NC v. Kunuwanimano Child and Family Services, 2019 CFSRB 7

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

NC

Applicant

-and-

Kunuwanimano Child and Family Services and Fort Albany First Nation

Respondents

DECISION

Adjudicator: Catherine Bickley, Judy Finlay, Cheryl Milne

Date: March 05, 2019

Citation: 2019 CFSRB 7

Indexed as: NC v Kunuwanimano Child and Family Services (CYFSA s. 192)

APPEARANCES

NC, Applicant

Self-represented

Kunuwanimano Child and Family Services, Respondent

Peter Doucet, Counsel

Fort Albany First Nation, Respondent

Peter Doucet, Counsel

Introduction

1This is an Application brought by NC on March 7, 2018, requesting a review pursuant to section 144 of the Child and Family Services Act, now section 192 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Schedule 1, (the “Act”).

2The Respondent, Kunuwanimano Child and Family Services, (“Kunuwanimano”), refused the Applicant's application to adopt DP, SP and RP (the "Children") who were placed in her care in August 2015 until their removal in 2017. For the reasons that follow, the decision of Kunuwanimano is confirmed.

Background

3Kunuwanimano initially challenged the jurisdiction of the Child and Family Services Review Board (“CFSRB” ) to hear the Application on the following grounds:

a. The children that are the subject of the adoption application are in customary care and are not available for adoption,

b. There was no application to adopt the children by the Applicant,

c. There was no written refusal of an adoption by Kunuwanimano.

4Following a hearing held May 28 and 29, 2018, during which the Fort Albany First Nation (“FAFN”) was also made a Respondent, the CFSRB ruled that it had jurisdiction to hear the Application for the reasons set out in NC v Kunuwanimano Child and Family Services (s. 192 CYFSA), 2018 CFSRB 28.

5On the agreement of the parties, a Talking Circle was held on November 19 and 20, 2018, and the parties entered into an interim settlement. On December 7, 2018, the CFSRB was advised by Kunuwanimano and FAFN that they no longer agreed to implement the interim settlement and the matter then proceeded to a hearing held on January 16, 17, 29, 30 and 31, 2019. The parties made their final submissions in writing with the last of the submissions received by the CFSRB on February 26, 2019.

6The Children are siblings, aged 13, 12 and 9 years, who were apprehended from the care of their parents on November 9, 2012 by the North Eastern Ontario Child and Family Services (“NEOFACS”). They were made Crown Wards without access for the purpose of adoption on November 3, 2014. The Children’s mother, who is deceased, was a member of FAFN, as are the Children. The Children’s father is also a member of FAFN and resides in [Town 1].

7Kunuwanimano received its mandate as an Indigenous child welfare agency in May 2015. At that time, the Children’s Child in Care files were transferred from NEOFACS to Kunuwanimano.

8Following their apprehension, the Children were placed in a foster home. They remained in that placement for a period of approximately three years after which the foster home advised that it was not able to continue to care for the Children on a long term placement.

9The Children were placed in the care of the Applicant on August 31, 2015. They remained in her care for almost two years until their abrupt removal on August 2, 2017.

10Several of the affidavits filed documented the conflict and escalation of tension between the Applicant and Kunuwanimano. In particular, Kunuwanimano questioned the Applicant’s intention to facilitate contacts between the Children and their extended family and First Nations Community, while the Applicant felt that Kunuwanimano was unsupportive of her intention to adopt the Children and was finding fault in her caregiving without sufficient grounds.

11On July 31, 2017, FAFN passed a Council Resolution to place the Children with family members in a Customary Care Arrangement under section 212 of the Child and Family Services Act (now section 112 of the Act).

12On August 2, 2017, Kunuwanimano entered into a care and supervision agreement with CL and LL, foster parents who are members of the children’s extended family. The Children remained in their care until July 15, 2018. At that time CL and LL advised that they could no longer care for the Children because of LL’s serious life-threatening illness. The Children were place in another foster home for approximately two months before being place with their current caregiver, SV, in September, 2018.

