Publication Ban Warning
WARNING: The court hearing this matter directs that the following notice be attached to the file: This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Prohibition re identifying person charged. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
Ontario Court of Justice
Between:
Children's Aid Society of Toronto — Applicant
— and —
Y.D., L.M., R.L. and A.A.M. — Respondents
Counsel:
- Sherri Smolkin, for the Applicant
- Y.D. and L.M., acting in person
- Service dispensed with on the Respondent R.L.
- Aron David, for the Respondent A.A.M.
- Lisa Laborde, on behalf of the Office of the Children's Lawyer, for the subject children, T and W
Heard: November 5, 2025
Reasons for Judgment
Justice S.B. Sherr
Part One – Introduction
1The Children's Aid Society of Toronto (the society) has brought a summary judgment motion on two separate protection applications regarding T, age 14, and W, age 11 (the children).
2The respondent Y.D. (the mother) is the children's mother.
3The respondent L.M. (the stepfather) is the children's stepfather.
4The respondent A.A.M. (T's father) is T's father.
5The respondent R.L. is W's father. Service of the protection application regarding W has been dispensed with on him. His whereabouts are unknown.
6The society seeks an order finding T to be a child in need of protection pursuant to subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h) of the Child, Youth and Family Services Act, 2017 (the Act).1 It seeks a disposition that T be placed in the care and custody of T's father, subject to terms of society supervision for 6 months.
7The society seeks an order finding W to be a child in need of protection pursuant to subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h) of the Act. It seeks a disposition that W be placed in interim society care for 6 months.
8The society seeks orders that the children have access with the mother and the stepfather in the society's discretion, taking into account the wishes of the children, and with respect to T, after consulting with T's father.
9The Office of the Children's Lawyer (the OCL), on behalf of the children, and T's father support the society's motion. The OCL asked that sibling access between T and W be specified to take place weekly, unless otherwise agreed to by the children, the society and T's father. The society and T's father agreed with this request.
10The mother and the stepfather oppose the society's motion. They dispute that either child should be found to be a child in need of protection. They want the children to be immediately returned to their care.
11No one opposed the court making the statutory findings, pursuant to subsection 90(2) of the Act, sought by the society in both protection applications. The court will make those findings.
12T was brought to a place of safety on October 28, 2024, from the care of the mother. He was placed in the temporary care and custody of T's father on November 1, 2024 and continues to live with him.
13W was brought to a place of safety on November 28, 2024, from the care of the mother and has remained in temporary society care since then.
14The mother and stepfather have exercised little access with the children since they were brought to a place of safety. The last visit at the society office was on April 23, 2025.
15The court must determine if the relief sought by the society should be granted by way of summary judgment and determine if there is a genuine issue requiring a trial on any of the following issues:
a) Are T or W children in need of protection?
b) If so, is a protection order necessary to protect them in the future?
c) If so, what disposition orders are in their best interests? Where should they be placed?
d) What access orders are in their best interests?
Part Two – Preliminary Discussion About the Evidence and Submissions
16The court read the affidavits of two society workers, T's father and the mother. The stepfather did not file a separate affidavit. The court heard submissions from the society, T's father, the children's counsel, the mother and the stepfather.
17The mother had the assistance of a Somalian interpreter at this hearing. She chose to make her submissions in English.
18The court screened the society's evidence to ensure it only relied on trial-worthy evidence. See: Kawartha Haliburton Children's Aid Society v. M.W., 2019 ONCA 316. It did not rely on any child statements for the truth of their contents. However, it relied on child statements for several other purposes, including their state of mind, to establish that they have not felt emotionally or physically safe with the mother and the stepfather, and for the purpose of explaining why the society took certain steps in this case.
19In submissions, the mother and the stepfather made allegations and statements that went well beyond the evidentiary record. The mother's allegations escalated as she became more emotional. Counsel for the society, T's father and the OCL exercised good judgment by not intervening. They recognized it was more important for the mother and the stepfather to be heard.
20The court placed no weight on any allegations and statements made in submissions that were not part of the evidentiary record. Submissions are not evidence. See: P.D. v. The Children's Aid Society of the Region of Peel and K.D., 2022 ONSC 1817; R. v. Leduc. The summary judgment motion was scheduled on July 30, 2025. The mother and the stepfather had ample opportunity to put their evidence before the court by way of affidavit.2 The society, T's father and the OCL prepared for this hearing based on the evidentiary record and had no opportunity to respond to allegations made for the first time in submissions.
21The mother's affidavit did not address the allegations that she had physically abused the children. However, the mother and the stepfather both denied these allegations in their Answers/Plans of Care. The court recognizes they are self-represented and considered these denials of physical abuse as part of their evidence – their position was not a surprise to anyone. It also considered, as part of their evidence, their plans of care for the children, as set out in their Answers/Plans of Care.3
Part Three – Legal Considerations for Summary Judgment
22The society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) – the summary judgment rule.
23The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
24Pursuant to subrule 16(4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See: Children's Aid Society of Toronto v. K.T.; Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.
25Although subrule 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial", this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. See: Kawartha Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.
26Subrule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
27Subrule 16(6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:
- Weighing the evidence
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
28Pursuant to subrule 16(6.2), the court may, for the purpose of exercising any of the powers set out in subrule 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
29In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.
30Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
31There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak - paragraph 49). As the Supreme Court stated, at para. 50 of Hryniak"the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." See: Kawartha, paragraph 63.
