Municipality of Waterloo v. H.P., 2025 ONSC 3731
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 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.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant
AND:
H. P., Respondent
C. B., Respondent
J. M., Respondent
BEFORE: Justice M. Tweedie
COUNSEL: Ben McIvor, Counsel for the Applicant Brent Balmer, Counsel for the Respondent H. P. Patrick Brohman, Counsel for the Respondent C. B. Anna Towlson, Counsel for the Respondent J. M.
HEARD: November 28, 29, 2024; December 3, 4, 5, 6, 9, 10, 11, 12, 13, 2024; January 27, 28, 29, and 30, 2025
REASONS FOR JUDGMENT
1This is a decision about a young child who has several adults in her life who care very deeply for her and want to support her as she grows and matures while managing the impact of the trauma that she has experienced over her short life.
2Many of these adults were once cooperative with one another and working together for the benefit of the child’s long-term well-being. However, certain events occurred which fractured the trust between them, gave rise to conflict, and ultimately resulted in this trial. It is hoped that this decision can allow the parties and other important adults in the child’s life to move forward and heal their fractured relationships for the benefit of the child.
3The matter before the court is a status review application commenced September 5, 2023. This court is tasked with deciding whether the child’s best interests are best served by being placed in the joint custody of the mother and the current caregiver, C.B., with the child’s primary residence being with C.B., or by being placed in the care of her paternal cousin, who resides in New Brunswick and who was previously approved as an appropriate placement for the child.
OVERVIEW
4The child is H.R.P. born on [date omitted], 2019 (“the child”).
5Important people in the child’s life include:
(a) H.P., the child’s mother, aged 39 (“the mother”). The mother resides in the Waterloo region. As of November 1, 2024, she was subletting a room in a friend’s apartment in Kitchener, Ontario. Prior to that she had unstable housing.
(b) J.M., the child’s father. J.M. passed away on or around October 30, 2021.
(c) C.B., kin caregiver, aged 63 (“Ms. B.”). The child has been in the continuous care of Ms. B. since April 30, 2021. The child was placed with Ms. B. initially as a foster placement on April 30, 2021. By order dated May 10, 2023, which placed the child in the care of Ms. B. subject to terms of supervision, the nature of the child’s placement was changed from foster placement to kin placement. Ms. B. resides in the Waterloo region.
(d) S.R., Ms. B.’s son, aged 42 (“Mr. R.”). Mr. R works full time and lives with Ms. B. and the child.
(e) D.P., the child’s maternal grandmother who resides in Kitchener. The maternal grandmother and Ms. B. coordinate for the child to visit with the mother and with the maternal grandmother. The maternal grandmother has also supervised the mother’s access visits with the child from time to time.
(f) The mother has another child, R, aged 10, who is the child’s half sibling (“the child’s brother” or “R”). R lives with his father in the Waterloo region and has very limited contact with the mother.
(g) S.M., the paternal grandmother (“paternal grandmother”). The paternal grandmother is not a party to these proceedings, however, will be a support to the paternal cousin, J.M., who is a party to these proceedings and is putting forth a plan for the care of the child. S.M. lives in New Brunswick.
(h) J.M., who is a first cousin of the father (“the cousin” or “Ms. M”). Ms. M. was approved by the Society as a kin caregiver for the child in early 2022, however, as will be described below, the child was never placed in her care. She was added as a party to these proceedings by order of Piccoli J. dated January 16, 2024. Ms. M. also lives in New Brunswick, with her partner, N.S. (“Mr. S.”). Ms. M. has three children (aged 17, 15, 14) who alternate weeks living with Ms. M. and with their father. Mr. S. also has three children (aged 17, 13 and 10), however, at the time of trial the two older children were not visiting with him, and the youngest alternated weeks living with Mr. S. and that child’s mother.
(i) K.M., the child’s paternal aunt who resides in the Waterloo region and has had regular, in-person, day visits with the child, approximately once per month.
6The child was removed from the mother’s care on March 31, 2020 due to the mother’s substance misuse and resultant neglect of the infant’s needs.
7The child was placed with Ms. B as a foster placement on April 30, 2021. Prior to being placed in Ms. B’s care, the child had two other foster placements.
8On August 17, 2021, the mother and the Society consented to a final order finding the child to be in need of protection pursuant to s.74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (the “CYFSA”) and placing the child in interim society care for a period of four months, and an order extending time pursuant to s.122(5) of the CYFSA.
9During the period following the August 2021 order, the mother’s engagement with the Society was limited and her attendance at access visits with the child was inconsistent. She was also incarcerated in 2021 for approximately 40 days on charges of break and enter, using a forged document, and failing to comply with a probation order.
10On October 7, 2021, the Society brought a status review application seeking an order that the child be placed in extended society care.
11Ms. M. was assessed and approved as a kin caregiver for the child. On May 31, 2022, the Society amended its status review application to seek an order placing the child in the care of Ms. M. in New Brunswick. At this time, Ms. M. had not had in person contact with the child except for some daytime visits in November 2021 when the paternal family from New Brunswick travelled to Ontario for the father’s funeral.
12The Society, Ms. B., and Ms. M had two sessions in June and October 2022 with Dr. Kristen McLeod, a psychologist with an expertise in trauma and attachment. This was to get direction on how to work together to best support the child in developing her relationship with Ms. M. through visits, both virtual and in person, and consistency in routines between the two households.
13During this time, tensions between Ms. B. and the paternal family, mainly the paternal grandmother, started to rise. Ms. B. was concerned about the impact that virtual visits with the paternal family was having on the child’s ability to regulate, and the paternal family were concerned that Ms. B. was not supportive of the child’s relationship with the paternal family and therefore not providing the appropriate supports to the child to make the virtual visits successful.
14In September 2022, the Society brought a motion for summary judgment seeking a final order without a trial placing the child in the care of Ms. M. subject to Society supervision for a period of four months. This motion was adjourned, ultimately to May 10, 2023, to allow the mother time to file responding materials.
15In addition to the visits scheduled around the time of the father’s funeral, Ms. M. had the following visits with the child:
(a) February 1-4, 2023, in Ontario, including overnights.
(b) March 6-10, 2023, in Ontario, including overnights.
(c) April 2-16, 2023, in New Brunswick at Ms. M.’s home.
16In early January 2023, Ms. B. notified the Society that she wished to present a plan for the child. She did not clearly articulate this plan until April 2023 when she advised that she wished the child to be placed, pursuant to s.102 of the CYFSA, in the joint custody of her and the mother, with the child’s primary residence to be with Ms. B. and the mother having access at Ms. B.’s discretion.
17On May 10, 2023, the Society filed a Statement of Agreed Fact signed by the Society and the mother, consenting to the current order placing the child with Ms. B. pursuant to a supervision order. The order was granted on the same day.
18This status review application commenced on September 5, 2023.
19The maternal grandmother visited with the child in Kitchener from September 1-3, 2023 (day visits) and December 27-28, 2023 (overnight).
20On October 25, 2023, the maternal grandmother’s motion to be added as a party was dismissed.
