CAS of S.D.G. v. A.A., J.M., A.E., T.S., J.W., 2026 ONSC 3192

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

CITATION: CAS of S.D.G. v. A.A., J.M., A.E., T.S., J.W., 2026 ONSC 3192

COURT FILE NO.: 25-233

DATE: 2026/06/01

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, S.O. 2017

BETWEEN

Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry

Applicant

– and –

A.A.

Respondent

J.M.

Respondent

A.E.

Respondent

Emily Gallagher, for the Applicant

Dominique Smith, for the Respondent A.A.

Self-represented

Audrey Dupras, for the Respondent T.S.

T.S.

J.W.

Emma Dupuis, for the Respondent J.W.

HEARD: May 29, 2026

RULING ON TEMPORARY CARE AND CUSTODY HEARING

Justice Hélène C. Desormeau

1This ruling is in relation to a temporary care and custody hearing held May 28, 2026, with regard to J, born in 2023.

2For reasons that follow, the relief sought by Mr. S is dismissed; and that the order sought by Mr. W is granted in part.

Motions:

3Mr. S is the moving party. He seeks the following orders:

1. An order that the child, J, born in 2023, shall be placed in the interim care of the Respondent-Father, T. S., for a period of 12 months;

2. In the alternative, an order that the child, J born in 2023, shall be placed in the interim care of the Respondent-Father, T. S., under the supervision of the paternal grandfather, T.T., and the paternal grandmother, C.F., for a period of 6 months.

3. An order that access with the Respondents A. E., A. K., N.M., J.M. and J.W.be granted on the following basis: Access time every other weekend, alternating between the M and the W’s households, and any other time agreed upon or arranged between the parties with the consent of the Society. At the motion, it was clarified that this meant one weekend per month with Ms. M and one with Mr. W.

4. In the alternative, an order that the Society provides a clear trajectory outlining an increased and accelerated transition toward expanding parenting time with the Respondent-Father T. S.

4Mr. W has filed a cross-motion, seeking the following:

1. An order abridging service and filing of this notice of cross-motion.

2. An order that the child, J born in 2023, remain in the care and custody of the Respondent, J.W. or be placed in the joint care of the Respondents, A.M. and J.W.

3. An order removing the Society's discretion as it relates to T. S.'s access.

4. An order that the Respondent, T. S., shall have supervised access up to twice per week with no overnights.

5The Society supports Mr. S’s plan. Ms. M supports Mr. W’s plan.

6This court has reviewed and considered all the evidence filed for this motion as directed by the confirmation forms, as well as all the factums.

Background

7A very brief overview of the facts as I find them are as follows:

8J was born in 2023. He is the biological child of A. E., who is in default, and T. S.

9The child is not First Nations, Metis or Inuk and does not identify or associate with a Band or Indigenous community.

10Since February 2023, J has resided in the care of both A.M. and J.W., or each of them at different times. They are the kin caregivers pursuant to a voluntary, family-led plan. Ms. M and Mr. W separated in September 2023, at which point the child was in each of their care at separate times.

11Ms. M and Mr. W share four (4) older children, who are subject to ongoing child protection proceedings. Those children are in the care of the mother and/or parents pursuant to a supervision order.

12Ms. M is in a relationship with Mr. J.M. They do not have children together.

13Mr. W is in a relationship with Ms. M.L. Ms. L has two (2) children of her own and a third (3) child with Mr. W.

14All the families reside in Cornwall, Ontario.

15The Society became involved with Ms. M due to concerns about J’s development, and concerns that she was not following through with taking J for assessments and appointments. The Society noted concerns about J’s development; he was not walking at two (2) years of age, was reportedly being left in a crib, playpen, or highchair and was sleeping frequently. Further, J was very behind in meeting areas of development, his feet turned out when he sat and he appeared to have poor muscle tone. Additionally, he was unable to walk (requiring an adult to hold his hands), and his speech was quite behind (he communicated by pointing). Ms. M at the time disclosed to the worker regular drug use.

16Due to Ms. M not complying with the Society’s bottom lines, which were focused primarily on ensuring J’s medical needs were met, on September 5, 2025, the Society took more intrusive actions, removing the child from Ms. M’s care.