32As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak's principle of reaching a fair and just determination on the merits. See: Kawartha, paragraph 76.
33Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial, the court must exercise exceptional caution and apply the objectives of the Act, including the best interests of the child. See: Kawartha, paragraph 1 of paragraph 80 and paragraph 64.
34The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. See: Kawartha, paragraph 3 of paragraph 80.
35The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue "for trial" or "requiring trial" analysis that incorporates these considerations. The test of "no genuine issue for trial" has been referred to in a number of ways. It has been equated with "no chance of success" or that it is "plain and obvious that the action cannot succeed". The test has also been enunciated as being when the "outcome is a foregone conclusion" or where there is "no realistic possibility of an outcome other than that sought by the applicant". See: Kawartha, paragraph 72.
36The cautious approach enunciated in Kawartha neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context. See: L.M. v. Children's Aid Society of the Region of Peel, 2019 ONCA 841.
Part Four – Material Facts Not in Dispute
37The material facts required to make this decision were not in dispute, or were only baldly denied by the mother and the stepfather.
4.1 The Parents
38The mother advised the court she is 49 years old and living with the stepfather. They have been in an on and off relationship for many years. The mother told the court she came to Canada when she was nine years old and that she is a Canadian citizen.
39T's father is 59 years old. He married the mother in 2012. They cohabited for two years. They are now divorced.
40T's father had no contact with T from at least 2018 until July 2023. The mother and the father have different narratives about why this happened. The mother claims the father was not interested in T for 10 years. T's father claims that the mother thwarted his relationship with T, frequently moved and could not be located.4
4.2 Statement of Agreed Facts – August 10, 2022
41The mother has a child protection history regarding multiple children going back to 1998. Much of that history is contained in a Statement of Agreed Facts signed by the mother and the society on August 10, 2022, in support of protection orders regarding T and W and another child of the mother, N, who is now 16 years old. The Statement of Agreed Facts sets out the following:5
a) The society was involved with the mother's first child, N.A. (now 27 years old), from 1998 to 2004. N.A. was made a crown ward due to concerns about domestic violence, the mother's mental health and parenting capacity, allegations of physical abuse of N.A., transience, drug use and the mother's non-cooperation with the society.
b) The society became involved with the mother again in August 2002, after the birth of M, her second child. M was apprehended due to concerns of low weight gain and neglect of the child's medical needs. M was returned to the mother pursuant to a supervision order but was apprehended again in November 2002, after a suspicious injury to him and ongoing concerns with the mother's mental health, parenting capacity and conflict with her partner. M was eventually placed with his father, who obtained custody of him in December 2005, with no access to the mother. The mother obtained an order for weekend access to M in 2012.
c) In May 2013, M was apprehended from his father's care due to concerns of physical discipline by him. While M was in the society's care, there were concerns about the mother's attendance at access, her behaviour at visits, and her refusal to meet with or cooperate with the society. M remained in the society's care until January 27, 2016, when he was made a crown ward without access.
d) N was apprehended at birth in April 2009 by Winnipeg CAS. The mother then moved back to Toronto and N was placed in the society's care. N was eventually placed in the care and custody of her maternal grandmother, pursuant to a supervision order, with the mother residing in the home. In December 2009, N was placed with the mother, pursuant to a supervision order. The mother made improvements and completed programs. She continued to have criminal involvement, conflict with family members and other adults and several changes to her living situation. The mother moved in with the stepfather. They moved to Durham Region and the society terminated the protection order in February 2012.
e) From September 2017 to March 2018, the society had an open file because the mother had expressed thoughts of self-harm. The society also had concerns about the mother inappropriately physically disciplining N, T and W.
f) From June to September 2021, the society had an open file because of reports that the mother wanted to die by suicide. After extensive safety planning, it closed its file.
g) The society opened its file again later in September 2021 because, at school, N and T were speaking about self-harming and wanting to die.
h) In January 2022, the mother reported she no longer wanted to be in a relationship with the stepfather. The mother left the home with N, T and W and moved into a woman's shelter. Shortly after, the mother and stepfather reconciled.
i) The mother reported she had three different criminal court matters ongoing at that time. The first related to charges related to community members. The second involved charges of uttering threats and calling 911 with a false report. The third involved charges of assault against a school principal.
j) On March 16, 2022, N reported that the mother had been threatening to harm herself. The society worker attended the home and found the mother distraught, shouting and screaming obscenities at N, T and W. The mother acknowledged she was suffering from a mental health crisis. The mother told the worker that the three children had to come into society care, otherwise she may hurt them or herself. She stated that if the three children were not removed, she would leave them in the apartment alone. The three children were brought to a place of safety. The mother said she did not want the three children placed with the stepfather. They remained in temporary society care.
k) On August 18, 2022, N, T and W were all found to be children in need of protection, by Justice Carolyn Jones, pursuant to clause 74(2)(h) of the Act.
42From August 18, 2022 until February 24, 2023, N, T and W were placed with the mother, on a temporary basis, subject to society supervision. The mother did not cooperate with the terms of supervision and refused society involvement. However, she appeared to be connected to community supports. At the society's request, on February 24, 2023, the protection application was withdrawn, and the temporary supervision order was terminated.
4.3 New Protection Proceeding Regarding N
43N was brought to a place of safety in April 2023, when the mother was charged with uttering death threats towards her and had criminal conditions restricting contact with her.