21Ms. M. was added as a party to the proceedings on January 16, 2024 following an argued motion.
22The child visited the paternal family, staying at Ms. M.’s home in New Brunswick, from August 20 to 26, 2024, and again for seven days during the winter break, December 2024 to January 2025.
23I have considered all the evidence received in these proceedings, whether specifically referred to in my decision or not.
POSITION OF THE PARTIES
24The Society’s status review application originally returnable September 5, 2023 seeks an order placing the child in the care of Ms. B. subject to Society supervision for a period of six months. However, the Society in its application stated it would support an order placing the child in the custody of Ms. B. pursuant to s.102 of the CYFSA “if there are appropriate terms in the order for the paternal families [sic] ongoing contact” with the child. At trial, the Society submitted the child should travel to New Brunswick to visit for two weeks in the summer, some time over Winter Break and March Break, and have visits with the paternal family in Ontario on adequate notice.
25The mother seeks an order that she and Ms. B. share joint custody of the child pursuant to s.102 of the CYFSA, with the child’s primary residence being with Ms. B. She agrees that her access is to be supervised.
26Ms. B.’s Answer seeks the same relief as the mother.
27Neither the mother’s Answer nor Ms. B.’s Answer has any claim for an order that Ms. M. or any of the paternal family members have contact with or access to the child. At trial, the mother’s position was that some contact with the paternal family would be appropriate. There was no schedule proposed other than it would be in person during school breaks, virtually at a frequency the court finds appropriate and would include an in person visit with K.M. a minimum of once per month.
28At trial, Ms. B. sought an order that Ms. M. shall be consulted on all major decisions regarding the child and Ms. M shall have the right to obtain information about the child directly from third parties. Further, the draft order provided by Ms. B. set out a specific schedule of access between the child and Ms. M. in New Brunswick including one week during each of the Summer, Winter, and March school breaks, and other times in the Waterloo Region as agreed upon. Ms. B.’s proposed draft order does not include any ongoing virtual access visits.
29In her Amended Answer, signed November 24, 2023, Ms. M. seeks an order placing the child in her custody pursuant to s.102 of the CYFSA, that the mother’s access be virtual on a regular basis, and in person in Ontario three weeks a year, during which the child would reside with Ms. B., who would facilitate the mother’s and maternal family’s contact with the child. At trial, Ms. M. also stated that the mother and Ms. B. would also be able to attend New Brunswick to visit with the child on reasonable notice.
PLACEMENT WITH MS. B. AS KIN CAREGIVER
30The circumstances under which the child came to be in the kin placement with Ms. B. has harmed the relationships between the paternal family, maternal family, and Ms. B., as well as the relationship between the paternal family and the Society. This was part of the focus of the witness examinations, and it is important that this court comment on this issue.
31At the time of trial, the existing order was dated May 10, 2023, and placed the child in the care of Ms. B. subject to Society supervision for a period of four months.
32While the child was in interim society care pursuant to the August 2021 order, the Society assessed and, in early 2022, approved Ms. M. as a kin caregiver for the child. At this time, the mother’s access to the child was inconsistent.
33In January 2023, Ms. B. began to notify the Society that she wished to present a long-term plan for the care of the child. Over time, that plan took many forms, including adoption, or her son, Mr. R., being the caregiver. On April 20, 2023, Ms. B. ultimately put forth a plan that the child be placed with her subject to supervision, with ongoing access to the mother.
34In the meantime, from January to April 2023, the Society continued to take steps towards the child’s placement with Ms. M. in New Brunswick. The Society continued to assert that it intended to proceed with its summary judgment motion seeking a final order placing the child with Ms. M. Items were shipped to Ms. M’s home in anticipation of the placement, the child stayed with Ms. M. in New Brunswick from April 2-16, 2023, and a plan was made for members of the paternal family to travel to Kitchener around May 10, 2023, the date the summary judgment motion was to be argued.
35Society worker at the time, Allen Hamilton, testified that after Ms. B. presented her plan on April 20, 2023, the Society convened meetings in late April and early May 2023, and decided to support Ms. B.’s plan. At the time, the mother was having regular access with the child, this access was positive, and she was the child’s only living parent. The child had been in the care of Ms. B for two years and Ms. B, in the Society’s assessment, was the child’s primary attachment. The plan for the child to remain with Ms. B. would continue both these relationships which were positive for the child.
36Mr. Hamilton told Ms. M. of the decision to place the child with Ms. B. via telephone call on May 8, 2023, two days before the parties planned to attend court to obtain the final order which is under review in this decision. Mr. Hamilton agrees that the Society did not provide Ms. M. with enough notice. He also agrees that he did not convey clearly to Ms. M. that it was very possible that a final order placing the child in Ms. B’s care would be granted by the court on the next court appearance on May 10, 2023.
37The Statement of Agreed Fact presented to the court on May 10, 2023 in support of the final order did not include any statement that a plan with Ms. M. had been approved and that plans were made to transition the child there. The Statement of Agreed Fact does not mention the plan involving Ms. M. at all. The Statement of Agreed Fact also does not include any statement as to why changing the placement of the child with Ms. B from a foster placement to a kin placement was in the child’s best interests. A transcript of the proceedings on May 10, 2023 was not presented as evidence in this trial, and I am unaware of what details, if any, were provided to the court in oral submissions on May 10, 2023 regarding the decision to abandon the plan to place the child with Ms. M. in favour of a placement with Ms. B. as kin.
38However, the court record and endorsements reveal:
a. The Society’s amended status review application, which was resolved on a final basis by the order of Madsen J. dated May 10, 2023, sought an order placing the child in the care of Ms. M. for four months subject to Society supervision.
b. The endorsements clearly document that a summary judgment motion on that amended status review application had been scheduled to be heard March 8, 2023, which on February 28, 2023 Madsen J. adjourned to May 10, 2023. It is evident from the endorsement dated February 28, 2023 that Madsen J. was fully aware of the issues before the court and the Society’s plan to place the child with Ms. M.
39Paragraph 6 of Madsen J.’s May 10, 2023 endorsement reads, “I congratulate all parties on this creative resolution which is in the best interests of the child.”
40Ms. M. would like this court to question the circumstances under which this order was made. In closing argument, counsel for Ms. M. specifically mentioned Madsen J.’s characterization of the May 10, 2023 resolution as a “creative solution” and then stated, “that is one way of describing it”. It was submitted that the resolution was a “manipulation and contortion of how things normally would unfold”, and that through this plan, Ms. B., as foster parent, was given rights that were not afforded to her through the CYFSA. Counsel pointed out that the legislation limits foster parent participation and does not automatically grant them party status for very specific reasons, and that here, transitioning the child from foster care to kin care pursuant to the May 10, 2023 order was inconsistent with the spirit of the CYFSA.
41However, s.101(1) 1. of the CYFSA, which permits a court, in the child’s best interest, to make a final order placing a child in the care of an individual, subject to supervision, reads as follows:
- That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
42Contrast the language of s.101(1) 1. with the language in s.102, which reads:
102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. [Emphasis added.]
