WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: 14-2273-5&6 DATE: 2019/06/14

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF S.L., born […], 2014 and L.L., born […], 2015

BETWEEN:

The Children’s Aid Society of Ottawa Applicant -and- E.L. (Mother) Respondent -and- I.O. (Father) Respondent -and- Y.D. (First Nation) Respondent

COUNSEL: Judith Hupé, for the Applicant Lisa Sharp, for the Respondent, Mother Cedric Nahum, for the Respondent, Father

HEARD: September 10-28, November 26 – 30, December 17 – 21, 2018, January 24 – 25, 2019, February 7, 2019

REASONS FOR JUDGMENT

C. MacLeod J.:

Introduction/Background

[1] These are my reasons for judgment in relation to two children, S.L., born […], 2014 and L.E.L, born […], 2015. For the purpose of preserving anonymity, I refer to the children and the parties by initials rather than names and I have generally avoided identifying witnesses by name. No disrespect is intended. The children are indigenous with mixed Inuit and First Nations heritage. Both children have been in care for most of their young lives but as I will describe, they have also had continual involvement with their birth parents, with each other, with their other siblings and family members. The facts are complicated. The circumstances are challenging and creative solutions are required if the best interests of these children are to be met.

[2] The matter comes before the court as a “status review” under s. 113 of the Child, Youth and Family Services Act, 2017 (“the Act”). The question is whether the children should now be placed in “Extended Society Care” pursuant to s. 101 (1) 3 of the Act. This is what used to be referred to as “Crown Wardship” under s. 57 (1) of the Child and Family Services Act, R.S.O. 1990, c.C.11. The alternative is to return the children to the parent from whom they were apprehended, in this case the mother.

[3] As it was under the previous legislation, the governing principle under the Act is the best interests of the children. Always a difficult choice when balancing the benefits and risks of removing children from the care of their parents, the situation is particularly acute when dealing with indigenous children. The damage inflicted on indigenous families by taking children into care is well documented particularly if this involves placement with a non-indigenous family. Removal of children from their families of origin must be contemplated only when the risk of harm in returning the children to the birth parents is clear.

[4] At the time of this status review the legislation also mandates concern for permanency, stability, and the risk of psychological harm if the children are now uprooted from situations of stability and safety. There is no perfect solution and, in any event, I have not been presented with other care options. No other family members or indigenous foster parents were proposed. The choice is therefore the stark one of “extended care” or returning the children. Further supervision orders are not a realistic option. Not only have the statutory time limits been exceeded but on the evidence before me the court can have little faith that orders would be followed.

[5] Under the current circumstances, on the available evidence, the children continue to be in need of protection. The children have been exposed to significant domestic violence and the parents continue to be in an unstable, volatile and evolving relationship. As just mentioned, they have also proven themselves to be unable or unwilling to be governed by court orders or to cooperate or be candid with the Society.

[6] At the same time, however, the parents have great strengths and great gifts which they can share with their children. Not the least of these is their deep attachment to indigenous culture and in the case of the mother, her fluency in Inuktitut. The birth parents are the links to their respective cultures and to other siblings and extended family. Permanency and stability are important, but the children should not be deprived of the benefits which would accrue to them by ongoing meaningful involvement with the birth parents.

[7] The Society recognizes this imperative. It’s proposed plan of care involves placing the children for adoption with a family that is already well known to the parents and while the adoptive parents are not themselves indigenous, their family unit contains other Inuit children who are related to these children. Liberal and generous access between the children and their birth parents is an aspirational if undefined part of the plan of care.

[8] The commitment of the adoptive family to supporting the indigenous heritage of their adoptive children is commendable and is not mere tokenism. The evidence shows real efforts to ensure the Inuit children in the family have access to country food, Inuit cultural events and contact with extended family including family in Iqaluit. But this by itself will be a pale substitute to being raised by an Inuit mother and does not address the dual Inuit and First Nations heritage of these children. Incorporating regular and meaningful time with the birth parents is therefore essential to permitting the children rich and authentic access to their traditional cultures.

[9] Access between the children and the birth parents is an important element of the proposed plan of care but legal rights and good intentions do not ensure that meaningful access will be a reality. There are practicalities which will require significant commitment on the part of all concerned if these rights of access are to be meaningful, rich and ongoing. There are financial and logistical challenges because the birth parents reside in Ottawa whereas the adoptive parents live outside the city.

[10] In addition, there are interpersonal challenges. Until these proceedings commenced there was a good working relationship and even a friendship between the birth mother and the adoptive family. Over the course of the events detailed during the trial, this relationship has come under strain. There has been some alienation between the adoptive parents and the birth parents as well as between the adoptive parents and members of the indigenous community. That alienation has not been improved by the need for this trial. The relationship between the proposed adoptive parents, the birth parents and the community is in need of attention and repair.

[11] Ordinarily at a status review the court has no jurisdiction to fine tune the proposed plan of care or to impose terms on a subsequent adoption. The effect of an extended care order is to transfer parental rights and obligations to the Society and subsequently to the adoptive parents subject only to access rights by the birth parents if the judgment awards such rights. The Society’s plan of care is simply a proposal and forms part of the evidentiary basis for the trial judge to determine what is in the best interests of the children. But a plan of care does not form part of a judgment and there is no guarantee it will unfold as presented. In this case, there are issues and concerns which justify more robust intervention and ongoing supervision by the court.

