WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.—(3) Offences re publication.— A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
CITATION: Children’s Aid Society of Peel v. S.F., 2022 ONCJ 598
DATE: December 21, 2022
COURT FILE No.: 20040/21
Ontario Court of Justice
at
7755 Hurontario Street, Brampton, ON L6W 4T6
Endorsement Justice A.W.J. Sullivan
Applicant: PCAS Present: December 14th and 20th, 2022 Counsel: Mr. M. Elchami
Respondent: Mother Ms. C. Counsel: Ms. M. Leonard Father Mr. S. F. - self rep
Order to go in accordance with minutes of settlement or consent filed.
Today – all parties present as noted above.
This day is to review the Temporary without prejudice order of J. Clay dated November 10, 2022.
This is on a motion filed at Tab 1 Vol 3 for in part a request for two significant orders against Mr. S.F., the father of S. born […], 2018.
a) Restraining order
b) No access order
The PCAS Affidavits in support of the motion are located at Tab 2 of Vol 3 of the Continuing Record and a second affidavit dated December 13, 2022 in reply.
Ms. Leonard for the mother Ms. C. is in support of the PCAS motion. Ms. C. did not file an affidavit.
Mr. F. was served with this motion on November 10, 2022.
He filed an affidavit Tabs 3 of Vol 3 of the Continuing Record.
Mr. F. mainly argued in this motion about having his access with his daughter denied.
PCAS Notice of Motion. The PCAS in its motion asks for the following orders:
An order that due to Mr. F.’s escalating behaviour towards the PCAS that his access be terminated. No section of the CYFSA was provided in support of this request.
Restraining Orders against Mr. F. all as per section 137(1) of the CYFSA.
a) That Mr. F. be restrained from contacting PCAS and any of its employees by telephone or email except through PCAS counsel.
b) Mr. F. not attend the PCAS office at 25 Capston Road, Peel, Ontario.
c) Mr. F. be restrained from contacting the grandparents (current caregivers of S.) I. and T. C. except through their counsel.
d) Mr. F. not attend the grandparents’ home […] Rd. Mississauga, ON or any place he knows them to be.
- All future court matters be held virtually.
Discussion and Decision:
- I have considered in part the following principles from the below case law in relation to the PCAS claims for restraining orders.
Restraining Orders
- Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.
- A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.
- It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004 ONCJ 195.
- Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child.” See: McCall v. Res, 2013 ONCJ 254.
- The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.
- A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).
- It is not necessary for a respondent to have actually committed an act, gesture, or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.
- A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.
- A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.
- It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.
- Genuine fear of psychological harm justifies a restraining order: see the decision of Justice Kiteley in Lawrence v. Bassett, 2015 ONSC 3707, at para. 18.
The court in McCall v. Res, 2013 ONCJ 254 set out the following three principles:
The fear must be reasonable.
The fear may be entirely subjective so long as it is legitimate.
The fear may be equally for psychological safety, as well as for physical safety.
In Q.M.S.Q. v. S.Q., 2021 ONCJ 334, the court found that the following factors justified a restraining order:
a) The extensive family violence perpetrated by the father culminating in his criminal conviction.
b) His stalking behaviour after the parties separated.
c) The father has shown that he is very resourceful and determined when trying to track the location of the mother and the children.
d) The father has enlisted his family members as proxies to harass the mother and to try and convince her to reconcile with him.
e) The father’s pattern of manipulative behaviour.
f) The father’s minimization of his behaviour.
g) The father’s lack of insight into the impact of his behaviour on the mother and the children.
h) The father’s externalization of blame for his behaviour.
i) The father’s continued desire to reunite with the mother and the children.
j) The increased risk to the mother when the father receives the negative outcome of this case.
k) The father’s refusal or inability to obtain psychiatric and therapeutic treatment despite having mental health issues.
l) The father’s history of non-compliance with his medication regime.
m) The mother having an objective and subjective basis to fear for her safety. She is very scared of the father and for good reason. Any additional security that a restraining order gives her will provide the children with more stability and will be in their best interests.
Restraining Orders – jurisdiction
A restraining order under the CLRA can be sought by a grandparent to whom a parenting order has been issued. See D.E. v. C.S., 2017 ONCJ 668, where the court granted two grandparents temporary custody of their three-year-old grandson and a restraining order against that child’s parents. Similarly, see Catholic Children’s Aid Society v. I.A., 2019 ONCJ 49, at para. 177, where the court stated that it would have considered a request for a restraining order from a grandmother, who had custody of her grandson, against her daughter/the grandson’s mother had the grandmother, rather than the CAS, made such request.
I find that the evidence filed in this motion in relation to the claim for a restraining order in favour of the grandparents is not sufficient to sustain a request for a restraining order.
