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.

Court File No. 23-1015-02

Date: February 24, 2025
Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto
Fatima Husain, for the Applicant
Applicant

• and -

K.N.
Acting in Person
Respondent Mother

• and -

A.S.
Emily O’Keefe, for the Respondent Father
Respondent Father

• and -

B.C.
Acting in Person
Respondent Kith Caregiver

Robyn Switzer, on behalf of the Office of the Children’s Lawyer for the Child

Heard: February 10, 2025
Justice: Joanna Harris

Reasons for Decision

Part One – Introduction

[1] This court proceeding concerns the Child, K.S.-N., born [...], 2019, currently five years old (the “Child”).

[2] In the Status Review Application, issued June 24, 2024, the Catholic Children's Aid Society of Toronto (“CCAST”) seeks an order under s. 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) for a deemed custody order placing the Child with the Kith Caregiver, who is a friend of both parents, with the Child’s access to the parents at the discretion of the Kith Caregiver.

[3] The Father filed an Answer and Plan of Care, dated July 10, 2024. The Father seeks a s. 102 deemed custody order placing the Child with him, and that he shall have sole decision-making and primary residence. Alternatively, he seeks to have the Child placed in his care under a supervision order with terms and conditions.

[4] This decision relates to two contested motions filed within the Status Review Application.

[5] The issues the court was asked to determine are:

a) Whether the records sought by CCAST from Correctional Services Canada, the Ministry of the Solicitor General, Toronto South Detention Centre, Toronto Police Service, and the Attorney General of Ontario all pertaining to the Father should be produced to CCAST, as set out in CCAST’s Notice of Motion, dated January 17, 2025?

b) Whether the Father should have supervised access to the Child including telephone calls three times per week and video calls once per week, for a minimum of fifteen minutes per call, supervised by either CCAST, Brayden Supervision Services Inc., or the paternal grandmother, as set out in the Father’s Notice of Motion, dated January 19, 2025?

[6] The following evidence was filed:

1. Affidavit of the Family Service Worker (“FSW”), sworn January 17, 2025;
2. Affidavit of the Father, sworn January 19, 2025;
3. Affidavit of the Father, sworn January 27, 2025; and
4. Affidavit of the Kinship Worker, sworn February 5, 2025.

[7] A Statement of Agreed Facts dated January 5, 2024 (“SAF”) resolved the protection application with a disposition order placing the child in the care of the Kith Caregiver, subject to supervision by CCAST for six months. Additionally, the SAF resolved the Child’s access with the Mother and the Father, which was agreed to be at the discretion of CCAST with respect to location, duration, frequency, and level of supervision. The Father was incarcerated at Joyceville Institution at the time the SAF was signed.

[8] On February 6, 2024, Justice Kapurura made a final order based on the SAF (the “Final Order”). The Final Order states that the Child’s access by the Mother and the Father shall be at the discretion of CCAST with respect to location, duration, frequency, and level of supervision. The discretion given to CCAST does not include discretion to suspend or terminate access.

[9] An affidavit of service serving the Ministry of the Solicitor General and the Toronto South Detention Centre was not filed with the court. Therefore, the production of records sought are not ordered and are adjourned for further submissions at the next appearance.

Part Two – Background facts

[10] According to the SAF, CCAST became involved on June 25, 2019, following a referral from a physician, prior to the Child’s birth on [...], 2019.

[11] There were ongoing protection concerns related to the Mother’s ability to meet the needs of the Child and the conflictual relationship between the parents as well as their substance use. CCAST responded to community referrals about incidents of domestic violence which were often associated with excessive substance use, where the Child was present.

[12] The Father acknowledges that the parents had a tumultuous relationship and would often argue.

[13] The Father indicates that in or around March 7, 2020, the parents argued and the Mother called the Toronto Police Service (“TPS”) resulting in the Father being transported to Scarborough Hospital, where the Father was assessed and released the following morning.

[14] The parents separated following this incident but then reconciled in and around April 2020.

[15] CCAST’s evidence is that on July 19, 2020, the Father allegedly assaulted the Mother after they had been drinking and specifically, the Father allegedly kicked the Mother in the right thigh and the Child was present. The Father acknowledged engaging in a physical altercation with a friend of his, which caused the Mother and other partygoers to contact the TPS. The Father denies he assaulted the Mother but he was arrested and charged. His friend declined to press charges against him. CCAST’s evidence included that the Mother shared with TPS that she was frightened of the Father as he often threatens to kill when they argue. The Father disputes this version of events and states that if CCAST is seeking to rely on a specific TPS report then a copy of the TPS report should be attached to their worker’s affidavit as an exhibit.

[16] The Father was arrested on July 19, 2020, and released from custody on July 27, 2020. The Father’s release conditions prohibited him from contacting the Mother or being anywhere she was known to be.

[17] On August 30, 2020, despite a no-contact order, the Mother, the Father and the Child were residing with a mutual friend. This friend asked the family to leave her home and spoke to the Father in a derogatory manner. The Father states that when he was attempting to leave, the mutual friend began to wrestle with him as he tried to grab the bag he brought with him. The Father states that he left to avoid a further escalation of conflict. The Father refers to what was noted by TPS, but does not reference an officer or occurrence report number.