[12] There are a number of factors that are unique to these particular children. One of these factors is the prior relationship with the proposed adoptive family and the way in which that family is already involved with the birth mother’s extended family. Another is the network of siblings and half siblings with whom the children are bonded. Finally, of course there is the importance of ensuring the children can fully benefit from their indigenous heritage. The best interests of these children require that whatever disposition may be necessary with respect to parental rights, there should be significant ongoing and meaningful contact with the birth parents, extended families and indigenous community organizations.

[13] I have concluded that society extended care is in the best interests of the children under all of the circumstances. This judgment will permit the Society to proceed with the proposed adoption but it will be subject to rights of access by the birth parents to the children and by the children to their parents.

[14] In addition, I am making important recommendations, imposing a monitoring requirement and preserving the possibility of further court intervention. While this latter step is not specifically contemplated by the legislation, it is justified by the parens patriae jurisdiction of the court, as seen in Valoris pour enfants et adultes de Prescott-Russell c. SMN, SG, SG et VC, AM, 2018 ONCS 3351 (SCJ), by the statutory mandate to avoid the forced assimilation of indigenous children, by the Truth and Reconciliation Commission of Canada: Calls to Action and by the recently released recommendations of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

The Trial

[15] This trial started in September of 2018 but greatly exceeded the time that had been allotted. Consequently, it was necessary to schedule additional hearings during October, November, December, January and February. Needless to say, this delay in completing the trial complicated matters. The positions of the parties changed during the trial and the factual matrix continued to evolve. Scheduling complications arising from the delayed completion of the trial have in turn contributed to a delay in releasing this judgment.

[16] I do not propose to review the evidence of each witness in detail. My decision and the reasons are summarized in the introduction but I will elaborate briefly and refer to the evidentiary record as necessary to support my findings of fact.

[17] In the course of this trial I heard powerful and moving testimony from individuals connected with the indigenous community in Ottawa. I allowed that testimony without attempting to impose artificial categories of admissibility largely because it was important background and because it would have felt deeply disrespectful not to hear these stories.

[18] I heard firsthand from witnesses who had lived the experience of forced family relocation, and the legacies of residential schools. I heard anecdotal evidence of what it was like growing up native in a non-indigenous adoptive family. I heard about the resources and supports available to indigenous people living in Ottawa and I heard about the absence of supports for indigenous foster homes or to maintain families intact.

[19] Many of those witnesses voiced passionate and strong opinions on numerous subjects. Some of the witnesses spoke eloquently about what they saw as the failures of a Eurocentric justice system; a system imposed on a population disrupted, fragmented and destabilized by legacies of colonialism, racism and systemic attempts at assimilation and destruction of indigenous languages and cultures.

[20] While that evidence permitted the court to hear the voices of the community and provided important cultural context, there was no attempt by counsel to qualify witnesses as experts. The main purpose of this evidence was to underscore the deep harm done to indigenous children by taking them into care and severing their links with traditional communities. Strictly speaking it was not necessary to call this evidence because this recognition and the mandate to consider non-indigenous care as a last resort is now baked into the revised legislation. See the Preamble and ss. 1 (2) 6, 80 and 112 (3) of the Act amongst other provisions and see Kawartha-Haliburton Children’s Aid Society v. MW, 2019 ONCA 316 @ para29 (3).

[21] I also heard anecdotal evidence about the cycle of violence in families. I heard how children growing up exposed to domestic violence may see such behaviour as normal if not acceptable. I heard how difficult it can be for women in abusive relationships to separate from a violent and controlling spouse. This testimony was courageous and moving. Again, no expert evidence was called and again, the assumption that exposure to domestic violence is harmful to children is a premise of legislation. Protection from physical or mental violence or physical or mental abuse is a primary basis for overriding the principle that each child ordinarily has the right to be cared for by his or her parents. In such cases the right of the child to a secure, safe and stable family life may justify taking the children into the care of the state. See also United Nations Declaration on the Rights of the Child with which the Act is intended to be consistent.

[22] With regard to the fact finding exercise, the court heard evidence from each of the Society’s workers who had been assigned to this file and from other witnesses such as probation officers and a worker at Odawa Native Friendship Centre. The Society also called evidence from J.F. who is the proposed adoptive mother and who currently has care of S.L. and from the kin worker who has been involved with the F. family.

[23] Many of the witnesses called on behalf of E.L. were called to provide the voice and views of the community as referenced above but they also provided factual evidence about interactions with E.L. and I.O. and their observations of E.L. and her parenting skills. Several witnesses had worked with E.L. in different roles or had acted as counsellors. As alluded to in the introduction, and as I will discuss below, however, it was evident that when these witnesses were testifying, they generally believed that E.L. was a victim of domestic abuse at the hands of I.O., and that she was extracting herself from that relationship. They were supporting her monoparental plan as a member of the local Inuit community. All spoke positively about E.L.s parenting skills.

[24] A large part of the trial was occupied with the evidence of E.L. herself. She spoke about her background, her upbringing in Iqualuit, her other children and extended family, her work and educational background and about her relationship with I.O. She spoke about her Inuit heritage, the importance of the Ottawa Inuit Children’s Centre (OICC) and her history of mothering these children. Much of her evidence later in the trial was concerned with changes she had seen in I.O. and her hope that they could jointly parent in the future.

