Court Information

Court File Nos.: F0-11-00000138-0003 and F0-11-00000138-0004

Citation: 2016 ONCJ 868

Date: November 3, 2016

Ontario Court of Justice

Parties

Applicant: Payukotayno: James and Hudson Bay Family Services

Respondents: V.W., J.K.K., F.E., and F[…] First Nation

Added Party: Office of the Children's Lawyer

Publication Restriction

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 45(7) AND 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Appearances

• J. Ellery – Counsel for the Applicant
• L. Cayen – Counsel for the Respondent, V.W.
• P. Faries – Counsel for the Respondent, F.E.

Decision

BEFORE THE HONOURABLE JUSTICE M. LAMBERT

on November 3, 2016, at M[…], Ontario

LAMBERT, J. (Orally):

Should a court stand in the way of the resolution of a child protection matter when all parties have signed minutes of settlement agreeing to a finding and also agreeing to a disposition? This is the difficult question that needs to be answered in this matter.

Obviously, the ultimate responsibility for determining what is in the best interest of a child or children rests with the court and, thus, a court may clearly reject an agreement arrived at by the parties. Having said that, the court must be mindful of the consequences that follow.

Background and Facts

J.W.K.1 was born on […], 2009 to V.W. and J.K.K.. She is now seven years of age. J.W.K.2 was born to the same parents on […], 2010, so he will be six next month. N.E. was born to V.W. and F.E. on […], 2014, so he will be two years of age in […] days. Sadly, these children have spent the majority of their lives in foster care, and it was only yesterday that the matter was finally set for trial and the parties came to court with minutes of settlement.

J.W.K.1 has been alive 2,562 days and she has spent 1,770 of those days in foster care, or 69 percent of her life. J.W.K.2 has been alive 2,144 days and he has spent 1,770 of those days in foster care, or 82 percent of his life. N.E. has been alive for 720 days and he has spent 544 of those days in foster care, or 75 percent of his life.

J.W.K.1 and J.W.K.2 spent part of their time with their maternal grandmother, but that placement eventually broke down as well. By anyone's standards, these numbers are deplorable.

History of Proceedings

J.W.K.1 and J.W.K.2 were first apprehended on August 25th, 2011 as a result of substance abuse allegations, inadequate supervision, domestic violence, and general inability to look after the children. After many appearances before the court where the parents rarely attended, a first final order was made on March 5th, 2012 when the mother consented to a finding, the father taking no position, and the children remained society wards for six months.

At a status review hearing on October 4th, 2012, after much the same pattern of irregular attendances and multiple adjournments, a second final order was made making J.W.K.1 and J.W.K.2 society wards for a further period of six months.

A fresh status review application was brought thereafter where the Society sought Crown wardship without access. But, again, after many adjournments and delays, on February 5th, 2015 a third final order was made placing J.W.K.1 and J.W.K.2 in the care and custody of their mother V.W. for a period of six months as it was felt at that time that she had made sufficient progress. By that time N.E. was born but he did not form part of the February 15th order as he had not been apprehended.

J.W.K.2 and J.W.K.1 were re-apprehended on June 11th, 2015 as a result of substance abuse issues, domestic violence between Ms. V.W. and new partner, Mr. F.E., and a lack of supervision of the children. N.E., the son of V.W. and F.E., was also apprehended for the first time at that time. All three children have remained in care since and they have now been placed with a foster family in G[…], Ontario where they are reportedly doing well.

Assessment and Current Placement

I have had the benefit of reading the affidavit of Holly Pontello, the clinical assistant for the OCL, and the clinical consultant assessment of Amanda Rohn-Alton (ph) for both J.W.K.1 and J.W.K.2.

G[…] is obviously a significant distance from M[…] with the result that ongoing contact between the parents and the family has been next to non-existent since the placement is in G[…]. The children last saw Ms. V.W. and Mr. F.E. last week for several days, and though there is no actual evidence before me, I am told that the visit went well.

The previous visit to that goes back to March of 2016. So, one has to question how a bond can be maintained, or should I say develop, when access is so irregular.