44On September 3, 2023, the mother was convicted of the offence of Threaten Death/Bodily Harm. She received a six-month Adult Probation Order that included a term that she can have no direct or indirect contact with N except with the written permission of the society. This order has now expired.
45On December 19, 2023, at a default hearing, Justice Jones made a finding that N was a child in need of protection pursuant to clause 74(2)(b) of the Act. She also made a final disposition order that N be placed in interim society care for six months. Access between N, the mother and the stepfather was ordered to be as agreed by the society and the person having access, taking into consideration N's wishes, and in accordance with any criminal conditions placed on the mother.
46The mother frequently breached the Adult Probation Order by having contact with N without the society's consent.
47The mother refused to work with the society regarding N.
48On June 25, 2024, Justice Jones ordered the mother to remove social media posts regarding the court case and not to record the court proceedings.
49N returned to her mother's home when she turned 16 years old without any safety planning. The mother and N did not want to work with the society. On August 8, 2025, the existing protection order regarding N was terminated at the society's request.
4.4 Transience and the Refusal of the Mother and the Stepfather to Work with the Society
50The mother also refused to work with the society regarding T and W.
51Since 2021, the mother has moved multiple times to different jurisdictions, including York, Durham and Simcoe Regions. T and W have attended several different schools for short periods. They have been withdrawn from their schools and moved to different addresses or unknown locations. The stepfather explained that every time the society located them, multiple police cars would show up, and they would have to move again.
52Since 2021, the society has received multiple reports from community members, Toronto Police Services and shelter staff regarding concerns about the mother's mental health, parenting, adult conflict, intimate partner violence and transiency. These concerns were difficult to investigate as the mother and stepfather were often living outside the society's jurisdiction or their whereabouts were unknown.
53The society's present family service worker, L.W., attested that during her involvement in this matter, she has never been able to meet with the mother and the stepfather. She made efforts to meet with the mother at the mother's home or in the community. She made efforts to utilize the mother's professional supports, or to arrange a Family Group Conference, all without success.
4.5 T
54T was brought to a place of safety on October 28, 2024, after he refused to return to the mother's home after a visit with T's father. T claimed that the mother was physically and emotionally abusing him and W. He also expressed concerns about his mother's mental health and the impact this was having on him, making it impossible for him to live, to attend school or have a stable place to live.
55On November 1, 2024, Justice Jones ordered that T be placed in the temporary care and custody of T's father, subject to terms of society supervision.
56T has remained in the temporary care and custody of T's father since then. He says he is happy in this home, feels safe and wants to continue to live there.
57The society workers deposed that:
a) T's father has complied with the supervision order, has worked cooperatively with it, and has demonstrated his commitment to caring for T.
b) T's father encourages T to speak openly with the worker and always presents as calm and child focused.
c) T did not attend school consistently for many years while living with the mother and the stepfather. He is very behind academically. He has shown considerable improvement since he has lived with T's father. He now attends school each day and has an improved approach to school and learning.
d) T's father has worked well with T's school to encourage his attendance and meet his academic needs.
e) T's father is trying to maintain a peaceful home environment where T does not have to worry and can focus on being a kid and going to school.
58The OCL advised the court that T does not want regularly scheduled visits with the mother.
59T has expressed the following feelings to the society workers:
a) He did not feel safe in the mother's home. He does not want to live with her anymore.
b) He felt he was mistreated by the mother more than W because his mother does not like T's father.
c) Everything is good at T's father's home.
d) He does not want to leave T's father's home.
e) His last visit with the mother on April 23, 2025 (discussed below) was terrible.
f) The mother does not listen to him when he asks her to calm down.
g) He worries the mother will cause problems for them if W lives with him and T's father.
h) He loves the mother and does not want to hurt her feelings.
i) He doesn't trust too many people and does not want to talk to any counselors right now.
j) He does not currently want regularly scheduled access with the mother.
4.6 W
60On November 8, 2024, the society obtained a warrant to bring W to a place of safety, due to concerns about physical discipline, the mother's mental health, parenting ability, adult conflict, transiency, instability, neglect of the children's needs and her lack of cooperation with the society.
61The society had difficulty locating the mother. It learned on November 26, 2024 that she mother had moved to Durham Region. On November 28, 2024, Durham CAS and the Durham police executed the warrant and brought W to a place of safety.
62On December 3, 2024, Justice K. Leef, of the Superior Court of Justice (Family Branch) in Oshawa, made an order placing W in the temporary care and custody of Durham CAS and transferred the case to this court.
63On January 23, 2025, Justice Jones placed W in the temporary care and custody of the society. W has remained in the society's care since that time.
64On February 24, 2025, Justice Jones dispensed with service of the court materials on W's father.
65W has done well in the society's care. He has responded well to structure and routine at his foster home. He has attended school daily and completed grade 5, although he is behind academically and has some behavioural challenges. He has been supported by a Child and Youth Worker and a Special Education Resource Teacher. An Independent Education Plan is being developed to meet his needs. W is connected to his cultural and spiritual identity through the practice of Islam at the foster home. He enjoys attending Mosque and has celebrated Eid with his foster family.
66W has expressed his views and wishes that he wants to remain in society care.
4.7 Access
67W has been reluctant at times to see the mother. He initially did not want to see her unless there were guarantees that she would not record him. He has expressed his distress about the mother posting recordings of him on the internet.
68The society worker asked the mother to send W a letter saying she would not record him. She did not do that.
69T did not want to have access with the mother and the stepfather after he was brought to a place of safety.
