Children’s Aid Society of Peel v. A.W., 2025 ONCJ 130

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

Date: 2025-03-07
File Number: 20061/23 Brampton

Between:

The Children’s Aid Society of Peel
Applicant

— AND —

A.W.

— AND —

S.W.
Respondents

Before Justice Philip J. Clay
Heard on November 25 - December 2, 2024
Reasons for Judgment released on March 7, 2025

Counsel:

• Mr. K. Williams, counsel for the applicant Society
• Ms. M. O’Connor, counsel for the respondent Father, S.W.
• Ms. M. Leonard, counsel for the child S.W.W.
• The Respondent Mother A.W., self-represented
• Ms. D. Stewart, amicus curiae

Reasons for Judgment

Introduction

CLAY J:
[1] This child protection trial concerns the child S.W.W., born […], 2017. A.W. is his mother and S.W. is his father.

[2] The Applicant society sought an order for statutory and a child protection finding and for a s. 102 order placing the child with his father. The application before the court was an Amended Amended Protection Application issued on September 17, 2024. The relief sought was supported by the Respondent father S.W. (“the father”) and by the Office of the Children’s Lawyer (“OCL”). The Respondent mother A.W. (“the mother”) did not file an Answer to any of the three protection Applications but her position was that she sought an order returning the child to her care.

First Trial Motion

Relief sought

[3] At the outset of the hearing I was advised that the mother had served and filed a Motion Form seeking to adjourn the trial and to lift the requirement that leave be sought before further documents could be filed. The Motion Form was served on November 14. No other party filed a responding affidavit.

[4] The mother said that she was self-represented and that she did not have the time to properly prepare for trial. She said that the court’s leave requirement prevented her from properly defending her case and she wanted it removed.

[5] The mother had not served and filed an Answer to the Amended or Amended Amended Protection Applications and had not filed briefs for any conference. It appeared that the mother had attempted to file other documents as “evidence” but her filings were rejected as not being authorized by the Family Law Rules. She may well have been told that she required leave of the court to file a document that was not permitted to be filed by the Rules.

[6] The mother’s Motion Form stated that the restrictions on filing limited her defense and resulted in a lack of due process in that she was constrained from filing documentation including witness statements and other relevant evidence. She said that the constraints violated her right to a fair hearing under the Canadian Charter of Rights and Freedoms. She referred to numerous cases on the issue of due process, fair hearing and procedural fairness. She said that the Supreme Court of Canada had emphasized the importance of procedural fairness and the need for courts to accommodate the unique challenges faced by self-represented persons. She said that the clerks who did not permit her to file documents overstepped their role and discriminated against her as a self-represented party.

[7] The mother sought an adjournment and insisted on written reasons for the decision on this motion prior to the trial proceeding.

Analysis

[8] As the trial judge I had no prior involvement in this matter so I reviewed the issued orders and the endorsements in the Trial Record to see what procedural steps had been taken prior to trial.

[9] This child protection matter began with the return of a Protection Application on December 13, 2023. The society sought a protection finding under s. 74(2)(h) of the Child, Youth and Family Services Act based upon evidence of emotional harm and the risk of emotional harm by the mother’s parenting. The chronology of the proceeding was as follows:

• December 13, 2023 – Justice M. Cheung without prejudice order placing child under supervision of the mother with access to the father.
• February 20, 2024 – Justice L. Rogers temporary order after a temporary care and custody hearing placing child with the father with supervised access to the mother initially twice a week for two hours.
• April 17, 2024 – Justice Cheung – mother not present – matter organized to be ready for trial sittings of September 9-20, 2024.
• June 17, 2024 – Justice Cheung – Settlement Conference held – mother was present.
• July 10, 2024 – Justice Cheung – scheduled Trial Management Conference (“TMC”) could not proceed – mother had not filed any documents and her behaviour resulted in her ultimately being removed from the courtroom. Agreement by counsel for motion to appoint amicus curiae.
• August 20, 2024 – Justice Cheung motion for amicus heard – all parties consented except mother who refused to make submissions but repeatedly said “I am ready for September trial”. The matter was then targeted for November 25-December 6, 2024 sittings with a preliminary TMC TBST on September 18 and a final TMC on October 16, 2024 both in front of Justice Cheung.
• August 29, 2024 – Justice Cheung released written reasons on her decision to appoint amicus curiae. The case management justice noted that the mother had not filed an Answer to the Protection Application, the Amended Protection Application or the Amended Amended Protection Application, had not been prepared for any conference and had disrupted proceedings when present. She found that an amicus appointment was necessary to give the mother someone to help her organize her case and to ensure that all relevant evidence concerning the issues came before the court.
• September 16, 2024 – Justice Cheung selected Ms. Deborah Stewart from a list of experienced family law lawyers provided by LAO to be amicus curiae in this case. Ms. Stewart reached out to the mother to see if she could be of assistance but her emails were not returned.
• September 18, 2024 – Justice Cheung – society advised that it had served its Amended Amended Protection Application in which it sought an order for a protection finding under s. 74(2)(h) of the CYFSA - the risk of emotional harm by mother’s actions. If that order was made it sought an order that the child be placed in the custody of the father subject to s.102 of the CYFSA and that the mother should have access to the child in the discretion of the father. The mother was very disruptive as she insisted on reading aloud from a document and ignored the court’s direction. Justice Cheung stepped off the bench and the mother left the court. Justice Cheung said if the mother had not left she would have been removed. She set out the ground rules for the mother’s continued participation in the case.
• October 16, 2024 – Justice Cheung TMC issues defined, witnesses identified, filing deadlines for society affidavits set. The mother said that she would not participate in the time estimates for witnesses as she would not be cross-examining. Amicus asked the court to set aside half a day for the mother’s participation in the trial in the event it was requested by her.
• November 6, 2024 – Trial Audit before Justice Cheung as LAJ – The mother said that she needed more time to get her witnesses together and submit her documents. She said she might have upwards of twelve witnesses. None had been disclosed. The mother was disruptive and talked over other counsel. After receiving submissions Justice Cheung stated that the mother could provide a list of not more than 5 witnesses by November 20 and she must provide their names and how they are connected to the case and a brief summary of what they will say. This matter was confirmed for a trial beginning November 25, 2024.

[10] It is quite clear from this summary that this case was intensively case managed and that every effort was made to have the mother participate in the trial. The mother did not serve or file an Answer to any of the three Applications. (The father did not file an Answer to the last two wherein he agreed with the society’s request that the child be placed with him firstly under supervision and then by way of a s. 102 order). It was always understood that the mother’s position was that she wanted the child returned to her immediately.

[11] The initial Application was issued on December 1, 2023. No child protection finding has been made. The child was six when the Application was issued. The CYFSA requires that this matter be scheduled for trial as soon as possible. It is noted that the child was never in care but by the terms of the February 20, 2024 order he was removed from the primary care of his mother to be placed in the primary care of his father. There was a lot of third-party information that had accumulated in the months prior to the issuance of the Application and the months leading up to trial.

[12] There was a plan for this matter to be heard on the September sittings of this court. That trial date had to be abandoned when the mother was not prepared for any of the conferences leading up to it. A new trial date was set on August 20, 2024. Ms. Stewart was appointed as amicus curiae on September 18. The mother had counsel available to her to assist her for 3 months leading up to this trial.

[13] The mother said she tried to file her “evidence” but the court kept rejecting it. It is apparent that the documents that the mother tried to file were not documents that could be filed under the Family Law Rules or documents that had been authorized for filing by the case management justice. The mother did not serve any documents that were capable of being filed prior to the trial.

[14] Time is of the essence in child protection proceedings. A court must hold a trial on a contested child protection finding issue as soon as possible. The mother did not cooperate with the court in August but just insisted that she wanted her trial in September. Now that she has had three more months to prepare she wants an adjournment.

[15] This matter will not be adjourned.

Accommodations for the Self-Represented Mother

[16] All counsel made it clear from the outset of trial that they wanted the mother to be able to participate in the trial. To that end they said they were prepared to extend deadlines for her filings. The only consideration was that each party have a reasonable opportunity to prepare for the mother’s evidence and that the amount of witnesses permitted to be called by the mother not exceed the five witnesses set by Justice Cheung at the October 16 TMC.

[17] The TMC timelines were first set out in the September 18 order. The mother and amicus were given until November 12 to serve their trial documents. TMC briefs, if not already filed, had to be filed by the October 16 final TMC.

[18] On October 16 the deadline remained unchanged for the mother. All other parties identified their witnesses and time estimates were set out. As noted the mother was present but did not participate.

[19] The matter proceeded to the trial audit of November 6. At that time the mother said she would have 15 witnesses. The issue was briefly discussed and Justice Cheung held that the mother could have up to 5 witnesses (subject to the discretion of the trial judge) provided that she provided their names and a will say statement by November 20.

[20] The mother did not meet the deadline and no witnesses were identified prior to the opening of the trial on November 25. At that time the mother said she still intended upon calling 15 witnesses. On consent the deadline for providing names of potential witnesses was extended to the next morning. On November 26 the mother still had not provided a list and she was granted a further extension to November 27.

