WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(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.
ONTARIO COURT OF JUSTICE
BETWEEN:
KINA GBEZHGOMI CHILD AND FAMILY SERVICES Applicant,
— AND —
N.B. J.A. WIIKWEMKOONG UNCEDED TERRITORY Respondents
Before Justice V. Christie Heard on March 5, 2019 Reasons for Judgment released on March 7, 2019
J. Rachelle Philippe........................................................ counsel for the applicant society James E. Weppler........................................... counsel for the respondent mother, N.B. Lloyd McGregor.......... ……………………….. band representative for the respondent, Wiikwemkoong Unceded Territory No appearance by or on behalf of J.A., previously noted in default
CHRISTIE J.:
1This is a temporary care and custody hearing involving the child, M., born […], 2008. Kina Gbezhgomi Child and Family Services (“Kina”) are requesting that M. remain in care with continued access by N.B. and J.A. as agreed upon between the parties and supervised by Kina or its designate at its discretion. N.B. and Wiikwemkoong Unceded Territory request that M. be immediately returned to her mother, subject to Kina’s supervision and on such reasonable terms and conditions as the court considers appropriate.
PROCEDURAL HISTORY OF THE MATTER
2On August 29, 2018, Kina Gbezhgomi Child and Family Services (“Kina”) brought an application requesting that the court make a finding under Part V of the Child, Youth and Family Services Act, 2017 (“CYFSA”) that the child is in need of protection because:
There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by that person’s
Failure to care for, provide for, supervise or protect the child adequately [clause 74(2)(b)(i); and
Pattern of neglect in caring for, providing for, supervising, or protecting the child [subclause 74(2)(b)(ii)]
And further,
There is a risk that the child is likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child [clause 74(2)(h)
On this basis, the application requests that the child be placed in the interim care of Kina for a period of six months with access by N.B. and J.A. to be as agreed upon between the parties and supervised by the Society or its designate at its discretion.
3On August 30, 2018, the court ordered on an interim without prejudice basis that M. be placed in the care of Kina and that access by N.B. and J.A. shall be as agreed upon between the Society and the parents and supervised by Kina or its designate at Kina’s discretion. The matter was adjourned to September 20, 2018.
4There has been no determination made as to whether M. is a child in need of protection. The matter has been the subject of numerous case conferences.
FACTUAL BACKGROUND
5N.B. is the biological mother of seven children, ages 25, 20, 18, 15, 10, 8, and 3. The only child at issue in this application is M., who is age 10. Only four of the remaining youngest children reside at home with N.B. J.A., a registered member of M’Chigeeng First Nation, is the father of M. N.B. and M. are registered band members with Wiikwemkoong Unceded Territory.
6The history between Kina and this family starts back in 2015 and includes reports of children running away, physical abuse, sexual assaults, use of weapons, all of which is outlined in the affidavit of Christina Ferris sworn on August 29, 2018. Prior to this, there was involvement with the Children’s Aid Society of the Districts of Sudbury and Manitoulin in 2010. According to the application, M. has been in the care of the society under an out-of-court agreement under s. 75 of the CYFSA on the following dates:
- September 16, 2017 to November 3, 2017 - Temporary Care Agreement with KGCFS
- January 11, 2011 to March 15, 2011 - Temporary Care Agreement with CASDSM
- June 28, 2010 to November 18, 2010 - Temporary Care Agreement with CASDSM
7According to this recent application by Kina, there have been ongoing concerns for the safety of the children in the home of N.B. due to the behaviours of M. M. has displayed aggressive behaviours that include threats and actions where she has hit the younger children, as well as getting into fights with her older sibling and her mother. M. has left the home without notice or permission and does not follow the rules and guidelines in the home. M. has experienced much trauma due to historical sexual abuse and M. has demonstrated sexual inappropriateness toward her younger siblings. N.B. has past trauma of her own and was struggling to manage M., along with the other children. Kina made attempts in the past to work with N.B. and M. under a Temporary Care Agreement, however, N.B. terminated that agreement. N.B. has also made attempts in the past to have the father J.A. care for M. but that was unsuccessful due to his drinking and living arrangements.
8Several specific incidents in 2018 culminated in M. being taken into care at the end of August.
9On January 11, 2018, at 12:35 p.m., Kina received a telephone call from a male person who works at the Zipp thru Gas Bar on Wikwemikong Way. He was calling regarding a 7 or 8 year old child hitchhiking, alone, on that road across from the gas bar. Police were contacted and attended to the child, who was M. A Kina worker contacted N.B., who explained that M. had gone to the store with her teenage sibling and that that sibling did not know where M. went. N.B. had also contacted the police. The police did return the child to her mother. It was determined that M. was attempting to hitchhike to her father in M’Chigeeng.
