Children’s Aid Society of Ottawa v. T.C and K.J., 2025 ONSC 3633

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.

CITATION: Children’s Aid Society of Ottawa v. T.C and K.J., 2025 ONSC 3633

COURT FILE NO.: FC-06-1502-3

DATE: 2025/06/18

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF N.C.

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

T.C.

K.J.

Respondents

Danielle Marchand, for the Applicant

Cedric Nahum, for the Respondent T.C.

HEARD: May 6, 2025

endorsement

engelking J.

1The Society has brought a motion seeking an order placing the child, N.C. born November ** 20** , in the care and custody of the Children’s Aid Society of Ottawa pending the outcome of it’s Protection Application dated March 21, 2025.

2N. was removed to a place of safety from the care of her mother, Ms. C., on April 3, 2025. On April 8, 2025, a temporary without prejudice care and custody order was granted by Justice Waters. A care and custody hearing was scheduled for April 24, 2025, but on that date an adjournment was granted to permit Ms. Cote, who had only just been appointed for N., to meet with the child.

3Ms. C. has a lengthy history of child protection involvement, including from 2003 to 2013 in relation to her three older children who were all made wards of the crown.

4The Children’s Aid Society of Ottawa’s current involvement with Ms. C. commenced in January of 2022 and has been ongoing since that time involving Ms. C.’s two children, N., who is now 7 years of age, and C., born July **, 20**, who commonly goes by “L.” and is now 15 years of age. Although the Society’s Notice of Motion seeks an order for both children to be placed in the care and custody of the CAS, they have elected to proceed only with respect to the child, N., and L. continues to live at the home of Ms. C.

5L. and N.’s biological father is identified as K. J. The Society has been unable to locate Mr. J. Ms. C. has recently informed the Society that Mr. J. is deceased, but the Society has been unable to verify this information to date.

6Ms. C. and the children identify as Mi’qmaq. Ms. C. indicates that she is a member of a Band but has not identified the Band name. The statutory findings made by Justice Summers on June 13, 2024, note that neither L. nor N. are members of a Band.

7The major issues which have historically and currently necessitated the Society involvement with the family have related to Ms. C.’s mental health challenges and parenting capacity, the state of her home, and the children’s non-attendance at school.

8The children have previously been in the care of the Society, N. for approximately 14 months, and L. for approximately 16 months, in 2022 and 2023. N. was returned to her mother’s care subject to a temporary supervision order in May of 2023 and L. was placed in her care subject to a temporary supervision order in July of 2023.

9A finding in need of protection and a final supervision order for six months for both children was made on June 13, 2024.

10On December 19, 2024, the existing supervision order was terminated in favour of a three-month Voluntary Services Agreement.

11The Society’s evidence is that things have deteriorated since the previous supervision order was terminated. Specifically, Ms. C. has either ceased or significantly reduced her involvement in programing; the state of the home has remained or once again become extremely problematic; L. has not attended school at all for some time; N. has attended school only very, very sporadically, and several youth, who are stated to be friends of L.’s, but who may or may not be youth who are on the run, are staying or spending significant time in Ms. C.’s home.

12As indicated, on March 21, 2025, the Society brought a new Protection Application seeking a finding once again that the children are in need of protection and requesting an order that they be placed in the Interim Care of the Society for a period of six months. At that time, both children were in the care of Ms. C. and the Society brought a motion seeking to have the children ordered into care.

13However, on April 2, 2025, the Society’s CPW, Ms. Johnson-Breen attended Ms. C.’s home for a home visit. On that date, according to Ms. Johnson-Breen, she was essentially assaulted by a female youth, “B.”, who was unknown to her, in the presence of N. She noted trash and clutter at the entry of the home and up the stairs to the living room. The home smelled “strongly” of cigarette, cannabis, and garbage. When Ms. Johnson-Breen attempted to speak with Ms. C. about the smell of the home, the youth, B., whom she had asked to leave but would not, interrupted, became argumentative, called the worker names and insulted her. According to Ms. Johnson-Breen, B. became physically aggressive, approached her in a threatening manner and threw a punch at her, knocking her glasses off her face. Ms. Johnson-Breen again asked B. to leave, noting that she would call the police if she did not. Ms. C. also yelled at B. to leave, which she ultimately did.

