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

Date: January 18, 2021 Court File No.: Brantford C 410/07 ext. 008; C 410/07 ext. 009

BETWEEN:

C410/07-008 : Brant Family and Children’s Services o/a The Children’s Aid Society of Brant Applicant

— AND —

S.M., E.J., B.S., J.W. B.H., T.M., Child and Family Services Department Six Nations & The Office of the Children’s Lawyer Respondents

And

C410/07-009 : Brant Family and Children’s Services o/a The Children’s Aid Society of Brant Applicant

— AND —

S.M., B.S., R.M., B.H., T.M., Child and Family Services Department Six Nations & The Office of the Children’s Lawyer Respondents

Before: Justice A.D. Hilliard

Heard on: December 16, 2020 AMENDED Reasons for Judgment released on: January 18, 2021

Counsel: E. Capitano...................................................................... counsel for the applicant Society T. Hammond-Grant........................................................ counsel for the respondent S.M. C. Zeran............................................................................. counsel for the respondent E.J. M. Elchami............................................. counsel for the respondent band, Six Nations R.M................................................................................................................. on his own behalf B.H. ............................................................................................................... on her own behalf T.M. ............................................................................................................... on her own behalf V. Mendes daCosta........................... counsel for the Office of the Children’s Lawyer, legal representative for the children

Hilliard J.:

Overview:

[1] This is a motion for summary judgment brought by the Applicant Society seeking findings and disposition regarding three children: K.M., born […], 2005 (15), and twins M.B. and J.B., born […], 2008 (12). The Society seeks an order that all three children are in need of protection and all three children be placed in the extended care of the Society.

[2] The children’s mother is the only Respondent opposing the Society’s request. The Respondent mother’s position is that all parties should enter into a customary care agreement that would maintain K.M., M.B. and J.B. in their current placements. All other parties are either supporting the Society’s motion or taking no position.

[3] For the reasons that follow, I find that the motion for summary judgment should be granted.

K.M.:

[4] On August 25, 2016, a without prejudice Order was made on consent, placing K.M. in the care of his great-grandmother, B.H.

[5] On January 30, 2017, K.M. was found to be in need of protection and placed in the care of B.H. for a period of six months, subject to the supervision of the Society.

[6] On October 18, 2017, an order was made placing K.M. in the care of the Respondent mother and the Respondent E.J. for a period of six months, subject to terms of supervision. That order included findings that K.M. continued to be in need of protection.

[7] On March 6, 2019, a status review proceeding was resolved on consent by way of an order finding that K.M. continued to be in need of protection and placing him in the care of the Respondent mother for five months, subject to terms of supervision.

[8] Prior to the termination of the five-month term of supervision, on July 2, 2019, K.M. was removed from the Respondent mother’s care and taken to a place of safety. Another status review was commenced by the Society, which is the proceeding currently before the Court. On July 5, 2019, a temporary order was made placing K.M. in the care of the Society. K.M. has been in care ever since.

M.B. and J.B.:

[9] On August 25, 2016, a without prejudice order was made placing both girls in the care of B.H.

[10] Findings that M.B. and J.B. were children in need of protection were made on consent on January 30, 2017 and they were placed in the care of their great-grandmother B.H. for a period of six months subject to the supervision of the Society.

[11] On October 18, 2017, M.B. and J.B. were placed in the joint custody of the Respondent mother and B.H., with the girls having a right of access to their siblings. The deemed custody order terminated the child protection proceedings regarding M.B. and J.B.

[12] On July 2, 2019, M.B. and J.B. were taken to a place of safety. The Society commenced a new protection application, which is the proceeding currently before the Court. On July 5, 2019, a temporary order was made placing the girls in the care of the Society. M.B. and J.B. have been in care ever since.

