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.

87(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.

87(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 Information

Ontario Court of Justice

Date: October 17, 2025

Court File No.: 19-15904

Parties

Between:

Native Child and Family Services of Toronto Applicant

— AND —

K.M. Respondent mother

— AND —

Beausoleil First Nation Respondent First Nation

Before: Justice M. B. Pawagi

Heard on: September 17, 2025

Reasons for Judgment released on: October 17, 2025

Counsel

Alex De Melo — counsel for the applicant

Jeffrey L. Rouse — counsel for the respondent First Nation

Decision

PAWAGI, M. B. J.:

1. Nature of the Case

[1] On September 17, 2025 at the conclusion of the focused hearing, I made an order with reasons to follow, granting an extension of the statutory timelines pursuant to s. 122(5) of the Child Youth and Family Services Act ("provincial Act") and placing the child in the interim care of Native Child and Family Services of Toronto ("Native Child") for three months. The following are my reasons analyzing the use of the extension provision.

2. Positions of the Parties

[2] At the time of the focused hearing, the child had been in the care of Native Child for 16 months, since just after his birth. Native Child sought an order for a further three months interim care. Beausoleil First Nation supported that request. The court had earlier made orders dispensing with service on the mother on March 6, 2025, and finding there was no male parent within the meaning of the provincial Act on November 13, 2024.

3. Facts

[3] The mother has two older children, now ages 11 and 6. They were removed from her care, the older child at the age of 2 and the younger child shortly after birth, due to her struggles with drug addiction. The two children were placed with maternal grandmother, where they continue to reside, in Beausoleil First Nation on Christian Island, three hours drive north of Toronto.

[4] When the child before the court was born, in St. Michael's Hospital in Toronto, he tested positive for syphilis and was provided with morphine as he was experiencing signs of withdrawal. The mother acknowledged using drugs the day before his birth. Native Child placed a "letter of apprehension" in his hospital file on May 27, 2024, and on May 31, 2024, this court made a temporary order placing the child in the care and custody of Native Child on a without prejudice basis.

[5] On July 31, 2024, Native Child worker Miguel Torres met the mother at the office of the Ontario Disability Support Program when she was picking up her cheque. That was Native Child's only in person contact with her since the commencement of this proceeding. She has not had any access with the child that Native Child is aware of.

[6] On November 13, 2024, this court made an order on a default basis for statutory findings, protection findings pursuant to s. 74(2)(a)(i) and (b)(i) of the provincial Act and an order placing the child in interim care for three months. Native Child had canvassed maternal grandmother, and she was unable to present a plan. There were no other plans before the court.

[7] On February 12, 2025, at the first appearance of Native Child's Status Review Application seeking extended care, this court noted that the matter would be heading to the trial sittings of May 5 - 16, 2025, as that was at the one-year time limit for a child under 6 pursuant to s. 122(1) of the provincial Act. The matter was adjourned to March 13, 2025, for a combined settlement conference/trial management conference.

[8] Commencing in March 2025, Native Child and Beausoleil First Nation had extensive discussions regarding moving the child to an alternate care home in Beausoleil First Nation on Christian Island, so that the child could be closer to family and community members to form relationships that might result in a permanent plan. The child's foster placement in Brampton was a 2 ½ hour drive away from Christian Island which posed a barrier in the form of time and cost that prevented family or community members from having contact and forming a relationship with the child.

[9] On March 6, 2025, this court made an order dispensing with service on the Status Review Application on the mother as Native Child was unable to locate her.

[10] On May 14, 2025, this court held that it was in the child's best interests to set the trial date after the one-year limit given the child's upcoming move to Christian Island and the potential that would provide in finding a kin/kith plan for the child. Given that the only parties participating were Native Child and Beausoleil First Nation, a focused hearing was scheduled for September 17, 2025, on the following issue: Whether the court should make an order for extended care (as requested in the Status Review Application) or whether the court should grant an extension of the timelines and make a further order for interim care (which would require Native Child to amend their Application).

[11] On July 22, 2025, Native Child moved the child to the alternate care home on Christian Island. The delay was due to renovations required in the home and the scheduling of mandatory medical appointments for the child.

[12] Beausoleil First Nation is an Anishnaabe First Nation. Its main community is located on Christian Island. Beausoleil First Nation has acknowledged that the child is Ojibwe (one of the nations that form part of the Anishnaabe First Nation) and is an eligible member of Beausoleil First Nation.

