Municipality of Waterloo v. G.M., 2026 ONSC 4813
COURT FILE NO.: FC-23-050-0000
DATE: 2026/08/21
SUPERIOR COURT OF JUSTICE – ONTARIO
WARNING: This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
RE: THE CHILDREN’S AID SOCIETY OF THE REGIONAL
MUNICIPALITY OF WATERLOO, Applicant
AND:
G.M. and R.M., Respondents
BEFORE: The Honourable Justice J. Breithaupt Smith
COUNSEL: B. McIvor, Counsel for the Applicant
Brent Balmer, Counsel for the Respondent G.M.
A. Towlson, Counsel for the Respondent R.M.
Jean LeDrew-Metcalfe, Counsel for the Child
Paula Deboer, In-House Legal Counsel for Linck Child, Youth
and Family Supports
HEARD: August 12, 2026
ENDORSEMENT
1. Five motions were originally included in the long motion argument plans for August 12, 2026. These are my conclusions and this is my decision regarding such of the issues that remained live as of that date.
OCL Removal Motion
2. The first motion was by the Office of the Children’s Lawyer to be removed as solicitor of record for the child, E.M. It has been withdrawn.
Society’s Motion to Strike
3. The second motion is the Society’s motion to strike paragraph 5 and Exhibits “A”, and “B” of Mother’s Affidavit dated July 16, 2026 as not being proper reply evidence.
4. In Nyari v. Velasco, 2008 ONCJ 272, cited by the Society, Justice Sherr reminded us at paragraph 12 that “the court should take an expansive rather than a technical approach to the admission of evidence when children are involved, provided the evidence is relevant, necessary and probative to the matters in issue.”
5. The Society objects to the inclusion of Mother’s two prior affidavits as exhibits to her reply affidavit in connection with her records motion. The main objection is that details regarding the records request should have been included in her primary affidavit. A secondary objection arises as a result of the volume of materials. In response, Mr. Balmer argues for Mother that certain parties to Mother’s records motion would not have been served with the prior affidavits which address the factual gaps alleged by the Society. He argues that the Society, the only party to have filed any material in response to Mother’s motion, already has the benefit of Mother’s prior affidavits and yet alleges an absence of evidence. That same party then objects to the presentation of the affidavits and their service upon the other motion respondents. While in the usual course, Mother could simply have referred the court to the prior affidavits had the Society been the only respondent to her motion, here the other respondents would not have the benefit of that evidence if it had not been served in reply.
6. I agree with Mr. Balmer. The Society has expended unnecessary effort in bringing this motion to strike, particularly in view of the “expansive” approach recommended by Justice Sherr.
7. The Society’s motion to strike dated July 23, 2026 is dismissed.
Procedure on Records Motions Generally
8. Before entering into the discussion of the areas of disagreement in the remaining motions, all of which are regarding non-party records, a few procedural notes are necessary. Firstly, it has become a practice in child protection matters to send motion materials for non-party records motions by email. This is not correct; Rule 19(11) clearly requires such service to be undertaken by “special service” upon the non-party (i.e. personal service or an alternative thereto pursuant to Rule 6(3)). We have largely winked at these slips on the basis that most record keepers are institutions who respond in writing seeking specific content in the ultimate wording of the Records Order (e.g. police; sister child protection agencies; etc.).
9. However, the case at bar is a perfect example of the problem engendered by this approach. Here, one of the non-party record holders has responded to the Society, in writing, claiming to have no knowledge of the situation despite what appears to be clear evidence to the contrary. That entity has not been properly served, and thus there is nothing that can be done to, for example, compel a representative from that entity to attend the motion. A second record keeper who normally responds in a timely manner has yet not been in contact; having regard to the timing of this motion and the possibility that folks may be taking vacations, we cannot presume that the disclosure request proceeds unopposed by this record keeper. Finally, service upon a third record keeper was missed entirely. Thus, paragraphs 1; 6; and 7 of the Society’s Notice of Motion are adjourned to be spoken to for service to be properly affected.