[18] The Father states that on his walk home, he realized that he had left his wallet, phone and his bag at the mutual friend’s home and so he went back. He saw the Mother outside the residence, and the Child asleep in her stroller. He knocked on the back door but there was no answer. The Father admits that he went to front door and opened a window to attempt to enter the home. The Father states that the mutual friend began hitting him with a baseball bat. The Father states that when he was being hit with the baseball bat, the Mother jumped on him and began to claw him. The Father states that to avoid further injury he pushed the Mother off his back and grabbed her to restrain her. He denies an intention to harm the Mother and states that he “acted purely on instinct in the moment.”

[19] According to CCAST, the Father returned to the home, had a loaded gun, broke-in, and entered the home. The mutual friend reportedly hit the Father over the head with a baseball bat and called TPS. Additionally, according to CCAST’s evidence, the Father assaulted the Mother choking her to the point of being unconscious.

[20] The Father admits he was charged with assault with a weapon, attempted murder, two counts of failure to comply, possession of a firearm, careless storage of a firearm, and possession of a weapon.

[21] The Father was incarcerated from August 2020 until August 8, 2024. The Father engaged in two altercations during his incarceration, for which the Father was not criminally charged.

[22] The Father completed the Dad Hero (a parenting program), which teaches fathers how to engage with their children by telephone among other parenting skills. The Father also completed a Smart Recovery program.

[23] While incarcerated, the Father spoke with the Child on a regular basis by telephone facilitated by the Kith Caregiver.

[24] On December 3, 2021, the Mother voluntarily placed the Child with the Kith Caregiver, a mutual friend of the parents, where the Child has remained since that date. The Kith Caregiver also has two biological children.

[25] On August 6, 2024, the Father was released to St. Leonard’s Society of Toronto Walter Huculak House (a “halfway house”). The Father remains under criminal conditions, but the court was not provided a copy of what the Father’s conditions are. The Father states one of his conditions is to reside at a designed community-based residential facility approved by Correctional Services of Canada, until his warrant committal in July 2025.

[26] On August 13, 2024, CCAST held an internal conference on access for the Father and a schedule was developed for virtual access on Thursdays from 3:30 p.m. to 4:30 p.m.

[27] On August 20, 2024, CCAST supervised a virtual access visit between the Child and the Father. There were no concerns. The Father advised the FSW that he had obtained employment, which made him unavailable until after 7:00 p.m. on weekdays.

[28] On August 23, 2024, CCAST determined that the Father was not suitable for CCAST Saturday Access Program because he needed a higher level of supervision. CCAST determined that a professional supervision service would be paid for by CCAST.

[29] On August 31, 2024, the FSW supervised the Father’s in-person access and the Father was appropriate, no concerns were reported, but the Child had difficulty ending the visit and emotionally dysregulated.

[30] On September 10, 2024, the Father contacted the FSW to inquire about his next in-person access visit. CCAST was willing to pay for a third-party professional (Brayden Supervision Services Inc.) to supervise the Father’s access on weekends to accommodate the Father’s work schedule. Visits were scheduled every Saturday 1:30 to 3:30 p.m. fully supervised at CCAST office. Additionally, the Father was contacting the Kith Caregiver daily or every other day to speak with the Child by phone.

[31] In mid-September, 2024, the Child asked the Father for a scooter for her birthday.

[32] On September 21, 2024, the Father cancelled his access visit because he stated he was working.

[33] On September 28, 2024, during the Father’s access visit, the Father gave the Child the scooter and she was happy to receive it. This visit was positive. The Father brought the Child lunch. The Father was observed to be affectionate, loving, and appropriate with the Child.

[34] On October 1, 2024, a kinship review meeting took place. It was discussed that the Child was enjoying her in-person and telephone access with the Father. The Father was requesting additional access.

[35] By October 2024, there was minor verbal conflict occurring by text message between the Father, his girlfriend, and the Kith Caregiver.

[36] On October 5, 2024, there was a miscommunication and the Father missed his weekly access visit. The Child and the Father spoke by phone. The Child became emotional and was crying. The Child did not want to return home but wanted to stay and play.

[37] On October 12, 2024, the Father had access with the Child. The Father brought lunch for the Child and there were no concerns.

[38] On October 19, 2024, the Father had access with the Child. The Child ran to her Father, smiled and jumped into his arms and hugged him tightly. The Father was warm and affectionate. The Father brought the Child lunch. The Father and Child engaged in play, including pretend play, and there were no concerns.

[39] October 26, 2024, the Father had access with the Child. The Child again greeted the Father with a big running hug. On this day, the Child had a tougher visit and was reluctant to engage with the Father responding in a one word answer: No. The Father took a couple of phone calls, which he stated were from his work and the bank. The Father Face-Timed with his girlfriend, but the Child was not interested in speaking to her. The Father was continuously distracted by his phone at times during this visit. When the Child was making silly faces, the Father stated that the Child looked like her Mother. As a result, the Child began slapping her face.