10On January 12, 2018, Kina was advised by Manitoulin Family Resources that N.B. had reported that M. was a victim of inappropriate touching by one of her older siblings.
11N.B. states that in March 2018 she observed M. touching herself and encouraging her baby sister to do the same. At that time, the family was living in a one-bedroom house. N.B. was concerned about such behaviour, and on April 4, 2018, she reached out for help to the crisis intervention centre, who in turn contacted Kina. N.B. reported that she needed help with M. as M. was acting out sexually and violently. She also advised that M. was sexually assaulted by others in the past. N.B. indicated that she was seeking help for herself and help for M.
12On April 19, 2018, Kina was contacted by […] School, where M. was attending. It was reported that M. was displaying unusual behaviour, such as writing explicit and concerning information in her notebook. It was also reported that there were times when M. did not bring a lunch, which happened two or three times per week.
13On April 21, 2018, Wikwemikong Tribal Police attended at N.B.’s residence due to information that there was a fight and a knife was involved. There was no information that M. was involved in this, although there was reference to the fact that the younger children were in the home at the time.
14On May 9, 2018, a neighbour of N.B. reported that M. had been walking over to their farm and into their house and barn. They were concerned that something would happen to her, especially when no one was home. On that same day, the Kina workers received a message from the answering service at 8:32 p.m. that N.B. called stating that her daughter was in crisis.
15N.B. was able to secure counselling for M. at Health Sciences North in Sudbury with Courtney Parr, trauma therapist. N.B. requested services on May 7, 2018. M. began to attend sessions with Ms. Parr commencing on June 29, 2018. [The services were put on hold as of September 17, 2018, but N.B. requested that the file stay open as she wanted her daughter to continue receiving trauma therapy.]
16On July 14, 2018, N.B. contacted Kina to say that her daughters, L. and M. had both gone to the Little Current Hospital. L. had expressed a desire to harm herself and N.B. had tried to talk to her. M. overheard this conversation, went outside, and cut her own leg with a knife, causing a superficial injury. M. contacted police. The police brought both girls to the hospital. Further information suggested that M. had tried to overdose her younger sibling in the past. M. was transported to Health Sciences North in Sudbury for the night. M. told the worker that she wanted to stay at the hospital and did not want to go back home. N.B. told workers that she contacted the hospital to set up counselling for M., as she did not think that Kina was helpful and that Wikwemikong did not have the specific services required to work with M. She advised that she was looking into relocating to Sudbury to have access to more resources. M. was discharged to her mother on July 15, 2018. L. was discharged to her older sister under a voluntary kin service agreement.
17On August 9, 2018, a Kina after-hours worker contacted N.B. as she had called in requesting to speak to someone regarding her daughter fighting with her son. When N.B. was contacted, she said that things had improved a bit since calling and she was feeling frustrated with M. N.B. stated that M. had been beating up her younger sibling and asked if a worker could speak to M. about her behaviour. N.B. stated that M. was attending counselling in Sudbury but she could no longer attend at that time due to the constant fighting between M. and her younger sibling in the car while travelling.
18On August 27, 2018, N.B. contacted Kina reporting that police had been called by her and were attending at her house. M. was throwing rocks at her younger brother. Also, N.B. had scolded M. as M. had put bubble bath into the rain water which was to be used to water the garden. Police attempted to talk to M. N.B. reported that she did not have any supports in Wikwemikong. N.B. also reported that M. was not listening to her and writes on the walls. Further, N.B. reported that despite the fact that she locked her knives away, M. was found with a paring knife. At the time of police attendance, M. began threatening to bang her head on the wall and cause a concussion. N.B. requested that M. be taken to Sudbury. The Kina worker spoke with police and said that M. appeared to be a threat to herself and others and that M. needed to be assessed at the hospital to determine if she needed to be “formed”. M. was transported to the Little Current Hospital to be assessed.
19N.B. wanted M. returned home, however, she admitted that at that time she was “underhoused” and felt disconnected with M. While being assessed at the hospital, the physician refused to release M. to her mother and recommended that M. not be returned home until N.B. and M. accessed counselling.
20Kina admitted that N.B. had services in place for herself and the children but, according to Kina, there had been limited progress in addressing the mental health of the family members. Kina suggested that there were no other less intrusive measures other than to bring M. into care for six months to assist the family in accessing services to address the trauma that had endured over the years.