14Ms. Johnson-Breen spoke to Ms. C. about the risk to N. of having such individuals in her home, which Ms. C. minimized. Ms. Johnson-Breen also spoke to Ms. C. about her being bullied by L., which was also a concern for N.’s safety and well-being.

15Ms. Johnson-Breen also observed N. to be pale, very tired, and lethargic, with dishevelled hair and dirty clothes on that date.

16On April 3, 2025, Ms. Johnson-Breen received confirmation from N.’s school that she had only very sporadically attended school and that between September of 2024 and January of 2025, N. had missed 68 days of school.

17Based on Ms. Johnson-Breen’s concerns regarding the number of L.’s friends coming in and out of the home, drug use by them, N.’s exposure to aggressive behaviour from them, Ms. C.s lack of control over them, a lack of routine or structure for N. and L., N.’s physical appearance and her lack of attendance at school, the decision was made to seek a warrant to remove the children to a place of safety. A warrant was obtained and executed on the same date. L., who will be turning 16 in July, indicated that he would not be going to a place of safety and if he was forced, he would simply run away. The decision was made to only remove N. to a place of safety.

18Ms. C. disputes the evidence of Ms. Johnson-Breen, stating that the worker came into the home and went to directly to B., “got into her face” and both were yelling and swearing at each other. Ms. C. claims that Ms. Johnson-Breen grabbed B.’s hair and then B. slapped her in the face. B. also filed an affidavit in which she identified Ms. Johnson-Breen as the aggressor. In her reply affidavit, Ms. Johnson-Breen describes that she raised her hand to put space between herself and B., who was aggressively approaching her. B.’s hair got caught in Ms. Johnson-Breen’s ring, and then B. attempted to punch her on the left side of her face, which Ms. Johnson-Breen was able to partially block. Ms. Johnson-Breen denies getting into B.’s face, yelling or swearing at her or anyone else, grabbing her by the hair or getting aggressive with her at any point.

19Regardless of what transpired, or how it was instigated, which cannot be determined on the untested affidavit evidence before me, there is no dispute that N. was present and exposed to the altercation; ultimately, she witnessed a youth knock the glasses off the face of a visitor to the home.

20Some of Ms. C.’s other evidence is simply not supported by the facts. Ms. C. denies, for example, that her home smells of cannabis, and denies that there is any drug use by L. and his friends in the home. However, both the previous CPW Ms. Leavoy and Ms. Johnson-Breen noted that the home “strongly” smelled of cannabis in February 2025, and Ms. Johnson-Breen noted the smell of cigarettes, cannabis and garbage on April 2, 2025.

21Additionally, Ms. C. indicated in her affidavit that N. “missed a few days of school” over the previous two weeks; however, the attendance record from the school attached at Exhibit “C” to Ms. Johnston-Breen’s affidavit sworn on April 14, 2025, confirms that N. had missed 99 full days and 19 half days of school in the 2024-2025 school year to that date. That is far from “a few days”.

22Finally, Ms. C.’s denial or retraction of her statements of being bullied by L. are not consistent with the direct experience and observations of Ms. Leavoy in her home visit of January 15, 2025, or the statements made to her by N. in her home visit of February 10, 2025. Indeed, there is a history of conflict between L. and Ms. C. in the home, often over the parenting of N., much of which L. appeared to be doing. This history includes reports made by L. regarding Ms. C.’s poor or lack of parenting of N.

Positions of the Parties

23The Society’s position pursuant to the CYFSA is that it has met its’ onus in demonstrating that there is a risk that N. is likely to suffer harm in the care of Ms. C., and further that a supervision order to Ms. C. would not be adequate to alleviate that harm, based on the well-established pattern of Ms. C.’s circumstances consistently deteriorating, even if she has been able to make some gains in the short term. The Society points to the previous supervision orders and/or voluntarily services agreement, which contained the same conditions as were in the previous supervision order, in support of this position. The Society submits that, to N.’s detriment, Ms. C. has been unable to consistently provide and maintain the structure and care that N. needs, rendering her at likely risk of harm which, notwithstanding many efforts, has not and cannot be alleviated by a supervision order to her.