[40] On Saturday, November 2, 2024, the Father cancelled his access visit because he was working.

[41] On November 9, 2024, the Father had access with the Child. The Child was excited to see her Father, smiled widely, ran to him, jumped into his arms, and hugged him tightly. The Father hugged her back and told her it was good to see her and that he loved her so much. The Child told the Father she loved him too. The Father brought the Child lunch. The Father played with the Child appropriately, watched her draw and showed her how to form letters. The Father called a friend on Face-Time but when the Child was not interested he ended the call. The Child was emotionally dysregulated at the end of the visit and did not want to separate from the Father or end the visit.

[42] On November 13, 2024, the Father shared with the FSW that he was required to complete a mental health assessment as required by his probation and from this assessment his needs would be determined. The Father was shared that he is also required to live in the halfway house until August 2025.

[43] According to the affidavit of the FSW, and the Father’s affidavit, sworn January 19, 2025, Brayden Supervision supervised an access visit on November 16, 2024, between the Father and the Child, but no access notes were filed.

[44] By November 19, 2024, the Father and his girlfriend, during a virtual access conference with CCAST, advised the FSW that they were in a serious relationship and planned to live together once he left the halfway house. The Father’s girlfriend shared that she had seen the Child on several occasions after her visits with the Father because the girlfriend waits outside CCAST’s office and says hello to the Child when the Child gets into the volunteer driver’s car. It was agreed by CCAST, during this access conference with CCAST, that the Father’s access would be increased by a half an hour and the level of supervision would be decreased to partial supervision.

[45] On November 21, 2024, the Father had access with the Child. The Father was 15 minutes late. The Child ran and jumped to hug the Father when he arrived. The Father made a video-call to a female and asked her to order McDonalds for the Child. The Father and Child engaged in a video-call and played. The Child ate her McDonalds. The Child was again dysregulated at the end of the visit.

[46] On November 30, 2024, there was no visit because the Child had a party to attend.

[47] On December 7, 2024, the Father’s access with the Child was cancelled because he was not feeling well.

[48] On December 7, 2024, the Father attended at the Kith Caregiver’s home for a short visit, which was not approved by CCAST, and reportedly had a bloody nose. The Father does not mention this visit in his affidavit, sworn January 19, 2025. The Father states he has not had access since November 2024, and has been denied phone calls with the Child since his arrest on […], 2024. In the Father’s affidavit sworn January 27, 2025, he denies the allegation that he attended a visit with the Child with a bloody nose.

[49] CCAST received information from the Mother that the Father had attended at her home on December 7, 2024 and appeared to be under the influence of substances and was not making sense and shared that his girlfriend posted something inappropriate about him on Facebook. The Mother was emotional describing this to the FSW. The Father admits he attended at the Mother’s home but denies that he was under the influences, alleges the Mother consumed alcohol and smoked what he believed to be crack cocaine in a pipe, and denied that he made any comment about returning to jail or had a bloody nose.

[50] The Kith Caregiver reported to the FSW that, on […], 2024, around 6:18 p.m. the Father contacted her and thanked her for taking care of the Child and asked her to continue taking care of the Child.

[51] On […], 2024, the Father was arrested and charged with first degree murder related to the death of his girlfriend. The Father was not granted bail. The Father does not anticipate being released from jail prior to his criminal trial.

[52] CCAST became aware, through various media reports, that certain assessments of the Father had been completed related to spousal assault risk.

[53] There was no visit on […], 2024, because of the Father’s arrest.

[54] The Father is incarcerated at Toronto South Detention Centre and continues to request access with the Child. The Father intends to defend the criminal charges at trial, but does not have a trial date scheduled.

[55] On December 17, 2024, the Father’s lawyer wrote, by email, to counsel for CCAST requesting a minimum of three phone calls per week but the Father’s preference would be daily phone calls, facilitated by the Kith Caregiver.

[56] On December 20, 2024, the Father’s lawyer wrote, by email, to counsel for CCAST and requested a Christmas phone call. In response CCAST took the position that they would arrange “limited access cautiously only after further information is provided” and requested that the Father sign consents for CCAST to speak with his previous parole officer and Correctional Services of Canada. The Father’s lawyer requested a particularized list of all documents CCAST was seeking.

[57] The Father has refused to sign consents to allow the Society to receive access to the information sought in the Society’s motion or contact with Toronto South Detention Centre.

[58] On December 23, 2024, CCAST consulted with Kith Caregiver, the Kinship Worker, and the clinical director, Dr. Lara de Bona, to determine how best to communicate to the Child that her Father was incarcerated and facing serious criminal charges. The clinical director’s recommendations were for the Kith Caregiver to let the Child know that the Father had made a mistake and needed to go to jail, and that the Child cannot see him. The Kith Caregiver was to reassure the Child that she is loved, no recommendations for therapy were made for the Child, apparently due to her age. The Father does not agree with the step recommended by Dr. de Bona.

[59] This decision was communicated to the Paternal Grandmother who shared that she did not think it was a good idea for there to be no access to the Father.

