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 one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45(8) Prohibition: 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.
45(9) Idem: order re adult.
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.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (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.: 373/08
Date: 2015-01-30
Ontario Court of Justice
Parties
Between:
Windsor-Essex Children's Aid Society
Karen M. Robertson, for the Respondent Society
K.R. Deborah Isaac, Band Representative, Walpole Island First Nation - And - K.J. & B.J.
J.J. Avery, for the Respondent K.R. Crystal R. George, for the Respondent Walpole Island First Nation Elizabeth Porter, for the Respondents K.J. and B.J. Catherine Bellinger, Children's Lawyer for the children
Heard: January 26 & 27, 2015
Decision
TOBIN J.:
1: INTRODUCTION
[1] In a child protection case, children may have legal representation if a court determines that legal representation is desirable to protect the children's interests. Justice S. Bondy decided that the children who are the subjects of this Status Review Application be provided with legal representation. The Children's Lawyer was appointed for that purpose.
[2] Mr. R. moved before me for an order, the effect of which was to terminate the children's legal representation. That motion was dismissed. It was not established on any evidence why legal representation was no longer desirable.
[3] I begin this decision with these statements because it is the Children's Lawyer's motion on behalf of the children that is now before the court.
[4] The Children's Lawyer brought a Summary Judgment Motion returnable the first day this case was scheduled for a trial. The relief sought was an order for Crown wardship without access for the child S. D. P., Jr. ("S.") born 2009 and the child F. U. B. ("F.") born 2011, (collectively known as "the children").
[5] The Society and the respondents K. J. ("Mrs. J.") and B. J. ("Mr. J."), the children's foster parents, supported the relief sought by the Children's Lawyer.
[6] The respondent K. R. ("Mr. R."), the children's maternal grandfather, and Walpole Island First Nation (the "Band" or "First Nation") asked that the motion be dismissed. They submit that there is need for a trial to establish material facts necessary for the determination of the Society's Status Review Application in which it seeks Crown wardship without access for both children.
[7] The mother of the children, K. B., died on September 30, 2012.
[8] There are no other parents as the term "parent" is defined at subsection 37(1) of the Child and Family Services Act ("Act").
2: EVIDENCE RELIED UPON
[9] The court relied upon the following evidence in deciding this Summary Judgment Motion:
Children's Lawyer and Society: Affidavits contained in Exhibit Nos. 1 and 2. [Exhibit 'A' is an aid prepared by Ms. George for me setting out the affidavit evidence struck for the purpose of this motion only] These exhibits are to be placed in the Continuing Record.
K. R.: Continuing Record Vol. 9 – Tab 42, affidavit of B. R. sworn December 2, 2014; Tab 43, affidavit of B. M. R. sworn December 2, 2014; Tab 44, affidavit of M. D. sworn December 2, 2014 and affidavit of K. R., sworn January 16, 2015 to be placed in continuing record.
The Band: Affidavit of D. Isaac, sworn January 22, 2015 to be placed in continuing record.
Mr. J. and Mrs. J.: Continue Record Vol. 9 – Tab 47 affidavit of K. J., sworn December 5, 2014; Tab 48 affidavit of B. J. sworn December 5, 2014.
[10] No one asked for the opportunity to conduct oral questioning before the motion was heard.
3: THE FACTS
[11] Both children have Native Status as members of the Walpole Island First Nation.
3.1: Length of time children in care
[12] S. was born 2009. He is now 6 years old. He was the subject of four apprehensions:
(a) July 19, 2010 to July 23, 2010 from his mother;
(b) September 11, 2010 to September 16, 2010 from his mother;
(c) September 29, 2010 to November 10, 2010 from his mother when he was placed in a kinship out-of-care home on Walpole Island; and
(d) April 18, 2011 to the present from the kinship home.
[13] F. was born on 2011 and was apprehended from her mother that day. She has remained in Society care continuously since her birth; a period of three years, nine months.
[14] S. has been placed with K. J. and B. J. since April 18, 2011, a period of three years, nine months. F. has been placed with them since June 20, 2011; a period of three years, seven months.
3.2: Litigation History
[15] The children were found in need of protection by Justice D.W. Phillips on February 16, 2012 pursuant to subclauses 37(2)(b)(i) & (ii) of the Act. They were ordered to be Society wards for a period of four months with supervised access to the mother.
