WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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 Information

Court File No.: Renfrew County 06/981

Date: August 20, 2012

Ontario Court of Justice

Parties

Between:

The Children's Aid Society of the County of Renfrew, Applicant

— AND —

C.K., N.A., M.B., Algonquins of Pikwakanagan Respondents

Before the Court

Before: Justice D. K. Kirkland

Reasons for Judgment released on: August 20, 2012

Counsel

• Kimberley Pegg — for the Applicant Society
• Jenny Friedland — for the respondent, M.B.
• Katherine Hensel — for the Algonquins of Pikwakanagan
• Terese Ferri — for the Office of the Children's Lawyer, legal representative for the children

Introduction

[1] Because of the urgency for a determination of the issues before the Court in that the children's school year begins in the next two weeks, I am refraining from citing sections of the Child and Family Services Act as they apply here. They are as well known to counsel as they are to the Court. I can assure the parties however, that I have carefully consulted all relevant sections of the Act, particularly those that refer to Indian and Native Children contained in sections 37, 57 and Part X.

[2] In like manner I recite only significant historical detail of the many events leading to the case before the Court.

[3] The Court also proceeds on the basis that this is a bifurcated proceeding. The primary issue before the court is to determine if the two children were in need of protection at the time of their apprehension and continue to be so in need.

[4] Secondary and subordinate to this decision, if necessary, is a determination of the appropriate "placement" Order under section 57 of the statute.

Background

[5] The two female children who are the subject to this proceeding are S.K., born 2005 and Z.K., born 2008. C.K. is the mother of both children. K.A. is the father of S.K. and N.A. is the father of Z.K.. Both children have Native Status as defined in the statute.

[6] M.B. is the maternal grandmother of both girls. T.K. is the sister of C.K. and N.L.1 is the brother of C.K.. N.L.2, age 14, is the niece of M.B. and has resided with her for the past 11 years.

[7] On September 26, 2007 S.K. was placed in the home of M.B. with CAS approval, and on September 10, 2008 a custody Order confirming this arrangement was granted. In addition to granting custody, the Order provided for reasonable access for C.K. to S.K..

[8] Z.K., who was born in New Brunswick, was officially placed in the home of M.B. on May 15, 2009 subject to a supervision Order that required supervised access only for C.K.. Z.K. has been diagnosed with a number of food intolerances including lactose and many sugar products. Her diet must be carefully controlled to guard against various physical reactions.

[9] C.K. has a significant history of criminal convictions and has spent various periods of time in custody. All parties agree that C.K. presents a risk to the girls thereby disentitling her to anything but supervised access to both girls.

[10] N.L.1 has followed a lifestyle that has also required he not be in the presence of the girls.

[11] T.K. resides in a stable relationship and has been designated a responsible person to supervise access for C.K..

Need of Protection Issue

[12] The CAS takes the position that the girls were in need of protection in July 2009 while in the care of M.B.. It is alleged that M.B. failed to protect them from C.K. and allowed N.L.1 to be present in her home when the girls were there. The CAS further alleges that M.B. is not forthright with the agency particularly in the area of her alcohol consumption.

[13] M.B. denies her failure to protect the girls from C.K. and N.L.1 and offers explanations for a number of incidents raised by the CAS.

[14] The apprehension took place on July 24, 2009. On that date S.K. was found in a residence with C.K.. Upon the arrival of the CAS workers C.K. denied that S.K. was in the residence, however upon entering the apartment the workers located S.K. lying on a bare mattress in a dark room. Z.K. was then apprehended from the home of M.B.. M.B. explained that it was her understanding that T.K. was in the home supervising C.K. however that explanation lacked credibility upon further investigation.

[15] The decision to apprehend was based upon the primary allegation that M.B. was not able to protect the girls from unsupervised contact with C.K.. Furthermore, life events had reached a pinnacle where she was overwhelmed with the responsibility of adequately caring for the girls.

[16] On June 22, 2009 Terri Ann Brazeau, the society protection worker instructed M.B. that neither girl was to be in the unsupervised care of C.K.. This was acknowledged by M.B..

[17] On July 8, 2009 C.K. was to have an office visit with Z.K. and failed to appear at the appointed time. As events unfolded, it was learned that C.K. was in a residence with S.K. without supervision. Although M.B. denied knowledge of this, she admitted two days later that she knew of the unsupervised care with C.K..