10. This brings us to a second procedural consideration: the disclosure of the involvement of these assorted service providers to one another. The creation of omnibus motion materials, in this case listing nine record keepers, is done for the convenience of counsel and the court. We have five motions bundled together today; one could well imagine the organizational challenge if that number had swelled to fourteen. However, I see a more careful approach as the only option that protects individuals’ privacy.
11. The suggestion was made that service providers might already know about one another’s involvement with a family or, alternatively, that any impact of such information upon professional relationships would be negligible. I disagree. Firstly, there is no reason to believe that Mother’s physiotherapist would have any knowledge about any psychology-related professionals with whom she was engaged. This is to say nothing of the routine instance when one set of motion materials is generated to seek records pertaining to multiple family members, including children. Full names and dates of birth are suddenly connected not just with child protection litigation but also to government agencies and service providers. The privacy protections inherent in the sealed nature of child protection files are lost the moment the issued Records Order is sent out with everyone’s names on it.
12. Finally, it is entirely possible that disclosure of such information could taint a professional relationship, not necessarily because of prejudice on the part of the professional (who might decline to continue to work with a person accused of neglecting children), but possibly because of a perceived overlap of services unpalatable to the professional’s own practice management. Would counsel not feel extremely awkward to suddenly learn that a client was consulting with another lawyer on the side? Might the decision not be made to end (or at least adjust and document) the solicitor-client relationship as a result? The same could potentially be said of counsellors or psychotherapists, even in a situation where overlapping consultations might be perfectly justifiable as wraparound support.
13. It seems to me that the best practice, although potentially unwieldy in some situations, is to generate separate motion materials for each service provider, including separate Orders. This should probably be the approach taken in both child protection and general family litigation. It is perhaps something to be taken up by those charged with reviewing the Family Law Rules.
Society’s Records Motion
14. The third motion, the Society’s records motion, proceeds unopposed on all terms except regarding the records for three of the service providers.
15. Turning back to the substance of the disclosure sought, Mother asks that the notes and records for each of the following service providers be limited to materials directly related to letters of opinion produced by each of them, namely:
Paragraph 4
Camino Wellbeing and Mental Health (formerly Carizon)
Jenni Rowe’s letter of January 21, 2021, including notes and records directly related thereto; plus a letter describing services provided and Mother’s participation, together with any treatment prognosis or plan
Paragraph 8
Merrill Barber
Merrill Barber’s letter of March 14, 2024, including notes and records directly related thereto; plus a letter describing services provided and Mother’s participation, together with any treatment prognosis or plan
Paragraph 9
Renee Quiring
Renee Quiring’s letter of February 20, 2024 including notes and records directly related thereto and her opinion of Mother’s mobility
16. The Society’s position regarding these adjustments to the records sought is as follows:
a. Jenni Rowe/Carizon: Ms. Rowe, during the course of providing services to Mother, will have specific observations of Mother’s physical and mental capacity, including Mother’s own admissions in that regard.
b. Merrill Barber: Ms. Barber is being called by Mother as a witness at trial. Ms. Barber is a psychotherapist and accredited family mediator who provided counselling services to Mother. The final substantive phrase of her opinion letter is the question: “… why is G.M. being restricted in access to E.M.?” She has thus engaged with the issues directly raised by the litigation and is, indirectly, rhetorically opining on Mother’s access.
c. Renee Quiring: Ms. Quiring is a physiotherapist who treated Mother and opined that she would be physically capable of providing care for the child.
17. Regarding all three of these (the “contested records”), the Society argues that: (1) section 130 of the Child, Youth and Family Services Act, 2017 places the threshold of relevance very low, as “[containing] information that may be relevant to a proceeding[1];” (2) Family Law Rule 20.2(5)2. requires records from a participant expert to be disclosed; and (3) the public policy principle that the courts have access to sufficient information to make important decisions without “gaps in the evidence and unanswered questions” trumps a parent’s privacy interests in the child protection context (see Jewish Family and Child Service of Greater Toronto v. H.B.S., 2012 ONCJ 663). Mr. McIvor capably argues that we cannot presume that the professional will summarize the evidence that the court would actually need, whether through inadvertence or because of alignment with Mother. Complete records will allow counsel (and the court) to assess the factual foundation of testimony given by the participant experts.
