COURT FILE NO.: FC89/23 DATE: October 23, 2023

SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

RE: Family & Children’s Services of St. Thomas and Elgin, Applicant AND: S.A., J.W. and Caldwell First Nations, Respondents

BEFORE: SAH J.

COUNSEL: Joyce Dittrich, for the Society Tricia Simon, for the Respondent J.W. Christina Ninham, for the Respondent Caldwell First Nations Susan Gordon, for the Office of the Children’s Lawyer S.A., in person

HEARD: August 17 and October 6, 2023

Endorsement

Overview

[1] This temporary care and custody hearing involves three children, L.A., born 2010, M.W., born 2013, and H.W., born 2014, (collectively, the “children”). The children are affiliated with Caldwell First Nations (“Caldwell”).

Background

[2] The respondents, J.W. (the “father”) and S.A. (the “mother”), are the parents of the children. They separated in 2020 and have been involved in protracted litigation ever since.

[3] Within this protection application, on April 13, 2023, Price J. made and interim, interim order (“Price J. order”) placing the children with the father with access to the mother on alternate weekends and Wednesday evenings.

[4] The Price J. order contained several terms which included a prohibition to both parents from consuming alcohol or non-prescription drugs while in a caregiving role and an obligation to disclose to the worker if they did consume alcohol or non-prescription drugs; the father was also to ensure M.W. and H.W. were not left unsupervised or in the care of L.A. for longer than one hour; the mother was to ensure that the children were supervised when with her older child from a previous union, J., and that they were not left unsupervised with her father.

[5] The father expressed concerns with respect to the terms and conditions, stating he does not agree with them.

[6] The Office of the Children’s Lawyer (the “OCL”) was assigned on May 2023 and the children’s views and preferences were ascertained.

[7] Following the making of the Price J. order, Family & Children Services of St. Thomas and Elgin (the “Society”) received several anonymous reports regarding the safety of the children. The report outlined concerns regarding the father's aggressive and volatile behavior, screaming and making degrading comments to the children, leaving them alone for long periods of time, erratic driving, and driving under the influence with the children in the vehicle.

[8] The Society commenced a motion to vary the Price J. order in July 2023. They sought an order that H.W. and M.W. be placed with the mother and that L.A. remain with the father, subject to terms. The motion was adjourned to August 2023 to allow the father to file reply material. The court made an interim order for summer access to take place on alternating weeks with each parent. It was ordered that L.A. could visit his mother subject to his wishes (“Tobin J. order”).

[9] Despite the start of the school year, the terms of the Tobin J. order and the week about schedule continued by my order.

[10] The mother lives in London and the father in St. Thomas. The mother drives M.W. and H.W. to their school in St. Thomas.

Position of the Parties

The Society

[11] The Society seeks an order that L.A. be placed in the temporary care and custody of the father and that M.W. and H.W. be placed in the temporary care and custody of the mother subject to terms of supervision.

[12] Further, it seeks an order that L.A.’s access with the mother be subject to his wishes and that M.W. and H.W. have access with their father on the first three weekends of the month, from Friday after school until Monday morning, and at such other times as agreed upon between the parties and the Society, subject to the wishes of the children. It is proposed that the father pick M.W. and H.W. up from school (after-school) on Friday and drop them off to school on Monday mornings.

The mother

[13] The mother does not dispute the Society's request that L.A. be placed in the father's temporary care and custody and that access be subject to his wishes.

[14] However, the mother seeks an order that M.W. and H.W. be placed in her temporary care, subject to terms of supervision, and she is agreeable to the terms proposed by the Society.

The father

[15] The father opposes the relief sought by the Society. He seeks an order that all three children be placed in his temporary care and custody.

Caldwell First Nations

[16] Similarly, Caldwell opposes the Society's motion and requests that the Price J. order continue until the final resolution of this matter, with the inclusion of one of the terms set out in the Tobin J. order.

The OCL

[17] The OCL takes the position that the terms of supervision are necessary to protect the children based on the evidence proffered by the Society, which includes disclosures by the children.

