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: Family and Children’s Services of the Waterloo Region, Applicant
AND:
G.M., Respondent
R.M., Respondent
BEFORE: The Honourable Justice F. Wood
COUNSEL: Ben McIvor, Counsel for the Applicant
Brent Balmer, Counsel for G.M.
Micheal J. Pass, Counsel for R.M.
Jean LeDrew-Metcalfe, Counsel for the OCL
HEARD: January 14 and February 7, 2026
ENDORSEMENT
This is a long-standing Protection Application. The Applicant Society brought a motion for summary judgment in August 2025, which was eventually heard in January and February of this year.
The Society seeks a final order placing the child, E.R.M, born [date omitted] in Extended Society Care. Specifically, it seeks a finding that E is in need of protection pursuant to ss. 74(2)(b)(i), (b)(ii) and (k) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (“the CYFSA”).
In the context of the Application, the mother, G.M., seeks the return of E to her care. In the context of this motion, she argues that there are triable issues and that the motion should be dismissed.
The Society takes the position that even on the uncontested evidence, the end result is inevitable. It argues that G.M. is unable to provide adequate care for the child, E, and that she has not been able to put forward a Plan of Care which would address significant protection concerns.
G.M. argues that there are serious issues to be tried. She argues that the majority of the evidence, including from medical and other service providers, has been provided third hand, through Society employees, which precludes her from cross-examining key witnesses.
For the reasons set out below, the court finds that there are serious issues to be tried and that this case does not meet the test for determination on a summary judgment motion. The reasons are deliberately brief – ultimately there will be a trial of this matter, and the court does not wish to compromise the position of either party by delving too far into an examination of the facts.
Brief Background
E.M. was born on [date omitted]. She suffered an anoxic brain injury at birth, has cerebral palsy, epilepsy, is legally blind and requires a feeding tube. E is non-verbal, has limited ability to take food by mouth, and is not independently mobile. It is not disputed that E’s care needs are extensive.
E’s parents separated in April 2016 and G.M. thereafter obtained an order that she have sole custody of E and her sister, D. When she was 5, G.M. arranged for E to reside at VOSS House, operated by Sunbeam Developmental Services.
With some minor exceptions, E’s placement at VOSS House continued without major concerns until November 2021. G.M. was experiencing challenges in her communications with staff at VOSS House. Based on a review of the referrals made to the Society over the following year, it can safely be said that communication between G.M. and VOSS House continued to deteriorate.
In the fall of 2022, administrators at VOSS House advised G.M. that it could no longer meet E’s needs. G.M. asked the Society for assistance in navigating possible placements for E. In the midst of this, E was admitted to London Health Sciences Centre (“LHSC”) with significant illness. She was medically cleared to leave in February 2023 but as no long-term placement had yet been arranged, she remained at LHSC.
LHSC made a further referral to the Society which caused the current investigation to be opened. Having determined that G.M. was unable to present a viable Plan of Care for E, the Society commenced the within Application on March 28, 2023.
Positions of the Parties
Society’s Position
The Society’s position is relatively straightforward. It argues that at this time there are no residential placements which will accept E. Currently, the only viable option is foster care with foster parents who have specialized experience with caring for medically complex children, and who have the support of a team of nurses and other health professionals.
Because there are no viable residential placements for E, if she were returned to her mother’s care, she would have to reside with G.M. at her residence. But, the Society argues, there is no evidence that G.M. is able to provide the necessary level of care.
The Society points to G.M.’s own evidence as well as evidence from her own medical practitioners, including her primary physician, Dr. Naik. G.M. has said that in order to have E return home, she would require 24-hour care to assist her. But, no such services are available.
The Society also points to evidence from G.M.’s own medical health professionals who have recorded that she suffers from significant chronic illness which sometimes renders her unable to rise from bed or perform daily activities.
Other Parties
The Office of the Children’s Lawyer supports the Society’s position. It agrees that the medical evidence demonstrates that G.M. suffers from significant health issues which would preclude her from providing the type of care that E needs. It also relies on information from E’s pediatrician, Dr. Pineau, which outlines E’s complex needs and the serious consequences, including death, if proper care is not provided.
G.M. also supports the Society’s position. He has not put forward his own plan of care and is subject to the terms of the family court order. He has been arranging to have access with E directly with the current foster family.
G.M.’s Position
G.M. acknowledges that she suffers from a variety of health conditions but points out that no care provider is able to provide adequate care for E alone. From the time she was 5 years of age, E was cared for in a residential placement which had professional staff caring for residents around the clock.
Despite receiving professional care, many of the risks highlighted by Dr. Pineau have occurred – E has been hospitalized on several occasions in the past few years, most commonly with pneumonia. In other words, no amount of care can fully prevent significant risks for E.
E currently resides with foster parents. They have the assistance of several health care professionals for most of the day and are not called upon to care for her entirely on their own. The exact arrangements were not clear or agreed upon.
G.M. disputes much of the Society’s evidence. For example, she disputes that she did not attend at LHSC to provide care for E in the winter of 2023. She also disputes evidence that she was unable to provide some of the necessary care such as suctioning E, or that she refused to learn how to do so.