[60] On December 30, 2024, the Kith Caregiver told the FSW that she had told the Child about the Father’s situation. The Child cried for a few minutes; however, settled shortly thereafter and returned to playing with her toys. The Kith Caregiver also shared with CCAST that she was unable to facilitate telephone access for the Father and the Child at that time because of the Father’s charges and the Kith Caregiver’s need to focus on the Child and her own children.

[61] On January 8, 2025, the matter was brought into this Court on an urgent basis to be spoken to in order to address the Father’s incarceration and the impact on access. This motion was scheduled that day.

[62] During the court attendance, on January 8, 2025, the Father was extremely emotionally dysregulated as he appeared by ZOOM while incarcerated. He was muted by the court as a result of his yelling profanity, inappropriate gestures, and throwing a chair at the screen. The Father states that he deeply regrets his behaviour and acknowledges that he was emotional and behaved inappropriately. The Father asks the court to consider the impact of his incarceration and denial of access with the Child on his emotional state.

[63] On January 8, and 10, 2025, the school social worker and the Child’s teacher reported to the FSW that the Child has progressed very well over the last two years, but continues to have angry outbursts. The Child mentioned to the school social worker that her Father is in jail and that she misses him. The Child’s teacher does not think the Child requires play therapy because the Child is reportedly “thriving” and the teacher wants her to continue “thriving and experience normalcy.”

[64] The Father raises several concerns, as follows:

1. The Kith Caregiver is in a relationship with a federal offender. The federal offender, according to the Father, was convicted of sexual assault against a minor, and is serving time at Bath Institution, and has received approval for private family visits, which information has been concealed by the Kith Caregiver from CCAST.

2. The Kith Caregiver’s Facebook profile is riddled with references to consuming alcohol and cannabis.

3. The Kith Caregiver permitted access visits with the Mother that were not approved by CCAST beforehand. For example on December 26, 2024, the Kith Caregiver permitted a visit between the Child and the Mother in the community, despite the Mother’s use of illicit substances, her failure to attend access regularly, her mental health challenges, and lack of engagement with CCAST to address the protection concerns.

[65] On February 5, 2025, the Kinship Worker spoke with the Kith Caregiver who stated that the Child clearly misses the Father. The Kith Caregiver denies the allegations made by the Father and is hurt by them. However, the Kith Caregiver supports the resumption of telephone access.

[66] The Child is described as “a happy, energetic child who presents as safe and happy in her kin home.” The Child is in good health. She loves to draw, print her name and play dress-up. She easily goes to her Kith Caregiver for affection when needed and gets along with the Kith Caregiver’s other children.

Part Three – Positions of the Parties and Non-Parties

3.1 – CCAST’s Motion for Production of Third-Party Records

[67] CCAST takes the position that the records sought should be produced because they are relevant to the issues between the parties as defined by the pleadings, including assessing the Child’s safety.

[68] The Father concedes some relevance of the third-party records but opposes CCAST’s for the production of such records, for the following reasons:

1. CCAST’s motion should have been brought within the protection application or upon the Father’s release from incarceration when CCAST was assessing the appropriateness of in-person access;

2. The Father is entitled to a reasonable expectation of privacy with respect to the records in the possession of Correctional Services of Canada, and opposes the orders sought by Catholic Children's Aid Society of Toronto;

3. The records are not necessary in order to decide the access motion and should not be ordered; and

4. The request for records from Correction Canada specifically is overly broad and the Notice of Motion does not have a timeframe for the records sought, and include all medical reports, because the documents may qualify as privileged under the “Wigmore test” adopted by the Supreme Court of Canada in Slavutych v. Baker, 1975 SCC 5, [1976] 1 S.C.R. 254.

[69] The motion brought by CCAST for records is supported by the Kith Caregiver, the Mother, and the Office of the Children’s Lawyer (“OCL”).

[70] The TPS wrote a letter, dated February 5, 2025, which indicates that they do not oppose the order sought which excludes records related to ongoing criminal matters. TPS defers to the Ministry of the Attorney General, Crown Law Office – Civil (the “Crown”) and the process endorsed by the Court of Appeal for Ontario in P. (D.) v. Wagg, 2004 ONCA 39048, 71 O.R. (3d) 229 (OCA).

[71] The Crown did not attend or file any response to the Motion, despite being served on January 17, 2025. The court is concerned that the Crown may not have been adequately served, or missed the hearing through inadvertence and therefore is adjourning, to the next appearance, the portion of the records request that addresses the ongoing criminal charges in order to receive further submissions. CCAST and the Crown may be able to develop terms of a consent order during the adjournment period for further consideration by the respondent parties and the court.