43A foster parent is specifically excluded in s.102 and is not specifically excluded in s.101(1)1. Had the legislature intended to exclude foster parents from s.101(1)1., it would have included that exclusion in that section. There is no prohibition in the legislation which prevented the order changing the child’s status from a foster placement with Ms. B. to a kin placement with Ms. B. on May 10, 2023. The court was aware of the relief sought in the Application and that it differed from the order agreed upon and determined that the order consented to was in the child’s best interests.
44This court agrees that the Society did not communicate in a meaningful and timely manner with Ms. M. and the paternal family, who were excitedly planning for the arrival of the child into their care. The Society should have been mindful of these emotions and should have advised Ms. M. that Ms. B. was presenting a plan as soon as that plan was clear; again, when the Society determined that it would be considering Ms. B.’s plan as a possible resolution; and again when it made the final decision to support the plan presented by Ms. B. and the mother. That would have given Ms. M. ample time to consult with a lawyer, if she desired, and potentially be added as a party to the proceedings prior to the final order dated May 10, 2023.
45The way Ms. M.’s kin file was managed fractured relationships. Ms. M. testified that she was blindsided, discouraged, and angry, such that she disengaged from the Society for a period of time. This in turn resulted in the child having limited visits with her paternal family in later 2023. Further, Ms. B.’s participation as a foster parent with Ms. M. in the planning for the child’s move without telling Ms. M. that she, too, was presenting a plan, led to mistrust which has only grown since the final order was made. These fractured relationships have negatively impacted the child.
46However, Madsen, J. had the record before her when she determined that the final order was in the child’s best interests. The order was not appealed nor set aside. Further, there is no way that this court can conclude that, had Ms. M. been given more than two days’ notice that there was an agreement to a final order placing the child in the care of Ms. B. in a kin placement subject to supervision:
(a) Ms. M. would have brought a motion to be added as a party;
(b) Ms. M. would have been successful in that motion;
(c) The court would ultimately assess that Ms. M.’s plan, and not the plan that the child remain in Ms. B.’s care, was in the child’s best interests and order the child’s placement with Ms. M.
47The court’s focus for this trial is only the best interests of the child. The actions and agreements of the parties which led to the final May 10, 2023 order are only relevant inasmuch as they provide some context to the relationships between and actions of the parties.
WHAT DISPOSITION IS IN THE CHILD’S BEST INTERESTS?
Legislation
48This is a status review application under s.113 of the CYFSA. The parties agree that the child continues to be in need of protection. The parties agree that the child cannot be returned to the mother’s care.
49The court’s options for disposition are outlined in s.114 of the CYFSA:
Court may vary, etc.
114 Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,
(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;
(b) order that the original order terminate on a specified future date;
(c) make a further order or orders under section 101; or
(d) make an order under section 102.
50Section 102 of the CYFSA permits the court to, in the child’s best interests, make an order granting custody to one or more persons, other than a foster parent of the child. Any order made pursuant to s.102 and any access order granted under s.104 at the same time as a custody order is deemed to be a parenting order or contact order under s.28 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
51Access is governed by s.104 and s.105 of the CYFSA:
Access order
104 (1) The court may, in the child’s best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
52Section 105(2) of the CYFSA states as follows:
(2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.
53Section 74(3) of the CYFSA sets out considerations with respect to the best interests of the child. It states as follows:
Best interests of child
(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.
Analysis
54I have taken all of the best interests factors into consideration when deciding this matter, however, the factors that are most relevant to the determination of disposition under s.114 are:
the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, and the child’s physical, mental and emotional level of development,
the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
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, and
the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
Section 74(3)(c)(i) and the child’s needs and caregiver ability to meet needs
55The child is five years old. She has had several disruptions and at least four primary caregivers in her short life. While in her mother’s care, she did not have a stable home and did not have her needs met. She then had two foster placements before being placed in Ms. B.’s care. Although her father was not consistently involved in her life, since his death she is no longer able to have a relationship with him. She has had gaps in her relationship with her paternal extended family due to the conflict between the parties. She has had to live through several transitions and losses. It is not surprising, therefore, that she has some underdeveloped social-emotional skills.
56Matthew Cain, principal at Linwood Public School, where the child attended for both the 2023/24 and 2024/25 school year, provided some insight into the child’s needs. He became principal in February 2024 and testified that in addition to incidental daily contact with the child in the school he was also aware of the child’s needs through regular meetings of the school multidisciplinary support team. He testified that the child required significant support with her emotion regulation when she first started attending junior kindergarten as a three-year-old, but that her regulation had significantly improved since he arrived at the school. Incidents that would previously cause her to dysregulate for a day, she could now regulate in ten minutes. This dysregulation was always managed by the classroom staff without the need for his support. The child was able to manage well during unstructured playground time, as well as at long assemblies. During junior kindergarten in 2023/24, the child’s attendance increased to full time with early departure on Wednesdays and Fridays. At the time of trial, the child no longer had an Individual Education Plan or any other type of education/safety/toileting plan, and she had been attending full time with no early departures for approximately one month with no concerns. Mr. Cain testified that “for all intents and purposes she is just another SK student.”
57All parties testified about the child’s speech delay, which manifests as difficulty with expressive language skills and poor clarity of speech. Generally, all witnesses familiar with the child agreed that there had been improvement in her speech, but that she still required speech language therapy, which she was receiving through the school.
58Dr. Kristen McLeod, PhD., C. Psych, Registered Psychologist testified as a participant expert in the trial. The parties, and this court, agreed to her being qualified as an expert specializing in trauma and attachment. Dr. McLeod has 25 years’ experience. She is specialized in trauma and complex mental health with an emphasis on early development and trauma-informed care. She is founder and director of a private clinic, through which she provides therapeutic services, consultation services to organizations, speaking engagements, and workshops.
59Dr. McLeod became involved with the parties through her role as a consultant for the Society. She did not meet the child, nor did she conduct an assessment. She first met with Ms. B. in February 2022 to provide some strategies to Ms. B. for managing the child’s increased behaviours following access visits with her maternal family and paternal aunt. Later, Ms. M. was included in meetings on October 6, 2022 and December 8, 2022, again to provide strategies to support the child in regulating her emotions, but also to discuss how best to develop the child’s relationship with Ms. M. and the paternal family. Dr. McLeod was not involved to provide guidance on how best to transition the child to Ms. M.’s care.
60Dr. McLeod was not involved again until February 22, 2024 and then on September 19, 2024, when she had a meeting with Ms. B., and a separate meeting with the paternal grandmother and Ms. M. These later meetings were to provide strategies for successful video visits with the paternal family, and to facilitate improved relationships between Ms. B. and the paternal family. Dr. McLeod spoke of a goal of having each party validate the concerns of the other: namely validation of Ms. B.’s concerns about the behaviours she had to manage following visits and validation of the paternal family’s concern that they are being targeted as the cause of the child’s dysregulation.
