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 Toronto Applicant
— AND —
BK Respondent
-and –
HG Respondent
Before Justice W. Kapurura
Heard on February 10, 2026
Reasons for Judgment released on March 2, 2026
Lucia Spampinato counsel for the applicant society
Lorne Glass counsel for the respondent, BK
Gabrielle Pop-Lazic counsel for the respondent, HG
JUSTICE W. KAPURURA:
Part One – Introduction
1The Children’s Aid Society of Toronto (the society) has brought a motion within its protection application seeking to place the children N (aged 7) and S (aged 5), in the temporary care of the respondent BK (the mother), subject to terms of supervision. The respondent parents are separated.
2Protection concerns relate to the risk of physical and emotional harm associated with significant post-separation conflict.
3The children were placed in the temporary care of the mother (without prejudice) on October 24, 2025, pending the hearing of this motion.
4The Society seeks a temporary order granting the respondent, HG (the father), supervised access at its discretion, with a minimum of two visits per week (in person), including discretion over the frequency, duration, location, supervisor, and level of supervision.
5The mother supports the society’s position regarding temporary placement. She, however, disagrees with its position on the father’s access. She seeks an order that his access be supervised and occur virtually.
6The father seeks an order returning the children to the pre-intervention shared parenting arrangement, on a 2‑2‑3 schedule.
7The father and the mother filed materials and were both legally represented at this motion.
8The court must determine the following issues:
a. Who had pre-intervention charge of the children?
b. If the court finds that the father and the mother had pre-intervention charge of the children, it must determine:
i. Whether there are reasonable grounds to believe that there is a real possibility that, if the children are returned to their joint care, it is more probable than not that they will suffer harm.
ii. Whether the children can be adequately protected by terms or conditions of a temporary supervision order while in their joint care.
c. If the court finds that the children cannot be adequately protected by terms or conditions of temporary supervision while in the parents’ joint care, it must determine:
i. Who is better able to provide for the children’s needs, having regard to the protection concerns raised by the society?
ii. Who should the children be placed with?
d. What terms of access are in the best interests of the children?
Part Two – Background facts
9The mother is 49, and the father is 56.
10The parents married on September 6, 2014. They initially lived separate and apart from April 24, 2021, until July 2021. They separated permanently in September 2022.
11Both parents are medical doctors. On May 24, 2019, the father’s medical licence was suspended temporarily. On April 13, 2021, it was revoked. He unsuccessfully appealed to the Ontario Divisional Court.
12In 2022, the father commenced an application in the Superior Court of Justice in Toronto, seeking orders regarding parenting time and decision-making responsibility.
13On November 7, 2022, Justice Faieta of the Superior Court of Justice made a temporary order which included the following terms:
a. The parents shall have joint decision-making responsibility for the children.
b. The children shall reside primarily with the mother.
c. The father shall have parenting time with the children on Tuesdays and Thursdays from 4:00 p.m. to 7:00 p.m., and on Saturdays from 10:00 a.m. to 6:00 p.m.
d. The father’s parenting time shall be supervised by a professional third-party supervision service.
e. Howard Hurwitz, M.S.W. shall be appointed as section 30 assessor pursuant to section 30 of the Children’s Law Reform Act.
14On March 3, 2023, Howard Hurwitz released a report1 of an assessment he conducted pursuant to section 30 of the Children’s Law Reform Act. Several recommendations were made in the section 30 assessment report, including the following:
f. The children should reside primarily with the mother.
g. The father’s parenting time should be professionally supervised.
15On August 30, 2023, Justice Kristjanson varied the November 7, 2022, temporary order by inserting a clause that would allow the parties to agree, in writing, to the non-supervision of the father’s parenting time.
16The parents were scheduled to proceed to a domestic trial in the Superior Court of Justice in the fall of 2023. They both agreed to vacate the trial dates.
17In December 2024, the parents agreed to a shared parenting arrangement on a 2-2-3 schedule.
18The parents continued to exercise a shared parenting schedule until the temporary (without prejudice) order of October 24, 2025, which placed both children in the mother’s care pending the hearing of this motion.
19This motion was initially scheduled for December 12, 2025.
20On December 6, 2025, the father contacted the police and made several allegations against the mother. He reported eight separate assaults, two separate assaults with a weapon (scooter and metal water bottle), and three separate incidents in the timeframe of August 23, 2023, to December 1, 2025.
21The matter was adjourned, on consent, to February 10, 2026, to allow the parties to obtain more information regarding the police investigation.