[16] The February 16, 2012 Order was the subject of a Status Review Application issued May 10, 2012. This Status Review Application is now before the court on this motion for summary judgment.
[17] On January 25, 2013, Justice S. Bondy found the children to remain in need of protection under clause 37(2)(i) of the Act because the mother had died and at the time of apprehension under subclauses 37(2)(b)(i) & (ii). This finding was made in accordance with a Statement of Agreed Facts.
[18] The respondent, K. R., was added as a party for disposition purposes by order of Justice Bondy on May 15, 2013. At that time he was also granted access to the children, once per week for up to eight hours per visit supervised.
[19] On August 22, 2013, Justice Bondy ordered that K. J. and B. J. be added as parties for the purpose of disposition. On that same day, the Children's Lawyer was appointed to act on behalf of the children.
[20] On November 12, 2013, after argument, Mr. R.'s access was reduced to twice monthly at times arranged by the parties. A list of agreed upon dates was to be provided. Mr. R. was to provide no less than 24 hours advanced notice of his intention and availability to exercise access.
[21] Finally, on February 20, 2014, Mr. R.'s access was to change, by court order, to once a month for six hours, the exact day to be determined by K. and K. and B. J., as well as other dates set out.
[22] The case was called for trial on December 8, 2014 but was adjourned at the request of the Band to the next sittings of the court.
4: K. R.
[23] On August 27, 2012, Mr. R. and the children's maternal aunt, B. R., first contacted the Society worker, Lisa Pilon expressing an interest in making a plan for the children. K. R. would care for S. and B. would care for F. Neither had seen or sought to see the children since they came into care.
[24] As K. R. and B. R. lived within the jurisdiction of the Sarnia Lambton Children's Aid Society, it was asked to conduct a home study. Arrangements were made for the children to attend Walpole Island to meet K. R. and B. R. This took place on December 21, 2012.
[25] A meeting was held on February 19, 2013 that included Mr. R., Ms. R., Band personnel and Society personnel to develop a "working long term plan for the children."
[26] The kinship assessor delivered a report which provided that a recommendation as to the placement of S. with Mr. R. could not be provided until the assessor had a chance to see the interaction between Mr. R., his then 6 year old granddaughter who he was raising and S. It was after the receipt of this report that an access motion was brought to allow Mr. R. and Ms. R. to have access. As described above, there have been three access orders in favour of Mr. R.:
- May 15, 2013 once a month for 8 hours supervised
- November 12, 2013 twice a month
- February 20, 2014 once a month for 6 hours
[27] The goal of access orders was to establish regular and consistent access between Mr. R. and the children and to assist in the assessment of his plan to assume care of S. and subsequently both children.
[28] Regular and consistent access did not occur. The evidence discloses that Mr. R. did not participate in the vast majority of the scheduled visits. Those that he attended ended early at Mr. R.'s request.
[29] The second access order was obtained in consequence of the number of Mr. R.'s missed visits, as was the third access order. No access took place between February 15, 2014 and June 2014. Since then, Mr. R. has attended approximately one half of the visits.
[30] When asked, the Society sent information to Mr. R.'s solicitor regarding appointments related to medical, including specialist, appointments and plan of care meetings. He did not attend any of the appointments.
[31] Mr. R. expected the first access order (once per week) to be a short term one with a view to further expansion of access. Terms of supervision became a snag. Mr. R. would not agree to Mr. & Mrs. J. being alternate supervisors of access. As a consequence of this requirement, access was not regularly exercised. Many visits were cancelled, explained as "life happens"; many visits were ended early by Mr. R. because he found the supervisors intrusive and restrictive.
[32] Though the matter was before the court two further times to address access, access was contracted rather than expanded. This court cannot look behind those orders.
[33] When access did occur, Mr. R. described it as positive and described activities undertaken.
[34] Mrs. J.'s observation is that S. does not like going on visits. Preparing him for access starts with his refusal followed by "a lot of cajoling" so access will happen and often he will not sleep well the night before access. In the morning of the access visit, he is often aggressive and defiant. On his return from access his "aggressions are substantial."
[35] F. is "always very keyed up and defiant before and after access."
[36] Mrs. J. contrasts these behaviours to their behaviours before and after one time per month respite visits. They are described as happy to go and happy when they return.
5: THE CHILDREN
5.1: S.
[37] S. has special needs related to his behaviour and development.