The PCAS affidavit Para 58 has a subtitle - “Ongoing threats to the current caregivers, Maternal Grandparents.” The content of this one paragraph then contains a voice message from Mr. F. in which he is directing his comments to the worker and not the grandparents, as I read this.
The PCAS affidavit, in conclusion, reviews my findings from the TCC (Temporary Care and Custody Hearing) decision of June 30, 2022 in which I do find that Mr. F. argued with the grandparents when they arrived at one exchange of S. Also, the grandmother claimed Mr. F. called her workplace before June 30, 2022.
I do find in the June 30, 2022 decision that a protection concern is Mr. F.’s aggressive language and confrontational behaviour and constant arguments over anything and this is the same behaviour that impacted the parenting of S. when the parents were together (domestic conflict).
The above evidence in this motion regarding the grandparents has no threats towards the grandparents that I can discern. Yes, he approached them once in the parking lot months ago when they were assisting with exchanges.
I was given no further evidence of this happening anywhere in the community since, although I believe the grandparents no longer assist with exchanges.
I also was not provided with any evidence that the parents have been in conflict over the past 5 to 6 months since the TCC decision.
Nor is there any evidence that Mr. F. has been issued criminal charges related to the evidence filed in this motion regarding his many email communication with the PCAS, which I find are vile and hateful toward the PCAS.
I accept that in the past Mr. F. called the grandmother’s workplace. However, the contents of the calls have never been provided to the court and as such all I am left with is that he called. I also am not clear on the number as well which could have been excessive, but this evidence has never been provided to the court, at least not in this motion material.
Since the June 30, 2022 TCC decision I have no new information of any issues between the grandparents and Mr. F.
Section 137 of the CYFSA regarding restraining orders reads as follows:
Restraining Order
137 (1) Instead of making an order under subsection 101 (1) or section 116 or in addition to making a temporary order under subsection 94 (2) or an order under subsection 101 (1) or section 116, the court may make one or more of the following orders in the child’s best interests:
An order restraining or prohibiting a person’s access to or contact with the child, and may include in the order such directions as the court considers appropriate for implementing the order and protecting the child.
An order restraining or prohibiting a person’s contact with the person who has lawful custody of the child following a temporary order made under subsection 94 (2) or an order made under subsection 101 (1) or clause 116 (1) (a) or (b).
Notice
(2) An order shall not be made under subsection (1) unless notice of the proceeding has been served personally on the person to be named in the order.
Duration of the order
(3) An order made under subsection (1) shall continue in force for such period as the court considers in the best interests of the child and,
(a) if the order is made in addition to a temporary order made under subsection 94 (2) or an order made under subsection 101 (1) or clause 116 (1) (a), (b) or (c), the order may provide that it continues in force, unless it is varied, extended or terminated by the court, as long as the temporary order made under subsection 94 (2) or the order made under subsection 101 (1) or clause 116 (1) (a), (b) or (c), as the case may be, remains in force; or
(b) if the order is made instead of an order under subsection 101 (1) or clause 116 (1) (a), (b) or (c) or if the order is made in addition to an order under clause 116 (1) (d), the order may provide that it continues in force until it is varied or terminated by the court.
From the above a court can place restrictions on a person's access or prohibit access. This is subsection (1).
I noted earlier that the PCAS in its Notice of Motion referred to this section,137(1), in its request for a restraining order in favour of PCAS staff/office and the grandparents.
This is the incorrect section when it comes to a restraining order requested for a person who has been granted care and custody of a child caregiver. The applicable subsection is 137 (2).
I don’t find this fatal to this proceeding but mention this in relation to the need to be very specific in this type of motion given the serious nature of the request against a person if the order is granted and breached.
Subsection (1) above should have been noted in the notice of motion in relation to Mr. F.’s access as no law was mentioned.
Section 137 (2) would apply to the grandparents and a restraining order in their favour as they have custody of S. as per my TCC order of June 30, 2022.
However, I find the evidence to support a restraining order in relation to them lacking in this motion and therefore this request is denied.
As for a request for a restraining order and PCAS in this motion, section 137(2) does not apply to PCAS as it does not have the care and custody of the child.
Even if S. was in the PCAS care and custody, it might be argued that this section as a remedy does not apply to a corporate entity, although PCAS is a person in business/corporate law. This I need not comment on further as it is not the issue needing to be resolved today.
However, PCAS in oral submissions, in furtherance of its argument for a retraining order in favour of its employees and office space in relation to Mr. F., asked the court to look at section 102 (3) of the CYFSA which reads as follows:
Custody order
102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2017, c. 14, Sched. 1, s. 102 (1).
Deemed to be order under s. 28 Children’s Law Reform Act
(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be a parenting order or contact order, as the case may be, made under section 28 of the Children’s Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act. 2017, c. 14, Sched. 1, s. 102 (2); 2020, c. 25, Sched. 1, s. 26 (2).