Summary Judgment:

[13] The Court of Appeal in the Kawartha-Haliburton Children’s Aid Society v. MW decision once again reminded lower courts of the need to proceed with caution in motions for summary judgment in child protection proceedings. Benotto, J.A., writing for the Court, set out the proper approach to summary judgment in child protection proceedings at paragraph 80 of the Kawartha decision as follows:

1. Hyrniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
2. The burden of proof is on the party moving for summary judgment. Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
4. Judicial assistance must be provided for self-represented litigants. In particular, 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 Persons (2006) (online) established by the Canadian Judicial Council.
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children. [1]

[14] The Society must demonstrate that there is no genuine issue for trial, and that no outcome other than that sought by the Society is realistically possible. In this case, the Society must demonstrate that it is a foregone conclusion that the children will be found to be in need of protection and that there is no other viable plan for these three children other than to be placed in the extended care of the Society.

[15] I must also be mindful of these children’s Indigenous status as set out in Kawartha and now codified in An Act respecting First Nations, Inuit and Métis children, youth and families. [2] Section 16 of that Act specifically addresses the issue of placement of Indigenous children:

Placement of Indigenous Child

Priority

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).

Finding in need of protection:

[16] The Respondent mother does not dispute that these three children are in need of protection. Her position on the motion for summary judgment is premised on the fact that the children have suffered emotional and physical harm.

[17] There is ample evidence to support a conclusion that M.B. and J.B. are children in need of protection. K.M. has previously been found to be a child in need of protection and I find that those protection concerns remain unresolved.

[18] There is sufficient evidence for me to conclude that K.M. was physically assaulted, on at least one occasion, while in the care of his mother. Although the Respondent mother denies that she was the perpetrator of this assault, blaming instead the Respondent E.J., she does not deny that K.M. was hit with a canoe paddle.

[19] The Respondent mother does not dispute that M.B. and J.B. were sexually assaulted. The disclosures of sexual interference by their brother, K.M., are credible and K.M. has admitted that he engaged in inappropriate sexual touching with both M.B. and J.B.

[20] The disclosures made by the children regarding the abusive conduct of their mother are disturbing. K.M., M.B., and J.B. all allege that the Respondent mother was physically, mentally, and emotionally abusive. Some of the specific examples provided by the children are the Respondent mother waking them up in the middle of the night to clean the house, making belittling and cruel statements, and physical assaults on K.M. Although the Respondent mother denies all of the children’s allegations of physical and emotional abuse, it is notable that there is a striking consistency between the disclosures of all three children, and noting that K.M. has been residing in a separate home from M.B. and J.B. since their last removal from the care of the Respondent mother.

[21] M.B. has recently been expressing suicidal ideations and engaging in self-harming behaviour. These thoughts and behaviours resulted in M.B. being hospitalized for a period of time. The Respondent mother agrees that M.B. has experienced trauma and requires counselling. The Respondent mother is in fact highly critical of the Society for not obtaining counselling services for M.B. sooner.

[22] None of the three children wish to have access with the Respondent mother at this time. Despite all of the services the Respondent mother has engaged with and programs that she has completed over the years, she still lacks the ability to acknowledge any responsibility for the trauma her children have suffered.

Disposition:

[23] The Respondent mother’s position that the appropriate disposition with respect to these three children is for all parties to enter into a customary care agreement (CCA), which would respect their Indigenous rights and culture. She further argues that the Society has not met its statutory obligations to provide the services necessary to allow for a reconciliation with K.M., M.B. and J.B., and the request for extended Society care should not be granted as it is premature.

Customary Care Agreement vs Extended Society Care:

[24] By her own evidence, the Respondent mother has not been seeking a return of K.M., M.B. and J.B. to her care for over a year now. Nonetheless she is resisting the Society’s request that these three children be placed in the extended care of the Society. The argument that the appropriate resolution of the matter is for the parties to enter into a CCA does not raise a genuine issue for trial.

[25] There is no legislative authority that would allow me to order the parties into a CCA even if I determined that resolving the case in that manner would be in the children’s best interests. The coercive power of the court does not extend to the imposition of agreements on the parties. The obligation of a Society to pursue a plan for customary care is set out s. 80 of the CYSFA, setting the standard at “all reasonable efforts”. However, that section does not provide for an order to be made by a court placing the child(ren) into customary care. The only orders that can be made where a child is found to be in need of protection are set out in section 101 – supervision order; interim Society care; extended Society care.