[38] Prior to turning 6 years of age, he received services at ChildrenFirst. These services were occupational therapy, speech therapy and developmental assessments. These services ended when he was 6 years old as that is the upper age ChildrenFirst provides services for children. The School Board took over these services.
[39] S. attends Senior Kindergarten at L.P.S. At school, he receives significant support including speech therapy – he had surgery to treat a tied tongue – a child and youth worker, an early child educator and is at his young age in an I.E.P.
[40] S. is a very active little boy. He needs a place to quiet himself and he needs to be provided physical items to touch to assist him in calming himself down. Accommodations have been made in his classroom and at school as follows:
(a) He is provided a basket full of tactile items which he can stroke and hold when he requires comfort;
(b) There is a place in his classroom he can go for quiet time;
(c) He has a support worker during the day who can spend time with him outside of the classroom; and
(d) He has additional gym time to burn off his excess energy.
[41] S. has many interests including super heroes, Angry Birds, cars, trucks, Thomas the Train, Cars – the movie, Play-Doh, colouring, Monsters Inc. S. enjoys lacrosse, swimming, listening and dancing to native music. He is a bookworm.
[42] The foster parents were made aware, when S. was placed in their care, that he experienced behaviour and developmental issues.
[43] The child was seen by Dr. Jung who assessed him as having an Alcohol-related Neurodevelopment Disorder (ARND). No finding of fact will be made by me in the Summary Judgment Motion as to the diagnosis as that was contested. It is not necessary for me to make such a finding in the context of this motion. I do find, however, the services being accessed for S. address his specific behaviour and development needs.
5.2: F.
[44] F. also has special needs related to behaviour and development.
[45] Physically, she presents with more significant facial fetal alcohol syndrome features than does S. She has been involved in a number of services since September 2014. She has been going to day care to assist her in getting ready for elementary school. She is not in any extracurricular activities. F. attends with ChildrenFirst where she receives speech and language therapy, occupational and physical therapies. Her speech is not intelligible by the social worker, Sue Briscoe. The foster mother, Mrs. J. is able to assist.
[46] The social worker describes F. as a very social child who is trying hard to communicate.
6: THE PLAN OF THE SOCIETY
[47] If the children are ordered to be wards of the Crown, the Society's Plan of Care is to maintain them in their current foster placement and then to seek an order whereby the children are adopted by Mr. and Mrs. J.
[48] Mr. and Mrs. J. have been married for 24 years and reside with five of their six children, an adopted daughter who is four years old, 14 year old triplets and a 19 year old daughter.
[49] Mrs. J. is a stay at home mother and Mr. J. works at Chrysler Canada. He has been employed there for the past 19.5 years.
[50] Mr. and Mrs. J.'s family is a foster family through Eagles Nest Inc., an aboriginal corporation that provides aboriginal children with aboriginal foster placements.
[51] Mr. J. is registered with the Oneida of the Thames First Nation. His lineage also provides that he has background heritage with the Chippewa of the Thames First Nation. Mr. J. is connected to the Anishinaabe People and has a cultural knowledge and understanding of his background. He proudly shares his Haudensaunee and Anishinaabe (Three Fires) background and identifies with both cultures, heritages and traditions.
[52] He has a lifelong association with his heritage, culture and traditions as evidenced in paras. 6 to 12 of his Affidavit of December 5, 2014.
[53] Mr. and Mrs. J. plan to continue to have the children see their extended family on a regular basis at various social functions and to be raised with their heritage and culture. They are being taught the Ojibwe language.
[54] Their uncontradicted evidence is that Mr. and Mrs. J. respect the children's cultural identity and will ensure they are raised within their culture as Walpole Island Band Members.
7: THE PLAN OF K. R.
[55] Mr. R. is 61 years of age and is committed to providing long term care for the children. He receives ODSP payments which would be supplemented if the children resided with him. He would stay at home to provide full time care.
[56] Services required by the children are available through Mr. R. on Walpole Island. He understands that both children have been tentatively diagnosed as having Alcohol-related Neurodevelopmental disorder (ARND). He sees himself as capable of providing the care the children need just as he has for his granddaughter.
[57] He expects support from his daughter, B. R., who lives close to his home. In her affidavit she describes the support she can provide including helping the children integrate into the Walpole Island Community.