22The police investigation is still pending.
Part Three – The parties’ evidence
3.1 – The society
23The society’s evidence is summarized as follows:
24On April 26, 2021, the father was arrested and charged with assault against the mother. Peel Children’s Aid Society (Peel CAS) investigated and closed its file as no concerns were verified.
25The mother called the society on March 23, 2022, reporting a domestic incident that had resulted in the father being arrested and charged. During the society’s investigation, the father alleged that the mother was physically abusive towards the children. The Suspected Child Abuse and Neglect Clinic (SCAN) at the Hospital for Sick Children completed one photo review for the society, and deemed the injuries ‘non-specific.’
26During the society’s initial involvement, the father withheld one or both children on three occasions.
27On June 16, 2025, the society screening worker received a call from the mother advising that both children had made allegations of physical abuse against their father. The mother also stated that the father had called the police on her after they both attended the children’s school for pick up. She asserted that it was her pick-up day.
28Ms. Cassandra Cherniak, the society’s family service worker at the time, met with the mother on June 19, 2025, in her home. The mother stated that:
a. The father hits the children.
b. The father was dictating the parenting schedule and would threaten to call the police if she did not comply.
c. She had requested the father’s consent for the children to receive therapy, but he declined.
29On June 20, 2025, Ms. Cherniak met privately with N in the mother’s home. N provided the following details:
a. He had no concerns regarding his time with the mother.
b. If the children get into trouble while in their father’s care, he gives them three warnings and then begins yelling. The father hits and slaps S, who cries when the father is yelling. The father uses an open hand and usually strikes the buttocks. It is painful, and the skin remains red for one to two hours afterward. This occurs approximately once a month. S is struck every day, and with greater force.
c. If he were to speak to his father about his concerns, the father would get angry.
d. His paternal grandparents were present when the children were being hit but did not intervene.
e. The father screams at S when S is not eating, and S cries.
f. The father tells the children that he hates their mother and wishes she were different.
g. He was worried that the information he disclosed would be shared with his father, as he believed his father would hit him harder if he found out.
30On June 20, 2025, Ms. Cherniak met privately with S in the mother’s home, and he disclosed the following:
a. His mother hits him a little with her hands on his cheeks and forehead. The last time she hit him was probably on his leg.
b. His father hits him a lot, and he cries. He hits his leg, face, and arm with an open hand. He feels sad.
c. The paternal grandparents are present when he is hit.
d. The most serious incident occurred in the bedroom, where his father struck him in the face. He cried, and his father hit him again.
e. His mother does not say anything about the father.
f. He wants the slapping to stop. His father slaps him when he does not eat.
31On July 7, 2025, the mother informed the society that the father had withheld the children for seven days. He had also taken S to the Emergency Department at the Hospital for Sick Children. She believed he did so to justify withholding. The mother reported that the father was yelling and screaming at her, calling her an idiot.
32On July 9, 2025, the father told Ms. Cherniak that he records and documents everything. He stated that he had substantial evidence of what the mother does to the children.
33On July 11, 2025, Ms. Cherniak met the father at a food market, as he had suggested. He recorded her during their conversation. During the conversation, the father:
a. Stated that he had contacted the police on May 21, 2025, after the mother tried to pick up the children during his parenting time.
b. Denied using physical discipline on the children.
c. Accused the mother of coaching the children.
d. Accused the mother of hitting the children.
e. Stated that everything the mother says is a lie.
34On July 15, 2025, Ms. Cherniak met the father at the food market. He recorded her during the conversation. He stated that he always records his time with the children and sends the recordings to a service that holds and encrypts them. He spoke of hiring private detectives to observe him and the children in public or to take pictures of them, so there is proof if there are ever any questions. During the meeting, he played audio recordings, all taken on May 31, 2025, in which the children were making allegations against their mother. In the recordings, he would ask the children questions about their mother.
35On July 25, 2025, Ms. Cherniak received a call from Toronto Police Services, P.C. Broni, advising that the father had called the police and reported that the mother had failed to drop off the children at his condo to attend a wedding that day. He was worried about their whereabouts. However, the mother had followed the schedule by dropping them off at school. The mother provided Ms. Cherniak with screenshots of her conversation with the father, which confirmed that she had informed him that the children were at school and camp.
36On July 31, 2025, Ms. Cherniak met with N privately while the children were in the father’s care. He disclosed the following:
a. His father had asked him to tell Ms. Cherniak that he does not hit the children anymore.
b. The father stopped saying negative things about his mother. His mother never says things about his father.
c. His mother never hits him, and had not seen his mother it S.