[21] On the morning of November 27 the mother provided a handwritten list of 15 witnesses that she insisted upon calling. There were no will say statements but the role of each witness, i.e. professional or personal friend, was identified.

[22] The undersigned reviewed the list with the mother to see if it could be narrowed down with her consent. She insisted that all of her witnesses were necessary. Ultimately the undersigned held that to be consistent with the TMC direction she could call two professional witnesses who had relevant evidence on issues before the court and up to three friends. The mother did not agree but it was arranged that Dr. Handley-Derry, a developmental pediatrician, could be called by Zoom on November 29 as his report, released on November 22, 2023, was in the documents brief. The mother could also call a supervisor from Brayden Supervision Services if she could provide that supervisor with the dates of the relevant supervised exchanges (the notes of over two years of supervised exchanges were never ordered but the OCL clinician in the domestic matter had recently released some). The mother then had six personal witnesses. She was told to contact all six and if they could be available on the afternoon of November 28 after 11 a.m. or on November 29 at least three of them could be called.

[23] As it happened the mother had no record of the specific days she wanted to cross-examine the Brayden supervisor about so she was not called. The mother was able to get three of her personal witnesses who were available by November 29 and they were called.

[24] In the course of their evidence two of the personal witnesses were permitted to read from notes that they had prepared in advance. It appeared that those notes may have been some of the “evidence” that the mother had said she had been prevented from filing.

[25] The mother gave her own evidence in this matter. There was a short afternoon break and on the return the mother refused to be cross-examined. She reiterated that the denial of her adjournment motion was unjust and that she had not had time to prepare. She said she had no obligation to prove the case.

[26] The undersigned once again confirmed that the burden of proof was upon the society in this trial. However, if a party chooses to give evidence then they must be available for cross-examination. The mother refused so the issue was deferred to the next day.

Second Trial Motion

[27] The trial resumed the next day November 28 and the mother filed a Motion Form. In the motion form she stated:

I was compelled to testify on November 27, 2024 during which I objected to providing evidence due to procedural denials of my right to file affidavits or motions.
My testimony, as presented, substitutes for the inability to file written evidence and should remain in record as my position in this matter.
I assert my right to silence and refuse to answer questions from the Applicant or any other parties, as I am not obligated to assist them in proving their case.
My objection is grounded in the Charter, the Child Youth and Family Services Act and procedural fairness principles.

[28] The mother then refused to be cross-examined the next day. The undersigned noted that given the mother’s presentation, and her insistence upon her right to be heard without her evidence being tested, that counsel should consider how an inability to cross-examine might prejudice their case.

[29] Ms. O’Connor said that if the mother did not give evidence she could not ask her to identify the police and medical records that she wanted to have made exhibits in this matter. The other counsel said that if those documents, which were in the production briefs, could be introduced then they would also waive the right to cross-examine.

[30] The undersigned noted that a police report often contains hearsay and cannot be presumptively admitted for the truth of its contents. However, in all of the circumstances of this matter the undersigned accepted the police reports and the medical reports (mostly E.R. attendances in February 2024) as exhibits. The mother was then not required to take the stand for cross-examination and her direct evidence was admitted.

Positions of the Parties

Children’s Aid Society of Peel (“PCAS”) position

[31] Mr. Williams said that statutory and protection finding need to be made. The child has lived with the father since February 2024. The child has thrived under the care of his father. If a finding is made the disposition sought is a s.102 custody order which will affirm the current arrangement.

Father’s position

[32] Ms. O’Connor stated that the father supports a finding and the society position. She noted that all disposition issues are in dispute. She prepared a draft order with the specific relief the father is seeking. Ms. O’Connor said that there were four distinct periods of time that will be covered in the evidence:

1. The parties parenting roles from the birth of the child in […] 2017 through the separation on June 6, 2020.
2. June 2, 2022 when the first parenting order was made in the SCJ to March 28, 2023 when the child was removed by the mother from his public school in Mississauga.
3. March 28, 2023 to February 20, 2024 when the PCAS was involved over parenting issues through the issuance of an Application and a supervision order with the mother on December 13, 2023.
4. February 20, 2024 when an order placed the child with the father to the opening of this trial.

OCL

[33] Ms. Leonard as counsel for S.W.W. supported the society position. She said that the evidence will show that S.W.W. has been subjected to far too many investigations and examinations. S.W.W. had been placed under a lot of stress. He has been caught in the middle between his parents. He had taken to repeating his mother’s statements but his demeanour and context of his statements about his mother and his father are important.