[58] What he proposes is unsupervised and expanded access including overnight visits to transition the children into his care over a short period of time.
[59] Mr. R. had been involved with S. while the child was in the mother's care and tried to help her as best he could.
[60] Mr. R. wants the children to be raised by him on Walpole Island with the support of his family, friends and community. He will provide whatever services the children may need through the Band and outside providers.
[61] He resides with his 8 year old granddaughter, L-A., who he is raising by virtue of a custody order made in his favour by Justice McFayden on February 15, 2012. This child is thriving in his care. His home, as described by him, is an appropriate one to meet the needs of the children.
[62] Mr. R. is an active member of the Walpole Island First Nation. He is a survivor of the residential school system. He has been successful in overcoming many of the challenges that were visited upon him by his experiences. He does not want S. or F. to suffer the harm that can be done by removing children from their blood family and isolated from their own culture and community.
[63] He has proposed a comprehensive plan to care for the children should they be transitioned into his care, including their integration into the Walpole Island community.
8: NATIVE ISSUES: IDENTITY, CULTURE AND HERITAGE
[64] Mr. R. does not want the children to be part of a "taken children" regime. This was his promise to their mother and commitment to his Nation.
[65] B. M. R., a Walpole Island Elder, is an auntie and nookmis to Mr. R. and his children. She views Children's Aid Societies as residential schools under a different name. She speaks Potawatomi-Ojibwe which connects her with all other Ojibwe. Her role as grandmother is distinct to her culture, different than the Mohawk clan-mother tradition. She describes in her affidavit traditional roles of various community members. The Band's traditional way was severely and negatively impaired by the residential school interventions. The tradition has resurfaced and is becoming stronger but will continue to do so only if Band children remain in its direct care.
[66] M. D. is also a member of the Walpole Island First Nation. He has been successful in his academic and business careers. He has known Mr. R. for over 50 years. He returned to Walpole Island with his son (14) and daughter (11) for extended family support. He is an advocate for indigenous care of Walpole Island First Nation children within that community.
[67] D. Isaac filed an affidavit on behalf of the Band. She resides on Walpole Island and is a Band member. She is employed as its Social Services Director. One of her functions is to ensure that the First Nation's interests in children of its membership involved in Child Protection matters are represented at Court. She provided evidence as to the make-up and history of the Walpole Island First Nation. It is a community of approximately 4,480 Band members with approximately 2,272 residents.
[68] Ms. Isaac provided information about residential schools: how they operated and what they did to First Nation's children and their communities. The damage done by them continues to this day.
[69] Ms. Isaac states, in her affidavit, that she was not regarded appropriately by the Society as it planned the children's care. She also describes the services that would be available for the children in the Walpole Island First Nation community: daycare for special needs children, support and educational services for parents with children up to 6 years of age, referrals and transportation to medical appointments for children with special needs and a monthly pediatric clinic. The elementary school has a resource teacher.
[70] The position of the Band on this motion and in this case is informed by the view articulated by Ms. Isaac that:
"We must support keeping our children in our community with their family as Walpole Island has a unique culture, language, history and tradition that will be lost if [the Court] places S. and F. outside of their community. The impact of this is the denial of their inherent right to their identity...
Walpole Island First Nation cannot continue to consent to our children being lost to Crown wardship, given the disconnect and lack of belonging our children feel and suffer as a result...."
9: LEGAL PRINCIPLES
9.1: Summary Judgment Motions
[71] Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant to this case:
16(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring trial.
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[72] Rule 16(6) is mandatory: If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.
[73] The court must give priority to the paramount purpose of the Act as set out in section 1 to promote the best interests, protection and well-being of children. Another purpose, as long as it is consistent with the best interests, protection and well-being of the child, is to recognize that the least disruptive course of action that is available and is appropriate in the particular case to help the child should be considered. A further purpose, again as long as it is consistent with the paramount purpose of the Act, is to recognize that children's services should be provided in a manner that provides early assessment, planning and decision making to achieve permanent plans for children. See Children's Aid Society of Niagara Region v. L.B. and J.S., 2014 ONSC 1151, (Ont. Fam. Ct.) at para. [62]. In addition, two further purposes are to recognize that; (a) wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences and (b) Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
[74] Accordingly, the question of whether there is a genuine issue for trial must be determined in the context of the overarching principles in section 1 of the Act's primary purpose which is to "promote the best interests, protection and well-being of children" and this must be done considering the narrow time lines constraining the available dispositions imposed on the court by sections 57 and 70 of the CFSA. See Children's Aid Society of Waterloo Region v V.L. and A.C.P., [2006] O.J. No. 3785, (Ont. S.C.), per Justice Peter B. Hambly, at paragraph [48]: as cited by Justice Kevin Sherwood in Children's Aid Society of Haldimand and Norfolk v. J.H.M. and C.D.W., 2014 ONCJ 590 at paras. 44 and 45.