17On September 10, 2025, an order was made placing him in the care of Mr. W, on a temporary basis without prejudice. J has been in Mr. W’s care since that time.

18Mr. S was served the protection application. He articulated that he was not sure he was the child’s father until the DNA test results confirmed that. However, it was undisputed that he was with the mother for most of the pregnancy, and that she initially informed him that he was the biological father then insisted he was not the father. Nevertheless, Mr. S did not dispute Ms. M’s assertion that in early 2023 and in the summer of 2023, J’s maternal grandmother brought Mr. S to see the child. That same summer, Mr. S acknowledged J to be his son. Ms. M offered Mr. S more visits with J but he chose not to pursue same.

19Mr. S has since taken positive steps in establishing and expanding his relationship with J, under the supervision of his stepfather, T.T. and stepmother, C.F. His visits have expanded to overnight visits, and as of May 22, 2026, they are for full weekends, every other weekend. During check-ins the workers have not observed any concerns for the child while in Mr. S and his father’s care.

20Mr. S has presented a plan for J to live in his primary care with the support of Mr. T and Ms. F. Mr. S resides with his parents, their daughter L, 14 years old. His girlfriend K.H. also lives with them. Every other weekend his stepsiblings, L (17), C (15), and N (14) spend the weekend at his father’s home. J will have his own space in the home.

21The paternal grandparents have been assessed as kin caregivers and have been accepted as such by the Society. They are all prepared to ensure J’s needs are met. Mr. S is not well-versed in J’s needs but is prepared to learn and implement the information learned. Mr. S is prepared to work cooperatively with the Society, which includes having his time with J fully supervised by his network. He supports J continuing his relationships with the kin caregivers.

22Mr. T strongly supports Mr. S’s plan and is willing to assist with supervision, health appointments, and anything required to allow J to be a part of their home and family.

23Mr. T astutely notes there is confusion for J from going between three different homes during the week, but he is a resilient child. He suggests that if J cannot be placed with Mr. S, he and Ms. F are prepared to have J placed in their care under a supervision order.

24Notably, and not mentioned by Mr. S anywhere in his materials, he is currently facing criminal allegations against a minor of sexual interference x 2 and sexual assault x 2. The complainant is allegedly a six-year-old child and Mr. S would have been fifteen years old at the time. There is no evidence before the court that addresses whether or not Mr. S is permitted any contact with children but verbally the Society and Mr. S’s counsel indicate there are no restrictions.

25Mr. W and Ms. M’s primary position is that J be placed in their joint care. Alternatively, J should remain in Mr. W’s care with access increasing pursuant to an access trajectory with Ms. M.

26Mr. W and Ms. L have one (1) child together. Ms. L has two (2) children from another relationship. Mr. W and Ms. M have four (4) children together. They share parenting time with two (2) of the children and he has regular time with the third (3) child every second Thursday evening to Monday morning.

27When J was brought into care, Mr. W was equally concerned not only about J’s care, but that of his other children. However, he has witnessed Ms. M and Mr. M address his concerns.

28J has made progress in Mr. W’s house and has benefited from a good routine. He is attending physiotherapy and building his leg muscles. He usually uses his leg braces. He is speaking more and appears to be thriving.

29Mr. W is opposed to J having overnight visits or unsupervised visits with Mr. S. He questions how the grandparents can provide constant supervision as they all work. He argues that J’s safety is at risk.

30Mr. W points to a couple of instances whereby Mr. S appeared disinterested in learning of J’s needs. He argues that the outcome of Mr. S’s criminal charges is salient and could affect J’s placement. Any change of placement would be a huge change for J.

31Mr. W suggests that Mr. S changed his parenting time “as he did not want J to have appointments during his visits.” Mr. W disputes Mr. S not being aware he was J’s biological father.

32When addressing the state of the home noted by the Society, he denies there being dirty diapers lying around and J’s diaper being full. His evidence was that J is changed every hour unless there are larger bowel movements or urination requiring another diaper change. He provides explanations for J occasionally not wearing his leg braces; denies the children changing J; and explains the delays in rescheduling some appointments.