Restraining order
(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children’s Law Reform Act. 2017, c. 14, Sched. 1, s. 102 (3).
Deemed to be final order under s. 35 Children’s Law Reform Act
(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children’s Law Reform Act, and shall be treated for all purposes as if it had been made under that section. 2017, c. 14, Sched. 1, s. 102 (4).
- This section in the CYFSA applies to final orders (not temporary orders) that may be made for custody of a child to a person and when made is deemed to be an order under the Children’s Law Reform Act. From here, that being the CLRA, PCAS asks the court to look at that section 35 of the CLRA which reads:
Restraining order
35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.
Provisions of order
(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate. 2009, c. 11, s. 15.
Here PCAS suggests that the words “On Application…is somehow sufficient to capture the PCAS as Applicants in this matter under the CYFSA.
This I find to be a stretch and not a correct reading of the law.
I also return to the serious nature of this motion and possible consequences for breach of any restraining order if one was made. Hence if the above section of the CYFSA was to be relied on it should have been noted in PCAS’s Notice of Motion.
More to the point, however, is that this section again does not apply to PCAS as the Applicant. Any final order when granted under 102 and 102(3) of the CYFSA applies to persons other than the CAS.
A child protection agency in Ontario may be granted orders of temporary care or extended care of a child pursuant to section 94 or 101, 116 of the CYFSA all of which have no bridge to the CLRA section 35 to assist the PCAS. These sections are stand-alone sections in the CYFSA for orders granting care of a child to a CAS in Ontario considering the evidence and the whole of the CYFSA scheme.
The legislative scheme contemplated in section 102 of the CYFSA when conceived was to assist a person who wishes to plan for a child involved in a protection file before the court, other than a CAS, to obtain a custody order without the need to commence further escalating litigation.
Any other consideration of this section to assist PCAS in this motion in relation to its needs in working with Mr. F. is not applicable.
Access – there was little to no evidence regarding harm to S.’s physical or emotional well being filed in this motion.
PCAS suggested that when it arranged in September 2022 an access visit for S. at Mr. F.’s home with one of his sisters present that Mr. F. was arguing with the driver who was picking up S. and that Mr. F. pushed this person when placing S. in the car. He has also had her in his arms and was swearing which caused her to cry. The grandparents might have had some information about S.’s demeanour when she returned from this and another visit with her father but this was not provided to the court.
Here it would have been helpful to have an affidavit from this driver. Also, I’m told no police charge was laid or police involvement regarding this alleged event. I therefore do not give much weight to this information.
Apparently, Mr. F.’s visits with S. are generally child focused and his care of her good when he is not arguing with PCAS workers.
I find that PCAS staff have been the victims of harmful and racist comments by Mr. F.
Although as I have concluded the CYFSA has no route to assist them in a restraining order against Mr. F.
I also find that despite this and contrary to Mr. F.’s arguments, PCAS has attempted to work with Mr. F. to expand his access with S. and an example of this was to arrange a visit with one of his sisters at his apartment.
Again, I state this as Mr. F. complains that PCAS has denied him access. I find that to the contrary, PCAS was attempting to develop child focused access.
Apparently, Mr. F.’s sister has since reported being unable to continue to assist her brother because of his confrontational communication style.
Turning to the PCAS request to terminate Mr. F.’s access to S., I find there is not sufficient evidence before me that supports terminating access.
There is evidence, however, to set some restraints around this access.
I also find that the concentration of today’s discussion on the relationship between Mr. F. and PCAS is resulting in a misfocus from the need to evaluate how each parent can care for S. in the community, albeit separately, and where this file is going to evaluate whether both parents have addressed the initial protection concerns that caused this file application to be commenced. Is there ongoing negative contact between the parents? Have they improved their parenting skills? Do they have stable homes? What is their emotional demeanour such that they can care for S. in the community in a civil fashion.
I agree that Mr. F.’s inability to calmly work with PCAS is an obstacle to the above assessment. This I mentioned in the June 2022 TCC decision and remains so today.
I recognize the legitimate reservations of the PCAS worker to communicate with Mr. F. and that he alone needs to moderate his behaviour if access can continue between him and S. We are at a crossroads in this regard.
Given that PCAS was working towards home visits between S. and Mr. F., I find that this work must continue, and a buffer be placed between Mr. F. and PCAS to assist in focusing on his ability to meet S.’s needs while he cares for her. This is a central concern for the court.
As such I have structured an access order that requires Mr. F. to respect the conditions of Access (Restraining access) as per section 137 (1) and that the PCAS is ordered to hire a 3rd party professional supervision service to assist in facilitating home visits. This order is further being made pursuant to section 94 (8) and (9). See:
Adjournments
94 (1) The court shall not adjourn a hearing for more than 30 days,
(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or
(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.
