The Children's Aid Society of London and Middlesex v. P et al., 2025 ONSC 3344
COURT FILE NO.: FC1456/19-03 and FC1456/19-04
DATE: 2025-06-05
ONTARIO SUPERIOR COURT OF JUSTICE – FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
BETWEEN:
The Children’s Aid Society of London and Middlesex, Applicant
– and –
CP, DB, TP and Carol P., Respondents
Appearances:
- L. Walters, for the Society
- CP, acting in person
- Carol P., acting in person
- Theodore Madison, for the Office of the Children’s Lawyer
Heard: April 22, 23, 24, 25 and 30, 2025
Trial Judgment
Jasminka Kalajdzic
Part One – Introduction
A. The Parties
[1] The Children’s Aid Society of London and Middlesex (the “Society”) brings two amended child protection applications requesting that two children, KP and KLP, be found to be in need of protection under ss. 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act, 2017 (the “Act”). The disposition order it seeks is that of extended society care with access to the children’s mother, CP (the “mother”).
[2] The Society seeks these orders on the basis of the risk of physical harm due to a failure to care for and/or protect the children and a pattern of neglect. The main protection concerns arise out of the mother’s unaddressed mental health issues, lack of cooperation with the Society and follow-through with community services, lack of support, substance abuse, and her own prior admissions that the children are better off with others.
The Mother’s Children
[3] The mother has three children: C (born […] 2009), KP (born […] 2020), and KLP (born […] 2022).
[4] On April 10, 2025, Tobin J. partially granted the Society’s summary judgment motion in a child protection application involving C. His Honour found that the risk of physical harm to C continues to arise from the mother’s behaviour associated with her mental health issues and drug use. He granted custody of C to his paternal grandmother, the Respondent, Carol.
[5] Tobin J. also ordered that the Respondent mother shall have access with the child but found that there was a triable issue as to the terms of such access. He similarly found that C shall have access with his two younger siblings on terms to be determined at trial.
[6] The trial of these two discrete issues was held on April 22, 2025. My decision with respect to C’s access is set out in separate reasons released concurrently with these reasons and cited as 2025 ONSC 3315.
[7] The Respondent, DB, the mother’s former partner and the purported father of KP and KLP, did not attend the hearing. Service of the Society’s pleadings and court documents were dispensed with pursuant to an order of Korpan J. on November 1, 2024.
[8] None of the other responding parties were required to participate in the trial concerning KP and KLP, and they did not do so.
[9] References to “children” in these reasons are to KP and KLP only.
B. Brief Chronology
KP
[10] The mother relinquished KP to Society care on March 11, 2021. He was the subject of several interim Society orders thereafter, including supervision orders placing him with kin.
[11] The mother was granted interim access. KP had gradually increased supervised visits with the mother from March 2021 to November 2022 with a view to returning to his mother’s care.
[12] In November 2022, the mother reported feeling overwhelmed and asked that KP be returned to the full-time care of foster parents.
[13] KP remained in care until December 15, 2022, when he was placed on an extended visit with the mother’s cousin. That placement broke down in March 2023.
[14] Between December 2022 and March 2024, KP was placed in the care of various kin, moving three times. On March 15, 2024, Tobin J. granted an order that KP remain in the temporary care of the Society, where he has remained to date, placed with his current foster family.
[15] On September 26, 2024, the Society amended its Application and requested that KP be placed in extended Society care.
KLP
[16] On December 23, 2022, KLP was taken into Society care. On December 28, 2022, Price J. granted a temporary supervision order placing KLP in the care of kin. That kinship placement broke down. One further order placing KLP in the care of kin was made in March 2023.
[17] KLP was removed from the care of kin on September 18, 2023 and brought into Society care. She was placed with her current foster family.
[18] On September 26, 2024, the Society amended its Application and requested that KLP be placed in extended Society care.