21On August 28, 2018, M. was placed in a Kina foster home in Wikwemikong. Kina felt that she did require a therapeutic home and would continue to seek that service. N.B. was extremely upset about her daughter being taken into care and expressed her concerns.
22On August 31, 2018, the child well-being worker was contacted by the foster parent, J.O., advising that police had been contacted and would be attending her home to speak with M. regarding false allegations made against her by M. J.O. said that she needed M. out of her home. On September 2, 2018, the foster parent again contacted a worker to say that she could no longer provide M. care in her home, as her needs were too high and she found it to be challenging. On September 3, 2018, J.O. made another call to Kina, stating that M. was “lashing out”. The foster parent requested that M.’s placement in her home come to an end. At that time, there were no other foster homes in the area that could take M. A safety plan was reviewed with N.B., and M. was to stay with her mother until Kina could secure an appropriate therapeutic foster care home. N.B. immediately called Marcella Faucheau, a therapist, who was able to make an appointment for M. the following week. She also contacted Courtney Parr at Health Sciences North who would have been able to see M. in two weeks’ time.
23On September 4, 2018, a child well-being worker attended at the home of N.B. and completed a wellness check. N.B. advised the worker that she had scheduled an appointment with therapist, Marcella Faucheau.
24On September 5, 2018, a child well-being worker contacted N.B. to advise that a specialized foster home placement in London, Ontario was secured for M. M. was removed from N.B.’s care before the counselling could take place.
25After that time there was a great deal of tension between N.B., Kina and the band representative.
26On September 15, 2018, N.B. and her children were forced from their home in Wikwemikong due to a sewage back up. She moved to Haven House in Mindemoya while the residence was being repaired. On September 19, 2018, N.B. advised Kina that she was returning home as the septic tank issue was fixed.
27On October 18, 2018, Kina arranged transportation for N.B. and her children to move to Cedar Place Women’s Shelter in Sudbury due to a spot being made available for her and her family. N.B. had been requesting to move to that community in order to access more services.
28On October 28, 2018, M. was placed in Belleville, through Sheltering Tree Child and Family Services in a therapeutic foster care home. According to Kina, since M. has been placed there, many of the negative behaviours have diminished. M. has attended public school in Belleville since November 6, 2018 and she has not needed EA assistance. On November 4, 2018, M. was seen by an RPN and there were no concerns noted. On the same day, November 4, 2018, M. met with an Anishnaabe medicine woman who gifted her a smudge kit and did some smudging with her. M. has been involved with a 1-1 worker and the worker took M. to Loyalist College to the Native Cultural Festival. M. meets with a Child and Youth Counsellor for up to 10 hours per week (typically 5 hours per visit), on Sunday and Thursday.
29By November 16, 2018, N.B. had secured a 4-bedroom house in Sudbury.
30On November 23, 2018, M. was being returned to N.B. for weekend access. The foster mother (E.) stated that M. did not want to go. Workers waited in the car. M. eventually came to the vehicle. On the drive, she said she was going to miss E.
31On November 27, 2018, workers arrived to pick up M. at N.B.’s residence and return her to Belleville. N.B. indicated that M. did not want to return to the foster home. N.B. spoke with M. alone. The worker attempted to speak with M. but M. was holding the bedroom door shut so that the worker could not come in and she spoke to M. from the hallway. With some encouragement, M. left her bedroom and proceeded downstairs. N.B. attempted to get M. into her winter gear and M. locked herself in the utility room. N.B. persuaded her to come out and assisted with her winter gear. M. proceeded to run outside and played on the rocks. The worker prompted M. to get in the car, however, M. went under the hole in the fence. M. ran from workers but became stuck in a closed area. N.B. persuaded M. to get in the vehicle with the workers.
32On November 28, 2018, M. shared with her foster mother allegations of sexual abuse when she was young. She said her mother knew about this and that her mother grabs her and spanks her.
33The current child well-being worker, Mandy Contois, began working with N.B. on December 3, 2018.
34During a home visit on December 11, 2018, there was discussion about Christmas access. N.B. indicated that she had scheduled an appointment for M. with Courtney Parr at Health Sciences North on December 17, 2018 and wished to commence access on December 15, 2018. Ms. Contois confirmed that this was not possible and access would commence on December 21, 2018.