[18] Based on the OCL’s submissions, L.A and H.W.’s views have been more consistent than M.W.’s.

Issues

[19] Given the apparent agreement regarding the temporary care of L.A., and for reasons further particularised below, this court will only need to consider the temporary care and custody hearing in relation to M.W. and H.W.

[20] The issues to be determined are:

a) Has the Society established, on credible and trustworthy evidence, that there are reasonable grounds to believe there is a real possibility that, if the children, H.W. and M.W., are returned to the father, it is more probable than not that they will suffer harm?

b) Has the Society established that the children, H.W. and M.W., cannot adequately be protected by terms and conditions of an interim supervision order with the father?

c) In determining a) to b) above, does the federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“Federal Act”), alter the method of analysis when applying the legal test set out in section 94 of Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, (“CYFSA”)?

Legal Principles

[21] The purpose of a temporary care and custody hearing is to determine where a child is to stay until the merits of the protection case can be heard: Children's Aid Society of Hamilton v. D.(B.), 2012 ONSC 2448, para. 28.

[22] The Federal Act applies at every stage of a child protection proceeding, including when the court is determining a temporary care and custody hearing under s. 94(2) of the CYFSA: Children's Aid Society of London and Middlesex v. T.E., 2021 ONSC 788, at para. 20.

[23] The Federal Act applies to this case and must be considered given it has paramountcy.

[24] The application of the CYFSA is not affected as long as it does not conflict with, or is not inconsistent with, the Federal Act: s. 4 Federal Act.

[25] The Federal Act was enacted in part to ensure courts and child protection agencies follow minimum standards with respect to providing services to, or making decisions about, Indigenous children and to supplement the provisions of the CYFSA: Huron-Perth Children's Aid Society v. A.C., 2020 ONCJ 251, para. 30.

[26] There is meaning in singling out Indigenous children, families and communities in both the Federal Act and CYFSA. It necessarily alters the method of analysis in assessing risk and determining placements of Indigenous children: Kina Gbezhgomi Child and Family Services v. J.M., 2023 ONCJ 93, para. 26 (emphasis in the original).

[27] The analysis of who has “charge” as set out in section 94(2) of the CYFSA is therefore secondary to the principles set out in the Federal Act, and in particular to the priority placement set out in s. 16.

[28] Section 16 of the Federal Act sets out an order of priority to be applied for the placement of Indigenous children in the context of providing child and family services, to the extent that it is consistent with the best interests of the child. The order is as follows:

(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.

s. 16 (1) Federal Act

[29] Here, both parents – one Indigenous, the father, and one non-Indigenous, the mother – seek placement.

[30] When the order of priority is being applied, the possibility of placing the children with or near children who have the same parent, or who are otherwise members of the children’s family, must be considered in the determination of whether a placement would be consistent with their best interest: s. 16(2) Federal Act.

[31] The court shall not make an order unless satisfied that there are reasonable grounds to believe there is a risk that the children are likely to suffer harm and that they cannot be protected adequately by returning them to the father with or without terms and conditions: s. 94(4) CYFSA.

[32] Section 94(6) of the CYFSA allows the court to impose terms and conditions as follows:

(a) reasonable terms and conditions relating to the children's care and supervision;

(b) reasonable terms and conditions on the father or the mother, the person who will have care and custody of the children under the order, the children, and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the children; and

(c) reasonable terms and conditions on the society that will supervise the placement but shall not require the society to provide financial assistance or to purchase any goods or services.

[33] The onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe there is a real possibility that, if the children are returned to the father, it is more probable than not that they will suffer harm.

[34] Further, the onus is on the Society to establish that the children cannot adequately be protected by terms and conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.).

[35] The burden on the Society at this stage does not go as high as to show that, on the balance of probabilities, there is an actual risk to the children in the parent's care: CCAS of Toronto v. M.L.R., 2011 ONCJ 652, para. 27.