EVIDENCE PRESENTED AT THE HEARING

13The parties agreed to proceed by way of affidavit evidence with the opportunity to cross examine witnesses at the hearing as requested. The Applicant chose not to cross-examine any of the Respondents’ witnesses, while the Respondents advised that they would cross-examine the Applicant and one of the Applicant’s witnesses who had provided an affidavit. At the commencement of the hearing the CFSRB confirmed the Applicant’s choice not to cross-examine any of the Respondents’ witnesses, cautioning that unless she presented evidence to contradict the witness statements the CFSRB could consider the evidence in the affidavits as unchallenged.

14The Applicant filed three affidavits in support of her plan to adopt all three children: her own, the affidavit of her son and the affidavit of a former foster child, JM. Respondent’s counsel cross-examined the Applicant and JM. Kunuwanimano filed affidavits of the Children’s current case worker, who has worked with the Children since August, 2018; LL, the children’s caregiver from August, 2017 until July 15, 2018; SGK, a Director of Service and Wellness at Kunuwanimano; KC an Alternative Care Worker with Kunuwanimano; SM an Alternative Care Worker with Kunuwanimano; BP the children’s maternal grandmother; CR the Executive Director of Kunuwanimano; SV, the children’s current caregiver; and CB a child protection supervisor with Kunuwanimano.

15FAFN filed the affidavits of RN, the Deputy Chief of FAFN, and EB, a Member of Moose Cree First Nation and Acting Executive Director of Mushkegowuk Council, of which FAFN is a member.

16The CFSRB requested that the Respondents make CR, SV, KC and CL available for questions and to produce further material that the CFSRB determined was necessary for the hearing of this matter.

17During the course of the hearing, it was clear that counsel for Kunuwanimano failed to file all relevant evidence. Of particular concern was the failure to provide the most recent plans of care for the Children, their current report cards demonstrating their assertions that the Children were doing well in their new school, and the Safe Home Study and Family Assessment – “Kin in Home Care” conducted by Kunuwanimano in respect of their current caregiver.

18To ensure that all relevant evidence was considered, the CFSRB required the re-attendance of SV at the hearing to answer questions and be cross-examined by the Applicant on the previously undisclosed assessment.

19The Respondents’ affidavits were insufficient since they did not give a full social history of the Children. At the CFSRB's request Respondents’ counsel filed the reports of the Children’s social histories on the final day of the hearing. These reports provided critical information about why the Children came into care and what impact that might have had on them and their current needs.

POSITIONS OF THE PARTIES

20The Applicant believes that it is in the best interests of the Children that all three be adopted by her. She is willing to facilitate their connection to family and their First Nations community and maintained that she was always willing to do so. If the eldest child, who is 13 years old, wishes to remain with his current caregiver, she would propose that she adopt the two younger siblings. However, it is her belief that the oldest child’s views and wishes, if he were permitted to express them freely, would be to be adopted by her.

21The Respondents, Kunuwanimano and FAFN, believe that it is in the Children’s best interests to remain in the permanent care of SV, a caregiver who is closely connected to the Children’s extended family, and who has facilitated the Children’s connections to their First Nation’s culture, heritage and extended family including their maternal grandmother and their father. They intend to proceed with customary care with the Children remaining with SV permanently. In their submissions they specifically made note of the obligation of societies under s.80 of the Act to “make all reasonable efforts to pursue a plan for customary care for a First Nations, Inuk or Métis child.”

22The Children’s views and wishes were presented to the CFSRB through the submissions of their counsel, Andrea Luey, who met with the Children, and Jane Stewart. Ms. Stewart attended the hearing and advised the CFSRB and the parties that the eldest child, DP, wished to remain with SV and that he was “happy where he is at”. He feels a connection with the Applicant and her family and wishes to maintain connections with them, but he feels the importance of his connection with his First Nations family and culture including contact with his maternal grandmother and his father.

23The two younger siblings, RP and SP, expressed a wish to be adopted by the Applicant. RP was most consistent with this desire, expressing her fondness for the Applicant and the other children as well as the activities at the Applicant’s farm. SP initially stated that she would have preferred to live with LL and CL but understands that this is not possible, and therefore wishes to be adopted by the Applicant. All three Children expressed the need for a stable place and all expressed a desire to remain together. All three also expressed the wish to maintain contact with their extended family including regular visits with their maternal grandmother.

the law

24While the initial Application was made under the Child and Family Services Act, the new Child, Youth and Family Services Act, 2017 came into force on April 30, 2018 and governs this proceeding. The relevant provisions of the Act are as follows:

192(1) This section applies if,

(a) a society decides to refuse an application to adopt a particular child made by a foster parent or other person; or

(b) a society or licensee decides to remove a child who has been placed with a person for adoption.

