WARNING

The court hearing this matter directs that the following notice 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.

(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.

(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

Ontario Court of Justice

Date: 2016-11-29

Court File No.: North Bay C273-14

Parties

Between:

Children's Aid Society for the District of Nipissing and Parry Sound, Applicant

— AND —

S.F. (Biological Mother)

and

R.C. (Step-Father)

and

M[...] First Nation,

Respondents

Before: Justice L. J. Klein

Heard on: July 4, 25, 29 and September 26, 2016

Reasons for Judgment released on: November 29, 2016

Counsel

• Jean Rochon — counsel for the applicant society
• Nicola Munro — counsel for the respondent S.F.
• R.C. — on his own behalf
• Peter W. Rutland — counsel for the Office of the Children's Lawyer, legal representative for the child
• Elaine Migwans — Band representative for M[...] First Nations

Decision

Klein, J.:

1. Introduction

[1] The Children's Aid Society for the District of Nipissing and Parry Sound (the "Society") originally brought an application returnable April 27, 2014 seeking a 6 months supervision order over the child, J.R.F., born […], 2004. The mother, S.F., voluntarily placed the child with the paternal step-grandmother, P.C. (the "grandmother") on August 22, 2014 at the time that the Society's application was issued.

[2] I am aware that the legal status of R.C. is as a step-father to J.R.F. and, by extension, P.C., is the paternal step-grandmother. I have used the terms father and grandmother to acknowledge and respect the fact that J.R.F. considers them to be her father and grandmother as she has never had any other such figures in her life. In doing so, I do not intend these descriptors to upset or offend any other party most specifically the Mother, S.F. I am simply reflecting the reality as it exists for the child.

[3] On the initial return of the application on August 27, 2014, a temporary without prejudice order was made by Justice A. H. Perron placing the child in the care and custody of the grandmother subject to supervision of the Society. The mother's plan of care dated August 25, 2014 sought the placement of the child with the maternal aunt and uncle, A.F. and D.I., (the "aunt and uncle") in order for the child to be close to her mother who was residing in E[…].

[4] As a result of this, kin assessments were conducted on the grandmother and the aunt and uncle. The grandmother's was completed by the Society on June 24, 2015. The aunt and uncle's assessment was completed by the Society in E[…] on April 24, 2015. Both the grandmother and the aunt and uncle were recommended for consideration as a kinservice child out of care placement for the child.

[5] On October 6, 2015, a temporary care and custody hearing was held before Justice G. P. Rodgers who gave oral reasons in support of his written endorsement. His Honour ordered that the child remain in the care and custody of the grandmother with access to the mother, the step-father, R.C. (the "father") and the aunt and uncle. His endorsement specifically set out that regular access by the child with her aunt and uncle and her mother was necessary to preserve the child's cultural identity as a native person.

[6] This matter was further delayed from December 2015 to March 2016 in order to deal with the issue of the identification of the child's bio-father and service upon him. Service was dispensed with given that he had had no contact with the child and despite vigorous efforts by the Society and the Band to locate him.

[7] On March 11, 2016 the Society filed a new plan of care seeking to place the child with her aunt and uncle pursuant to a s.57.1 Child and Family Services Act ("the CFSA") custody order. The father responded with a new plan of care to continue the placement of the child with the grandmother.

[8] At the trial management conference conducted by me on March 22, 2016, an order was made amending the application to formally seek a s.57.1 custody order with the child to be in the care and custody of the aunt and uncle. Also on that date, I made a consent final order which included a finding in need of protection pursuant to s.37(2)(b)(ii) CFSA together with the statutory findings pursuant to s.47(2) of the Act.

2. Background

[9] A statement of agreed facts was filed on May 11, 2016 and was placed in the trial record at tab 10. It set out the mother's history of involvement with the Sudbury-Manitoulin Children's Aid Society on an on and off basis. On July 9, 2010 that Society sought court approval to withdraw its application while at the same time entering into a voluntary service agreement with the mother.

[10] On September 13, 2010, Sudbury-Manitoulin CAS transferred its file to the Society as the mother and father had moved to Thorne, Ontario. A voluntary service agreement was entered into between the Society and the mother on July 24, 2014. On August 22, 2014, the Society commenced its application in these proceedings and it was agreed, after a technical apprehension from the mother, that the child would be placed with the paternal grandmother. The child was apprehended from the mother but she had been staying with the grandmother with the consent of the mother due to the mother's mental health problem. The grandmother was willing to provide a temporary home for the child while the mother's medical problems precluded her from caring for the child in addition to other concerns held by the Society.

[11] The mother suffers from schizophrenia having been so diagnosed in 2010. This mental health problem has made the mother unstable and unable to care for the child at times. The father has an acquired brain injury which causes him to have low energy, irregular sleep patterns, narcolepsy and chronic migraines. The mother and father's relationship was not stable and there were incidents of domestic violence and substance abuse.

[12] The mother had been admitted to the Acute Inpatient Psychiatry Unit in April 2014 and June 2014. She remains under the care of a psychiatrist and takes medication for her schizophrenia. The stability of her mental health remains an ongoing issue with an episode occurring in the early fall of this year.

[13] Access by the child to her mother and father was not an issue for trial. The child wants to see them both and the only concern is for her safety both physically and emotionally which can be monitored by the grandmother and the aunt and uncle.

3. The Issues

[14] The issue for this court to decide is relatively simple: should J.R.F. be in the custody of her paternal step-grandmother, P.C. or in the custody of her maternal aunt and uncle, A.F. and D.I. pursuant to a s.57.1 CFSA custody order?