[72] Corrections Canada provided a draft order, which CCAST accepts with respect to the production of records sought. The draft order specifically excludes hospital or medical records, which CCAST submits addresses the Father’s concerns about privacy and privilege. The draft order states the following specific information with respect to the records that will be produced:

“The documents relating to the Father consisting of Casework records from parole release (between 2024-08-05 until 2024-12-08), All assessments for decisions (between July 18th, 2022, to […], 2024), All program reports (between July 18th, 2022, to […], 2024), Criminal profile (between July 18th, 2022, to […], 2022, to 2024), Community assessments for offender’s contact (between July 18th to […], 2024), All Parole Board decisions (between July 18th, 2022, to […], 2024), Observations reports (between July 18th, 2022, to […], 2024), Psychological/Psychiatric assessments (if they exist), Detention Pre-Screening recommendation/decision to refer, as described in the document entitled “Table of contents,” attached as Schedule A to this Order, which shall be screened and redacted …”

3.2 – Father’s Motion for Access

[73] At the motion, CCAST no longer opposes the Father having supervised telephone and video access; however, CCAST does not consent to supervise these telephone or video access visits themselves, as the worker has to share a lot of personal information with the Toronto South Detention Centre in order to be approved for phone calls, and because the final order access order CCAST is seeking is a deemed access order at the Kith Caregiver’s discretion.

[74] CCAST will no longer pay a third party to supervise these visits, but does not oppose the use of a third party supervisor as long as the Father bears the costs. CCAST is agreeable with the Paternal Grandmother supervising the Father’s access. CCAST also does not want the Kith Caregiver to be in an uncomfortable position that she does not agree to in order to supervise the visits. CCAST also takes the position that it is very important that a supervisor monitor the Child’s reactions to ongoing access with the Father.

[75] At the motion, the Kith Caregiver expressed that she is now willing to supervise the telephone and video access visits, if the Father is not aggressive. The Kith Caregiver also supports the Paternal Grandmother supervising access with the Father when the Child is visiting the Paternal Grandmother.

[76] The OCL was recently appointed and has met once with the Child, on February 7, 2025, at the Child’s school. The Child expressed that the wanted contact with the Father. The Child also shared that she is very happy living with the Kith Caregiver.

[77] The Mother has concerns but does not strenuously oppose the Father having supervised telephone and video access.

[78] The Father submits that the court should not consider the Mother’s position as she is in a default position and has not filed an Answer.

Part Four – Law

4.1 – Evidence on a Motion

[79] This is a motion for the production of records, and a motion to vary a final order with respect to access. It is not a motion for summary judgement, where evidence must be trial worthy.

[80] The Father raised preliminary evidentiary issues with respect to the late filing of the Kinship Worker’s affidavit, hearsay evidence contained in both workers’ affidavits, references to TPS reports, which full reports were not included in the FSW’s affidavit, as well as references to media reports, which were not included in the FSW’s affidavit.

[81] The Father seeks to strike the following paragraphs from the FSW’s affidavit:

30. Subsequently, on […], 2024, I accessed the internet to obtain further information. In a media release on Global News and other Canadian news outlets obtain [the Father’s] records from the Parole Board of Canada documents which indicated" ... You have been violent in intimate partner relationships and your use of substances increases your risk of reoffending. At the current time, you require further treatment to address your substance use and your mental health, including your ability to manage your emotions ... ". The media report further stated that" ... A spousal Assault Risk Assessment also deemed Shea posed a moderate risk of violence towards an intimate partner and a moderate risk to other in the context of family violence ... " The report indicated that [the Father] was charged with first degree murder.

31. In a media release on Global News and other Canadian news outlets indicated" ... A spousal Assault Risk Assessment also deemed [that the Father] posed a moderate risk of violence towards an intimate partner and a moderate risk to other in the context of family violence ... "

[82] The FSW’s affidavit refers to these media reports to support CCAST’s production motion seeking production of assessments that may exist about the Father. Additionally, the workers make multiple references to statements made to them outside of their direct knowledge.

[83] It is well established that traditional rules of evidence prescribe that hearsay evidence is inherently unreliable and as a result is generally inadmissible: Huron-Perth Children’s Aid Society v. C.H., 2007 ONCJ 744 at paragraph 17.

[84] However, there is some limited ability to admit hearsay evidence under subrules 14(18) and 14(19) of the Family Law Rules, O. Reg. 114/99 (the “Rules”), which govern the content of affidavits to be used on a motion. The relevant portions state as follows:

14 (18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.

14 (19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true;

[85] The Rules permit the use of hearsay evidence in motions seeking temporary orders. Whether that hearsay evidence is given any weight in a motion will depend on a number of factors:

1. The importance of the truth of that second or third or fourth-hand information to the resolution of the disputed facts; in short, what, if anything turns on it;

2. The opportunity that the society reasonably had to obtain and present directly what it has chosen to present indirectly; and

3. The extent to which the parents or party was present when the statement or observation were made, and given an opportunity to respond to then, either at the time or thereafter.

Children's Aid Society of Toronto v. M. F., 2002 ONCJ 45134 at paragraph 17.

[86] When children are involved, if the evidence is relevant, necessary, and probative to the matters in issue, the court should take an expansive and not a technical approach to its admission: Winton v. Lofranco, 2004 ONSC 7043.

[87] This principle has been applied to child protection cases where courts are tasked with ensuring the safety, protection, and best interests of children: Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784 at paragraph 27.

4.2 – CCAST’s Motion for Third-Party Records

[88] Section 130 of the CYFSA governs the production of third-party records in a child protection application.