[19] This matter has been moved from trial sitting to trial sitting since 2023. It was finally scheduled to be heard commencing April 22, 2025 on a peremptory basis.
C. Legal Representation
[20] The mother attended the trial without legal counsel. She was previously represented by two different lawyers, most recently by Salim Knot. The relationship with both counsel broke down. Mr. Knot obtained an order removing himself from the record in November 2024.
[21] I asked the mother if she had sought counsel to represent her at trial. She indicated that she had made several phone calls but was not successful in finding a lawyer to represent her. I was concerned about the lack of legal representation given the seriousness of the relief being sought at trial. I had to balance those concerns against the following facts:
a) The mother stated that she had made calls to find counsel in the past month. She offered no explanation as to why she made no efforts to retain counsel months earlier.
b) The mother did not ask for an adjournment.
c) KP and KLP have been in care for four years and almost two-and-a-half years, respectively, well past the statutory limits.
d) In an endorsement dated April 11, 2025, Mitrow J. made the trial dates peremptory on all parties. Everyone, therefore, understood that further delay would not be condoned absent extenuating, unforeseen circumstances.
[22] The trial proceeded with the mother acting on her own behalf. I was mindful of my obligation to assist self-represented litigants. This obligation to assist is enhanced in child protection cases where the stakes for families are so high: see Jewish Family and Child Service of Greater Toronto v. N.D., 2021 ONCJ 369.
[23] I provided the following procedural assistance to the mother:
a) I spent considerable time explaining the trial procedure and the legal issues to be decided.
b) I took additional time during the trial to explain legal terminology, particularly evidentiary rules.
c) I assisted the mother in formulating her questions in cross-examination.
d) I suggested topics she might wish to address in her direct evidence.
e) I took an active role in screening the admissibility of the Society’s evidence.
f) I made repeated requests of the mother to provide the court with documents that are relevant to her mental health, sobriety, attempted or completed parenting courses, counselling or other psychiatric care, housing situation, and support system. The registrar gave the mother the registrar’s email address so that those documents could be sent to her, and I advised that copies of any documents would be made for the parties’ and court’s use.
D. The Issues
[24] The issues to be addressed in this case are:
a) Are the children in need of protection?
b) If the children are in need of protection, what disposition order would be in their best interests? Will it be in the children’s best interests to return to the care of the mother, either without Society involvement or with Society involvement, or would their best interests be met by placing them in extended Society care?
c) If the children are placed in extended Society care, what access order is in their best interests?
E. Statutory Findings
[25] As required by s. 90(2) of the Act, I make the following findings:
a) The older child’s name is KP, and he was born on […] 2020. He is four years old.
b) The younger child’s name is KLP, and she was born on [...] 2022. She is three years old.
c) The children are not First Nations, Inuk or Métis children. A finding in this regard was made by Korpan J. on November 1, 2024.
d) KP was brought to a place of safety on March 11, 2021. The location of the place from which he was removed was London, Ontario.
e) KLP was brought to a place of safety on December 23, 2022. The location of the place from which she was removed was London, Ontario.
F. Positions of the Parties
[26] The Society argues that KP and KLP were and continue to be in need of protection under ss. 74(2)(b)(i) and (ii) of the Act. The risk of physical harm to the children was and continues to arise from the mother’s behaviour associated with mental health issues and drug use. The mother was unable to provide the children with a safe and stable home and could not meet their needs. Despite being given multiple opportunities, the mother has not dealt with her mental health and addiction issues or cooperated fully with the Society.
[27] The Society seeks an order that the children be placed in extended care with a minimum of six supervised visits a year with the mother. The Society also seeks an order that the children have access to each other and to C and that each of them are access holders for the purposes of ss. 105(7)(a) and (b) of the Act.
[28] The mother argues that she is sober, has no mental health issues, and is able to care for her children. She admits that she had difficulties in her past. She was overwhelmed when KP was born and “not in a great place”. She states that she has worked cooperatively with the Society’s caseworkers and is very grateful to her children’s caregivers. She loves her children and is relieved that they are happy and healthy and that they were not affected by her “storm of events”. She believes that she is ready to care for both children without supervision.
