WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

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.

(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.

Ontario Superior Court of Justice

BETWEEN:

The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant

– and –

A.W. and R.N.
Respondents

S. Subhan, Counsel for the Applicant
P. Brohman, Counsel for the Respondents
J. LeDrew Metcalfe, Counsel for the Children

Heard: May 14, 2025

Reasons on Motion

The Honourable Justice J. Breithaupt Smith

Background

[1] This case concerns two children, M. (15) and A. (9). As with many child protection matters, this one has a lengthy and difficult history. The parents had a volatile relationship and, in 2019, Father was arrested for assaulting Mother and eventually convicted. The children were in Mother’s care until August 14, 2020, when they were removed by the Society and placed with paternal grandparents due to concerns about Mother’s drug use and resulting neglect. M. was 10 and A. was 5 at that time. The Final Order now under review was made on consent on December 1, 2021 and placed the children with paternal grandparents.

[2] When the Society’s review application was brought in March of 2022, Father was living with his parents and Mother’s whereabouts were unknown. The Society intended to place the children with Father, but he indicated that he wanted the existing placement with his parents to continue. Paternal grandparents were added as parties in October of 2023; they filed an Answer dated December 8, 2023 in which they sought placement of the children in their care on terms (including that Father be permitted to reside with them) and indicated that they would not oppose a s. 102 order for decision-making responsibility and primary residence. Paternal Grandfather died on April 1, 2024. After two years’ grace was extended to Father, who was not meeting with Society workers or otherwise engaging, he was noted in default.

[3] Mother’s situation improved dramatically over this time; although she had one relapse in June of 2024, she attests that she has been otherwise clean for more than three years. The situation was such that the Society amended its Application in February of 2025 to seek placement of both children with her. It indicated the intention to bring a companion Motion in that regard, and on February 21, 2025 Justice Wood in fact set out timelines for the motion materials.

[4] Almost immediately thereafter, the Society expressed concern that Mother is once again using drugs and has thus chosen not to proceed with its Change of Placement Motion. Consequently, Mother is the Moving Party in this hearing. Due to significant difficulties with M.’s behaviours, although Mother would prefer to have both children in her care, she seeks to have only A. placed with her at this time.

Scope & Materials

[5] Mother seeks to change the placement of the younger child, A., from Paternal Grandmother’s care to her own.

[6] The following materials were reviewed for this motion:

a. Mother’s Notice of Motion and supporting Affidavit dated April 1, 2025;
b. Affidavits of ongoing service worker Patti Rocco and covering workers Tara Dupuis and Maryam Parker-Beals, all dated April 3, 2025;
c. Mother’s Reply Affidavit dated May 6, 2025;
d. Document Brief filed by Ms. LeDrew Metcalfe, agent for the Office of the Children’s Lawyer (“OCL”) representing both children;
e. Society’s Amended Amended Status Review Application and Plan of Care dated February 27, 2025;
f. Maternal Grandparents’ Answer dated December 8, 2023; and
g. Facta filed by counsel.

[7] As a result of the service of the amendment to the Application, Father’s status is renewed. He was served on February 28, 2025, and has filed no materials; he has not yet been noted in default (on this most recent amendment). In moving this matter forward, I will provide a timeline for the service and filing of Father’s Answer/Plan of Care, failing which his status will be addressed on the next return date.

Evidentiary Issue – Hearsay

[8] Part of the judicial gatekeeping role is to ensure that only evidence properly tendered is relied upon. This role is made more flexible by section 94(10) of the CYFSA, 2017, which allows the Court to rely upon “evidence that the court considers credible and trustworthy in the circumstances.” However, the integrity of the administration of justice must nonetheless be maintained. It is truly regrettable that the Society has chosen to present so much of its evidence on this motion as inadmissible hearsay. Not including unnamed police officers, the evidence of four adult persons connected with this family (two of whom are parties to this litigation) is presented as part of the narrative of Society workers’ Affidavits. All of this is double- or triple-hearsay and presumptively inadmissible unless an exception is triggered or the “principled exception” test (as set out definitively by the Supreme Court of Canada in R. v. Khan and R. v. Khelawon) can be met.

