WARNING
The court hearing this matter directs that the following notice should 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.
ONTARIO COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF ALGOMA
Applicant,
— AND —
L.R. and P.V.H.
Respondents
Before Justice Heather-Ann Mendes
Decision on Summary Judgment Motion with respect to Finding
Heard October 6, 2025
Decision of Motion to Strike Mother’s Answer Heard on October 9, 2025
Reasons for Judgment released on November 5, 2025
Ryan Lindenbach......................................... counsel for the applicant society
Mira Pilch....................................................... amicus for the respondent L.R.
No appearance by or on behalf of P.V.H. ……….……….. and noted in default
Lindsay Marshall................. counsel for the Office of the Children’s Lawyer,
legal representative for the child
MENDES J.:
Background
1L.R. is the mother of the child C.V.H. born […], 2012. The father of the child is P.V.H. The father has not had any involvement with the child since his birth. The father was substitutionally served with the Application by way of service upon his sister, P.V.H., pursuant to an order dated December 6, 2023 and July 30, 2025.
2The father did not appear at court to address the matter nor file an answer and plan of care. As such, he was noted in default on January 22, 2024 on the original application and then again on September 25, 2025 on the amended application.
3The matter was originally set for trial for five days on the November 2024 running trial list sittings. At the trial management conference continuation on October 28, 2024 amicus was appointed to assist the mother, and the trial was adjourned to the March/April 2025 running trial list sittings.
4Amicus could not be secured for the March/April 2025 running trial list sittings and so the matter was set for trial on the next running trial list sittings, that being September/October 2025.
5At the trial management conference continuation held on June 16, 2025, it was determined that the trial would be set for nine days and the triable issues were that of finding and disposition.
6On September 10, 2025 the Society served a motion for summary judgment returnable on September 17, 2025 seeking a finding that the child is in need of protection pursuant to section 74(2)(b)(i) and 74(2)(k) of the Child, Youth and Family Services Act (“CYFSA”), based on the facts set out in the request to admit which was not responded to by the mother and as such, deemed to be admitted.
7The mother did not appear on September 17, 2025 and the motion was adjourned to September 24, 2025. The mother again did not appear on September 24, 2025 and the motion was adjourned to the first day of trial, September 29, 2025.
8The mother did not appear on September 29, 2025. Unfortunately, the trial could not proceed nor be addressed substantively as amicus counsel fell ill and was not able to travel to attend the trial in person.
9The matter was adjourned to October 1, 2025 for an update. Unfortunately, counsel was still not available due to illness and again the mother did not attend. The matter was adjourned to October 3, 2025 for an update.
10On October 3, 2025 the mother again did not attend court, but counsel was in a position to argue the summary judgment motion, as such the motion was set for hearing on October 6, 2025.
11Over the course of the weekend, the Society served a further motion also returnable on October 6, 2025, seeking to strike the mother’s answer and plan of care.
12On October 6, 2025, the mother was once again not present. The motion for summary judgment was argued and the motion to strike the mother’s pleadings was adjourned to October 9, 2025 for argument.
13The Society served a further motion to strike pleadings from the mother on October 7, 2025. On October 9, 2025 the mother again did not attend and the motion to strike her pleadings was argued.
Motion Regarding Finding
14The Society seeks a finding pursuant to section 74(2)(b)(i) of the Act, that the child is in need of protection as there is a risk he is likely to suffer physical harm, inflicted by the person having charge or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child. As well as a finding pursuant to section 74(2)(k) of the Act, that the child’s parent is unavailable to exercise the rights of custody over the child and has not made adequate provisions for the child’s care and custody, or that the parent is unable to resume the child’s care and custody, based on the facts set out in the request to admit.
15The proposed facts sought to be admitted as true are:
On November 1, 2023, L.R. was evicted from her apartment on Albert Street West, in Sault Ste. Marie, Ontario, where she resided with the child C.V.H.
A Sheriff as well as Sault Ste. Marie Police Services attended the home and facilitated the eviction. L.R. and the child were removed from the apartment on November 1, 2023.
On November 1, 2023, L.R. was transported by Sault Ste. Marie Police Services to the Sault Area Hospital where she attended with Nurse Sarah Albert, Crisis Intervention for an initial assessment.
On November 1, 2023, L.R. received a follow up medical assessment by Dr. Natasha Ewert in the emergency department to be assessed.
On November 1, 2023, after medically assessing L.R., Dr. Ewert requested an opinion from Dr. Emmelee Marshall with respect to L.R.’s psychological presentation.
On November 1, 2023, Dr. Ewert completed a Form 1, pursuant to the Mental Health Act and had the mother admitted, involuntarily, to the psychiatry floor for further assessment.