Part Two – Finding in Need of Protection
A. Legal Considerations
[29] The Society has the onus to prove on a balance of probabilities that the child is in need of protection: see Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, para. 19. If the court finds that the child is not in need of protection, then that is the end of the Society’s protection application: see Catholic Children's Aid Society of Toronto v. N.N., 2019 ONCJ 8, para. 116.
[30] Subsection 74(2)(b) of the Act provides as follows:
74(2) A child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child
[31] The risk of harm under s. 74(2)(b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours: see Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carleton v. T..
[32] Harm caused by neglect or error in judgment comes within the finding of harm: see Children’s Aid Society of the Niagara Region v. T.P..
[33] Subsection 93(1) of the Act provides as follows:
93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
B. Evidence at Trial
Preliminary Comments regarding the Society’s Evidence
[34] As is customary, the Society led its evidence in chief largely by way of affidavits: two affidavits by the current case worker, Manon Bles, sworn January 23, 2025 and March 24, 2025, and one by the former case worker, Chantale Guilmette, sworn November 4, 2024. The same affidavits were submitted and relied upon at the summary judgment motion before Tobin J.
[35] I had two overarching concerns with the Society’s affidavit evidence: the first related to hearsay, and the second related to the lack of specificity regarding sources of information.
[36] At the outset of the trial, I expressed my concern about the amount of presumptively inadmissible hearsay evidence contained in these affidavits. In dozens of paragraphs, Ms. Bles and Ms. Guilmette testified as to what school officials, doctors, landlords, C, and others told them. It was not clear to me what was being relied upon for its truth or on what basis the hearsay evidence was sought to be admitted.
[37] The practice of simply summarizing a case worker’s notes in affidavit form, without regard to rules of evidence, has been the subject of judicial commentary. For instance, in Children’s Aid Society of Brant v. K.A.W., 2022 ONCJ 33, paras. 10-11, in the context of a summary judgment motion, Baker J. stated as follows:
There are good policy reasons for requiring that the moving party on a motion for summary judgment to serve and file a complete record of admissible evidence with the motion. Responding parties are put at a disadvantage when they are referred to affidavits that contain improper evidence that does not meet the standard for a motion of this nature. Respondents are expected to put their, “best foot forward” in responding to the motion. It is virtually impossible to do so where [sic] in a situation where the Applicant is proposing on the face of its materials, to advance inadmissible evidence.
Motions for summary judgment, especially ones seeking extended care without access, are important proceedings for Respondents and children. It is not unreasonable to insist that a proper evidentiary record, prepared specifically for the purpose, be before the court.
[Emphasis in original.]
[38] Justice Baker’s observations are even more apposite in the context of a trial. It is not fair to expect the court – let alone a self-represented responding party – to comb through the evidence to determine what is admissible at trial and what is not. It is not a practice that improves access to justice or fairness to the parties.
[39] As a result, I adjourned the trial for a few hours so that Ms. Walters could review the affidavits and redact the paragraphs containing inadmissible hearsay. This is the work that should have been done at least thirty days prior to trial in accordance with rr. 23(21)(b) and (c) of the Family Law Rules, O. Reg. 114/99.
[40] When the trial resumed, Ms. Walters provided the court and the mother with redacted affidavits. She also listed the paragraphs in which out of court statements were being relied upon for a non-hearsay purpose (i.e., narrative or to establish the reason steps were taken) and the paragraphs in which hearsay was sought to be admitted. For the latter paragraphs, Ms. Walters stated the exception to the hearsay rule being relied upon. This work was helpful, and necessary, for the proper conduct of the trial.
[41] Formal voir dires were not conducted, but where I have determined that an exception to the hearsay rule applies, I say so in my reasons. Where I am not satisfied that the Society has established an exception, I reject the evidence in question and do not rely upon it.