[13] Since his move to Christian Island, the child has attended community events and had visits with community elders. He is often spoken to in the Ojibwe language. His alternate care provider has a smudge and traditional medicine in her home. The child has regular community walks where he has the opportunity to meet community members and extended family members.

[14] The welcoming ceremony that had been planned for the child by Beausoleil First Nation for August 29, 2025 had to be postponed due to the significant loss of life that recently occurred in the community and the time needed for the community to grieve and hold ceremonies for the members they had lost. Chief Joanne Sandy advised the court at the focused hearing that there had been 12 deaths over the summer, including 4 in September alone, in a community of just 850 people.

[15] On September 2, 2025, Native Child amended is Application to seek an extension of the timelines pursuant to s. 122(5) of the provincial Act to place the child in the interim care of Native Child for a further three months.

4. Law and Analysis

[16] The provincial Act sets out strict timelines regarding how long a child can remain in the care of a society on a temporary basis before an order for permanency must be made, which means either extended care or a kin/kith placement.

[17] The following is a summary of the relevant provisions regarding timelines:

• The court cannot make an order for interim society care that results in a child being in the care of a society for over 12 months (if the child is under 6 on the day the order is made) or over 24 months (if the child is 6 or older on the day the order is made): s. 122(1)(a) and (b)

• The time to be counted is cumulative, and includes the following:

  • (i) Time in care pursuant to a temporary care agreement: s. 122(2); s. 75(1.)

  • (ii) Time in care under a temporary order made on adjournment(s) of a Protection Application: s. 122(2); s. 94(2)(d).

  • (iii) Any previous periods a child was in the interim care of a society pursuant to s. 101(1)2. (whether from a Protection Application or Status Review Application as s.114 relating to status review refers to the making of an order pursuant to s. 101) other than periods that preceded a continuous period of five or more years that the child was not in care. In other words, if there a clear period of at least five years not in care, the clock starts over in terms of the time limits.

• The court may extend the time limits, and make an order placing the child in interim care pursuant to s. 101(1) beyond the 12 or 24 month limits, by a period of not more than six months if it is in the best interests of the child to do so: s. 122(5).

• The time from which an appeal is commenced until it is finally disposed of, and the time a status review application is on adjournment, are both deemed to be extensions of the time periods: s. 122(4).

[18] The provincial Act's distinction between the terms "temporary" and "interim" can be confusing given the terms have the same plain language meaning. Under the provincial Act, the court makes a "temporary" order placing the child in the "temporary" care of a society (time not specified as a temporary order remains in place until it is varied by the court, or the matter is resolved on a final basis); while the court makes a "final" order placing the child in the "interim" care of a society (number of months specified, and automatically subject to status review at the end of the specified period). A "temporary" order for "temporary" care can, and more often than not does, last longer than a "final" order for "interim" care.

[19] Both "temporary" orders for "temporary care" and "final" orders for "interim" care are distinguished from the permanency of a (truly) final order of extended care, which is not automatically subject to review (though even here a review can be brought if a child is not placed for adoption).

[20] The Court of Appeal has been clear that the timelines are applicable throughout the entire child protection proceeding and thus apply to temporary orders, not just to final ones: A.K. v. Family and Children's Services of Guelph and Wellington County 2024 ONSC 296; Simcoe Muskoka Child, Youth and Family Services v. M.J.C., 2024 ONSC 2669 citing the Ontario Court of Appeal in C.M. v. Waterloo Children's Aid Society, 2015 ONCA 612, and Windsor-Essex Children's Aid Society v. E.W., 2020 ONCA 682.

[21] I find it must then follow that the same considerations the court applies under the extension provision s. 122(5), when deciding whether or not to grant an interim care order beyond the timelines, also should inform the court's decision on whether to adjourn a matter beyond the timelines. To find otherwise would create a loophole where permanency could be delayed without rigourous examination.

[22] I further find that s. 122(5) can be used beyond a one-time extension, although there are two lines of cases on the issue of whether the ability to grant a six-month extension is a "hard cap". As Justice Sherr notes in Children's Aid Society of Toronto v. N.G., 2022 ONCJ, citing Catholic Children's Aid Society of Toronto v. S.S. and C.A.P., 2011 ONCJ 803, "while the importance of permanency planning must be kept in mind, an inflexible approach to the extension of time limits should not be permitted to block a resolution that is in a child's best interests" (para. 308). As Justice Sherr further notes, this flexible approach is in keeping with the remedial nature of the legislation that has been endorsed by the Court of Appeal in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415.