35On December 18, 2018, workers confirmed a six-month schedule for counselling services for M. to see Courtney Parr, Trauma Counsellor, Violence Intervention and Prevention Program, at Health Sciences North. The schedule arranged for M. with Ms. Parr was for the first Monday of every month until June.
36On December 21, 2018, E. shared that M. stated that she had been bullied at school. She expressed the desire to be homeschooled, and E. told M. this was not an option at this time.
37On December 21, 2018, workers arrived at the foster home to transport M. for her access visit. E. shared that M. expressed not wanting to go home for three weeks and that M. was nervous. M. said that she did not want to go because she did not like the worker. She eventually got in the vehicle and went for her access visit.
38M. saw Courtney Parr for her first session on January 3, 2019.
39On January 5, 2019, workers attended to N.B.’s home to pick up M. N.B. indicated that M. did not want to leave but wanted to know the plan. M. did get into the vehicle eventually. N.B. reported that access went well.
40On January 6, 2019, a plan of care meeting occurred with the Sheltering Tree owner and worker, and N.B. and the foster parent were present by telephone.
41During the week of January 15, 2019, M. was refusing to contact her mother and did not want to speak on the phone.
42On February 1, 2019, Kina workers arrived at the foster home to facilitate the access visit. M. did not want to leave her foster home as she stated that she would miss her foster parents too much. However, she ultimately agreed to go for the access visit.
43M. attended for a counseling session with Courtney Parr on February 4, 2019.
44On February 4, 2019, Kina workers arrived at N.B.’s residence and M. refused to look at or speak to the worker. M. indicated to N.B. that she was not going to leave, but ultimately got into the car with prompting from her mother.
45A report from Courtney Parr dated February 21, 2019 stated that M. has regressed from her earlier therapy sessions which had showed significant improvement in M. in a short time. The report stated in part that:
In my professional opinion, M. needs more frequent therapy sessions. At this time, M. is meeting with Courtney only once a month. This is not a significant amount of sessions to make progress on M.’s extensive trauma history. M.’s sessions should be once a week or once every two weeks.
46A psycho-educational assessment of M. has been arranged with Robyn Kaufman who practices in Sudbury. One appointment occurred on March 3, 2018 during the home visit with N.B.
47M. attended for counselling with Courtney Parr on March 4, 2019.
48N.B. has checked into the Triple P Parenting program offered in Sudbury and intends to register for that program.
49Dr. Baron, pediatrician, is willing to see M. upon her return to Sudbury and will assist with getting the psycho-educational assessment done if necessary. Dr. Baron has also expressed that she will work with N.B. to obtain assistance at the […] School which has excellent programs for children with behaviour issues.
ANALYSIS
50Section 94(2) of the Child, Youth and Family Services Act governs the temporary care and custody of a child during adjournment. The section states as follows:
94(2) 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.
51The legal test that the court must apply is set out in section 94(4) and (5) of the Child, Youth and Family Services Act which states:
(4) 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).
(5) 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.
52According to section 94(10), the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
53Further, in s. 94(11):
Before making an order under subsection (2), the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.
54At a temporary care and custody hearing, the onus is on the society. In Children's Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.), Blishen J. stated:
6 Under s. 51(3) of the Child and Family Services Act, the onus is on the Children's Aid Society to satisfy the court 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 adequately protected by an order returning the child to parental care with or without an interim supervision order.
7 Prior to the March 31, 2000 amendments to the Child and Family Services Act, the test under s. 51(3) was different. The Society had to satisfy the court that there were reasonable and probable grounds to believe that there was a substantial risk to the child's health or safety and that the child could not be adequately protected by an interim supervision order. The new subsection changes this standard. The modifier "substantial" has been removed in considering the issue of risk. However, "risk" is grammatically linked to "likely". In my view, the word "likely" suggests at least more probable than not. The Concise Oxford Dictionary (10th edition), 1999 defines likely as "such as well might happen or be true". Therefore, the harm must be more than possible. It must be more probable than not.
8 The term "risk" is now left unmodified. The Concise Oxford Dictionary includes as a definition of risk "the possibility that something unpleasant might happen". Black's Law Dictionary (7th edition), 1999 defines risk as "the chance of injury, damage, or loss". Thus, a risk of undefined proportions involves a chance or a possibility. However, in my view, this chance or possibility must be real and not just speculative.
9 At a care and custody hearing, the risk of likely harm does not have to be proven on the balance of probabilities and the court can admit evidence that is considered "credible and trustworthy" [s. 51(7)].
10 Therefore, the test in my view is as follows. The Children's Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he will suffer harm. Further, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.