[42] My second general concern with the Society’s affidavit evidence related to the practice of not specifying the source of information when a fact was not in the affiant’s personal knowledge. In civil litigation, an affiant must distinguish between those facts known personally to them and those that they have learned from other sources. In all three of the affidavits relied upon by the Society, the affiants refer to events they could not have personally observed or experienced. For instance, Ms. Guilmette refers to events that occurred regarding the mother before Ms. Guilmette was involved in her file.
[43] In response to my questions about the source of such information, Society counsel elicited evidence from Ms. Guilmette about case workers’ practice of making notes within 24 hours of an event that are then stored in the CPIN system that prevents editing or alteration. Case workers receive training on notetaking.
[44] Some courts have admitted case workers’ notes as business records: D.J. v. S.F., 2017 ONCJ 879. Others have not: Catholic Children’s Aid Society of Toronto v. C.C., 2011 ONCJ 598. Regardless, trial affidavits should not be treated as a summary of case notes.
[45] Ms. Guilmette and Ms. Bles both testified and gave direct evidence of their involvement with the children, the mother, and others. As a result, I am able to make evidentiary findings based on their testimony as well as on the documentary and affidavit evidence filed.
The Society’s Evidence
[46] In addition to the three affidavits described above, the Society adduced viva voce evidence from the following witnesses:
a) Kelly Sanchez: child protection worker with the Society. Ms. Sanchez was KP’s worker in November and December 2022. She was also involved in KLP’s initial apprehension.
b) Chantale Guilmette: child protection worker with the Society. Ms. Guilmette had carriage of the file regarding KP from January to April 2020 and again from November 2020 to August 2021.
c) Manon Bles: child protection worker with the Society. Ms. Bles was the coverage worker in November 2022 and has had carriage of the CAS file regarding both children since December 2022.
d) Chantal Kirby: assessment worker with the Society. Ms. Kirby did the initial assessment in March 2021 to determine if KP needed to be brought to a place of safety.
e) Katelin Silva: works in the Society’s Family Connection Access Visiting Program. Ms. Silva observed the mother’s supervised visits with the children for the past year.
f) AK: KP’s foster parent since March 2024.
g) CHP: KLP’s foster parent since September 2023.
The Mother’s Evidence
[47] The mother testified but otherwise called no evidence. She testified that she did not dispute most of the evidence of the Society’s witnesses.
[48] As previously stated, I invited her on several occasions to file documents, such as emails, letters, or other evidence related to her ability to parent. I also invited her several times to call witnesses – people in her support network, her treating doctor, and others – who could testify about her plan of care, mental health and sobriety.
[49] On the third day of trial, Thursday, April 24, 2025, in response to my third such suggestion, the mother advised the court that she wished to call her physician, Dr. Martin. I agreed to adjourn early that day so that she could contact Dr. Martin to find out if he could attend either the next day, April 25, or another day shortly thereafter. Both the Society and the court were willing to make reasonable accommodations to allow the doctor to testify.
[50] Later in the afternoon on April 24, the trial coordinator emailed the parties to advise that Wednesday, April 30, 2025 was available for the continuation of the trial.
[51] At the beginning of trial on April 25, the mother reported that Dr. Martin was not available that day. She had not read the email from the trial coordinator and could not say, therefore, if Dr. Martin was available on April 30. I advised her that Dr. Martin could testify by Zoom if that would be easier for him. I stood the trial down for a short time to enable the mother to call Dr. Martin.
[52] When the mother returned, she said she could not reach him but had left a message.
[53] As I was providing scheduling directions for the remainder of the trial, the mother stood and told the court that she had changed her mind and wished to finish the trial that day. She gave a number of reasons, including that she needed finality and that “everyone made up their minds about [her] a long time ago.”