4. The Law

[15] Section 57.1 of the Act reads as follows:

57.1 Custody order. — (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. (emphasis added)

(2) Deemed to be order under Children's Law Reform Act. — An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

(3) Order restraining harassment. — When making an order under subsection (1), the court may, without a separate application under section 35 of the Children's Law Reform Act,

(a) make an order restraining any person from molesting, annoying or harassing the child or a person to whom custody of the child has been granted; and

(b) require the person against whom the order is made to enter into such recognizance or post such bond as the court considers appropriate.

(4) Same. — An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act and may be enforced, varied or terminated only in accordance with that Act.

(5) Appeal under s.69. — Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69.

(6) Conflict of Laws. — No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada); or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

(7) Application of s.57(3). — Subsection 57(3) applies for the purposes of this section.

[16] The important elements of this section are as follows:

(a) The custody order in s.57.1 can only be made once there has been a finding that a child is in need of protection. J.R.F. was found to be a child in need of protection on March 22, 2016 by consent order made by me under section 37(2)(b)(ii) CFSA.

(b) Once the finding has been made, the test is whether it is in this child's best interests to make this type of order as opposed to an order under s.57(1) of the Act. Criteria for a child's best interests are set out in s.37 (3) of the Act.

(c) The Society or any other party (emphasis added) can apply for a party or other persons to have custody of the child. These "other persons" are not required to be parties to the proceedings, but they must consent to the custody order (as does any party). The grandmother and the aunt and uncle all consented to assume custody of the child when providing evidence to the court. The aunt and uncle are the proposed custodians of the child in the Society's amended application. The grandmother is the proposed custodian in the father's plan of care.

(d) Section 57.1 custody orders and any access orders made at the same time as these custody orders are deemed to be orders made under s.28 of the Children's Law Reform Act, R.S.O. 1990, c.C-12 as amended. Any subsequent variations of this order are brought under the Children's Law Reform Act and the Society would not be a party. The custom, however, in this jurisdiction has developed whereby the title of proceedings is amended to remove the Society as the Applicant and substitute the custodial parent(s) therefor. A clause is added to the s.57.1 custody order requiring the Society to be provided with notice of any motion to change or application to vary the custody/access terms of the order.

This local practice is intended to assist the custodial parent(s) with the challenges inherent in a s.57.1 custody order. Justice Stan Sherr ably identified and discussed the implications of a s.57.1 for the custodial parent in paragraph 9 of his decision in the case of Children's Aid Society of Toronto v. K(C), 2008 ONCJ 38.

5. Positions of the Parties and Evidence

[17] The Society's amended application requesting a s.57.1 custody order in favour of the maternal aunt and uncle was supported by the mother and the First Nation.

[18] The father's plan of care seeking a s.57.1 custody order leaving the child in the care and custody of her paternal grandmother was supported by the Office of the Children's Lawyer.

5.1 The Society

[19] The Society conceded that there were no protection concerns if the child were placed with either the grandmother or the aunt and uncle. Each household was an approved kin placement.

[20] The child protection worker, Charity Young, was the primary worker since February 2015 and has facilitated all access for the child with her mother and aunt and uncle. She has mediated any disputes that arose among the adults. Her evidence was replete with incidents of the grandmother and the aunt and uncle not working well together prior to the trial. Both sides had legitimate complaints about the behavior of the other. It is clear in the totality of the evidence presented that both households view custody of the child as a contest to be won or lost. They engaged in frequent "adult conversations" with the child and placed enormous pressure on her. At no time was the father reluctant to support access. He followed the schedule changes as they occurred.

[21] Not surprisingly, the child wavered in her expression of what her wishes, her views and preferences, were. The Society reports that of the eight reported expressions made by this 12 year old child, two of them were to reside with her aunt and uncle in E[…] to be closer to her mother.

[22] The first such report came from the uncle on December 8, 2015 and involved a conversation that he had with the child while returning her to the grandmother after her access visit in E[…]. Ms. Young confirmed with the child in a private meeting held December 15, 2015 that she had told her mother that she wanted to live in E[…] in order to make her mother happy. Also during that conversation the child told Ms. Young that she wasn't sure she wanted to move but that she did want to see her mother more often.

[23] The second report was by a voice mail left by the child on Saturday, February 27, 2016 indicating that she had changed her mind and wanted to reside in E[…] after her school year in Thorne was completed. This report was followed by a telephone call from the uncle to the worker on Monday, February 29, 2016 wherein the child had again changed her mind upon possible influence from the grandmother and father. Subsequent conversations with the child confirmed her continued desire to move to E[…] and her concern that if she told her father it would hurt his feelings and that he would try to take her out of the move.

[24] On Wednesday, March 16, 2016, during the middle of March break spent in Thorne, the child again left a voicemail to advise Ms. Young that she had changed her mind and wanted to stay in Thorne. The worker met with the child on three further occasions and the child remained consistent in her desire to remain living in Thorne. During questioning of the child on April 15, 2016, the worker noted that the child "could not give any reasoning that going to E[…] would pose a risk to her wellbeing".

[25] On May 3, 2016 a "talking together" circle was conducted in Sudbury. It was attended by all parties and counsel. The child attended accompanied by her counsel, Mr. Rutland and by her school counsellor, Danielle Shank, who had been meeting with the child two times per month at school. The circle was facilitated by Ms. Migwans, the Band representative due to an unforeseen unavailability by the original facilitator. Ms. Young testified that the child was brave and strong in expressing her wish, in the presence of all the most important people in her life, to remain in Thorne with her grandmother. Following that circle the child sought out her mother and they hugged. The child has consistently voiced her concerns about hurting any one of her family members' feelings by sharing where she wants to live. She is further very clear that she wishes to have visits with the family members with whom she does not reside.