24It is their further position that every manner of less intrusive measure has been attempted in this case, from a Temporary Care Agreement to supervision order to Voluntary Services Agreement. None have resulted in remedying the issues which have required the Society’s involvement. The Society was indeed hopeful that the termination of the previous supervision order in favour of a Voluntary Services Agreement would permit T.C to address the issues which needed addressed without the added pressure of court oversight. In fact, the opposite has happened, and the family’s situation has once again significantly deteriorated.

25Finally, it is the Society’s position that it is in N.’s best interests, under An Act respecting First Nations, Inuit and Metis children, youth and families (Federal), that she be placed in the temporary care and custody of the Children’s Aid Society of Ottawa.

26Ms. C.’s position is that N. has fared well in her care, which she submits can be surmised from purported improvements which she claims are noted by her foster parent since the child was last in care, such as she appeared to be eating better. Ms. C.’s further position is that the Society has not met its onus to assist her in the manner in which she submits it is required to do. That Ms. C. struggles in meeting the needs of the children is well-established, especially their need for a clean and safe home environment, and their need to regularly attend school. What remains either unknown or unfulfilled is what the Society may do to assist Ms. C. Ms. C.’s position is that, pursuant to the Federal Act, it is in N.’s best interests to be returned to her care and custody pursuant to a supervision order. It is her further position that she has demonstrated in the past that a supervision order has been adequate to alleviate any risk to the children, and that the Society has not met the second branch of the test under subsection 94(4) of the Provincial Act.

27N. and L. were both previously represented by Ms. Bennett on behalf of the OCL. However, after N. was removed to a place of safety, a conflict in the children’s views and preferences arose, and new counsel was assigned to represent N. Ms. Bennett remained as counsel for L. His position is that N. should be returned to the care and custody of Ms. C. subject to the supervision of the Society. L. submits that both the Society and the court are obliged to apply the remedial provisions of the CYFSA and An Act respecting First Nations, Inuit and Metis children, youth and families. L.’s further position is that much more must be done to assist Ms. C. and the family to ensure that they remain a unit. The Society needs to determine why their work to date has not assisted Ms. C., and what can be done to change it, such that the assimilation of N. is avoided.

28Finally, Ms. C. and L. both take the position that N. must be placed with Ms. C. as per the hierarchy of care outlined in section 16 of the Federal Act.

29N.’s expressed views and preferences since she has come into care are that she wants to remain in care “for the next 11 years”, or until she is 18 years of age. N. loves her mother and her brother, but she has been very clear with her counsel, Ms. Cote, that she does not wish to return home. I conclude from the unequivocal nature of her expressed views and preferences to Ms. Cote that N. is tired of the yelling and the conflict in the home (between Ms. C. and L.), she is tired of the unclean environment, and she is tired of not going to school. Indeed, N. is noted throughout Society records to be a child who loves school, but unfortunately, for reasons that can not be concretely ascertained, is not afforded the opportunity to attend when in Ms. C.’s care.

The Law

30The test on the care and custody hearing under the Child, Youth and Family Services Act, is contained in s. 94(4), which provides:

(4) the court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

31The onus is on the Society to demonstrate both that the child is likely to suffer harm and that a supervision order would not be adequate to protect her from that harm.

32“Risk that the child is likely to suffer harm” means that it is more likely than not that the child will suffer harm if returned to the person who had charge of the child at the time of the Society’s intervention.

33Because N. is an Indigenous child, however, there is a further, or different, test in this matter pursuant to An Act respecting First Nations, Inuit and Metis children, youth and families (Federal). Subsection 10(1) of that Act provides:

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. (Emphasis is added).

34Subsection 10(2) provides:

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.

35Subsection 10(3) sets out the best interests factors to be considered when determining an Indigenous child’s best interests, and they include cultural, linguistic and spiritual upbringing, needs, including the need for stability, the nature and strength of the child’s relationships, the importance of preserving the child’s cultural identity, the child’s views and preferences, any plans for the child, and any family violence and whether the child is exposed to same.

