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: 2018-03-08

Court File No.: Belleville 242/16

Between:

Highland Shores Children's Aid Society Applicant

— AND —

C.F. Respondent

Before: Justice W. Malcolm

Heard on: December 5, 2017, January 11, 26 and February 23, 2018

Submissions: March 1, 2018

Reasons for Judgment released: March 8, 2018

Counsel

Jane Howlett — counsel for the applicant

Heather Smith McGurk — counsel for the respondent

Brandi Hildebrand — representative for the Mohawks of the Bay of Quinte

Judgment

Malcolm J.:

Introduction

[1] This protection application concerns the care and custody of the child N.K., who was born on […], 2016. The child was born prematurely and weighed four pounds at birth. The respondent mother, C.F., was 16 at the time of his birth. The presumed father, N.D. was 15.

[2] The mother has Native Status and the Mohawks of the Bay of Quinte (MBQ) are parties. The mother named N.D. as the biological father but he was determined by paternity testing not to be a biological father and he is no longer participating. Another potential father was named by the mother, but he was also determined not to be a biological parent.

[3] The child has been in the care of the Highland Shores Children's Aid Society (Society) since September 1, 2016, when he was apprehended from the care of the mother and placed in a First Nation's foster family, where he remains.

[4] The original application, commenced in September 2016, requested an order of Society Wardship of the child for six months. The application was amended to Crown Wardship in May 2017.

[5] During the first months of the application, the mother and N.D. were facing criminal charges and N.D. was subsequently incarcerated. For a period of time, there were criminal conditions preventing contact between the parties.

Apprehension and Safety Plans

[6] The child was apprehended by the Society and the Mohawks of the Bay of Quinte, because the parents were not following the safety plan developed for them. The first plan with the maternal grandmother lasted two days and then the mother left the home. When the Society was able to locate the mother, she was with her maternal uncle. Another safety plan was developed. The safety plan included: advising the Society as to where the family is living, safe sleeping for the baby, no sleeping in car seats or strollers, and attending a program for mothers, among other conditions. When a volunteer driver arrived on August 30, 2016 to take the mother to her program, she was not in her residence. A day later, the mother was located at the home of N.D.'s mother, Ms. K. and her partner, Mr. I. The Society worker spoke with Ms. K. and she disclosed some additional protection concerns, in addition to the safe sleeping and the intransience issues.

[7] When the Society was able to contact the mother, she denied the concerns. The Society worker and the worker from the Mohawks of the Bay of Quinte told the mother that because she had not followed the two safety plans, the child would be apprehended. After the apprehension, there was considerable conflict between the maternal grandfather, K.F., and Mr. I. It is alleged that the grandfather threatened Mr. I with a knife.

[8] The Society and the MBQ assessed a number of potential kin placements after apprehension, including that of the maternal grandfather and his partner, J.M. and the mother's step-mother. However, the mother alleged that her step-mother assaulted her in December 2016 and she moved to a women's shelter. The step-mother is not a proposed kin placement because of the alleged abuse. Also, in April 2017, K.F. was murdered.

[9] There were other family plans, but they were all withdrawn or not approved. Customary care agreements were also explored without success. One potential family placement withdrew on the eve of the hearing, which was originally scheduled for October 2017.

[10] The Society and the MBQ ask that the child be made a Ward of the Crown and placed in the care of the Society without access for purposes of adoption. The foster parents with whom the child resides have asked to adopt him if he is made a Crown Ward. They are willing to have some openness with the respondent mother, but not direct contact.

[11] The mother asks that the child be placed in the deemed custody of C.A., whom the mother considers a sister. C.A. and her mother lived with the maternal grandfather from when she was about 12 until she was 18 and pregnant with her eldest child. She considered him her father and C.F. as her sister. C.A. has three children and the mother's cousin is their father.

Brief Legal History

[12] The Society and mother consented to a finding that the child is in need of protection for risk of physical harm due to: the parents' criminal involvement prior to the child's birth, intransience, not initially following the safety plans for safe sleeping for the child, and not staying at the approved residence. The mother states that she did change the sleeping arrangements for the child when asked and did follow the safety plan.