[26] The Society recognized that all of the adults in the child's life: her mother, her father, her grandmother, her aunt and her uncle have meaningful and beneficial relationships with her and are cherished by her.

[27] The Society further acknowledges that this child is lucky to have such a loving family all of whom want nothing but the best for her to have a successful life.

[28] The Society, despite the child's clearly expressed views and preferences, supports the child's placement in her aunt and uncle's home in E[…] as it will mean that she would be closer to her mother, her extended family, her First Nations community, and its cultural advantages. They support monthly access visits with her father and grandmother presumably to reduce the wear and tear on the child from all the travel and lengthy visits during the regular school holiday periods. Frequent and regular telephone access should also occur.

[29] The Society is aware that the Band also supports the proposed placement with the aunt and uncle.

[30] The Society has concerns that the child's needs may not be met by the grandmother especially in ensuring that regular access visits and frequent telephone and social media contact occurs between the child, her mother and her aunt and uncle. In short, the society played a big role in facilitating access and in solving problems as they developed. In supporting a s.57.1 custody order, the Society will no longer be in a position to provide those services.

5.2 The Mother

[31] The mother took the position that her placing of the child with the grandmother at the time of the Society's technical apprehension was to be a temporary arrangement. She took the position that the child should be in the care and custody of the aunt and uncle pursuant to a s.57.1 custody order. This would permit her to have reasonable access with reasonable notice which could be supervised by the aunt or uncle as the child would be living close to her in E[…]. She notes that the aunt and uncle stepped forward immediately upon this matter coming before the courts but were not finally approved as kin placements until April 29, 2015.

[32] The mother contends that the present access schedule providing for visits by the child to the aunt and uncle every second weekend is too tiring for the child given the eight hour round trip involved in facilitating the same. On that basis she proposes that the access for the father and grandmother be on a once per month basis with equal time at Christmas and March break with one week in each of the months of July and August. Frequent telephone and email contact between the child and her grandmother and father would permit them to maintain their relationship.

[33] The second argument raised by the mother in support of her position is that this placement would permit the child to be raised by members of her biological family (the aunt) and in an environment that respects the child's cultural heritage and traditions as an Aboriginal child. Susan Manitowabi, a doctoral candidate and professor in the School of Native Human Services at Laurentian University was called as an expert witness on the potential effects of cross-cultural placement of Aboriginal children in Non-Aboriginal homes. She testified to a number of issues that could arise in the present placement. Firstly, she spoke to the importance of the child being connected to her culture in order to prevent difficulties from arising from her loss of identity as an Aboriginal person. These children will eventually seek out their community. Secondly, in the native culture children are "gifts from the Creator" and the role of their family is to raise their spirits. As a third consideration, Ms. Manitowabi cited the importance of the locale of the child's education to provide a connection to the child's language and culture through proximity to their home community. Finally, it was her evidence that the issue of attachment oftentimes arises. She spoke to a cultural attachment theory and the importance of the child acquiring a relational world view. Ms. Manitowabi testified that each Aboriginal community was distinct due to its relationship to the land. The learning for the child is in being there on the land in her home community (M[...] First Nation). This relationship will take time in order to gain knowledge of the culture and should be learned "the sooner, the better". She identified the risk inherent in an Aboriginal child being placed in a Non-Aboriginal family as being the lack of exposure to their cultural identity which could cause the child to resent this family later in life. She did concede that some people are happy to be in another culture. The experience of residential schools and the "sixties scoop" confirmed both results for Aboriginal children. The child's sense of family can range from blood relations to those raised within the family context such as extended family.

[34] When asked on cross-examination whether the child might suffer a further identity loss by being dramatically uprooted from a family and a community, Ms. Manitowabi answered that people get uprooted for many reasons, not against their will, necessarily moving them from something familiar to unfamiliar. When asked whether the child's wishes would be relevant to the decisions to uproot or not, Ms. Manitowabi, answered that if the child were put in a position where she was not ready to make that decision or where she was manipulated, the child's wishes should not be respected. On the other hand, there could be some trauma suffered by the child by not respecting her wishes. When asked if there could be an impact on the acquisition of language and culture by the child where one of the placement parents was a Non-Aboriginal, Ms. Manitowabi opined that there should be no impact if that person supported the Aboriginal parent in their culture and beliefs. Finally, on cross-examination, she confirmed that there is no evidence that all Aboriginal children will suffer loss when placed in a Non-Aboriginal home.

[35] The mother, S.F., told the court that the child, is of Ojibway/Mohawk heritage and that she is a member of M[...] First Nation. Her daughter speaks both English and French having attended French language schools. J.R.F. was given a native name, N.K., at six months of age with the assistance of an elder, J.A.

[36] The mother testified that in the early years of the child's life, the maternal grandparents took custody of the child due to the mother's mental health issues involving ADHD and schizophrenia. They essentially raised the child until she was 21/2 or 3 years old but the mother maintained a big role in the child's life. Unfortunately both maternal grandparents died with the grandmother passing on February 2, 2015. Neither was in a position to care for the child during this Society's intervention.

[37] The mother describes the child as mature, intelligent, academically strong, sensitive and shows no signs of having "an attitude". She also conceded that the child was doing well in the care of the father and grandmother. Further, the mother confirmed that she and the father moved to Thorne in 2010 and that the child has been living there, but for a brief period in 2012, ever since. The grandmother had considerable involvement with the child during that time which led to her conclusion that the child would be well looked after when she placed the child with the grandmother at the apprehension stage.