37On July 31, 2025, Ms. Cherniak met with S privately while the children were in the father’s care. He disclosed the following:
a. At one time, his father said bad words about his mother while on vacation.
b. His mother pulls his hair, pulls his ears and hits him.
c. His father still hits him. He had hit him on the forehead with an open hand, and he felt sad.
d. Later in the meeting, S said that his father does not hit him. When questioned about his consistency, S said his brain was making him change, and he forgot. He then spoke of his mother hitting him the previous Sunday.
38On August 25, 2025, the mother informed the society that the father had withheld the children from her for the third time since May 2025.
39On August 25, 2025, Ms. Cherniak met privately with S at the mother’s home. S disclosed that the father continued to hit him. N told Ms. Cherniak that his father had stopped hitting, and he had not observed the father hitting S.
40On September 22, 2025, Ms. Cherniak met privately with the children at the mother’s home. N disclosed that he had seen his father yelling at a woman after a medical appointment and that he had fought with his mother. He reported feeling frightened. S told Ms. Cherniak that he was now saying there was no hitting in the father’s home because he did not want to get in trouble with his father.
41On December 7, 2025, the Society received a referral from Toronto Police Service indicating that the father had reported several allegations of assault and sexual assault against the mother, covering the period from August 23, 2023, to December 1, 2025.
42On December 4, 2025, S disclosed that his father had whispered in his ear, ‘fucking shit mama’ during a visit. N stated that his father used to tell the children to say they did not like their mother.
43On December 11, 2025, Ms. Amanda Lee-Parker, the current family service worker, met privately with S at the society’s offices, and he disclosed the following:
a. He did not feel comfortable visiting the father at his home because the father would yell at him and say “fucking shit mama” and other inappropriate words. When he was asked the same question again, he stated that he did not want to visit the father at his home as he was concerned about hitting, yelling or screaming.
b. His father keeps saying “fucking shit mama” and it makes him feel sad because he loves his mother.
c. He saw his father’s vehicle at his school and did not know the reason his father was there. S questioned Ms. Lee-Parker if the father was going to take him in his vehicle.
d. He had never observed his mother hitting his father.
e. His father is so loud when he yells and says ‘idiot, fucking shit, fuck.’ This did not occur during supervised visits, except when the father whispered.
f. He had seen his father push his mother at the doctor’s office.
44On December 11, 2025, Ms. Amanda Lee-Parker also met privately with N at the society’s offices, and he provided the following details:
a. He was enjoying his visits with his father at the society’s office. He stated that a worker at the office was on duty to ensure there was no hitting.
b. Unprompted, N stated that his father had not whispered anything to him in his ear.
c. He never observed his parents throwing things at each other or at him and his brother.
d. When asked about the worst time he remembered when his parents had an argument, N described an incident at the doctor’s office. He stated that his father asked his mother to leave the doctor’s office, but she refused as she wanted to be present for the medical appointment. His father then pushed her out of the room.
3.2 – The mother
45The mother’s evidence can be summarized as follows:
a. The father was physically and verbally abusive during cohabitation. She was the victim of frequent episodes of family violence, much of which was witnessed by the children.
b. The father manipulated her into dropping the first set of criminal charges against him in April 2021. She told the Crown that she wanted to reconcile with him.
c. The parents separated permanently in March 2022 after the father was charged with assault, uttering death threats and uttering a threat to cause bodily harm against her.
d. The father has taken the children to the doctor or to the hospital, falsely claiming the children were ill or had injuries, in an attempt to show that he is the better parent.
e. On April 12, 2022, the father removed N from school, claiming he had COVID, which was untrue.
f. On May 18, 2022, the father, with the assistance of his sister, locked an access supervisor from Renew Supervision Services out of his apartment while she was at his residence supervising his visit pursuant to the order of Justice Faieta dated April 14, 2022. To exacerbate his conduct, he withheld the children until he was ordered by Justice Faieta to return them on June 4, 2022.
g. The father has taken the children to the emergency room at the Hospital for Sick Children and left without being seen by a physician.
h. The father caused the children to undergo examinations at the SCAN program based on false claims that they had injuries caused by her. She attached a SCAN report from May 2022 confirming there was no evidence of physical abuse.
i. A few days after the May 2022 SCAN report, the father withheld the children from her, and made further allegations to SCAN against her.
