Simcoe Muskoka Child, Youth and Family Services v. B.R., 2025 ONSC 2330

COURT FILE NO.: FC-20-948-00
DATE: 2025-04-16
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child, Youth and Family Services, Applicant
AND:
B.R., Respondent Mother
J.O., Respondent Father

BEFORE: R. Sonya Jain
COUNSEL:

• Jeffrey Hustins, for the Applicant
• Christiana Adiele, for the Respondent Mother
• Carol Allen, for the Respondent Father

HEARD: 2025-03-31

Motion for Summary Judgment – Ruling

Introduction and Background

[1] The child T.O. was born on […], 2020 (hereinafter referred to as “T.O.” or “the child”). T.O. is four (4) years old and is currently residing in the care of her father and paternal grandparents subject to a supervision order.

[2] The mother of T.O. is the Respondent B.R. (hereinafter referred to as “B.R.” or “the mother”). The mother has significant history of involvement with child protection services as a child, and none as an adult apart from the current proceedings.

[3] The father of T.O. is the Respondent J.O. (hereinafter referred to as “J.O.” or “the father”). The father has a child from a previous relationship who is 12 years old. The father has regular parenting time with that child and that child is not a subject to these proceedings. The father has no history of involvement with child protection services prior to the birth of T.O.

[4] T.O. was in the care of both her parents from the time of her birth until October 2020. Protection concerns include the mother’s mental health and its negative effect on her parenting; mother’s lack of attunement to the child and swearing at the child; both of the parents engaging in physical and verbal conflict and violence in front of the child. Despite significant efforts by the Society and community supports, little to no progress was made by the mother and father to address the concerns and on October 23, 2020 the child was brought to a place of safety by Simcoe Muskoka Child, Youth and Family Services (hereinafter referred to as “the Society”) and placed in the temporary care of father subject to the supervision by the paternal grandparents.

[5] On October 28, 2020 the first return of the apprehension took place and an order was made for a shared parenting arrangement with each parent. Each parent had approved supervisors of their parenting in place. On December 16, 2020 an out of court conference was held and all agreed that the child would return to the mother’s care full time with parenting time for the father on the weekends, supervised by either an approved family friend, uncle or the paternal grandparents. A consent order was made on December 18, 2020 confirming these arrangements.

[6] Protection concerns increased around the mother, due to her struggles with her ongoing mental health issues. There was no improvement, and if anything, it became much worse because of the mother’s emotional dysregulation and the hyper focus of her allegations about the father and/or paternal grandfather regarding sexual abuse against the child. The mother was subjecting the child to multiple intrusive medical examinations of her private areas. The nature and intent of the mother’s allegations became suspect, and concerns increased regarding the mother’s abuse of services due to the unfounded and unverified allegations she made against the father and/or grandfather. On July 21, 2023 the Society amended their Application to seek an order finding the child in need of protection and placing the child in the deemed custody of the father, with access to the mother.

[7] The mother does not consent to a protection finding being made or the disposition sought by the Society. The mother opposes the motion. Her position is the child should be immediately returned to her care. She has not brought any Motion for Summary Judgment seeking that relief. As a result, her position is that she believes there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure.

[8] The father consents to the findings and the orders sought by the Society.

[9] The Society amended its Application on July 21, 2023. The Society brought a motion to remove the child from the mother’s care and place her with the father subject to the supervision of the Society. A temporary order was made placing the child with the father under supervision on July 26, 2023 (on a without prejudice basis). The parties filed materials for the motion and on August 28, 2023, Krause J. heard the motion. Based on the evidence filed at that time, Krause J. was satisfied that the child should remain the temporary care of the father subject to Society supervision. She made a temporary order placing the child in the temporary care of the father subject to the supervision of the Society. She ordered that the father shall follow all directions of the Society in reference to the care of the child. Krause J. went on to make an order that the mother have access with the child at least 3 times per week for a duration of at least 2 hours per visit. The requirement for supervision and location were left to the Society’s discretion.

[10] In addition to other evidence, the Society relied on the Parenting Capacity Assessment (PCA) completed by Dr. Sas dated June 22, 2024 and attached as Exhibit “J” to the Affidavit of L. Malito, sworn December 18, 2024.