[89] Subsection 130 (2) of the CYFSA states:

Motion or application for production of record

130 (2) A Director or a society may at any time make a motion or an application for an order under subsection (3) or (4) for the production of a record or part of a record.

[90] Subsection 130 (3) of the CYFSA sets out the test for an order to be made as follows:

Order on motion

130 (3) Where the court is satisfied that a record or part of a record that is the subject of a motion referred to in subsection (2) contains information that may be relevant to a proceeding under this Part and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court.

[91] Justice Kukurin summarized Section 130, in Children’s Aid Society of Algoma v. J.R., 2018 ONCJ 835 at paragraph 8, as follows:

Section 130 CYFSA is available only to a society. It is not available to other litigants, including parent litigants in child protection proceedings. The purpose of a s.130 production order is to assist a society in carrying out its mandate, which is primarily the protection of children as well as promoting their best interests and well being. In pursuing these objectives, a children’s aid society is invariably tasked with investigating certain matters. It is given statutory help in its investigation by provisions like s. 130 CYFSA. That such records may also form part of a society’s evidence in a case does not change the investigative purpose underlying s.130.

[92] The criteria for the court to consider is whether the record contains information that may be relevant to a proceeding.

[93] Relevance is determined by reference to the pleadings. A document is “relevant” if it is logically connected to and tending to prove or disprove a matter in issue: Sycor Technology Inc. v. Kiaer, 2012 ONSC 5285, at paragraph 23. However, the test for production of records under s. 130 is far less stringent than the civil test for production from third parties: Children’s Aid Society of Algoma v. J.R., 2018 ONCJ 835 at paragraph 6.

[94] The burden is not an onerous one. The test is also ultimately a discretionary one, to be exercised in a manner that reflects the paramount purpose of the legislation - which is to promote the best interests, protection and well-being of children: Children’s Aid Society of Ottawa v. D.M., 2019 ONSC 7509 at paragraph 8.

[95] One of the enunciated purposes of the CYFSA, although not the paramount purpose, is:

Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

[96] Appropriate sharing of information is critical to the protection of children.

[97] Where the best interests of the child are at issue, the court has a positive obligation to ensure that the most helpful and relevant information is before the court: Children’s Aid Society of Ottawa v. J.L., 2021 ONSC 2103 at paragraph 17, and Children’s Aid Society of Algoma v. J.R., 2018 ONCJ 835 at paragraph 6.

[98] Police records, notes and incident reports are relevant under section 130 of the CYFSA: Children’s Aid Society of Ottawa v. J.L., 2021 ONSC 2103 at paragraph 17, Children's Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100 as cited in Children’s Aid Society of Algoma v. J.R., 2018 ONCJ 835 at paragraph 6.

[99] While there may be records that are exceptionally sensitive and touch upon intensely private matters that should be protected from production even to children’s aid society, on the ground that they are of marginal utility to a child protection investigation, in most cases production of relevant police records to a children’s aid society will not undermine the reasonable expectations of privacy of a third party referred to in those records: Children's Aid Society of Algoma v. D.P., 2007 ONSC 39363 at paragraph 27.

[100] The court does not weigh privacy interests in a s. 130 hearing other than the privacy interests already provided for in the section (including in relation to privileged documents, records of personal health and records of a mental health disorder, for instance): Children’s Aid Society of Ottawa v. J.L., 2021 ONSC 2103 at paragraph 17.

[101] There may be circumstances where dissemination of personal information is seriously harmful to a third party but of little utility to a children’s aid society: Children's Aid Society of Algoma v. D.P., 2007 ONSC 39363 at paragraph 20.

[102] A party who raises concerns about privacy interests in the context of a production motion cannot simply raise the specter of possible harm in defence of the motion. Concerns about the impact of impinging on privacy interests will only form part of the analysis under s. 74(3) if there is an evidentiary basis to support those concerns: Catholic Children’s Aid Society of Hamilton v. L.K., M.T. and W.T., 2016 ONSC 15148 at paragraph 12.

[103] The CYFSA permits and encourages the appropriate sharing of information with Children’s Aid Societies to ensure the protection, safety, and best interests of children.

4.3 – Father’s Motion for Access – Varying A Final Access Order on A Temporary Basis within A Status Review Application

[104] The Final Order states that the Father’s access is at the discretion of CCAST.

[105] The authority to change an access order is contained in subsection 104 (1) of the CYFSA. This subsection reads as follows:

Access order

104 (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2), make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[106] Section 104 of the CYFSA does not preclude the court from varying a final order for access on a temporary basis: Children’s Aid Society of Algoma v. A.B., 2012 ONCJ 351, as cited in Catholic Children’s Aid Society of Toronto v. C.P.I., 2020 ONCJ 304 paragraph 53.

[107] In Children’s Aid Society of Algoma v. C.P., 2013 ONCJ 740, the court wrote that there must be a comparison of the current situation to the situation at the time of the original order when changing a final protection order on a temporary basis during a status review application. The change does not necessarily have to be material but there needs to be a change in circumstances based on the best interests of the child. The status quo is represented by the existing order. The person who wants to change that order has the onus of demonstrating not only that some change in circumstances has taken place, but also:

(a) that this change in circumstances renders the existing order no longer in the best interests of the child(ren); and

(b) that the new order sought now represents what is in the best interests of the child(ren).