[18] Complicating M.B.'s life was the departure of her spouse, Tim on July 3rd. This was a difficult event for M.B.. When admitting to allowing S.K. to stay with C.K., M.B. stated she was overwhelmed with events at that time and needed the time to herself.

[19] In addition, the society also had unconfirmed information that S.K. was spending extended periods of time with C.K. at the residence of T.K. who was absent from the apartment.

[20] The society's explanation for apprehending Z.K. was that M.B.'s inability to protect S.K. as a result of her depression and disregard for society instructions similarly extended to Z.K..

[21] The plan of the CAS at the time of the apprehension was to offer wardship for the girls for a period of three months to enable M.B. to get her life in order.

[22] In compliance with the CFSA, Ms Brazeau contacted the Algonquin band two days later asking if a Native foster placement could be arranged for the two girls. She was told that none was available. As a result, the two girls were placed in the O. foster home with non Native foster parents.

[23] Access visits with family members extended into the fall months. The society continued to have concerns over M.B.'s honesty about certain events in her life. In particular, the CAS had reason to believe that alcohol continued to be a factor in her life although she stated that she had been alcohol-free for five years.

[24] Because of continuing concerns, wardship with access was extended into 2010. Society concerns included the fact that M.B. made disrespectful comments about the foster parents, creating loyalty issues for S.K.. Following a home visit, Z.K. returned to the foster home with a distended stomach, the result of departing from her diet. As well, M.B. appeared to be under the influence of alcohol or the effects of the same at certain times. In July 2010 M.B. completed an alcohol treatment program but was subsequently seen under the influence of alcohol which she acknowledged.

[25] In February 2010, the O. foster home broke down as a result of the foster father being deployed to Afghanistan. Ms Brazeau again contacted the local band inquiring about possible placement with a Native foster family. Once again none was available leading to placement with the present foster family, the S.D.'s. The girls have been in this home since March 2010.

[26] On the basis of this series of events I am satisfied that the girls were in need of protection in July 2009, and that many of the concerns expressed at that time have continued into the present. M.B.'s inability to control contact by C.K. has arisen a number of times. More than once C.K. has telephoned M.B. during M.B.'s supervised access and talked to S.K. despite the warning to M.B. and C.K. not to engage in it. Knowing this puts her mother in trouble C.K. explains her calls with "I want to".

[27] Alcohol continues to play a part in M.B.'s life. On one occasion she accepted a ride into town explaining, "I can't drink and drive you know". Her alcohol relapse following the previous Order of this court can be seen with some understanding. However, when her house burned down as a result of smoking by N.L.1, she acknowledged that she had been drinking heavily that evening.

[28] When cross-examined on her alcohol consumption she provided three different responses. One – I don't drink now; two – sometimes it is a six pack on Friday or Saturday; three - sometimes I over drink.

[29] All of these events must be seen in the light of M.B.'s tendency to be dishonest with authorities when asked about certain events. Questions about protecting the girls from C.K. and drinking in the future cannot be resolved with any certainty.

[30] For these reasons I find the girls were in need of protection in July 2009, and continue to be in need of protection at this time. The finding is made pursuant to section 37 (2) (b) (i) and (ii), and also section 37 (2) (g).

Placement of the Girls

[31] The CAS asks that the girls be made Crown Wards with placement to continue in the S.D. home. Recognizing the need for continued contact with their birth family, heritage and culture, the society proposes access with M.B. on two occasions per year while the D. family is resident in the U.K. Following their return to Canada the issue of access can be re-visited.

[32] M.B. and the Algonquin Nation request that the girls be placed with M.B. with appropriate supervision by the CAS. The Court has been provided with abundant case law and statutory authorities to weigh this decision. Clearly, both options are available to the Court.

[33] The Court has heard evidence from two expert witnesses together with strong historical evidence from Chief Kirby Whiteduck.

[34] Dr. Paula Moncion, a psychologist with many years experience met with the two girls, S.D. and M.B.. She observed the girls with both S.D. and M.B.. Dr. Moncion's updated assessment was completed just before the trial and informs the Court of the current state of events.

[35] Dr. Moncion clearly states that both girls are securely attached to all members of the D. family. The girls refer to the D. boys as their brothers and unequivocally state they want to return to the D. family. As stated by S.K., "I just want to be a normal kid; I don't want any lawyers or judges or courts; I want to live in the U.K. and visit my grandmother". S.K. told Celine Ouelette that she wants to change her name to S.D..