[11] This high conflict matter was conferenced numerous times, and there were many motions brought during this period as well. On October 4, 2024, Krause J. scheduled this motion for summary judgment to proceed during the February 2025 sittings. The Respondent mother’s counsel was removed as solicitor of record on November 21, 2024 by the Order of Bruhn J. On December 3, 2024 the Society brought a motion seeking an order changing the terms of access of the mother to the child. Due to an escalation in the mother’s dysregulated and aggressive behaviours during her access, the Society sought to reduce the mother’s supervised access and to make the access virtual. Based on the evidence filed at that time, Bruhn J. was satisfied that the mother’s access to the child must continue to be supervised. She further found it was in the child’s best interests to have supervised, virtual parenting time with her mother once per week for approximately one hour at a time.

[12] There were numerous court dates between the settlement conference held on July 3, 2024 and today. The parents have known about the impending summary judgment motion since at least the settlement conference held on July 3, 2024. The Society served its materials on December 18, 2024. Despite numerous court dates and motions regarding placement of the child and access to the mother, and despite numerous warnings and cautions from the court, neither of the parents served or filed anything for this motion for summary judgment to enable it to proceed in the February 2025 sittings.

[13] The motion for summary judgment was scheduled to proceed before me on February 12, 2025. The mother sought an adjournment to serve and file responding materials as she had recently retained counsel. On February 12, 2025 the mother was granted a short adjournment to February 21, 2025 and was provided with an extension for service and filing her responding materials. The court further set out timelines for the father and the Society to serve and file reply. The mother was cautioned at the last court date that the court would not accommodate any further delay as this high conflict matter has been outstanding for quite some time and the young child needs some stability and permanence. The mother failed to serve and file materials in accordance with my endorsement of February 12, 2025.

[14] On February 21, 2025 the mother sought another adjournment to serve and file responding materials. I granted the adjournment request and I set timelines for filing materials. I further made the next court date peremptory on the mother. The mother and father have now both filed responding materials for the summary judgment motion. The SMCYFS has served and filed reply materials. The father is consenting to the orders sought by the Society.

[15] The statutory findings have not been made and there has never been a finding made that the child is in need of protection. T.O. is not a First Nations, Inuk or Métis child.

[16] The Society has brought a motion pursuant to r. 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules – hereinafter referred to as the “Rules”) seeking the following:

1. An order making the statutory findings pursuant to s. 90(2) of the Child, Youth and Family Services Act (hereinafter referred to as the CYFSA or the Act);
2. An order that the child, T.O., born […], 2020 is not a First Nations, Inuk or Metis child.
3. An order finding the child, T.O., born […], 2020, in need of protection pursuant to s. 74(2)(b)(ii) and (h) of the CYFSA;
4. An order placing the child in the Deemed Custody of the father J.O. pursuant to s. 102 of the CYFSA.
5. An Order that access between the child and the mother B.R. occur twice monthly at a Supervised Access Centre, if such centre is able to ensure the safety needs of the child and needs for full supervision of the mother.

[17] I have read and relied on the following documents:

• The Society’s original Application dated October 28, 2020 and the Society’s amended Application on July 21, 2023.
• Society Motion, dated December 18, 2024;
• Affidavit of Family Support Worker (FSW), G. Legacy, dated December 18, 2024;
• Affidavit of Child Protection Worker (CPW), P. Deshaies, dated December 18, 2024;
• Affidavits of Child Protection Worker (CPW), L. Malito, dated October 9, 2024, December 18, 2024, and March 11, 2025;
• Parenting Capacity Assessment (PCA) of Dr. Louise Sas, dated June 22, 2024 and attached as Exhibit “J” to the Affidavit of L. Malito dated December 18, 2024;
• Affidavits of Father dated September 9, 2024 and October 18, 2024, and March 9, 2025;
• Affidavits of Mother dated October 3, 2023 and July 30, 2024, and February 21, 2025;
• Plan of Care dated December 18, 2024.

The Law

CYFSA

[18] The CYFSA is a complete code in reference to child protection proceedings. Section 101(1) provides, where a child has been found to be in need of protection, the court shall make one of the orders provided in s. 101(1) or an order under s. 102, in the child’s best interests.

