`CITATION: Whittley et al. v. Whittley, 2025 ONSC 7044
COURT FILE NO.: FC 2024-251
DATE: 2025-12-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cynthia Louise Whittley and Melissa Louise Whittley, Applicants
AND
Crystal Amanda Whittley, Respondent
BEFORE: The Honourable Justice M. N. Sirivar
COUNSEL: Me Tumi Odele, Counsel for the Applicant
Self-Represented Respondent
HEARD: August 29, 2025
REASONS FOR DECISION
M. N. SIRIVAR J
Introduction
[ 1 ] This Application concerns parenting orders for two children, Chantal Anorielle Whitley, born May 23, 2015, and Patrick David Whitley, born November 25, 2017 (the “children”). The Applicants, Cynthia Whittley and Melissa Whittley, are the children’s maternal grandmother and aunt, respectively. The sole Respondent, Crystal Whitley, is the children’s biological mother. The Applicants, who reside together, seek primary care of the children, decision-making responsibility and for the mother to have parenting time at the home of the grandmother and aunt in Rockland, Ontario, as agreed by the parties. The Applicants also seek an order permitting them to claim the children as dependents and be entitled to any tax benefits or credits available therefrom, as determined by the Canada Revenue Agency (“CRA”).
[ 2 ] The mother was served with the Application, issued December 20, 2024, on January 10, 2025, by special service. She has not filed an Answer. The grandmother is the only party represented by counsel.
Procedural History
[ 3 ] The Applicants filed a 14B procedural motion seeking a final order on the consent of the parties. A consent signed by the parties on January 10, 2025 (the “Consent”) was filed. In addition to signatures and dates, the Consent consists of one sentence: “The parties hereby consent to the issuance of the attached order and approve same as to form and content.” The attached order contained the orders sought in the Application.
[ 4 ] By order dated March 5, 2025, the Honourable Justice Holowka dismissed the motion without prejudice. He identified several concerns, such as missing Children’s Aid Society and police records. His Honour also held that the Court did not have jurisdiction to make an order regarding the treatment of parties by the CRA. He directed that, “Once these issues are addressed, this matter may be scheduled for an in-person motion before a judge. In this way, if a judge has additional concerns or questions, they may be addressed by way of evidence under oath.”
The Motion Before the Court
[ 5 ] The matter was before the Court for the Applicants’ motion for a final parenting order, in accordance with Holowka J’s endorsement. The Applicants served and filed a fresh Notice of Motion, together with the affidavits of Cynthia Whittley and Melissa Whittley, dated June 25, 2025. The mother did not file any materials in support of the motion. I decline to make the order due to concerns regarding the Consent filed, the parties, service, and the sufficiency of the evidence regarding financial support for the children.
[ 6 ] The grandmother deposes that the mother suffers from an acquired brain injury that has progressively deteriorated over time. According to the grandmother, the mother’s “current condition is that she has a short-term memory, which is declining. She tends to starve herself often, tires quickly, and represents a potential risk of self-harm.”
[ 7 ] The mother, who is 39 years old, now resides at Elsmere Retirement Home, where she receives support for daily living. The grandmother notes that although the mother requires assistance, “she remains lucid and possesses an understanding of what goes on around her. She is able to read, write and understand texts.” The grandmother concludes that the mother is unable to provide care and/or exercise sound decision-making responsibility in the best interest of the children.
[ 8 ] The grandmother deposes that the mother cared for the children from their birth until she was no longer able to do so. First, in April 2020, the mother was unable to care for both children due to her health, so the Applicants “had Chantal move in with us while Patrick remained with the Respondent Mother.” Then, in May 2022, when the mother could no longer care for Patrick due to her health, “I and the Applicant Aunt, Melissa, took over his care and had him move in with us. Accordingly, I and Melissa have assumed primary care for Chantal since April 2020 and Patrick since May 2020.”
[ 9 ] The grandmother explains that the mother was hospitalized in 2024 after starving herself for several weeks. She attaches, as an exhibit to her affidavit, a letter from Benoit Ouellette, PGY2 at the Montfort Hospital, which indicates that the mother was admitted to the hospital due to concerns about her oral intake. After multiple assessments, the conclusion was that the mother was experiencing significant functional difficulties with activities of daily living, such as meal preparation, housekeeping, financial management, and social activities, caused by underlying cognitive issues “secondary to her remote traumatic brain injury.” The recommendation was that she reside in an environment that would provide support.