j. The father’s criminal charges from March 2022 were withdrawn by the Crown on January 11, 2023, after the father completed an anger management program. She then agreed to vacate the 2023 trial dates for the parties' family matter that was before the Superior Court of Justice.
k. The father would threaten to call the police to control her in agreeing to his preferred parenting schedule.
l. In late 2024, she agreed to a shared parenting schedule. However, it turned out to be the worst decision she made regarding the children.
m. In April 2025, she requested the father’s consent to allow the children to receive therapy to help them deal with their emotional challenges. He refused to provide his consent.
n. On May 8, 2025, the father caused S to undergo an examination by a urologist based on his belief that S was experiencing pain when urinating. S denied having such pain. The urologist indicated that S was normal following an examination.
o. The father withheld the children from May 20, 2025, to May 28, 2025. He called 911 and falsely claimed that I was trying to breach a court order.
p. The father withheld the children from June 27, 2025, to July 4, 2025.
q. The father withheld the children from August 27, 2025, to September 3, 2025.
r. On the following dates, the father caused the children to have at least six unnecessary medical appointments with doctors: September 3, 4, 12, 17, 19 and October 15, 2025.
s. On July 25, 2025, the father called 911 claiming that he did not know the whereabouts of the children. This was after she had clearly advised him that they were at school and camp.
t. On October 24, 2025, the father was ordered to have supervised access pending the hearing of this motion. His access was being supervised at the society’s offices. However, he has been physically present at S’s school every time the mother has gone to pick up S to take him to the society’s offices. She provided photographs of the father’s vehicle at the child’s school.
u. She is aware that the father hits the children. On one occasion, she was on vacation with them. She arranged a video call with the father. He got upset during the call and began swearing and threatening her.
v. The children are now hitting each other a lot. They are also hitting her.
w. In December 2025, the father hacked into her cellphone and viewed private information, photographs and emails, including emails between her and one of her lawyers.
x. The children’s teachers recently reported seeing an improvement in their performance at school (following the October 2025 temporary order, which placed them in her care).
3.3 – The father
46The father’s evidence can be summarized as follows:
a. He accuses the society of seeking to rely on statements that support the mother’s accusations against him, and ignoring those that raise doubts about the veracity of those claims.
b. In 2021, the society became involved after the mother accused him of assault. The file was closed and all eight criminal charges he faced were withdrawn by the Crown.
c. He and the mother have been involved in high-conflict matrimonial litigation since their separation in 2022.
d. He accuses the mother of continuing the deception that started following their separation.
e. The mother has made numerous unsubstantiated allegations against him in an effort to gain a litigation advantage and to minimize his involvement in the children’s lives.
f. With respect to his children:
i. He never posed any risk to the children.
ii. He has never been physically abusive to them.
iii. They have never expressed any reluctance to be in his care.
iv. He has never asked them whether they like their mother or told them that they should not.
v. There is no evidence of low self-esteem or self-confidence in the children. There has also not been any attention-seeking or aggressive behaviour from them.
vi. They are doing well in school.
vii. He disagreed with therapy for the children as he does not think it would benefit them. They do not exhibit concerning behaviours and are well-adjusted socially.
viii. They have been put through a lot in their young lives, including numerous interviews with professionals.
ix. The only disagreements around the children relate to the parenting schedule, particularly his parenting time during holidays.
x. He and the mother have jointly attended the children’s medical appointments since April of 2023. The only exception is when the mother took the children to a medical appointment without informing him in October 2025.
g. Previous child protection involvement was initiated by either the mother or someone close to her.
h. Around June 2022, the society became involved. Its investigation did not verify any child protection concerns. The file was closed. The related criminal charges against him by the mother were also withdrawn by the Crown.
i. While he admits that some of his behaviour in the period immediately following the parents’ separation showed poor judgment, he was in a state of emotional panic and afraid of losing his children. He was also suffering from unresolved grief over the death of his first wife.
j. He has successfully undergone treatment for depression and has been followed by his doctor and psychiatrist. He was on antidepressant medication for one year, and stopped on July 15, 2024, at his psychiatrist’s recommendation. He has remained stable.
k. The parents’ domestic trial was vacated in 2023 by mutual agreement. Justice Faieta’s previous order required the father’s parenting time to be supervised. However, both parents had breached the order by facilitating unsupervised visits.
l. The children have enjoyed 2-2-3 shared parenting schedule since December 2024. The parents continued to negotiate further adjustments to the parenting arrangements, without coercion.
