Children’s Aid Society of Brant v. S.M., 2021 ONCJ 566

Warning

The court hearing this matter directs that the following notice should 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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: November 8, 2021 COURT FILE No.: Brantford C410/07 ext. 008

BETWEEN:

The Children’s Aid Society of Brant o/a Brant Family and Children’s Services Applicant

— AND —

S.M., E.J., B.S., J.W., B.H., T.M., Six Nations Child and Family Services Department Respondents

Before: Justice A.D. Hilliard

Heard on: August 11, 2021 Reasons for Judgment released on: November 8, 2021

Counsel: E. Capitano....................................................................... counsel for the applicant society D. Miller............................................................................. counsel for the respondent S.M. E. Carroll........................................................................... counsel for the respondent E.J. R. Sager............................................................................ counsel for the respondent B.H. T.M................................................................................................................. on her own behalf No appearance by or on behalf of B.S., J.W., having previously been noted in default. B. Maracle .................................. band representative for the respondent Six Nations V. Mendes da Costa.......................... counsel for the Office of the Children’s Lawyer, legal representative for the children

Hilliard J.:

Overview

[1] There are three (3) remaining subject children in this status review application: S.J.M. (3), L.J. (5), and A.M. (6). The Respondent, S.M., is the biological mother of all three (3) children. The Respondent, E.J., is the biological father of S.J.M. and L.J. The Respondent, J.W., is the biological father of A.M. The Respondent, B.H., is the maternal great-grandmother of all the children. This judgment relates only to S.J.M. and L.J.

[2] All three children have been identified as First Nations children under section 90(2) of the Child, Youth and Family Services Act (CYSFA). The Respondent mother identifies as a member of the Six Nations of the Grand River Haudenosaunee Confederation.

[3] E.J. identifies as Black. The children therefore have mixed ethnic and cultural heritage.

[4] E.J. brought a motion for summary judgment within this status review proceeding regarding his two (2) children, S.J.M. and L.J., seeking an order that the children be placed in his primary care and custody on a final basis. E.J.’s request is supported by the Society and the Band. The Respondent B.H. takes no position with respect to S.J.M and L.J. The Respondent mother, S.M., is seeking that E.J.’s motion for summary judgment be dismissed.

[5] E.J.’s motion also seeks an order that S.M. have reasonable access with the children in his sole discretion. The Society supports this request. The Band is seeking an expansion of S.M.’s access with the children, advocating for minimum times to be ordered. S.M. is opposed to the request that her access be in the discretion of E.J.

[6] S.M. is not opposing a finding that the children continue to be in need of protection. The issue on this motion for summary judgment is therefore disposition only.

[7] For the reasons that follow, the Respondent E.J.’s motion shall be granted in part.

Law

[8] The test on a motion for summary judgment in a child protection proceeding was clarified in Kawartha-Haliburton Children’s Aid Society v MW, 2019 ONCA 316 [1]:

• In exercising Hryniak’s fairness principles for summary judgment in child protection matters, the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
• The burden of proof is on the party moving for summary judgment, but if the respondent’s evidence does not establish a genuine issue for trial, the court must be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
• The court must conduct a careful screening of the evidence to eliminate inadmissible evidence.
• Judicial assistance must be provided for self-rep litigants; judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-Represented Litigants and Accused Person (2006) established by the Canadian Judicial Council.
• Special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[9] The provisions of An Act Respecting First Nations, Inuit and Métis children, youth and families also apply in this case, specifically s. 16(1) [2]:

16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (a) with one of the child's parents; (b) with another adult member of the child's family; (c) with an adult who belongs to the same Indigenous group, community or people as the child; (d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (e) with any other adult.

Placement with or near other children (2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child's family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.

Customs and traditions (2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.

Family unity (3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with (a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or (b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a).

[10] As this is a status review application, the test is what disposition order is in the best interests of the children, pursuant to section 114 of the Child, Youth and Family Services Act (CYSFA).

Placement

[11] S.J.M. is 3 and L.J. is 5. S.J.M. and L.J. have been continuously in the care of their father, E.J., since July 2019, after having been removed from the care of their mother, S.M. The children were removed from S.M.’s care due to allegations of abuse and neglect.

[12] Since S.J.M. and L.J. were placed in the care of E.J., the Society has not had any protection concerns regarding his care of the children. E.J. has provided a stable home for S.J.M. and L.J. and has facilitated sibling access between S.J.M. and L.J. and their siblings who are currently residing in other homes.