[25] I.O. also gave extensive evidence. He testified about his early life in a non-indigenous family in Orleans, his upbringing, his life history, the importance of his First Nations heritage and the hopes he had for his children. He also gave evidence about his relationship with E.L., and the events giving rise to the apprehensions. The court heard from one of his counsellors, from a witness who knows him through involvement with Odawa and from his adoptive father. The latter testified by a video link from Nova Scotia.

[26] I note that during the trial at various points at the request of one or other of the parents, smudging ceremonies took place. While smudging as such is not part of Inuit tradition, it is a tradition E.L. learned from I.O. and has adopted. I.O. took the time to explain the manner of conducting the ceremony and each of the parents explained its importance to them personally. The court is grateful for the sharing of knowledge.

Findings

[27] These are very young children and too young to have a voice in these proceedings. S.L. was born in […] of 2014 and L.E.L. almost exactly a year later. In the case of each child, the birth took place when the relationship between E.L. and I.O. was in tumult and in each case E.L. had originally planned to have the children adopted but later changed her mind. As I will describe, there has seldom been a time when the children were in the care of both parents at the same time and during the majority of their lives they have been in the care of the Society or under supervision.

[28] Most of the trial was focused on the history of intervention and the strengths and weaknesses of the parents along with the significance of maintaining the indigenous identity of the children. It is apparent that the parents of these children are remarkable people who have much to offer their children. Unfortunately, they have not been able to protect the children from exposure to domestic violence nor to provide them with stability.

[29] Despite the lengthy evidence, there is very little dispute concerning the basic facts of this case. There is no dispute about the antecedents of each of the parents, the circumstances of the birth of the children, the history of apprehension, prior court proceedings or the amount of time the children have each spent in care. Nor is there any real question that each parent individually is capable of providing basic parenting needs. In the case of E.L. it is quite apparent that she is a competent mother who can provide warm, loving and nurturing care to her children. I.O. may have different skills but there is no suggestion the children cannot be adequately supervised by him for reasonable periods of time. The Society concedes that with supports each parent individually is able to meet the children’s basic needs and to show the children love and affection.

[30] The sole reason for Society involvement, for apprehension and for the various findings that the children are in need of protection is the inability of the parents to shield the children from exposure to their own turbulent relationship and to significant incidents of domestic violence. Even the key instances of violence are not in dispute. It is clear that the children have been exposed to violent arguments. The number of times the Society has intervened, the attempts to place the children with one or other of the birth parents, and the number of times the children have been taken back into care is well documented. There is no dispute about the number of times the court has previously found one or other of the children to be in need of protection and the times when the children have been in and out of care.

[31] The violence was not all one sided. Both parents have convictions for assault against the other and for most of the trial they were each subject to conditions prohibiting them from being in contact with each other. One of the most unusual features of this case was the fact that I.O. was simultaneously involved in a criminal proceeding involving very significant allegations of assault, sexual assault and forcible confinement. E.L. was the complainant and the chief witness for the Crown. Though I.O. had pleaded “not guilty” in that proceeding and it remained ongoing at the end of this trial, in this proceeding, the evidence of both E.L. and I.O. confirmed that the events in question had occurred largely as described.

[32] By the end of this trial, the parents had conceded that they remained in a relationship and had been in regular contact throughout the criminal and family trial. This was in breach of the orders made in criminal court but also in breach of conditions that had been imposed in this court. It was their evidence however that they both believed the potential for violence in the relationship had abated and they hoped to be able to co-parent in some capacity. Though the original plans of care they had each filed were never formally amended, in effect they are now proposing a joint plan of care.

[33] The issue therefore is essentially one of risk assessment. The court has to balance the risks involved in granting an extended care order against the potential for harm in returning the children to E.L. or to E.L. and I.O. jointly. I will briefly sketch the history of each parent and of the relationship, the lives of the children and the history of involvement with the Society before turning to the concerns regarding the Society’s plan of care.

Mother’s History

[34] E.L. is the mother of these children. She is Inuk, born in Iqualuit, adopted by an uncle but lived close to her birth parents. She describes a horrific upbringing described in detail in a written statement she had prepared for her sentencing hearing before the Ontario Court of Justice and which she adopted as part of her evidence. In that statement and in her oral testimony, E.L. describes a childhood marked by poverty, alcoholism, violence and sexual abuse. She was sexually abused in her teens by various family members, dropped out of school and became involved with drugs. She has been diagnosed with PTSD, anxiety and borderline personality disorder. She has a deep fear of abandonment and has been subject to depression and jealousy. She recognizes she has addictive personality traits and has occasionally used drugs such as crack. E.L. has a criminal record for assault.

[35] E.L. is also articulate, intelligent, educated, and fluent in both Inuktitut and English. She is deeply respectful of Inuit teachings and culture and has also adopted some First Nations practices such as smudging referred to earlier.

[36] While in Iqualuit, E.L. had become involved with D.D., a man from Gatineau who was working there at the time. They came south together when E.L. was 18. That relationship lasted 13 years and produced two children. While the children live with their father in Gatineau, they are in regular contact with E.L. These older children are now aged 14 and 16 and are half siblings of the subject children. The children have spent time together and participate in events at the OICC with E.L.

[37] During the time E.L. lived with D.D. she was employed, completed high school and several courses at Algonquin College. E.L. worked for several years at Tungasuvvingat Inuit (TI) as an Intake and Assessment Counsellor and later worked at Inuit Tapiriit Kanatiami (ITK). It was while working at ITK that E.L. met J.F. (the proposed adoptive mother) who was a co-worker and confidante. During that time, at E.L.’s request, J.F. adopted E.L.’s niece. J.F. and R.F. already had two other Inuit boys in their care.

