when determining the appeal.]
  8. Children’s Aid Society of Toronto v. L.U. (2008), 56 R.F.L. (6th) 186 (Ont. S.C.) [Court’s decisions on s. 70(4) extensions are discretionary, and reviewable on the standard of palpable and overriding error.]

Costs

  1. L. (R.) v. Children’s Aid Society of the Niagara Region (2003), 34 R.F.L. (5th) 62 (Ont. C.A.) [It is not usual for costs to be awarded in Child protection cases where an applicant is unsuccessful. Where unsuccessful parties are motivated by the best interests of the children a “no costs” award may be appropriate.]
  2. Children’s Aid Society of Ottawa-Carleton v. S., (2003), 39 R.F.L. (5th) 209 (Ont. Div. Ct.)
    (a) The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a Society has a statutory obligation to initiate and pursue proceedings where there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by cost considerations.
    (b) The wording of Rule 24 (2) is unequivocal that the presumptive entitlement to costs does not apply in a child protection cases. Consequently, even between parents, for costs to be awarded there must be something more than merely the outcome of the case.]
  3. Children’s Aid Society of Ottawa-Carleton v. MR. and MS. V. (2001), 2001 CanLII 37747 (Ont. Sup. Ct.) [CAS should not be penalized for attempting to fulfill its mandate, unless they have acted in some indefensible manner. They are not ordinary litigants.]
  4. Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679 [Test for costs against the Society]

Current as of July 2017