m. The current opening by the society was initiated by the mother.
n. He accuses the mother of fabricating her allegations of withholding against him.
o. He called the police on May 20, 2025, reporting that the mother was not picking up the children on her scheduled day, and requested their enforcement of the parenting arrangements.
p. He accuses the mother of being insincere. He accuses her of being inconsistent by continuing to make allegations against him to society, while at the same time allowing him to travel with the children.
q. He denies making any derogatory comments about the mother to the children during his current supervised. His visits have, in fact, gone well, and the children are happy to see him.
r. He accuses the society of failing to properly investigate all issues relating to the family.
s. The police are still investigating his allegations against the mother.
Part Four – Legal considerations for placement on a temporary care and custody hearing
47The legal test for the court to apply on a temporary care and custody motion is set out in subsections 94 (2), (4), (5) and (11) of the Child, Youth and Family Services Act, 2017 (the Act) that read as follows:
94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
(11) Before making an order under subsection (2), the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.
48The onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the child is returned to a pre-intervention caregiver, it is more probable than not that she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms or conditions of a temporary supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the society has to meet.
49In Children’s Aid Society of Toronto v. O.G., 2025 ONCJ 363, Justice S.B. Sherr noted that when a child was in the joint care of the parents before society intervention under Part V of the Act, the court cannot make an order under clause 94 (2) (c) of the Act (placing the child solely with one parent), unless the society meets the legal test set out in subsection 94 (4) of the Act.
50A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act). See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
51The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.
52Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at paragraph 18; CAS of the Regional Municipality of Waterloo v. S.S.H., 2019 ONSC 5365.
53The Divisional Court has held that a society seeking an order for temporary society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies society intervention. See: L.D. v. Durham Children’s Aid Society and R.L. and M.L., [2005] O.J. No. 5050 (Ont. Div. Ct.). The burden on the society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care. See: CCAS of Toronto v. M.L.R. 2011 ONCJ 652; The Children’s Aid Society of Ottawa v. S.G., 2021 ONSC 2260.
Part Five – Who had charge of the children?
54The Act gives priority under clauses 94(2)(a) and 94(2)(b) to a person who had charge of the child immediately before intervention under Part V.
55The mother asserted that she had charge of the children, relying on the Superior Court of Justice’s temporary order dated November 7, 2022, which granted her primary residence of the children and required the father’s parenting time to be supervised.
56The society and the father maintained that, prior to the society’s intervention, both parents had charge of the children as they were exercising a shared parenting schedule, which had in place for about ten months.
57The term “charge” is not defined in the Act.
58In Children’s Aid Society of Algoma v. G.(T.) (para 15), Justice J. Kukurin stated that “charge” has a connotation of authority and responsibility. “Charge” of a child suggests some established relationship, not something transient or temporary.
59In Children’s Aid Society of Toronto v. A.(S.), 2008 ONCJ 348 (para 48), Justice R. Spence stated that there clearly is a difference between the meaning of “custody” and “charge”. There could be many instances where one person has custody of a child, but another person has “charge” of that child. In the same decision, Justice Spence also noted (para 12) that the question of who had “charge” of the child is not determined by which person had actual physical or de facto custody of the child at the time of intervention.
60In CCAS of Toronto v. W.I., [2014] ONCJ 620, a child lived with the mother and the society told the mother that it would remove the child if the child was not placed with the father. After the child was transferred to the father’s care, the society then delayed two months in bringing the case to court. The court found that both parents had charge of the child and the mother should not lose her status due to the society’s delay.
61The test in subsection 94 (2) is designed to set up a rigorous standard for society intervention in the life of a person who had charge of a child. The court does not and should not lightly eliminate their subsection 94 (2) rights. See: Children’s Aid Society of Toronto v. C.S. and K.J., 2015 ONCJ 111.
62The court should be cautious in taking away a person’s rights under subsection 94 (2) of the Act. See Catholic Children’s Aid Society of Toronto v. W.I., 2014 ONCJ 62 (para 43).
63In this case, both parents acknowledged that they had been following a shared 2‑2‑3 parenting schedule from December 2024 until October 24, 2025, when the court issued a temporary, without‑prejudice order placing the children in the mother’s care pending the hearing of this motion.
64The court finds that both parents had charge of the children prior to the society’s intervention. Each maintained a meaningful and established parenting relationship through the shared schedule in place for ten months. During this period, both parents were aware of the Superior Court of Justice's temporary order granting primary residence to the mother, yet they chose to continue exercising a 2-2-3 shared parenting arrangement. They both had shared responsibility towards the children during that period.