33Ms. L supports the plan to have J remain in Mr. W’s care. She has been involved in J’s care and is committed to continuing to meet J’s needs. She has been a part of J’s life since May 2024, but a larger part since he was placed in their care in September 2025. Ms. L denies making the comment about not being able to take J to services on Thursdays because she has too many children.

34Ms. M has been in a relationship with Mr. M since January 2024. Together, they were primarily caring for J until he was apprehended. As noted in their affidavit evidence, Mr. W had J in his care on weekends while Ms. M had him in her care on weekdays. Mr. W’s evidence which was undisputed indicated there was a time in May to August 2025 when there were issues as Ms. M would not send J for visits. Nevertheless, he suggests they were joint caregivers before J was removed from Ms. M’s home.

35Ms. M’s plan is to jointly care for J with Mr. W, work with the Society and follow their conditions pursuant to a supervision order. Alternatively, J should stay with Mr. W with a trajectory to increase her access with him. She is committed to working with Mr. W and meeting J’s needs.

36Her evidence was that her communication with Mr. W has substantially improved, they are now able to work together and have worked out a good system to ensure appointments are kept. They have even been able to sit down for meals together with all the children. Her husband, Mr. J.M. is equally committed to J’s care.

37Ms. M’s evidence is that J was removed from her and Mr. M’s care on September 5, 2025. There have been no significant issues since a supervision order was made regarding the other four children, thus showing an ability to comply with such terms. Ms. M notes that the Society’s more intrusive intervention was a wake-up call to her following a downward spiral upon losing her niece in March 2025.

38Ms. M is committed to attending all of J’s appointments. She remarks that managing J’s special needs can be quite challenging and does not feel that Mr. S and his father have sufficient understanding of them.

39She recalls occasions when Mr. S attended her residence to see or have contact with J prior to the paternity test, contradicting his evidence about knowledge of paternity. However, after three visits, Mr. S did not reach back out to her to see J.

40Ms. M was and is prepared to complete Triple P. Further, though there was a time when she missed visits with J, this has been remedied and has not missed one since April 9, 2026. She also began overnight visits as of May 21, 2026.

41As for Mr. S’s criminal charges, Ms. M believes that these would have occurred when Mr. S was 15 or 16 years old, in 2019, and the complainant was six years old. The matters are set for trial on September 29, 2026. She is not comfortable with Mr. S having unsupervised overnight access to J. She articulates that if found guilty, there is no idea what sentence he would receive, and if there were a potential for jail this would cause disruption and emotional harm to J should he be in Mr. S’s care. Further, if convicted, it is unclear if there will be a prohibition as to contact with children without supervision, and whether this would result in him being put on the child abuse registry in Ontario. Finally, she has not received a copy of his current bail conditions and therefore does not know if he is even allowed to be in the presence of children under the age of 16.

42The Society’s position as to the criminal charges is that there are safety plans in place to ensure J’s safety and well-being. The visits are fully supervised. Mr. S is presumed innocent of the charges.

43According to the Society’s evidence, in February 2026, Mr. S articulated a preference to have J in his care on weekends. Visits with Mr. Sand his supports were found to be positive, that Mr. S was attentive and engaged with J as well as all the other adults present. There were no concerns noted in the home. Mr. S and his partner have completed the Triple P program and demonstrated implementation of the strategies with J. J is comfortable in their care.

44The kin assessment of the paternal grandparents was approved.

45J has significant special needs and many medical and/or health related appointments or obligations. He wears leg braces due to muscular atrophy in his legs, and his feet are not well placed, and his legs are very small and weak. He attends physiotherapy and occupational therapy for this. He also has speech therapy.

46It was documented by the Society that J is making progress in Mr. W’s care, though Mr. W and his partner, M. L., have struggled on occasion in meeting J’s needs. The Society’s view is that there are many reports of J not wearing his leg braces as required, though some of the excuses proffered are reasonable, such as when the braces were being replaced with larger ones or broken. There are disputed allegations about who is caring for the child, who is changing J’s diaper, and the state of the home on occasion. There are several missed appointments, some with legitimate excuses. There are delays in rescheduling some of the missed appointments. There are concerns about J being left in the highchair, which was disputed by Mr. W.