[23] The court in Windsor-Essex Children's Aid Society v. B.D., 2022 ONCJ 284 (citing Children's Aid Society of Carleton v. K.F., 2003 O.J. 2326 (Sup.Ct.)) set out the factors that a court must consider before granting an extension as follows:

(1) The decision to extend must be made in accordance with the children's best interests.

(2) The decision must be viewed from the children's perspective.

(3) The factors in subsection 37(3) [now 74(3) best interest factors] must be considered.

(4) The court must be satisfied, balancing the factors in subsection 37(3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule, for the "child's sake".

[24] In the case of an Indigenous child, the application of the above statutory timelines in the provincial Act is impacted by federal legislation, An Act Respecting First Nations, Inuit and Metis Children, Youth and Families ("federal Act").

[25] Section 4 of the federal Act provides that "For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act".

[26] Courts have thus continued to apply the provincial Act timelines to cases involving Indigenous children. The importance of reaching a speedy resolution in matters affecting children (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165); and the importance of minimizing delay and promoting finality for children (C.M. v. Waterloo Children's Aid Society, 2015 ONCA 612) apply to Indigenous children. Indigenous children are not less entitled to permanency or less prejudiced by litigation drift.

[27] In applying the timelines in cases involving Indigenous children, additional factors must be considered.

[28] Justice Law notes in HCFS v. B.M., 2025 ONSC 4862, that the provisions of the federal and provincial Acts are to be given large and liberal construction, and quotes Kina Gbezhgomi Child and Family Services v. J.M., 2023 ONCJ 93, where Justice Wolfe explained the significance of the remedial nature of both pieces of legislation at para. 29:

… I find the Federal Act and the CYFSA are remedial legislation aimed at ending the historic discrimination and unilateral approaches of Canada that led to disparate and negative outcomes for Indigenous people in child protection proceedings. In other words, the concept of "harm" in a child protection proceeding must include a broader notion of the inherent harm in removing Indigenous children from their parents, families and communities. Motions judges are the gatekeepers in this regard and must be ever mindful of this intention in order to avoid defaulting to a standard CYFSA method of analysis that doesn't recognize this distinction between Indigenous and non-Indigenous families.

[29] Justice Law sets out the following test at para. 25 of her decision: "Does the extension of time assist with the goal of ensuring that the First Nation, Inuit and Metis child is placed with a parent, family or community to the extent that it is consistent with the best interests of the child as set out in the Federal Act?"

[30] The federal Act sets out an enhanced best interests test at s. 10 which includes the following at s.10(2): "When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child's physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child's connections to his or her culture."

[31] The federal Act stresses the importance of the principle of cultural continuity as related to the best interests of the child as set out in s. 8(2):

8(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child's best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

[32] Section 9(2) of the federal Act further highlights the concept of cultural continuity in all planning decisions for Indigenous children:

(c) a child's best interests are often promoted when the child resides with members of his or her family and the culture of an Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region to which a child, family, or an Indigenous group, community or people is located are to be considered.

[33] While the substantive test is thus clear, I find further clarity is required regarding the procedure as it is not uncommon for agencies to bring a stand-alone motion seeking a s. 122(5) extension, where no hearing date is set.

[34] I find that an extension request pursuant to s. 122(5) can only be considered in the context of the hearing of the application as the section refers specifically to the making of an interim society care order pursuant to s. 101(1) which can only be done at a hearing determining what disposition is in a child's best interests.

[35] A request to adjourn the matter that has the effect of keeping a child in society care beyond the statutory time limits set out in s. 122 can be made by motion (formal or otherwise) at anytime. Best practice dictates that the request be made prior to the 12 month or 24 month hearing date. To do otherwise is pointless because practically speaking, denying the request and granting the request for an extension of the timelines amounts to the same thing if done on a stand-alone motion where no hearing date is set. For example, if a request for a three-month extension of the temporary order beyond timelines is heard on a stand-alone motion and denied, the matter would then have to be adjourned for a hearing which would likely take at least three months, if not more.

[36] This practical conundrum regarding when to hear an extension request further highlights the importance of scheduling the hearing at the 12-month mark (for a child under 6) which I had previously noted in Sarnia-Lambton Children's Aid Society v. N.S., 2024 ONCJ 391.

[37] The hearing should be scheduled in accordance with the timelines for the concept of an extension to have any practical import. To do otherwise is to merely pay lip service to the concept of permanency and the timelines, to the detriment of the child.