36Additionally, subsection 16(1) of the Federal Act provides:

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. (Emphasis is added).

37In the case of Kina Gbezhgomi Child and Family Services v. J.M., 2023 ONCJ 93, Justice Wolfe addressed this very issue and found at paragraph 6:

6For reasons that follow, I find that An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (Federal Act) applies and alters the method of analysis at s. 94 hearings under the CYFSA given its paramountcy over provincial legislation. This method of analysis starts with the national standards as set out in sections 10 through 17 of the Federal Act, requiring first consideration of the parents, and so on, as set out in s. 16 as opposed to the person who had charge prior to the intervention as set out in the CYFSA. Further, to the extent that there is any conflict, best interests must be understood in accordance with the definition set out in s.10 of the remedial Federal Act, read mindful of its purpose and intent.

38At paragraph 12, Justice Wolfe referenced section 4 of the Federal Act, which provides:

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.

39After citing s. 4 of the Act, as well as paragraph 44 of Simcoe Muskoka Child, Youth and Family Services v. S.H. et al, 2022 ONSC 1868 and paragraph 17 of Children’s Aid Society of London and Middlesex v. T.E., 2021 ONSC 788, the latter of which, in turn, cited paragraph 30 of Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251, Justice Wolfe stated the following at paragraph 15 of J.M.:

15The Court [in London and Middlesex v. T.E] agreed that the Federal Act applies at every stage of a child protection hearing including when the court is determining temporary orders under s. 94 of the CYFSA. I adopt the reasoning in these decisions and find that the national standards set out in ss. 10 to 17 of the Federal Act apply to and take priority to the extent that the provisions in the CYFSA are inconsistent with the Federal Act in temporary care and custody hearings under s. 94 of the CYFSA. (Emphasis is original)

40With Justice Wolfe, I agree. The Federal Act is paramount, and I am drawn to the conclusion that the test on a temporary care and custody hearing for an Indigenous child is not that which is contained in s. 94(4) of the CYFSA; rather it is a straightforward best interests test as dictated by section 10 of the Federal Act. This is particularly so in light of the phrase in subsection 10(1): “in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.”

41In J.M., Justice Wolfe was dealing with the placement options of a parent and a non-parent where neither presented with protection concerns. Indeed, she found that after her decision, the proceeding could properly transition to one under the Children’s Law Reform Act. Justice Wolfe, therefore, applied what she found to be “the presumption created by statues that it is in an Indigenous child’s best interests to be placed with a parent wherever possible” (paragraph 34; emphasis original), and placed the child with the father over the maternal aunt.

42In the case at bar, the only plans before the court are a return of N. to the care of Ms. C. or for the child to remain in the temporary care and custody of the Children’s Aid Society.

43As set out by Justice Wolfe, there is a presumption in the Federal Act that it is in an Indigenous child’s best interests to be placed with his or her parent, unless such a placement is otherwise inconsistent with his or her best interests. Given that it is the Society that is seeking an order that the child remain in care, the onus of demonstrating that such a placement would be inconsistent with the child’s best interest lies with the Society. I am satisfied in this case that the Society has met its burden. I am satisfied that a return of N. to the care of Ms. C. is not in her best interests, notwithstanding the presumption embedded in subsection 16 (1) (c) of the Act.

44Unfortunately, N. has suffered harm in the care of Ms. C. and will continue to do so, if returned. She has and will suffer harm by being exposed to the revolving door of youth who attend her home, by being exposed to cannabis use and/or cannabis smoke, by witnessing L. “bully” Ms. C., by being exposed to conflict in the home, by living in an environment which is unhygienic, and by not attending school on a regular basis.

45On the latter note, Justice Pawagi has recently noted at paragraph 44 of Catholic Children’s Aid Society of Toronto v. C.S. and G.W., 2024 ONCJ 393, in the context of a care and custody hearing:

Despite the absence of a specific category of educational neglect as a protection concern within the CYFSA, Ontario courts have held that a failure to provide a proper education can constitute both a risk of emotional harm, and emotional harm, to a child. Ontario courts have recognized that when children are habitually absent from school or late for school, it is often a symptom of significant dysfunction or neglect in the family.