While at the hospital Dr. Adesua Obadan prescribed the mother antipsychotic medication which the mother refused to take. Staff within the hospital attempted to educate the mother on the benefits of the medication. However, L.R. continued to refuse to take the medication.
On November 4, 2023, Dr. Obadan signed a Form 3 pursuant to the Mental Health Act seeking a capacity hearing to declare L.R. incompetent from making informed medical decisions.
After ongoing assessment, the mother was deemed voluntary and capable of making treatment decisions. L.R. immediately discharged herself against medical advice on November 9, 2023.
On November 9, 2023 Dr. Obadan cancelled the capacity hearing.
L.R. refused to follow up with community services, although they were identified on her discharge summary.
L.R. was not permitted to resume residing at her apartment on Albert Street West, in Sault Ste. Marie, Ontario.
16The Society argues that the mother was served with the request to admit on two occasions, first by mail in September 2024 and then personally on July 10, 2025. The mother has failed to respond to either request to admit and so for the purposes of this trial she has admitted that the facts are true.
17It is the Society’s submission that as of November 1, 2023, when the mother was brought to the hospital, formed and admitted until November 9, 2023, the child was at risk of harm, as he did not have adequate housing nor a caregiver to provide the necessities required. The Society acknowledges that the issue of inadequate housing relates to poverty and that this, in and of itself, is not a protection concern, but for the fact that it is a failure to provide the child with basic needs.
18Further, at the time of intervention the mother was not able to make decisions about the child as she was involuntarily detained at the hospital and the Society had no choice but to remove the child.
19It is the Society’s submission that section 74(2)(b)(i) does not require harm to have occurred, but rather there is a risk, and on November 1, 2023 those risks included being homeless, exposure to elements, unsanitary conditions, nutrition, and inherent instability with transiency, required the Society to intervene.
20Regarding a finding pursuant to section 74(2)(k), it is the Society’s submission that the mother was not in a position to care for the child as she was formed under the Mental Health Act and involuntarily held at the hospital. As such, no parent was available to exercise the rights of custody over the child and no adequate provisions for the child’s care and custody were made.
21The mother was not present to make any submissions, and the Office of the Children’s Lawyer did not oppose the finding as sought by the Society based on the facts set out in the request to admit.
22Amicus opposed the summary judgment motion on the basis that the Society did not seek leave to bring the motion, and no motions were permitted without leave of the trial judge as ordered at the trial management conference on June 16, 2025.
23Furthermore, the motion was served 12 days before trial and could have been brought well in advance of the eve of trial given that the facts being relied upon by the Society arise from the events of November 1, 2023 when the mother was evicted from her home and was involuntarily admitted.
24Amicus suggests that the court should be cautious as to whether the summary judgment motion should be permitted to proceed as it may not be a fair, just and equitable hearing to be utilized at this stage of the proceedings, that being on the eve of trial.
25In the alternative, amicus submits that if the court is prepared to hear the summary judgment motion, the Society has not established that there is no genuine issue for trial and that the Society has not presented trial worthy evidence for the court to consider.
26Amicus opposes the business records being utilized to support the finding in need of protection to the extent that the records contain hearsay and in some reports the records lack clarity of what is being relied upon, which once again, goes to the heart of fairness.
27Furthermore, there is no clear evidence from the business records submitted that the mother was suffering from a psychotic episode or that she was incapable of giving input on an alternate plan of care for the child due to her hospitalization.
28Amicus submits that there is simply no evidence that the mother was given any opportunity to provide input regarding the care of the child, especially in light of the fact that the records submitted in the request to admit state “Her affect was quite angry, but she was overall cooperative” and “she was notably upset, but not disruptive”.1 Other reports noted the mother as presenting as “calm, friendly, pleasant and engaged well in conversation”.2 The reports also note that the mother was concerned about the child’s whereabouts and him being in the care of the Society.
29Amicus accepts that the mother and the child were evicted on November 1, 2023. The mother was taken to the hospital and that the mother remained in hospital from November 1, 2023 to November 9, 2023. Amicus suggests that these bare facts do not give rise to a finding under 74(2)(b)(i) of the Act.
Analysis & Decision
30With respect to whether the motion for summary judgment regarding finding should proceed, at the time the motion was served, the matter was outstanding for just over 22 months. The matter had been adjourned to not one, but two prior running trial list sittings. The matter was considerably delayed, and the issue of finding should have been set down for a hearing by the court at an earlier stage.
31Notwithstanding, I agree that the motion was served on the eve of trial and that leave to proceed with the motion was not sought by the Society. It is highly prejudicial and unfair to a self-represented litigant, regardless of the fact that amicus is appointed, to have to navigate the child welfare system, prepare for trial and then on the eve of trial, be served with a summary judgment motion regarding one of the triable issues that was confirmed to proceed at the trial in the trial management conference in June 2025.