[75] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Children's Lawyer as moving party to show that there is no genuine issue for trial: Children's Aid Society of Hamilton v. M.N., 2007 O.J. No. 1526 (Ont. S.C.J.) and Children's Aid Society of Halton Region v. K.L.A., [2006] O.J. No. 3958 (Ont. C.A.) per Rosenberg J.A., at para [19].
[76] Summary judgment should proceed with caution. However, it is not limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence.
[77] A party answering a motion for summary judgment cannot just rest on bald denials; the party must put his/her best foot forward, showing that there is a genuine issue for trial: Children's Aid Society of Toronto v. T.(K.), 2000 O.J. No. 4736 (Ont. C.J.).
[78] The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material: Children's Aid Society of Toronto v. T.(K.), supra; and The Children's Aid Society of the Regional Municipality of Waterloo v. C.A.D., 2011 ONCA 684.
[79] On a motion for summary judgment: (a) a full and complete evidentiary record is required; (b) only admissible evidence may be tendered; and (c) the motions judge is entitled to assume the record contains all evidence the parties will present if there is a trial. Hearsay evidence is to be avoided as evidence on a motion for summary judgment must be restricted to "admissible" evidence given the nature of the proceeding and the relief sought. As such the admissibility of hearsay evidence must be supported by evidence of necessity and reliability, failing which it must be excluded. Simply put, "if evidence is not admissible at trial, it is not admissible on a motion for summary judgment." See Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (Ont. S.C.J.) per Gordon J. at paragraphs [28] to [30] and Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5.
[80] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact: Children's Aid Society of the District of Nipissing v. M.M., 2000 O.J. No. 2541 (Ont. S.C.J.); Children's Aid Society of Hamilton v. M.N., supra.
[81] In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on – and evaluate – the sufficiency of the evidence as disclosed by the affidavits: Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224, 2004 O.J. No. 4084; and Children's Aid Society of Hamilton v. C.R., 2006 O.J. No. 3442. Self-serving evidence that merely asserts a defense or a claim without providing some detail or support evidence is not sufficient to create a genuine issue for trial: Goldman v. Devine, 2007 CarswellOnt 2352 (Ont. C.A.).
[82] As Justice Pazaratz stated at para. 43 of Children's Aid Society of the Niagara Region v. S.C., 2008 O.J. No. 3969 (Ont. S.C.J.): "...no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."
9.2: Disposition
[83] The disposition options set out in s. 57 of the Act are as follows:
57(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:
That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding 12 months.
That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.
That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of 12 months.
[84] Subsection 57(2) of the Act requires that the court ask the parties what efforts the Society or another agency or person made to assist the children before intervention under Part III of the Act.
[85] Subsection 57(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless the court determine that these alternatives would be inadequate to protect the child.
[86] Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purposes of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child and to recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family provided that it is consistent with the best interests, protection and well-being of the child.
[87] Subsection 57(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.
[88] Where the children who are the subject matter of the case are Indian or native persons the court must consider subsection 57(5) which provides as follows:
57(5) Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,
(a) a member of the child's extended family;
(b) a member of the child's band or native community; or
(c) another Indian or native family.
[89] In determining the appropriate disposition, the court must decide what is in the children's best interests. The court is to consider the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:
37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships by blood or through an adoption order.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
37(4) Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child's cultural identity.
[90] Subsection 57(1) of the Act is limited by section 70 of the Act, which provides that the court shall not make an order for Society wardship that results in a child being a Society ward for a period exceeding 12 months, if the child is less than six years old on the day the order is made, or a period exceeding 24 months, if the child is six years old or older on the day the order is made, unless the time is extended as provided in subsection 70(4). This subsection of the Act gives the court discretion to extend the time periods above six months, if it is in the child's best interests to do so.