[19] Section 102 provides if a court finds that an order under s. 102 instead of an order under s. 101(1) would be in the child’s best interests, the court may make an order granting custody of the child to one or more persons, with the consent of the person(s).

[20] Whether or not an order is sought under s. 101(1) or s. 102, the court must also consider the requirements of ss. 101(2)-(9).

[21] Pursuant to s. 100, prior to making an order under s. 101 or s. 102, the court must obtain and consider a plan for the child’s care prepared in writing by the Society.

[22] Section 74(3) sets out the factors the court shall consider with respect to the best interests of the child.

[23] Section 93 permits the court, despite anything in the Evidence Act, to consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding and any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding.

[24] Section 98 permits the court to admit the PCA completed by Dr. Sas on June 22, 2024, as evidence forming part of the court record for the proceeding.

Summary Judgment

[25] The burden of proof is on the party moving for summary judgment (the Society). Pursuant to r. 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[26] Pursuant to r. 16(4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial (see: Children’s Aid Society of Toronto v. K.T.).

[27] A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial. The parents need more than genuine and heartfelt expressions of their desire to resume care of the child. There must be something discernable from the parent’s evidence to show they face some better prospects than what existed at the time of the Society’s removal of the child from their care (see: Children’s Aid Society of Toronto v. R.H.; Catholic Children’s Aid Society of Hamilton v. W. (B.), 2015 ONSC 7621, para. 90).

[28] Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (see: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, para. 2, para. 80).

[29] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes the principle in Hryniak v. Mauldin, 2014 SCC 7 of reaching a fair and just determination on the merits (see: Kawartha, at para. 76).

[30] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (see: Hryniak, at para. 49). As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (see: Kawartha, at para. 63).

Analysis

[31] I have considered that I should exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants.

[32] Often, motions for summary judgment brought by a children’s aid society request an order for extended society care, thus permanently severing the parent child relationship. In this case the Society seeks a deemed custody order in favour of the father with access to the mother. Kawartha does not distinguish in the approach to be taken based on the relief sought on the motion for summary judgment. I must be cautious in granting summary judgment no matter what relief is requested.

[33] Based on the evidence before me, I find it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate the dispute.

[34] I find I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility.

[35] I find the evidentiary record is sufficiently comprehensive for me to make a fair and just determination on the issue of disposition without the need for a trial. Cross-examination of witnesses would add little, if any, value to the court’s analysis.

[36] I find the Society has established, on a balance of probabilities, a prima facie case for summary judgment with respect to the ongoing placement for T.O., and that the mother has not met her onus of establishing there is a genuine issue requiring a trial on this issue.

[37] I find if this matter proceeded to trial there is “no realistic possibility of an outcome other than that sought by the applicant”. I reach these conclusions for the reasons that follow.

Position and Evidence of the Parents

Mother

[38] The mother’s position with respect to the Society’s concerns has not changed throughout the course of these proceedings. She denies there is any risk to T.O. as a result of her parenting and/or mental health. At the commencement of the summary judgment motion, Ms. Adiele on behalf of mother indicated that the mother was now, “willing to cooperate with the Society.” After asking for clarification about what that meant, Ms. Adiele advised that the mother is ready to cooperate with the Society if they return the child to her care. She submitted the mother is not denying her mental health issues, however, she went on to minimize the mental health issues, saying “they are not that bad.”

[39] Ms. Adiele submitted that it is not in the best interests of the child to take the child from the mother. Ms. Adiele referred to this as “alienating” the mother from the child. She spoke about the harm (stress and anxiety) this is causing the mother. In her affidavit, the mother submitted that the child would suffer “long term emotional and psychological damage” as a result of being taken away from her. However, she provided no evidence of any harm that has come to the child since she was removed from her care.