61Through these consultations, Ms. B. gave information to Dr. McLeod about the child’s behaviours. The behaviours that were described by Ms. B. included: running around, breaking rules, clinginess, crying, increased tantrums, a regression in her speech, and hitting. Ms. B. testified that these behaviours continue in her home to date, often following visits with the paternal family. Dr. McLeod testified that this type of emotional arousal is not uncommon in children like this child, who have experienced disrupted attachments, losses, and stresses at an early age.
62While Ms. B. and Ms. M. still have not fully validated the other’s concerns, they each were able to implement the strategies suggested by Dr. McLeod to support the child when she is dysregulated and to support the child during her visits. Ms. M. ensured that there were familiar items in the child’s room when visiting, and she also obtained a weighted blanket. Ms. B. obtained a special suitcase for the child to take on her trips, and used a visual tool to help the child know when access was happening. Ms. M. facilitated calls with Ms. B and the mother during the child’s summer visit in August 2024. Ms. B. implemented suggested strategies to limit distractions during video calls.
63This court is concerned with how Ms. B. presented at times when given suggestions by professionals. During cross examination she conveyed an “I know best” attitude, even in the face of being presented with professional recommendations. When Ms. B.’s son was young, she approached her son’s hearing impairment in the same manner. Mr. Hamilton testified that she had numerous concerns and objections when in meetings with the Society and Dr. McLeod. This is likely motivated by the fact that Ms. B. feels she is the only one who truly sees the child in her most dysregulated state, given that she is the child’s primary caregiver and attachment. However, despite her resistance, she did implement suggested strategies and was able to acknowledge when, contrary to her predictions, the strategies worked. Both Mr. Hamilton and Dr. McLeod testified to this. Mr. Cain also testified that Ms. B. worked well with the school team, let the school know if the child had a bad morning before school, and would call with updates.
64The paternal family are concerned that Ms. B. did not appropriately pursue speech language therapy for the child. The child was participating in private therapy while she was placed in Ms. B.’s home as a foster placement. Mr. Hamilton’s evidence is that the child was able to receive speech language therapy through KidsAbility in 2022 but that Ms. B. (a foster parent at the time) declined, unbeknownst to the Society. In early 2023, the Society arranged for private speech language therapy for the child and paid for it, as the child was in a foster placement at that time. When the child ceased being a foster child on May 10, 2023, funding from the Society ceased. Ms. B. did not pay for the few remaining sessions for May and June 2023. The Society and Ms. B. made the decision to wait until the child began school in the fall of 2023 and could receive therapy through the school. There is nothing to suggest that Ms. B. did not utilize the in-home recommendations to work on the child’s speech. This court finds that Ms. B. did not neglect the child’s speech delay.
65Ms. B. expressed concern to the Society that Ms. M’s partner, Mr. S., posed a risk of sexual abuse and reiterated this when she was given an opportunity to change her position on cross examination. She stated that children of single women are at risk of sexual abuse by their mother’s new partners. There is no evidence to suggest that Mr. S. poses any such risk to the child.
66The mother and Ms. B. have concerns that Ms. M. does not fully appreciate the extent of the child’s needs. This is because Ms. M. has stated consistently that she has not experienced the child in a state of dysregulation. Further, while Ms. M. has identified service providers where the child might be able to receive services, she had not directly spoken with each provider to see if the child would be accepted as a client. There is nothing to suggest, however, that if the child were to be placed in Ms. M.’s care, that she would not reach out for assistance (for example, continue sessions with Dr. McLeod, find service providers in her community) and follow recommendations. The child did well during her visits with Ms. M., and Ms. M. accepted that the child has dysregulation that requires support, followed the recommendations of Dr. McLeod, and was open to receiving further services.
67Both Ms. B. and Ms. M. will be able to meet the child’s needs on a long-term basis.
Section 74(3)(c)(v) and the importance for the child’s development of a positive relationship with a parent and a secure place as member of family
68“Parent” is defined in two different sections of the CYFSA, s. 2(2) and s. 74(1).
(2) Unless this Act provides otherwise, a reference in this Act to a parent of a child is deemed to be a reference to,
(a) the person who has lawful custody of the child; or
(b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires.
74(1) In this Part,
“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:
A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children’s Law Reform Act.
In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7 (2) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.
An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.
In the case of an adopted child, a parent of the child as provided for under section 217 or 218.
An individual who has lawful custody of the child.
An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.
An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.
An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children’s Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force; (“parent”)
69“Family” is not defined in the CYFSA.
70Over time, society’s understanding of what a “parent” and “family” are has changed. Adhering to the historical concept of “parent” and “family” as individuals with biological ties (or legal ties as through adoption), does not serve to support the paramount purpose articulated in s.1 of the CYFSA, “to promote the best interests, protection and well-being of children.” The need for a more expansive definition of “parent” and “family” has been identified by the Court of Appeal for Ontario in Le v. Norris, 2024 ONCA 741, at para. 35, leave to appeal refused, [2025] S.C.C.A. No. 41536:
35Given the broad policy considerations placed on children’s right to support, it should not be surprising that the definition of child and parent has been interpreted expansively or inclusively over time to give effect to the child’s right to be supported by their parent or parents, and of course to recognize these relationships for purposes of inheritance, insurance, etc.: A.W.M. v. T.N.S., 2014 ONSC 5420, 54 R.F.L. (7th) 155. As Julien D. Payne and Marilyn A. Payne, the authors of Canadian Family Law, note at p. 2, “[t]raditional notions of the family must clearly be re-examined in the search for rational and equitable social and legal policies. In the final analysis, it may be impractical for the law to endorse a monolithic definition of “family” that applies for all legal purposes.” [Emphasis added.]
71Indeed, it is impossible to adhere to those traditional notions of family and parent for children who are involved in the child protection system and unable to return to the care of their parent. For those children, “family” will be those individuals in whose care the child feels safe, secure, and confident that the relationship will endure, regardless of missteps or conflict. For those children, their “parent” will be that individual who will care for them emotionally and physically, make decisions for them, be their advocate, love them unconditionally, support their development and help them reach their full potential.
72The Supreme Court of Canada in B.J.T. v. J.D., 2022 SCC 24, [2022] 1 S.C.R. 668 also held that biological ties, while potentially relevant in the context of a best interests analysis, is not an individual factor that should be afforded greater weight in that analysis. The court wrote as follows:
88Courts have gradually moved away from an emphasis on parental rights and biological ties in settling custody matters, whether arising from a private dispute, an adoption, or the state’s apprehension of children in need of protection.
93Statutory factors provide the starting point for assessing the relevance of biological ties. When assessing a child’s best interests, a court should consider any applicable factors enumerated in the pertinent legislation. Statutory factors offer clarity, structure, predictability and represent a legislature’s views on which factors are important based on “decades of careful study into children’s needs and how the law can best meet them”. Given the progressive shift away from biological ties in Canada’s legal history, a legislature’s decision to omit biology among the relevant statutory factors to the best interests of the child assessment also reflects a decision to downplay its significance.