[91] A Crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies: Catholic Children's Aid Society of Hamilton-Wentworth v. G.(J.) (1997), 23 R.F.L. 4th 79 (Ont. S.C.J.).
[92] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused: Children's Aid Society of Toronto v. D.S..
[93] In the recent Ontario Court of Appeal decision Algonquins of Pikwakangan v. Children's Aid Society of the County of Renfrew, [2014] O.J. No. 4405, the Court considered how First Nation issues are to be addressed in child protection cases where a determination of best interests is required. The Band submitted that the trial judge had balanced "the issues of the children's First Nations status against the issue of their best interests and in doing so essentially created two separate tests: First Nations' heritage issues and best interests." In response to that submission, the Court held at paras. 70 and 71 as follows:
"[70] In connection with the appellants' second point, the trial judge did not create separate tests for Aboriginal heritage and best interests. His reasons read as a whole reflect that he considered Aboriginal heritage in coming to a determination of the children's best interests – as the CFSA requires him to do.
[71] The Act makes clear the Legislature's intention that First Nations' issues be seriously considered. However, all considerations, including First Nations' issues, are subject to the ultimate issue: what is in the best interests of the child? Nothing displaces the best interests of the child and no section of the Act overrides the child's best interests."
[94] Thus, the Court articulated the test that is to be applied in this case. Best interests is the only test on disposition and the test includes a consideration of First Nations' issues.
10: APPLICATION OF LEGAL PRINCIPLES
10.1: Subsection 57(1)
[95] Subsection 57(1) requires the court to determine as a first step whether a court order is necessary to protect the children in the future. I find that a court order is necessary. In this case, the children can be placed with the Society or Mr. R. only under a court order. No one has submitted otherwise.
10.2: Subsection 57(2)
[96] Prior to the intervention with this family under Part III of the Act, that is before S. was apprehended, the mother had been referred to relapse prevention and substance counselling. F. was apprehended at birth.
10.3: Subsection 57(4)
[97] The Society did look at alternate community plans for the children as follows:
Upon being contacted by Mr. K. R. and Ms. B. R. in August 2012, the Society undertook for a kinship assessment to be completed. A referral was made to the Sarnia-Lambton Children's Aid Society as Mr. R. and Ms. R. lived within that Society's jurisdiction.
Arrangements were made by the Society for the children to go to Walpole Island to meet Mr. R. and Ms. R. This occurred in December 2012.
In order that the family members may understand the children's needs and to develop a working long term plan, a meeting was convened that included Mr. R., Ms. R. and Ms. Isaac, among others.
An agreement and then court orders were sought and obtained to allow for access by Mr. R. and Ms. R. to the children. The goal was to establish regular access. This would allow the children to know their grandfather and to aide in the kinship assessment.
[98] The Society did meet its statutory mandate to consider family plans.
11: BEST INTERESTS CONSIDERATIONS
[99] The evidence must now be considered in relation to the best interests considerations provided for in the Act to determine if there is a triable issue with respect to which of the available orders to make under subsection 57(1) of the Act.
11.1: The Children's Physical, Mental and Emotional Needs
[37(3) ¶1 and 2]
[100] Regardless of the label or formal diagnosis attached to the children, both have special needs related to their mental and emotional needs. Both have behavioural and developmental problems that need to be addressed.
[101] Mr. R.'s evidence is that these needs can be met by service providers in his community or outside of it. The evidence of the particulars of these services comes from him and Ms. Isaac. There is no evidence that the specific needs of these children can be addressed by the proposed agencies. There is no evidence as to the waiting times to be seen and have services start. One would expect this investigation to be part of a plan to transition to ensure continuity of services for the children.
[102] Mr. R.'s evidence is that he can meet the children's needs just as he has with his granddaughter. The evidence is clear that his granddaughter is thriving in his care. There is no evidence of a kinship assessment of how the three children and all their needs can be met by Mr. R.
[103] Mr. R. has not attended medical and school meetings. He has not asked about them.
[104] Under the Society's Plan of Care, services are in place and have been in place for some time with doctors, S.'s school and F.'s day care. Their physical, mental and emotional needs are being met while in care.
11.2: Cultural Background
[37(3) ¶4 and 37(4)]
[105] The children are members of the Walpole Island First Nation. It is of the utmost importance to their wellbeing that they maintain a connection with their First Nation. It is evident that the Walpole Island First Nation and Mr. R. himself have suffered greatly because of the residential school system. Keeping these children, S. and F., from being raised by a family member on Walpole Island First Nation territory will inhibit the resumption of this First Nation's traditional ways. Ms. Isaac's evidence is that about one-half of the Band members do not live on the Walpole Island community.