[40] The mother’s evidence was confusing and contradictory. On one hand she denies there are issues with her parenting, and then on the other hand she says she has addressed the protection concerns. The mother said she has complied with the recommendations of the Society and completed programs and cooperated. However, the mother said nothing about the Society’s continued concerns and the fact that she had burned many bridges with community supports and collaterals resulting in them withdrawing from providing services. In her evidence, the mother made bald allegations that the CPW L. Malito was biased against her, but she provided no evidence to support this serious allegation. [3]

[41] Ms. Adiele said that the mother is ready to “continue to cooperate with the Society” and promised that she will not “allow” any further physical examinations of the child. She said that the mother has been a “wonderful” mother until the “incident” where she began “speaking out for her child” and making the sexual allegations. She said that the mother should be given another chance. She said the Society has indicated the mother loves her daughter, and that it is in the best interests of the child to support her relationship. The mother denies there were any concerns about her parenting until sexual allegations were made. In her materials, the mother alleged that the father is an alcoholic and that he is incapable of caring for the child. She said the child is in danger in the father’s care, however, she was unable to point to any evidence of this danger except for her references to his historic use and/or misuse of alcohol. [4] The mother provided no evidence to support her allegations that the father had been consuming alcohol or that the child was at risk in his care.

[42] The mother believes there are triable issues especially regarding the incidents that occurred during her access. Ms. Adiele said that there are material facts that cannot be properly resolved without a trial. However, aside from her denials and her expressed hopes, the mother provided little to no evidence to contradict her aggressive and emotionally dysregulated behaviour that occurred during access visits and/or her interactions with the Society and the father. She provided no insight or even an expression of regret for subjecting the child to the emotionally harmful and intrusive medical examinations due to her aggressive and relentless allegations. Lastly, the mother did not provide the court with any evidence to contradict the observations and recommendations of the SCAN report, doctors’ letters and the PCA. [5]

Father

[43] On behalf of the father, Ms. Allen advised the court that the father adopts the submissions of Mr. Hustins for the Society and relies upon his affidavits dated September 9, 2024, October 18, 2024 and March 9, 2025. Ms. Allen said it is clear from the evidence that the mother’s mental health impacts her ability to parent the child.

[44] As indicated above, on August 28, 2023, the child was placed in the care of her father, under a temporary supervision order. The Society had concerns about the father because he had difficulties with alcohol. The parenting capacity assessment of Dr. Sas indicated that the father has been convicted of a DUI and has also blown a “warning” on two occasions, one in 2022 and the second in August 2023. When he blew a warning, his daughter was in the vehicle with him.

[45] Because of the alcohol issues involving the father, on September 13, 2023 an order was made that the “father not to be the driver in a vehicle that the child is in until such time the Society assesses that this is no longer needed and the court orders it is no longer needed”.

[46] The father’s evidence is that he has been sober since before the order of September 13, 2023. The PCA indicates that the father has taken a course known as “Back On Track” to address his alcohol use. The father continues to attend counselling. The Society no longer has any objection to the father driving with the child in the vehicle with him. The driving condition was removed by the Order of McDermot J. on December 30, 2024. The Society has conducted multiple investigations into the father’s care of the child and in my view, he has demonstrated an ability to adequately address the concerns raised by the Society and PCA.

[47] The father’s affidavits outline the incidents of conflict between the parents and his concerns about the mother’s harassment of him, (she has been charged 2 times). The father submits that these incidents clearly show her inability to follow court orders and any rules during access. The father asserts that the mother cannot regulate her behaviour. Ms. Allen pointed to the observations of the mother made by Dr. Sas during the PCA, and the evidence of the Society during the mother’s supervised access that indicates the mother can not regulate herself. [6] Further, they show how the mother has no hesitation of having inappropriate conversations with the child where she talks about the father being abusive and/or sexually abusive to the child. The father says that the mother fails to appreciate that she poses any risk to the child and that she may be incapable of understanding or addressing her behaviour. Ms. Allen submitted that the mother’s behaviour and continued allegations of sexual abuse are emotionally damaging to the child especially when subjected to this repeatedly. I agree.

[48] The father loves the child and says that the child is doing well in his care, and it is in her best interests to remain in his care. The father has been in counselling and engaged with the Georgian Bay Health Team. He has been working with the Society. [7] The father says that he has done everything he can to protect the child from harm, and he will continue to do so in her best interests. In the father’s view, the Society’s motion should be granted.