[38] With the very early expression of interest by the aunt and uncle to care for the child and with the mother's move to E[…], the mother's plan for the child was to support placement with the aunt and uncle. This would allow for more frequent contact between mother and child with the child living with extended family close to her home Aboriginal community. The schooling in E[…] has extensive Aboriginal components and is within walking distance of the aunt and uncle's home as opposed to the 45 minute bus ride from Thorne to the North Bay school. There are other amenities in E[…] with a community centre next door. The child, with the Society's blessing, was taken on a tour of the various schools in E[…] by the aunt and uncle. The child has been exposed to the community at M[...] First Nation, has attended cultural activities such as a Powwow and has been introduced to extended family on the Island.

[39] The present access arrangements for the child are exhausting for everyone including the child. The mother proposed that they be reduced to monthly visits for the grandmother and father during much of the school year with Christmas and March breaks being the exception. She testified that there have been problems with telephone and Facebook communication. This was confirmed by the grandmother who complained that the mother and the aunt and uncle where upsetting and confusing the child by engaging in adult conversations. Hopefully as a useful by-product of the trial and through the pleadings and exhortations of both the OCL, Mr. Rutland and the Band representative, Ms. Migwans, all of the adults in the child's life will "play nice in the sandbox" by not fighting over her and by not involving her in any disputes. That message was well-delivered and all of the important adults seemed to acknowledge the destructive effects of their words and actions on this beautiful, intelligent and delightful 12 year old girl.

[40] The mother indicated in her testimony on July 25, 2016, that her mental health had stabilized while under her psychiatrist's care in E[…] and by taking the same medication for the past 2 years. She feels in a better place where she is able to make her own decisions. She can do more and is more self-confident and hopes to advance to unsupervised visits with the child. The aunt and uncle are very supportive of her and supervise the child's visits with her. Dr. Aulakh's letter of June 6, 2016, indicates that the mother's symptoms were no longer overt but she was never entirely free of symptoms. By the conclusion of this trial the mother suffered a setback to her mental health thereby confirming the Society's concerns regarding risk to the child and, unfortunately, indicating the problematic nature of her illness.

[41] The mother clearly expressed that her greatest fear is in losing her daughter. She does not want the child to go through what she went through by being isolated from family and she her wants to connect with her culture and her First Nations community. She testified than neither she nor her sister, the aunt, lived on the First Nation. Prior to 2014, her connection to M[...] First Nation was through periodic visits but she did not experience the traditions, culture or ceremonies that form part of the life of that community. She expressed that she would like that for her daughter.

[42] On cross-examination by OCL counsel, Mr. Rutland, the mother was asked about the "talking together" circle that was held on May 3, 2016. She said that the purpose of the circle was to hear everyone speak. She admitted that the child gave her wishes to everyone. The child did not want to upset anyone and chose to stay in Thorne with her grandmother and father while having frequent visits with her mother and aunt and uncle. She contended that the child "flip flops" with her wishes: when with mother and aunt and uncle, she chooses E[…]; when with father and grandmother, she chooses Thorne and when all together, she chooses Thorne. When asked by Mr. Rutland why she did respect the child's wishes she replied that she did not believe that the father and the grandmother were supportive of the child's relationship with her as they did not want to be civil about the issues before the court. She went on to say that the child is not ready to make a decision as she is only 12 years old and is not thinking about her future. When confronted with the facts of the child's awareness of what were the positives involved in living in E[…]: the schooling, the community centre next door, the presence of family (being, her mother, her aunt, her uncle and cousins), the cultural events in M[...] First Nation such as Powwows and festivals and the child chose Thorne, the mother did not change her view that the child could not make such a decision. When asked why the mother wanted to move the child from Thorne where she is doing well and wants to remain, the mother replied that she is not doing so because she is selfish but because the child should be close to family.

[43] The maternal aunt, A.F., is the mother's sister and with the support of her common law spouse, D.I., presented themselves as possible kin care providers shortly after the Society made a technical apprehension of the child. The primary reason for their bringing forth a plan was to permit the mother to see the child on a daily basis.

[44] The aunt and uncle reside in E[…] with 3 children of their own ages 9, 3 and 1 year old, together with the uncle's 16 year old son from his previous relationship. They have a bedroom set aside for the child's use during her access visits and into the future if she were to live with their family on a full time basis.

[45] The aunt testified that the child told them that she wanted to live in E[…] and that the child had told the Society worker of that wish. Such communication occurred prior to the "talking together" circle in May 2016. Her view is that the child needs to be with family, needs to retain her relationship with her mother and needs to be rooted in her culture.

[46] She expressed the concerns that the child would lose her relationship with the mother, with the aunt and her family. The child would also lose her culture. Her family is in a position to facilitate visits between the mother and the child to encourage the child to learn her culture through attendance at Powwows and sweat lodges. At the time of her testimony at trial on July 25, 2016 she was comfortable with the child and mother having independent, unsupervised time together. She expressed confidence that the mother could be left alone with the child. This court would suspect that the aunt would not hold this same view in light of the subsequent mental health problems suffered by the mother.

[47] The question of how the child came to visit schools in E[…] was canvassed by the Society's counsel, Mr. Rochon, in cross-examination. Paragraph 11 of the aunt's affidavit sworn June 8, 2016 and contained in tab 13 of the trial record indicated that the school tour was as a result of the child's request. At trial the aunt indicated that she thought that the Society worker, Charity Young, told the aunt and uncle to show the child around the E[…] schools. It appears that neither of those explanations was correct and that the tours were conducted for the sole purpose of influencing the child's decision as to where she wished to live.