47From the Society’s perspective, Ms. M has missed a significant number of visits with J. There were substantial concerns that led to the Society’s intervention in 2025. However, recent reports show that the visits with J have been positive, with Ms. M and Mr. M being engaged with J, attentive to his needs, and interacting with him appropriately.

48The Society questions whether Mr. W is able to meet J’s needs as J is a child with a high level of needs and appointments, and as such, requires a caregiver who can consistently ensure that medical recommendations are followed. They believe that because he has seven (7) children, this increases his demands as a parent and caregiver. They question his consistency in meeting J’s needs. In their view, J’s needs would be better met by Mr. S.

49The Society remarks that Mr. W and Ms. M’s materials indicate that they “both had charge of J prior to Society interventions.” They also state that, given the findings about the four other children, they are concerned about both kin caregivers’ abilities to meet J’s needs.

The Applicable Law

50The Child, Youth and Family Services Act (“CYFSA” or “Act”) promotes as its paramount purpose the best interests, protection, and well-being of children and recognizes the need for help to give support to the autonomy and integrity of the family unit. It also recognizes that the least disruptive course of action available and appropriate should be considered. It provides that services to children should respect the child’s need for continuity of care and for stable relationships within a family¹.

51Section 74(3) sets out the criteria the court must consider when making an order or determination in the best interests of a 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. 2017, c. 14, Sched. 1, s. 74 (3).

52Section 94(2) CYFSA states that where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child;

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

53Section 94(4) CYFSA states that the court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

54Section 94(5) CYFSA goes on to state that before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

55Where the court makes a temporary order under section 94(2)(b) or (c) CYFSA, section 94(6) CYFSA permits the court to impose reasonable terms and conditions relating to the child(ren)’s care and supervision on the parent or the person who will have care and custody of the child under the order, other than a foster parent, who is putting forward a plan or who will participate in a plan for care and custody of, or access to the child(ren). It also allows the court to impose reasonable terms and conditions on the Society that will supervise the placement. If the court makes an order pursuant to 94(2)(d), section 110 applies with the necessary modifications.

56The legislation creates a hierarchy of the choices available to the court, starting with the least intrusive option of 94(2)(a) CYFSA.

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

57Before making an order under s.94(2) CYFSA, the court shall take into consideration the child’s views and wishes, given the due weight in accordance with the child’s age and maturity, unless they cannot be ascertained: See s.94(11) CYFSA.

Caselaw

58At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order.² Simply stated, this is a two-part test that the Society has to meet.

59A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) CYFSA).³

60Terms and conditions relating to the children's care and supervision must be reasonable and proportionate to the specific risks highlighted by the evidence.⁴

61The Divisional Court has held that a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention.⁵ The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care.⁶

62The temporary care and custody proceeding, though governed by a self-contained code of procedure contained in the Act and the Rules, will follow the normal principles of evidence, except that the interests of the children are not to be thwarted by an overly rigid application of the rules of evidence or procedure. But the interests of the child will always require that the truth be established, and the rules of evidence and procedure followed.⁷

63Subsection 94(8) of the Act provides that where an order is made under clause (c) or (d) of subsection 94(2), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection, and well-being of children and the secondary purpose of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children.⁸

64Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence.⁹

65Evidence is not to be excluded solely on the basis that it is hearsay evidence, and it follows that any party can lead evidence of statements made which are either not repeated or denied in court. This is particularly pertinent in relation to statements made by the children to social workers or their own counsel concerning how he or she has been treated.¹⁰

66The CYFSA “gives priority to the person who had charge of the children prior to Society intervention.”¹¹

67It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of childcare upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child’s best interests.¹²

68Amongst different viable plans, the Court should prioritize the one that recognizes a child’s biological parent. A biological father must be given the chance to care for his child, especially when a parent was never properly given the opportunity to do so. It is in the best interest of a child to foster a relationship with his biological family, while maintaining a link to his extended family.¹³

69In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence.¹⁴

Analysis

70The Society suggests there are a few possible options in which to address this motion.