[9] In R. v. Khelawon, the Supreme Court of Canada defined the essential features of hearsay as: (1) the fact that the statement is adduced to prove the truth of its contents; and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. Writing for a unanimous Supreme Court, Justice Charron underscored that hearsay rules and exceptions, including the “principled exception” originally outlined in R. v. Khan, are intended to bolster, not impede, the court’s fact-finding role:

Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay. When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.

[10] As set down in R. v. Khan, the “principled exception” requires the demonstration of necessity and reliability. For the unanimous Court, Madam Justice McLachlin wrote:

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (…) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances and are best left to the trial judge.

[11] We will return to the statements attributed to the child A., in accordance with Justice McLachlin’s guidance, shortly. Before doing so, I address the evidence tendered through hearsay from the four adult witnesses: Mother’s neighbour; Mother’s support person; Father; and Paternal Grandmother. All of this evidence was presented as hearsay through the narratives of the Society workers. There is no reason why the Society could not obtain an Affidavit directly from Mother’s neighbour or Mother’s support person, both of whom have been involved with this family for years and appear to have a strong working relationship with Society staff. The comments attributed to Father and Paternal Grandmother are egregious examples – these individuals were given specific direction by Justice Wood regarding the submission of their own evidence. I find that none of the hearsay evidence attributed to any of these adults is admissible, as the evidence from all four adult witnesses fails the “necessity” branch of the test.

[12] We then turn to the hearsay evidence of statements made by A. As I have opined in other matters, it is my view that the mandatory phrasing of the CYFSA, 2017, which requires courts to consider the views and wishes of children unless they cannot be ascertained, satisfies the “necessity” of hearsay evidence from children in Ontario child protection matters. It is my view that this is one of the “examples of circumstances which could establish the requirement of necessity” as contemplated by McLachlin, J. in R. v. Khan. Generally, therefore, the analysis will focus on the reliability of the recitation of the child’s statements, including the credibility of the witness to whom the statements were made.

[13] The statements from A. come in via the Affidavits of Ms. Patti Rocco and Ms. Tara Dupuis and through a case note authored by Ms. Rocco regarding her meeting with A. on April 15, 2025 and relied upon by OCL. I admit the case note as a record made in the ordinary course of the business of child protection, and thus accept it as an accurate recording by Ms. Rocco of A.’s views and preferences as of April 15, 2025. Ms. Rocco’s information from A. is historic; her Affidavit does not provide any current information regarding A.’s views and preferences or recent events. Ms. Rocco was on leave when the events of February 28 – March 4 took place.

[14] A.’s most recent statements form one of the three primary bases for the Society’s reversal of its original position regarding her placement with Mother. Once the inadmissible hearsay from the adults is excluded, the three evidentiary bases are: (1) statements attributed to A.; (2) observations of Society workers on March 3 and 4, 2025; and (3) items found in Mother’s residence that the Society alleges are drug paraphernalia. I will first list the evidence that is in conflict and then apply the “principled exception” test to determine what portions of are admissible.

[15] The following chart provides a summary of the potentially admissible statements, all of which were set out in Ms. Dupuis’ Affidavit, and Mother’s response to each:

A.’s Statement	Mother’s Evidence
Mother has told A. that if she speaks to the Society workers she will be placed in foster care.	Mother has never told either child to lie on her behalf; Paternal Grandmother has made these types of comments to both of them.
Mother “has been struggling and exhibiting worrisome behaviour for a few weeks.”	Mother denies this.
On Thursday (February 27), A. saw Mother bending over, sleeping. They went to East Side Mario’s and Mother “seemed normal” but had fallen asleep in the cab on the way to the restaurant.	Mother admits to being exhausted to the point of falling asleep generally but does not address this specific allegation.
When A. came home from school on Friday (February 28), she was locked out. A. knocked and saw someone with blonde hair in a bun walking through the kitchen, in the dark, with a candle lit.	No specific response provided by Mother.
A. said that on the previous Friday (February 21), Mother was talking about owing “Sarah” two hundred dollars.	Mother denies this. She has a close friend named “Sarah” but has never owed her money.
On Saturday (March 1) A. said that she returned from the neighbour’s home around 1:00 p.m. and saw Mother holding “burnt tinfoil” in both the basement and the bathroom. She also saw Mother holding a metal tube that was burnt at the bottom.	Mother denies this entirely.
A. stayed with Mother on Saturday (March 1) and they dyed A.’s hair.	This is correct; Mother says that the only foil A. would have seen was from the highlights.
On Sunday (March 2) at 8:00 p.m., A. knocked on the bathroom door and Mother took three minutes to open it. A. saw a green coloured “rock” in a baggie and heard a lighter and tinfoil crinkling and a metal banging noise coming from the bathroom.	Mother denies this entirely.
A. woke up around 8:00 a.m. on Monday (March 3) and found Mother sitting on the toilet asleep with her pants down. A. woke Mother.	Mother denies this entirely.
Mother came out of the bathroom and started vacuuming. A. saw Mother at the bottom of the stairs kneeling on the floor and crying.	Mother denies coming out of the bathroom but confirms that she rolled her ankle when descending the stairs with the vacuum cleaner.
A. said that Mother had been trying to make A.’s lunch for school but was falling asleep while doing so.	No specific information provided by Mother.