(5) Upon receipt of an application under subsection (3) for a review of a decision, the Board shall hold a hearing under this section.

(6) Upon receipt of an application for review of a decision relating to a First Nations, Inuk or Métis child, the Board shall give notice of the application and of the date of the hearing to a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

(11) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision.

25The CFSRB’s determination is to be made in accordance with the expanded definition of the best interests of the child set out in s. 179(2):

Best interests of child

(2) 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, and

(viii) the effects on the child of delay in the disposition of the case.

26In addition to giving prominence to the child’s views and wishes, as well as the recognition of First Nations, Métis and Inuit cultures and children’s cultural identity and connections to their community within the best interests test, the preamble of the Act also states that the Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard and sets out further principles that are relevant to the CFSRB’s determination in this matter:

The Government of Ontario is committed to the following principles:

Services provided to children and families should be child-centred.

Services provided to children and families should respect their diversity and the principle of inclusion, consistent with the Human Rights Code and the Canadian Charter of Rights and Freedoms.

Systemic racism and the barriers it creates for children and families receiving services must continue to be addressed. All children should have the opportunity to meet their full potential. Awareness of systemic biases and racism and the need to address these barriers should inform the delivery of all services for children and families.

Services to children and families should, wherever possible, help maintain connections to their communities.

In furtherance of these principles, the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.

With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

27The CFSRB, in reviewing the evidence presented, the positions of the parties, and the views and wishes of the Children, considered all of the factors in s. 179(2) and found that the factors discussed below were most relevant to our determination.

CHILDREN’S VIEWS AND WISHES

28While the Children’s views and wishes were described by their counsel as consistent over time, it would be difficult for the CFSRB to give full effect to all of the Children’s views. The CFSRB has seriously considered the views and wishes presented by the Children’s counsel in arriving at its determination. The Ontario Court of Justice in addressing the emphasis placed on this aspect of the expanded best interests test held in Catholic Children’s Aid Society of Toronto v. T.T.L., 2018 ONCJ 403 at paras 151-152:

Pursuant to the statutory best interests test under predecessor section 37(3) of the CFSA, the child’s “views and wishes, if they can be reasonably ascertained” were one of 13 circumstances that the Court was directed to consider, if relevant. By contrast, the child’s “views and wishes” are now front and center in the statutory best interests test in section 74(3) of the CYFSA. Moreover, the first sentence in the preamble to the new Act acknowledges that children “are individuals with rights to be respected and voices to be heard”.

However, the right to respect and to be heard is not tantamount to the right to decide. And despite their additional importance within the new statutory scheme, pursuant to section 74(3)(a), the child’s views and wishes are to be “given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained”.

29The Act also makes specific reference to the UN Convention on the Rights of the Child and the principles expressed in it. Counsel for the Children made specific reference to the Supreme Court of Canada’s decision in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at para 88, in which Abella J. stated for the majority of the Court,

When applied to adolescents, therefore, the “best interests” standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision making. It is not only an option for the court to treat the child’s views as an increasingly determinative factor as his or her maturity increases, it is, by definition, in a child’s best interests to respect and promote his or her autonomy to the extent that his or her maturity dictates.

30As the Children’s counsel stated in her submissions, DP, the eldest at 13 years old, expressed views that were more nuanced in light of all of the circumstances. He feels a continuing connection with the Applicant and her family, but he expressed the importance to him of his First Nations family and culture. He desires ongoing contact with his father, “granny and grandpa” (his maternal grandmother and her partner), as well as with the Applicant.

31As noted above, RP who is almost 12 years old, and SP, who is 9 years old, both wished to be adopted by the Applicant. They emphasized their enjoyment of living on the Applicant’s farm and working with the animals. However, they too wished to maintain contact with their extended family, and in particular their maternal grandmother. Another consistency between all three Children is their desire to be together and to be in a stable home and not move again.