70The society worker investigated having two of the mother's support persons supervise visits with W. However, they were unable to do this.
71The society set up two sibling access visits with the children and N. The mother came to the visits and refused to leave, causing everyone distress.
72On March 18, 2025, W advised the society he wanted a visit with the mother, even without the guarantee she would not record him. After an all-parties meeting, weekly visits were set up at the society office between the mother and W.
73The mother questioned W inappropriately at the visits. She would ask him repeatedly about his foster home. She criticized the society in front of him.
74The mother would not communicate with society workers during the visits, would slam doors and would position herself to prevent the workers from seeing what was happening. She frequently whispered to W. W expressed his concerns about the visits to the society worker.
75On April 23, 2025, the children attended for a visit at the society office. The mother escalated and made threats to burn the society building down to the ground and made hand gestures references shooting a gun at the workers. She escalated further in the society's lobby, yelling at staff. The society decided it could no longer safely supervise access at its offices.
76The society set up a second all-parties meeting to discuss its concerns. The mother did not attend.
77The society proposed a third-party supervisor for the visits. However, the mother did not sign the requested consents for this supervising agency until June 10, 2025. She never provided the necessary contact information for visits to take place and would not advise the society whom she intended to bring to the visits, despite multiple requests.
78The mother continued to demand access on short notice and sent abusive messages to the society workers when told she must first provide the information it had requested.
79The children made direct arrangements to see the mother on September 11 and 12, 2025, while they were at T's father's home. The society was not advised of this in advance. This has been the only known access that has taken place since April 23, 2025.
80W has expressed he would like to see the mother more often. However, he wants the society to arrange the access and establish rules for it.
81For the summer months, access between the children was increased to once a week, alternating between day visits at T's father's home and at the society offices. These visits went well.
82Currently, the children exercise access together every weekend at T's father's home from Saturday morning to Sunday evening. These visits have gone well. The children are arranging their own access with N during this time.
Part Five – Is There Any Genuine Issue Requiring a Trial?
83The court has considered that it should exercise exceptional caution before proceeding on a summary basis in a child protection case. It recognizes and has considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.
84The court finds that it is in the interests of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate the dispute.
85The court finds that it can do so based on the evidence before it, and without the need to use any expanded powers to weigh evidence or assess credibility.
86The court finds that the evidentiary record, and particularly the material facts not in dispute, set out in Part Four above, are sufficiently comprehensive on all aspects of the case for the court to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of witnesses would add little, if any, value to the court's analysis.
87Given the length of time the children have been before the court on these protection applications, the court finds that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the Act.
88The court finds that the society has established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the mother and the stepfather have not met their onus of establishing that there is a genuine issue requiring a trial on any issue.
89The court finds that if this matter proceeded to trial, there is no realistic possibility of an outcome other than that sought by the applicant.
Part Six – Finding T and W to be Children in Need of Protection
6.1 Legal Considerations
90The society seeks a finding that the children are children in need of protection pursuant to subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h) of the Act. These clauses read as follows:
(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.
(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
91The society has the onus, on a balance of probabilities, to establish that the children are at risk of harm.
92If the court finds that if the children are not in need of protection, then that is the end of the society's protection applications. See: Catholic Children's Aid Society of Toronto v. N.N., 2019 ONCJ 8, at para. 116.
93The risk of harm under clause 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-Carlton v. T. and T..
94Harm caused by neglect or error in judgment comes within the finding. See: Children's Aid Society of the Niagara Region v. T.P..
95A child may be at risk even if the conduct is not directed specifically towards that child. See: Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.); Children's Aid Society of Toronto v. R.M., 2019 ONSC 2251.
96The court can choose a flexible approach when considering the timing of the protection finding in a child protection proceeding. The court can and should admit evidence arising at any time up to the date of the court hearing. See: Family and Children's Services of St. Thomas and Elgin v. M.M., 2019 ONSC 4649, at para. 63; Children's Aid Society of Halton Region v. L.S.A., 2019 ONCJ 759, at para. 82.
97The flexible approach allows the court to consider if the child is in need of protection at the start of the proceeding, the hearing date, or some other date. See: Children's Aid Society of Toronto v. R.M., 2019 ONSC 2251 at para. 85.
98In many child protection matters, the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection application proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts. See: Children's Aid Society of Toronto v. R.M., at para. 94.
99Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addiction, inadequate shelter/food are common circumstances leading to the findings of physical harm or risk of physical harm. Verbal abuse, aggression and inappropriate situations that children are exposed to also constitute risk of physical and emotional harm. See: Children's Aid Society of Toronto v. R.S., 2019 ONCJ 866, at para. 106; Children's Aid Society of the Regional Municipality of Waterloo v. C.F. and R.A., 2021 ONSC 6158, at para. 41.
100When the evidence of a child's distress reactions to parental behaviour is sufficiently clear, a finding of risk of emotional harm can be made without the opinion of an expert. See: Simcoe Muskoka Child, Youth and Family Services v. L.V., 2016 ONSC 7039, 90 R.F.L. (7th) 438, at para. 20 and Children's Aid Society of Halton Region v. L.S.A., 2019 ONCJ 759, at para. 89; Children's Aid Society of the Regional Municipality of Waterloo v. C.F. and R.A., 2021 ONSC 6158.
101Furthermore, a periodic lack of consistent attendance at access also supports a finding of risk of physical harm as it can be seen as a pattern of ongoing neglect. A pattern of not exercising access consistently may also place the child at risk of emotional harm. See: Family & Children's Services of St. Thomas and Elgin v. M.M., 2019 ONSC 4649, at para. 77(d).