[26] A CCA terminates an ongoing child protection proceeding, which termination I am reminded by my brother, Edward, J., requires approval by the Court. In Ogwadeni:deo v. P.E., Edward J. reviewed the factors relevant in determining whether a withdrawal of the protection application is appropriate, even if that withdrawal is to allow a CCA to be entered into, and noted that the Court must still be satisfied that the withdrawal of the protection application is in the child’s best interests. [3]

[27] In this case, there is no agreement that the protection application (re: M.B. and J.B.) or the status review application (re: K.M.) should be withdrawn in favour of a CCA. There is significant animosity between the Respondent mother and other Respondent parents and grandparents that is, in part, preventing an agreement being reached. The Respondent band is also not consenting to a CCA, but rather supporting the request of the Society for extended care.

[28] I have also considered whether a CCA would indeed be the more appropriate resolution in the event that an agreement could be reached, given that the subject children are Indigenous and special considerations therefore apply. The evidence is that the placement of the children would remain the same whether the disposition is a court order for extended Society care or a withdrawal in favour of a CCA. The children’s placement complies with the requirement that priority is to be given to a member of the child’s family and there is no evidence that the Society’s permanency plan for these children does not comply with the requirements of the Act in relation to their special status as Indigenous children.

Society’s obligation to provide services:

[29] The failure of a child protection agency to provide the appropriate services to children and families does not in and of itself raise a genuine issue for trial. In this case, I find that the Society has met its obligation to provide services for these three children.

[30] The COVID-19 global pandemic is a relevant consideration in determining the extent to which the Society met its mandate to provide services to the children. The maltreatment assessment that was expected to be conducted was delayed indefinitely as a result of McMaster Children’s Hospital suspending these types of services during the pandemic. Counselling services were also severely restricted due to physical distancing requirements.

[31] I have also considered the children’s stated resistance to engaging in counselling. Although M.B. has recently indicated her willingness and desire to participate in counselling, previously she had stated that she was not interested in speaking with a counsellor. K.M. has also been reluctant to participate in counselling.

[32] The legislative provisions of the CYSFA require child protection agencies to make services available. The mandate does not provide for a Society to force children to engage in counselling against their will.

[33] Although it may be that, had the children be more open and willing to engage in counselling, the path towards reconciliation with their mother may have been farther along at this point in time, there is no evidence that counselling would have, or will result in the children returning to live with their mother.

Request for extended Society care premature:

[34] Permanency and predictability are primary considerations in child protection proceedings. K.M., M.B., and J.B. have all been in the temporary care of the Society since July 5, 2019. Their removal from the care of the Respondent mother in 2019 was the second removal to a place of safety — the first being in 2016.

[35] The need for permanency for these children is heightened by the trauma that they have suffered. There is evidence, that I accept, that M.B. and J.B. have expressed concerns about being removed from the care of their great-grandmother B.H. That anxiety about a disruption in their placement can be alleviated by an order placing them in the extended care of the Society.

[36] I have also considered the views and preferences of the children in considering whether the relief sought by the Society is premature. I accept the submission of OCL counsel that the children wish to remain in their current placements, and at this time, do not wish to have any access with their mother. OCL counsel advises that the children’s views have been consistent throughout the proceedings, particularly as regards to their desire not to return to reside with their mother.

[37] There is no genuine issue for trial raised by the Respondent mother’s argument that an order for extended Society care is premature. She is not putting forward an alternate plan, nor has she provided any evidence that at any point in the foreseeable future she will be in a position to put forward a plan to care for any of these three children. The Respondent mother is not putting forward any alternate plan of care for these three children requiring a trial.

[38] Given all of the foregoing, I am satisfied the Society has demonstrated that the outcome in this matter is a foregone conclusion and there is no realistic possibility of any other outcome at trial other than that the children will be placed in the extended care of the Society.