32None of the parties have been particularly respectful of the Children’s views and wishes in the context of this dispute. Kunuwanimano abruptly removed the Children from the Applicant’s care. SV confirmed that the Children were not given an appropriate opportunity to say good-bye. The Applicant continues to question DP’s stated wishes believing that he would change his mind if not for the pressure of the agency. She would also propose the separation of the Children in order to fulfill her plan to adopt the two younger children.

FIRST NATIONS CULTURE, HERITAGE AND TRADITIONS

33The Act in both its preamble and in the expanded best interests test is very clear that the Children’s connections to their First Nations community and culture ought to be respected. The paramount purpose of the Act under s.1(1) is to “promote the best interests, protection and well-being of children. The other purposes of the Act in s.1(2), must be consistent with that purpose, but of particular relevance here is section 1(2) 6 of the Act which provides:

First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

34The Executive Director of Kunuwanimano, in both her affidavit and oral testimony at the hearing, laid out the objectives of the agency to promote customary care of their children and to reverse past colonial practices of removing children from their communities and families. CR’s testimony and affidavit, as well as the affidavits of RN and EB, make it clear that the FAFN is opposed to adoption and this is contrary to their culture. They also stated that, in particular, adoption outside of the community has historically led to the loss of community and culture for First Nations children. RN stated in his affidavit that NEOFACS made no effort to locate family or community members who might care for the children when they came into care.

35SV is a member of the Moose Cree First Nation and grew up in [Town 1] alongside the Children’s father. The evidence is clear that SV has strong connections to the Children’s community and cultural heritage. CR described the practices of SV as traditional in her home as she introduces the Children to hunting and fishing and that this was consistent with a way of life rather than simply an activity. It was the agency’s position that the Children should be raised by someone who is from the Illilu people of the East Coast James Bay area with the heritage of the Children’s family of [Town 2] and [Town 3]. She stated that Kunuwanimano has a long term commitment from SV to care for the Children for the rest of their lives.

36SV described the traditional activities that she has begun to introduce the Children to including taking them to her family camp and engaging them in traditional outdoor activities such as partridge hunting, fishing and setting up a blind for spring hunting. She has taken significant measures to connect the children to their extended family with whom she is well acquainted. SV’s former partner is a cousin to the Children’s father. The Children are also now attending school with several cousins, one of whom is in DP’s class. She has reconnected the Children to LL and CL, and organized overnight visits with them.

37In contrast, the Applicant has no significant ties to the Children’s First Nations community or extended family. She has expressed a willingness to facilitate the Children’s connections to the community and to support their traditional practices, but in her testimony under cross-examination it was clear that she has little knowledge or even respect for their First Nation. The Applicant and her husband recently applied for and obtained status cards as Métis. She acknowledged that she made the applications in 2018 for the purposes of assisting with her application to adopt the Children. She stated that she is a member of the Maniwaki community in Western Quebec. She claimed, incorrectly, in her testimony that Maniwaki is a First Nation and this makes her part of the aboriginal community for the purposes of the Act. She testified that in her view there was no difference between First Nations, Métis and Inuit under the law.

38In cross-examination, it became clear that the Applicant knows very little about the cultural practices of the Children’s indigenous community, the Illilu people of [Town 2] and [Town 3]. For example, she described her efforts to keep the Children connected to their heritage by taking them to powwows, but was unaware that this was not a cultural practice of their First Nation community. She described how she and her husband have recently purchased a teepee for their farm property with the plan to establish a summer camp to connect First Nations people in [City] to their culture as a business. When asked what she knew about the culture, heritage and traditions of the Illilu people of [Town 2] she responded that she knew that hunting was very important as well as language but that most of the people have lost their language, traditions, ceremonies and their connections with nature.

POSITIVE RELATIONSHIP WITH A PARENT AND SECURE PLACE AS A MEMBER OF A FAMILY

39It was clear from the Applicant’s affidavit and her testimony that she cares deeply for the Children and wishes to adopt all three of them. Her evidence, supported by report cards and the agency’s own documents, was that they were well-cared for in her home and had developed a bond with her and her family. She was clear with Kunuwanimano once she agreed to care for the Children that she wanted to do so on a long-term and permanent basis. The views and wishes of the Children, as expressed through their counsel, also confirm the strong bond that the Children have with the Applicant. The abrupt removal of the Children from her care was traumatic for her and also for the Children.

