Month: June 2026

“The Society has the onus to prove on a balance of probabilities that the child is in need of protection: see Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, 24 R.F.L. (8th) 384, at para. 19. If the court finds that the child is not in need of protection, then that is the end of the Society’s protection application: see Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, at para. 116.

Subsection 74(2)(b) of the Act provides as follows:

74(2) A child is in need of protection where,

…

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child

The risk of harm under s. 74(2)(b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours: see Children’s Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (Ont. S.C.).

Harm caused by neglect or error in judgment comes within the finding of harm: see Children’s Aid Society of the Niagara Region v. T.P., 2003 CanLII 2397 (ON SC), 35 R.F.L. (5th) 290 (Ont. S.C.).

Subsection 93(1) of the Act provides as follows:

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.”

The Children’s Aid Society of London and Middlesex v. P et al., 2025 ONSC 3344 (CanLII) at 29-33

“The purpose of an interim parenting order is to provide stability to the children and the parties pending trial.  It has been long established that the status quo will be maintained on an interim motion for a parenting order unless cogent evidence that the best interests of the child dictates otherwise: Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331, para. 34.

The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation, by any consensual arrangement made after separation, or by court order: Gray v. Canonico, 2020 ONSC 5885, para. 48.”

            Gill v. Kaila, 2022 ONSC 3352 (CanLII) at 26-27

“In Fernicola v. Fernicola, 2022 ONSC 1041, Woodley J. confirmed that three lines of inquiry must be considered when determining whether the parties have reached a settlement. She stated at para. 55 as follows:

To determine whether the parties have reached a settlement, the Ontario Court of Appeal in Halpern v. Halpern, 2014 ONSC 4246 (Ont. S.C.J.) (CanLII), citing Lundrigan v. Andrews, 2009 ONCA 160 (Ont. C.A.) (CanLII) and Ward v. Ward, 2011 ONCA 178 (Ont. C.A.) (CanLII), has set out three distinct lines of inquiry to consider:

(1) was there a “meeting of the minds” or consensus ad idem, that was manifest to the reasonable observers?

(2) was there a consensus on all of the essential terms of the agreement? and

(3) did the parties make the agreement conditional upon any other term, or subject to execution or a formal contract?

Woodley J. also observed, at para. 56, that “[t]he test is objective and the parties will be found to have reached a meeting of the minds where it is clear to the objective reasonable bystander in light of all the material facts that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty. (See Cook v. Joyce, 2017 ONCA 49 (Ont. C.A.) (CanLII)).””

Grant v. Kirlew, 2025 ONSC 3291 (CanLII) at 29-30

“I would not interfere with the trial judge’s decision to use David’s 2017 income for support purposes, rather than a three-year average.

The starting point for determining income for both child and spousal support is ss. 16 to 20 of the Federal Child Support Guidelines, S.O.R./97-175. Section 16 sets a presumption that a spouse’s most recent annual income shall be determined from the sources of income set out in Revenue Canada’s general tax return Line 150 income: Punzo v. Punzo, 2016 ONCA 957, 90 R.F.L. (7th) 304, at para. 19. Section 17(1) permits a court to look over the last three years in the following circumstances:

17(1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

Accordingly, “the Guidelines rely on the more recent past to predict the near future and do not adopt averaging as a default methodology:” Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 138. The language in s. 17 is permissive, not mandatory. The trial judge was under no obligation to average David’s income: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 50.”

          Lesko v. Lesko, 2021 ONCA 369 (CanLII) at 38-40

“No counterclaim is advanced and set-off is not specifically pleaded as a defence. However, Mr. Kinsley’s position at trial was that Ms. Galbraith benefited from the relationship and from residing in the home. This position cannot have been a surprise to Ms. Galbraith. It has been a known feature of the law of unjust enrichment since before Kerr v. Baranow, 2011 SCC 10, where the Supreme Court of Canada said, at para. 48, that “it is unjust to pay attention only to the contributions of one party in assessing an appropriate remedy.” And while speaking of the correct approach to addressing the mutual exchange of benefits, the court said, at para. 109 of Kerr, that the conferral of mutual benefits “should be taken into account at the defence and/or remedy stage.” The court also said, at para. 109, that this “can, and should, take place whether or not the defendant has made a formal counterclaim or pleaded set-off.” Here, it is appropriate to evaluate Ms. Galbraith’s unjust enrichment claim bearing in mind the benefits and enrichment she also received from the relationship.”

Galbraith v Kinsley, 2023 ONSC 3332 (CanLII) at 13