[38] As E.L. was ending her relationship with D.D. she became involved with I.O. As mentioned above, that relationship was a turbulent one which E.L. described as chaotic. In her statement and in earlier evidence, E.L. described it as a “familiar chaos” and she described her relationship with I.O. as like an addiction.

[39] E.L. has now had three children fathered by I.O. and she is pregnant with a fourth expected this July. The subject children, S.L. and L.E.L. are the two older children. The third child, I.L. is also in care at this point in time but is not the subject of this proceeding. I.L. is in the same foster home as L.E.L. but the Society proposes L.E.L. will be adopted by J.F. and R.F. and live with them and with S.L.

[40] In the period leading up to the trial, S.L. was in the temporary care of J.F. and R.F. As noted above, this family is not foreign to E.L. Until these proceedings began, E.L. regarded J.F. as a friend and the family is already very much involved with E.L.’s extended family. In addition to the niece that was adopted, older nieces of E.L. have also lived with the family from time to time.

Father’s History

[41] I.O. was born in Edmonton to a mother who placed him for adoption. His birth mother was from Yellowknife and is a member of the Y.D. First Nation. Although I.O. is a band member and receives benefit as such, until recently he had no contact with his nation or with his birth mother. This is due to the fact that I.O. was adopted by a white family and was raised in Orleans. He describes his family as loving and caring but also as a non-indigenous middle class military family with strong pro-Canadian views and values. He continues to have a close relationship with his adoptive parents despite his sadness about losing links to his native culture.

[42] I.O. suffers from Fetal Alcohol Syndrome. This causes him difficulty in processing information, in expressing himself clearly and in relating to other people. He described a difficult time in school exacerbated by incidents of racism. He did not complete high school and he left home on more than one occasion. During that time, he was a victim of sexual abuse. He has struggled with alcohol addiction but currently uses only marijuana. In his early teens he began to seek out information concerning First Nations traditions and became involved with Odawa Native Friendship Centre.

[43] I.O. spent many years in the United States studying indigenous culture, visiting festivals and learning Sioux and Lakota traditions. When he returned to Ottawa he became involved in sweat lodges and drumming. He has been adopted by an Algonquin clan mother and was deeply involved with activities at Victoria Island.

[44] I.O. also spent time in the Canadian Military but struggled with his ability to understand and follow directions and orders. He also had difficulty with alcohol. He apparently developed PTSD and is now in receipt of veteran’s benefits.

[45] In the past year he has connected with his birth mother and other family members in the North West Territories. Although unfamiliar with Y.D. First Nation culture at this time and not able to speak the traditional languages, he hopes to reconnect with his extended family in the future. He is a band member as his adoptive parents ensured he obtained his band card. His children are also eligible and he would like to ensure they are enrolled. Apparently, his band receives royalties from mining and he testified that the children would be eligible for certain funds when they turn 18 if they are enrolled.

[46] I.O. also had a previous long term relationship with an indigenous partner but separated in 2011. He has two children from that relationship who live with their mother in Ottawa. He testified that the separation took place while he was in the army and he made a number of bad decisions.

[47] Despite his learning difficulties, I.O. speaks clearly and articulately. He is proud of his First Nations heritage and wishes to continue to learn and to share with his children. During the trial I.O. demonstrated deep respect for his traditions and a willingness to teach and to share. He explained that in his culture it is the special duty of fathers to teach sons and for mothers to teach daughters. He is particularly concerned that L.E.L. understand First Nations traditions as well as Inuit traditions.

History of the Children in Care

[48] S.L.’s history in care is somewhat complicated. Measured simply by time in care, she has spent about 21 months of her life in the care of her mother and 38 months in the care of J.F. and R.F. This includes the time from October of 2017 until the present.

[49] As discussed above, S.L. was born in […] of 2014. At the time the parents were not together. E.L. had intended to put her up for adoption but changed her mind. As a result, the child was apprehended from the adoption agency and then returned to the mother under a supervision order. S.L. then lived with her mother for seven months.

[50] At that time, the relationship between E.L. and D.D., the father of her older children was still in flux and the Society believed E.L. would be living in Gatineau with D.D. There was no reason to believe that E.L. would be actively involved with I.O.

[51] I.O. was apparently jailed during some of this period but was released in early 2015 on a probation order. One of the terms of probation was to have no contact with E.L. but despite this the parents were seeing each other and coming into conflict. The Society began to have trouble contacting E.L. or obtaining her co-operation. They could not determine where E.L. was living or where S.L. was. It became apparent that E.L. was having a clandestine relationship with I.O. in breach of his probation order and contrary to what she had been telling the Society.

[52] In April of 2015, E.L. was apparently suffering from severe depression. She had ended her relationship with D.D. and was seeing I.O. but their relationship was turbulent. At that point, E.L. was having difficulty coping with the responsibilities of motherhood.

[53] It was at this point that E.L. voluntarily placed the child in the care of J.F. but she did not advise the Society. Shortly thereafter, the Society brought a protection application based upon exposure to domestic violence, the failure of the mother to co-operate with the Society and mental health issues. The child was then placed in the care of J.F. and R.F. on a supervision order. S.L. was then with the J.F. & R.F. family for approximately nine months. During that time, E.L. was pregnant with L.E.L.