[13] The Society brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules. On the return date of the motion, November 17, 2017, the Society conceded that there was a triable issue in terms of a proposed kin placement for the child with C.A.

[14] A Family Law Rule 1 and 2 focused hearing was scheduled for one day on December 5, 2017. All evidence in chief was to be presented by affidavit.

[15] The witnesses for the Society were:

1. Tara Treverton, kinship worker of the Society;
2. Andrea Graves, protection worker of the Society;
3. Julie Conger, kinship worker from MBQ;
4. Sarah Powers, children services worker of the Society;
5. Mark Zwart, protection worker of the Society for C.A.; and
6. Johanna Goodfellow, community and support worker from the MBQ for C.A.

[16] The mother's witnesses were:

1. C.A.; and
2. J.B.

Delay in Completion of the Hearing

[17] Because of a number of unforeseen events, the hearing was not completed in a day, but instead, was completed over four partial days. On December 5, 2017, a family emergency for one of the counsel resulted in an adjournment to January 11, 2018.

[18] On January 11, 2018, counsel asked for another adjournment because the mother's legal aid retainer had ended and she had to make a new application that day (C.F. was a minor mother and had the same counsel retained through the Office of the Children's Lawyer, but during the proceedings, she became 18 and a new retainer was required). Counsel asked for time to review the Society affidavits with the mother. I denied the adjournment request, but gave counsel until the afternoon to prepare. It was agreed that C.A. would testify the next day.

[19] On January 26, 2018, at the continuation, C.A. began her evidence but was not able to stay until the end of the day because she and her partner were unable to make child care arrangements for their six children. A subsequent day of February 23, 2018 had to be scheduled, but between counsel and the Court's schedule, only two partial days were available for the completion of the evidence.

[20] The mother is not presenting a plan to care for the child. She did not attend court on the last day and she has missed many of her scheduled access visits.

The Child N.K.

[21] N.K. is medically fragile. He was born prematurely. His head is flat on one side and he needs daily exercises for both his neck strength and his head. He has asthma and eczema. He is monitored for his asthma as he wheezes and coughs and is on an inhaler. It is important that he not be in an environment with cigarette smoke, dust, mould or pet dander.

[22] The child has numerous appointments with specialists including a pediatrician, neurologist, occupational therapist and physiotherapist. Although he is 17 months old, he is not yet walking. He can "make strange" and several witnesses commented that he cries quite a bit, even screams, especially when he is with strangers.

[23] Despite his delays, N.K. is described by the children's services worker as content, eating and sleeping well, and is a very endearing child.

Evidence at the Hearing

[24] C.A. has also had involvement with the Children's Aid Society. The workers who were involved with C.A. from 2015 to 2017 testified that the protection concerns were inappropriate discipline, (excessively long time outs, hitting with a kitchen implement, forcing child to destroy his own toys), substance abuse (C.A. was using morphine for chronic pain, her former partner may have had marijuana induced schizophrenia), and general neglect.

[25] C.A. concedes that her children were present at times during verbal conflict and, at least on one occasion, where there was physical conflict. The workers said the mother was easier to work with after she separated from her former partner.

[26] C.A. moved in with J.B. shortly after her separation from her previous partner. The Society was concerned because this happened so quickly. C.A. and her new partner, J.B., have been together since December 2016. She has three children who live with her. J.B. has three children who live with him from Wednesday to Sunday each week. They have a busy household.

[27] C.A. supports herself on Ontario Works and the Child Tax Benefit. J.B. suffered a serious injury several years ago and invested his settlement in the home and land in which they live and in heavy equipment. He is self-employed doing landscaping, snow removal, and general contracting jobs. They must be frugal to make ends meet.

[28] In the spring of 2016, the ex-partner of the late maternal grandfather, J.M. asked C.A. to present a plan of care for the children. C.A. testified that she could not present a plan because she was working 12 hour shifts at a call centre and she was going through a difficult time with her ex-partner, who was abusive. She was also in Child Protection Court primarily due to conflict with her ex-partner and with service providers. She indicates that the child protection involvement was because of the conflict in her relationship. She testified that there were several occasions in which the police were involved. On the last occasion, her ex-partner was restraining her and she head-butted him, breaking his nose.