101It is not an error, in my view, for a court to consider a biological tie in itself in evaluating a child’s best interests under this act, even though courts should be reluctant to superimpose the factor onto a statute when a legislature has omitted it, since courts and legislatures have progressively moved away from biological ties. Nevertheless, courts have considerable discretion in identifying and weighing the factors that are relevant in a given case. As a result, a court may conclude the evidence supports assigning weight to a biological tie if it can make the link to a child’s best interests. That said, a biological tie in itself should generally carry minimal weight for several reasons. [Citations omitted.]
73There is no doubt that Ms. B. and her son, the maternal family members, Ms. M. and her children and partner, and the paternal family members, all consider the child to be a part of their family. This court has no doubt that everyone will continue to consider her a part of their respective families.
74From the child’s perspective, Ms. B. is her parent. Ms. B. has provided love, daily care, emotional support, liaised with school and medical professionals, ensured the child’s physical and emotional needs are met, and provided her with enriching experiences. Ms. M. has not been given the opportunity to provide care to the child, however, there is nothing to suggest that Ms. M. will not be able to take on the role of a parent, or that the child will not come to see Ms. M. as her parent if she were to be placed in Ms. M.’s care.
75The paternal family suggested that Ms. B.’s age is an impediment for her to provide long term stable care for the child. This court disagrees. There is no evidence that Ms. B.’s health is compromised such that she would not be able to care for the child long term.
76The maternal family and Ms. B. suggest that there might be conflict in Ms. M.’s home, particularly anger management issues with her partner, Mr. S., which might suggest long term instability for the child should she be placed in Ms. M.’s care. At the time of trial, Mr. S. exercised week about parenting time with his ten-year-old son. He did not have a relationship with his older two daughters, aged 17 and 13, since an incident on February 18, 2024 during which Mr. S. threw a glass in anger in the direction of one of his daughters but did not hit her. The court finds that Mr. S. does have some anger management issues, which he now states he manages by leaving the house and taking a walk. This, in and of itself, would not prevent a long-term successful placement of the child in the care of Ms. M.
77This court finds that the child will be able to develop positive and secure familial and parental relationships in the care of both Ms. B. and Ms. M.
Section 74(3)(c)(vi) and the child’s relationships and ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community
78There are many individuals, both maternal and paternal family members, with whom this child has positive ties and relationships.
The mother
79The child’s mother resides in the Waterloo region. There have been several periods of time where the mother has been inconsistent in exercising her access. This is as recent as a six weeklong period from September to November 2024.
80Sometimes the reason for the mother’s absence is known, particularly the two periods of time when she was in custody. Most recently, the mother was in custody from December 2023 to June 24, 2024. While she was in custody, the mother wrote to the child and Ms. B. advised the child that the mother was sick and unable to see her in person.
81The mother’s incarceration in 2024 was in relation to charges laid in 2019. Prior to 2024, the mother has also had brief periods of incarceration in or around August 2017, April 2018, October 2019, and February 2021. The charges include theft, fail to comply, possession of a schedule I substance, and possession of property obtained by crime.
82Other times, the reason for the mother’s absence from visits is unknown. It is likely due to her substance misuse and unstable housing. Evidence of her inconsistent attendance at access, possession of drug paraphernalia, lack of consistent follow through with mental health and addictions/relapse prevention programming all suggest that she has not fully addressed the concerns which led to the child’s removal from her care. On January 28, 2025, during the Zoom trial, the mother was consistently nodding off. Eventually, she slumped over and was unable to be roused, even by my yelling her name. Emergency services were called, and Society worker Shelley Wojtala went to the hotel where the mother was staying. The mother’s counsel stayed on the Zoom call with the mother until paramedics arrived, and the mother roused shortly after court was stood down. By the time Ms. Wojtala and the paramedics arrived, the mother was coherent. The mother advised she had low blood pressure, was sick and took cough medicine, and had not eaten. Ms. Wojtala found an empty prescription bottle for Dilaudid (an opiate), in the name of someone other than the mother, in the freezer. The mother denied knowing that individual or knowing that the bottle was in the freezer. While it is uncertain whether the mother was under the influence during the trial on January 28, 2025, her presentation and the presence of the prescription bottle, raise concerns about ongoing substance misuse when taken in the context of the totality of the evidence.
83The maternal grandmother testified that in the past year the mother has admitted to some substance misuse to her directly. The mother testified to past but not ongoing substance misuse. The mother does, however, agree that the child cannot be returned to her care. She wishes to continue to have regular, supervised visits with the child.
84There is no doubt that the mother deeply loves the child. She is also mindful of the impact of her life choices on the child. She would become emotional when listening to other witnesses describe the child’s losses and struggles. The mother’s interactions with the child, when she does attend for access, are positive. She actively engages in child focused play. She also attended with the child for the private speech therapy lessons and would be the adult in the pool with the child during her infant swimming lessons.
85The evidence establishes that the child enjoys her visits with the mother. She is excited to see her, shows affection, engages with her in play. This happens even after periods of the mother’s absence. This is an important relationship for the child and the child views the mother as a parent.
86The mother states she is attending for trauma counselling through her doctor’s office and going to counselling as a condition of her probation. No evidence from the counselors was provided. This court hopes that she is continuing in these services, for both the mother’s benefit and the child’s.
87It might be that the mother again experiences housing instability. While the mother has not engaged in any criminal activity since 2021, she may do so in the future. It might be that her substance misuse impacts her future ability to attend visits consistently. Despite this, this court finds that the child’s relationship with the mother is an important one to the child and must be maintained in a meaningful way.
The maternal family
88The maternal grandmother has always had a relationship with the child. It has generally been a consistent visiting relationship. The grandmother assists the mother in getting to her visits and participates in those visits in the presence of Ms. B. The maternal grandmother also supervises some of the mother’s visits. If the mother does not attend her visits, the maternal grandmother often still attends.
89The maternal grandmother, who also resides in the Waterloo region, has also facilitated some, but not many, opportunities for the child to spend time with her maternal uncle and aunts, and her cousin, T., eight years old, all of whom reside in the Waterloo region. The maternal grandmother also plans special outings with T. and the child on school P.A. days and in the summer.
90The child has a half sibling, R., who is ten years old and lives with his father in the Waterloo region. While the maternal grandmother makes efforts to arrange for R. to attend her home when the child and maternal family are there, R.’s father was reluctant at first to allow R. to learn of his sister’s existence. The child now sees R. approximately six times a year, arranged by the maternal grandmother. The maternal grandmother would like this to be more frequent but R.’s father is not always responsive.
Ms. B.’s family
91The child has formed a connection with S.R., Ms. B.’s son. He is a part of her daily life and provides some care to her as well.
92The child is also included in all gatherings of Ms. B.’s family, which includes her daughters and their spouses, five grandchildren, and her ex-husband with whom she continues to have a cordial relationship. Her daughters both live nearby and they get together fairly frequently.
The father and paternal family
93There is little evidence before the court regarding the father’s contact with the child prior to his death. The mother testified that he saw the child maybe 12 times.
