The Children's Aid Society of London and Middlesex v. C.P. et al., 2025 ONSC 3315
COURT FILE NO.: FC1456/19-03
DATE OF JUDGMENT: 2025-06-05
COURT: Ontario Superior Court of Justice – Family Court
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
Parties and Counsel
Between:
The Children's Aid Society of London and Middlesex, Applicant
and
C.P., D.B., T.P., and Carol P., Respondents
Appearances:
- L. Walters, for the Society
- C.P., acting in person
- Carol P., acting in person
- Theodore Madison, for the Office of the Children’s Lawyer
Heard: April 22, 2025
Trial Judgment by: Jasminka Kalajdzic
Introduction
[1] On April 10, 2025, Tobin J. partially granted a summary judgment motion brought by the Children’s Aid Society of London and Middlesex (the “Society”) in a child protection application involving the child, C, born […] 2009. Tobin J. found C to be in need of protection pursuant to ss. 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “Act”). His Honour granted custody of C to his paternal grandmother, the Respondent, Carol P.,[^1] pursuant to s. 102 of the Act.
[2] Tobin J. also ordered that the Respondent mother, C.P. (“the mother”), shall have access with the child but found that there was a triable issue as to the terms of such access. He similarly found that C shall have access with his two younger siblings on terms to be determined at trial.
[3] The trial of these two discrete issues was held on April 22, 2025. For the reasons below, I order that both C and the mother are access holders, and that the mother should have liberal access in accordance with C’s wishes and preferences but at a minimum of once per month. I also order that C and his two younger siblings be access holders and recipients and that they have access with each other at least six times a year.
The Parties
[4] The mother’s two other children, KP (born […] 2020) and KLP (born […] 2022), are also in Society care and the subject of proceedings that were heard the week of April 22, 2025. My decision with respect to KP and KLP are set out in separate reasons and cited as 2025 ONSC 3344.
[5] The Respondent, T.P., is the father of C. He did not attend the hearing. Service of the Society’s pleadings and all future court documents were dispensed with pursuant to an order of Korpan J. on November 1, 2024.
[6] Similarly, the Respondent, D.B., the mother’s former partner and the purported father of KP and KLP, did not attend the hearing. Service of the Society’s pleadings and court documents were dispensed with pursuant to an order of Korpan J. on November 1, 2024.
[7] C’s grandmother, Carol, is the custodial parent of C pursuant to the decision of Tobin J. dated April 10, 2025.
[8] Theodore Madison from the Office of the Children’s Lawyer represented C at the trial.
Legal Representation
[9] The mother attended the trial without legal counsel. She had two different lawyers representing her at earlier stages of the litigation. Her relationship broke down with both.
[10] The trial proceeded with the mother acting on her own behalf. The court was mindful of its obligation to assist self-represented litigants. This obligation to assist is enhanced in child protection cases in which the stakes for families are so high: see Jewish Family and Child Service of Greater Toronto v. N.D., 2021 ONCJ 369.
[11] As I explained in my reasons regarding KP and KLP, the court provided the mother with considerable assistance throughout both trials.
Positions of the Parties
[12] On the issue of access with the Respondent mother, the Society seeks an order that both the mother and C be access holders and recipients and that the mother have access with C in accordance with C’s wishes and preferences to be arranged between his grandmother and mother. No supervision is sought, but the Society requests that any access be subject to the condition that the mother is not under the influence of alcohol or drugs when exercising her access as determined by C.
[13] With respect to the access between C and his siblings, KP and KLP, the Society is in favour of access at least six times per year, supervised by the Society. The Society seeks orders declaring all three children to be access holders and recipients.
[14] The mother seeks generous access to C. She would rather visit with him in the community than in Carol’s house. She does not agree that the decision to see his mother and siblings should rest with C, who she referred to as still being a child. She also does not agree that supervision is necessary.
Evidence at Trial
Society’s Evidence
[15] The Society relied on affidavits sworn by Manon Bles on January 23 and March 24, 2025, which she adopted at trial. Ms. Bles and Carol also gave viva voce evidence.
[16] Carol testified that C currently has access visits with his mother one to three times a month and that he is happy with the frequency of these visits. He has not asked to increase or cancel access with his mother. His only reservation is that he does not enjoy the visits that take place at the library with KP and KLP present as it is too loud.