[38] It is only in the context of a hearing that the court can determine if the extension should be granted: Either by way of making an interim society care order at the hearing (pursuant to s. 122(5)) or by making a temporary order (by adjourning the hearing). As I set out above, the same considerations apply in both scenarios.

[39] The evidence required to support an extension request will vary depending on the length of the extension sought. The bar will be higher the longer the extension request.

[40] In the within case, the child came into care in May 2024, shortly after his birth. I determined that Native Child's Status Review Application seeking extended care would be heard during the trial sittings of May 5 -16, 2025 as that was the one-year limit for a child under 6.

[41] Native Child, appropriately before the trial sittings, sought an extension of the timelines. The request was granted by way of scheduling the hearing to proceed in September instead of May. As set out in my endorsement dated May 14, 2025, setting the hearing date after the one-year limit was in the best interests of the child given his upcoming move to Christian Island which was planned in order to facilitate access between the child and members of his First Nation and thereby promote the possibility of finding a kin/kith plan.

[42] At the hearing on September 17, 2025, Native Child in its amended Status Review Application was seeking an order of three months interim care pursuant to s. 122(5). That order was granted at the conclusion of the hearing.

[43] I find the extension is in the best interests of this Indigenous child having regard to the enhanced best interests factors in the federal Act as follows:

(1) The child could not be moved to the alternate care home on Christian Island until July, in part because of renovations required at the home. The move was required in order to promote the possibility of kin/kith plans as the child's former foster home was in Brampton which created barriers to access in terms of the cost and time for community members and family to travel to see the child.

(2) The welcoming ceremony for the child had to be delayed due to the significant loss of life experienced by Beausoleil First Nation over a short period of time and the ceremonies and grieving that had to take place.

(3) The child is now living in his First Nation community and has the opportunity to hear and learn his language of Ojibwe, have access with his maternal grandmother and siblings, and form relationships with members of his community.

(4) The child is described as a cute, happy baby/almost toddler. Band Representative Rebecca Lewis deposed that she is optimistic the child will be able to be placed with a member of his extended family or community on a permanent basis.

(5) Making an extended care order at this time would create barriers in the form of expense and delay for a family or community member to initiate a court proceeding to review the order and present a potential kin/kith plan, which would have the effect of delaying permanency rather than promoting it.

[44] I have considered that granting the extension will result in the child being in temporary care for 19 months, more than the 12 month limit for a child his age, and more then a one-time extension of 6 months. I have also considered that the extension will actually be longer than 19 months as while the Status Review Application will have to be brought at the 19 month mark it will likely not be heard for several months after that (the deemed extension of the timelines). I am satisfied that same is required in the application of s. 122(5) in consideration of the enhanced best interests factors of the federal Act.

5. Conclusion

[45] The following is a summary of best practices with respect to the application of the extension provision s. 122(5) of the provincial Act:

(1) The hearing should be scheduled within the timelines (12 months for a child under 6, 24 months for a child 6 and older, bearing in mind that that these timelines set out the ceiling, not the floor – hearings can be set earlier);

(2) The timelines can be extended either pursuant to s. 122(5) whereby the court can make an interim society care order at the hearing that keeps the child in care beyond the timelines; or by adjournment of the hearing which keeps the child in temporary care beyond the timelines.

(3) The same considerations used in applying s. 122(5) to make an interim society care order beyond the statutory time limit should also inform a decision regarding an adjournment.

(4) The test where the child is not First Nations, Inuit or Metis continues to be as set out by the court in Windsor-Essex Children's Aid Society v. B.D., 2022 ONCJ 284 (citing Children's Aid Society of Carleton v. K.F., 2003 O.J. 2326 (Sup.Ct.)):

• The decision to extend must be made in accordance with the children's best interests.

• The decision must be viewed from the children's perspective.

• The factors in subsection 37(3) [now 74(3) best interest factors] must be considered.

• The court must be satisfied, balancing the factors in subsection 37(3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule, for the "child's sake".

(5) The test for a child who is First Nations, Inuit or Metis is as set out by Justice Law in HCFS v. B.M., 2025 ONSC 4862: "Does the extension of time assist with the goal of ensuring that the First Nation, Inuit and Metis child is placed with a parent, family or community to the extent that it is consistent with the best interests of the child as set out in the Federal Act?"

(6) The reason the extension request can only be considered in the context of a hearing is that if the extension is not granted, the court must then make an order for permanency: either placing the child in extended care or placing with kin/kith.

Released: October 17, 2025

Justice M. B. Pawagi