71Firstly, given this is set as a temporary care and custody hearing, I must apply the strict definition of the test, and the least intrusive order is to consider returning J to the pre-intervention caregiver. In order to do this, I must therefore determine who had charge of J prior to the Society’s intervention. At the protection application, it was suggested that the M’s had charge of J, and this is supported by the Answers and Plans of care filed by Ms. M and Mr. W. However, given the current suggestions by Mr. W and Ms. M that they were “jointly” caring for J when he was taken to a place of safety, then I would need to determine where J should reside based on the hierarchy articulated in the legislation.

72Alternatively, the Society suggests that given the passage of time, it is possible that this motion may best be determined as a motion on a variation of a temporary placement order, the test being whether there has been a “sufficient change” in circumstances and governed by the purpose of section 1 of the CYFSA.¹⁵

73In support of the passage of time, the Society would submit the following from Justice Power:

While I fully appreciate that the April 2010 order was made on a without prejudice basis, the fact is that the de facto situation has prevailed for a significant amount of time – i.e., eight months. (…) As was observed by Weagant J. the Court is not bound prospectively and indefinitely by the without prejudice conditions attached to the April order. As the trial judge said, it, the without prejudice condition, has a “dwindling shelf life.” I also rely on paragraph 15 of Weagant J.’s decision which reads as follows: “Passage of time in the care of another person, even if it is on a “without prejudice” basis, can effectively create a new status for the child. As I have argued in other contexts, children are not pieces of furniture that can be stored for the convenience of a parent who wants to rehabilitate his or her situation, only to be taken out of storage once that parent feels that he or she is ready to argue the motion”¹⁶

74In order to determine if the “shelf life” of a without prejudice order has expired, the facts of each case need to be determined.¹⁷

75I find that the appropriate test to apply here is the temporary care and custody hearing test.

76On the evidence which I accept, I find that Ms. M was principally caring for J during the week, and Mr. W on weekends in the late summer and early fall of 2025. The Society’s protection application and supporting affidavits focus on Ms. M being the primary caregiver and not meeting J’s medical needs, as opposed to Mr. W. I find that J was removed from Ms. M’s care in September 2025.

77Based on evidence which I must find to be credible and trustworthy, the onus is on the Society to satisfy the court that (a) there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that (b) the child cannot be adequately protected by an order returning the children to Ms. M, with or without a supervision order. The burden of proof on the Society is something less than proof on a balance of probabilities.

78If the Society discharges its burden of proof under s.94(2)(a) and (b) CYFSA, such that the child cannot be returned to the care of Ms. M, then I must evaluate the alternate plan proposed by Mr. W and Mr. S, to determine if placement, subject to the Society’s supervision, does not place the child at risk.

79I must consider the least restrictive order available and appropriate in the circumstances of this case, which is consistent with the best interests, protection and well-being of the children in question.¹⁸

80At this stage of the test, it is appropriate to consider the child’s age and stage of development. What may be harmful to one child, may not be to another child.

81Concerns for a young child related to failure to thrive are important. Developmental issues that could have been avoided with proper care consist of a risk of harm. The same can be said about the ability of a caregiver to meet the needs of a specific child. Where required, the caregivers must be able to comply with the special needs and health requirements of a child. Failure to do so constitutes a risk of harm.¹⁹

82I find that J cannot be returned to Ms. M’s care, with or without a supervision order. J’s needs were unmet at the time of the Society’s intervention. Mr. W submitted he had concerns about Ms. M’s care of J and vice versa. I accept that Mr. W could not directly intervene to address J’s care given the communication and relationship breakdown with Ms. M. He, however, reported his concerns to the Society.

83Today, the communication and relationship between Mr. W and Ms. M have improved, and Ms. M is meeting the Society’s objectives and conditions regarding her other four (4) children.

84However, at this time, I am not satisfied there has been sufficient evidence of improvement or progress demonstrated to mitigate the risk to J should he be returned to Ms. M’s care. I am of the view that it is premature to return J to Ms. M’s care, as I find, at this time, there are reasonable grounds to believe there is a real possibility that if J were returned to her care, it is more probable than not that he will suffer harm with his medical needs not being met, and that he cannot be protected adequately by a supervision order.

