Reported Decisions

Whenever possible, Jessica attempts to resolve disputes outside of court, whether through negotiation, mediation, or arbitration. However, sometimes it is not possible to do so and recourse to the court system is necessary. The following is a list of all of Jessica’s CanLII-reported court decisions.

Note: The Canadian Legal Information Institute (CanLII) is a fantastic non-profit organization that provides free public access to many decisions made by Canadian courts. However, CanLII unfortunately does not, at the present time, report all family and child protection decisions. Many court decisions where Jessica has acted as counsel are not on CanLII, and thus are not listed below.

Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149 This was an appeal brought by Jessica on behalf of a kin caregiver to a young child. When the Society, the Band, the child’s parents and the child’s maternal aunt sought to move the child from the kin caregiver’s home to the maternal aunt’s home, the kin caregiver brought a motion to be added as a party to the CYFSA proceeding. Her motion was denied on the grounds that a “customary care agreement” had been entered into by the other parties to the case, and thus, there was no proceeding to add her to. The kin caregiver successfully appealed to the ONCA,  with the court confirming that the kin caregiver ought to have been made a party to the case and that temporary orders qualify individuals for party status under the CYFSA as do final orders. The court also confirmed, perhaps unsurprisingly, that a case is not resolved on consent where one of the parties does not consent to the resolution.

Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 379. This was an appeal brought by Jessica and co-counsel Andrew Burgess to the ONCA, appealing the decision of the Divisional Court which overturned the costs order that was made against the Children’s Aid Society for opposing L.M.’s motion for constitutional funding of her appeal. The appeal was allowed, with the ONCA reinstating the costs award that the Peel CAS was ordered to pay Jessica following her successful motion for constitutional funding of L.M.’s CYFSA appeal.

M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240
Jessica successfully appealed to the Ontario Court of Appeal on behalf of caregivers of a six-year old child. The child had lived with the caregivers since her birth, first under a consensual temporary care agreement, and then under a series of non-consensual “customary care agreements”. The child viewed her caregivers as her psychological parents. Dilico sought to move the child to live with maternal relatives in Northern Manitoba, who were all but strangers to the child, without a court proceeding to determine whether that move was in the child’s best interests. The appeal was granted, with the ONCA confirming the caregivers’ entitlement to proceed with their CLRA application for custody of the child. The child continues to live with her caregivers. Following the appeal, Dilico was ordered to pay the caregivers’ legal costs of $50,000.

M.L. v. Dilico Anishinabek Child and Family Care, 2021 ONCA 683 This was an interim decision (a motion for a stay pending appeal) within the appeal noted above. Jessica brought a motion on behalf of  caregivers of a six-year old child, to enable the child to continue living with the caregivers pending the outcome of their appeal to the ONCA. Following the motion, which proceeded almost entirely on consent, the Society rather inexplicably sought costs of the motion of over $16,000; costs of $3500 were ultimately granted in the Society’s favor (although, following the disposition of the actual appeal, the Society was in fact ordered to pay M.L.’s costs of $50,000): M.L. v. Dilico Anishinabek Child and Family Care, 2021 CanLII 100207.

Catholic Children’s Aid Society of Toronto v. S.K.S., 2022 ONCA 228
This appeal involved the privacy protections afforded to child protection court records, and whether a court can order those records to be disclosed to the federal immigration minister. The appeal was allowed, with the ONCA setting out a legal test that applies to such requests. The matter was remitted to the OCJ for a re-determination, applying the correct legal test.

Catholic Children’s Aid Society of Toronto v. S.K.S., 2021 ONSC 5813. This was an appeal brought by the Office of the Children’s Lawyer and the Catholic Children’s Aid Society of Toronto, appealing the decision of the Ontario Court of Justice which had ordered the disclosure of child protection court records to the federal immigration minister. It also involved the proper scope of the minister’s submissions in a child protection proceeding pursuant to s. 50(a) of the Immigration and Refugee Protection Act. Jessica represented the mother, who supported the appeals of the OCL and the CCAS. The ONSC dismissed the appeals.  The matter was appealed further to ONCA, and Jessica’s client joined as an appellant in that appeal (see above).

Children’s Aid Society of Toronto v. H.F., 2021 ONSC 8053
Jessica represented a respondent mother on the father’s appeal of a CYFSA order. While the father’s appeal was dismissed, on the mother’s behalf, Jessica successfully obtained an access order on behalf of the mother, ensuring continued contact between her and her child who was placed in extended society care. This access order proceeded on consent, as parties agreed that the trial judge had erred in making an access order that was entirely in the discretion of the CAS.