[54] L.E.L. was born in […] of 2015. Again, it was E.L.’s plan to put him up for adoption and so he was apprehended from the hospital. During this time the relationship with I.O. continued to be chaotic and it was difficult for Society workers to tell whether the parents were together or not. The placement of S.L. with the F. family was not at that time intended to be permanent and was either a fostering relationship or a kin placement with a view to eventual reunification between S.L. and E.L.

[55] In November of 2015, the access was changed to permit E.L. and I.O. to exercise it together as at that time the mother and father were living together. During the fall there was some friction between J.F. and E.L. around the use of breast milk as well as disagreement over a medical care issues. J.F. is a Registered Nurse. In December of 2015, the F.’s indicated that they did not want to continue to look after S.L. as a temporary placement and asked the Society to consider other options.

[56] In January of 2016, the Society returned S.L. to both parents who appeared to be living together in a stable relationship. A six month supervision order was made which provided that the child was not to be exposed to domestic violence. This did not last long.

[57] S.L. was apprehended on March 7, 2016 and returned to the care of the F. family where she remained until December of that year. She was then placed in the care of E.L. and in January of 2017 was put in the care of E.L. under a supervision order. The terms of that order included a prohibition on E.L. associating with I.O. I.O. agreed to participate in counselling and his access was to be at the discretion of the Society. It should be noted that L.E.L. was also to be returned to the mother’s care at that time but almost immediately E.L. advised the society that she could not care for both children.

[58] S.L. continued in the care of the mother until October of 2017 when S.L. was brought to a place of safety by the Society following a determination that E.L. had repeatedly breached the no contact order and had been in a relationship with I.O. since at least August without disclosing it to the Society. S.L. has remained in the care of the F. family since that time.

[59] Although E.L. changed her mind about the adoption of L.E.L., he was in care from birth until January of 2017 when he was returned to the mother along with S.L. As noted earlier, E.L. felt she could not cope with L.E.L. and she returned him to care intending once again that he would be adopted. In June of 2017, L.E.L. was placed in the care of his father under a supervision order but he was taken back into care in October of 2017 and has been in foster care since that time.

[60] In […] of 2018, E.L. gave birth to another child, I.L. I.L. is not the subject of this proceeding but she is the full sister of S.L. and L.E.L. She was in the care of the mother from her birth until she was apprehended in December of 2018. She is currently in the same foster home as L.E.L. The apprehension of I.L. was because the Society discovered that E.L. and I.O. were actively continuing in a relationship although denying that to the Society and in breach of court orders.

Non-Compliance with Court Orders and Failure to Co-operate with the Society

[61] As noted earlier, it is clear that both of the birth parents care for their children and wish to parent them. In addition to the times that S.L. has spent in her mother’s care, the Society has at one time placed L.E.L. in the care of I.O. and more recently permitted E.L. to take the baby, I.L. to Iqaluit for several weeks even though the baby was in temporary care at the time.

[62] The sole reason for Society intervention has been the turbulent relationship between the parents, the exposure of the children to domestic violence and the inability of the parents to comply with the terms of court orders. This has resulted in both children being in care for most of their lives.

[63] Although by the end of the trial, the parents were presenting congruent proposals in which they both express a desire to heal their relationship, to jointly parent and in which they hope they may form a stable family unit with the children, this was not the situation when the trial began. The parents and these children have never lived together as a stable family unit for any length of time. When the parents were together with the children there were episodes of violence.

[64] E.L. has been convicted of assaulting I.O. and another woman. There have been previous episodes when I.O. has assaulted E.L. and as discussed earlier, he was on trial for significant and sustained assaults on E.L. at the same time that this trial was underway.

[65] There is no doubt the children were exposed to violent arguments when in the care of their parents. Besides exposing the children to physical and verbal conflict between the two parents, neither I.O. nor E.L. have shown themselves to be either honest with the court or governable by court orders. The parents concealed their ongoing relationship from the Society and breached court orders in order to be together. They have actively failed to provide information or to co-operate and E.L. has excluded anyone who disagrees with her from her circles of care. During most of the trial they were in violation of probation orders and bail orders and it was only towards the end of the trial that they had their conditions amended. The court can have no confidence that the terms of a supervision order would be respected even if such an order remains a legal option.

[66] I have no doubt that the children remain in need of protection. The parents appear to be making progress towards a more tranquil relationship. During the trial they expressed great insight gained through participation in various programs, including programs based on indigenous values as well as mainstream programs available in the community. Nevertheless, at this point in time, they cannot demonstrate that the risk of exposure to violence has subsided.

[67] It would be grossly unfair to the children to experiment with them by returning them to the parents in the optimistic hope that this time, the cycle of violence between the parties has been vanquished. And it would be taking an unreasonable risk with the children to attempt to craft a court order in the hope that in future the parties will comply with all applicable court orders and co-operate with the Society. I would like to believe this will be the case but the evidence does not persuade me I can rely upon it with any degree of confidence.

The Role of the Community and Contact with Traditional Culture

[68] Canadian law in general and the new Ontario child welfare legislation in particular recognizes the rights of indigenous peoples. The law now recognizes the plight of indigenous families caught up in the child welfare system. The court is conscious that great harm has been done to indigenous families by what are now understood as illegitimate efforts at forced assimilation. Phenomena such as residential schools and the “60s scoop” are now well known but many of the witnesses who testified at the trial had lived through similar experiences.