Historical Context
[ 10 ] The grandmother attached, as exhibits to her affidavit, materials (affidavit, medical assessment, judgment, financial documents) from the court proceeding in 2008 that provide important historical context. On October 1, 1994, the mother sustained significant injuries, including a major brain injury, as a result of being struck by a motor vehicle while riding her bicycle. She was hospitalized until December 1994. By October 2008, the mother was no longer living in the family home, but the grandmother continued to provide attendant care, which was not expected to change in the foreseeable future. The mother lived independently in the community, and the grandmother visited her twice a week to perform her duties as an attendant care provider. They also exchange telephone and email communication several times a week.
[ 11 ] The grandmother was to be paid $652.87 monthly for attendant care provided to the mother. The attendant care benefits cannot be changed unless a specific process is followed, including completing Form 1, Assessment of Attendant Care Needs, by a qualified medical professional, and filing an amended Management Plan with the Court for approval.
[ 12 ] By Judgment dated November 3, 2008, the Honourable Mr. Justice Denis J. Power declared the mother incapable of managing property and appointed the grandmother guardian of her property without security and without compensation. The Court also approved, with amendments, a Management Plan filed by the grandmother. For instance, with respect to periodic payments, the Court did not approve that they be deposited into “a savings account to which Crystal will not have access.” Instead, all income from all sources will be deposited into the trust account, and so much of the income and capital as necessary will be applied for the mother’s benefit. The plan could be amended from time to time in accordance with section 32(11) of the Substitute Decisions Act , 1992.
[ 13 ] The Assessment of Attendant Care Needs dated 8/31/07, completed by occupational therapist Tricia Morrison, described the mother as having a severe brain injury. The option selected on the form reads, “Client lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour.” A recommendation of 60 minutes, 8 times a week in attendant care. The approved plan, however, only included 29.64 hours per month. The anticipated attendant care services included supervision of banking services, attendance at medical appointments and assessments, nutrition, housekeeping, hygiene, medication, and the purchase of clothing, assistance with grooming and appearance, daily living and guidance regarding educational and employment opportunities.
The Consent
[ 14 ] The Applicants argue that the mother has consented to the orders sought. Given the full context described above, I am not persuaded that the mother understands the issues surrounding primary residence, decision-making responsibility, parenting time schedule, financial support of the children, and their foreseeable consequences. In so concluding, I rely on the following:
• There are significant gaps and inconsistencies in the evidence, including the history of the mother caring for the children on her own and the circumstances of the children going into the care of the Applicants, including whether the mother consented at the time and the specific medical issues she faced.
• The mother, who was found to be incapable of managing her property and requires attendant care, did not have independent legal advice regarding the Consent and is not represented by counsel in these proceedings.
• The grandmother’s description of the mother’s recent challenges is not entirely corroborated by the letter from Montfort Hospital. There is no assessment or explanation of her ability to care for the children initially, nor any explanation of the circumstances that led to her inability to do so.
• The grandmother asserts that the mother lacks the capacity to care for the children and make sound decisions in their best interest and notes that she was “adjudged incapable” in 2008.
Special Party
[ 15 ] Rule 2 of the Family Law Rules defines a special party as an adult “who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act , 1992 (SDA) in respect of an issue in the case and who, as a result, requires legal representation”. A special party is therefore a person who is not able to understand information that is relevant to deciding an issue in the case or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the issue : Jewish Family and Child Service of Greater Toronto v. E.K.B , 2019 ONSC 6214 , at para. 55 .
[ 16 ] Rule 4(2) authorizes the court to appoint legal representation for a person who is a special party. Rule 4(3) authorizes the Court to appoint the Public Guardian and Trustee (“PGT”) to act as a special party’s representative if there is no appropriate person willing to act as a special party’s representative and the PGT consents.
[ 17 ] In 2008, Powers J determined that the mother was incapable of making decisions about her property, and the grandmother was appointed her guardian. The grandmother states that the mother is also unable to care for the children or make decisions in their best interest. Furthermore, she lives in an assisted living facility because she poses a risk to herself through self-harm and starvation, according to the grandmother.
[ 18 ] The mother’s responses to my inquiries are also instructive. When asked why she resides in a retirement home, she stated that it is so meals would be prepared for her. She explained that her children do not live with her because she resides in a retirement facility, where children are not permitted. She indicated that she would prefer her children to live with her if she were not residing in the retirement home. She also indicated that the children do not have birth certificates.