6.2 Analysis
102There is no genuine issue requiring a trial that the children are children in need of protection pursuant to both subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h) of the Act. The evidence is overwhelming.
103The following evidence supports the relief sought:
a) Neither T nor W feel physically or emotionally safe to be alone with the mother.
b) T has expressed his desire to live in a calm home. He has chosen not to live with the mother. He is currently choosing not to see the mother and has expressed no interest in seeing the stepfather.
c) The mother is volatile and inappropriately aggressive. This has been a long-standing pattern of behaviour.6 For instance:
i. She was convicted of threatening N with death.
ii. In 2022, she was facing criminal charges arising from multiple incidents.
iii. She has a history of making threats, such as threats to harm herself, T's father and society workers, and burn down the society offices.
iv. She has a long history of adult conflict with multiple people and police involvement arising from that conflict.
v. She refused to leave a sibling visit in March 2025 at the society office.
vi. Her access was discontinued at the society offices after April 23, 2025, because the society could not safely protect its workers from her.
vii. T and W perceive her as volatile.
viii. She has inappropriately questioned the children at visits and criticizes the society at visits, with little understanding of the emotional distress this causes them.
ix. She continues to send rambling, threatening, profane and abusive messages to the society.7 Many are incoherent and indicative of someone with mental health challenges. L.W. attached four such messages to her affidavit. The society submitted there were many more like it. The mother demonstrated extremely poor judgment emailing some of these messages to the children.
x. She appears to lack any emotional regulation when she does not get her own way.
d) The mother neglected T's and W's physical and emotional needs. She frequently moved them and changed their schools.8 The children's lives were unstable as they moved from one jurisdiction to another. They missed a lot of school. They were very behind academically when they came into care. W has a learning disability and his needs were not addressed because of this chaos. The children have both made academic gains in the last year.
e) Prior to the children being brought to a place of safety, the mother and the stepfather obstructed the society's ability to investigate serious protection concerns. They moved from jurisdiction to jurisdiction. This increased the risk of physical and emotional harm to the children.
f) The mother and the stepfather are focused on their anger at the society. They demonstrated no insight into the protection concerns and how their behaviour has adversely affected the children. They accept no responsibility for their actions. They blame the society and T's father for the children not living with them. There was no credible evidence to support their beliefs. This increases the risk of both physical and emotional harm to the children.
g) The mother and the stepfather have prioritized their need to be right to the children's need to have regular and stress-free access with them. They have made each visit fraught for the children. How will the mother behave that day? They have failed to follow through on minimal expectations to start access again. The mother would not even provide W with the assurance that she would not tape him during visits, delaying the start of access. Again, the mother and the stepfather show little insight into the emotional impact this has had on the children.
104Findings in need of protection will be made as requested by the society.
Part Seven – Is There a Genuine Issue Requiring a Trial That a Protection Order is Necessary to Protect the Children in the Future?
105Subsection 101(1) of the Act provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.
106In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.
107The court finds there is no genuine issue requiring a trial to make a finding that a protection order is necessary to protect the children in the future. The protection risks that supported the finding in need of protection remain just as high today. The mother and the stepfather have taken no meaningful steps to address these risks. They feel there are no risks to be addressed. They continue to be totally uncooperative with the society.
Part Eight – Disposition
8.1 Legal Considerations
108If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101(1) or section 102 of the Act in the child's best interests. These read as follows:
Order where child in need of protection
101(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:
Supervision order
- That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Interim society care
- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care
- That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision
- That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.
102(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
109Subsection 101(2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.
110Subsection 101(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.
111Subsection 101(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.
112In determining the appropriate disposition, the court must decide what is in the children's best interests. The court considered the criteria set out in subsection 74(3) of the Act in making this determination. This subsection reads as follows:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
113It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a mother, provided that the standard used is not contrary to the child's best interests. See: Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.
114In Children's Aid Society of Toronto v. S.B., 2014 ONCJ 518, this court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:
[112] The major protection issue is the mother's ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.
8.2 Family and Community Plans
115The society has supported a family plan for T with T's father.
116T's father is now saying he hopes to plan for W as well. The society will be exploring this plan during the term of proposed interim society care.
117No other family or community plans were proposed by the mother and the stepfather.
8.3 Services to the Family
118The mother and the stepfather reject any offer of services from the society.
119The society tried to arrange a third-party agency to supervise access with the children. The mother and the stepfather did not provide the necessary information to start the visits.
120The society explored whether any of the mother's supports could supervise access. None were able to do this.
121The society set up an all-parties meeting to find a way to move forward with access after it was suspended on April 23, 2025. The mother and the stepfather did not attend the meeting.