Issues with Current Placement

The first problem in this file is, therefore, the placement of these children in a foreign environment, far away from their roots. It seems that the children have attached to the foster parents, calling them mom and dad, and calling other children in the home brothers and sisters. They are living in a more structured environment and they may be progressing well because of that, but they are not with family or members of their community.

It seems that the foster parents are doing all that they can to expose the children to their First Nation culture, but no doubt that is limited.

I don't wish to be over-critical of the Society for placing the children in such an environment because I am mindful of the dearth of appropriate First Nation foster homes in this area but, clearly, more needs to be done to find First Nation foster homes, not necessarily in M[…] only but elsewhere in Northern Ontario. Indeed, a non-native foster home in Timmins or Kapuskasing would be much better than one in Southern Ontario.

The migration of First Nations children in foster care to faraway places must be examined, sooner rather than later. Often, the longer the children stay in such places, as in the present case, they wish to stay there because of greater amenities, more activities, and a more affluent lifestyle. It makes their return very difficult.

On the flip side, this attachment between the foster parents and the children has been allowed to develop because of the unwillingness or an inability of Ms. V.W. and Mr. F.E. to start dealing with their difficulties until very recently.

Parents' Recent Progress

Ms. V.W. has recently completed some programming and counselling and she intends to attend a substance abuse program in January of 2017. The father is now set to attend a detox centre in S[…] Falls from November 10th to 20th after which he will attend the R[…] Lodge in W[…]. He is to be discharged from that program on December 19th of 2016. In anticipation of that programming, the parties have come to an agreement that the children be returned to their care on December 20th, 2016 subject to a six-month supervision order in favour of the Society.

They have obviously agreed that the children are in need of protection. Having agreed to that, because of the statute ceilings in the Act for children in care, the only two options are the return of the children to their parents or to make them Crown wards. All three children, obviously, have greatly exceeded the statutory ceilings.

Legal Analysis

The issue here is whether it is in the best interest of these children that they be returned to the care and custody of Ms. V.W. and Mr. F.E. with or without a supervision order.

I am uncertain that they have made sufficient progress to return the children to their care, but what is the alternative: to make the children Crown wards where the plan is that they be cared for long term by a non-native family, far away from their roots? The court must be mindful of that real possibility. Is that in their best interest? Only time would tell. The devastation of the '60s scoop is now well-known.

In determining the best interest of the children, I must be mindful of all of the factors set out in subsection 37(3) of the Child and Family Services Act. In addition to that, I must be mindful of subsection 37(4) which reads as follows:

"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."

Finally, I must be mindful of the paramount purpose of the Act which is set out subsection 1(1) which reads as follows:

"The paramount purpose of this Act is to promote the best interests, protection and well-being of children."

Subsection 1(2) lists other purposes and it's worth noting paragraph 5 of that subsection which reads as follows:

"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."

It is because of those provisions that the balance tilts in favour of returning these children to their parents in their community, notwithstanding the reservations which I have that the parents are not going to be ready to have them in their care.

I am mindful that the parents have finally taken some concrete steps to attend some residential treatment program for substance abuse. I am also advised by way of submissions, not evidence, that the parents have maintained their sobriety for some time. I take comfort in that submission.

Conditions and Expectations

If the children are, in fact, returned to the parents on December 20th as anticipated, it is imperative that the Society spend as many resources to support this family unit, as it is required to do so by law, as it has expended in keeping these children in care at such great distance. In other words, the parents and the Society have a shared obligation to make this placement work because they share the blame for where things stand now.

The children cannot simply be returned with the expectation that the parents will do it on their own. Much concrete help must come from the Society. It cannot be a situation where the Society only has sporadic contact with the parents. More needs to be done.

If this placement breaks down, for whatever reason, the children will have been failed again. I expect all to do their share to make this work.

Conclusion

It is, therefore, with great trepidation that I will accede to the agreement arrived at by the parties, and an order shall, therefore, go in both files in accordance with the minutes of settlement filed yesterday.

Released: November 3, 2016

Justice M. Lambert