[ 19 ] The mother was previously determined to be a special party. I find that the mother appears to lack the mental capacity concerning the matters in the Application, including the implications of the Consent, the available options concerning parenting issues, and support for the children. The grandmother is unable to act as her representative in this Application because she is adverse in interest. Consequently, legal representation must be appointed for the mother.
Service
[ 20 ] Rule 7(4) mandates that in a case about decision-making responsibility, parenting time or contact with respect to a child, every parent shall be named as a party, unless the court orders otherwise. The materials filed raised questions about whether all the required parties have been named and served.
[ 21 ] The grandmother deposes that the biological father of the children is Berchiar Munampirwa and that he has been deceased since July 2018. The children have no existing contact with the father’s side of the family, who reside in Rwanda. The mother was also not able to answer simple questions about the father, such as his last name. She indicated that he died in 2018. She knew nothing of his family, simply stating that he had a mother, a father, a brother, and a sister, and that they resided in Africa. There is no evidence regarding the children’s parents. There are no birth certificates or other official documents that identify the children’s names, dates of birth, places of birth, or parents. Moreover, there is no supporting evidence for who the father was or when he died to confirm that he should not be a party to the Application.
Child Support
[ 22 ] There is a presumption under the Child Support Guidelines that a non-custodial parent will pay table child support for children based on his or her gross annual income. Although the Applicants do not explicitly seek child support, the children's financial support is a live issue. As part of the plan of care, the grandmother and aunt describe the financial resources available to support the children. They sought an order permitting will claim the children as dependents and be entitled to any tax benefits or credits available from CRA, as a result.
[ 23 ] The aunt deposes that she and the grandmother are financially capable of providing for the children with the necessities of life. She states,
“I am currently a beneficiary of the ODSP and earn approximately $12,000 annually. The children are currently enrolled under the Respondent Mother’s ODSP. However, if the order sought in this motion is granted, the children will be transferred to my ODSP to enable them to continue to access health benefits, services and resources.”
[ 24 ] There is, however, no evidence regarding the services and resources, the implications for the mother’s Ontario Disability Support Program (“ODSP”), and the mother’s knowledge or understanding of this plan and its implications.
[ 25 ] The grandmother reports that her income of $178,00 from working full-time as the Director of Residential Services at Innovative Community Support Services is sufficient to provide for the children. She deposes that the mother receives a structured settlement payment as a result of the accident in the monthly amount of approximately $4,000, which is “paid directly to me in my capacity as property guardian for the Respondent Mother, and I apply some of the money towards the care of the children.” There is no evidence regarding the amount applied to the care of the children, how it was determined, the grandmother’s authority to do so, or the mother’s knowledge or consent to the grandmother’s decisions.
[ 26 ] The plan approved by the Court in 2008, noted an annual income of $40,574.24, which includes ODSP, two structured settlement payments and a GST rebate. The statement from McKellar Structure Settlements Inc indicates that at the mother’s current age of 39, the monthly amount would be $4,840.47 or $58,085.64 per year. The approved plan stipulates that any funds not applied to the mother’s ongoing expenses are to be held in trust by the grandmother, the guardian. There is no information about the mother’s current or past expenses or income generated from money held in trust.
Orders
[1] The matter shall return before me, as soon as possible, for the appointment of legal representation for the mother pursuant to Rules 4(2) or 4(3) of the Family Law Rules . If any party is proposing a representative, they must serve and affidavit on all parties and the Public Guardian and Trustee and file it five business days before the attendance.
[2] The Applicant grandmother’s counsel, Tumi Odele, shall serve a copy of these reasons on the Office of the Public Guardian and Trustee, and file proof of service.
[3] The Applicants shall serve and file a motion seeking to dispense with service on the biological father with an affidavit and supporting documentation setting out evidence to establish that the criteria in Rule 6(16) have been met. This may be brought at the next attendance or by 14B procedural motion.
The Honourable Justice M.N. Sirivar
Released: December 16, 2025
COURT FILE NO.: FC 2024-251
DATE: 2025-12-16
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: RE: Cynthia Louise Whittley and Melissa Louise Whittley, Applicants AND Crystal Amanda Whittley, Respondent REASONS FOR DECISION M. N. SIRIVAR J
Released: December 16, 2025