8.4 Placement Analysis
122The mother and the stepfather have not provided a viable plan to care for the children for the following reasons:
a) The risk concerns that led to children being brought to a place of safety remain just as high today.
b) They offer no proposal to address and mitigate the risk concerns.
c) They show no understanding of the children's needs. There is no evidence that they would now address those needs, including their academic needs.
d) They show no understanding that the children require safe, stable and secure caregivers. They have demonstrated no ability to be such caregivers.
e) The mother's affidavit evidence focused on her grievances against the society and T's father. She feels she has been unfairly targeted and discriminated against by the society. She feels that the society has manipulated justice and has confused the children. Her affidavit did not address the risk concerns or the children's needs. It took no accountability for her extensive child welfare history. The stepfather expressed similar views.
f) They show no insight into the risk concerns and externalize all blame. Given this perspective and the lengthy child protection history, they are poor candidates to change.
g) Neither T nor W want to live with them. T does not want regular access with them. There is a struggle to even start regular and safe access.
h) Even if the children were returned to the care of the mother and stepfather, it would have to be pursuant to strict terms of supervision. For the court to make a supervision order, it would need to be confident that they would comply with the order. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196; Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227; Children's Aid Society of Toronto v. R.R., 2024 ONCJ 233. The mother and the stepfather remain extremely hostile to the society. This is evident in their actions, the mother's communications to the society, the mother's motion material and their submissions at this hearing. They have breached supervision orders in the past. There is no basis to believe they would now comply with a supervision order. This would place the children at an unacceptable risk of harm.
123The only viable plans before the court are those proposed by the society and T's father.
124The society's and T's father's plans are in T's best interests for the following reasons:
a) T has thrived in this placement.
b) T's father has provided T with a calm, child-focused home.
c) T has improved in school. He attends school regularly.
d) T wants to remain with T's father.
e) T's father has cooperated with the society and the school.
f) T's father has responsibly addressed T's physical, developmental and emotional needs.
125There is no evidence corroborating the mother's allegation in her Answer/Plan of Care that T's father has alienated T from the mother. It is a bald allegation. The society worker says that T's father is supportive of this relationship provided it happens in a safe manner. T's father permitted the children to have two visits in September 2025 with the mother, even though he should have first consulted with the society. He has assured the society he will do so in the future.
126The supervision terms sought by the society, as set out in paragraph 3 of its notice of motion, are in T's best interests. They include terms that T's father shall cooperate with the society, sign required consents, use his best efforts to ensure that T attend school daily and contact the police if the mother attends his home. They also include terms that the mother shall not attend T's father's home and have no contact with T, except as approved by the society.
127The society's plan for W is in W's best interests for the following reasons:
a) W has thrived in the society's care.
b) W has improved in his academics and behaviour while in the society's care. He attends school regularly.
c) W is in a calm and supportive foster home. He is involved in extra-curricular and cultural activities.
d) W wants to remain in the society's care.
e) The society has obtained a psychological assessment for W and is taking steps to address his special learning and behavioural needs.
f) The society will be exploring a plan to place W with T and T's father.
128The court finds that there is no genuine issue requiring a trial regarding the disposition orders for the children.
129The court finds that the least disruptive alternative, consistent with the children's best interests is to place T with T's father for 6 months, subject to terms of society supervision, and to place W in interim society care for 6 months.
130In summary, the court finds that:
a) The society's and T's father's plans will best meet the children's physical, mental and emotional needs.
b) The society's and T's father's plans will best meet the children's physical, mental and emotional level of development.
c) The society's and T's father's plans will best meet the children's need for continuity and stability.
d) The risk of placing the children with the mother and the stepfather is unacceptably high.
e) The society's and T's father's plans are the only viable plans before the court.
Part Nine – Access
9.1 Legal Considerations
9.1.1 Section 104 of the Act and General Principles
131Section 104 of the Act sets out the court's powers in relation to access. It reads as follows:
Access order
104(1) The court may, in the child's best interests,
a) When making an order under this Part; or
b) Upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to a child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
132Courts should give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. See: Catholic Children's Aid Society of Toronto v. A.M., 2024 ONCJ 607.
133The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: Catholic Children's Aid Society of Toronto v. C.P.I., 2020 ONCJ 304; Catholic Children's Aid Society of Toronto v. A.M., 2024 ONCJ 607.
134A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615; Family and Children's Services of Lanark, Leeds and Grenville v. A.B., 2021 ONSC 5368; Catholic Children's Aid Society of Toronto v. A.M., 2024 ONCJ 607.
9.1.2 Supervised Access in Child Protection Cases
135In C.A.S. v. C.F., 2020 ONSC 3755, Justice Heather McGee discussed supervised access in the child protection context at paragraphs 32 to 34 as follows:
Access is the right of a child. As stated by Justice Blishen in V.S.J. v. L.J.G."there is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances."
A child's right to access with a parent invites a further layer of complexity in a child protection proceeding. Court must engage in a careful balancing of the benefit of a parent's care, the specific risk of harm to the child while in that parent's care, and the measures in place for risk reduction.
Supervised access is a critical tool in that engagement. Supervision provides a safer bridging period during which parental deficits can be assessed and whenever possible: repaired. Supervised access is clearly indicated when parenting judgement is impaired, there is a history of violence and other harmful behaviour directed toward the primary caregiver and/or evidence of abuse or neglect of the child.
136In Catholic Children's Aid Society of Toronto v. C.P.I., 2020 ONCJ 304; Children's Aid Society of Toronto v. R.R., 2024 ONCJ 233, this court endorsed these principles.
9.1.3 Access Orders in the Society's Discretion
137In J.S.R. v. The Children's Aid Society of Ottawa, 2021 ONSC 630 (J.S.R.), the Ontario Divisional Court wrote that it is an error in law for a court to delegate all discretionary decisions on the type, frequency and duration of access in the discretion of the society. This offends the principle against self-delegation. See: A.G. of Canada v. Brent, [1956] SCR 318 at 321. Section 104 of the Act makes it clear that it is the court's obligation to impose the terms and conditions of an access order. This is a discretionary decision. Nothing in the language of sections 104 or 105 of the Act either explicitly or implicitly includes the power to subdelegate the decision as to terms or conditions of access to a nonjudicial actor such as a society.