[17] C’s access with his mother sometimes takes place at Carol’s house and sometimes in the community. When it takes place in the community, Carol drives him as his mother does not have a car.
[18] Carol testified that she gets along well with the mother. The mother will call Carol and ask to visit C on a particular day. They have good communication and visits go smoothly.
[19] Although there were times when Carol thought the mother might be under the influence of alcohol or drugs during a visit, it has not happened recently. C testified that if she thought the mother was under the influence of substances, she would feel comfortable cancelling the visit.
[20] Carol is also supportive of C’s continuing access to KP and KLP. She testified that if one of the children’s caregivers reached out to her, she would facilitate visits.
[21] Ms. Bles testified about her conversations with C. She has asked C many times how he feels about his visits with his mother, using open-ended questions. According to Ms. Bles, C has consistently expressed that he is content with his current access of one to two times a month. I accept this hearsay evidence on the basis of the state of mind exception.
[22] Ms. Bles also testified that C wants a relationship with his younger siblings but does not enjoy access with them at the library. He is open to parks as a place to see his siblings.
[23] Ms. Bles has no concerns about Carol making arrangements for access with KP and KLP or determining if the mother is stable and sober for her access to C.
[24] The mother did not cross-examine either Ms. Bles or C.
C.P.’s Evidence
[25] The mother’s evidence was confined to her testimony.
[26] She testified that C was only fourteen and, as a child, should not be allowed to decide whether to see his mother or siblings. Although she accepts that C is autistic, she does not think it is best for him to avoid noise. She prefers visits in the community because then he cannot “escape” to his room at Carol’s home.
[27] The mother confirmed that Carol has never denied her an access visit with C.
[28] The mother expressed worry that C and KP did not know each other well. She testified that KP’s first foster family was “wonderful” and took him to visit C at Carol’s home. KP asks for C, but KLP, who is only three years old, does not.
[29] Under cross-examination, the mother confirmed that C is, in fact, fifteen years old and will be sixteen in December.
[30] The mother also confirmed that if C did not wish to see her in the community, she would visit him at Carol’s home. She agreed that at his age, he may have other things he wants to do and may not want a visit with his mother. She stated that she has “no choice but to be ok with that” given his age.
[31] On April 25, 2025, near the end of the trial of the application involving KP and KLP, the mother announced that she was relocating to Windsor, Ontario. Given the importance of her future plans to the issues I had to decide, I asked the mother to return to the witness box and testify about her pending relocation.
[32] The mother testified that she had a job lined up with an insurance company thanks to her cousin, K.B. She could not provide the name of the company and did not have any documentation verifying her terms of employment. She also testified that she had been notified two weeks earlier that she was at the top of the waiting list for second-stage housing and that she would be getting a one-bedroom unit in Windsor.
[33] The mother confirmed under cross-examination that she had given notice to her current landlord and that she had not mentioned her relocation to her case worker, Ms. Bles, or to Carol or C.
Issues
[34] The two issues to be decided are as follows:
- What access orders should be made in C’s best interests?
- Does the court have the statutory authority to order a child to be an access holder under a s. 102 custody order?
Analysis
(a) Access
i. The Mother
[35] Any order for access is to be made in the child’s best interest: s. 104(1) of the Act.
[36] If a custody order is made under s. 102 of the Act, the court shall make an order for access unless the court is satisfied that continued contact would not be in the child’s best interests: s. 105(2) of the Act.
[37] Specific consideration of sibling access should be promoted: Children's Aid Society of Toronto v. G.(J.), 2020 ONCA 415, para. 37.
[38] The views of the child are important and must be considered by the court: Catholic Children’s Aid Society of Toronto v. R.H., 2018 ONCJ 854, para. 6.
[39] Tobin J. determined that it is in C’s best interests to have access both with the mother and with KP and KLP, leaving only the terms of such access to be determined at trial.
[40] The evidence of both Carol and the mother, and the wishes expressed by C to the Children’s Lawyer and to Ms. Bles, all support regular access between C and his mother.
[41] The current arrangement is that C and the mother see each other once or twice a month at Carol’s home or in the community. C will be sixteen years old in December. His desire to have some control over the frequency of visits and their location is understandable, given his age. At the same time, the evidence is overwhelming that C’s relationship with his mother is beneficial to him.