32That being said, in this particular case, the trial unfortunately could not proceed on the first day of the running trial list as anticipated due to unexpected illness. This is now the third time the matter was set to a running trial list sittings and not able to proceed.
33The paramount purpose of the Act is to promote the best interests, protection and well-being of children and this includes matters concluding so that children have some certainty and predictability in their lives. As such, it is in the best interests of the child and in the interest of justice that the matter be moved towards completion and that the summary judgment motion regarding the finding proceed.
34Regarding the Society’s use of the request to admit to make a finding that the child is in need of protection pursuant to section 74(2)(b)(i) and 74(2)(k), I agree with amicus’ submission that all of the documents attached to the request to admit are not simply to be accepted by the court and relied upon.
35A request to admit is a litigation tool which allows evidence to be admitted or rejected from the collection of documents tendered. It is still up to the court, as the gatekeeper, to determine the relevancy, reliability and what weight to attribute to each record.
36Simply listing the document or record in the request to admit and the sheer fact that the request to admit was not responded to by the other party, does not mean that the document or record is wholly admissible as evidence. The court has the right to reject portions of the documents, draw inferences from the records and determine what weight, if any to give the records.
37The test for a summary judgment motion to succeed is that there is no genuine issue requiring a trial. In the case at hand, with respect to the finding under section 74(2)(b)(i), the facts in the request to admit are minimal, however, they are significant given that nature of what occurred on November 1, 2023, that being the mother and the child being evicted from their home, the police being involved during the removal of the mother and child from the dwelling, the police bringing the mother to the hospital and the mother being involuntarily admitted to the hospital from November 1, 2023 to November 9, 2023.
38I agree that while being unhoused is not sufficient to reach the threshold of a finding of risk that a child is likely to suffer physical harm for failing to adequately care for, provide for supervise or protect the child, in this specific case, the eviction of the mother and the child, coupled with the mother’s unavailability to care for the child due to her involuntary hospitalization, in my view meets the threshold of risk that the child is likely to suffer harm and for a finding to be made under section 74(2)(b)(i) of the Act.
39However, I am not prepared to make a finding under 74(2)(k) that the child’s parent was unavailable to make adequate provisions for the child’s care as the purported evidence in the request to admit is unclear. Furthermore, the Society knew where the mother was, knew how to locate her and yet there is no evidence that the Society attempted to contact the mother to make any sort of plan with her or obtain input regarding the care of the child.
40While the mother may have been upset about the situation and the Society may have had some hesitation about obtaining input given the involuntary admission to the hospital, the Society had an obligation to meet with the mother and at a minimum attempt to see if they could obtain any input from her about the care and placement of the child. As such, I find that the Society has not met the threshold for a finding under 74(2)(k) of the Act.
41Given my decision with respect to the finding pursuant to section 74(2)(b)(i), the following facts shall support the finding:
(a) On November 1, 2023, L.R. was evicted from her apartment on Albert Street West, in Sault Ste. Marie, Ontario, where she resided with the child C.V.H.
(b) A Sheriff as well as Sault Ste. Marie Police Services attended the home and facilitated the eviction.
(c) L.R. and the child were removed from the apartment on November 1, 2023.
(d) On November 1, 2023, L.R. was transported by Sault Ste. Marie Police Services to the Sault Area Hospital where she attended with Nurse Sarah Albert, Crisis Intervention for an initial assessment.
(e) On November 1, 2023, L.R. received a follow up medical assessment by Dr. Natasha Ewert in the emergency department.
(f) On November 1, 2023, Dr. Ewert requested an opinion from Dr. Emmelee Marshall with respect to L.R.’s psychological presentation.
(g) On November 1, 2023, Dr. Ewert completed a Form 1, pursuant to the Mental Health Act and had the mother admitted, involuntarily, to the psychiatry floor for further assessment.
(h) While in the hospital Dr. Obadan prescribed the mother antipsychotic medication which the mother refused to take.
(i) On November 4, 2023, Dr. Obadan signed a Form 3 pursuant to the Mental Health Act seeking a capacity hearing to declare L.R. incompetent from making informed medical decisions.
(j) After ongoing assessment, the mother was deemed voluntary and capable of making treatment decisions.
(k) L.R. discharged herself from the hospital on November 9, 2023.
(l) On November 9, 2023 Dr. Obadan cancelled the capacity hearing.
(m) L.R. was not permitted to resume residing at her apartment on Albert Street West, in Sault Ste. Marie, Ontario.