[36] This court must choose the order that is the least disruptive placement consistent with adequate protection of the children: s. 1(2) CYFSA, Children's Aid Society of Hamilton v. D.(B.), supra, para. 29.

[37] When assessing the best interests of Indigenous children, the following must be considered: the principle of cultural continuity, s. 9(2); the principle of substantive equality, s. 9(3); best interests considerations of Indigenous children, s. 10; and priority of placement, s. 16: Huron-Perth Children's Aid Society v. A.C., 2020 ONCJ 251, para. 30.

[38] The best interest considerations in the Federal Act is more expansive than in the CYFSA. This comparison was addressed in CAS v. K. C. and Constance Lake First Nation, 2020 ONSC 5513, at para. 41, as follows:

41 How are the best interests of an Indigenous child determined? Only two factors in the inclusive list set out at section 10(3) of Bill C-92 regarding the best interests of an Indigenous child do not already exist in the more comprehensive list of factors at section 74(3) of the CYFSA. Those two factors are 10(3)(g) regarding family violence and 10(3)(h) regarding any civil or criminal proceeding, order or measure relevant to the child. Having regard to section 4 of Bill C-92, these two factors are therefore to be added to the list of factors set out at section 74(3) of the CYFSA when analyzing the best interests of the Indigenous child in Ontario. Otherwise, the provincial legislation is not in conflict or inconsistent with the federal legislation, and therefore the thus-augmented CYFSA best interests test governs.

[39] The Federal Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the concepts set out in s. 9(2):

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child's best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respect;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

[40] Further, the Federal Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the concepts set out in s. 9(3):

(a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child's participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs;

(b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(c) a child's family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and

(e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.

[41] In assessing the best interests of Indigenous children, primary consideration must be given to the child's physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs, and of preserving the child's connections to his or her culture: s. 10(1) and (2) Federal Act.

[42] Section 10(3) sets out factors that must be considered to determine the best interests of Indigenous children, including:

(a) the child's cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(c) the nature and strength of the child's relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child's cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) any plans for the child's care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Evidence and Analysis

[43] Having regard for the issues and law outlined above, I have considered the following evidence.

L.A.

[44] The evidence supports a finding that L.A. has been treated differently from his siblings by the father. This is also supported by the OCL, which submits that all three children have lived different experiences.

[45] Though disputed by the father, there is overwhelming evidence that the father has a history of acting aggressively, sometimes towards the children, and addressing them in a degrading manner.

[46] L.A. appears to have been insulated from this behavior.

[47] In fact, the evidence supports that the father has bestowed considerable responsibility upon L.A. L.A. has been assisting M.W. and H.W. by performing adult responsibilities such as overseeing their care and making some of their meals. This is supported by M.W. and H.W.’s reports to the OCL.

[48] There is no evidence to suggest that L.A. has suffered direct harm in the care of his father.

[49] Conversely, there have been historic reports that the maternal grandfather and maternal step-grandmother were verbally and physically abusive towards L.A. while he was residing in their home.

[50] Since the making of the Tobin J. order, L.A. has had at least one visit with his mother.

[51] Further, since the Tobin J. order was made, there have been reports that L.A. was doing well in school but for an incident wherein he was racially profiled and bullied. This resulted in a suspension.

[52] According to the OCL, L.A. has been strong and consistent in his views and preferences, stating that he wishes to remain in the care of his father. He also wishes to see his mother, subject to his wishes.

[53] L.A. has a strained relationship with his mother and, at age 13, has strongly voiced his belief that his best interests are served by an order placing him with his father.

[54] This placement will allow L.A. continuity of care and schooling and will ensure that he is connected to his Indigenous culture.

[55] The OCL submits that L.A. has insight into his needs and believes that the terms of supervision protect him from being a victim or witnessing any physical, verbal, or emotional abuse. I accept this.

[56] The mother does not understand why the father treats L.A. differently from the other children. She wishes that L.A.’s views were different but recognizes that, given his age, considerable weight will be placed on same.

[57] The mother is not confident that the terms will protect L.A.