G.M.’s evidence is that in the winter of 2023 she was working on marshaling in-home supports so that she could take E home with her, but that Society workers and other health care professionals behaved in an adversarial fashion towards her, rather than providing her with assistance. Once the Protection Application was commenced, she was unable to continue in her efforts because service providers would no longer speak with her. She argues that she has done her best to show that she would have access to appropriate supports, but given current circumstances, she cannot prepare a Plan of Care without cooperation from the Society.
Applicable Law
- The two-step process for determining summary judgment motions was established by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 17, 2014 S.C.C. 17, 366 D.L.R. (4th) 641, at para. 66:
a) The court must first determine if there is a genuine issue requiring a trial based on the evidence without using its fact-finding ability under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;
b) If, after the initial determination, there still appears to be a genuine issue for trial, the judge may then resort to these additional fact-finding powers to decide if a trial is required.
A trial judge may use their fact-finding powers under rr. 20.04(2.1) and 20.04(2.2) if their use is not contrary to the interests of justice. The overarching goal is to achieve a fair and just result which will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
There are particular considerations to be addressed in child protection proceedings. In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at paras. 71-72, the Court of Appeal for Ontario cautioned courts about making summary determinations in child protection proceedings, emphasizing the need to ensure fairness to all parties. In order to succeed, the Society must establish that the resisting parent’s position has “no chance of success”, that the outcome is a “foregone conclusion” or that there is “no realistic possibility of an outcome other than that sought by the society”.
In considering the evidence on a summary judgment motion, the parties must each put their best foot forward – but, within that context, the onus remains at all times on the party moving for summary judgment, the Society in this case: Kawartha-Haliburton, at para. 80.
There are other specific considerations about the evidence which are discussed in greater detail below.
The specific clauses pursuant to which the Society seeks protection findings read as follows:
Section 74(2)(b)(i), (b)(ii) and (k) of the CYFSA:
74 (2) A child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(k) the child’s parent has died or is unavailable to exercise the rights of custody over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody;
The Society alleges that there is a risk of harm to E on the basis that she had extensive and unusual medical needs and that G.M. is unable to meet those needs.
With respect to s. 74(2)(k) it alleges that E is in a residential placement and that G.M. is unable to resume her care or custody.
Analysis
On a motion of this nature, the Society must not only demonstrate that there is no serious issue to be tried, but that proceeding by way of summary judgment motion would be fair to G.M.
The most significant issue facing the court is the absence of direct evidence from anyone other than Society employees. Just some of the issues this raises include:
a) The Society relies on the breakdown of the relationship between G.M. and previous residential treatment providers. But, all of the evidence available is hearsay – the actual service providers did not provide affidavits and could not be cross-examined.
b) The Society states that there are no other available residential treatment providers which could take E. But, again, there is no direct information from any such provider. No questions could be asked of them, including what information they based their decisions upon. Significantly, any decisions made by third party providers were based entirely on what Society staff told them.
c) The Society relies on evidence that G.M. did not provide appropriate care to E while she was in hospital at LHSC and at McMaster Hospital, and that she behaved inappropriately towards staff, leading to communication breakdowns. Again, though, there is no direct evidence from the hospital staff, meaning that G.M. could not challenge that evidence.
These all raise triable issues – are the lack of available resources and significant communication difficulties the result of G.M.’s behaviour? Does that behaviour rise to the level of a protection concern? Are Society workers and other providers impacted by confirmation bias in their interactions with G.M. and if so, what impact does that have on the overall current picture?
In Kenora-Patricia Child and Family Services v M.(A.) (No.2), 2005 ONCJ 39, the court addressed a protection finding in somewhat similar circumstances. It found that the parents were unable to manage their child’s complex behavioural issues at home. Key to its finding was its determination, at paragraph 116, of the parents’ inability or unwillingness to engage with service providers, learn about the child’s needs, or maintain consistency with access visits. The willingness and ability to engage with service providers is an essential element in a case of this nature. Accordingly, it is essential to a determination of the alleged protection concerns that the court be able to fully assess G.M.’s willingness and ability to address these concerns.
It is not enough to demonstrate that there has been a breakdown in the relationships, but also that it is G.M. who is primarily responsible for same. The court cannot, on the evidence before it, make that determination. Likewise, a determination of G.M.’s attendance at and behaviour during “room in” and “training” opportunities is essential. Again, on the evidence before it, the court cannot make those determinations.
While hearsay evidence is permitted on a summary judgment motion, the court may draw a negative inference from the failure to provide direct evidence. Here, not only does the absence of direct evidence from multiple potential witnesses give rise to negative inferences, it results in significant unfairness to G.M.
While a mere statement that evidence should be subjected to cross-examination is insufficient, on its own, to raise a triable issue, the court finds that in the circumstances of this case, it is the Society that seeks to rely significantly on hearsay evidence in a manner which prevents meaningful review of key facts and issues. As is set out in Jewish Family and Child Service v. S.K., 2015 ONCJ 246, at para. 138, the “unique character” of child protection proceedings demands that “the quality of the evidence proffered to prove a material fact (whether contested or not) must be carefully scrutinized, and a court should generally demand evidence that is solid, credible and, in most cases, from first-hand knowledge” [sic].