[13] There continues to be significant and ongoing conflict between E.J. and S.M., with each blaming the other as the source of the conflict. There is no dispute, however, that they would not be able to co-parent or jointly make decisions for the children.

[14] S.M. disputes the allegations of abuse and neglect of her children while they were in her care. She takes the position that S.J.M. and L.J. could be safely returned to her care under terms of supervision. E.J. and the Society argue that S.M. has taken no responsibility for her actions that resulted in her children being removed from her care and continues to be combative and confrontational with all of the parties involved in this proceeding.

[15] It is relevant to note that the two proposals being put forward are S.J.M. and L.J. being care for by one or the other of their parents. There is no request or suggestion that S.J.M. and L.J. should be placed in the care of the Society either on an interim or extended basis. I must then assess whether it is a foregone conclusion that S.J.M. and L.J. will be placed in the care of Mr. E.J. after a trial.

[16] The majority of S.J.M.’s life, she has been in the care of her father, E.J. L.J. has been in the care of his parents jointly, then his mother solely, and now his father. The placement of these children with E.J. has been the longest and most consistent placement they have had in their young lives. Given the length of time that S.J.M. and L.J. have been in the care their father, permanency and stability are important considerations in determining the appropriate disposition in this proceeding.

[17] I remind myself that special considerations apply to Indigenous children pursuant to both provincial and federal legislation. The CYSFA affirms that one of the purposes of the Act is to ensure that 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. The Act Respecting First Nations, Inuit and Métis children youth and families, also sets out the importance of cultural continuity for children involved in the child welfare system and legislates the prioritization of potential placements under section 16(1) as set out above.

[18] I must also consider the fact that S.J.M. and L.J. have Black heritage. Although the jurisprudence regarding the impact of systemic racism against Black people in Canada is arguably more fulsome in the criminal context [3], such considerations are also relevant to my analysis in these child protection proceedings. A research report entitled “One Vision One Voice: Changing the Ontario Child Welfare System to Better Serve African Canadians” sets out the overrepresentation of African Canadians in the child welfare system. The Executive Summary for this report notes that “the United Nation Committee on the Rights of the Child raised concerns about the significant overrepresentation of Indigenous and African Canadian children and youth in Canada’s child welfare system” in both the 2012 and 2016 reports. [4]

[19] The best interests test set out at s. 74(3) of the CYSFA specifically directs courts to consider a child’s race, colour, and ethnic origin. Any decision regarding disposition must account for S.J.M. and L.J. having an equal opportunity to learn about and be exposed to their Black culture and heritage as well as their Indigenous culture and traditions.

[20] Ms. S.M. argues that Mr. E.J. will not promote or allow the children to be exposed to their Indigenous culture. However, Mr. E.J.’s evidence is to the contrary. He argues that he supports S.J.M. and L.J. attending cultural events and being exposed to their Indigenous community and heritage. Mr. E.J. is open to having a term in the final order that S.J.M. and L.J. specifically be permitted to attend traditional ceremonies and cultural events with Ms. S.M., who will also be able to expose the children to their Indigenous culture during her access times.

[21] In contrast, Ms. S.M. does not even acknowledge the children’s Black heritage. She has provided no evidence that she supports S.J.M. and L.J. being exposed to and embracing their mixed ethnic identity as children of both Indigenous and Black heritage. In determining what placement is in the best interests of the children, a relevant consideration is whether the respective parents will promote and encourage the children to learn about and be exposed to both sides of their ethnic and cultural heritage.

[22] Mr. E.J. and the Society argue that disposition in favour of the father being granted custody of S.J.M. and L.J. is a foregone conclusion because there is ample evidence that Ms. S.M. has not addressed the protection concerns that resulted in the children being removed from her care in 2019.

[23] Ms. S.M. argues that having completed all of the programs and services the Society requested her to engage in, there is no evidence that the children cannot now be safely returned to her care. Ms. S.M.’s completion of programs and engagement with counselling is not in dispute. The Society and Mr. E.J. concede that Ms. S.M. has engaged in and completed all of the services the Society has requested. The issue in dispute is whether those services have resulted in Ms. S.M. gaining sufficient insight into her own behaviour to mitigate the protection concerns enough to allow for the children to be returned to her case.