[48] In cross-examination by OCL counsel, the aunt confirmed that the child was doing well in Thorne, that she was mature, intelligent, sensitive and sociable. Further, she confirmed that the child saw P.C. as her grandmother. She admitted that she and her spouse were not aware of Society involvement with the mother and child in 2010 and did not know that the mother moved to Thorne following that. The mother and child came to live with the aunt and uncle's family in 2012 for 2 weeks and then returned to live in Thorne. The aunt and uncle did not do anything then. In 2014 when the mother contacted her from the lodge after the precipitating mental health episode, she and her spouse decided to present themselves as kin placements. They did not support the placement of the child with the grandmother. They, in fact, did not know anything about Thorne or the child's schooling. They objected to the placement as they felt, for reasons known only to them, that the child would be safer with them. Her concern expressed at paragraph 9 of her affidavit was that the father and grandmother would not want to share in the driving to facilitate access visits if the Society was no longer involved.

[49] Upon further cross-examination by the OCL counsel on the events of the May "talking together" circle the aunt confirmed that everyone spoke from the heart and that the child expressed her wish to remain living in Thorne with her grandmother and father. She expressed her view that the child should move against her stated wish because she felt that the child did not explore the E[…] option enough or live with she and her family enough. To her credit, she did express some concerns about the child's discomfort about being moved but was confident that we can work through it as the most important consideration is the child's bond with her mother.

[50] The aunt testified that it was her belief that the apprehension, technical though it was, was not necessary because the child could be supported by her close knit family. It was further her belief that her family was not given a chance to parent the child. All of this in the face of the facts that the child had no real contact with the aunt and uncle since 2012 and that the child barely knew them when her mother became unable to care for her in April, 2014.

[51] The aunt supported the plan to provide access once per month between the child and her father and grandmother. She was prepared to drive the child both ways for that almost 8 hour round trip.

[52] The maternal uncle, D.I., provided an affidavit dated June 8, 2016 and filed as tab 14 in the trial record. He confirmed his family's commitment to care for the child in a family atmosphere where the child would be provided with an opportunity to see her mother on a daily basis.

[53] He recounted at paragraph 3 of his affidavit that the child was visiting with them during a P.A. day in North Bay in June 2015 and that she asked to tour schools in E[…]. As a result he took her to the school where his child attended. She liked that school and it was his intention to take the child to tour other schools in June, 2016. She was understandably nervous but would be exposed to her native culture at the school.

[54] He testified that there were at least 2 occasions when the child expressed a wish to remain in E[…]. The first time was at a drop-off when the child told her mother she wanted to stay in E[…] to see her mother more. The second occasion occurred at Christmas 2015. The child called the Society to so advise them of her wish. On cross-examination by OCL counsel he was referred to the Society worker, Charity Young's affidavit at paragraph 42 wherein she reported receiving a voice mail message from the child on February 27, 2016 indicating she wished to stay in E[…] and the telephone call to the worker by the uncle on February 24, 2016 to ensure that the Society had received the child's message. The clear implications were that the uncle was attempting to assert undue influence on the child.

[55] The uncle confirmed that if the child resided with them they would not cut off access to the father or grandmother. He is concerned that if the situation were reversed the father and grandmother would not make it happen if and when the Society withdrew.

[56] He too confirmed the reason for the plan of care is because the child needs to be with her mother and in the presence of family. On that basis he believes the child needs to be close to her mother, her aunt and uncle and their family, be exposed to her native language, her extended family and the native studies programmes available through the schools.

[57] At trial, he also testified that the mother's mental health had improved and that he would like the mother's access to increase. He expressed that he had concerns for the child as she appeared confused and was uncomfortable by being put in the middle.

[58] On questioning from Society counsel, the uncle testified that he would provide transportation to and from the grandmother's home if he had to but believes a sharing of transport responsibilities is more equitable. On the question as to whether the grandmother and father would be welcome at celebrations involving the child in E[…] he responded in the affirmative with the caveat "if they behave" signalling to the court that poor communications operates in both directions.

[59] The father asked the uncle during cross-examination to confirm that the times for regular telephone access has been changed to accommodate the aunt and uncle. He then asked the uncle when the last call occurred and received the reply: "quite a while ago, we are a busy family".

[60] On cross-examination by OCL counsel, the "talking together" circle was re-visited. The uncle confirmed that the child's wishes expressed that day were independent of either household. The uncle admitted that the child was bonded to the father and grandmother. When asked why he advocated that the child be moved to E[…] despite her express wishes and in the face of the child doing well in Thorne, he acknowledged that severing the bond would have an impact on the child but that he believed she should be with her mother and her extended family. He expanded his belief that the child needed to be close to "real family". This is all stated while further confirming that the child's relationship with her aunt and uncle only began after the Society intervention in August 2014.

5.3 The Father

[61] R.C. is the step father of the child, J.R.F. and has been in a relationship with her mother S.F. since 2004 when the child was less than 6 months old. He is the sole father figure in her life. He loves the child very much and seeks only her safety and happiness. The acquired brain injury which he suffered prior to his involvement with the mother and the child prevents him from assuming day-to-day custody of the child.

[62] He spoke of his commitment to the child and of his care for her during the many times that the mother required hospitalization for her mental health difficulties during the period 2010 to 2014. He reminded the court that he has attended in court every time that this matter has been before the court even for the most mundane and inconsequential reasons. He responded in cross-examination by the Band representative, Ms. Migwans, that it is his intention to co-parent the child with his mother, her grandmother. He readily admitted to the challenges he faces and describes the steps he takes to meet those challenges, such as the use of his smart phone to remind him of deadlines and responsibilities in the care of the child.

[63] The father was not hesitant to discuss the stress and the drama that existed in the relationship that he had with the mother. He specifically referred to the influence of the aunt who he described as "knowing how to push the mother's buttons". He described the period of 2012 when the mother left Thorne to live with the maternal grandmother only to return within a few weeks as the child was not comfortable there.