[58] The Society submits that L.A. will likely be exposed to the father's aggression and parenting deficits however takes the view that L.A.’s views and preferences should be given considerable weight. It maintains that the terms and conditions it proposes will adequately protect L.A.

[59] The father does not like the terms imposed upon him in the Price J. and Tobin J. orders.

[60] The main protection concerns relating to the father involve verbal and physical abuse, leaving the children alone, alcohol and substance abuse, conflict and aggression with others.

[61] These concerns as they relate to L.A. are minimal. L.A. reports that he is doing well and that he has always felt safe with his father. He describes his father as protective and helpful. He claims his father never drinks around the children and never drives under the influence.

[62] The proposed terms and conditions prohibit the father from yelling, screaming or verbally abusing the children, using physical discipline on the children, consuming alcohol or non-prescription drugs, consuming alcohol in excess while in a caregiving role, driving under the influence, and leaving M.W. and H.W. unsupervised or in the care of L.A. for longer than one hour.

[63] The proposed terms also provide that the father request for his family physician to provide him with drug testing, participate in programs and counseling to address anger management, participate in counseling recommended by the Band, attend parenting course, and allow the Society to have access to his home at least once a month.

[64] The evidence supports that L.A. is insulated from the father’s behaviour. Few of the protection concerns relate to L.A. At most, he is indirectly exposed to his father’s aggression. There are no reports of direct abuse. L.A. himself reports no concerns.

[65] Given the foregoing, there are reasonable grounds to believe there is a real possibility that, if L.A. remains with the father, he will likely not suffer harm.

[66] Further, I am satisfied that L.A. can adequately be protected by terms and conditions of an interim supervision order, particularly since there have been no ongoing concerns relating to L.A. since the making of the Price J. or Tobin J. orders.

[67] Given the agreement between the parties and the findings made above, an order shall issue placing L.A. with his father subject to terms and conditions, with access to his mother subject to his wishes.

M.W. and H.W.

[68] In the assessment of M.W. and H.W.’s best interests, I have considered the following evidence.

[69] Under a Family Court Order made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12., the children reside with the father. The Society became involved, and several terms and conditions were imposed upon the father when the Price J. order was made in April 2023.

[70] The father expressed that he does not like, approve of, or agree with the terms of the order.

[71] There is credible and trustworthy evidence to support a finding that it is more probable than not that, if returned to the father, M.W. and H.W. would suffer harm. In support of this conclusion, I have relied on the following evidence.

[72] The protection concerns relevant to the most recent Society involvement persist. The children have disclosed to three workers that their father is verbally abusive, leaves them alone with L.A., uses inappropriate discipline, and consumes illegal substances.

[73] Both children reported neglect because of their father's absence and alcohol consumption.

[74] Considerable submissions were made regarding historic accounts of violence and criminal involvement. My focus will be on what has occurred since the Society became most recently involved.

[75] There have been continued community reports that the father is verbally abusing the children, leaving M.W. and H.W. alone with L.A., whom some have described to be mimicking his father's aggressive behaviour.

[76] Neighbours have reported hearing the father berating the children for long periods of time.

[77] Some of the anonymous reports provide details about the father screaming and yelling, such details to include how long the yelling took place and what he was yelling about (i.e.: soup). Some of the community complaints resulted in police attending the father's home, where M.W. was observed to be upset and crying.

[78] The father continued to yell and swear at the children with police on the scene and became further enraged when the police took down the children's names. This court has concerns about the children's emotional and mental well-being in view of the father's escalation.

[79] Another anonymous call reported that the father was yelling and screaming at the children on a daily basis, often for long periods of time. It was also reported that the father leaves the children alone overnight. When this report was investigated further, H.W. advised the protection worker that her father told her not to talk to the worker and she denied that there were any concerns with their father yelling, hitting, using drugs or alcohol or leaving them alone.

[80] The following day, another neighbour reported that when walking her dog, she could hear the children screaming and the father yelling aggressively.

[81] The father submits that he is a loud person, and he may well be; however, the reports from the community and the children do not describe a person speaking loudly or lovingly.