18. For the OCL, Ms. LeDrew-Metcalfe underscores that cross-examination could potentially be seriously stunted in the absence of full disclosure of the entire file contents.
19. For Mother, Mr. Balmer argues that the underlying content of the records, and particularly the details regarding counselling sessions, are not directly relevant. In that regard, he effectively urges me to take up Justice Chappel’s point that the court has “a broad discretion to craft an order that is uniquely tailored to the needs of the particular case before it” so as to achieve the proper balance among the competing interests (see Catholic Children’s Aid Society of Hamilton v. L.K., 2016 CanLII 15148 at paragraph 13). In that case, Justice Chappel provided her usual thorough review of the issue (under section 74(3) of the prior legislation) as follows:
9The test set out in section 74(3) for production of records to a Society is whether the record “may be relevant” to a proceeding under Part III of the CFSA. This test is not an onerous one, since there is an interest in ensuring that child protection authorities obtain full disclosure to properly meet their mandate to investigate protection concerns (Children’s Aid Society of Algoma v. D.P., 2007 CanLII 39363 (ON SC), [2007] O.J. No. 3601 (S.C.J.); Catholic Children’s Aid Society of Toronto v. S.(J.), 2013 ONCJ 200 (O.C.J.); Children’s Aid Society of the Region of Peel v. A.S., [2015] O.J. No. 1331 (O.C.J.); Jewish Family and Child Service of Greater Toronto v. S. (H.B.), 2012 ONCJ 663 (O.C.J.); Children’s Aid Society of London and Middlesex v. T.R., [2016] O.J. No. 325, 2016 ONSC 430 (S.C.J.)). In exercising its discretion with respect to disclosure to the Society, the court must consider the paramount purpose of the CFSA, which is to promote the best interests, protection and well-being of children (CFSA, section 1). In addition, the court must keep in mind when dealing with motions for production under section 74 that “Children’s Aid Societies are not ordinary private litigants” (Children’s Aid Society of Algoma v. D.P., Supra.) As Pardu, J. stated in Children’s Aid Society of Algoma v. D.P., Ibid., at para 14:
The work of children’s aid societies has additional challenges. Children may be vulnerable and unable to articulate concerns about their own welfare. Abuse and neglect may not occur in public. There is a substantial public interest in supporting the work of children’s aid societies.
10While the court has a broad discretion to order production pursuant to section 74(3) of the CFSA, the evidence adduced by the Society must establish a reasonable basis for believing that the information may be pertinent to the issues to be determined in the proceeding. Section 74(3) does not permit the Society to embark upon a “fishing expedition.” (Children’s Aid Society of Algoma v. D.P., Supra.).
11In exercising its discretion in the context of a production motion under section 74 of the CFSA, the court must take into consideration any public policy or privacy interests that may militate against ordering production of the documents that the Society is requesting (Children’s Aid Society of Thunder Bay (District) v. D.(S.), 2011 ONCJ 100 (O.C.J.); Catholic Children’s Aid Society of Toronto v. S. (J.), Supra.; Children’s Aid Society of the Region of Peel v. A.S., Supra.). With respect to privacy interests, the courts have reinforced the importance of protecting personal privacy in various legal contexts, and the Supreme Court of Canada has held that the rights to individual liberty and security of the person as enshrined in section 7 of the Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11) encompasses a right to privacy (Children’s Aid Society of Algoma v. D.P., Supra.; M. (A.). v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 (S.C.C.). In Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841 (S.C.C.), at para. 854, the Supreme Court of Canada emphasized that privacy is “a crucial element of individual freedom which requires the state to respect the dignity, autonomy and integrity of the individual.” It added that the degree of privacy that the law will protect will be closely linked to the effect that a breach of the privacy interest would have on the freedom and dignity of the individual in question. Having regard for the importance which the law places on the protection of personal privacy, a judge deciding a production motion under section 74 of the CFSA must balance the importance of ensuring that Societies receive the information they require to complete their work against the potentially harmful effects on a party or a child of disclosing sensitive personal information. As the court noted in Children’s Aid Society of Algoma v. D.P., Supra., there may be circumstances where the dissemination of personal information is seriously harmful to a party but of little utility to a Children’s Aid Society.