[64] Under cross-examination by the Band representative, the father easily identified the child as being an Aboriginal person. When questioned as to what he knew about Aboriginal custody he responded that he was well-instructed by the late maternal grandfather, D.F., a man who he respected and admired. He further told the court that he was aware of the child's native name. He readily accepted the invitation of Ms. Migwans to learn more about the child's native roots and the culture that forms a large part of those roots. When questioned as to why he appeared to be excluding the mother, he offered the simple explanation that he was told not to talk to the mother during the court process and not for any other reason.

[65] P.C., the child's paternal step-grandmother testified that she would continue to act as the child's primary parent pursuant to a s.57.1 custody order. She would respect the terms of any access order made by the court. She proclaimed "we can do it" when asked her opinion regarding how access would work when the Society and the OCL are no longer available to the family. She acknowledged that it is the responsibility of all of the adults in the child's life to ensure that the child could spend as much time as possible with every parent. Having said that, the grandmother admitted to her role in the all too frequent disputes that arose between the adults and their collective failure to communicate effectively for the benefit of the child. She did not want the child to communicate with the mother or aunt and uncle by Facebook as she was afraid that the child would do things she did not know about. The Society advised her it was okay as it was the new way that the children communicated with each other and any others. This became a problem when the grandmother became aware of a communication with the child over the purchase of a laptop but was not aware of it contents. Her response was to make a "no Facebook" rule.

[66] Shortly after the child contacted the Society to advise them that she wished to live in E[…], the grandmother became suspicious and monitored all telephone calls between the mother and the child and the aunt and uncle and the child for "key words" which were intended to influence the child. When the grandmother was confronted about this she said no one had ever told her not to listen in on conversations except those between the mother and the child due to concerns of what the mother might say to the child during a period of a flare up of her mental illness.

[67] The grandmother admitted under cross-examination from the mother's counsel that the placement of the child with her in August 2014 was intended to be a temporary thing during the period of the mother's hospitalization which became more permanent given the mother's continued inability to care for the child as a result of her mental illness. She further admitted that the mother is very important to the child. She commented simply that "they love each other". As for her son, the father, the grandmother testified that he is very involved in the child's life and comes to her house daily where he and the child do homework, play, work on the computer and take walks. The father loves the child very much and she loves him back.

[68] The child is described by her grandmother as being a very intelligent girl who loves school. She is always ready to learn and is a good listener. The grandmother advised of the latest report card showed consistently high grades being earned. When asked why the report card had not been shared the grandmother said that the school told her she could not make a copy as it was the child's report. She further said that if someone had told her to do so she would do it right away and she apologized for not doing so. With that being said I told her to share copies of all reports. A similar problem arose over photos taken at the child's twelfth birthday party. The grandmother indicated that she would ask the father to send them as it appears as though she was not familiar with the appropriate technology.

[69] Danielle Shank is a social worker employed by the Conseil Scolaire Catholique Franco Nord ("the Board") which administers French Catholic Schools in the Nipissing area. She regularly provided counselling services to students who attend the Board's schools. She was asked to meet with the child in October 2014 and received permission from the Society to do so. This arose as a result of the child's mother's recent hospitalizations. From the outset, Ms. Shank was very clear that the child was her client. She did not speak to any adults in the child's life nor to the Society. She counselled and supported the child throughout including attending, at the child's request, the "talking together" circle. She described the process by which she helped the child deal with the emotions and the pressure that she felt as a result of her mother's illness. She also was very much worried about her father who played a large role in her life. Like many children, her most fervent wish was for her parents to get back together. Ms. Shank described her process as allowing the child "to unload her fears on me…. someone who was not involved in her situation". They met in private at the child's school approximately every two weeks. Ms. Shank attempted to remain neutral, to clarify with the child that two families wished to care for her. She reviewed with the child the benefits of living in Thorne and E[…] using this as a tool to help the child make a decision while at the time being unaware that the Society worker was doing the same thing.

[70] Ms. Shank described her role in preparing the child for the "talking together" circle and in supporting the child during and after the circle. She described this as a very difficult situation for the child as she felt torn by wanting to please both families. The child was worried most about the adults in her life and was reluctant to express her wishes during the first time around the circle and appeared very intimidated. Ms. Shank testified that after the first round she met with the child at the request of the child's lawyer. She asked the child if she wanted to continue. Upon the child indicating she wanted to go on, Ms. Shank then suggested that maybe the child could organize her thoughts in writing prior to re-entering the circle. The child went off on her own and diligently worked on reducing her wishes to writing. She used these notes when she told the people in the circle that she wished to remain in Thorne. Ms. Shank related that once the child had voiced her decision to the circle participants it was as if a heavy load had been lifted off her shoulders. On cross-examination by the mother's counsel, Ms. Shank said that at no point did the child complain that her father was pressuring her nor that she was afraid of her father pressuring her. She did agree that it was normal for children of broken marriages to feel torn. The child identified both the mother and the father as being the most important people in her life. Ms. Shank was aware that the child had also expressed a desire to live in E[…] which led to her conducting the exercise with the child as to identifying the benefits of living in E[…] and Thorne.

[71] Ms. Shank also testified that she was aware that Native Studies Programmes would be available to the child through her new school, École Secondaire Catholique A[…]. She responded to the Society counsel's question by saying that she spoke to the child about connecting her with programming through the I[…] Centre once she attended A[…]. In cross-examination by Ms. Migwans, Ms. Shank indicated that she has had experience counselling children of First Nations heritage but has not had specific training in that regard. She had observed that some Aboriginal children do not make eye contact along with many other children. When asked whether she was initially aware of the child's ethnicity she replied "no, they eventually let me know".