Access – holder or recipient:

[39] Although the children at present are expressing a wish not to have access with their mother, there is no dispute that there should be some form of access ordered. There is also a request for an order for sibling access that is not disputed.

[40] What is in dispute is whether the Respondent mother should be designated an access holder or an access recipient. The Respondent mother is seeking an order that she be designated an access holder as well as an access recipient in relation to all three children.

[41] The designation of access holder or recipient is particularly important when it is anticipated that the subject child or children will be adopted. The designation of access holder provides specific rights under the CYSFA to commence openness proceedings once a Notice of Intention is served by the Society.

[42] K.M., M.B., and J.B. are all residing with extended family and there is no evidence before me that there is any plan by their respective caregivers to proceed with a formal adoption process. However, I recognize that there is always a possibility when children are ordered into the extended care of the Society that a caregiver could decide to proceed with a formal adoption.

[43] In determining how to designate a parent as an access holder or recipient, I must consider to whom the benefit of access is being conferred. In this case, it is everyone’s hope, one which I share, that at some point in the future all these three children can come to some form of reconciliation with their mother in order to have a meaningful and beneficial relationship with her.

[44] Given the trauma these children have suffered, I find that they must be firmly in the driver’s seat when it comes to access with their mother. The benefit of access in this case is being conferred on the children, not the Respondent mother.

[45] I am satisfied that the children should be access holders, and that it is in the children’s best interests that the Respondent mother be an access recipient.

Conclusion:

[46] There is no genuine issue for trial on either the protection findings or the disposition of this matter. K.M., M.B. and J.B. are all children in need of protection. The only disposition available to the Court is to place the children into the extended care of the Society.

[47] Therefore, a final order will issue as follows:

On the Status Review proceeding re K.M. :

1. K.M. continues to be in need of protection pursuant to ss. 74(2)(b)(i)(ii) and 74(2)(h).
2. K.M. shall be placed in the extended care of Brant Family and Children’s Services o/a The Children’s Aid Society of Brant.
3. Access by the Respondent mother to K.M. shall be at the discretion of Brant Family and Children’s Services o/a The Children’s Aid Society of Brant as to supervision, duration, location, time, and frequency, and in accordance with the wishes of K.M. K.M. shall be the access holder and the Respondent mother shall be the access recipient.
4. The Respondent, B.S., shall have no access to K.M.
5. The Respondent, T.M., shall have access to K.M. arranged in accordance with the child’s wishes.
6. K.M. shall have a right of access to all of his siblings. Each child shall be a holder and recipient of access.

On the Protection Application re M.B. and J.B. :

1. M.B. and J.B. are in need of protection pursuant to ss. 74(2)(b)(i)(ii) and 74(2)(h).
2. M.B. and J.B. shall be placed in the extended care of Brant Family and Children’s Services o/a The Children’s Aid Society of Brant.
3. Access by the Respondent mother to M.B. and J.B. shall be at the discretion of Brant Family and Children’s Services o/a The Children’s Aid Society of Brant as to supervision, duration, location, time, and frequency, and in accordance with the wishes of M.B. and J.B. M.B. and J.B. shall be the access holders and the Respondent mother shall be the access recipient.
4. The Respondent, T.M., shall have access to M.B. and J.B. arranged in accordance with the children’s wishes.
5. M.B. and J.B. shall have a right of access to all of their siblings [4] . Each child shall be a holder and recipient of access.

Released: January 18, 2021 Signed: Justice A.D. Hilliard

[1] Kawartha-Haliburton Children’s Aid Society v. MW, 2019 ONCA 316, [2019] O.J. No. 2029 (CA), at paragraph 80. [2] S.C. 2019, c. 24. [3] Ogwadeni:deo v. P.E., [2020] O.J. No. 1251 (CJ). [4] The reference to “siblings” in both orders was done for the purposes of brevity and privacy. The formal names of all the siblings and their dates of birth shall be entered into the final order as set out in the Society’s Statement of Fact and Law filed on this motion.