12A party who raises concerns about privacy interests in the context of a production motion brought pursuant to section 74(3) of the CFSA cannot simply raise the specter of possible harm in defence of the motion. The court is not expected to carry out the task of balancing the competing interests that may arise in these motions in an evidentiary vacuum. Concerns about the impact of impinging on privacy interests will only form part of the analysis under section 74(3) if there is an evidentiary basis to support those concerns.
13Considerations relating to privacy interests come into play under section 74 of the CFSA not only in determining whether disclosure to the Society should be ordered, but also in deciding whether a disclosure order should include terms regarding the use of the information, and if so, in formulating those terms. Section 74(5) of the CFSA stipulates that no person who obtains information by means of a production order made under section 74 shall disclose the information except as specified in the order, and in testimony in a proceeding under Part III of the CFSA. This section gives the court a broad discretion to craft an order that is uniquely tailored to the needs of the particular case before it, so as to achieve an appropriate balance between privacy interests, public policy interests, the importance of Societies obtaining important information to carry out their functions, and the importance of the information to the parties and the children involved in the proceeding (Children’s Aid Society of Algoma v. D.P., Supra.).
20. I would suggest that, broadly-speaking, there are two aspects to the analysis: (1) determining the purpose for which the records are sought; and (2) discerning whether privacy concerns are grounded in case-specific evidence and, if so, whether the risk to privacy overshadows the benefit of disclosure.
21. Taking a purposive approach to the records sought by the Society in this particular matter, we ask: what is the need for all notes to be produced from participant experts who have provided written opinion summaries (and who will provide, on consent, any notes or records supporting such summaries)?
22. There are at least three primary uses of these contested records:
a. to assess the factual foundation of opinion evidence;
b. to explore relevant details in the witness’ observations of Mother, for example her presentation at appointments or whether appointments were missed or rescheduled, to see whether any patterns emerge; and
c. to ascertain whether Mother has made any contradictory statements or admissions against interest which may be useful in cross-examination.
23. I agree that the first two purposes are logical and consistent with the nature of regular trial practice. In many instances of expert testimony, an expert’s credentials and scope are effectively uncontroverted but it is the factual foundation of the expert’s conclusions that can be successfully undermined to demonstrate that the opinion evidence is of little or no value. A clear example would be Ms. Barber’s records. Having regard to the content of Ms. Barber's letter, it is clear that she has formed opinions regarding the litigation and access between Mother and the child notwithstanding that her only source of data was Mother’s self-reporting. Her notes and records are relevant to determine the nature of the information provided to her by Mother; to test the credibility of that information; and to work through Ms. Barber’s conclusions should the information be objectively incorrect. Ms. Barber’s notes must be made available so that the appropriate examinations and cross-examinations can be prepared.
24. Regarding the third purpose, impeachment, any contemporaneous notes themselves would only be useful if they were entered into evidence as admissible hearsay on the basis that they contain Mother’s admissions against interest. An example raised was regarding the question of Mother’s capacity to provide care for a medically fragile child despite her self-reported state of exhaustion. Even then, it must be remembered that these are notes made from Mother’s self-reporting; they are not evaluative nor are they documents directly authored by Mother herself. I am not convinced that their probative value outweighs the potentially prejudicial effect to Mother’s privacy in the context of a detailed summary in lieu of the notes themselves. Having said this, I am not tasked with determining trial admissibility, but only with the low threshold of “possible relevance.” It will be up to the trial judge to determine this evidentiary issue if and when any such documents are tendered as exhibits at trial in connection with Mother’s credibility.