[24] Despite accessing community services and supports, Ms. S.M. does not appear to have gained any insight or skills to alleviate the protection concerns. Ms. S.M. continues to take little or no responsibility for her actions that led to the children being removed from her care. She continues to be combative with Society workers, and she continues to engage in conflict with the other caregivers with whom her children are primarily residing. It is this failure to acknowledge or accept responsibility that Mr. E.J. and the Society rely on to support their argument that the protection concerns have not been mitigated.

[25] I agree with the position of Mr. E.J. and the Society that the evidence does not support a conclusion that Ms. S.M. has demonstrated that the protection concerns have been addressed. Ms. S.M. deposes that the parenting programs she has completed have given her new perspectives, specifically the importance of positive reinforcement and praise. However, I note that her acceptance of responsibility is limited and qualified, stating “I accept responsibility in the way the children have resorted to defensive tactics against me and aligned themselves together.” Ms. S.M.’s evidence is that the children have “aligned themselves” against her because when she should have responded with “compassion” she instead responded with “conviction”.

[26] What is notable about Ms. S.M.’s evidence is that it consists mainly of denials of wrongdoing, accusations that others are to blame, and complaints that the Society has failed to provide her adequate resources and supports. She relies on these denials and accusations as the basis for her position that there is a genuine issue for trial.

[27] Ms. S.M. argues that her evidence is not bald denials but is rather full of detailed explanations as to how and why the allegations against her are false. Her evidence certainly is full of detailed explanations, but in the details is where the minimization is found.

[28] Nowhere in Ms. S.M.’s evidence does she acknowledge that there are protection concerns in relation to her care of the children, other than yelling inappropriately at the children. Ms. S.M. states the she has made strides to better herself and change her thought process and behaviour. However, she does not provide specific examples of how she has implemented the tools and strategies she says she has gained from participating in workshops and groups. While stating she can admit to her wrongdoings, she minimizes what those were. She then blames the Society for not recognizing the gains and efforts she has made over the past two years since the children were removed from her care. Although she can give detailed explanations of past events, recounting why she is not to blame or how the allegations against her are false, Ms. S.M. did not provide a single example of how she has put into practice the new insight she claims to have gained through participation in services and counselling.

[29] In a decision released earlier this year on a motion for summary judgment involving three of Ms. S.M.’s other children, I made findings in relation to allegations of abuse and neglect suffered by the children while in their mother’s care. [5] Ms. S.M. now urges me to reconsider my findings in that regard based on what she says is new evidence as to some of the children participating in an elaborate deception.

[30] There is no merit or evidentiary basis to Ms. S.M.’s argument. There was evidence before me on the previous proceeding that some of the children had talked to one another about the disclosures of physical abuse and neglect. That evidence is not new. Ms. S.M. had previously taken the position that the children’s stories were concocted and without merit. Her evidence that one of the children disclosed to her and other individuals that K.M. had “a plan” to keep her from getting S.J.M. and L.J. back is not evidence that the disclosures made by K.M., M.B. and J.B. were not accurate. There is no basis for me to reconsider my previous findings that there is credible and reliable evidence that the children suffered physical harm while in Ms. S.M.’s care.

[31] Ms. S.M. argues that there has not been a reoccurrence of or any further allegations of abuse or neglect of any of the children since 2019. The issue with Ms. S.M.’s position in this regard is that she has not been in a primary caregiving role to any of her children since 2019. Her access with the children has been limited to day visits only.

[32] Ms. S.M. blames Mr. E.J., Ms. B.H., the family services workers, and other family members for the conflict between them, while accepting minimal personal responsibility herself. She argues that the Society’s delegation of its authority to the children’s respective caregiver to negotiate and arrange access for Ms. S.M. has been one of the greatest sources of conflict.

[33] Again, however, Ms. S.M. does not present a plan to address or alleviate the conflict between her and Mr. E.J. or Ms. B.H. The source of the conflict is not a genuine issue for trial. There is no dispute that conflict exists. The conflict is what forms the basis for the concession that protection findings should be made under 74(2)(h) that the children are at risk of emotional harm.

[34] Ms. S.M. states that the Society has failed to meet its statutory obligation to provide services and supports while at the same time claiming that she can provide adequately for the children were they to be placed in her care now despite an apparent lack of services or supports. This is another genuine issue for trial according to Ms. S.M. She argues that the Society has taken sides with the children’s current caregivers and have thereby failed to discharge their duty to work with Ms. S.M. to attempt to remediate the concerns and come up with a plan to reintegrate the children back into her care.