The Society asks the court to make key and central factual findings about G.M.’s behaviour, her actions and her relationship with service providers. However, it relies almost entirely on the hearsay evidence of those very service providers.
The Society relies heavily on the lack of a viable Plan of Care from G.M. She has stated that she requires 24-hour support to care for E but has not put forward a plan which demonstrates that she has that level of care available to her. But G.M. points out that several potential providers will not speak with her because she is currently not a custodial parent.
The Society has positive duties and obligations towards parents as set out in s. 35(1)(c) of the CYFSA. That section provides that one of the functions of a children’s aid society is to “provide guidance, counselling and other services to families for protecting children or the prevention of circumstances requiring the protection of children”.
The legislation is not designed to establish Societies and parents as adversaries. The first and foremost obligation of Societies is to help and support parents. The court finds that there is a triable issue: did the Society provide adequate assistance in the spring of 2023 and since? Has it fulfilled its obligations to assist G.M. in marshaling resources to support her ability to care for E at home?
The court agrees that good intentions on the part of a parent do not alone give rise to triable issues. For instance, in CAS v. TD, 2012 ONSC 6737, at para. 12, the court held that there was no genuine issue for trial because there was “no hope that [the children’s mother, TD] will be able to satisfy a trial judge that she has been able to achieve enough stability to consider placing the children with her”. It was insufficient for the mother to show that she had attempted to solve some of these problems. The matter before me is more complex. CAS v. TD and other cases which discuss good intentions and aspirational plans refer to steps that can be taken directly by a parent, for example in addressing addiction issues, appropriate housing or parenting skills. This is not a matter of a parent being unable to take those steps to translate their proposals into a plausible reality. Here, in order for G.M. to realize her goals, she requires the participation of third-party service providers – service providers who, she says, will not engage with her either at the Society’s directive or because she is not E’s custodial parent.
If made out, G.M.’s evidence will require the court to carefully consider a complex conundrum – the Society says she has not marshalled an adequate Plan of Care, but G.M. says that as long as she does not have custody, she is blocked from doing so, at least not without the direct cooperation and assistance of the Society.
That there is no currently viable Plan of Care is obvious. But, on the evidence available, the court cannot ascertain why that is. If, as G.M. alleges, the Society’s cooperation is required and such cooperation has not been forthcoming, that will have a significant impact on how the court assesses any Plan of Care G.M. puts forward.
Finally, there is G.M.’s health. The court acknowledges that the evidence of G.M.’s own health concerns is significant and comes from her own physicians. But G.M. self-reporting to her doctors was made in a very specific context – she was seeking help from her doctor. In her affidavit of August 25, 2025, she notes that she is a person with a disability herself, but that she remains able to care for E. The Society and the OCL have pulled reports of her efforts to obtain medical care out of context – none of those reports were made in the context of a discussion about her ability to parent her children.
She also notes that despite comments made by the Society about her mental health, she underwent a psychiatric assessment which did not find any undiagnosed or untreated condition. It confirmed her PTSD which she has been forthright about from the start.
Determining the impact of G.M.’s health on her ability to care for E is impossible on the materials filed.
The materials relied upon by the parties are voluminous – their sheer volume is a good indication that this is not the sort of matter which is amenable to summary judgment.
In Kawartha-Haliburton, at para. 80, the court wrote: “Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA, including the best interests of the child”.
The above are not intended to be an exhaustive list of triable issues. In order to avoid constraining the parties in the conduct of the trial and the issues they choose to raise; the court has deliberately restricted its discussion of the facts and issues.
The court acknowledges the desirability of finality in this matter, which has been outstanding for a considerable period of time. However, the Society’s Plan of Care is to place E with an approved foster home. She is already with an approved foster home. The existing temporary order gives the Society the ability to continue to manage that placement.
There is no evidence that a final order will have any impact on E’s day to day care. Nothing about her day-to-day situation would change.
The court also acknowledges that the trial of this matter is projected to be extremely long. In many respects, the anticipated length of the trial demonstrates the extent of key evidence that is required to make an appropriate decision.
The court also notes the importance of parents of disabled children having a meaningful voice in proceedings of this nature. There are systemic issues which have significant interplay with the particular facts of this case.
The summary judgment motion is therefore dismissed.
This matter shall return on April 14, 2026, at 4:20 pm via Zoom for the purposes of scheduling a Trial Management Conference. The Zoom details are below.
By Computer:
https://ca01web.zoom.us/j/66347798451?pwd=lFwntbPj6Fnmq4rzXUawn9IzLA7Uaf.1
Meeting ID: 663 4779 8451
Passcode: 301289
By Telephone:
833 955 1088 Canada Toll-free
833 958 1164 Canada Toll-free
Justice F. Wood
Released: April 7, 2026
CITATION: CAS v. G.M., 2026 ONSC 2365
COURT FILE NO.: FC-23-000000050-0000
DATE: 2026/04/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Family and Children’s Services
of the Waterloo Region Applicant
AND:
G.M. and R.M.
Respondents
ENDORSEMENT
F. Wood J.
Released: April 7, 2026