[69] At the same time, the paramount consideration under the legislation remains the best interests of the children. Preservation of links to indigenous language, culture and spiritual practices are an important component of best interests but so too is protection from violence. The law would be rightly criticized if it mandated that indigenous children should be required to tolerate greater levels of violence than non-indigenous children. An important question then is whether there are any other alternatives whereby the children can be placed in a safe environment which breaks the cycle of violence but which also preserves their heritage. The availability of alternatives within the community must be considered.

[70] The City of Ottawa is established on the traditional territories of the Algonquin people but there is also a significant population of indigenous residents of Ottawa and Gatineau descended from many First Nations outside of the region. Significantly, Ottawa is home to the largest Inuit community outside of Inuit Nunungat. This is the term for the traditional Inuit homeland in the north of Canada including Inuvialuit (NWT), Nunavut, Nunavuk (Que.) and Nunatsiavut (Labrador). Many of these individuals live in poverty and intervention by child welfare authorities is disproportionately high.

[71] There are established cultural and community organizations providing services to the indigenous communities. The work done by these organizations is extraordinary and the individuals they serve have a strong sense of community but there is no indigenous entity in Ottawa that is funded to provide care for children who cannot remain with their parents. That role falls to the Society.

[72] While the Society has a mandate to intervene only to the extent that it is necessary, when children must be removed from the home to a place of safety, the Society’s ability to consider indigenous placements is very limited.

[73] One of the reasons there are not community options is a lack of funding. Currently, although foster placements receive funding, “kin” placements do not. For various reasons, few indigenous families are prepared to engage with the Society in order to be approved as foster parents. This funding gap and the unwillingness or inability of members of the community to act as foster parents is not within the control of the court or of the Society and yet it frustrates the objectives of the legislation. The court is faced with competing evils rather than optimum choices.

[74] This gap in service has been recently recognized by the federal government in its pledge to transfer child protection powers to indigenous governments and to direct more money to parental support programs. This does not assist these children because it is not yet in place and even if that legislation should pass, there is no urban indigenous government for central Ottawa.

[75] While there may not be long term care options, however, there are significant opportunities for cultural involvement and support. I mentioned OICC earlier. At OICC, amongst other services, there is an Inuit day care centre, Inuit kindergarten and Inuit cultural activities. Similarly, there are First Nations focused services at Wabano and other agencies. Both the parents and the children have benefitted extensively from these agencies and the communities centred upon them. In fact, many of the witnesses called by E.L. and by I.O. were counsellors or facilitators from these agencies.

[76] Currently, although the children are in care they also attend at OICC on a daily basis and participate in the daycare and kindergarten. In addition, E.L. exercises access with them almost every day and I.O. is given access at the Society’s office up to three times per week. This is a somewhat artificial arrangement because it is supported by funding and services that would ordinarily terminate once this court gives a decision.

[77] The dilemma faced by the court is the absence of an optimum solution. The reality is that despite the supports available to both parents and the children from the various organizations and individuals in the indigenous communities of Ottawa, no option was presented to me to place the children with an indigenous family. Neither E.L. nor I.O. have family members who they themselves consider willing or able to take on parental responsibilities. Consequently, neither care by members of the indigenous community or with relatives were presented as options.

[78] The reality is that the best interests of the children are probably best served by the situation that has persisted during the trial. The children have in a sense the best of both worlds because they are in care in a place of safety but they have regular contact with the birth parents and they are in daycare and kindergarten at the OICC. Access by the mother takes place at OICC daily during the week and access by the father takes place at the Society three times per week. In addition, L.E.L. is living with his sister I.L. and seeing his sister S.L. every day at OICC. S.L. is living with her cousin at the F. home but in regular contact with L.E.L., I.L. and her parents. The Society is arranging the transportation. This is a situation that is artificial and has persisted during the trial due to the temporary orders and the requirement for the Society to fund or otherwise arrange the access. This arrangement will cease once a judgement is rendered.

[79] Many of the witnesses from OICC who testified were antagonistic towards the F. family because they believed (with some justification) that under the Society’s plan of care, the children would no longer be part of the daily OICC community. The F. family lives outside of Ottawa and the only significant involvement with OICC is attendance at some cultural events. There is a risk therefore that the children would cease to be integrated with the community and may lose the opportunity to remain fluent in Inuktitut.

[80] Of course nothing is either perfect or permanent. S.L. is in kindergarten and will eventually have to leave OICC to attend regular school. OICC is not licenced to provide education once children reach Grade 1. Even at OICC, in kindergarten, the language of instruction is English. Not all employees at OICC are Inuk or speak Inuktitut. There is some conflict between the educational needs of the children and the time spent in access. The kindergarten teacher has expressed the view that the amount of time S.L. spends with E.L. each day has made it difficult for S.L. to meet all of her educational milestones.

[81] I have focused on the involvement of the children with OICC and their Inuit heritage because that has been their daily reality. Of course, I.O. is also concerned to maintain their First Nations heritage. He has asked for Society assistance to enroll the children as band members with the Y.D. First Nation but that has not yet occurred. He has been able to take the children to pow-wows and other First Nations cultural events and wishes this to continue. Language retention is not an issue because neither I.O. nor any of the local services are equipped to teach the traditional language of the band in the North West Territories. With this exception, there are significant First Nations services and events available in Ottawa which are less present outside of the city.