[54] I found this sudden reversal very troubling. I assured the mother that I had not made up my mind. I renewed my repeated invitation for her to call witnesses and suggested that she provide me with documents, such as proof of enrollment in counselling and parenting courses and any evidence of her sobriety.
[55] During this exchange, the mother also announced that she was not going to be available in two months’ time because she was relocating to Windsor, Ontario. This was new information she had not disclosed when she gave her direct evidence the day before. Given the importance of her future plans to the issues I had to decide, I asked the mother to return to the witness box and testify about her pending relocation.
[56] The mother testified that she had a job lined up with an insurance company thanks to her cousin, KB. She could not provide the name of the company and did not have any documentation verifying her terms of employment. She also testified that she had been notified two weeks earlier that she was at the top of the waiting list for second-stage housing and that she would be getting a one-bedroom unit in Windsor.
[57] The mother confirmed under cross-examination that she had given notice to her current landlord and that she had not mentioned her relocation to her case worker, Ms. Bles, or to C or Carol. She would not acknowledge that she had been less than forthright when she testified about her plan of care the day before.
[58] At the conclusion of her testimony, I again asked the mother to adduce any available evidence regarding her ability to parent KP and KLP. She insisted that she wanted the trial to be over. At Ms. Walters’ suggestion, I adjourned for the day and asked the mother to think carefully over the weekend about calling additional evidence. I asked that she advise the court registrar by 4:00 p.m. on Monday, April 28, 2025 whether she was calling Dr. Martin or any other witnesses and, if so, whether they were available to testify on April 30, 2025. I imposed the deadline because we needed to schedule the remainder of the trial.
[59] The mother did not contact the registrar. At the resumption of the trial on April 30, 2025, the mother confirmed that she did not wish to adduce any further evidence.
Credibility
[60] In general, I found the Society’s witnesses to be balanced and credible in their testimony. The caseworker witnesses testified in a straightforward manner, mainly without reference to any notes. They showed no hesitation in identifying the mother’s strengths in addition to explaining their concerns.
[61] Ms. Bles and Ms. Silva in particular readily testified about the mother’s positive traits and interactions with the children. For example, Ms. Silva testified that the mother is usually very attentive to the children’s needs during the supervised visits. Although she is sometimes late or absent and at other times withdrawn or tired, when the mother is fully present, “she does a great job”. Ms. Bles described the mother as insightful and wanting to be a good parent.
[62] The mother was a partially credible witness. During her direct evidence, she was often candid about her limitations. She described being overwhelmed, in grief over the loss of her mother, and in a violent relationship with Mr. B. She expressed gratitude to the children’s foster families and testified that she wanted the tools to work toward being a good parent. I accept that she genuinely loves her children.
[63] However, the mother’s credibility is negatively impacted in three important ways.
[64] First, she downplayed her prior substance abuse. She admitted under cross-examination to having an addiction to methamphetamine but then refused to adduce any evidence to corroborate her sobriety, such as calling Dr. Martin as a witness or providing proof of her enrollment with Narcotics Anonymous. Over the past two years, she has also refused to consent to her caseworker contacting these and other service providers.
[65] Second, she failed to mention in her evidence-in-chief or under cross-examination on the third day of trial that she intended to leave London and move to Windsor. This information only came to light on the fourth day of trial and goes to the core of her plan of care. When asked why she had not disclosed this plan sooner, she was evasive.
[66] Finally, the mother did not disclose to her caseworker that charges were laid against her for possession of methamphetamine in July 2024. When Society counsel learned of this information through a Google search during the trial and asked the mother about it while under oath, the mother would only say that there are no charges “currently” against her. She would not discuss the incident.
[67] As a result, where the Society’s evidence conflicts with that of the mother, I prefer the evidence of the Society.
[The remainder of the judgment continues with detailed findings of fact, legal analysis, and the final order, as set out in the original document. For brevity, the structure and formatting have been corrected throughout, and all links and references have been preserved as per the original HTML.]
Jasminka Kalajdzic
Released: June 5, 2025