[82] I acknowledge that many of these reports are anonymous in nature and that anonymous reports alone cannot be considered credible and trustworthy evidence. However, the anonymous reports together with M.W. and H.W.’s continued reports of similar behaviour by the father render this evidence credible and trustworthy.

[83] On one occasion, M.W. told the Society worker that his father threatened to kill him, hit him on his face and backside. The evidence has persuaded me that M.W. is the one who bears the brunt of his father's anger, not L.A. or H.W.

[84] H.W. reported that she saw the father hit M.W. and confirmed that the father did not hit her or L.A.

[85] M.W. has reported that the father hit him on the side of the head, on the left side with his open hand, and that he was spanked three times, with an open hand.

[86] The father denies swearing at, spanking, hitting, or leaving the children home alone at night.

[87] The children also continue to report that the father uses non-prescription drugs and consumes excessive amounts of alcohol. The children have disclosed to their mother that the father uses cocaine and marijuana/cannabis gummies.

[88] While the father alleges that he uses marijuana for medicinal purposes, he has not produced any documentary evidence to support his position. He has not signed a consent to allow the Society to obtain information directly from his doctor.

[89] H.W. reported at one point that the father uses marijuana and consumes a case of beer while talking on the phone. She claims that he gets very angry, smacks them and grounds them. She reported that on one occasion, the father hit M.W. three times, on the backside, hard, and that he screamed.

[90] According to H.W., who kept track of time using the oven clock, the father leaves at 7:00 p.m. and comes home at 4:00 a.m. She reported that she does not like L.A. watching her because she does his chores and he does not make them dinner.

[91] H.W.’s wish for change includes a request that her dad not get mad, not yell, and that no one would get smacked.

[92] At times, the children did not wish to speak to the Society worker, once indicating that the father told H.W. not to. It is difficult for the children to speak openly.

[93] In August, M.W. disclosed that he was not able to speak openly about his weekend with his father because he did not want his father to yell or scream at him. According to M.W., he gets very sad when his father yells, and stays in his room to cry alone.

[94] According to the OCL, M.W. and H.W. only wanted their wishes expressed at a time that they were with the mother. This suggests to the court that they fear how the father would react to hearing their views and preferences.

[95] An anonymous neighbour surmised that the children did not wish to speak out against their father for fear of reprisal. This is a very plausible theory in view of the foregoing.

[96] When argument on this temporary care and custody hearing commenced in August, the OCL had met with the children five times.

[97] In August, M.W. and H.W. expressed that they wished to stay with their mother as long and she was around. There is some evidence to suggest that she had left early for work, leaving the children in the care of a third party.

[98] In August, H.W. expressed that she wished to have equal time with her parents. If this was not possible, it was her preference to live with her mother with alternating weekends with her father. She wished for there to be several rules, including a rule against yelling, hitting, and alcohol use.

[99] In August, M.W. express that he wished to live with his mother, with rules.

[100] M.W. wanted rules to include that he not be left alone, no spanking, and no yelling. M.W. also expressed that he wanted the father to cook meals for him.

[101] The OCL met with M.W. and H.W. two days prior to the continuation of oral argument in this hearing. By that time, M.W.’s views and preferences had changed.

[102] As of October 4, H.W. continued to express that she wished to spend equal time with her parents; however, M.W. expressed that he wished to have his primary residence with his father. He would like to continue to attend S[…] Elementary School.

[103] While the terms of Tobin J.’s week-about order continued pending adjournment of the hearing, the mother agreed to continue to drive the children from her home in London to their school in St. Thomas

[104] Both M.W. and H.W. wished to continue to attend their current school, S[…] Elementary School in St. Thomas.

[105] H.W. has expressed that she loves both of her parents and does not want to hurt either of their feelings. She wishes to spend quality time with both her parents on a week-about schedule.

[106] M.W.’s views and preferences with respect to his living arrangements have been inconsistent. He first stated that he wished to live with the mother, then, one month into the school year expressed that he wished to live with the father.