94In or around September 2024, the child began to ask about her father. She was told he was in heaven. She spoke of her father picking her up in a rainbow bus. She saw a stock photo in a frame and said, “that’s my daddy”. She started calling Ms. B.’s son “daddy” and was corrected. Ms. B. sought out a consultation with Dr. McLeod who recommended that it was important that the child have a “basic narrative” about her father but be permitted to have her magical thoughts such as the rainbow bus. Dr. McLeod also recommended that Ms. M., the paternal grandmother, and paternal aunt start to tell the child about her father, and start connecting the child to her father, by noting, for example, “you have daddy’s hair”. It is clear that connection to the paternal family is important to allow the child to feel a connection to her father and understand her roots.
95The paternal grandmother moved from the Waterloo region to New Brunswick in October 2020. She has been involved in the child’s life since paternity was confirmed in August 2020. She has visited with the child both in Kitchener and New Brunswick. Given the distance, however, the visits are not frequent, but she makes effort to see the child whenever she is in the Waterloo region. She includes the child in the traditions she shares with the other grandchildren, such as buying them a Christmas dress every year and then taking photos. Following the May 10, 2023 order, Ms. M. was upset and the paternal grandmother became the main liaison between the paternal family and the Society and Ms. B. Ms. M.’s original plan was to have the child placed in the joint custody of Ms. M. and the paternal grandmother, but shortly prior to trial, she amended her Answer to seek an order that the child be placed solely in her custody, noting that the paternal grandmother would continue to be a support.
96When the child visits New Brunswick, the paternal family also facilitate contact between the child and the paternal great grandmother, who also occasionally participated in video calls with the child.
97The child has had contact with several members of the paternal family during her visits. Originally there were several who joined the video calls. However, the number of people became overwhelming for the child and it was agreed to limit the number participants for these visits, so the paternal family members alternate who attends the video calls.
98The child visits at least once a month with the paternal aunt. The paternal aunt resides in the Waterloo region and testified that she planned to move in the future somewhere within one hour of the region. She said she might at some point move back to New Brunswick. During the visits with the paternal aunt, the child will sometimes spend time with the paternal aunt’s daughters, aged 17 and 14, and her great uncle (the paternal grandmother’s brother). All family members and Ms. B. agreed that the child enjoys her time with the paternal aunt and is fond of her great uncle.
Ability to promote positive relationships
99After having identified the child’s ties to various people in her life, the court must also consider the ability of each proposed caregiver to foster ongoing relationships between the child and those important people.
100There is a genuine concern that Ms. B. may limit contact with the paternal family. She has not promoted that relationship since the child was placed in her care subject to Society supervision in 2023, despite the Society’s direction.
101Two motivations were identified for her restricting this contact – that she was under the mistaken impression that the May 10, 2023 supervision order gave her decision making authority, and that she was genuinely concerned about the dysregulation of the child following the visits. These motivations, however, do not justify the extent to which Ms. B. has resisted contact.
102Concerns regarding Ms. B. include:
(a) Ms. B. did not fully follow the recommendations of Dr. McLeod. This includes not displaying photos and letters from the paternal family for the child to see, and not having the child routinely send pictures or letters to the paternal family. Those recommendations that she did follow, she did so with objection and reluctance.
(b) Once the child was placed in her care pursuant to a supervision order, Ms. B. stopped facilitating the video calls and expected them to be facilitated during the paternal aunt’s visits. These visits were at best, once a month, and the paternal aunt testified that Ms. B. would sometimes cancel them.
(c) Ms. B. has not accepted the explanation of Dr. McLeod regarding the “holiday hangover” effect contributing to the child’s dysregulation after paternal family visits. She continues to maintain it is all related to her differentiated needs.
(d) Ms. B. said she felt the child was “ruined” by the paternal family and she did not re-adjust that comment when given the opportunity to do so in cross examination.
(e) Ms. M. had to bring two motions during this status review application, both of which were argued, to be able to secure extended holiday visits with the child. Ms. B. is clearly influenced by the mother’s input. In her evidence she stated that she would consult with the mother about any decisions for the child, and she continues to seek an order of joint custody. As such, it is not clear entirely whether it was both Ms. B. and the mother who were opposing the visits in New Brunswick, or whether it was only one of them.
(f) As stated earlier, Ms. B. has an unfounded belief that Mr. S. poses a risk of sexual abuse to the child.
(g) Prior to visits, Ms. B. has heightened anxiety and anticipation of the child’s increased behaviors following the visit, to which the child is attuned going into the visits. Despite Dr. McLeod speaking to Ms. B. about this during the consultation, it does not appear that she has fully addressed this issue.
103However, Ms. B. did follow the orders for access once made. She implemented some suggestions to prepare the child for visits which reduced the disruption. She used a countdown calendar and a special suitcase. She also identified the child’s visits to New Brunswick as a welcome break for her.
104Ms. M. holds views with respect to the mother that will impact her ability to foster a positive relationship between the child and the mother:
(a) Although Ms. M. testified that the child’s relationship with the mother is an important one and she would support almost daily contact between them, she has an unusual belief regarding the impact of mother’s substance use on the child should they have in person visits.
(b) Concerns regarding exposure to drug residue or paraphernalia are legitimate and can be reduced by way of supervised access. However, Ms. M. testified that she thought that it would be better for the child if the mother’s involvement is “at a distance”. She thinks addiction is not something a child should deal with. This was canvassed in cross examination. When asked if she agreed that in person contact with the mother was important for the child’s best interests, her answer was “yes and no” because of her fear of the child’s exposure to the mother’s addiction. She was later asked clarifying questions and explained her belief that exposure to individuals with active addiction would increase an individual’s risk of becoming an addict themselves.
(c) Ms. M. testified that if the child’s father were still alive and continuing to struggle with substance misuse, she would not support him seeing the child on a regular basis.
(d) During her testimony, Ms. M.’s initial position was that the mother’s in person visits would happen when the child was in Ontario. It was not clear when that would be or with whom the child would be staying. Ms. M. later agreed that the mother could also visit in New Brunswick and that the paternal family would contribute financially to travel costs.
105There is nothing to suggest that the child will become an addict due to in person contact with a parent struggling with active substance misuse. Avoiding reality by restricting access is not in the child’s best interests. Recovery from addictions and mental health issues most often does not follow a linear trajectory. There will be relapses and fluctuations in mood and functioning. The child will have to be supported through this. Avoiding it is impossible.
106This is not to diminish Ms. M.’s view that the mother is an important figure in the child’s life. She clearly thinks the child should have frequent contact with the mother. She facilitated a call between the mother and child during the child’s extended visit in August 2024, although there was no court order that she do so. She also said that she would let the mother live in her home during visits and would contribute financially towards the mother’s travel costs.
107However, contrast Ms. M.’s views to Ms. B’s views. Ms. B. was able to speak about the mother’s addiction and mental health with empathy while recognizing that she might have to set boundaries to protect the child. She spontaneously in her evidence acknowledged the mother’s positive traits. She recognized that the mother was a college graduate. She chose swimming lessons for the child because the mother excelled in swimming in her youth. She accepts that recovery from addiction doesn’t follow a straight path and often comes with relapses. She also made very clear that she will not tolerate the mother’s substance use if it poses a risk to the child. Ms. B. is most likely to frame the mother’s mental health and substance misuse issues in a non-stigmatizing way. This will assist the child in accepting the mother where she is at and not feel stigma or shame about her mother, thereby fostering a better relationship between the child and the mother and a better sense of self for the child.