25. To resist the disclosure, Mother must demonstrate, on the balance of probabilities and grounded in the evidence, that the deleterious effect of disclosure upon her privacy interests outweighs the probative value of the records themselves. As Justice Chappel pointed out, a party resisting the records motion cannot simply “raise the specter of possible harm” but must provide an evidentiary basis to support the concerns.
26. Having reviewed Mother’s affidavits filed both in response to the Society’s records motion and in support of her own records motion, I see no evidence specifically addressing the deleterious effect of disclosure with one exception. It is undisputed that the scope of Ms. Quiring’s practice includes treatment of a very personal nature. Her clinic’s name is “All Things Pelvic Physiotherapy and Pessary Clinic.” “Pessary” devices are intimate and related to internal organ functionality. Ms. Quiring will provide all notes and records directly related to her opinion of Mother’s mobility as described in her letter of February 20, 2024. Otherwise, complete medical records covering every appointment have limited probative value which, in the context of Ms. Quiring’s scope of practice, is outweighed by the prejudicial effect upon Mother’s privacy.
27. Society’s Records motion is largely successful; Order to issue accordingly.
Mother’s Records Motions
28. Mother has a higher hill to climb in demonstrating that the records she seeks ought to be disclosed. She does not have the benefit of the “possibly relevant” low threshold set out at section 130 of the CYFSA, as it applies only to relief sought by the Society. Instead, she must satisfy Rule 19(11):
19(11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original.
29. Mother’s first motion seeks records from the Society’s sister agency in Chatham-Kent, Linck Child, Youth and Family Services (“Linck”) “related to all referrals, complaints, and investigations involving” the child and the foster parents, “subject to such reasonable terms as Linck may request.” That agency sent its representative but filed no materials in response to Mother’s motion. No evidence was presented by Linck; Linck relied upon the Society’s opposition and argument. This approach strikes the court as minimalist and somewhat disinterested; it leaves the evidence of the Society worker as stand-alone hearsay.
30. Mother points out that there were two complaints made by independent nursing staff regarding the care of the child in the placement home. In the course of its investigation into these complaints, the Society referred to “other historical concerns” about the foster placement. Mother wants to see the records that were explored by the Society in this context.
31. The Society (and, by extension, Linck), put forward three arguments, that:
a. the records sought are irrelevant, because the court’s authority addresses whether placement with the Society is the least intrusive in the child’s best interests and the court does not look behind the placements assigned by the Society thereafter;
b. the language used in Mother’s request is overbroad; and
c. the undertaking would be massive, as there will be records of interactions regarding the foster parents over the course of their fostering tenure (some 23 years) and there may even be some dating back to those individuals’ own childhoods.
32. The two latter arguments can be addressed by crafting “reasonable terms” associated with the scope of disclosure. For example, the disclosure order could indicate that the records will be limited to those arising from third-party or institutional contacts expressing concerns pertaining to the individuals in their role as foster caregivers over a reasonable period of time (e.g. since 2020).
33. The first argument is addressed through the application of the Rule. Mother must demonstrate that it would be “unfair to a party to go on with the case without the document.” Fairness is a hallmark of justice.
34. Mr. McIvor for the Society argues that Mother is simply seeking to make a comparison between her ability to care for her daughter and the situation in the foster placement. The Court of Appeal has clearly affirmed that this is outside of the scope of the court’s involvement: “A best interests comparison between the foster home and the original family … would run contrary to the entire scheme of state intervention in cases where there is reason to believe that a child is in need of protection.” (See L. (R.) v. Children's Aid Society of the Niagara Region, 2002 CanLII 41858 (ON CA) at paragraph 38.) This is absolutely correct and universally applicable. However, this case may represent the exception that proves the rule.