[107] According to the OCL, M.W. wanted his parents to know that he was not comfortable sharing all his feelings.

[108] No explanation was provided for the change in M.W.’s views but I can only imagine that the start of the school year, friends, and the entrenchment of school routine are considerable factors.

[109] M.W. is 10 years old and H.W. is 9 years old. Their lives have been tumultuous. Their living situation is not ideal and, as much as they wish for the week-about schedule to continue, it is not practical, and the risk for harm, even with alternating weeks with the father, requires changes.

[110] Attempts were made to maintain M.W. and H.W.’s residency with their father, on terms and conditions. Those terms and conditions have not been adhered to and are not respected by the father.

[111] The OCL submits, and I accept, that the children’s evidence, in its totality, shows M.W. and H.W. are being directly subjected to, or are witnessing, physical, verbal and emotional abuse inflicted on them by their father, that they are fearful of reporting abuse, that it is questionable whether the father can change his behaviour and, at one point, both M.W. and H.W. wanted to spend more time with their mother.

[112] Probable risk to M.W. and H.W. includes the potential for physical discipline, spanking, hitting, continued yelling and use of profanity, and neglect.

[113] The father’s disregard for the court order contributes to this court's finding that there is a potential risk to the children. The father has not, despite requests, provide results of an allegedly completed drug test, did not consent to a worker speaking to his family doctor, and has not provided evidence of counseling or programs as required.

[114] I am satisfied that the Society has met their onus of establishing that there are reasonable grounds to believe there is a real possibility that M.W. and H.W., if returned to their father, are likely to suffer harm.

[115] In my view, there is the possibility that the children will suffer physical and emotional harm in the care of their father. Further, the Society has established that M.W. and H.W. cannot be adequately protected by terms and conditions of an interim supervision order with the father.

[116] I come to this conclusion based on the father's actions and inactions since the interim supervision order was put in place, as well as the recent disclosures made by the children which have been supported by concerned members of the community.

[117] The father's inability to control himself appropriately in the presence of the children and police further adds to the court’s concerns about a potential risk to the children.

[118] The father has not demonstrated that he will comply with an order or cooperate with the Society.

[119] Caldwell submits that while the father's parenting does not necessarily reflect the typical Canadian view of parenting, he has maintained an appropriate level of parenting of the children. I disagree.

[120] M.W. has been directly exposed to family violence and its impact has led him to cry in his room alone and become fearful of speaking out about his experiences.

[121] H.W. was disciplined once but has been indirectly exposed to family violence as a result of her observations of M.W.’s treatment.

[122] As set out by the court in CAS v. K. C. and Constance Lake First Nation, 2020 ONSC 5513, family violence is a factor set out in section 10(3)(g) of the Federal Act that created an augmented best interest test. I am compelled to consider this factor in my analysis. I find that the risk of family violence, direct or indirect, is sufficient to warrant a change of placement. The terms in place since April 2023, which attempted to mitigate any risk, are insufficient to protect M.W. and H.W.

[123] However, I do not wish to undermine the significance of maintaining the children’s ongoing relationship with their family and with their Indigenous group, and I am acutely aware of the significance of preserving their connection to their culture.

[124] The father and Caldwell do not believe that the mother will promote and continue to maintain M.W. and H.W.’s cultural connection. The mother claims that she will.

[125] To ensure that this significant issue is addressed, the court will order that she maintain regular contact with Caldwell and follow any recommendations they have to foster, promote, and maintain the children’s Indigenous connection. I am confident that the father, on his access time, will do the same.

[126] I wish to now address three issues that the court has considered in this decision and comment briefly on those issues. They include: 1) concerns as they relate to the mother, 2) the separation of the siblings, and 3) the impact that this order will have on M.W. and H.W.’s school.

Concerns regarding the mother

[127] The material submitted highlights some historic concerns regarding the mother, her alcohol consumption, her roommate, the maternal grandfather and step-grandmother, and her older son, J.