Section 73(3)(c)(vii) and the importance of continuity of care and the possible effect of its disruption
108Children who are the subject of child protection proceedings have suffered disruption in their caregiving. Further disruption is necessary to carry out the goals of the legislation, particularly if a parent whose child is removed from their care addresses the concerns such that the child may be returned, or if a relative is identified as an appropriate caregiver to the child. As Dr. McLeod stated, if the goal was to never move a child, then they would never leave foster care. There is trauma inherent in the child protection system which cannot be avoided.
109Dr. McLeod spoke of the impact of system trauma on children. While one cannot predict how a specific child will react, Dr. McLeod stated that repeated breakdowns in placements generally have a cumulative effect on children. Mitigating factors would be the response of the child’s caregiver and the support the child is provided both prior to and after the placement change.
110Here, Ms. B. is the child’s primary caregiver and has been since April 2021. Ms. B. is the only primary caregiver known to the child and is the child’s primary attachment.
111It is acknowledged that Ms. B. was the child’s primary caregiver at the time that all parties were planning for the child to be placed with Ms. M., yet everyone thought that the disruption of that attachment was in the child’s best interests. At that point, Ms. B. was not presenting a long-term plan for the child. She is now. A change in placement is no longer the only option for the child.
112The importance of continuity of care is a significant factor to consider when assessing this child’s needs. Given the number of disruptions in the child’s early years, and the effect of those disruptions upon the child’s needs, a further disruption will likely cause her future challenges and distress, which would not be in her best interests. Even though Ms. M. may be equipped to support the child, that does not mean that the child should be put through any further disruptions.
PLACEMENT
113In evaluating all factors relevant to the best interests analysis, as set out in s.74 of the CYFSA, this court concludes that it is in the child’s best interests to remain in the care of Ms. B. on a long-term basis for the following reasons:
(a) This placement maintains the child’s primary attachment which has existed since April 2021, most of the child’s life. It ensures continuity of care after an early childhood of instability and changes in caregivers. It prevents further harm from additional disruptions.
(b) It enables the child to maintain her attachment and relationship with the mother. Despite the mother’s history, the child has formed an important relationship with her mother, who is her only surviving parent. The mother is unlikely to be able to afford to travel to New Brunswick, and while generous, it is unlikely that the paternal family will be able to fund her travel.
(c) The child’s relationship with her mother is more likely to be fostered by Ms. B. Further, Ms. B.’s holistic and empathetic views of the mother better equips her to support the child in understanding and managing the mother’s ongoing substance misuse and mental health struggles in a way that is not stigmatizing or shameful for the child.
(d) There are other individuals in the Waterloo region with whom the child has ties, which ties will be disrupted or potentially severed if she was to move to New Brunswick. There are several members of the maternal and paternal families in the Waterloo region. The court specifically notes her half-brother R. and cousin T., who, given that they are similar in age, could be lasting connections and supports for the child into adulthood.
JOINT OR SOLE CUSTODY
114While supervision of parenting time does not necessarily mean that mother is incapable of making good decisions, the fact is that the mother’s historical engagement in the child’s life has been inconsistent. This inconsistency was as recent as October 2024 when the mother’s whereabouts were unknown for three weeks. Even if the mother did not have access to a telephone or was sick during these periods, she could have found a way to get in touch with either Ms. B. directly, or the maternal grandmother to pass on a message.
115The relationship between the mother and Ms. B. has not always been a good one. There may be times, particularly if Ms. B. is to set boundaries with which the mother does not agree, during which the relationship deteriorates again.
116Granting joint custody in these circumstances is not in the child’s best interests. If Ms. B. wishes to consult with the mother prior to making decisions, she may do so.
117I find that it is important that the paternal family are given an opportunity to provide input regarding decisions made for the child. This will ensure that their involvement in the child’s life is not marginalized and ensure the child is aware that people from her father’s family are playing a role in making decisions to shape her life.
ACCESS
Mother
118Dr. McLeod was clear that for the child to succeed, access visits need to be part of the regular routine.
119In submissions, counsel for Ms. M. raised concern that continuing access resulted in no consequence to the mother for not achieving sobriety. Access is not a tool by which to influence parents to address the protection concerns. Access is for the benefit of the child, to maintain important relationships in a manner that is safe and in the child’s best interests. This court has found that the child’s relationship with the mother is an important one and must be maintained. Ms. B. has acted protectively in the past regarding visits and is clear that she will not continue visits if the mother is under the influence or brings drug paraphernalia to visits.
120The visits shall be ordered to continue a minimum of twice per month. It is in the child’s best interests that the mother’s access be supervised, with the location, duration and chosen supervisor to be at the discretion of Ms. B. This accounts for the mother’s history of inconsistency, current instability, and likely ongoing substance misuse.
Paternal family
121It is not surprising that the child has dysregulation and setbacks after her visits with the paternal family. It is impossible to avoid changes to her routine when she is visiting with the paternal family, and these transitions and changes are something that the child requires support in managing. This is what Dr. McLeod characterized in her report as the “holiday hangover”, writing as follows:
Often in my role with Family and Children Services I am asked to advise on why a child may be showing distress related to access. First, it is critical to understand that distress following family access is not uncommon and is particularly common in younger children for whom change - even positive change - can result in a brief period of regulation concerns. Any parent or caregiver can instantly understand the notion of “holiday hangovers” with younger children or with children who, because of their neurodevelopment stage, need routine and predictability in order to be successful when the world goes back to day to day (and maybe less fun). This notion of holiday hangover understands that the days spent following a fun, but routine-altering trip, can be days wherein a child is more disruptive, needy, challenging, etc. When such changes are further complicated by complete changes in caregiving style, settling back into routine is often difficult. However, this dysregulation is not, necessarily, indicative of any distress or concern about the quality of the caregiving or access in either setting.
122However, Dr. McLeod also testified that some of these behaviors could be part of the child’s biology, developing in her early years during which she experienced neglect, unstable caregiving, loss of primary attachments, and changes in primary residence. It is not only the visits that are contributing to the child’s dysregulation.
123This court also notes that the relationship between the paternal family and Ms. B. is different than that between Ms. B. and the maternal family. The child will sense this difference and internalize the less relaxed, potentially tense, interactions between the paternal family and Ms. B. during the video calls, diminishing the quality of the visit. The hope is that with the end of this litigation, the parties work towards repairing their relationship for the benefit of the child.
124This court acknowledges that the periods of dysregulation are stressful for both Ms. B. and the child. However, this is who the child is, and it is the adults who need to support the child and teach her skills to minimize the impact. Avoiding the difficult times does not serve to assist the child in developing her regulation skills and does not assist her in achieving her full potential.