Position and Evidence of the Society

[49] This case has been active for a very long time. The Society became involved in the current proceeding in 2019 when the mother was pregnant. The mother indicated concerns regarding domestic violence which prompted Society involvement. In the summer of 2020, the Society received reports from Nottawasaga Midwives and Healthy Babies Healthy Children. These reports were concerning domestic violence and conflict between the parties. The violence was characterized as significant and included the parents yelling and throwing things at each other in the presence of the child. The Society verified concerns regarding the mother’s mental health negatively effecting her ability to parent the child, and regarding domestic violence. The Society tried to put in place a safety plan, however, on October 23, 2020 the Society apprehended the child and placed her temporarily with the father with his parents’ presence. A shared parenting arrangement was created in October 2020 and then on December 16, 2020 there was an agreement to return the child to the mother’s care with access to father.

[50] The Society and community collaterals collectively had ongoing concerns that the mother had and continued to struggle with her mental health related to parenting time between the child and the father, entailing hyper fixation on a wide spectrum of concerns for the child while in the care of the father. These included the mother suspecting sexual abuse or exploitation in some way by the father or paternal grandparents; the father using different hygiene products than she used for the child; suspecting the father of using drugs; other people and relatives being in presence of the child during the father’s access; parenting time happening during the child’s nap routine; the amount and type of food and drink being provided to the child; the father consuming alcohol during his visits with the child; the father not being in the vehicle during transportation by his parents of the child to and from access.

[51] The father has struggled with his mental health and his alcohol consumption. However, the Society and the father’s evidence asserts that he has addressed these concerns adequately. No other concerns about the father were verified. Unfortunately, this is not the case for the mother.

[52] At the request of the mother to have a third-party agency observe, assess and report on the father’s parenting time with the child, the Society paid for the SAFE Program (Supervised Access For Everyone) to supervise the father’s parenting time for four visits on December 4, 5, 11 and 12, 2021. The SAFE program provided their summary of their observations, assessments and recommendations. [8] In short, the SAFE program had no concern for the attachment and parenting between the father and the child, but rather had concerns for the mother’s interference with the father’s parenting time.

[53] As a result of the sexual abuse concerns raised by the mother, an examination of the child was arranged at the SCAN unit in Orillia on July 27, 2023. No concerns were noted. The SCAN unit recommended no further examinations of this nature should occur unless there are physical manifestations, which would suggest it was appropriate. The Society asserts that after the appointment on July 2, 2023, the mother called the SCAN unit at the Hospital for Sick Children (HSC) making serious allegations about the child. This caused the HSC to contact the Society who then connected the HSC with the SCAN unit in Orillia.

[54] Since supervised access began in August of 2023, there have been multiple people involved, including some of the mother’s friends and family, or Society workers. No one employed by the Society as access supervisors has been able to continue in their roles due to the mother being unable to refrain from her focus on the child’s genitals and allegations of abuse, persistent comments about the father, the Society and the mother’s inappropriate comments to the child. The safety and well-being of the child during these visits was undermined when the mother acted out in her persistent pattern of behaviours. [9]

[55] The mother’s concerning behaviours have resulted in the mother seeking a significant amount of support from Society workers and community collaterals on an ongoing basis and have also resulted in the mother’s loss of some of those community supports who withdrew their willingness or ability to provide service to the mother. In my view, this was primarily because the mother doesn’t accept or implement their recommendations resulting in the mother refusing to engage, acting contrary to recommendations, making little or no progress or gains, and the services ultimately being withdrawn. All of this has been to the detriment of the child, harming her emotionally and physically.

[56] In her endorsement dated August 23, 2023, Krause J. wrote:

The mother’s repeated allegations of sexual abuse of the child by the father has resulted in the child’s genital area being examined by medical professionals at least 7 times at the mother’s request and insistence. The mother has asked that the examinations include internal examinations which have occurred. The child’s physicians have expressed concerns, by letter, about the repeated and intrusive examinations of the child and the negative impact such examinations will have on the child if they continue. These concerns have not deterred the mother.

[57] This concerning theme has been common throughout the Society’s involvement and was also repeated in the PCA completed by Dr. Sas. The Society relied on the PCA completed by Dr. Sas dated June 22, 2024 and attached as Exhibit “J” to the Affidavit of L. Malito, sworn December 18, 2024. Dr. Sas noted that she reviewed 800 pages of the family file contained in the Child Protection Information Network including third party assessments and Dr. Sas spoke directly with physicians and medical professionals. The PCA provides an evaluation of the mother and father’s general parenting abilities, and the child’s relationship with them. The child’s current adjustment and parenting needs were also discussed.