40However, the CFSRB is also mindful of the view of family and community that is expressed by the FAFN and the emphasis on customary care alternatives for First Nations, Inuit and Métis children under the Act. DP has expressed through his counsel his desire to further his ties to his extended family by his remaining in the care of SV. It is also through this placement that the Children are reconnecting with their father, albeit not as a primary caregiver. The greater emphasis in the Act on extended family and community for First Nations children suggest that this factor not be construed too narrowly to devalue those relationships.

CHILDREN’S RELATIONSHIPS AND TIES TO FAMILY AND COMMUNITY

41It was SV’s testimony that the initiative for her to take the Children into her care came from DP. While the Children were in the care of LL and CL, Kunuwanimano approached her to facilitate contact with the children’s extended family because of her relationship with her former partner, a cousin of the children’s father. She began taking the children on outings to meet with extended family, including a luncheon at which DP met family members he remembered from before he came into care, as well as to the camp for outdoor activities. DP approached her to consider taking them in because the placement with LL and CL had broken down due to LL’s serious illness.

42Since that time SV has been able to connect the Children to both close family members, including their father in [Town 1] and their maternal grandmother, as well as extended family including aunts, uncles and cousins. It is her deep connection to the Children’s First Nations community and both the Children’s maternal and paternal extended family that has facilitated these connections. While SV is not a direct relation to the Children, it is clear from her evidence that she has strong historical and current connections to the Children’s extended family and is committed to facilitating their relationships with family as much as possible.

43The Applicant simply cannot offer the same commitment and ease of connection to family as SV. The CFSRB has serious concerns about the ability of the Applicant to maintain a positive relationship with the Children’s extended family. The highly conflictual nature of the Applicant’s relationship with Kunuwanimno, while adversarial on both sides, suggests to the CFSRB that the ties that have been created by SV with the Children’s extended family will likely be difficult to maintain.

44For example, the affidavit of BP, the Children’s maternal grandmother, describes an incident when the Applicant approached her and began criticizing the agency and the decision to place the Children with SV. The affidavit of SM, an alternative care worker with Kunuwanimano, describes the Applicant as trying to undermine the agency’s decision to allow the Children a visit with their previous foster family with whom they had lived for three years before being placed in the Applicant’s care. In addition, the affidavit of CB suggests that the Applicant obstructed the efforts of Kunuwanimano to facilitate contact with the Children’s maternal grandmother when they were in the Applicant’s care.

45Of considerable importance to our determination is the connection between the siblings. The Children have had considerable disruption in their care since coming into the care of NEOFACS and then Kunuwanimano. However, they have always been together. All three Children expressed a wish to remain together. This is also the plan put forward by the Respondents. There was evidence by the various caregivers that the relationship between the Children has been somewhat conflictual, including some observations that DP has at times been protective and parentified toward his younger siblings. Without any clinical assessment suggesting this to be of particular concern, there is no justification for separating the siblings. The CFSRB finds that to separate the Children at this time would not be in their best interests.

CONTINUITY OF CARE

46The Children have been in three different placements since their removal from the Applicant’s home. It is not surprising that they all wish for stability. Their move from the LL and CL home was unfortunately due to circumstances beyond anyone’s control. While the Applicant proposes to provide stability through the permanence of adoption, a return to her home would be yet another move for the Children. It also poses a significant change from the one continuous factor in the Children’s lives, their placement together, given DP’s wish to remain with SV.

47While the desire to avoid further disruption is not on its own a determining factor, weighed with the other factors including the wishes of DP, the older of the Children, the wishes of all of the Children to remain together, and the strong arguments put forward by the Respondents for the best way to maintain familial and cultural connections to their First Nations community, it also favours confirming the Respondents’ position.

48The CFSRB has also seriously considered the stability of the plan put forward by the Respondents in respect of the permanent placement with SV. In this regard, the Safe Home Study and Family Assessment – Kin in Care Home, that the Respondents initially failed to disclose was reviewed by the CFSRB and the Applicant was given the opportunity to cross examine both KC, the worker who conducted the assessment, and SV on its contents. The documents disclosed specific issues in SV’s background and home life, that while considered mitigated and not of current concern by the assessor, could have possibly given rise to concern about the overall stability of the placement with SV. The failure to disclose this relevant document placed SV in the untenable position of being cross-examined on highly personal information with little advance notice.