125To avoid overnight visits would be at expense of the child’s relationship with the paternal family, which is her best and only connection to her father.
126Access with the paternal family, including in person visits in the Waterloo region, video calls, and extended visits in New Brunswick, are necessary for the child’s best interests.
127I agree that a video call with several individuals can be overwhelming. One must only remember the days of the COVID-19 pandemic when we all tried to connect in group calls with family members or have meetings with colleagues. It was very difficult to follow the conversation when there were more than three or four people on the call. It must be even more difficult for a young child. The child shall have regular video calls with the paternal family, but the calls must be limited to three persons from the paternal family.
128It is also important to maintain the connections between the child and the paternal family by way of daily reminders of the important people. This was already suggested by Dr. McLeod in terms of exchanging and displaying letters and pictures. Ms. B. did not follow this suggestion. While there were some letters exchanged, they were not displayed or put in a space where the child could access them. I will therefore include in my order that Ms. B. shall create such a display for the child and regularly update it when photos and letters are exchanged.
129It is also important that there be regular in person access with the paternal aunt, and I will order that it occur a minimum of once monthly, as arranged between Ms. B. and the paternal aunt.
MESSAGE TO THE PARTIES
130Having heard several days of evidence, the court makes the following comments to assist the parties in moving forward for the benefit of the child.
131Ms. B. needs to do much better in her support of the child’s relationship with the paternal family. Their involvement in the child’s life is critical given that her father is deceased and the child is exploring that part of her. While not minimizing the challenges faced by Ms. B. in managing the child’s “holiday hangover”, Ms. B. can no longer use those behaviours as a reason to restrict or cut off contact with the paternal family, including both regular virtual contact and extended in person visits in New Brunswick.
132The paternal family also needs to do better in acknowledging the level of support that the child requires from her caregiver and collaborating with Ms. B. to develop plans to jointly support the child when she visits with the paternal family, both virtually and in person.
133All adults in the child’s life must do better in working together. They all love the child dearly, want her to succeed, and are equally committed to her well-being.
134It was quite sad observing the division and conflict between the adults. They were once friendly and supportive of each other’s relationships with the child. They were able to communicate and share information about the child. Early in the child’s life, they even spent time together and celebrated the child’s first birthday. Dr. McLeod commented in her report that the initial meetings were very collaborative and productive.
135There were also times during the trial where each spoke of the others with kind words, gratitude, and empathy. It is these glimmers of positivity that the parties should focus on going forward.
136Dr. McLeod. states in her report’s conclusion:
…[the child] will need a narrative about who everyone is in her world, and needs a foundation on which to place that narrative. Children don’t tolerate long periods of transition well, which is why behavioral difficulties are so common when children are experiencing upheavals such as separation of parents or loss of a caregiver. For [the child] she has had many years now of existing in an uncertain story. When combined with [the child’s] arousal regulation concerns, the risks that [the child] may pick up on the tensions of others, and the possible complicating factor that is the magical egotistical thinking of youngsters, ongoing dysregulation can almost be anticipated. It is my hope, therefore, that regardless of outcome, those who love [the child] will continue to work to support her in developing strong attachments to caring adults, and to help her develop good regulation abilities in the future.
137I ask that the parties keep these words and their once collaborative relationship in mind, and follow what Dr. McLeod recommends: recognize each other as important members of the child’s community whose involvement will only enrich the child’s life experiences and improve her ability to reach her full potential; be excited in the presence of the child when making connections with the other instead of being tense and reserved; support one another in your experiences with the child, and accept each other’s flaws and missteps with grace and empathy.
ORDER
1The child H.R.P., born [date omitted], 2019, shall be placed in the custody of C.B. pursuant to s.102 of the CYFSA. This shall be deemed to be an order for sole decision making responsibility and primary residence, pursuant to s.28 of the Children’s Law Reform Act.
2C.B. shall consult with J.M. on all major decisions regarding the child, H.R.P., born [date omitted], 2019, including but not limited to, decisions relating to physical and mental health, education, and religion and shall give meaningful consideration to J.M.’s input prior to making the final decision.
3J. M. shall have the right to obtain information and records relating to the child H.R.P., directly from service providers. C.B. shall provide to J. M. the names and contact information for all service providers when they become known to her.
4H.P. shall have supervised access to H.R.P. a minimum of twice per month, with the location, duration, and supervisor to be at the discretion of C.B. This shall be deemed to be an order for parenting time pursuant to s.28 of the Children’s Law Reform Act.
5J.M. shall have access to the child as follows:
a. A minimum of 14 consecutive days in New Brunswick during the child’s summer break. In 2025, J.M. shall provide C.B. with written notice of the chosen dates by July 18, 2025. In 2026 and each year thereafter, J.M. shall provide C.B. with written notice of the chosen dates by May 15 of each year.
b. A minimum of seven consecutive days in New Brunswick during the child’s winter break, to commence December 26 or later.
c. Up to seven days in New Brunswick during the child’s March break.
d. Should J.M. or other members of the paternal family residing in New Brunswick travel to the Waterloo region, C.B. shall use best efforts to ensure that the family member has contact with the child H.R.P. on reasonable notice.
e. The child’s travel to New Brunswick shall not be by car unless agreed upon in writing by both C.B. and J.M.
f. The child shall not fly unaccompanied unless agreed upon in writing by both C.B. and J.M.
g. J.M. shall provide a detailed travel itinerary to C.B. in advance of the travel, including flight numbers and times, airports, where the child will be staying, and any special trips, events or excursions that will be planned.
h. While the child is visiting in New Brunswick, J.M. shall facilitate two video calls, a minimum of 15 minutes each, between the child and C.B. for each seven day period, and shall facilitate one video call, a minimum of 15 minutes, between the child and H.P. for each seven day period. Dates and times for these calls shall be agreed upon by the parties.
6C.B. shall facilitate a video call, a minimum of 20 minutes, between the child and paternal family members a minimum of once every two weeks, with such other times as agreed upon by C.B. and J.M. Unless otherwise agreed to in writing, the paternal family participants shall be limited to three people each call and either J.M. or S.M. shall be at each video call, with the other two paternal family members to be chosen at the discretion of J.M.
7C.B. shall facilitate a once monthly visit between the child and paternal aunt, K.M.
8C.B. shall create a special display in the home in which she shall post photos, letters, drawings, and other mementos relating to the father and paternal family.
9C.B. shall be permitted to obtain any government documentation, including, but not limited to, passports and health cards, for the child, without the consent, participation or signature of H.P., which are dispensed with.
10C.B. shall be permitted to travel with the child outside of Canada without the consent of H.P.
M. Tweedie J.
Date: June 27, 2025
Municipality of Waterloo v. H.P., 2025 ONSC 3731
COURT FILE NO.: FC-20-17-002
DATE: 2025/06/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF
THE REGIONAL MUNICIPALITY OF
WATERLOO
Applicant
- AND -
H. P., C. B., and J. M.
Respondents
REASONS FOR JUDGMENT
M. Tweedie J.
Released: June 27, 2025