In L.M. v Peel Children’s Aid Society, 2019 ONCA 841 the Court of Appeal confirms the use of a highly cautionary approach to summary judgment motions in child protection matters, in light of disagreement by the Manitoba Court of Appeal on that issue (Dakota Ojibway Child and Family Services v. MBH, 2019 MBCA 91). The Ontario Court of Appeal reiterates its previous position in Kawartha that the test for summary judgment must be applied in the context of, and be sensitive to, the particularly high stakes and Charter rights of parents and children implicated in child protection cases. (pp. 45-52)

In L.M. the Ontario Court of Appeal also confirms that the CYFSA “significantly expanded the test for access to children in extended care by focusing on the best interests of the child and respect for the child’s views and wishes, and by emphasizing the special considerations that apply to children of Indigenous heritage.” (para 2)

It is an error of law for judges to take judicial notice of the fact that an access order would impair the children’s prospects for adoption and nor can the court rely on “common sense” and “informed experience” in support of that conclusion. Rather, the Society must present direct evidence or admissions from the family’s circumstances to support that claim, and in consideration of the varied forms of access that may be ordered. (para 7)

Congratulations to OACPL member, Jessica Gagne, for her hard work on this case!

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