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The Federal Court dismissed judicial review of an H&C refusal, finding the officer reasonably assessed the evidence on the child applicant’s mental health and best interests.
The court struck a petition challenging a Mental Health Act detention, denied a further adjournment, and dismissed the claims without leave to amend.
The Minister failed to meet the burden to prove a psychiatric assessment of KE was necessary, reasonable or in the child's best interests because equivalent clinical information was available from KE's longstanding treating psychiatrist and NSHA records, the request was untimely and intrusive given the imminent final disposition, and circumstances showed improvement and cooperation by KE; consequently the motion for assessment was dismissed.
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The Court held the trial judge did not err: he applied the correct s.16(1) test, properly evaluated the relevance of the appellant’s delusions to his culpability on the facts, permissibly relied on post-offence conduct and other evidence to find moral knowledge, and did not err in treating Dr. Pomichalek’s evidence given that psychologists in Ontario cannot alone make NCR assessments; appeal dismissed.
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The Court dismissed the appeal because the judge did not err in refusing the adjournment given delay and adequate amicus representation, applied the correct standard of review to the Board's factual findings, and reasonably concluded the Board's finding of incapacity was supported by evidence that the appellant denied his condition and refused engagement despite attempts to provide information and written materials.
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The Minister failed to prove on the balance of probabilities that the appellant was regularly capable of pursuing any substantially gainful occupation despite periods of substantial earnings because medical and testimonial evidence showed she had significant absences (approximately 200 days), could not sustain employment beyond short periods due to mental health (harassment, psychosis), and thus her disability remained severe and prolonged; consequently the appeal was allowed and no overpayment was found.
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The court admitted certain out-of-court statements by the child (Voice of the Child report, worry journal, reliable CPS notes, psychologist and school social worker notes) under the principled hearsay exception, found a material change in circumstances (the child’s consistent wish to reside with the father; deterioration in the child’s mental health; the mother’s unpredictable and volatile mental health and separation from a stabilizing stepparent), and concluded that shared parenting was no longer in the child’s best interests. On the balance of s.16 factors and evidence of psychological abu…
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The Federal Court granted judicial review of a refused H&C application, finding errors in the child best-interests analysis and in how mental health evidence was weighed.
On the balance of probabilities the court found no clear evidence that parental alienation by the applicant was the primary cause of the child’s estrangement; the child has a serious mental health condition significantly impairing functioning, is over sixteen and entitled to substantial autonomy, and forcible custody reversal would harm her; consequently the appropriate remedy is therapeutic assessment and managed reunification rather than coercive return or automatic change of primary care, with the court retaining jurisdiction to case manage implementation.
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The report was excluded: although it marginally met the low threshold for admissibility, it failed the gatekeeping balancing exercise because the assessor proceeded without required collateral materials, failed to follow the Consent Order, demonstrated a fundamental misunderstanding of her duty to the court and crossed into fact-finding and advocacy on parental alienation without evidentiary foundation, thereby undermining the reliability, independence and impartiality of her opinions and rendering the report inadmissible.
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