[35] The difficulty with this argument is that there is a significant amount of evidence that Ms. S.M. is combative and argumentative with the family service workers. She has, at times, refused to provide her consent to allow the family service worker to obtain information from services providers. Ms. S.M. has insisted that minutes be taken at every meeting she has with Society workers, despite always having a support person present with her at those meetings. The evidence is overwhelming that Ms. S.M. has been unable or unwilling to work cooperatively with the Society on a consistent basis throughout the course of this status review proceeding.

[36] Given the relationship that Ms. S.M. has had with Society workers, there is nothing more that Society workers could or should have done to discharge their obligation. I would also note that Ms. S.M. does not at any point say what additional services the Society should or could have provided her to meet their obligation. The Society allegedly failing to discharge its obligation to Ms. S.M. does not raise a genuine issue for trial.

[37] Another matter that Ms. S.M. argues is a genuine issue for trial is the allegations she has made regarding Mr. E.J.’s abusive behaviour towards her and the children. She claims that her concerns have been summarily dismissed by the Society, because they are biased against her. The allegations that Ms. S.M. makes against Mr. E.J. regarding physical violence and verbal aggression during access exchanges are concerning, but do not raise a genuine issue for trial regarding disposition. Ms. S.M. has already conceded that a joint decision-making regime is not possible. The other allegations raised by Ms. S.M. about Mr. E.J. do not specifically involve his care of the children, S.J.M. or L.J. She argues that he has failed to complete services that he should, but does not give evidence as to how this failure has negatively impacted the children in his care. The conduct of both Mr. E.J. and Ms. S.M. at access exchanges is certainly a valid consideration when determining what access regime should be put in place, but it does not raise a genuine issue for trial on disposition.

[38] I am therefore satisfied that there is no genuine issue for trial as regards the children’s placement as I find that it is a foregone conclusion that S.J.M. and L.J. will be in the primary care of Mr. E.J. I also find that there is no genuine issue for trial as to whether that placement will be by way of a supervision order as opposed to a deemed custody order, as no party, including Ms. S.M., is suggesting that a supervision order is the more appropriate disposition in the circumstances.

Access

[39] There is a genuine issue for trial regarding Ms. S.M.’s access with the children.

[40] Ms. S.M. has been having unsupervised access with S.J.M. and L.J. since January 2021. There have been no concerns reported regarding Ms. S.M.’s access with the children.

[41] Mr. E.J. and the Society conceded during argument on the motion that they would be content with a schedule being implemented to increase Ms. S.M.’s access to alternate weekends on a gradual basis. This concession in and of itself is a significant indicator that there is a genuine issue for trial regarding Ms. S.M.’s access with S.J.M. and L.J.

[42] The level of conflict that still exists between Ms. S.M. and Mr. E.J. is a significant factor in determining whether access should be left in Mr. E.J.’s discretion.

[43] I am not satisfied that there is sufficient evidence before me on this motion to determine what access order should be made on a summary basis.

Conclusion

[44] A final order will issue placing the children, S.J.M. and L.J. in the care of their father, Mr. E.J., pursuant to s. 102 of the CYSFA.

[45] The issue of the Respondent mother, S.M.’s access with the children, S.J.M. and L.J. shall be set for trial.

[46] Order to go: (1) The Respondent father, E.J., shall have custody of the children, S.J.M. and L.J., pursuant to s. 102 of the CYSFA. (2) The issue of the Respondent mother, S.M.’s access with the children is adjourned to the trial management conference scheduled for February 14, 2022.

Released: November 8, 2021 Signed: Justice A.D. Hilliard

Footnotes

[1] Kawartha-Haliburton Children’s Aid Society v MW, 2019 ONCA 316, [2019] OJ No 2029. [2] SC 2019, c 24, s 16. [3] See R. v. Morris, 2021 ONCA 680, wherein the Court canvasses much of the previous jurisprudence recognizing the existence and impact of systemic anti-Black racism. [4] Toronto: Ontario Association of Children’s Aid Society, 2016, Practice Framework Part 1: Research Report [5] Children’s Aid Society of Brant v. S.M., 2021 ONCJ 27, at paras 18 – 20.