[108] Subsection 74 (3) of the CYFSA sets out that where a court is directed to make an order or determination in the best interests of a child, it shall do the following:

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[109] Access is the right of a child. There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should be forfeited only in the most extreme and unusual circumstances: V.S.J. v. L.J.G., 2004 ONSC 17126 at paragraph 128.

[110] A child’s right to access with a parent invites a further layer of complexity in a child protection proceeding. A court must engage in a careful balancing of the benefit of a parent’s care, the specific risk of harm to the child while in that parent’s care, and the measures in place for risk reduction: CAS v. C.F. and J.M., 2020 ONSC 3755 at paragraph 33.

[111] Supervised access must serve the best interests of the child and not necessarily the interests of the parent: CAS v. C.F. and J.M., 2020 ONSC 3755 at paragraph 36.

[112] In Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, Justice Sherr sets out the flexible approach to changing a temporary order using a contextual analysis. The variation must be proportionate to the change in circumstances so that any additional risk is mitigated by a Society’s plan.

Part Five – Analysis

5.1 – Evidence

[113] These motions do not turn on whether there is strict compliance with subrule 14(19) of the Rules. Many of the general facts are not disputed, although certain details are. Resolving all the disputed facts is not necessary in order to decide these motions for temporary orders and should be left to trial.

[114] When statements are made about information in the workers’ affidavits, the workers specifically refer to other workers, police officers, the parents, and the Kith Caregiver as the source of the information. However, the Father does not identify the source of some of the statements made in his affidavit.

[115] Moreover, the Father is refusing to provide consent to CCAST for the police records, which he faults CCAST for failing to attach to affidavits. Even if CCAST had the TPS records to attach to the workers affidavits such records would still be hearsay. Additionally, the Father refers in his evidence to what the police noted about the August 30, 2024 incident but does not attach a report from TPS.

[116] With respect to CCAST’s failure to attach the media reports, it relied upon, it may have been preferable for the Society to attach those news articles, but there is no dispute that the Father was convicted of offences, was incarcerated, was paroled, is currently facing serious charges and is again incarcerated. Reference to the media reports was included to indicate that CCAST workers had learned about the possible existence of assessments completed on the Father that may be relevant to this proceeding and to support CCAST’s request for production of records, and not for the truth of the findings of any such reports.

5.2 – CCAST’s Motion for Third Party Records

[117] The records sought by CCAST in the notice of motion, dated January 17, 2025, with respect to TPS are relevant to the issues in the application as defined by the pleadings.

[118] While the court agrees with counsel for the Father that CCAST should have sought these records much earlier in the proceeding, perhaps even within the protection application, but the delay in seeking these records does not make them less relevant.

[119] Societies should seek third party records routinely and share information appropriately because it is an essential part of the protection of children. The failure to appropriately share information has resulted in tragic outcomes for children in Ontario, as exemplified by the Information Sharing recommendations at paragraphs 23-27 of the Verdict of Coroner’s Jury from the Inquest into the Death of Katelynn Sampson, received on November 29, 2017.

[120] The records sought by CCAST in the notice of motion, dated January 17, 2025, with respect to the Correctional Service of Canada were overly broad and did not include any timeframes. This may have been a result of not knowing what records exist. The draft order provided by Correctional Services of Canada, which CCAST is now seeking, is far more specific in terms of what documents will be provided and the timeframes, as well as permitting redaction and exclusions for hospital and other medical records.

[121] The records sought by CCAST in the draft order provided by Correctional Service of Canada are relevant to the issues in the application.

[122] The records sought by CCAST in the notice of motion, dated January 17, 2025, with respect to the ongoing criminal charges, require an adjournment for the court to hear from the Crown. The court wants to ensure the Crown has an opportunity to make submissions, and although CCAST appears to have made efforts to serve the Crown at a general email address, the WAGG law clerk should be emailed specifically. This issue is adjourned to the next appearance.

[123] Additionally, any records that continue to be sought from the Solicitor General for Ontario or the Toronto South Detention Centre are adjourned to the next appearance and the filing of an Affidavit of Service.

5.3 – Varying A Final Access Order on A Temporary Basis within a Status Review Application

[124] At the time the Final Order was made, the Father was incarcerated. However, he was released and began in-person access. The Father was then arrested, charged, and is currently re-incarcerated.

[125] CCAST went to extensive efforts to support the Father’s in-person access visits, including retaining and funding the services of a private company to supervise the access visits and accommodate the Father’s work schedule. It cannot be said that CCAST did not make significant efforts to support the Child’s access with her Father.

[126] The Child enjoys her access time with her Father. The Child and the Father began to develop an in-person relationship that the Child was observed to enjoy. The Child and the Father were affectionate and loving towards one another. The Child was disappointed when the visits were cancelled. The Father was entirely appropriate with the Child during those in-person supervised visits and there were no concerns noted. The Child currently misses access with the Father. The Child has experienced many difficult circumstances already in her young life. She has a very tenuous relationship with the Mother who does not exercise any access for months at a time. The Child has now also lost regular access with her Father. The Child is seeking a relationship with the Father.