Part Five – Analysis on temporary placement of the children
5.1 – Are there reasonable grounds to believe that there is a real possibility that, if the children are returned to the joint care of the parents, it is more probable than not that they will suffer harm?
65The society’s protection concerns relate to the risk of physical and emotional harm associated with significant post-separation conflict.
66Both parents acknowledge that their parenting relationship has been characterized by significant conflict. In his materials, the father states that he and the mother have been involved in high-conflict matrimonial litigation since their separation in 2022.
67The evidence filed by the society and the mother contains numerous examples of parental conflict, reports of the parents’ use of physical discipline (particularly the father), and the resulting impact on the children.
68The evidence before the court at this interim stage raises the following concerns:
a. The father has repeatedly used physical discipline toward the children.
b. The father frequently yells at and intimidates the children.
c. The mother may also have used physical discipline toward the children.
d. The children’s attempts to retract some of their earlier disclosures regarding the father’s physical discipline further illustrate the complexity of the family dynamics.
e. The children express fear of their father.
f. Members of the paternal extended family have not acted as protective supports for the children while in their father’s care.
g. The children are reluctant to attend access visits in the father’s home and report feeling safer in the current supervised setting.
h. The father has withheld the children on multiple occasions.
69The conduct of the father towards the mother and the children, as reflected in the evidence provided at this interim stage, raises additional concerns relating to family violence:
a. On December 11, 2025, in separate interviews, each child told Ms. Lee-Parker that they had observed their father pushing their mother at the doctor’s office.
b. The children have made multiple reports regarding the father’s use of physical discipline. On June 20, 2025, S disclosed to Ms. Cherniak that the most serious incident he recalled occurred in the bedroom at the father’s home, where the father struck him in the face. S reported that he cried, and his father struck him a second time.
c. The evidence supports the mother’s position that the father has engaged in coercive and controlling behaviour, for the following reasons:
i. He has threatened to call the police when the mother does not accede to his parenting-related demands. He admits in his materials that he contacted the police on May 20, 2025, reporting that the mother was not picking up the children on her scheduled day, and requested their enforcement of the parenting arrangements.
ii. The children have reported being asked to say that they hate their mother. On December 11, 2025, S stated that he did not feel comfortable having access at the father’s home because the father repeatedly referred to the mother as “fucking shit mama,” which made S feel sad, as he loves his mother.
iii. On July 9, 2025, the father informed Ms. Cherniak that he “records and documents everything.” It is to be noted that the mother also recorded the father’s call with their father.
iv. On July 15, 2025, Ms. Cherniak met the father at the food market. During the meeting, he played audio recordings, all taken on May 31, 2025, in which the children were making allegations against their mother. In the recordings, he would ask the children questions about their mother.
v. The father stated that he always records his time with the children and sends the recordings to a service that holds and encrypts them. He spoke of hiring private detectives to observe him and the children in public or to take pictures of them, so there is proof if there are ever any questions.
vi. What is striking is that on July 11 and 15, 2025, he recorded his meeting with Ms. Cherniak. In Hameed v. Hameed, 2006 ONCJ 274, Justice S.B. Sherr stated that:
11… There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.
vii. This motion for temporary care and custody was initially scheduled for December 12, 2025, but was later adjourned. On December 6, 2025, the father contacted the police and made several allegations against the mother, including some dating back to August 23, 2023. The timing, six days before a contested temporary care motion, may be viewed as supporting the mother’s position that he uses police and other professionals to further his objectives.
viii. On October 24, 2025, the court issued a temporary order placing the children in the mother’s care pending this motion, with the father’s access to be supervised. Despite this, the mother reports that he has repeatedly attended S.’s school during the pickup time. She provided photographs of his vehicle on school property. She further reports that on November 25, 2025, he drove his vehicle in front of hers as she exited the school parking lot, causing distress to S.
He was fully aware that his contact with the children was to be supervised. Despite this, he deliberately attended the children’s school during pickup times and even signalled his presence to the mother by driving out of the parking lot ahead of her. His conduct in this regard is egregious. It is inconsistent with the spirit of the October 24, 2025 temporary order.
It is trite to say that an order is not a suggestion and that compliance is not optional. Further, non-compliance must have consequences. Protection of the integrity of the administration of justice is at stake if a litigant willfully disobeys a court order. See Dumont v. Lucescu, 2015 ONSC 494, para 43.