5.4 The First Nation

[72] Ms. Migwans, the Band representative, presented a letter dated July 22, 2016 from Chief Linda Debassige of M[...] First Nations which was received as exhibit 6 at trial. It set out in six paragraphs the First Nations position that the child should be placed with her aunt and uncle in E[…], "in the best interest of Aboriginal children". The First Nation has always maintained the position that if any of their children must be removed from their familial home they must be placed with immediate or extended family or within a Native home. Chief Debassige went on to explain that this stance is because of the history of Native children being "lost in the child welfare system" not knowing their Native culture, heritage and language resulting in their identity being corroded. She stresses that this Native identity must be instilled in a child during the child's formative years. Native traditional teachings are presented with and by the family when the child reaches developmental milestones. These teachings are paramount for "a well-established Anishinabekwe". Permanency planning for First Nation membership involves a life-long commitment and placement with immediate or extended family present "inclusiveness of family and community" to prevent a loss of identity by this Aboriginal child and the possible negative behaviours leading to unhealthy relationships, criminal activity and even suicide. She refers to the Truth and Reconciliation Commission's call for child welfare agencies to keep Aboriginal families together with children kept in culturally appropriate environments. The Chief urges, as an imperative, that the child have regular and consistent contact with her mother to support the mother/child bond.

5.5 The Office of the Children's Lawyer

[73] Mr. Rutland, the child's counsel, presented a letter that was faxed to his office on June 30, 2016 from Greg Lefebvre, the principal of École Secondaire Catholique A[…] which was received as exhibit 7 at trial. It describes the ways in which the school supports "Aboriginal students in their learning and appreciation of Indigenous culture". The school encourages all students to self-identify, which more than one hundred have done, so as to allow the school to better understand the make-up of their school population. At the grade 7 and 8 level there is a qualified teacher of First Nations Heritage who incorporates indigenous arts, culture and traditions throughout the curriculum.

6. Analysis and Discussion

[74] Any analysis and discussion of the placement of a child involves a review of subsection 37(3) and (4) of CFSA.

S.37(3) BEST INTERESTS OF CHILD — 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:

1. The child's physical, mental and emotional needs and the appropriate care of treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. 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.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. 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.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstances.

(4) WHERE CHILD AN INDIAN OR NATIVE PERSON — Where a person is directed in his 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 the traditions, of preserving the child's cultural identity.

[75] This analysis must occur while keeping in mind the paramount purpose and other purposes set out in subsections 1(1) and (2) of the CFSA.

1.(1) PARAMOUNT PURPOSE — The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

(2) OTHER PURPOSES — The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children's services should be provided in a manner that,

   i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

   ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

   iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

   iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. 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.

[76] Each of the parties to these proceedings have argued that their respective positions best reflect the paramount purpose of the Act by promoting the best interests, protection and well-being of the child, J.R.F., now 12 years old. Each has also made reference to various considerations under subsection 1(2) setting out the other purposes of the Act which are stated as only being additional purposes if they are consistent with the best interests, well-being and protection and well-being of the child. The specific considerations for the court to determine the best interests of the child are enumerated in sub-section 37(3). The court is further required by sub-section 37(4) to 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. The mandatory language of subsection 37(4) requires me to take into consideration together with the relevant factors set out in subsection 37(3) while bearing in mind the additional purposes of the Act in subsection 1(2) to recognize the importance of preserving the child's cultural identity. In doing so, I must take into account, while determining what disposition is in the child's best interest, which are the relevant factors set out in subsection 37(3) while also taking into the importance of preserving the child's cultural identity as an aboriginal purpose. It is my responsibility to determine the relative importance of any relevant consideration in the context of the facts of the case before me. It is my function to balance these relevant factors with this Aboriginal child's cultural identity.

[77] It is not my intention to note each party's argument on all the relevant considerations as to this child's best interest in arriving at my decision as to her placement in whose custody together with the ancillary orders as to access.

[78] In considering the child's physical, mental and emotional needs and the appropriate care or treatment to meet those needs it is apparent from the kin care assessments that both households are prepared to and capable of meeting the child's needs. The father and grandmother have the advantage of having acted on that basis by involving the school-based counsellor, Danielle Shank, in her invaluable role in assisting the child in letting her feelings and fears out in an appropriate way and further by allowing her to feel confident to express her views at the "talking together" circle. I am confident that the aunt and uncle would also have acted to provide similar services for the child.

[79] It became very apparent after hearing the grandmother who was the last of the witnesses testifying at trial, that the adults were not at all proficient in communicating with each other. There is no doubt in my mind that this is the direct result of their viewing this proceeding as a contest to be won or lost. The very helpful comments and pleadings of both the OCL, Mr. Rutland and the Band representative, Ms. Migwans, must have been heard by the adults. They were very clear that these people must recognize the importance of family in the life of this 12 year old girl. The child's culture is important to her ultimate development and she must take part in the major cultural events in her home community in order for the child to understand who she is and for her to develop and maintain this significant part of her sense of identity. This child must be supported in her decisions as she grows in her life. She does not need to feel pressure from any of the significant adults in her life. She needs to be seen to be capable of making decisions. She needs to be heard by those adults so that her decisions can be acted upon. All the adults must first act in this child's best interests and not their own lesser interests. That will be the only way to walk beside this remarkable young person. This child's fervent wish as communicated to the court by her counsellor, Ms. Shank, was for the adults in her life to get along. Compliance with that wish would undoubtedly be in the child's best interest emotionally.