[16] The Supreme Court instructs the fact finder to assess the reliability of the child’s statements. In a situation of emotional intensity, where no follow up conversations have been undertaken and a child’s statements are made during a single episode, that is a difficult assignment. McLachlin, J. noted that “considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability.” There is very little material in evidence addressing any of these considerations. Having said this, I have no reason to conclude that A. would intentionally fabricate the content of her statements.

[17] Ms. Tara Dupuis was assigned to attend upon this family during Ms. Rocco’s absence; if she was previously familiar to this family that is not apparent on the evidence provided. Sadly, it seems that her goal was to find evidence to support A.’s statements, rather than to objectively assess whether Mother had relapsed. Ms. Dupuis searches Mother’s house with a fine-toothed comb, looking even within the ceiling areas of the unfinished basement. She finds no drugs. She finds grey ash on the toilet seat and some sort of white residue on the bathroom floor. She finds a small quantity of foil and “stylus pens” with odd residue and burn marks on them. These items are photographed by Ms. Parker-Beal, but the photographs are not in evidence. These items are not seized by police; no testing of the residue appears to have been undertaken. Additional intact stylus pens are also found. Ms. Dupuis seems to conclude that the foil was drug-related, despite her observation that A. “had added blonde highlights to her hair since I saw her the previous Friday.” I am concerned that Ms. Dupuis is demonstrating confirmation bias in looking only for evidence supporting the narrative of Mother’s relapse. This may have led her to summarize A.’s statements incorrectly, and I therefore disregard the comment that Mother “has been struggling and exhibiting worrisome behaviour for a few weeks.” Having said this, I do not conclude that Ms. Dupuis’ representation of specific statements made by A. is generally unreliable. I accept the balance of Ms. Dupuis’ evidence as reliable recording A.’s statements to her.

[18] For clarity, I do not admit into evidence any comments made by either of Father or Paternal Grandmother at the hearing. While I accepted their submissions (including, for example, their shared statement that they wanted Mother to be healthy and drug-free), there is no evidence before the Court from either of them.

Undisputed Facts

[19] The following facts upon which I base my decision on this motion are not disputed:

a. Between September 5, 2024 and February 14, 2025, Father was incarcerated on ten charges related to drug and identification trafficking and possession of weapons (a loaded revolver, an electric discharge weapon and brass knuckles). Shortly thereafter, he was released on bail into the custody of Paternal Grandmother.

b. Paternal Grandmother was clear with the Society that she would prefer Father’s interests over those of the children if a conflict between were to arise as between her role as Father’s surety and her role as kin placement for the children. She believes he is innocent and blames M. for planting drug paraphernalia to incriminate him.

c. Paternal Grandmother permitted Father, whose driver’s license is suspended, to drive her vehicle. It is this vehicle that was searched by police when he was arrested and charged with trafficking in drugs and identification.

d. Paternal Grandmother has consistently minimized or denied Father’s criminal or drug involvement and has demonstrated no insight into the impact of Father’s behaviours on the children. She has failed to advise the Society of Father’s periods of absence from the household.

e. A year ago, Father allowed M. access to a video of himself engaged in a graphic sexual act.

f. Father’s criminal involvement renders him an inconsistent influence in the lives of the children.

g. When present in their lives, Father’s interactions with the children have been observed to be affectionate and positive. Father admits that he takes off out of their lives and has not provided stability, comments which are statements by a party against interest and thus admissible hearsay evidence.

h. Father’s only representations in this litigation to date have been to support the children remaining with Paternal Grandmother.