[29] She says that she was contacted again by the maternal grandfather in the summer of 2017. Because she was separated from her ex-partner, she agreed to present a plan to care for N.K.

[30] After receiving her request to be considered, the Society workers tried to contact her. There were a number of obstacles to a timely assessment due to C.A.'s situation. For a period of time, she did not have a phone that had service at her rural home. When the Society contacted her and asked to meet her and the children at her home, she would not agree to an appointment unless it was after 11:00 a.m. to allow the children to sleep in. When the Society finally went to the home, only the eldest child, J.B., was there.

[31] During the first contact, the Society went unannounced on August 18, 2017. There was a hearing scheduled for October and time was of the essence. The workers who attended noted that there was garbage in the yard (C.A. says she missed the dump), a broken trailer, a mattress and broken toys littered in the yard. There were also bags of garbage on the stairs.

[32] The workers then returned on August 30, 2017 for a scheduled meeting. At that time, there was dog feces in the basement, a very damp mouldy smell to the basement, C.A.'s son's room smelled very strongly of urine (she said he pees his bed and all of her children did until a late age and she does not want to put him in pull-ups because he then thinks it's alright to just pee in the night), no working smoke detectors, a broken toilet in the upstairs bathroom, a dirty bathtub filled with debris, and piles of clothing on the back deck blocking the back door (C.A. said they had a lice infestation). It is surprising that the family would have not addressed some of these issues for a scheduled meeting.

[33] The Society gave C.A. a list of things that needed to be remedied. C.A. was also told that they would need criminal record checks. On the next day they attended, most of the issues were addressed. Interestingly, when cross-examined, C.A. indicated that if someone were to go to her home that day they would find piles of toys outside and garbage, because the children eat their snacks and then throw the wrappings away. There would be piles of laundry because the children do not put away their clothing and her youngest child's bed is better but may still have a urine smell.

[34] In order to complete the kin assessment, the Society worker and a worker from the MBQ were to attend at the home and interview the proposed care givers, children and/or other persons in the home and receive the criminal record check, and child protection records.

[35] C.A. did not obtain the record check, which cost $25.00 because she said she could not afford it. Then, she said she forgot about it. However, she spent $2,000.00 on back to school supplies for the children.

[36] The assessors were working against a deadline as court was scheduled for October 2017 and N.K. had been in care since September 2017. Pursuant to section 70 of the Child and Family Services Act (CFSA), a child cannot remain in the care of the Society for more than 12 months. The time may be extended by six months only if it is in the best interests of the child to do so.

[37] C.A. cancelled appointments because she said she and her daughter were ill. She refused consent for the Society to attend at the school to interview the children. She said that the workers coming to the school would "centre out" her children. She claimed that in the past when the Society went to the school to investigate an allegation of physical harm (which was verified as her former partner hit her youngest child with a wooden spoon or kitchen implement), the children experience problems, including bullying.

[38] When the matter came to court on October 13, 2017, the kin assessment was not complete. The Society deemed the placement not appropriate. They felt the addition of one further child would be very difficult because of the financial restraints of the family. C.A. said she lived from pay check to pay check and the mother could not even afford $25.00 for the criminal record check. Further, given her past child protection history and verified situations of inappropriate discipline, including the physical discipline and excessive timeouts for the youngest child, it was determined that a placement of N.K., a special needs child, could not be supported by them. On that day, the parties did consent to a finding that the child was in need of protection.

[39] I requested that the Society complete their assessment, which involved interviewing the children. Again, this was somewhat problematic, but it finally occurred. There was a Voir Dire on the children's statements and it was conceded that the statements would be entered as to the state of the children's minds, but not for the truth of the statements.

[40] There were a number of interesting statements made by C.A. and J.B.'s children. One of J.B.'s daughters was asked if she could make three wishes for anything in the world, what would they be? Her answer was a new TV, a coffee table and to sleep on the same floor as the rest of the family. These are very modest wishes considering the child's young age.