[58] Dr. Sas recounted alarming firsthand observations of the mother’s dysregulated behaviour during access and the mother’s inability to stop herself from fixating on the allegations of sexual abuse (despite Dr. Sas’ attempts to redirect the mother). [10] The mother refused to accept Dr. Sas’ observations and recommendations.

[59] Specifically of note, at page 40, paragraph 2 of the PCA, Dr. Sas concludes that the mother “should not have parental decision-making” and the child “should not be returned to her care.” She went on to recommend there must be supervision of the mother’s parent/child contact, if contact is ordered. Dr. Sas commented that the supervision will be challenging, because the mother is unwilling to attend the Society offices, and “even with access supervisors in the home, it has been reported that have been incidents of checking her child’s vagina and body. I was challenged by some of her behaviors during access as well. Another option could be a Supervised Access Center, but distance and cost may be a factor.”

[60] At page 40, paragraph 3 of the PCA, Dr. Sas concludes: in the case of the father “I do not have protection concerns. He is demonstrating adequate care but could use some help with his discipline” however, the father “remains dependent on his parents, and he is not ready to move out on his own” with the child and “manage everything on his own. He needs to address his anxiety and other symptoms identified in this report, and have a realistic plan in place, which he does not. I acknowledge that he has been in very a difficult situation, and it has been stressful. The paternal grandparents offer stability, and support to their son, and are positively involved” in the child’s life. Dr. Sas concluded that the child “is benefiting greatly from living there.”

[61] Dr. Sas noted, in reference to the mother’s access, at page 41 (8) of the PCA: It is recommended that over the next year there be twice monthly 2hr supervised parent/child contact, in a facility such as a supervised access centre. The venue for parent child contact can be revisited down the road. This would involve consultation with her therapist.

[62] The Society’s evidence, concerns and observations about the mother have all been corroborated by Dr. Sas and by the other medical professionals and support services. [11] It appears the mother will never accept the observations or recommendations from a doctor that does not support her allegations. The mother is never reassured there has been and is no sexual abuse. All the professionals indicate that repeated vaginal examinations and allegations are a concern for child’s mental health. All professionals and collaterals indicate the number of times the child has been examined and brought to medical examinations is excessive and that further examinations are not necessary. No one expressed any continued concerns about father and child. The Society submits that the mother’s continued allegations of sexual harm and subjecting the child to medical examinations repeatedly are causing a risk of harm. I agree.

[63] There are positive aspects to the mother’s access with the child, (she is always prepared, and she attempts to make the visits comfortable and enjoyable). However, supervision of in person access has been difficult because of the mother’s focus on the child’s genitals and sexual abuse and inappropriate comments from mother in front of the child. All through the Fall of 2024, Ms. Malito confirmed that there were incidents at the Society’s office during the mother’s access where she behaved inappropriately with the child and said inappropriate things in front of the child. [12]

[64] The child has been desensitised to physical examinations of her genitals/privates and the mother’s behaviour, and this is due to mother’s consistent allegations. Even at a supervised visit with Dr. Sas, the mother continued to make allegations of abuse that were quickly refuted. There appears to have been no progress. In my view, the mother is determined to prove the child has been sexually abused by the father. The child cannot escape it if the mother has unsupervised access.

[65] Although the father has not been perfect, he has been cooperating with the Society and attending counselling. His doctor confirmed that the father has not abused alcohol and he has engaged with Georgian Bay Family Health team for counselling as recommended by his doctor. The father is described as a sincere and caring person. He has generalized anxiety and is coping well with support of his family. The father has reasonable parenting skills and he loves the child.