55In other words, this is a two-part test that the society has to meet. The first part of the two-part test only has to be met against one of two parents who had charge of the child. Either will do. It is a low threshold. See: Children’s Aid Society of Algoma v. S.M.M., 2014 ONCJ 12; Jewish Family and Child Services v. H.B.S., [2012] O.J. No. 5055 (C.J.)
56A court must choose the order that is the least disruptive placement consistent with adequate protection of the child. See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
57The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.
58In assessing risk, the court should consider any history of violent conduct of the parents, including evidence of potential exposure of the children to violence. See: Children's Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ); Children's Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ).
59The onus is by its nature not a difficult onus for the agency to meet since the standard of proof is made low by the very wording of the Act: “reasonable” grounds, a “risk”, “likely” harm, and “adequate” protection for the child. This illustrates that the order sought is intended to be a temporary order while the matter moves through the courts and the focus is on protecting the child in that short term. See: Children’s Aid Society of Dufferin County v. A.T., 2011 ONCJ 52. 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. CCAS of Toronto v. M.L.R., 2011 ONCJ 652.
60N.B. readily admits that she has struggled with the behavioural challenges posed by M. for some time. The behaviours of M. have included:
(1) January 11, 2018, a call was received about a 7 or 8 year old hitchhiking alone;
(2) April 4, 2018, crisis intervention centre contacted Kina with information disclosed by N.B. that L. had sexually touched M. At this time, N.B. indicated that she was seeking help for herself and M.;
(3) April 19, 2018, […] School contacted Kina, due to the unusual behaviour of M.;
(4) May 9, 2018, a community member contacted Kina with concerns about M. walking to his home alone, and entering his home and barn without notice;
(5) July 14, 2018, M. and her sister L. were brought to the hospital. L. was discussing suicidal thoughts and M. had taken a knife and cut her own leg in a superficial manner. Both children were briefly admitted and M. was discharged to N.B.’s care;
(6) M. was brought to a place of safety on August 28, 2018 due to ongoing concerns of self-harming, aggression toward others and sexualized behaviour toward her younger siblings;
(7) N.B. has contacted the police and Kina at various times for assistance and respite care.
M. has been sexually abused by others in the past and suffers trauma as a result of that abuse.
61Unfortunately, the resources required for those special needs and challenges posed by M. were not available in Wikwemikong and her behaviour deteriorated. N.B. did access services in Sudbury for M., but the transportation was challenging due to the behaviour issues. After M. was taken into care, N.B. moved her family to Sudbury. M. was returned to her mother’s care for a few days at the beginning of September 2018. Immediately, N.B. secured the services of Marcella Faucheau and Courtney Parr who were committed to providing trauma therapy services to M. However, M. was removed, again, from N.B. when a specialized foster home became available in London, Ontario. M. was then subsequently moved to Belleville, Ontario when a therapeutic foster home became available at the end of October. By the time that M. was removed from N.B., again, in early September, N.B. had already established significant services for M. Yet, M. was taken to a specialized foster home and no counselling services were provided to her. Subsequently, M. was moved to a therapeutic foster home in Belleville. Even with this move, M. has not had the benefit of counselling which she so desperately needs.
62In November, N.B. was able to secure housing in the form of a 4-bedroom home. N.B. has re-commenced the counselling sessions with Courtney Parr yet, from the letter submitted from Courtney Parr more recently, the monthly session during the access visit is not sufficient and she has seen a regression in M. since being taken into care.
63It has been suggested by everyone that M. needs counselling, yet her placement with the therapeutic home in Belleville prohibits that counselling from happening. During the oral hearing, counsel for Kina suggested that they were looking into getting M. to more appointments with Courtney Parr, however, there was absolutely no information as to when or if this would take place. It is the view of this court that keeping M. from seeing the therapist on a regular basis, such as weekly or biweekly, as suggested by Courtney Parr, is likely to cause M. more harm.
64M.’s behaviours have in the past resulted in emotional and physical risk for herself and others. Kina submits that more time is required to ensure return of the child to the family unit is successful and a plan that is beneficial to M. and the other children in the home requires more work. Kina submits that the psycho-educational assessment should be completed before a plan is developed. Quite frankly, it is the view of this court that many steps have already been taken by N.B. to develop a plan for M., including:
(1) N.B. moved her family to Sudbury, where more services are available to her and her family.
(2) N.B. has been able to secure a 4-bedroom home for her and her children to reside in.
(3) Despite trust issues with Kina, N.B. has shown a willingness to reach out to Kina in the past on numerous occasions to seek assistance.