[41] The eldest children described yelling in the home between the adult care givers. They also described the youngest child being put in the corner for extended periods of time. They described the youngest child as bad and deserving of a more harsh discipline. This is the child that has problems urinating his bed, causing the mother to have to obtain new mattresses on a regular basis. The child is also described as coming into the older children's rooms, taking their things and bothering them.

[42] Although the statements are not tendered for the truth of the statements, I find that from the children's state of minds, they are dealing with many siblings who are not on the same floor and a younger brother who is a bother to them. Two of the children indicated they would welcome N.K. in their home. As a result of meeting with the children, the Society confirmed its earlier decision not to support the kin placement.

[43] C.A. describes her children as doing very well and she is very proud of their recent report cards. In particular, she is proud of her eldest daughter's accomplishments in French Immersion.

[44] During more careful questioning, there were some concerns expressed. One of the children suffers from a speech impediment. He lost his front four teeth early. The mother says it was because the enamel was soft, but the CAS records filed indicated a report of dental neglect. She refused to have him seen by the speech department at the hospital because she says her eldest daughter attended there and she was unfairly treated. She said she was told that her daughter was doing well but then received a report that she was the worst patient they had seen. No documents were filed in support of this. Her eldest daughter has been very sad with the passing of the maternal grandfather, yet the mother has not followed up with counselling at Children's Mental Health.

[45] Two of the mother's children have challenges in speech and language and one child has not received the speech therapy he requires because of a questionable reason.

[46] C.A. describes her youngest daughter as doing so much better since she separated from her ex-partner. However, she admitted that in June 2017, he was jumping over seats, hitting, and biting other students on the school bus. Further, one month ago, he was again hitting another student on the bus. This does not describe a child doing well. He may be doing better than before, but he still is facing some challenges. I would be very concerned about placing a special needs child who is not mobile in the home.

[47] Further, there appears to be some conflict between J.B.'s eldest child and the others. There was an incident with the family's Great Dane dog and the child. The child described the dog as aggressive. C.A. described the child as being aggressive toward the dog. Whatever the cause of the aggression, there would be concerns putting a fragile child in these situations.

[48] J.B. gave his evidence in a refreshingly candid way. He said he had no criminal record "in Canada". He worked on Harley Davidson bikes, heavy equipment and other jobs in Texas.

[49] J.B. has lived a considerable amount time in the USA. His mother and her partner still live there. He describes their charity work through their motorcycle club as very positive. He was clear to say that he is not a patch-wearing biker, but he acknowledged that he did visit the maternal grandfather's bike clubhouse when he was alive. He testified that if you "don't start no trouble, there won't be no trouble" as to how to deal with bikers.

[50] I was impressed by his love for his children, C.A.'s children and C.A. He describes a great affection for C.A. and described the image of her leaning over his vehicle doing engine work as very attractive. He describes a very active outdoor life style on his "little bit of heaven", that he calls his property. He lives on more than 20 acres with a river running through it. The family has swimming, fishing, camping and skating available, depending on the weather.

[51] C.A. also testified as to a very busy life with J.B. and their children. She says there has been no conflict in her relationship except for two fights. They concerned a hydro bill and how they were going to pay it and the interference of J.B.'s ex-wife, who was trying to break them up. J.B. described a positive co-parenting relationship with his ex-wife, although the initial separation was difficult.

[52] He had meet N.K. once or twice and he said he was supporting C.A. in her request to have N.K. placed in their home. When asked about getting N.K. to his numerous appointments, he said he would do his best.

[53] C.A. testified that she would go at least once a week to the territory of the MBQ to get cigarettes or to see the family of her children's father. She did not describe following any First Nations traditions and has not registered her two youngest children to obtain their status cards even though they are entitled to status.

[54] C.A. says that she would do anything that was asked of her by the Society if N.K. was placed with her. She pointed out that when she was subject to temporary court orders of supervision, she obtained daycare for her youngest to assist in his socialization and obtained counselling for her children because of their exposure to conflict in the home. The workers involved with her did see a marked change after she separated from Mr. T.

[55] Mr. T. was described by Mr. Zwart and Ms Goodfellow as very aggressive with the workers and they felt unsafe in the home. However, while she was with him, C.A. minimized the impact of his anger on the children and on her. The children described conflict and being afraid. C.A. described her daughter as having attachment issues because of the separation, yet she didn't follow up with counselling this school year. She said she wanted the school to contact her. As to her youngest being assessed, she is still waiting and has not called to follow up.