[106] Both Mr. D. and Ms. Isaac have observed adoptions of Native children fail. They are emphatic that adoption by someone out of their First Nation will result in a disconnect and lack of belonging. This is a risk that will follow S. and F.
[107] The Society's plan is to have the children placed in a family, the Js, with First Nation heritage, culture and traditions. Mr. J. has provided significant details of his First Nation ancestry, his understanding of First Nation culture and participation in its traditions, some of which are related to the Three Fire Confederacy.
[108] Mr. J. and his wife are committed to both children maintaining and developing their First Nation traditions, including those of the Walpole Island First Nation. They are being taught the Ojibwa language. They will ensure that the children are raised within their culture as Walpole Island Band members.
[109] Mrs. J. has a diverse background that includes First Nation ancestry through the Mikmaq and Abenaki people.
[110] Through Mr. and Mrs. J., the children see their extended family on a regular basis at various social functions that occur at the Can-Am Indian Friendship Centre and at various functions throughout Southern Ontario.
[111] The Society plan will not provide for the children's connection to the Walpole Island First Nation Territory but it will not isolate them from their culture, heritage and traditions or extended family. The risks identified by Ms. Isaac and Mr. D. are addressed to a significant extent by the Society's Plan of Care. The children will remain connected to the culture, tradition and heritage of their First Nation.
11.3: The Children's Place in a Family
[37(3) ¶5, 6, 7 and 8]
[112] The children have been in the care of Mr. and Mrs. J. for more than three years and nine months. They are integrated now into that family. There has been and will continue to be continuity of care of these special needs children within this family.
[113] Mr. R. has not ever been a caregiver to the children.
[114] Access did not take place as expected. After the opportunity to do so for two years Mr. R. did not attend access other than on occasion – the reasons do not matter why this access did not occur as much as the fact that it did not.
[115] There is evidence that his access with the children, when it occurs, goes well and that this is something they enjoy. This evidence is contrasted with that of Mrs. J. that getting the children ready for and coming back from access is traumatic for them.
[116] Mr. R. is not asking for the immediate return of the children. Rather, he aspires to have the children placed with him by way of an expedited transition through access. This is what was supposed to take place over the past two years but has not. The evidence does not reveal why it would be successful now. Each time the case was before the court for access, it was reduced from once a week to twice a month to once a month. Sometimes, these changes occurred on consent but, in any event, on all occasions an order of the court was obtained which order would have had to have been supported by evidence. After this much time in care, there would be much risk in trying out this plan.
[117] The transition plan proposed by Mr. R. is akin to a Society wardship order with ever-expanding access. This is not the type of order the court can make at this point in time. The s. 70 timelines are long past. These timelines speak to the children's need for a permanency plan within a defined time frame.
11.4: Subsection 57(5)
[118] In accordance with subsection 57(5), both plans would see the children placed with a First Nations family.
12: DECISION
[119] On this Summary Judgment Motion, the court has had the benefit of a full record. The evidence is comprised of the affidavits the parties intended to file at the trial of this matter.
[120] In my role as motions judge, I have not assessed credibility nor have I weighed the evidence presented. Findings of fact are based upon the uncontradicted evidence.
[121] On the uncontradicted evidence, as detailed in these reasons, and applying the legal considerations set out earlier, I conclude that there is no genuine issue requiring a trial to determine the children be made wards of the Crown.
[122] I do not see a trial judge removing the children from the native family home they have lived in for over three years and nine months to transition, however quickly, to their First Nation grandfather who has not yet been able to affect a transition despite a plan in place to do so for the past two years.
13: ORDER
[123] An order will therefore issue that the children, S. D. P., Jr. and F. U. B. be made wards of the Crown.
[124] In Mr. R.'s amended Answer and Plan of Care, he claims access though he describes it as being immediate, unsupervised and expanding toward placement. There is a genuine issue for trial as to whether Mr. R.'s access to the children is beneficial and meaningful to them and may not impair adoption. I direct a trial of this issue.
Released Orally: January 28, 2015
"original signed and released – Jan 30, 2015"
Barry M. Tobin Justice