The proposed adoption

[82] It is not always the case when considering an order for extended care that the actual plan of adoption is before the court. In this case, not only is the court aware of the plan for adoption, the proposed adoptive family is already caring for one of the children and is a family that is known to the parents and to members of E.L.’s extended family. J.F. was a witness at the trial.

[83] Although the proposed adoption forms part of the Society’s Plan of Care, this is not an adoption proceeding. Rather, there is a two step process. Firstly, if the children are placed in extended care, the Society becomes the legal parent of the children. Then, the Society would transfer those rights to J.F. and R.F. through the anticipated adoption process. While the proposed adoption forms part of the plan of care and therefore weighs in my decision as to whether extended care is in the best interests of the children, the court at a status review is neither binding the Society nor the adoptive parents to that plan. As mentioned earlier, the only question under the legislation, is whether there are rights of access and who are the holders of those rights.

[84] In this case, the Society proposes rights of access for E.L. and I.O. and the F. family is committed to working with the birth parents but exactly what that access would look like remains indeterminate. The Society proposes that the particulars of access would be decided through a mediation process as part of the adoption protocol. In short it would take place after the judgment has been rendered and without a clear path for the parties to follow if their mediation fails to achieve a satisfactory agreement.

[85] It is unfortunate that there has been something of a breakdown in communication between the F. family and the birth parents and in particular between J.F. and E.L. This has been exacerbated by the trial which has appeared to pit the parents against the Fs and it has had the unfortunate side effect of alienating J.F. from the staff at OICC. It is also somewhat unfair to J.F.

[86] It is also highly unfair to the F. family. While J.F. was a witness she is not a party and had no chance to hear or respond to criticism except to the extent it was put to her in cross examination.

[87] J.F. has been criticized for using intemperate language towards and about each of the parents. She has been criticized for not showing sufficient concern for S.L.’s health and for not adequately respecting E.L.’s concerns. The F. family has been criticized for exposing the girls in their care to constant fighting between the two boys and the boys have been described as abnormally aggressive towards each other. Finally, witnesses from OICC questioned the extent of their commitment to continued involvement of the children with the community.

[88] There is a basis for these concerns but ultimately, I put a great deal of weight on the testimony of the kin worker who is herself indigenous though not Inuk. She has spent a great deal of time in making home visits with the F’s. It is her assessment that the placement with the F’s is appropriate and she describes the considerable efforts the F’s have already made to ensure the children in their care are connected with their culture and their extended family.

[89] As I said, the situation in the F. household is complex. Firstly, the family has three other indigenous children they have previously adopted. One of those children is S.L.’s cousin. The evidence is that S.L. is very bonded with her cousin and they are like sisters together. The boys are also related to S.L. in some manner and there is also an adult cousin currently living with the family. Although the Fs themselves do not speak Inuktitut, they would foster continued contact with the birth parents and other members of the extended family. They have taken the children to Iqualuit and made efforts to engage in appropriate cultural practices. J.F. has links to E.L.’s extended family.

[90] The Society’s proposed plan of care would see the children placed for adoption just outside Ottawa. The F. family makes reasonable efforts, one might even say heroic efforts, to expose the children to Inuit cultural practices and to maintain contact with their birth families. They are also prepared to promote continued involvement with First Nations cultural activities. Ultimately, however, this remains a placement of indigenous children with a non-indigenous family. Although the adoption will be open and the birth parents will have access, it is likely the children will cease to be in daily attendance at OICC. There will inevitably be less contact between the children and the birth parents than is now the case under this plan.

[91] This is not a perfect plan but it may be the best that is available if extended care is warranted. There will be access in this plan and there will be commitment to preserving links to indigenous traditions. This is unlike the adoptions described by I.O. or by G.D., one of the witnesses. In those older adoptions, the focus was to place the children in loving families but there was no pretence at preservation of culture or links to birth families.

Evolving Circumstances

[92] I mentioned earlier that the ground changed radically during the trial. At the start of the trial each of the parents had filed proposed plans of care. E.L. was asking that the children be returned to her care. This was presented on the basis that she was extracting herself from an abusive relationship with I.O. In fact, in Exhibit 34 and in other documents, she described the cycle of abuse she was experiencing with I.O. as similar to an addiction; an addiction from which she was trying to recover.

[93] Many of the witnesses called by E.L. gave their evidence supporting her skills as a parent on the assumption that she was in the process of escaping a violent relationship and would be parenting alone. Now however the situation has changed. E.L. declares that she is in love with I.O. and he testified that he is in love with her. The plan they now propose is for the children to be placed in the joint care of the parents in the hope that they may someday form a family unit. For the time being they will maintain separate residences but they propose to work through various therapeutic and healing programs. Both parents have attended programs and both have gained insight. These have included programs focused on addiction and based on indigenous values. They propose to attend a healing lodge in Manitoba together, and if possible, with some of their children.

[94] This is commendable. If the parents wish to work on their relationship and to pursue reconciliation and healing, I encourage them to do so provided of course it can be done safely. The problem is that the track record and the well known and documented cycle of abuse makes it hard to confidently predict ongoing success. The history of episodes of abuse, concealing the relationship from the Society and the court, defiance of court orders and non-cooperation are cause for concern.

[95] I very much hope that I.O. and E.L. have both learned conflict management and communication skills as they say they have. It would be a marvelous thing if they were able to develop a mutually supportive and loving relationship and to learn positive ways of dealing with frustration, anger or jealousy. It would be a wonderful outcome for both of them and for all of their children if they can harness indigenous traditions to reform their lives and find peaceful and harmonious lives. Regardless of the outcome of this trial, I am certain both parents wish to make meaningful and positive contributions to the lives of their children.