Motion to Strike Pleadings
42The Society brought a further motion to strike the mother’s answer and plan of care dated December 5, 2023. The motion was personally served upon the mother on October 6, 2025, the day of the hearing of the summary judgment motion.
43The mother once again did not attend court on October 6, 2025 and the motion to dismiss the mother’s pleadings was set down for hearing on October 9, 2025. A replacement motion to strike pleadings was served upon the mother on October 7, 2025. The mother again did not attend court on October 9, 2025.
44It is the Society’s submission that the mother’s non-attendance at court on multiple appearances and failure to attend the trial amounts to a failure to obey a court order and a failure to follow the Family Law Rules. As such, the court has the authority to make an order under discretionary relief to strike the mother’s answer and other documents.
45The Society submits that the triggering event was the mother’s failure to file her evidence for trial in accordance with the trial management conference endorsement. As well as her failure to attend court since the end of August 2025, but in particular on the first day of trial on September 29, 2025 and the subsequent court appearances.
46The Society acknowledges that striking an answer is an extraordinary measure and should be used cautiously, but in this case, it is a method in which to deal with the case justly given the length of time set aside for trial. Striking the mother’s answer would significantly reduce the amount of time required for trial and would free-up court resources for other matters.
47The Office of the Children’s Lawyer took no position with respect to the motion by the Society to strike the mother’s answer and plan of care.
48Amicus opposes the striking of the mother’s answer and plan of care for failing to attend court on the basis that to do so would be to take a very narrow view of the period of time from August 2025 to September 2025 in comparison to the whole case.
49Further, the events surrounding the first day of trial were such that all counsel and the mother were notified that the matter would not likely be able to proceed due to illness. As such, it is a reasonable inference to draw that the mother did not think that the matter was proceeding on September 29, 2025.
50It is amicus’ position that striking the mother’s answer in whole or in part is a drastic remedy given that the mother has participated in the proceeding for 20 months.
Analysis & Decision
51Rule 1(8)(c) and Rule 1(8.1) of the Family Law Rules state:
Failure to obey order
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
Failure to follow rules
(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g).
52The primary purpose of the Family Law Rules is to deal with cases justly, which ensures that the procedure is fair to all parties; saving expense and time; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate court resources to the case while taking account of the need to give resources to other cases.
53Striking a party’s pleadings is a remedy of last resort and reserved for exceptional cases where no other remedy would suffice. The Society submits that the triggering event is the mother failing to file her trial affidavit and subsequently failing to attend at court from August 27, 2025 to October 9, 2025.
54From November 2023 to August 27, 2025 the mother consistently attended court to address this matter. Amicus became involved in the spring of 2025 and the mother continued to attend court regularly. The first date that the mother did not attend court was on August 27, 2025 when she was served with a motion by the Society regarding a procedural aspect of the trial, to have a professional witness attend remotely.
55Thereafter the Society served the summary judgment motion returnable on September 17, 2025, just 12 days before trial. Then, the weekend before the commencement of the first day of trial, emails were exchanged which indicated that counsel is not able to attend court in person due to illness. A reasonable conclusion on the part of the mother is that the matter was not going to proceed on the first day of trial.
56Again, the mother is self represented, she is attempting to navigate the child welfare system with no legal training, background or expertise. This most certainly is a stressful and emotional time for her given the disposition the Society is seeking, which is extended Society care for the child.
57In advance of the trial the mother would have been served with potentially 12 affidavits from the Society’s witnesses of their evidence in chief; the request to admit; a document brief and at least two motions in late August and early September as well as two further motions during the course of the trial sittings regarding the striking of her pleadings, not to mention email correspondence.
58It is reasonable to conclude that this level of documentation being exchanged and served may be typical for counsel on the eve of a lengthy trial to anticipate, but can be overwhelming to lay persons such as the mother. As such, I accept amicus’ submission that in looking at this case over the past 22 months, the mother’s lack of commitment to attending court from August 2025 to October 2025 does not accord with her pattern of consistently attending court from November 2023 to August 2025.
59Further, the mother was never directed by the court to attend in person nor was she summonsed on any of the subsequent court dates of October 1, 2025; October 3, 2025; October 6, 2025 and October 9, 2025 to attend in person.
60As such, I am not prepared to strike the mother’s answer and plan of care for failing to obey an order or failing to follow the Family Law Rules based on not attending court. In addition, I am not prepared to strike the mother’s answer and plan of care for failing to file her affidavit of her examination in chief which was to be served by September 19, 2025 given the number of motions that were served by the Society regarding this matter at the last minutes and without leave of the court.
61Given the above, the Society’s motion to strike the mother’s pleadings is dismissed.
Released: November 5, 2025
Justice H.A. Mendes
Ontario Court of Justice