Court File and Parties
of Waterloo v. A.C., J.H. and A.P., 2026 ONSC 2074
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.
(10) 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:
A.C., J.H. and A.P., Respondents
BEFORE: The Honourable Justice J. Breithaupt Smith
COUNSEL: M. Maurer, Counsel for the Respondent A.C. P. Brohman, Counsel for the Respondent J.H. A.P. is Self-Represented A. Chanda, Counsel for the Children
HEARD: April 8, 2026
Endorsement
1The Society brings a motion to strike the Answer/Plan of Care filed by the Respondent Mother, A.C. No materials have been filed in response.
2It is undisputed that A.C. has had no contact with the children since November 7, 2024. She has not had contact with the Society since June 3, 2025. She has not attended the last seven court appearances (since June 10, 2025). Her current whereabouts are unknown.
3A.C.’s Answer/Plan of Care took the position that the children should be placed with A.P. on terms of supervision. Page 3 of her Answer/Plan of Care includes the sentence: “I am content for the children to remain with A.P. who I’m told is providing good care for them.” At page 5, she writes: “I agree with the order sought by the Agency.” This is the outcome that is anticipated in the Statement of Agreed Facts signed by all parties except A.C. As of July 22, 2025, Justice Mountford noted that “This matter is likely settled.” Unfortunately, A.C.’s disconnection from all involved has delayed the resolution for the children despite the parties’ apparent agreement in principle.
4The OCL, A.P. and Father take no position on the Society’s motion; Mr. Maurer is unable to obtain instructions and has no objection to the Society’s submissions today.
5Rule 1(8)(c) authorizes the court to make an order striking pleadings where a litigant fails to obey an order. A.C. was ordered to attend court on February 26, 2026 by way of the Endorsement of Justice Piccoli dated January 20, 2026. She was not present on February 26, 2026. She thus has failed to comply with an order of this court and it is open for her pleadings to be struck.
6Mullin v. Sherlock, 2018 ONCA 1063, was a case dealing specifically with the striking of pleadings in the context of failed disclosure. The Court of Appeal provided the following guidance at paragraphs 44 through 49, which is nonetheless helpful if one conceptually replaces disclosure with participation:
44First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.
45Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:
the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
the extensiveness of existing disclosure;
the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
any other relevant factors.
46Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.
47If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.
48If the judge decides to strike, Rule 1(8)(c) does not refer to striking “pleadings”. Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change. Ideally, when making an order under this subsection, the judge should specify what is being struck.
49The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru v. Purcaru, 2010 ONCA 92, at para. 50, are “entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue.”
7I pause here to acknowledge the only reported decision to which I was referred that deals specifically with the striking of a Respondent parent’s pleading in the child protection context, which is Children’s Aid Society of London and Middlesex v A.M., 2016 ONSC 2163. I have reviewed that decision and note that the points raised by Justice Korpan are included in my analysis under Mullin v. Sherlock, below.
8Applying Pepall, J.A.’s three-part test to this situation, I conclude:
A.C. has failed to participate and thus has not complied with the Endorsement of Justice Piccoli dated January 20, 2026.
Regarding the factors for consideration in determining remedy (appreciating that striking pleadings should be of last resort):
a. A.C.’s failure to participate has significantly hindered the resolution of this matter, which (considering her position) should otherwise have settled on consent eight months ago.
b. The issues are not complex: neither parent is in a position to care for the children, who have been in A.P.’s exclusive care since April 28, 2025. They have lived with her as part of the paternal family unit since late January of 2025. They are well accustomed to her care, as more than fourteen months have now passed since they started living with her.
c. The absence of a parent’s participation in a child protection matter has an extensive impact upon the proceedings. The best interests of the children are inappropriately relegated to a secondary consideration in favour of a disproportionate focus on procedural fairness to the non-participating parent. In the face of the legislative purpose as described at section 1(2)3. v., set out below, repeated delays due to non-participation should be seen as uniquely concerning (in contrast with other aspects of civil litigation generally):
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:
- Services to children and young persons should be provided in a manner that,
v. provides early assessment, planning and decision making to achieve permanent plans for children and young persons in accordance with their best interests …
d. Unfortunately, because a parent does not participate, and has not been in contact with the Society or with counsel, there is no ability to assess the efforts made by that parent to participate. If, for example, A.C. attended court or spoke with her counsel to advise that she was unable to participate with the Society directly due to a trauma response from personal involvement with child protection services or intergenerational trauma, we could assess her participation. In the absence of any information, that becomes impossible.
e. Another relevant factor, touched upon above, is the best interests of the children in securing a conclusion to this phase of the litigation. These three children have experienced significant upheaval; they were placed with their father, J.H., and then removed from his care due to alcohol misuse and witnessing intimate partner violence. They were with former foster parents for a while (as a kin placement) and are now grounded with A.P. They have expressed their desire to remain in A.P.’s care where they have a stable and secure home environment and their lawyer advocates for closure on their behalf.
f. Finally, in this particular situation, A.C. has confirmed her agreement with the outcome sought. Thus, she suffers no prejudice if her participation is discontinued in support of a Final Order to which she has already consented in writing.
- Having considered the situation holistically and in reference to the other potential relief available under Rule 1(8), I note that all other applicable options involve adjournments which have been attempted over many months. I conclude that no other option will adequately address the situation.
9In the circumstances, the striking of the pleading is responsive to the specific breach and to the litigation situation as a whole. A.C.’s Answer/Plan of Care is struck.
10Turning then to the consent package, having reviewed it in detail and received submissions from counsel (including OCL who confirms that the children agree with the order sought), I am satisfied that the order sought is the least intrusive in accordance with the children's best interests.
11Final Order to go per draft signed today.
J. Breithaupt Smith J.
DATE: April 8, 2026