[66] Dr. Sas indicates at page 38 of the PCA that the mother is young, with significant mental health problems that include Borderline Personality Disorder, OCD symptoms, fixation on cleanliness and worries about the child. Dr. Sas observed that the mother displayed minimal insight into how those effect her parenting, and that the mother’s mental health issues interfered with her ability to parent the child safely. Dr. Sas discussed the evidence that supports the concern that the mother is suffering from Caregiver Fabricated Disorder – a pattern of behaviour where there is a feigning of illness or symptoms in another individual, (in this case the child). [13] The mother has become more frantic and has repeatedly sought diagnosis and this is interfering with her ability to care for the child safely. Dr. Sas commented that the mother is loving and caring of the child, but recommended that until the mother is properly treated, supervision is required. I agree.

[67] The child is described by Dr. Sas as a lovely little girl. She is resilient and doing well in her father’s care. The post separation conflict will not likely change as it has gone on for so many years. Dr. Sas observed the father and child have a loving attachment. For almost two years the child has resided in the father’s care (with the help of his parents since July 2023). The father has a good prognosis. The Society and Dr. Sas had no protection concerns about the father or his parenting of the child. The father’s doctor expressed no concerns about the father’s care of the child.

[68] Dr. Sas also described the mother and the child as having a loving attachment, however, the child’s attachment is described as “an anxious attachment with her mother.” The mother does not have a good prognosis, especially because she denies there is any problem with her parenting. Dr. Sas recommended that the mother should not have decision making and the child should not be returned to her care.

[69] The behaviour, concerns, observations and recommendations contained in the PCA are all consistent with the same behaviour, concerns, observations and recommendations of the other professionals involved with this family and with the Society. The mother has had significant involvement with medical and community services however, all the same concerns have continued. The services were unable to assist her. The mother says she is taking steps now, and that she wants to cooperate with the Society, however she continues to deny there were any concerns. In a way, the mother’s denials and stated concerns corroborate the Society’s concerns about her. In my view, the mother’s expressions of hope and intention to cooperate are sounding very close to being a desperate attempt to delay the finalization of this matter.

[70] In my view, the mother’s plan is a plan that involved denials and statements of good intentions. The court needed more than these genuine and heartfelt expressions of her desire to resume care of the child. [14] The issue of the mother’s examinations of the child’s private areas and her unfounded allegations of sexual abuses against the father were simply ignored in her materials, (or denied).

[71] The Society’s concerns include not only the impact of repeated intrusive medical examinations of the child’s private areas as a result of the mother’s continued unverified allegations against the father; and the exposure of the child to parent conflict, but the mother’s complete inability to understand or appreciate the impact of the conflict and her unfounded allegations on T.O. I find the Society’s concerns to be valid; nowhere in the mother’s evidence does she provide information that demonstrates knowledge or insight into the potential effects of the verified concerns on T.O. She simply continues to deny the concerns.

[72] The mother has maintained her position despite Krause, J.’s findings in August 2023 and J. Bruhn’s findings in December 2024. This is demonstrated through her repetition of the evidence she presented in the previous motions, and again on this motion. The mother has not accepted the previous findings of the court and steadfastly maintains there are no issues about her care of the child. [15] In my view this demonstrates a serious lack of insight by the mother into the concerns not only of the Society but of the court. This lack of insight results in the court having no confidence that the mother will make the choices necessary to ensure T.O.’s ongoing well-being and safety.

[73] The mother’s plan was not an actual plan, but rather an intention to plan, involving not what she has done, but what she will do (without actually addressing the protection concerns or showing any insight into how she has contributed to the harm to the child). I find that the child is in a continued need of protection and the intervention through the court was necessary to protect her. Given the mother’s lack of insight and her lack of consistent support and implementation of recommendations, it is clear that the mother could not meet the child’s needs. The mother has burned many bridges and community supports/services due to her emotional dysregulation, abuse of services, and unfounded allegations against the father. Despite her expression of an intention to “cooperate,” the mother is seeking a new person to work with at the Society instead of Ms. Malito, (this is due to her allegations of Ms. Malito being biased). This does not bode well for the mother to address the concerns in the future. I find the child is in need of protection, and it is not in the child’s best interests to return to the care of the mother.

Conclusion

[74] It is clear that the mother had not resolved any of the risk factors causing the child to continue to need protection. In my view, the Society has demonstrated a prima facie case in support of an order finding the child T.O. in need of protection pursuant to s. 74(2)(b)(ii) and (h) of the CYFSA. Further, the Society has demonstrated a prima facie case in support of an order that the child, T.O. be placed in the deemed custody of the father with supervised access to the mother.