Custody during adjournment
(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.
Where child is subject to extra-provincial order
(3) Where a court makes an order under clause (2) (d) in the case of a child who is the subject of an extra-provincial child protection order the society may, during the period of the adjournment, return the child to the care and custody of the child welfare authority or other person named in the order.
Criteria
(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).
Placement with relative, etc.
(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.
Terms and conditions in order
(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
Application of s. 107
(7) Where the court makes an order under clause (2) (d), section 110 (child in interim society care) applies with necessary modifications.
Access
(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.
Power to vary
(9) The court may at any time vary or terminate an order made under subsection (2).
From the above section 94(8) I find that I have the ability to request the PCAS to spend money and employ resources regarding Mr. F.’s access to S. I don’t have this ability when it comes to the needs of a child in the care of a person which I find at odds and an area in the CYFSA legislation that needs to be reconsidered in these difficult financial times for persons and families who care for children out of PCAS care. This I leave for another day.
The order below is also a variation of the June 2022 TCC order and pursuant to section 137 (1) noted above regarding restraints on a person’s access to a child.
Temporary Order: varying the access terms of the June 30, 2022 TCC order and replacing the order of J. Clay dated November 10, 2022 - Order to issue as follows:
PCAS shall hire a professional supervised access service to assist with supervised home visits between S. and Mr. F.
Disclosure of information to 3rd Party: This professional service will be provided general information of the difficulties in communication that has existed in this matter between PCAS and Mr. F. and hence the need to such assistance (PCAS will be careful to safeguard the level of disclosure. Mr. F.’s name and address and contact information will need to be provided, however, not the other parties) a copy of the terms of this Temporary Order may be provided as well.
The professional service will provide to PCAS observation notes of each visit that PCAS will disclose to the parties when they receive these. These notes will be accumulated and filed in a group with the court for a date to be determined.
This service shall be hired and in place to begin access during the week of January 8th, 2023.
This access will be once per week from 3:30 p.m. to 6:30 p.m. The day of the week to be agreed to between Mr. F. and PCAS counsel – see below:
Condition on Mr. F.'s access with his daughter:
- Pursuant to section 137(1) of the CYFSA, Mr. F.’s access to S. shall be conditional on Mr. F. conducting himself as set out below and this access may be terminated if Mr. F. breaches these conditions and/or other protection concerns arise impacting S.’s best interests:
a) For the duration of this order until changed Mr. F.’s communication with PCAS shall be via a lawyer(s) for PCAS. This lawyer(s) shall be chosen by PCAS and a telephone number and email of the lawyer(s) is to be provided to Mr. F.
b) Mr. F. in all his communication with PCAS counsel shall not use abusive language.
c) Mr. F. when communicating with the 3rd party supervised access service shall be respectful and polite. He shall not discuss the details of this file before the court or his opinion of PCAS with this 3rd party supervised access service. He will not use abusive language in conversations with the 3rd party supervised access service.
d) During his time with S. and at all times in S.’s presence he will not swear or use abusive language or refer poorly about the grandparents or Ms. C. in any fashion, and in addition he will not question S. about the grandparents or Ms. C.
e) The 3rd party supervisor will be the person to receive S. from the volunteer driver in front of Mr. F.’s apartment building, with Mr. F. being present but a distance away - some 10 yards from the car but in eyesight of S. in order that she may proceed to leave the car and go to him, as she knows him.
f) During exchanges, Mr. F. shall not approach the volunteer driver’s car or speak to the driver at the start or end of the exchange of S. Mr. F. will remain a polite distance away of the car, but in eyesight, to receive S. from the person conducting the 3rd party supervised access service.
g) The access start and finish times must be strictly followed.
h) These initial visits will be at Mr. F.’s apartment unless ordered otherwise and for the time being no other person is to be present, but for the 3rd party supervisor.
i) Mr. F. is to have a meal available for S. and change of clothing as needed for his daughter and some activities that are not all video based.
j) If for any reason the visit cannot occur, Mr. F. will work with PCAS counsel to ensure that the following visit proceeds.
k) Any concerns Mr. F. may have that arise from the visits with S. are to be communicated to the PCAS lawyer in an email and not discussed with the 3rd party supervision service provider.
Next event in this file shall be January 4, 2023 at 12:30 p.m. to review the implementation of this order. This will be via zoom video.
I find no grounds for all further court proceedings to be virtual – this request is dismissed.
December 21, 2022
Justice A.W.J. Sullivan
PCAS is requested to take out this order within a week and also the TCC order from June 2022.
Please send to the Court Administration to be issued on or before January 1, 2023 and copies to be provided to PCAS, Ms. C. and Mr. F.