[42] The mother’s pending relocation to Windsor will potentially make in-person visits twice a month more challenging. It is natural to expect that access will sometimes be virtual or by telephone.
[43] Under all the circumstances, I find that it is in C’s best interests that he has access with his mother at least once a month. Access can take place in person, by telephone, or virtually. In-person visits will be a minimum of two hours in duration. Beyond the minimum monthly access visit, C shall have visits with his mother as frequently as he wishes.
[44] The mother shall not be under the influence of any non-prescription drugs or alcohol while in contact with C. She may have access with C in the community, subject to his wishes and preferences.
[45] Based on Carol’s evidence, I am confident that she will facilitate access with the mother. Access shall be arranged between them. If they cannot agree on access, Carol and the mother shall attempt mediation as a first step to resolve the issue.
ii. KP and KLP
[46] Sibling access is especially important when, as is the case before me, children might not be placed in adoption together: Children’s Aid Society of Haldimand and Norfolk v. C.L., 2020 ONSC 1816, para. 123.
[47] I am satisfied on all the evidence that a relationship with his younger siblings is and will be beneficial to C, particularly as they grow older and the difference in their ages becomes less important.
[48] C shall have access with KP and KLP a minimum of twelve times a year, either separately or together, in person, at times and in locations to be arranged by C and the younger children’s foster parents, and supervised by the Society.
[49] I encourage the mother, Carol, and the foster families to arrange regular visits where all three children can be together with their mother.
(b) Statutory Authority to Order a Child to be an Access Holder under a s. 102 Custody Order
[50] At the summary judgment motion, the Society asked that C be an access holder. Tobin J. asked counsel whether this was possible under the legislative scheme. Counsel did not address the issue in their submissions, and it was therefore ordered to be determined at trial.
[51] The legal issue identified by Tobin J. results from a gap in the Act. Section 105(7) states as follows:
Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c), the court shall specify, (a) every person who has been granted a right of access; and (b) every person with respect to whom access has been granted. [Emphasis added.]
[52] According to the express language of s. 105(7), the requirement to specify who is an access holder and who is an access recipient only arises vis-à-vis a child in extended society care. The Act is silent as to the need for specifying access holders and recipients for children under a custody order made pursuant to s. 102.
[53] It is important to determine who is an access holder and who is an access recipient because only an access holder has the right to bring an openness application if and when the Society files a notice of intention to place a child for adoption: Children’s Aid Society of Toronto v. J.G., 2020 ONSC 1135, para. 87. On the evidence adduced at trial, it is likely that both KP and KLP will be placed for adoption.
[54] Section 105 of the Act does not require the court to make an order specifying access holders and recipients for a child who is subject to a s. 102 custody order, but it also does not prohibit it.
[55] The court has discretion to order sibling access for a sibling in care to a sibling not in care: Children’s Aid Society of Toronto v. S.T., 2024 ONCJ 335, para. 197.
[56] C is not in care, but the same principles that make it necessary for the court to specify access holders and recipients for a child in extended care apply to a child subject to a custody order: it is in his best interests to continue having access with his siblings, and it is important that he have the ability to bring an openness application in the future should there be adoption proceedings related to KP and KLP.
[57] As a result, I find that the court does have the jurisdiction to make C an access holder. I order that he, KP, and KLP shall all be access holders and recipients for the purposes of ss. 105(7)(a) and (b) of the Act.
Orders Granted
[58] This court orders the following:
The child, C, born […] 2009, as access holder, shall have access with the mother, C.P., and that right of access shall be reciprocal. At a minimum, visits shall occur once a month and may be in person, virtual or by telephone. In-person access will be for a minimum of two hours in duration. More frequent access shall occur in accordance with the child’s views and preferences.
C.P. shall not be under the influence of any non-prescription drugs or alcohol while in contact with C. She may have access with C in the community, subject to his wishes and preferences.
The child, C, and his siblings, KP, born […] 2020, and KLP, born […] 2022, all as access holders, shall have a minimum of twelve in-person access visits each year, arranged by Carol and KP’s and KLP’s foster parents, and supervised by the Society.
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Jasminka Kalajdzic
Released: June 5, 2025
[^1]: Because the Respondent mother, C.P., and Respondent grandmother, Carol P., share the same surname, I will refer to Carol P. by her first name in my reasons to avoid confusion. No disrespect is intended.