85On the evidence before me, I find that the Society has met its onus in the two-part test set out in section 94 CYFSA.

86Having found that only Ms. M had charge of J prior to intervention, the test becomes competing placements of Mr. W and Mr. S under sections 94(2)(c) CYFSA. In this case, the test is the best interests, protection and well-being of the child.²⁰

87Section 74(3) CYFSA sets out a list of factors to consider when making determinations as to what is in a child’s best interest. This includes considering, amongst others: the child’s physical, mental and emotional needs, the appropriate care or treatment to meet those needs; and 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; the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family; and the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

88The legislation requires that services to children respect their need for continuity of care and stable family relationships. Additionally, the case law cautions against assessing a parent against a middle‑class standard.

89While Mr. S may have more reliable transportation to ensure J’s attendance at services than Mr. W and Ms. M, this factor is not determinative.

90In determining what is in the child’s best interest, I must consider the paramount purpose of the Act, being the best interests, protection, and well-being of children and the secondary purpose of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children.

91The evidence shows that J is happy in Mr. S’s home, in Ms. M’s home and in Mr. W’s home. He is bonded with all three caregivers and their partners, as well as the paternal grandparents.

92It is heartening to see so many people who love and care for J, all with whom J has formed a bond.

93I find that Ms. M and Mr. W both meet the definition of a parent, as defined in s.74 CYFSA. They have been caregivers and a stable part of J’s life since February 2023. In my view, they are the child’s psychological parents.

94I do not accept that Mr. S was prevented from acting as a father prior to the child being brought to a place of safety. It was undisputed that he had three visits with J in 2023 and then despite being offered more time with the child, he chose not to pursue same. I am not persuaded that Mr. S was alienated by the kin family. Further, Mr. W’s assertion that Mr. S was disinterested or disengaged when attending J’s services was not denied in evidence.

95I do not accept the submission that there is no risk of harm to J if he were placed in Mr. S’s care. I am concerned about the risk of harm in light of historical allegations of sexual assault and sexual interference involving Mr. S when he was approximately 15 years old with a six-year-old complainant. While I acknowledge that Mr. S is presumed innocent of these allegations, J is a particularly vulnerable child with significant medical needs, which heightens my concern regarding his safety.

96I appreciate that the Society has conducted a kinship assessment regarding Mr. T.T. and Ms. C.F. and have a safety plan in place which includes full supervision of Mr. S’s access. I recognize that there are three other adults in the home who are attentive and engaged with J. However, I have no evidence that the Society conducted an independent assessment regarding the allegations against Mr. S, nor have they assessed risk of sexual harm in relation to placement of the child in Mr. S’s care. I have no evidence that the Society has verified, or not, this risk of harm. With the greatest respect to the Society, I am not satisfied that the safety plan in place mitigates the risk of sexual harm given the nature of the allegations before the court.

97As an aside, in family court, should a party wish to have parenting time or contact with a child, pursuant to rule 35.1 FLR, they must disclose in their 35.1 affidavit whether they have been found guilty of criminal offences for which they have not received a pardon and if they are charged with criminal offences they must attach a copy of release conditions. I question why this is not a requirement in child protection courts, particularly in situations such as this one, when the court is tasked with determining the best placement for a vulnerable child. As the ultimate gatekeeper, this lack of evidence, in my view, creates a significant and unacceptable information gap.

98Counsel for Ms. M raised the issue of whether Mr. S has any related criminal record and questioned whether the court should have access to that information. Counsel further observed—and this court has likewise seen—that in some cases the Society has substantiated allegations of this nature and has implemented more intrusive protective measures for a child, even where the individual in question was acquitted in criminal proceedings. I am mindful that a verdict of “not guilty” does not necessarily establish that the alleged conduct did not occur. The criminal proceedings address whether the allegations are proven beyond a reasonable doubt. This court must determine, on the evidence before it, whether a child is in need of protection based on a balance of probabilities.

99At this hearing, I have no evidence as to whether any individual has been convicted of offences that would be relevant to the issues before me. Notably, Mr. S’s affidavit does not even indicate the existence of any such criminal charges. I find this omission disconcerting.