49The CFSRB, however, was impressed by SV’s candour and openness about her history of past trauma and the issues that led her partner to leave just prior to the Children being placed into her care. She has been diligent and conscientious in how and when she has sought help for stresses that have arisen in her work and due to the loss of friends and family in her life through tragedy. She presented as a good model for the Children who themselves have experienced similar trauma. The evidence has been consistent that the Children are doing well in her care.

50The CFSRB had one follow-up question for the Respondents following the receipt of their submissions. SV stated in her testimony that she would support the Children’s father caring for them if he had done the work to be able to provide them with a home. This seemed to contradict the Respondents’ plan that the Children remain with her permanently and could possibly lead to further disruption in their continuity of care. The Respondents clarified that the permanency plan for the Children is to remain in the permanent care of SV until such time as the Children choose to withdraw from care on attaining the legal age at which they may do so.

51SV made it clear in her testimony and it was reiterated in the Respondents’ response to our question that a customary care arrangement will be established with her with the support of their father. SV also was clear in her evidence that she will be there for the Children as long as they need her. SV’s ongoing commitment to her ex-partner’s son despite their separation adds weight to her undertaking to the three Children as she has an established practice of putting the child’s needs first.

CONCLUSION

52The CFSRB finds, therefore, upon consideration of all relevant best interest factors that the decision of the Respondent Kunuwanimano is confirmed under s.192(11) of the Child, Youth and Family Services Act, 2017.

53The CFSRB, however, is mindful that the Children have been well aware of this litigation and have participated through their legal representative. The CFSRB is also mindful that this Decision does not follow completely their views and wishes and therefore, we believe that the Children deserve a clear explanation of our decision in a manner that is expressed in language that is suitable to their understanding. We suggest that the Children’s counsel provide them with a copy of the attached appendix.

54The CFSRB is also of the view that the Children’s wishes to maintain contact with the Applicant and their sadness at not being given the opportunity to properly say good-bye should be acknowledged. It is suggested that Kunuwanimano find a way to address the Children’s wishes for contact in order to bring some finality to these unresolved feelings.

confidentiality order

55Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.

Dated at Toronto, March 05, 2019.

Catherine Bickley

Catherine Bickley

Vice-Chair

Judy Finlay

Judy Finlay

Member

Cheryl Milne

Cheryl Milne

Member

APPENDIX A

Dear [Children],

As you know a hearing was held to decide whether you would continue to live with [SV] or move to [NC]’s home and be adopted by her. Your wishes were presented to us by the lawyers at Justice for Children and Youth.

This was a difficult decision to make. We had to consider a number of things, including what you said you wanted, what the adults thought was in your best interests and how you can stay connected to your family and each other. After hearing from your lawyer, Andrea, Kunuwanimano, Fort Albany First Nation and [NC] we have decided that it is in your best interests to stay together with [SV].

We listened to the fact that you all love [NC] and her family. You have many happy memories living with them and being on their farm. We also heard that they love you very much too. We hope that you will find a way to stay in touch in the future.

We believe that it is best for you to stay with each other. You have all been through tough times and many moves to different homes. But you have always been together. Brothers and sisters can often fight when they are young, but you have a bond that will continue into the future.

We also believe that it is very important for you to continue to build your relationships with your many family members in [locations]. We believe that [SV] has worked hard to introduce you to many family members who will stay close with you for many years to come. Your grandmother is so happy to have you back in her life. She supports you living with [SV] and staying connected to the family that she knows so well.

Kunuwanimano and the Fort Albany First Nation really want to make sure that you are aware of your heritage and traditions. You should be very proud of your First Nations heritage. [SV] is working hard to teach you some of those traditions. While you might not always be interested in the traditional practices, it is a gift to learn them from the people who know them. They can be something that makes you proud and comforts you when you need to feel good. We believe [SV] is a good role model for you in this way.

We hope that our decision will end the uncertainty about where you will live and you are able to settle in your home with [SV].