Analysis and Summary

[96] On the evidence before me, the children continue to be in need of protection. Returning the children to the care of the mother carries with it a very high risk of exposure to domestic violence and as the evidence demonstrates, the court can have no confidence that the parents will abide by the terms of a supervision order.

[97] I am therefore forced to weigh the risk of exposure to domestic violence under a supervision order that will have limited effect on the one hand against the risk of harm posed by loss of culture and identity by adoption into a non-indigenous family. Other options proposed by counsel such as a custody order instead of an extended care order are not available because they require consent and because of the mandate in the legislation to pursue permanence due to the passage of time.

[98] Examined through the lens of the parents’ experience, the loss of their children into care perpetuates a cycle of assimilation and despair. I am urged not to perpetuate this cycle and instead to be part of a solution which permits reconciliation and healing. But the test I must apply, is the best interests of the children having regard to the importance of their indigenous heritage but also having regard to the other risks to which they will be exposed if they are returned. The court would be justly criticized if I determined that indigenous children should be exposed to higher levels of violence in the home in the name of protecting their native identity. That too is unacceptable because it perpetrates another cycle; the cycle of violence. See the often quoted decision of Zucker J. in Children's Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274 (OCJ).

[99] I would very much like to believe the expressions of hope and good intention that I heard during the trial. The problem is that I must decide the case based on the evidence and not based simply on promises. I cannot experiment with the lives of the children.

[100] On the evidence before me, I cannot conclude that it is in the best interests of S.L. to now take her from the bosom of her adoptive family and to put her back in the care of her mother based solely on hope. I heard the evidence of both parents that they have each learned much and benefited much from the programs they have pursued in the past year. Their wish to jointly participate in the healing lodge in Manitoba should be encouraged but the lives of the children cannot wait. Permanence and stability are important.

[101] On the other hand, this is not a situation in which the children are to be adopted and have no contact with the parents. To the contrary, the parents have much to offer their children. Whether they are together or living separately, they should have frequent and liberal contact with the children.

[102] I mentioned in the introduction that I am prepared to extend my jurisdiction beyond the provisions of the legislation to a small degree. This is justified by a number of factors. Firstly, there continue to be a number of unknowns. The parents have two other children, I.L. and the child about to be born. I.O. was still on trial in criminal court during this trial and the conclusion of that proceeding may result in jail time or in other consequences. I.O. and E.L. are still in a tentative phase of reforming their relationship and openly professing their wish to continue as life-partners. It is premature to determine if their access times with the children will be together or separate and, if there are further incidents of violence between them, whether it will need to be supervised.

[103] A second consideration is the mediation that is supposed to occur and the myriad potential outcomes of that process. I think it is important to let that play out to determine what the parties themselves might be able to negotiate but I also think it is important to keep alive the possibility of court supervision.

[104] There are unique aspects to this case. The children have enjoyed a rich ongoing relationship with E.L. and to a lesser degree with I.O. during the currency of this proceeding. An important advantage of that relationship has been continued immersion in the Ottawa Inuit community through OICC. Another aspect of that contact has been the continued exposure to Inuktitut. This cultural and linguistic context should be protected if at all possible.

[105] While the children’s primary cultural involvement to date has been with the Inuit community, it appears they are also eligible for band membership. That application should be pursued so that the children will have the benefit of any advantages that flow from that and will also be linked to their Y.D. First Nation heritage.

[106] There has been damage done to the relationship between J.F. and the parents which was formerly a positive one. Work will have to be done to repair this but whether that is possible or not will very much depend on good will and creativity to ensure that the children can actually benefit from an ongoing relationship with the birth parents while at the same time permitting the adoptive parents to organize their lives and their family appropriately. The family will be taking on a great deal of responsibility with five children in their care.

[107] Finally, though the court cannot commit the resources of the Society or direct the manner in which public funds are disbursed, an optimal outcome in this case will undoubtedly require ongoing involvement and support by the Society. There are various new provisions in the legislation having to do with Inuk, Métis or First Nations children. In particular s. 187 of the Act requires the Society to consider the importance of links with the community. If the purposes of the Act are to be realized, then access rights to the parents and plans to keep the children linked to their communities will have to be more than a sterile legal right. Those rights will have to be given meaning through active measures to promote them.

[108] For all of these reasons, the court will remain seized of the issue of access and the extent of involvement between the children and the birth parents. I will require the parties and the Society to report back to the court and will reserve the possibility of giving further direction or making further orders at that time.

Conclusion

[109] In conclusion, there will be a finding that the children remain in need of protection. There will be an order placing the children in extended society care. The children will have rights of access to the birth parents and the birth parents will have rights of access to the children. Both the children and the parents are the holders of those rights. The Society will be at liberty to proceed with its proposed plan of care but the court will remain seized of the question of access.

[110] I will require the Society to report to the court on the outcome of negotiations on openness and access as part of the adoption process. I will remain seized of this matter should further direction be required concerning the nature of access and the manner of maintaining cultural and linguistic links for the children.

[111] Until the Society proceeds with an adoption or pending any appeal of this decision, the existing temporary access orders will remain in place.

[112] If the parties wish to make submissions on costs or cannot agree on the form of the judgment, I may be spoken to further.

Mr. Justice Calum MacLeod Released: June 14, 2019