The father is being put on notice that if there is more evidence of intimidating tactics, the court may consider whether a restraining order is appropriate.
70On page 111 of his section 30 assessment dated March 3, 2023, Howard Hurwitz identified several “worrisome factors” arising from the assessment. Notably, the society’s independent investigation has confirmed that these factors persist. The factors identified by Howard Hurwitz are as follows:
a. The father’s refusal to work cooperatively with the mother and his efforts at actively undermining her parenting role.
b. The father makes decisions that are contrary to the children’s best interests.
c. The father creates unsafe situations for the children.
d. The father withheld the children from the mother on several occasions.
e. The father is critical of the mother’s provision of day-to-day parenting and medical care decisions when this is contradicted by all the medical professionals involved with their family.
f. Chronic and repeated allegations of abuse by the father against the mother.
g. Constantly involving the society and the police as part of the repeated allegations dynamic. Consequently, the children are being interviewed unnecessarily only to satisfy the father’s determination to annihilate the mother’s involvement in the children’s lives.
h. Many of the medical professionals and daycare staff who are working with the children and both parents have cited difficulties with the father and his antagonistic, combative approach with them. He often threatens legal action.
i. The father takes no responsibility for his behaviour and blames the mother whenever events occur.
71The court is satisfied that there are reasonable grounds to believe that there is a real possibility that, if the children are returned to the joint care of the parents, it is more probable than not that they will suffer harm. The society has met its onus under the first part of the two-part test.
5.2: Can the children be adequately protected by terms or conditions of a temporary supervision order while in the joint care of the parents?
72The court is satisfied that the society has met its onus under the second part of the two-part test. Supervision terms would be inadequate to protect the children, for the following reasons:
a. There are significant risks associated with the father’s plan, including the risk that the children will be subjected to physical and emotional harm and exposure to further conflict between their parents.
b. The children appear to have endured significant instability due to the continued conflict between their parents.
c. The father has exhibited poor judgment.
d. The father’s negative view of the mother appears to have impaired his ability to co-parent.
e. The evidence supports the mother’s position that the father is undermining her role as a parent.
f. There are safety concerns with respect to both the children and their mother. A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: Armstrong v. Coupland, 2023 ONSC 5451; N.D. v. R.K., 2020 ONCJ 266.
g. There are concerns about the father’s ability to cooperate with the society. The society was prompted to initiate a protection application after the father refused to work voluntarily with the society.
h. There are ongoing concerns regarding the father’s willingness to comply with court-ordered terms. Both the society and the mother allege that he has withheld the children on multiple occasions. According to the mother’s evidence, on May 18, 2022, the father, assisted by his sister, prevented an access supervisor from Renew Supervision Services from entering his apartment while she was present to supervise his parenting time pursuant to the order of Justice Faieta dated April 14, 2022. More recently, he has attended the children’s school during pick-up times, despite knowing that his access to the children must be supervised.
In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201; Seyad v. Pathan, 2022 ONCJ 501; Mulik v. McFarlane, 2023 ONCJ 148.
i. There is a history of concerning behaviour by the father. On November 8, 2022, the father received a notice of violation of a parent code of conduct sent by S’s school, which stated that he had engaged in the following conduct:
Aggressive conduct towards staff.
Sending unnecessary and repetitive emails, often with aggressive substance and combative tone.
Providing the school with false and misleading information about his children and their mother.
j. There are concerns that the father will not be able to facilitate a positive relationship between the children and their mother.
k. The court is concerned about the father’s manipulation of the children. On July 31, 2025, N told Ms. Cherniak that his father had asked him to tell Ms. Cherniak that he (the father) does not hit the children anymore.
l. The father appears to have acted in a manipulative manner regarding the parties’ parenting arrangements.
m. Conflict between the parents appears not to have abated.
n. The father appears to be externalizing responsibility for the parenting challenges. He lacks insight into his behaviour.
o. The father has refused to have the children attend therapy. He does not see the need for them to attend therapy, despite his admission that there is high conflict between the parents. The children require therapy to help them deal with the challenges they have been through. In Children’s Aid Society of the Districts of Sudbury and Manitoulin v. T.S., 2009 ONCJ 70, the court noted in paragraph 75 that family violence embraces a range of behaviour that includes mental and emotional abuse, with implications that spill over to children. The court went on to state that the environment in such households is frequently chaotic, volatile, escalating, charged and degrading, and the exposure of children to such an environment on a pattern basis is devastating to their development.
p. The most significant issue in this case appears to be the presence of family violence and ongoing conflict. The evidence supports the society’s allegation that the children, as well as their mother, have suffered and have been exposed to family violence. The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22, made the following observations about family violence:
i. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
ii. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
iii. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).
q. The post-separation conflict has continued for three years. The children have suffered for too long. Enough is enough.