Ms. Stewart

[34] Amicus counsel Ms. Stewart noted that the parties have been engaged in litigation in the Superior Court of Justice (“SCJ”) since shortly after the June 2020 separation. After two OCL reports and the intervening child protection proceedings a trial had now been scheduled in the SCJ for January 2026.

[35] The parties had a parenting schedule by September 2021 by which S.W.W. was with his father from Friday after school until Sunday early afternoons. There were changes made over time. Brayden Supervision services became involved and the child left daycare or school to be exchanged with the father at 11:45 a.m. on Fridays. Sometimes the father returned him to school and sometimes he did not.

[36] The society brought a protection application returnable December 13, 2023. A without prejudice order was made that day by Justice M. Cheung placing S.W.W. in the care of his mother subject to supervision with a continuation of weekend parenting time with his father. A Temporary Care and Custody Hearing was held on February 20, 2024.

[37] The society’s original Protection Application had sought placement with the mother with a 6-month supervision order with the society. The father had sought placement of the child with him. Justice L. Rogers ordered that the child should be placed with the father with the mother to have supervised access.

[38] Ms. Stewart said that as the child had either exclusively or primarily resided with the mother since birth the mother went into the Temporary Care hearing without contemplating that her care of the child could change especially since the society supported placement with her.

[39] Counsel then said that the evidence will show that the mother had been unable to get documents before the court that she said were her “evidence” in this matter. Part of counsel’s role was to assist the mother to get evidence before the court. Counsel conceded that the mother had not complied with the orders made by Justice Cheung at the Trial Management Conference and the Trial Audit.

[40] Ms. Stewart said that the society and father’s position that parenting time with the mother should be left in his discretion was not in the best interests of the child. There was serious conflict between the parents. The evidence will show that if parenting time is left to the father it will not happen. This could destroy any relationship between the child and his mother. The mother had been the child’s primary caregiver for most of his life. There was a close bond between them at that time. The last few months have been very difficult for the mother and no doubt for the child as well. The mother believes that the society and father planned to take her child away and she is focused on that loss.

[41] Ms. Stewart told the court that the evidence will show that the mother has done well with supervised access at the society in that she was always ready for her visits, brings food and activities and her love and affection for the child cannot be questioned. Ms. Stewart said that if ultimate decision is to leave the child with the father any parenting time order should be for scheduled supervised visits. Ms. Leonard for the OCL agreed with this point.

Procedural Rulings

Child’s statements

[42] Prior to evidence being received counsel identified that they would be looking to tender out of court statements made by the child for their truth of their contents. Such statements are presumptively hearsay and not admissible.

[43] To address the issue of child’s statements the Supreme Court of Canada articulated what is known as the principled exception to the rule against hearsay in the well-known case of Khan v. R., 1990 CarswellOnt 108. The first question to be determined is whether the reception of the hearsay statement is reasonably necessary. At paragraph [31] in Khan, the Supreme Court said that:

The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which would establish requirement of necessity.

[44] The next part of the test is whether the proposed evidence meets the test of threshold reliability. Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. The hearsay dangers relate to the difficulties of assessing the child’s perception, memory, narration or sincerity. These dangers can be overcome by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).

[45] The trial judge acts as a gatekeeper for determining threshold reliability and leaves the ultimate determination of whether a statement is reliable for the finding of facts. See: R. v. Khelawon, 2006 SCC 57.

[46] In this case Ms. Leonard for the OCL prepared a chart of the child’s statements that counsel sought to have admitted, some for the truth of their contents, and some for the fact that they were said. The chart set out the date of the statement, the recipient of the statement and the purpose for which it was sought to be introduced.

[47] The proper approach to determine necessity and threshold reliability is to hold a voir dire, a trial within a trial, to determine if the proposed evidence is admissible. As there were many statements made to different witnesses the approach adopted was to test the admissibility of the statements made to each witness but not to make a ruling on admissibility until all of the trial evidence was received.

[48] I find that all of the statements made to a child protection worker or other professional required to gather and record information were admissible for the fact that they were said by the child. The child made many inconsistent statements and frequently retracted statements made earlier. The reason that this happened is explored below. Ultimately there had to be a determination of whether the statements were likely true or false. The child’s statements were just part of the evidence that had to be considered. The statements must be looked at in the context of the other evidence that was available around the time each statement was made.

Trial worthy affidavits

[49] The society witnesses were required to provide their direct evidence by way of affidavit. All four counsel reviewed every affidavit in advance and they agreed upon any redactions that should be made to make the evidence trial worthy. The court thanks counsel for their cooperation which saved valuable trial time.

(Decision continues in full as provided above...)