46Additionally, unlike under s. 94(4) of the CYFSA, where best interest factors are not considered, section 10 of An Act respecting First Nations, Inuit and Metis children, youth and families, requires the court to consider, among other factors, “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.” As Justice Madsen, then of the Superior Court of Ontario, stated in Children’s Aid Society of Niagara Region v. S.S. and T.F., 2022 ONSC 744, stated at paragraph 65:

The Federal Act is to be interpreted in accordance with the principle of the best interests of the child, the principle of cultural continuity, and that of substantive equality. Cultural continuity is seen as essential to the wellbeing of each child. The Federal Act recognizes that children’s best interests are often promoted when a child lives with members of his or her family, and when the culture of the group to which the child belongs is respected; and, that services provided to a child and the family must be provided in a manner that does not contribute to cultural assimilation. Consideration of children’s views and preference in the decisions that affect them, without discrimination, comprises part of the concept of substantive equality. (Emphasis is added).

47Since her removal to a place of safety, N. has been adamant and unwaivering, according to her counsel, that she does not want to return to the care of Ms. C.

48While there indeed may be more work to be done by the CAS to assist Ms. C. in addressing the protection issues, pursuant to sections 11, 14 and 15.1 of the Federal Act, as is suggested by Ms. C. and L., that work cannot be done at an unacceptable cost to N.

49Section 11 provides that any child and family services provided in relation to an Indigenous child is to be provided in a manner that takes into account the child needs, including with respect to her physical, emotional and psychological safety, security and well-being. Section 14 provides the services provided to an Indigenous child must be consistent with the best interests of the child. Section 15.1 similarly provides that the apprehension of an Indigenous child must be consistent with the best interests of the child.

50Although the court is equally cognizant of and prepared to take judicial notice of the overrepresentation of Indigenous children in care, as well as of “the alienation, disempowerment and frustration that Indigenous families and communities feel when it comes to child welfare”, as was Justice Wolfe in Kina Gbezhgomi Child and Family Services v. M.A., W.S. Wiikwemkoong Unceded Territory and Aikameksheng Anishnawbek First Nation, 2020 ONCJ 414, at paragraph 42, N.’s need for physical, emotional and psychological safety, security and well-being nevertheless, unfortunately, dictates that an immediate return to Ms. C.’s care is not in her best interests.

51Having said that, I find that the Society’s proposal that access by Ms. C. to N. be a minimum once weekly to be too limiting. It is essential that N.’s relationship with Ms. C. be fostered and maintained as much as possible, recognizing that Ms. C. may have some difficulties in consistently exercising same, as she has since the child came into care. Such access should be a minimum of twice weekly, hopefully exercised in a setting in which Ms. C. is comfortable, such as the. I decline to order paragraph 3 in the Society’s Notice of Motion, providing for a suspension of access after two consecutive missed visits.

52Additionally, there should be liberal and generous access to N. by L., including at N.’s foster home, which is open to same, as arranged by the Society and/or the foster parent and L.

53There will, thus, be a temporary order as follows:

1. The child, N.H.C., born November **, 20**, is placed in the temporary care and custody of the Children’s Aid Society of Ottawa pending disposition of the Protection Application dated March 21, 2025.

2. Access between T.C. and the child, shall be at the discretion of the Children’s Aid Society of Ottawa, in keeping with the best interest and wishes of the child, a minimum of twice a week with duration, level of supervision and location to be at the discretion of the Children’s Aid Society.

3. Access between L. and N. shall be liberal and generous, as arranged by the Society and/or N.’s foster parent and L.

4. There shall be no order of costs for the motion.

Engelking J.

Released: June 18, 2025

CITATION: Children’s Aid Society of Ottawa v. T.C and K.J., 2025 ONSC, 2025 ONSC 3633 COURT FILE NO.: FC-06-1502-3

DATE: 2025/06/18

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF N.C. (DOB: November **, 20**)