73Therefore, the court finds that the society has met its onus on both parts of the two-part test for not returning the children to the joint care of the parents.
5.3 – Who is better able to provide for the children’s needs, having regard to the protection concerns raised by the society?
74In reviewing the best interest factors under subsection 74(3) of the Act, the court makes the following findings (at this interim stage):
a. The nature and scope of the concerns raised regarding the father are substantial and deeply troubling.
b. The mother is better able to meet the physical, mental, and emotional needs of the children than the father.
c. The mother is able to protect the children.
d. The mother is able to work cooperatively with the society to address any protection concerns and mitigate any risk of harm to the children.
75For the reasons provided above, the court finds that the father’s plan at this interim stage is not in the child’s best interests.
76The children shall be placed in the temporary care and custody of the mother pursuant to clause 94(2)(b) of the Act, subject to the supervision of the society. The supervision terms suggested by the society in its motion are appropriate and will be ordered.
77The court will add a supervision term prohibiting parents from recording their interactions with each other and with the children. These recordings are escalating the conflict.
Part Six – Access
78Subsection 94 (8) of the Act provides that where an order is made under clause (c) or (d) of subsection 94 (2), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the Act. See: JFCS v. H.B.S. [2012], O.J. No. 5055 (OCJ).
79The party seeking to impose restrictions on a parent’s contact or access to a child must demonstrate that it is necessary and the limit is proportionate to the risk. Any such terms should be child and harm specific and be supported on the evidence. See: Children’s Aid Society of Brant v. A.C., 2020 ONCJ 505.
80The society proposes that the father’s access occur at least twice per week, supervised, with the location, duration, and level of supervision to be determined at the society’s discretion.
81The mother seeks an order that the father’s access remain supervised, and that the visits occur virtually.
82In addressing the issue of access, the court relies on its analysis under Part Five above regarding the parenting challenges and the need to protect the children.
83The society’s evidence is that the children have benefited from their current supervised visits at the society’s offices. The evidence also establishes that the children feel safe due to the supervision provided during these visits.
84The court will maintain the current access arrangement, with visits occurring at least twice per week, as this approach appears to mitigate the protection concerns while ensuring that the father continues to have meaningful contact with the children.
Part Seven – The next steps
85The court must set out clear expectations for the parents regarding the steps they must take to address the challenges highlighted above.
86The court understands that the father loves his children.
87It is also important that the father understands the long-term consequences of failing to address his behaviour toward the mother and the children.
88The court will follow the approach taken by this court in Catholic Children’s Aid Society of Toronto v. A.M., 2024 ONCJ 235, which provided a roadmap for a parent to address protection concerns.
89In his section 30 assessment, Howard Hurwitz made the following recommendation, which remains relevant, and which the father must take into consideration:
The father attend 1-1 counselling with a therapist skilled in working with high-conflict families. The focus of this counselling is to assist the father in developing changes in his thinking and behaviour regarding marginalizing the mother’s role as the mother of their children. To do this, he also needs to examine his role in the historic and current parenting difficulties in their relationship. In addition, the father needs to genuinely accept responsibility for these difficulties rather than blaming the mother.
90Howard Hurwitz suggested the names of therapists in the report.
91The mother should consider engaging in therapy, together with the children, focused on addressing post‑separation conflict, safety planning, and the impact of family violence on the children.
92It is hoped that the parties will consider taking the above steps, even if they do not believe they are necessary.
Part Seven – Conclusion
93A temporary order will go on the following terms:
a. The children are placed in the temporary care and custody of the mother, subject to the supervision of the society.
b. Terms of supervision to go in accordance with subparagraphs 1(a) to 1(o) of the society’s notice of motion.
c. The father’s access shall occur at a minimum of twice per week (in-person), supervised by the Children’s Aid Society of Toronto. The society shall have discretion regarding scheduling, duration, and the level of supervision.
d. Neither parent shall audio or video record their interactions with the children, or with the other parent.
94The court thanks counsel for their thorough materials and valuable assistance.
Released: March 2, 2026
Signed: Justice Wiri Kapurura