[128] In the last three years, there have been no reported concerns regarding J. The terms and conditions proposed require that the mother ensure M.W. and H.W. are supervised while together with J. J.’s bedroom is in the basement and M.W. and H.W.’s is upstairs.

[129] I do not find a protection concern in view of the foregoing, and the terms and conditions, which the mother does not oppose, sufficiently mitigate any potential risk.

[130] The proposed terms and conditions require that the mother will ensure M.W. and H.W. are not left unsupervised with her father and stepmother. The mother agreed to this term. M.W. and H.W. did not report any concerns about the maternal grandparents.

[131] There have been allegations regarding the mother’s alcohol consumption, driving under the influence, drug use, tying the children to a chair, and feeding them hot sauce.

[132] The children did disclose to the OCL that their mother drove after consuming alcohol on two occasions. This was in February 2022.

[133] The mother has agreed to terms and conditions requiring her to request that her family physician provide the Society with drug testing, that she not consume alcohol while in a caregiving role, and that she not consume prescription drugs while caregiving. Further, the terms and conditions provide that she not consume alcohol and drive with the children in the car. Again, the mother consents to all terms and conditions proposed by the Society.

[134] The material before me does not highlight any recent concerns regarding the mother. The OCL’s submissions are centred around the children's experiences with their father. The children have expressed to many that they wish to spend more time with their mother. The proposed terms and conditions are sufficient to mitigate any potential risk to the children.

[135] The Society received anonymous letters sent to three different agencies regarding the mother's roommate, K. There are allegations that he had sexual intercourse with his daughter and is a rapist, that he sexually abused his daughter, and that his daughters sell drugs.

[136] K. denies the anonymous allegations. The Society spoke with K.’s daughter, who expressed no concerns and could not even imagine an allegation that her father had intercourse with her.

[137] K. is willing to provide the Society with a form 35.1 affidavit. K. advised that these anonymous allegations have also been sent to the OPP and his employer.

[138] M.W. and H.W. have not reported any concerns regarding K. and they have spent considerable time with him at their mother’s home.

[139] The anonymous allegations have not been corroborated by the children, or any third party.

[140] While the court appreciates that the children would prefer that their mother look after them, not K. while she is at work, this is not always an option or practical.

[141] Based on the evidence before me, the court does not view K. to be a potential risk to the children.

[142] The mother has been accommodating the children and the order of this court made in August 2023 by driving them to school in St. Thomas. She has demonstrated a willingness to act in the children's best interest.

[143] Though not an Indigenous parent, the mother is a parent to the children. She claims to have left her relationship with the father after years of abuse. She maintains that it is in the children's best interest to be placed in her care. She takes the position that she should be given the same priority, in terms of placement.

[144] Section 16 of the Federal Act sets out an order of priority to be applied for the placement of Indigenous children and does not distinguish between Indigenous parent and non-Indigenous parent. Section 16(a) lists as the priority for placement, to the extent that it is consistent with the best interests of the child, one of the child's parents. Here, the mother is one of M.W. and H.W.’s parents. The placement is therefore consistent with the Federal Act and the best interests of the children.

Separation of the siblings

[145] Caldwell submits that there has been no assessment as to the separation of the sibling group, which is a concern as there is a relationship that has been maintained since birth.

[146] The Federal Act requires the court to consider the possibility of placing a child with or near children who have the same parent as the child or who are otherwise members of the child's family.

[147] M.W. and H.W. have older siblings at both the mother’s and the father's home. There is a benefit to them to maintain a connection with both older siblings.

[148] In this case, the facts and evidence result in a finding that it is reasonable to order different placement decisions for the children, taking into consideration their different needs for safety, security, and well-being.

Impact of placement on school

[149] M.W. and H.W. have clearly stated that they wish to remain students at S[…] Elementary School in St. Thomas. M.W. advised the OCL that he does not like the drive from his mother’s home to St. Thomas on the weeks that he is in her care.

[150] It is not likely that the school board will allow M.W. and H.W. to continue to attend a school in St. Thomas when their residence changes to London.