138The court in J.S.R., stated this principle is distinguishable from cases where access in society discretion is ordered at a temporary motion, as a temporary order may be reconsidered or varied as circumstances change prior to a final determination. A final order is intended to determine the party's rights without further litigation.
139In J.S.R., the society was seeking an order for extended society care. Unlike other child protection orders, the issue would not automatically return to court for review and the court would lose oversight over access.
140The court in J.S.R. also set out that it is acceptable for a court to order access in society discretion if it significantly circumscribes the discretion of the society as to form, duration and frequency by setting minimum access rights. See: Children's Aid Society of Toronto v. J.G., 2020 ONCA 315, where the trial court ordered a minimum of 6 in-person visits each year for one hour each and to ensure that the society provided the mother a recent picture of the child 4 times each year.
141In D.M. v. The Children's Aid Society of Ottawa, 2021 ONSC 8360 (Div. Ct.), the Ontario Divisional Court found that a section 102 custody order made with access in the discretion of the father was another exception to the rule against delegation or sub-delegation. This was because there was a mechanism to review the access order under the Children's Law Reform Act. The court wrote at paragraphs 260 and 261:
[260] However, in the immediate case, this ground of appeal based on an alleged unlawful delegation of discretionary access decision-making authority to J.K., fails. The rule from J.S.R. v. Children's Aid Society of Ottawa does not apply to the circumstances of the immediate case where the access order is made at the same time as the custody order that ends the Society's involvement.
[261] In the immediate case, the court in the matrimonial proceeding still has oversight of the matter, and the parties can bring the matter back for variation, unlike an extended society care order, which terminates the court's involvement.
142A similar approach was taken in P.D. v. The Children's Aid Society of Peel and K.D., 2022 ONSC 1817, and in CCAS of Hamilton v. T.E. et al., 2021 ONSC 3151, where the courts found it was permissible when making final section 102 custody orders to order that access be in a parent's discretion.
143In summary, J.S.R. was concerned about the complete delegation of access to the society where access would not be reviewed. It was a final extended society care order intended to determine the party's rights without further litigation. It created an exception for temporary orders for access in the society's discretion because they were reviewable. It excepted cases where courts significantly circumscribed the society's discretion over access. Cases where section 102 custody orders have been made with access in a person's discretion have also been excepted by courts because these orders became orders under the Children's Law Reform Act and could be reviewed under that legislation if there was a material change in circumstances.
144Here, the society is seeking a supervision order regarding T and an interim society care order regarding W. These are final orders on the protection applications. However, there will be a status review application where the access orders can be reviewed. The court also maintains oversight over access during the status review period. Unlike a section 102 custody order, a party does not even have to initiate a motion to change to bring the matter back to court.
145The court finds it is a logical extension of the exceptions set out in J.S.R., and the jurisprudence regarding section 102 custody orders, to find that courts have the authority to make access orders in a party's discretion,9 when making final supervision orders or final interim society care orders under the Act – particularly when they circumscribe the exercise of that discretion in a manner consistent with the best interests of the children.
146That said, just because courts have the authority to make access orders in the discretion of the society when making a final supervision or interim society care order does not mean these orders will necessarily be in a child's best interests. Generally, it is in a child's best interests for courts to take an active role in structuring and reviewing access, at all stages of a case, to give the parent/child relationship the best chance to succeed. However, there will be cases where the protection concerns are very serious, access is problematic, the facts rapidly change, and the society needs considerable flexibility to safely manage access for a child. The court will review below why this is one of those cases.
9.2 Is There a Genuine Issue Requiring a Trial Regarding Access Between the Mother and the Stepfather and the Children?
147The society, T's father and the OCL seek an order that the children have access to the mother and the stepfather in the society's discretion, taking into account the wishes of the children and with respect to T, after consulting with T's father.
148The OCL submitted that T is comfortable with the society managing his access with the mother and the stepfather. W wants to see the mother more but wants the society to regulate the access with her.
149The mother and the stepfather did not present an alternative access position. However, it was evident they seek as much unsupervised access with the children as possible.
150The court finds that there is no genuine issue requiring a trial regarding the children's access with the mother and the stepfather. Cross-examination of witnesses at trial would add little, if any, value to the court's analysis.
151It is in the children's best interests to make the access order sought by the society, T's father and the OCL, with additional provisions regarding how the society exercises its discretion over access as will set out below.
152It is imperative that the children's access with the mother and stepfather be supervised at this time for the following reasons:
a) The mother is volatile. The children do not feel safe with her.
b) The mother inappropriately questions the children and undermines the society and T's father. This is upsetting to the children and destabilizes them.
c) The stepfather shows no ability or willingness to control the mother's conduct. He enables and fuels her anger.
d) The mother and stepfather show no insight into how their conduct impacts the children. They are unlikely to change.
e) The children want the visits controlled and regulated.
153The court has considered that T does not want to regularly see the mother and the stepfather. The evidence informs the court that he has good reasons for his reluctance to see them. It is not in his best interests to force him into having access. It risks undoing the gains he has made since he went to live with T's father.
154W has shown more ambivalence about seeing the mother (there is really no evidence of a desire to see the stepfather). He now wants to see her more often, but he wants to make sure the visits are safe – that rules are set, and the mother follows them. He does not feel safe with the mother when she becomes unregulated. He becomes upset when she wants to record him at visits.