[127] After the recent charges, the Kith Caregiver and CCAST workers were understandably concerned about the Father’s ability and willingness to meet the Child’s needs, and the impact of his incarceration on the Child.

[128] CCAST brought the matter to court early and within 30 days to hold an urgent speak to date in order to conference and address the issue of the Father’s access. The Father indicated he would be bringing a motion to resume his access. Unfortunately, the Father has demonstrated to this court, that he can quickly become emotionally dysregulated, angry, aggressive, and volatile.

[129] CCAST is no longer willing to fund a third party professional or make available their own worker to supervise the Father’s telephone/virtual access while he remains incarcerated. The Father is unable to afford this private service. CCAST is also supporting the Child’s Kith Caregiver who until the time of the motion did not feel that she could supervise the Father’s telephone/virtual access. The Kith Caregiver’s position is also understandable given the serious events that took place.

[130] Ideally, it may be best practices for societies to bring an urgent motion to address a prolonged suspension or termination of access, which is not permitted within discretionary access orders. However, in this case the urgent speak to date was nevertheless appropriate because it permitted the parties to establish workable timetables for the exchange of motion materials, which was complicated by the Father’s incarceration.

[131] The court is not prepared to make the orders sought in the Father’s Notice of Motion, dated January 19, 2025 because the minimum access visits may not be in the Child’s best interests, and also such an order is contingent on factors outside of the control of CCAST, for example institutional limitations including lockdowns where the Father is incarcerated, as well as the Father’s behaviour during telephone/virtual visits, and the ability and willingness of the Kith Caregiver to facilitate that access.

[132] However, the court finds that it is in the Child’s best interest for access to resume, given that the Child has expressed wanting to speak with the Father, the impact of the Father’s incarceration and absence on the Child’s wellbeing if she is disconnected from him entirely, as well as the Father’s ability to act entirely appropriately during previous supervised access visits. Additionally, the Kith Caregiver is now willing to supervise the visits. The Paternal Grandmother is also an option CCAST can approve.

[133] Father’s counsel points out that CCAST should not have concerns about the Father’s access because Toronto South Detention Centre is constantly monitoring, observing and recording the Father, but on the other hand the Father has refused to provide CCAST with the ability to speak with the institution. CCAST requires the ability to receive ongoing information, at least that information relevant to the issue of the Child’s access to assess the safety and appropriateness of the Child’s access. The Father will need to provide consent, after reviewing it with his counsel, for CCAST to speak with Toronto South Detention Centre on the issue of the Father’s presentation during access for access to resume, which may include receiving audio recordings of the visits, if available.

Part Six – Conclusion

[134] A final order shall go on the following terms:

1. Production of Third-Party Records –

   i. The orders sought with respect to the records held by TPS as sought in the Notice of Motion, dated January 17, 2025, and Correctional Services of Canada in the proposed draft order shall be made today.

   ii. The orders sought with respect to the records held by the Ministry of the Solicitor General and the Toronto South Detention Centre are adjourned. An affidavit of service must be filed with respect to the records sought from the Ministry of the Solicitor General and the Toronto South Detention Centre as well as any responses received, prior to the next appearance.

   iii. The orders sought with respect to the ongoing criminal charges are adjourned for an opportunity for the Crown to take a position and make submissions at the next appearance. Catholic Children's Aid Society of Toronto shall serve their motion materials to the WAGG clerk and an affidavit of service and any response received must be filed prior to the next appearance.

2. The Final Order with respect to access shall be varied on a temporary basis as follows:

   i. The Father shall provide a signed consent, after reviewing the consent with his counsel, for CCAST to speak with the Toronto South Detention Centre, or any other institution where he may be incarcerated, for the purposes of sharing information specifically about the Child’s access visits and the Father’s presentation during the Child’s access visits.

   ii. Upon consent being provided, the Father’s access shall be supervised at all times, but otherwise the Father’s access shall remain at the discretion of CCAST including duration, frequency and identity of supervisor.

   iii. Additionally, CCAST has the discretion to suspend access for up to 30 days without returning the matter to court, if the Child is not responding well to access, or if the Father is aggressive towards the Child or the access supervisor, i.e. the Kith Caregiver or Paternal Grandmother, during access.

   iv. If the Father’s access is suspended for longer than 30 days the matter shall be immediately returned to court by CCAST.

   v. The Father may write letters to the Child which shall be read by either the worker or Kith Caregiver prior to being given to the Child.

3. The remaining portion of the Motion with respect to the records related to the ongoing criminal charges, and any records sought from the solicitor general or Toronto South Detention Centre shall return to court April 15, 2025, at 10 a.m. Hybrid. Court administration is requested to provide the ZOOM link.

4. Father’s counsel shall obtain the 23B Prisoner’s Order to permit the Father to attend by ZOOM.

[135] The court thanks counsel for the professional presentation of this difficult case.

Released: February 24, 2025

Justice Joanna Harris