i. M. had been in Mother’s care on an extended visit starting in December of 2024. Mother registered her in school, but she refused to attend, balking even at an alternative school with the Society providing transportation by taxi. There were concerns that M. was smoking marijuana and cutting herself. M. would respond violently if Mother refused her requests for vapes and marijuana; the extended visit ended abruptly when M. punched Mother in the face in response to Mother’s curfew requirement. Mother attests that this had been the pattern of M.’s behaviours for some time, namely that M. would initially seek out extended time with Mother, only to reject Mother’s household rules and return to Paternal Grandmother’s home.

j. M. has alleged that she has found drugs and drug paraphernalia in the bedrooms of each of her parents (in their respective residences).

k. Mother has all of her “carries” with the OATC Clinic and all drug screens have come back negative, other than during the relapse in June of 2024 which she has admitted.

l. Allegations of other drug use by either parent have not been verified.

m. In July of 2024, Paternal Grandmother told the Society that she would no longer care for M. and overheld A., refusing to allow A. to attend at Mother’s home for parenting time as approved by the Society. A. ran away from Paternal Grandmother and was located at a neighbour’s home.

n. On or about February 24, 2025, Father and Paternal Grandmother attended at Mother’s home with M., while A. was in Mother’s care, and alleged that Mother was using drugs. Police attended and the concerns were not substantiated. A. remained in Mother’s care.

o. On February 28, 2025, A. returned to Mother’s home from school and found herself locked out. She went to Mother’s neighbour’s home, and that person attempted to communicate with Mother to no avail. At approximately 3:00 a.m., Mother responded to her neighbour by text message, indicating that she could pick up A. in a few minutes. A. stayed with the neighbour thereafter and was placed back with Paternal Grandmother on March 4, 2025.

p. Mother was experiencing some form of impairment between February 28 and March 3, 2025. Her speech was slurred, she had difficulty remaining awake, her thoughts wandered, and she struggled to stand upright.

q. Mother’s video-monitored urine screen taken on March 3, 2025 was negative for all substances. Mother was only able to produce a small amount of urine on that date, but it was sufficient. The screening process was monitored.

Mother’s Evidence

[20] Mother’s evidence is that she has been clean for three years, apart from a single relapse in June of 2024 that took place after she was prescribed pain killers for dental surgery. She attests that she was transparent with the Society about that situation. She has been working with a local recovery clinic (the “OATC Clinic”) with a suboxone prescription and has all of her “carries.” She is certain that the fresh allegations of drug use are directly connected with Father’s release from custody. She attests that M. has aligned with paternal family and that Father, Paternal Grandmother and M. have attended at her residence as a group to bully, intimidate and accuse her.

[21] In late February, Mother contracted a stomach flu. A. also contracted it and was out of school from February 25–27. Mother then reacquired it from A. During this time, Mother was not getting enough food, water, or rest. She attests that this situation resulted in extreme exhaustion and dehydration which caused her to hallucinate and to appear under the influence of a substance. She attests that her support person took her to the hospital where she was provided with intravenous fluids and prescribed an anti-depressant which has provided her with a noticeable psychological benefit. No hospital records, prescription receipts, or other documentation is attached to her Affidavit.

[22] Mother provides no details regarding the events of February 28–March 3. Of particular note is the absence of any description of the interactions with A., including the specifics around A.’s departure from her home on Monday, March 3. Mother points out that she was not in her right mind as a result, she says, of physical illness.

[23] Mother did not have any parenting time with A. for more than two months between March 3, 2025 and May 14, 2025. A. sent her text messages, and Mother attempted to telephone A. at Paternal Grandmother’s residence, but those calls went unanswered. At the hearing of this motion on May 14, 2025, the Court was advised that a visit was being planned.

The Society’s Evidence

A.’s Statements

[24] Regarding A.’s stated views, she told Ms. Rocco on April 15th that things were going well at Paternal Grandmother’s home and that she wanted to have visits with Mother but wanted those visits to take place at the home of Mother’s support person (where Mother and A. had been living during the extended visit in December of 2024). In submissions, Ms. LeDrew Metcalfe indicated that A.’s views as stated to Ms. Rocco on April 15, 2025 had changed. No evidence regarding these altered views was available, and I will not speculate about them. Suffice it to say that, for the purposes of this motion, I find that A.’s views cannot be ascertained as required by section 94(11) of the CYFSA, 2017.