155The mother has made the access much more difficult than it needs to be because of her hostility and lack of cooperation. It is rare when a society feels it cannot supervise access because it cannot keep its workers safe from a parent. The mother's communications with the society are offensive and inappropriate. They create questions about her mental health, self-regulation and judgment. She refuses to meet with the society worker to work on access plans and she did not meet the bare minimum requirements to start access through a third-party agency.
156This evidence informs the court that the society requires considerable flexibility in managing access. It needs to create opportunities for access. It needs to be responsive to the children's wishes regarding access and it needs to continually assess the risks posed to the children by the mother's conduct. This is a rare case where it is not in the children's best interests to order minimum access. It may be appropriate for there to be periods where there is no access.
157The order sought by the society, T's father and the OCL circumscribes the society's discretion over access, by requiring that the society consult with T's father and take into account the children's wishes. The court finds it is in the children's best interests to circumscribe the society's discretion over access even further as follows:
a) The society shall send out a letter of expectations to the mother and the stepfather, setting out what information it requires from them, who may attend the visits, and how it expects them to conduct themselves at visits. The letter of expectations should contain a term that the children shall not be video, or audio recorded during the visits.
b) The mother and stepfather must agree to the letter of expectations before access begins and comply with the expectations once access starts. If they fail to do so, the society may suspend access pending further court order.
c) The society should re-engage with the third-party access supervisor to see if it will facilitate supervised access.
d) Access shall be supervised pending further court order.
e) The children shall not be compelled to exercise access.
f) The access supervisor may terminate any visit if either the mother or the stepfather act inappropriately.
158The court will make the sibling access order agreed to by the society, T's father and the OCL.
159The court maintains oversight over the access issues – both during the status review period and during the next status review application. If the mother and the stepfather comply with reasonable conditions for access, conduct themselves in a civil manner and consistently exercise positive access, there is a good chance that the court will expand and specify their access times with the children in the future.
Part Ten – Conclusion
160An order shall go granting the society's summary judgment motion, subject to changes to the requested access orders, on the following terms:
a) Statutory findings pursuant to subsection 90(2) of the Act are made as set out in paragraphs 1 and 6 of the society's summary judgment motion.
b) T and W are children in need of protection pursuant to subclauses 74(2)(b)(i) and (ii) and clause 74(2)(h) of the Act.
c) T is placed in the care and custody of T's father, for a period of six months, subject to the supervision of the society on the terms and conditions set out in paragraph 3 of the society's summary judgment motion.
d) W is placed in the interim care of the society for six months.
e) The children shall have access to the mother and the stepfather in the discretion of the society, including with respect to mode, location, duration, frequency and who supervises the visits, and taking into consideration the children's wishes about having access, and with respect to T, after consulting with T's father. The following terms of access are also ordered:
i) The society shall send out a letter of expectations to the mother and the stepfather, setting out what information it requires from them, who may attend the visits, and how it expects them to conduct themselves at visits. The letter of expectations should contain a term that the children shall not be video, or audio recorded during the visits.
ii) The mother and stepfather must agree to the letter of expectations before access begins and comply with the expectations once access starts. If they fail to do so, the society may suspend access pending further court order.
iii) Access shall be supervised pending further court order.
iv) The society should re-engage with the third-party access supervisor to see if it will facilitate supervised access.
v) The children shall not be compelled to exercise access.
vi) The access supervisor may terminate any visit if either the mother or the stepfather act inappropriately.
f) The children shall have access with each other in the society's discretion, with respect to mode, location, duration, frequency and supervision, and taking into account the children's wishes in having access. The access shall take place a minimum of once each week, unless otherwise agreed to by the children, the society and T's father.
161W has been in society care for close to 17 months.10 The term of this interim society care order will take him close to the statutory time limit (24 months) to remain in interim society care set out in subsection 122(1) of the Act. If the potential plan of T's father to care for W does not materialize, or if it is not approved by the society, the society should be prepared to move forward expeditiously towards a permanent plan for W.
162The status review date shall be April 17, 2026 at 12:15 p.m. The attendance shall be in person for 45 minutes. A Somalian interpreter is ordered.
163The society shall take out the order. Approval as to form and content by the respondents is dispensed with.
Released: November 10, 2025
Justice Stanley B. Sherr
Footnotes
- In its notice of motion, the court also asked to find T in need of protection pursuant to subclauses 74(2)(a)(i) and (ii) and clause 74(2)(f) of the Act. In submissions, the society abandoned those claims, acknowledging that they could not be established, applying the legal test for summary judgment.
- The mother was represented by counsel until her counsel obtained an order to be removed from the record on September 8, 2025.
- The mother had counsel when she prepared her Answers/Plans of Care for the children. She subsequently filed joint Answers/Plans of Care with the stepfather.
- This dispute in facts has no impact on the final decision.
- The mother was represented by counsel when she signed the Statement of Agreed Facts.
- The mother filed no evidence denying her pattern of violence and threats.
- These messages are attached as Exhibits C and D to L.W.'s affidavit. The court has decided not to reproduce them in this decision.
- It appears this was to keep one step ahead of the society.
- These orders will usually be in a society's discretion. However, the court can envision situations where access under a final supervision order is ordered in the caregiver's discretion.
- W was in society care from March 16, 2022, until August 18, 2022 – 155 days. He has also been in society care since November 28, 2024 – 349 days. This totals 506 days.