[75] Access is a right of the child. The child has a right to have ongoing contact with her mother, however, it must be done through a supervised access centre to ensure the child’s safety. The Society and the mother’s family and friends cannot provide the ongoing access supervision that is required.

Order

[76] For all the reasons set out above, final order to go as follows:

1. Pursuant to s. 90(2) of the Child, Youth and Family Services Act (hereinafter referred to as the CYFSA or the Act), the child, T.O., born […], 2020 is not a First Nations, Inuk or Metis child. The child was removed from the care of the mother, B.R. and brought to a place of safety in the care of the father, J.O.
2. [Order omitted in original]
3. The child, T.O. is found to be in need of protection pursuant to s. 74(2)(b)(ii) and (h) of the CYFSA;
4. The child, T.O. shall be placed in the Deemed Custody of the father J.O. pursuant to s. 102 of the CYFSA.
5. Access between the child and the mother B.R. shall occur twice monthly at a Supervised Access Centre, if such centre is able to ensure the safety needs of the child and needs for full supervision of the mother.

R. Sonya Jain
Date: 2025-04-16

Endnotes

[1] Family Law Rules, O. Reg. 114/99.
[2] Child, Youth and Family Services Act, S.O. 2017, c. 14, Sch. 1.
[3] Affidavit of the mother dated February 21, 2025 at para. 8
[4] Affidavit of the mother dated February 21, 2025 at paras. 7 and 8
[5] Affidavit of L. Malito dated December 18, 2024 indicated that a joint police and CAS investigation on April 18, 2023 found no evidence of sexual abuse of the child. Further, no evidence was found by Collingwood General and Marine Hospital on July 14, 2023 and SCAN in their report of July 28, 2023, that there was any evidence of sexual abuse or by any other health professional who the mother sought out to pursue her belief that the child had been abused by the father. The overriding consensus from these professionals, specifically SCAN, Dr. Dickenson and Dr. Alex Pearce was that the child was at risk of harm as a result of the mother’s actions. See Exhibit “C” is a true copy of Dr. Pearce correspondence and Exhibit “D” a true copy of the correspondence from Orillia Soldier’s Memorial Hospital SCAN unit by Dr. Dickenson). In her report of July 28, 2023, Dr. Victoria Dickenson noted, “It is very important that [the child] not be subjected to medical exams unnecessarily” and that “Further examination of [the child] for these concerns is not necessary and that further photos or videos of her genital area should not be taken”.
[6] PCA at pages 7 to 14 and in the Affidavit of L. Malito dated December 18, 2024 at para 84-88
[7] Affidavit of L. Malito dated December 18, 2024 at para 75, 76, 77 and 78.
[8] Affidavit of L. Malito dated December 18, 2024 - Exhibit “B” is a copy of the SAFE report.
[9] Affidavit of L. Malito dated December 18, 2024 at para 79 and Exhibit “F” is a true copy of comments made by the mother during the visits noted.
[10] Affidavit of L. Malito dated December 18, 2024 at Exhibit “J” The PCA at pages 11 and 12, Dr. Sas recounted incidents where she witnessed the mother being physically intrusive in her attempts to gather evidence of sexual abuse. She described an incident where the mother pulled down the child’s pants and began indicating that a red mark from the toilet seat was evidence of sexual abuse. The mother would not accept the explanation. Dr. Sas was very concerned about the mother’s emotional dysregulation and behaviour during access and how it created stress for the child and increased the risk of emotional harm.
[11] Affidavit of L. Malito dated December 18, 2024, Exhibits C, D, F, J which indicate that there have been 8 documented medical examinations of the child’s genitals. The doctors and professionals are concerned about the harm caused to the child.
[12] Affidavit of L. Malito dated December 18, 2024 paras 84-88
[13] PCA at page 39
[14] See: Children’s Aid Society of Toronto v. R.H.; Catholic Children’s Aid Society of Hamilton v. W. (B.), 2015 ONSC 7621, at para. 90; Sarnia-Lambton Children’s Aid Society v. N.S., 2024 CarswellOnt 12283
[15] Affidavit of the mother dated February 21, 2025 at para. 5