100Even setting aside the criminal allegations, the uncertainty of the outcome of the criminal trial scheduled to be heard in September 2026 places the child at risk of emotional harm. It was not disputed that possible consequences, if convicted, could include jail or an order prohibiting contact with children. Though this speculative risk is not determinative, it does present uncertainty for a young child who needs permanency and stability.

101While there is no evidence before me that the alleged conduct has been proven to have occurred, that is not the end of the inquiry. The court’s task under the CYFSA is forward‑looking and protective in nature. It requires an assessment of whether the child is at risk of harm on a balance of probabilities, not a retrospective determination of fault to a criminal standard. In this case, the totality of the evidence available today leads me to find that there is a risk of harm to the child’s safety and well‑being should I place him in Mr. S’s care.

102I am concerned by Mr. S’s proposal that, despite Mr. W and Ms. M having served as J’s psychological parents since February 2023, J’s time with each of them be limited to one weekend per month. This limited access would not be in J’s best interest.

103Mr. W proposes that J be placed in his and Ms. M’s shared custody. I have already decided that it is premature to return J to Ms. M’s care. Though there is recent evidence of better communication and cooperation between Ms. M and Mr. W, I am not persuaded that a shared custody situation is in J’s best interest. I am concerned about recreating instability and adding conflict in J’s life.

104The Society points to more current concerns about Mr. W’s ability to meet J’s needs. Some of the concerns are mitigated by Mr. W’s explanations. Nonetheless, delays in scheduling medically necessary appointments; the children changing J’s diaper and J frequently seen without leg braces is troubling. However, J has been in Mr. W’s care for over 200 days and there have been three (3) missed appointments, two of which were due to illness, and they were rescheduled. I do not find this evidence establishes sufficient grounds to change this child’s current placement. I accept Mr. W’s evidence that he will continue to ensure J’s medical needs are met.

105J needs consistency, routine and a clear primary caregiver.

106I appreciate that there were a lot of children in both Ms. M’s home and Mr. W’s home, but J needs to be a priority in their home, as well as in Mr. S’s home. It is positive in my view that Ms. Mis prepared to take J to the Garden Club, and that she has been taking him to the EarlyOn centre.

107With the number of loving caregivers involved, coupled with all of J’s appointments, the schedule is frequently in flux. J has speech therapy, occupational therapy, physiotherapy, the Garden Club and regular medical appointments amongst his regular visits to the caregivers.

108For the past eight (8) months, J has been in the care of his psychological father. Based on the foregoing, I find that the least disruptive placement for J at this time is the continued placement with Mr. W. I am of the view that placement is in the child’s best interest, protection and well-being. This is also the placement that is consistent with the child’s best interests, having regard to the factors set out in section 74 CYFSA.

109I am, however, of the view that there ought to be additional support from Ms. M and Mr. S in ensuring J’s appointments and activities are attended, as discussed briefly below.

110While I have considered the proposed plan involving paternal grandfather, T.T., and the paternal grandmother, C.F., I am not of the view that this independent plan is in J’s best interest, nor is it the least disruptive option available. While I appreciate that they wish to support their son, at this stage, I am not of the view that removing J from Mr. W’s care is appropriate or in his best interest.

Access

111I turn now to the issue of interim access, which is governed by s.94(8) CYFSA, which states that an order made under clause 94(2)(c) or (d) CYFSA may contain provisions regarding any person’s right of access to the child on such terms and conditions the court considers appropriate.

112In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the Act.²¹

113Mr. W’s position is that Mr. S’s access be limited to daytime access, up to twice per week, and to remove the Society’s discretion as it relates to him. He was also suggesting equal time with Ms. M. Ms. M supported Mr. W’s plan.

114Mr. S is seeking that the Society provide a clear trajectory outlining an increased and accelerated transition toward expanding parenting time with him.

115The Society supported Mr. S’s plan.

116Currently, Ms. M’s current access has increased to one overnight per week. Mr. S’s visits are every second weekend including overnights.