Children’s Aid Society of the Region of Peel v. L.M., 2021 ONSC 1699 The Society appealed the $12,482.49 costs order it was ordered to pay to Jessica as a result of her successful motion for constitutional funding on behalf of her impecunious client who had been denied funding for her appeal of an extended society care no access order. A majority of the Divisional Court allowed the Society’s appeal (Gordon J. dissenting).

Matus v. René, 2021 ONSC 1925 Jessica successfully represented a doctor with respect to a motion to vary child and spousal support. In the end, his wife was ordered to pay costs of the proceeding of $8500 to him.

Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 Jessica successfully appealed a decision of the Ontario Superior Court of Justice which had overturned the trial judge’s order made in favor of the mother, for access to her young son who had been placed in extended society care. The mother’s access was re-instated, and the ONCA confirmed that both present and future circumstances of the child are appropriately considered under the “best interests of the child” test.

Children’s Aid Society of Toronto v. J.G., 2020 ONSC 1135
The Society appealed an access order made by the trial judge in favor of the mother of a young child. Jessica acted for the respondent mother. The Ontario Superior Court of Justice allowed the Society’s appeal. Jessica successfully appealed that decision further to the Ontario Court of Appeal (see case note above).

V.R. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 3508 If there was ever a case to break your heart, it is this one. Jessica appealed on behalf of a young mother whose daughter was permanently removed from her care, without access, due to symptoms that were attributed to the highly controversial “shaken baby syndrome”. There remains no evidence the mother ever actually shook her daughter. Jessica continues to believe without a doubt that this mother never shook her child and that what happened in this case is a serious miscarriage of justice. The Ontario Superior Court of Justice dismissed the appeal. The issue of the mother’s access (the only issue that Legal Aid Ontario would fund a further appeal on) is currently under appeal to the Ontario Court of Appeal.

L.R. v. Children’s Aid Society et al, 2020 ONSC 4341 Jessica appealed a decision of the Ontario Court of Justice that had found a boy to be in need of protection from his mother, ordered the mother’s access to her son to be “in the discretion of the Society”, and prohibited her from recording any interactions between herself and Society workers.  The ONSC dismissed the appeal. However, an appellate decision of the Divisional Court in another case, released not long after this one, has confirmed that it is indeed an error of law for a court to abdicate its judicial function by making an access order “in the discretion of the Society”. In other words, the argument that Jessica made on behalf of the client in this appeal has ultimately prevailed. [Note: With respect to the issue of prohibiting parents from recording their interactions with Society workers, Jessica believes such orders to be unconstitutional. This particular issue was not appealed further in this case due to LAO denying funding to the mother for a further appeal. If you have a case where this is at issue, please contact Jessica.]

L.M. v. Peel Children’s Aid Society, 2019 ONCA 841 Jessica successfully appealed the issue of access with respect to a summary judgment motion decision which had resulted in a mother’s three children being placed in extended society care without access to their mother. The issue of access was remanded for a new hearing, and the Society was ordered to pay costs to the mother of $10,000.

Children’s Aid Society v. L.M., 2018 ONSC 3633 (CanLII) Legal Aid Ontario refused to fund the mother’s appeal of a summary judgment decision in which the mother’s three children were made Crown wards. Jessica successfully brought a motion for constitutional funding of the mother’s appeal, and the Attorney General of Ontario was ordered to fund the mother’s appeal.

Children’s Aid Society v. L.M., 2018 ONSC 7170 (CanLII)  Not only was Jessica successful in the funding motion (linked to above), but she also successfully sought and obtained a costs order of $12,482.49 against the Peel Children’s Aid Society who had opposed the motion for funding. This is that costs decision. (The Peel Children’s Aid Society has appealed. The appeal will be argued at the Divisional Court in October 2020.)

L.M. v. The Children’s Aid Society of the Region of Peel, Office of the Children’s Lawyer, 2019 ONSC 1566 (CanLII) This is the appeal decision of the Ontario Superior Court of Justice which followed the above two decisions. The Ontario Superior Court of Justice dismissed the mother’s appeal of the summary judgment decision which made her three children Crown wards. Following the release of this decision, Jessica decided to appeal further to the Ontario Court of Appeal on behalf of the mother.