[25] The balance of the statements admitted as attributed to A. are her observations of Mother’s behaviours. Mother submits that A. has been coached to fabricate this narrative, however it bears noting that A. was in Mother’s primary care leading up to the events of February 28–March 3. Although Mother makes a vague reference to constant communication between A. on the one hand and Father, Paternal Grandmother and M. on the other, it is not clear exactly how A. could have been coached to provide a false narrative against Mother, or for what reason.

Workers’ Evidence

[26] Ms. Rocco’s evidence speaks to her lengthy history with this family. Her primary concerns are Father’s criminal involvement and its potential impact upon the children; Paternal Grandmother’s refusal to acknowledge Father’s criminality and history of drug use; and Mother’s potential for relapse. This has been a protracted matter, with both parents phasing in and out of stability. Many attempts at mediation and negotiation have been made; multiple attempts to integrate the children into either parent’s care have been made. Ms. Rocco concludes: “The Society will continue to work with both parents towards reintegration into the care of a parent, either A.W. or R.N., however at this time, neither one is an appropriate option.”

[27] I turn next to the observations of Mother on March 3 and 4 made by Ms. Dupuis and Ms. Parker-Beals. There is no doubt that Mother was in a precarious state and that she could not have been left in a caregiving role between February 28 and March 4. The workers’ evidence is that Mother was at times incoherent, unable to maintain a train of thought, falling asleep during their interactions, and having significant emotional and physical difficulties. Overall, their observations, viewed in the context of a revolving door of attempts to reintegrate the children to Mother’s care, were of understandable concern.

[28] It is certainly a blessing to A. that the adults in her life had created a safety plan such that she had a safe harbour with Mother’s neighbour. It is very positive to note Ms. Parker-Beals’ observation that, on the day when A. was transported from Mother’s care back to Paternal Grandmother’s home, Mother’s neighbour was obviously comforting and supporting Mother as she processed that reality.

[29] Lastly are the physical items referenced in the Society workers’ Affidavits. No photographs are appended as Exhibits. No information is provided regarding any testing of the residue allegedly appearing on these items. No evidence is provided, expert or otherwise, regarding the alleged importance of these items to fentanyl use. Consequently, there is nothing upon which this Court can rely in connection with these items.

Paternal Family’s Evidence

[30] Neither Father nor Paternal Grandmother provided any evidence on this motion.

Law & Discussion

The Legislation

[31] In all child protection matters in Ontario, the best interests of the child involved is the paramount consideration. Section 74(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017 c. 14, Sched. 1 (the “CYFSA, 2017”), sets out the criteria in determining a child’s best interests. It is reproduced as Schedule “A” to these Reasons.

[32] A. is indigenous through her maternal family. Mother’s heritage is with the Q’alipu M’ikmaq First Nation. Thus, An Act respecting First Nations, Inuit and Métis children, youth and families, R.S.C. 2019, c. 24 (the “Federal FNIM Act”) applies in addition to section 74(3)(b) of the CYFSA, 2017. The interplay between the CYFSA, 2017 and the Federal FNIM Act create an augmented best interests test for Indigenous children (CAS v. K.C. and Constance Lake First Nation, 2020 ONSC 5513, paras 10 and 44) and set out a hierarchy of placements.

[33] Excerpts from the Federal FNIM Act are set out at Appendix “B.” In this analysis, I focus on the following:

CYFSA, 2017 section 74(3)(b):

(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);

Federal FNIM Act

16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child’s parents;

(b) with another adult member of the child’s family;

(c) with an adult who belongs to the same Indigenous group, community or people as the child;

(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or

(e) with any other adult.

[34] As this is an interim proceeding, sections 90–94 of the CYFSA, 2017 also apply. In addition to Section 94(11) regarding the views and wishes of children, discussed in detail above, sections 94(2); (5); (6) and (10) are the most significant for this motion, and they read:

94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision;

(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

Change of Placement – A High Threshold

[35] In a request to change the placement of a child, the moving party must demonstrate that the best interests of the child require a change in the child’s care arrangements, in accordance with section 113(8) of the CYFSA, 2017. In CAS v. M.M. and J.B., 2021 ONSC 5686, I addressed the applicable test in the context of a change of placement motion with a mobility component. That component is absent from this situation; however, it is still correct to state that the word “require” in the legislation goes further than creating a presumption in favour of the status quo, it demands that the court be satisfied that the change of placement is necessary to protect the best interests of the child.