117I remain concerned about Mr. S’s overnight visits with J, however, this has already started occurring and J appears to enjoy this time with his biological father and family. I recognize that Mr. S has three other adults in the home that are prepared to ensure J’s safety. Despite my concerns as to placement with Mr. S, I am prepared to permit him access to J for one overnight visit per week, rather than every second weekend. There will need to be a safety mechanism such as an alarm in place if J’s door is opened in the night when everyone is sleeping. Ideally, Mr. S’s visit will include time on a weekday such that Mr. S can take some responsibility toward J’s attendance at services and/or transportation. I leave the details to be arranged by the Society.

118Mr. S’s access can be revisited by way of motion, if required, upon the Society conducting an independent assessment as to the allegations and following the determination of the criminal trial. Reasons for judgment will likely be instructive.

119I am of the view that Ms. M’s access trajectory can continue to be expanded, at the Society’s discretion.

120At all other times, J shall be with Mr. W.

Disposition

121J shall remain in Mr. W’s care.

122Ms. M’s access trajectory can continue to be expanded, at the Society’s discretion.

123Mr. S’s access shall be one overnight visit with J per week. The details are to be arranged by the Society, taking into consideration J’s needs and schedule.

124Mr. S’s access can be revisited by way of motion if required upon the Society conducting an independent assessment as to the allegations and following the determination of the criminal trial. Reasons for judgment will likely be instructive.

125At all other times, J shall be with Mr. W.

126The balance of the relief sought is dismissed without costs.

Madam Justice Hélène C. Desormeau

Released: June 1, 2026

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, S.O. 2017

BETWEEN

Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry

– and –

A.A.

J.M.

A.E.

T.S.

J.W.

RULING ON TEMPORARY CARE AND CUSTODY HEARING

Madam Justice Hélène C. Desormeau

Footnotes

1. 1Children’s Aid Society of Algoma v. T.W., 2018 ONCJ 451, at para. 28; also see preamble of CYFSA as well as s.1(1) and s.1(2) CYFSA
2. 2Children's Aid Society of Ottawa-Carleton v. T., 2000 CarswellOnt 2156 (Ont. S.C.J.) at para. 6.
3. 3Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448, at para 29; CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., 2019 ONSC 5365, at para. 39; also see s.94(2) CYFSA
4. 4CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., supra, at para. 40
5. 5L.D. v. Durham Children’s Aid Society and R.L. and M.L., [2005] O.J. No. 5050 (Ont. Div. Ct.).
6. 6CCAS of Toronto v. M.L.R., 2011 ONCJ 652.
7. 7Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., 2019 ONCJ 961, at para. 47
8. 8Children’s Aid Society of Oxford County v C.O., 2020 ONCJ 400 at para 15
9. 9Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at paragraph 18; CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., supra at para. 38.
10. 10Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., supra, at para. 51
11. 11CAS v. LL and JG, 2019 ONSC 853, 2019 CarswellOnt 2485, at para 30.
12. 12Children’s Aid Society of Toronto v. B.(R.), 2006 ONCJ 5151, at para. 50.
13. 13Catholic CAS of Toronto v R.A. 2016 ONCJ 880, at para 6 and 34
14. 14Children’s Aid Society of Algoma v. W.(B.), 2002 CarswellOnt 5500. (Ont. C.J.)
15. 15CAS of S.D.G. v J.V., M.F., 2021 ONSC 5498 at para 10 and 11
16. 16The Children’s Aid Society of Ottawa v J.M., 2010 ONSC 7119 at para 12(i),
17. 17Children’s Aid Society of Toronto v. A.S., 2022 ONCJ 553 at para 59
18. 18Children’s Aid Society of Halton (Region) v. A.(J.), 2011 ONCJ 624, at para. 43
19. 19Catholic CAS of Toronto v V.O. 2019 ONCJ 377, at para 41-62 & 108-134
20. 20Children’s Aid Society of Algoma v M.(J.), 2008 ONCJ 782 at para 36
21. 21Jewish Family and Child Services of Greater Toronto v. S.(H.B.),[2012] O.J. No. 5055 (Ont. C.J.); Children’s Aid Society of Oxford County v. C.O., 2020 ONCJ 400, at para. 15