[36] Dr. Moncion described S.K.'s attachment to her grandmother as disorganized and anxious. S.K. fears that her grandmother threatens her future with the S.D.. And yet, she loves her grandmother and does not want her grandmother to be removed from her life. I consider this to be much like any grandchild sees his/her grandparent.

[37] Z.K., having lived for all but a few months of her life with the S.D., is totally attached to them and they are clearly her psychological parents. At her young age, she is not entirely conscious of the ramifications of the court proceedings. To remove her from the care of the S.D. would be disruptive and damaging according to Dr. Moncion.

[38] Separation of the two girls from each other is not an option in anyone's plan for them. Cutting them off from their secure home now will result in regression and emotional upset.

[39] Speaking more generally, Dr. Moncion postulates, "Attachment is the basis for human development. All emotional growth comes from secure, healthy attachment." On the subject of placement breakdown, Dr. Moncion states, "Risk of breakdown declines the longer the child is in a stable, secure family."

[40] Kenneth Richard, an eminent, learned authority on Native issues, particularly as they relate to children, also testified on the issue of adoption and long term placement of children. Most of his experience has dealt with First Nations children in the social welfare stream. His agency in Toronto is currently servicing approximately 250 Native families.

[41] Reflecting upon the atrocities placed upon Native people, particularly the children, he describes social work among Aboriginal people as "work in progress". Most of the street kids he sees are from adoption or long term care placement breakdown. He describes the best intervention in social welfare issues is prevention. Thus, work in progress.

[42] Mr. Richard has seen countless Native youth, following placement in non Aboriginal families, struggle with their identity when they reach their early teen years. Attachment, he states, is a natural, organic process. Many youth from these families become confused about their identity, internalize misconceptions about themselves and become angry. In his words, "Culture is not learned; it is lived."

[43] Native children raised in non Native homes can feel like tourists when exposed to their Native culture. "The light brush Pow Wow, etc. creates confusion for the child." At the same time, he acknowledges that some non Native placements are successful "where Aboriginal culture is properly brought into the family. Good social work can assist."

[44] Referring to S.K. and Z.K. he states that there is a high expectancy that they "will experience identity confusion and disruption." In speaking of Z.K., he states, "her attachment to the S.D. is significant and cannot be ignored."

[45] Placement with M.B. can succeed if there is proper case management, respite care and an effort to make all stakeholders a part of the girls' lives.

[46] Finally, he agrees that these girls are inseparably connected to each other and should not be separated.

[47] Chief Kirby Whiteduck testified about the impact the mistreatment of Aboriginal people has had upon members of his own band and other Nations throughout Canada. The Court must look not only at the best interests of the child at this time, but also at the best interests of the adult that follows.

[48] In response to a question in cross examination, he agreed that he had received a telephone or email message from S.D. following the placement of the children with her but did not respond to her.

Plan of the Parties

[49] M.B. proposes that the girls reside with her on a full time basis at her residence in Pembroke. She has not lived on the reserve since 2002. She will accept CAS supervision and protect them from intervention by C.K. or any other family member. She will provide them with cultural events and heritage as offered on the reserve although she has not experienced any herself in over ten years. She will work cooperatively with the Native CAS workers on the reserve. She will not expose the girls to drunkenness, drug related conduct or illegal activity. She will religiously follow the diet required by Z.K.. She will allow them contact with the D. family if they wish it. Most of all she has the love of a grandmother to give them.

[50] The D. offer the safety and security of their family to the girls. Z.K.'s diet will be maintained. They will encourage them in their education. Most importantly, they will provide them with access to their Native culture and heritage. In this regard, S.D. has taken them to two Pow Wows, an Aboriginal Arts Festival and an Aboriginal Experience this summer. Her husband has been reading books highlighting Aboriginal traditions and history. Following placement in the family she contacted the band office on two occasions and Chief Whiteduck once to obtain information on cultural material for the girls. Unfortunately none of these requests was acknowledged. She has now turned to the Internet for material of this nature.

[51] The Court is satisfied that over the past two years the girls have expressed their desire to reside in the D. home. This is confirmed by counsel for the girls.