[36] Notably absent from the statutory language is the concept of a “material change in circumstances” that is seen regularly in family litigation outside of the child protection context. The test is different: Mother need not prove that a material change has taken place triggering a review of A.’s residency arrangements; instead, she must meet the higher threshold of proving that A.’s best interests demand a residency change. As a result, family litigation cases that deal with a material change in circumstances or otherwise wrestle with the appropriate threshold for a review of parenting arrangements on an interim basis are not applicable.

[37] If I am wrong, and it is necessary to demonstrate a material change in circumstances as a triggering event to authorize a review of A.’s residency arrangements in the child protection context, then I find that Father’s significant criminal charges, incarceration and release to the surety care of Paternal Grandmother constitute such a triggering event.

[38] Does A.’s current situation require a change of placement to protect and promote her best interests as an indigenous child? The only way to answer this question is to comparatively assess the two placements, keeping in mind that Mother has a high evidentiary burden to meet.

Placement with Paternal Grandmother

[39] Father plays only a minimal role in parenting the children; by his own admission, he has chosen his own lifestyle over their primary care. Care is provided by Paternal Grandmother. In the care of paternal family, M. has had access to unrestricted social media. Further, Mother alleges that she is out at all hours of the night, is cutting, and uses vapes and marijuana. These allegations are unconfirmed, but the Society provides no evidence to the contrary, or even any evidence suggesting that these concerns have been raised with Paternal Grandmother despite apparent police calls due to conflict between M. and Paternal Grandmother. As A.’s older sister, M.’s behaviours will likely influence her.

[40] Paternal Grandmother has refused to allow A. to attend parenting time with Mother; A. ran away as a result. There is no evidence regarding the living conditions at Paternal Grandmother’s home or whether there are any independent supports. No evidence is provided regarding any steps taken by Father or Paternal Grandmother to encourage or support the children’s Indigenous heritage. No evidence is provided regarding A.’s school attendance from the paternal family home.

[41] The Society is entirely reliant upon Father and Paternal Grandmother to self-report, despite their clear history of minimization and outright dishonesty in that regard. Paternal Grandmother allowed Father to drive her vehicle despite his long-standing driving prohibition. Paternal Grandmother has been candid in favouring Father over the children. The Society expects Paternal Grandmother to routinely search Father’s belongings for evidence of drug use when Paternal Grandmother has consistently denied that Father uses drugs.

[42] The Society appears to simply take Father at his word when he denies the possibility that his criminal involvement could expose the children to harm. Without further explanation, he asserts that no one would attend at his home, despite the serious charges against him related to trafficking in drugs and identification and his apparent need to protect himself with weapons. No drug testing has been required of Father, despite the illegal drugs found by police in Paternal Grandmother’s vehicle. Father and Paternal Grandmother apparently convinced Ms. Parker-Beals, in one meeting, that they “were able to acknowledge the severity of [Father’s] criminal charges.” This Court is not so easily convinced.

[43] Placement of A. with Paternal Grandmother carries significant risks of emotional harm and exposure to drug use and criminal activity by Father. There is no evidence before the Court of the positive impacts of placement of A. with Paternal Grandmother, other than A.’s own statement to Ms. Rocco that things are going well there. Paternal Grandmother cannot be relied upon to pro-actively report concerns with Father and that her support of the relationship between Mother and A., or of A.’s exploration of her Indigenous heritage, is minimal to unlikely. No safety planning around Father’s drug use or criminal involvement, including the possibility that Paternal Grandmother’s home could be targeted, has been discussed.

Placement with Mother

[44] Mother lives in a three-story townhome in which each of A. and M. have their own bedrooms. When M. was in her care, Mother advocated to get her to an alternative school with the assistance of the Society. Other than the period when A. was ill with the stomach flu, there are no recent concerns expressed about Mother’s ability to get A. to school.

[45] Mother’s parenting is bolstered by her neighbour and another supportive person with whom she and the children have lived historically. Mother has maintained a close connection with both of these people even through the darkest point of March 4 when A. was removed from her care. The fact that Mother has not rejected these two individuals, who have been extremely direct and child-focused in their responses to the possibility of her relapse, should not be minimized. Mother’s humility is the outlier in this regard – often, a parent in this situation will feel betrayed and respond accordingly, rejecting the support person rather than acknowledging the situation.