L.M. v. Peel Children’s Aid Society, 2019 ONCA 841 (CanLII) After the Ontario Superior Court of Justice dismissed the mother’s appeal of a summary judgment decision that made the mother’s three children Crown wards, Jessica appealed further to the Ontario Court of Appeal. (This time, Legal Aid Ontario decided to fund the appeal and Jessica did not have to bring a motion for constitutional funding.) The Ontario Court of Appeal partially allowed the appeal, noted “the substantial assistance that Ms. Gagné’s submissions provided to this court” (para 92), and ordered the Peel Children’s Aid Society to pay costs to the mother of $10,000.00. The mother now has ongoing access visits with her three children.

Grieder v. Kovalchuk, 2019 ONSC 85 (CanLII) Jessica acted for a self-represented mother on this motion for a stay of an overnight access order pending appeal. The stay was not granted, but the court did provide for a “transition period” in line with what the mother suggested. As success was divided, no costs were ordered against either the mother or the father.

Marshall v. Reid, 2018 ONSC 648 (CanLII) Jessica successfully appealed a restraining order made by the Ontario Court of Justice against the father in this domestic family law case. Subsequently, the mother was ordered to pay costs of the appeal of $6000.00 to Jessica’s client.

Children’s Aid Society of Toronto v. R.M., 2018 ONCJ 690 (CanLII) Jessica represented the mother at a trial at the Ontario Court of Justice regarding the mother’s only son, who the Children’s Aid Society of Toronto alleged to be in need of protection. The court made the protection finding sought by the Society, but made no order as to disposition. Note: this order was subsequently appealed to the Ontario Superior Court of Justice – see Children’s Aid Society of Toronto v. RM, 2019 ONSC 2251 (CanLII). Jessica assisted with the appeal behind-the-scenes. The appeal was dismissed, and the client decided not to appeal further to the Ontario Court of Appeal.

PohQuong v. Marks, 2017 ONCJ 706 (CanLII) Jessica successfully represented a mother at a domestic family law trial at the Ontario Court of Justice that focused on the issues of section 7 expenses, each party’s incomes for support purposes, and entitlement to various tax deductions and credits. The self-represented father was subsequently ordered to pay the mother costs of the trial of $11,381.75.

N.V.C v Catholic Children’s Aid Society of Toronto, 2017 ONSC 796 (CanLII) Jessica successfully appealed to the Ontario Superior Court of Justice on behalf of a mother whose child had been made a Crown ward following a trial at the Ontario Court of Justice. On appeal, both the protection finding and the disposition order were overturned in their entirety (the first time this is known to have happened in Ontario). The child was reunited with his mother. The Catholic Children’s Aid Society was subsequently ordered to pay the mother costs of the appeal of $16,000.00.

Njoki v Gitomeh et al, 2016 ONSC 5012 (CanLII) Jessica successfully brought a motion on behalf of a mother of two children for retroactive and ongoing child and spousal support. The mother argued the father’s income should be imputed at $150,000, while the father maintained his income should be imputed at $61,945. In the end, the court imputed income of $147,500. The father was ordered, on consent, to pay the mother costs of the motion of $5000.

Castro v Castro, 2016 ONSC 4771 (CanLII) This is a costs decision following numerous court appearances in a domestic family law case involving a mother and father and their two children. Jessica acted as agent for the father, against whom a restraining order had been made on an ex parte (without notice) basis. The mother sought costs of $61,064.44, and in the end, costs were awarded in her favor of $24,000.

Catholic Children’s Aid Society of Toronto v. R.A., 2016 ONCJ 880 (CanLII) This was a motion for temporary care and custody before the Ontario Court of Justice. Jessica represented the mother. The father, the former caregivers and the maternal grandmother all sought temporary care and custody of the child.  The mother supported a return of the child to the caregivers.  The Society supported the child being placed in father’s temporary care and custody, but on a graduated basis as set out in a transition plan filed with the court. In the end, the court ordered temporary care and custody in favor of the father.

Sehovic v Gadzic, 2015 ONSC 4099 (CanLII) Jessica successfully brought a motion to set aside a final order in this domestic family law case in which the father had not participated. He had been noted in default and a final court order had been made giving sole custody of the parties’ two children to the mother, in addition to ordering the father to pay child support. The Superior Court of Justice agreed with Jessica’s submissions that the test for setting aside a final order had been met.

Brown v. Attorney General (Canada), 2015 ONSC 717  This was one step in a lengthy class action proceeding involving the 60s Scoop. Jessica acted as counsel for the plaintiffs, defending an appeal brought by the Attorney General of Canada to the Ontario Superior Court of Justice – Divisional Court of a decision of the Ontario Superior Court of Justice certifying the class. The appeal was dismissed, and costs of $35,000 were ordered against the Attorney General of Canada. This is that costs decision. The actual appeal decision is not reported on CanLII.