35. In her affidavit, Mother points out that the ability for the child “to remain in any particular placement” is “similar in nature to what the Society alleges are the protection concerns in my case.” The Society worker’s affidavit speaks of Mother’s “ability to propose a plan” and concludes that “the [disclosure] request appears to be aimed at undermining and destabilizing a long-standing and approved foster placement.” This is an allegation of bad faith, which has been defined as “the representation that one’s actions are directed toward a stated goal while one’s secret, actual goal is something else.” (See S. (C.) v. S. (M.), 2007 CanLII 20279, aff’d 2010 ONCA 196, [2010] O.J. No. 1064 (Ont. C.A.) at paragraph 16.) One can only presume that the Society’s concerns include this alleged bad faith behaviour by Mother.
36. I would underscore here that it is the Society’s contention that Mother is acting in bad faith which might take this matter outside of the usual scope of non-interference as described by the Court of Appeal. But how can displacement of this allegation, which appears to have grown into a protection concern, be accomplished? Would further information about the foster placement be of any assistance? Having reviewed some of the records already disclosed by the Society appended to Mother’s affidavits, I cannot see how more information about the foster parents would help.
37. Therefore, for clarity, while I do not see Mother’s request as intended to destabilize the current placement, I cannot conclude that it would be “unfair” for Mother to continue this litigation without the requested Linck records. Mother’s first records motion is dismissed.
38. Mother’s second motion seeks records from the Society pertaining to placement efforts and the funding available therefor. Again, the test is whether it would be unfair for Mother to continue the litigation without this information. Mother cannot meet that test; not only is the funding information generic (in that funds for this child’s care come out of a global pool and are not sourced directly for her), placement options available to the Society may or may not be available to a private individual. Even if an agency that provides support for children in care also does private retainer work, there is no reason to conclude that information regarding one set of arrangements is relevant to another. Simply stated, even though Party A and Party B reach an agreement to provide services, neither is obligated to contract for the same terms with Party C.
39. Mother’s second records motion is dismissed.
Costs
40. The issues raised in the unique circumstances of this matter required judicial intervention. It is not an appropriate case for costs.
Conclusion
41. Based on all of the foregoing, the following shall issue:
a. Final Records Orders to issue individually per each of paragraphs 2 – 5; and 8 of the Society’s Notice of Motion dated May 26, 2026, removing the words “An Order” at the opening of each term.
b. Final Records Order to issue as follows:
Pursuant to s. 130 of the Child, Youth and Family Services Act, 2017 and Rule 19 (11) of the Family Law Rules that Renee Quiring release to Family and Children’s Services of the Waterloo Region to be used in the child protection proceedings, copies of such records pertaining to G.M. (name to be inserted by counsel on Order), born May 23, 1973, from January 1, 2021 to present as are directly related to the opinions as described in the letter of February 20, 2024.
c. Temporary Order to go:
The OCL’s Notice of Motion dated April 28, 2026 is marked withdrawn.
Paragraphs 1; 6; and 7 of the Society’s Notice of Motion dated May 26, 2026 are adjourned for service to be properly effected, to September 8, 2026 at 10:00 a.m. at the following connection details:
https://ca01web.zoom.us/j/66722019654?pwd=EJZlbaLwyHtY5g6w2kqu3S1wGHvHo2.1
or by calling toll free: 1-855-703-8985 Meeting ID: 667 2201 9654 Passcode: 061790
The Society’s Motion to Strike dated July 23, 2026 is dismissed.
Mother’s Notices of Motion regarding records dated June 18, 2026 and June 19, 2026 are dismissed.
Each party shall bear his or her own costs.
______________________________
J. Breithaupt Smith J.
DATE: August 21, 2026
1Subsections 130(3) - (4) of the CYFSA read:
130(3) Where the court is satisfied that a record or part of a record (...) contains information that may be relevant to a proceeding under this Part and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court.
130(4) Where the court is satisfied that a record or part of a record (...) may be relevant to assessing compliance with one of the following and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court.