[46] Mother has maintained all of her “carries” even in the face of the events of February 28–March 3. All of her drug screens have been clean for many months. Mother has reduced her Suboxone use by almost two thirds of the original prescription with the support of her medical team. Mother appears to take appropriate steps to address her medical and psychological health (although no supporting documentation is in evidence).

[47] Mother is the Indigenous parent. The family has historically been connected with Healing of the Seven Generations and it appears that the children have received counselling from Louise Burns of that agency. No further information regarding Mother’s connection with her heritage is provided.

[48] The risk to A. in Mother’s household is exclusively around potential relapse. She was clearly experiencing some kind of medical issue between February 28 and March 4, and likely should have had emergency care. As a single parent, in the absence of her support person (who was away attending a funeral out of province), her health deteriorated to an unacceptable level. The safety plan was implemented correctly in that A. went to Mother’s neighbour’s home, and that person contacted the authorities. The bottom line is that, while Mother was certainly in no shape to parent, there is no evidence that this arose due to drug use. There is no evidence that Mother in fact had a relapse. The evidence is that A. accessed the safety plan and thus the risk was mitigated.

Comparative Conclusion

[49] I conclude that, in comparing the two possible options for A., placement of A. in Mother’s household is in her best interests. As A. was originally removed from Mother’s care, it is also the least intrusive option. However, as discussed above, the test is different and more strident than simply demonstrating a material change in circumstances and seeking a fresh review of the placement options. Mother must satisfy the court that A.’s best interests require a change of placement. In this situation, because of A.’s indigeneity, I find that they do.

Placement Hierarchy – A Legislated Requirement

[50] A. is Indigenous and, as a nation, Canada has declared through the Federal FNIM Act, that:

9(2)(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;

[51] This articulates, in part, the rationale behind the hierarchy of placements in section 16(1) of the Federal FNIM Act. The hierarchy of placements is intended to increase the frequency with which Indigenous children are in the care of a parent or other Indigenous caregiver while the family is engaged with the child protection system.

[52] Here, the court is asked to determine whether the placement of an Indigenous child requires a change where that child is not residing with a parent or Indigenous family member and an Indigenous parent is available to care for her. It seems to me that the answer is obvious: as a result of Canada’s intentional shift toward actively promoting the continuity of Indigenous families, the Federal FNIM Act requires placement to be with an Indigenous parent wherever that is consistent with the child’s best interests.

Conclusion

[53] In addition to concluding that placement of A. with Mother is in her best interests in accordance with the augmented test applicable to her as an Indigenous child, I also conclude that, in this situation where the placement hierarchy clearly favours Mother’s home, a change to her placement is required to promote her best interests in accordance with the guidance in the federal legislation.

[54] Temporary Order to issue per paragraphs 16 through 18 of Mother’s Factum dated May 9, 2025, except that these terms shall apply only to A., and M.’s name shall be removed therefrom.

J. Breithaupt Smith
Released: May 28, 2025

Schedule “A”

Child, Youth and Family Services Act, 2017

S.O. 2017, c. 14, Schedule 1 [excerpt]

74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(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.

Schedule “B”

An Act respecting First Nations, Inuit and Métis children, youth and families

R.S.C. 2019, c. 24
[excerpts]

Preamble

Whereas Parliament recognizes the legacy of residential schools and the harm, including inter-generational trauma, caused to Indigenous peoples by colonial policies and procedures;

Whereas Parliament affirms the need to take into account the unique circumstances and needs of Indigenous elders, parents, youth, children, … to eliminate the over-representation of Indigenous children in child and family services systems,

4 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.

8 The purpose of this Act is to … (b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children;

9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

9 (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.

9(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts:

(b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, …

10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

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.

10 (3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including

(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

11 Child and family services provided in relation to an Indigenous child are to be provided in a manner that

(a) takes into account the child’s needs, including with respect to his or her physical, emotional and psychological safety, security and well-being;

(b) takes into account the child’s culture;

(c) allows the child to know his or her family origins; and

(d) promotes substantive equality between the child and other children.

16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child’s parents;

(b) with another adult member of the child’s family;

(c) with an adult who belongs to the same Indigenous group, community or people as the child;

(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or

(e) with any other adult.

J. Breithaupt Smith
Released: May 28, 2025