[151] I must weigh M.W.’s and H.W.’s views and preference about their school with the impact of family violence.

[152] Changing schools two months into a school year will be challenging for the children. However, this challenge will be less than the ongoing challenges they will face if they remain in their father’s care. The prospect of insulating them from the negative impact of their father’s behaviour takes priority for their long-term best interests to be met.

Orders

[153] Based on the foregoing, an order shall issue, as follows:

1. Pursuant to section 94 (2(b) c, of the Child, Youth and Family Services Act, the child, L.A., born 2010, shall be placed in the temporary care and custody of the father, J.W., and the children, M.W., born 2013, and H.W., born August 2014, shall be placed in the temporary care and custody of the mother, S.A., subject to the supervision of the Family & Children’s Services of St.Thomas and Elgin, on the following terms and conditions: a) J.W. and S.A. shall advise the Society in advance of any change in their respective addresses and/or telephone numbers and provide new contact information to the Society forthwith; b) J.W. and S.A. shall allow the Society access to their respective homes on a scheduled and unscheduled basis and shall meet with the worker a minimum of once per month; c) J.W. and S.A. shall attend programs and counselling as recommended by the Band Representative to address healthy relationships, cooperation with one another, and relationship development with their children. d) J.W. and S.A. shall not discuss court proceedings with the children or speak to the children about their discussions with the worker. J.W. and S.A. shall not put any pressure on the children regarding their ability to speak to Society workers. e) J.W. and S.A. shall not yell, scream, swear or be verbally abusive towards the children. f) J.W. and S.A. shall not use physical discipline on the children. g) J.W. and S.A. shall not consume alcohol or non-prescribed drugs while in a caregiving role. h) J.W. and S.A. shall not use marijuana in the presence of the children. i) J.W. shall ensure the children are not exposed to other individuals using non-prescribed drugs or under the influence of substances. j) J.W. shall not consume alcohol in excess while in a caregiving role. k) J.W. and S.A. shall request their family physician provide them with drug testing. l) J.W. and S.A. shall disclose to the Society worker when they have consumed alcohol to excess or used non-prescribed drugs while in a caregiving role. m) J.W. and S.A. shall ensure the children are cared for by a sober caregiver. n) J.W. and S.A. shall not consume alcohol and drive with the children in the car. o) J.W. and S.A. shall sign consents to release information related to their criminal records, or their participation with other service providers. p) J.W. shall ensure the children, M.W. and H.W., are not left unsupervised, or left in the care of L.A. for longer than 1 hour. q) S.A. shall ensure the children, M.W. and H.W., are always supervised while they are together with the child, J. r) J.W. shall participate in programs or counselling to address anger management, such as Changing Ways, Caring Dads or such other program or counselling as recommended by the Society and/or the Band. s) J.W. shall participate in counselling through SOHAC and or Wellkin Services as recommended by the Band. t) J.W. and S.A. shall participate in parenting programs, including the Circle of Security Program. u) S.A. shall ensure the children are not unsupervised while with her father, D., or stepparent, L. v) S.A. shall attend counselling and/or other programs as recommended by the Band to repair her relationship with L.A., subject to L.A.’s willingness to participate. w) S.A. shall liaise with and maintain contact with Caldwell First Nations, at least monthly, to foster, promote, and maintain the children’s Indigenous connection, and she shall follow any recommendations they may make to ensure the cultural connection remains.

2. The child, L.A., born 2010, shall have access with the mother, S.A., as arranged between the child and his mother, subject to the wishes of the child.

3. The children, M.W., born 2013, and H.W., born 2014, shall have access with their father, J.W., on the first three weekends of the month, from Friday after school until Monday morning; and at such other times as agreed upon between the parties, the Society, and subject to the wishes of the children.

4. J.W. shall pick up the children, M.W. and H.W., from school (after-school) on Friday and drop them off Monday morning, at school.

5. There shall be no order as to costs.

"Justice Kiran Sah” The Honourable Justice Kiran Sah Released: October 23, 2023