[80] The child's cultural background is somewhat complicated. She is an Aboriginal person through both biological parents. She has been educated in a French Catholic school. Despite being given a native name at a very early age, she has only been exposed at some length to her Aboriginal heritage and cultural primarily by her aunt while on access visits. Neither the mother nor the aunt had extensive exposure to their Aboriginal roots and did not live on their First Nations territory. They, in many ways, are on the same voyage of discovery of their heritage as they wish for the child and the child has participated with them. The father and grandmother have expressed a sincere understanding of the importance of this for the child and their commitment to support her and her extended family. Placement with the aunt and uncle would add more to the child's development of her appreciation for and understanding of her Aboriginal heritage.

[81] The child has a secure relationship with her father and grandmother with whom she has lived full time since 2014. In the case of her father, he is the only father figure she has known. She is well established in her community of Thorne and she knows everybody and they know her. She identified both her mother and her father as being important people in her life. The child is acutely aware of her mother's illness and knows that her mother will not parent her. She wishes frequent contact with her mother. Her father is a constant presence in her life as he actively supports the grandmother. The status quo definitely favours the child remaining with the grandmother and her father. Her relationship with her mother is also very important and must be maintained. That is possible at this time only with the aunt and uncle and their family. All parties agree that the every second weekend access schedule is very tiring and taxing on the child and all her family members. The plan of care advanced by the Society and the mother suggested a monthly visit that may be extended to include a Friday and/or a Monday. This would allow for the child's attendance at traditional celebrations which should form a key part in her understanding and embracing her heritage and in building her cultural identity.

[82] The child's views and wishes were presented by this mature, intelligent and sensitive young woman at a "talking together" circle that is consistent with her Aboriginal heritage and that of her mother and aunt. The child was supported in this endeavor by the father and grandmother. As this court understands the traditional use of the "talking together" circle it is to provide everyone in that circle with a chance to speak from their heart. According to Ms. Shank, the process was free from any pressure or undue influence being exerted on the child and she delivered her wishes in the presence of all the important adults in her life. She was aware of the benefits available to her in both prospective custodial homes. She was aware that this decision was about being with family. Her father and grandmother are family to her. She has spoken and she should be listened to and not be ignored. To ignore her would be to disrespect the traditions of her culture and could possibly send a message to her that she need only accept the traditions and practices that meet her view as to what she wants not what is best for the community.

[83] When factoring in subsection 37(4), the question that must be addressed is whether based on all the relevant factors in subsection 37(3) discussed above, is it in this child's best interest to place her with her aunt and uncle or for her to remain in the care and custody of her grandmother and father and not just who is best able to maintain the child's Native heritage and culture. Maintaining the child's Native heritage and culture is only one factor to be considered and not the only factor in determining her best interest. This court should not place an unreasonably higher weight on which family could best foster this child's Native cultural upbringing.

[84] As so often happens in hotly contested cases, it is best practice to return to first principles and without over simplifying the paramount purpose it is essential for the court of "keep its eye on the child". In doing so, she is in a safe and loving home and content in the status quo. She has clearly and bravely expressed her views to those who love her. She has clearly identified those people who are important to her. I am cognizant of the First Nation's position respecting all of its children, including this child. Its policy to return all children to their familial home or to a member of their family, extended family or within a native home is in direct response to the destructive policies of the past. It meets the needs of their community but when it results in the removal of a child from a safe, secure and loving home with her family it cannot be respected. To be clear, it is this court's conclusion that the importance of preserving this child's cultural identity is outweighed by the importance of continuity in her care within her family and in respecting her wishes which were based not on her recent experiences with her father and grandmother but on a relationship that has provided her with a safe, consistent loving home since 2010. Her wish is a reasoned and reasonable one in all the circumstances. Frequent contact with this child's mother, extended family and exposure to her First Nations culture and traditions is absolutely necessary and can be mandated by this court in the details of it disposition.

7. Conclusion

[85] An order will issue amending the title of proceedings to remove the Society as the applicant and substitute it for P.C.

[86] An order will go as follows:

1. The child, J.R.F., born […], 2004 shall be in the custody of the Applicant, P.C.

2. The respondent father, R.C., shall have reasonable access to the child.

3. The respondent mother, S.F., shall have access to the child to be supervised by either A.F. or D.I. with whom the child will stay during access periods as follows:

   (a) During the months of January, February, April, May, June, September, October and November each year for one weekend of at least three days which should coincide, if possible, with traditional Native ceremonies. Such weekends shall be agreed upon in advance of each calendar year;

   (b) For two consecutive weeks in each of the months of July and August each year with such weeks to be agreed upon in advance of each calendar year;

   (c) For one-half of the Christmas break;

   (d) For one-half of March break;

   (e) Two telephone calls per week for up to 1 hour duration;

   (f) Reasonable Facebook and email communication;

4. The Access exchanges shall occur in Hagar, Ontario;

5. The maternal aunt and uncle, A.F. and D.I. shall have access to the child as per paragraph 3 (a), (b), (c) and (d) and shall facilitate the mother's access during those access periods;

6. The maternal aunt and uncle shall have two telephone calls per week with the child and shall be permitted reasonable Facebook and email communication.

7. The mother, S.F., the aunt A.F. and the uncle, D.I. shall have access pursuant to s.20(5) Children's Law Reform Act to all professionals who are involved in the health, education and welfare of the child and they may request and receive copies of all reports prepared by them relating to the child.

8. The applicant, P.C., shall make copies of all school reports and medical reports and provide them directly to the respondent mother, S.F. and the aunt, A.F. and the uncle, D.I.

9. Such further and other access as may be agreed upon by the applicant, respondent and aunt and uncle.

Released: November 29, 2016

Signed: Justice L. J. Klein