The Law

[52] The Child and Family Services Act provides a complete and comprehensive guide to the Court in assessing the best interests of a child. Sections 37 (4), 57 (5), and Part X specifically underline the need to consider the application of the statute as it relates to Indian and Native Persons. The Court is also cognizant of Section 57 (3) in considering the less disruptive alternative before the Court.

[53] Most instructive is Section 37 (3) wherein 13 considerations are specified for the Court's determination. I plan to deal with them individually.

1. Physical, mental and emotional needs. S.D. has informed herself on the dietary needs of Z.K. and ensured their availability to her. The D. have a separate refrigerator for Z.K.'s food to ensure it is kept separate from other family provisions. Z.K. sees a physician regularly. There have been no reported health issues once the diet was determined. Emotionally, the girls are secure and happy in the D. home and progressing well in school. Although M.B. recognizes the need for strict adherence to Z.K.'s diet there is at least one incident where it appears the diet was not followed. That led to Z.K. having a bloated abdomen and legs. The conclusion of Dr. Moncion that S.K. is anxious and fearful in her grandmother's home suggests lack of emotional security there.

2. Development. There is nothing to suggest that the physical, mental or emotional development of the girls will be imperilled in the D. home. It is difficult to translate this section into M.B.'s home except to say that the current anxiety and fear will certainly travel with the girls as they develop. As well, the loss of attachment to the S.D. will be damaging and disruptive.

3. Proximity to Native culture. Proximity to the Native culture will be advantageous for the girls. This will be difficult while residing in the U.K. The efforts to date on the part of the S.D. demonstrates their awareness of this need and willingness to continue to foster cultural values for the girls. Returning to Canada in the next two or three years will afford them the opportunity to participate more fully in cultural activities. M.B. will have the reserve at her doorstep as long as she undertakes to avail herself of it. She acknowledged herself that she has not done so in over ten years, but states that she is willing to do so now for the girls.

4. Religion. Religion has not been an issue in this proceeding.

5. Emotional ties. Much of this subsection is covered above. The girls are attached emotionally to the D. family while still retaining a desire to see M.B. as a grandmother. To date the girls have not had any ties to the Native community at Golden Lake.

6. Community ties. The same as number 5.

7. Continuity. Continuity in this case is continuity with the S.D.. Dr. Moncion has clearly stated and to some extent has Kenneth Richard, that removal from the D. home will be highly disruptive, damaging and critical to the girls. It is hoped that M.B. can understand this phenomenon without feeling rejection by the girls.

8. Merits of plans. The Court considers the merits of all plans before it.

9. Children's views. S.K. is old enough to express a view and that is clearly to return to the D. family. Z.K. is still young and not able to contemplate all the permeations of expressing a view. However, there is a need for both girls to be together.

10. Delay. This case has already been delayed too long. Hopefully S.K. will be able to be "a normal girl" upon the completion of this proceeding.

11. Risk issues. The risk issues have been set out in the body of the decision.

12. Risk issues (continued). Same as number 11.

13. All circumstances. All circumstances have been considered.

Case Law

[54] It is trite law to state that every case rests upon its own merits. This case is no exception. The issues and players are all unique. I have read the case material provided and have considered it as it applies to this case. Rooted in every case is the principle that where the Court must balance the best interests of a child with the need to ensure the essential development of a child's culture, heritage and background, the latter is always subordinate to the former. First and foremost the Court must ensure the safety, security and protection of a child. I could cite endless cases on this point but decline to do so as the principle is so deeply enshrined in our jurisprudence.

Conclusion

[55] It is the Court's view that all the statutory and case law directions favour the children remaining in the long term care of the S.D.. This plan offers safety, security, continuity and the expressed wishes of the children. I cannot see how removing these factors in order to expose the girls to damage and disruption and possible future risks as described above can be in their best interests. At the same time, I see the need for continued contact with their grandmother and other aspects of their culture and heritage. This can be accomplished through access which hopefully can be expanded once the D. family returns to Canada.

[56] Therefore the Court orders that the girls be Wards of the Crown with reasonable access for M.B. to take place twice per year while the D. family is resident in the U.K. Summer access is to be for a period of four consecutive weeks. Additional access shall take place during a period of 10 days that coordinates with school events. Access for C.K. and N.L.1 is to be supervised as determined by the CAS. Access for other family members shall be in the discretion of the CAS.

[57] Once the D. family returns from the U.K., access should be expanded in keeping with the best interests of the girls.

D. K. Kirkland Justice, Ontario Court of Justice