(4) Counselling has been re-commenced with Courtney Parr, a trauma counsellor, who has worked with M. in the past and is willing to work with M. on a weekly basis.
(5) Dr. Baron, pediatrician, is willing to see M. and to assist in obtaining services, including a psycho-educational assessment, if necessary.
(6) M. may attend […] School where services are available for children with behavioural issues.
(7) N.B. is willing to participate in the Triple P Parenting program or other parenting program which is sensitive to her indigenous heritage.
(8) N.B. has been in contact with N’Swakamok Native Friendship Centre for support services which would be available for M. and the other children in the family.
(9) N.B. has shown a growing rapport with M. as she has been able to calm her down and convince her that going back to her foster home is the right thing for her to do.
65The reality is that Kina knows about the many challenges that N.B. has faced with M. because N.B. has repeatedly involved Kina, the police, the crisis centre, and others on numerous occasions. N.B. may continue to experience challenges with M. in the future. However, she has shown a true commitment to working through these issues with M. in a responsible and meaningful way. N.B. has also shown a willingness in the past to participate in counselling for herself when needed.
66In these circumstances, it is the view of this court that there are no reasonable grounds to believe that there is a risk that M. is likely to suffer harm if she is returned to her mother’s care. The risk must be real and not just speculative. M. is being harmed by being taken into care without proper counselling services in place for over 6 months. The fact that a psycho-educational assessment is only now being conducted on this child, having commenced only a few days ago, is unacceptable in these circumstances. Given all of the steps that N.B. has taken, it is the view of this court that there are no reasonable grounds to believe that there is a risk that M. is likely to suffer harm. Further, this court must choose the order that is the least disruptive placement consistent with adequate protection of the child. It is the view of this court that M. can be adequately protected by terms and conditions of an interim supervision order that ensures that M. gets the therapy and other assistance that she needs. It is essential that N.B. and Kina put their differences aside and work together to ensure that M.’s best interests are the primary focus.
This court orders as follows:
(1) That M. be returned to the care and custody of her mother, N.B., immediately, subject to the supervision of Kina Gbezhgomi pending the determination of the issue of whether M. is a child in need of protection.
(2) N.B. and J.A. shall allow Kina to have announced and unannounced visits to their homes.
(3) N.B. and J.A. shall allow Kina to have private access to M.
(4) N.B. and J.A. shall advise Kina seven days in advance of any change in address or telephone number.
(5) N.B. and J.A. shall notify Kina of who is presently living in their homes and will notify Kina if anyone should move into their homes who was not residing there at the time this Order was made.
(6) N.B. and J.A. shall maintain their homes as a safe, clean and appropriate environment.
(7) N.B. and J.A. shall comply with any reasonable requests made of them by Kina that pertains to the best interests of the child, M.
(8) N.B. and J.A. shall not use any physical discipline with respect to the child, M.
(9) N.B. and J.A. shall sign any necessary consents to confirm their compliance with the terms of this Order and in order to allow Kina to have contact with other service providers involved with the family, including but not limited to individual counselling, parenting programs and programs that can assist the family in dealing with the ongoing trauma that has affected the family unit.
(10) N.B. will continue to access trauma counselling for M. through Courtney Parr at Health Sciences North in Sudbury, as directed by Courtney Parr.
(11) N.B. will schedule an appointment for M. with Dr. Baron, pediatrician, and will follow any directions given to her by Dr. Baron as to the needs of M.
(12) N.B. will enroll M. in school at […] School, or other suitable alternative, where services are available for children with behavioural issues.
(13) N.B. will enrol in and participate in the Triple P Parenting program or other equivalent parenting program which is sensitive to her cultural identity.
(14) N.B. will follow up with the N’Swakamok Native Friendship Centre for support services which would be available for M. and her family.
(15) Kina will make all reasonable efforts to have Robyn Kaufman complete the psycho-educational assessment with M. in a timely fashion. If this assessment cannot be completed by Robyn Kaufman, N.B. will work with Dr. Baron to ensure that a psycho-educational assessment is completed in a timely fashion.
(16) N.B. and Kina workers will continue to co-operate and communicate with each other in a professional manner, with respect for each other.
67This court is willing to consider adding, removing or amending these conditions upon hearing submissions from the parties.
68This matter is adjourned to be spoken to on March 21, 2019 in Wikwemikong at 10:00 a.m. to decide next steps.
Released: March 7, 2019
Signed: Justice V. Christie