[56] The workers who assessed her as a kin placement were obliged to report a risk of inappropriate physical discipline after speaking with the children. C.A. admits spanking and using hour-long timeouts for her four year old child as he wouldn't sit still. She says that now she uses written apologies for discipline. She denies yelling in the home, but describes play fighting with J.B. She does acknowledge that the children may have been concerned about the play fighting because her previous partner used to physically restrain her. The inappropriately long timeout occurred during a time that the workers were present in the home.

[57] I also consider the length of time it has taken for the kin assessment to be completed. She did not obtain the criminal record check on a timely basis. She did not make herself available on the first opportunity. She did not allow the Society to interview the children on an earlier date because it would have involved waking them before 11:00 and she would not allow the Society to interview the children at school.

[58] If the child N.K. was to be placed with her, it would have to be in a supervision order. She would have to allow the Society access to her home and children. The children may have to be interviewed at school. She has not been exercising access to N.K. She has not shown that she is fully committed to having him in her home.

[59] I find that she loves her sister and wants to be helpful.

Best Interests of Child Analysis

[60] I must consider the best interests of N.K., pursuant to section 37(3) of the CFSA, especially considering his First Nations background.

Section 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 or 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 circumstance.

R.S.O. 1990, c. C.11, s. 37(3); 2006, c. 5, s. 6(3); 2016, c. 23, s. 38(18).

Section 37(4) — Where Child an Indian or Native Person

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.

R.S.O. 1990, c. C.11, s. 37(4).

[61] Although it is not yet in force, section 101(5) of Ontario's amended child protection legislation, the Child, Youth and Family Services Act, 2017 (CYFSA), requires the court to place Aboriginal children with their extended family before placing them with other Aboriginal families:

(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child's extended family if it is possible or, if it is not possible:

(a) in the case of a First Nations child, another First Nations family; (b) in the case of an Inuk child, another Inuit family; or (c) in the case of a Métis child, another Métis family.

[Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 101(5).]

The CYFSA aims to uphold Ontario's obligations under the United Nations Convention on the Rights of the Child, which it "is to be consistent with and build upon the principles expressed in." It also submits that the Government of Ontario believes that First Nations children should be thriving as individuals and as members of their families, communities, and nations. It commits the Government of Ontario to working, in a spirit of reconciliation, with First Nations peoples to ensure that they care for their children in accordance with their distinct cultures, heritages, and traditions.

[CYFSA, Preamble]

The Child's Physical, Mental and Emotional Needs, and the Appropriate Care or Treatment to Meet Those Needs

[62] It is the mother's position that it is safe and in N.K.'s best interests to be placed in the care of her sister. I find that N.K. has special physical, mental and emotional needs and requires special care to meet those needs. C.A. obviously loves and cares for her children to the best of her ability, but the addition of N.K. to the family is not in his best interests. C.A. has struggled to meet the needs of her own children and, at times, has needed assistance or court direction. C.A. describes N.K. as smart. She thought he was "retarded" by the way he was described. N.K. is a child with special needs and he requires a great deal of care that C.A. is unable to provide. This placement for N.K. needs to be permanent given how long he has been in care.

[63] I also note the importance for the child's development of a positive relationship with a parent in a secure place as a member of a family.

[64] N.K. has lived with the same foster family since September 2017 and they wish to provide permanence for him. Although the children's services worker was very short on details, she said they would support aboriginal heritage because they are aboriginal. Further, the MBQ supports them as the permanent placement for the child. His community supports the placement. Although the child cries and screams in situations with strangers, such as his first birthday party that C.A. and her daughter attended, in the foster home, he presents as content and engaged. He is secure in the foster home.

[65] If N.K. were moved it may not be permanent. C.A. could have deemed custody. These orders can be changed based on a material change in circumstance. C.A. testified that if C.F. were to find a home and deal with her issues maybe in time she could have the child back in her care. She does not know about the issues of C.F.'s conflict with the MBQ, Society, family, and struggles with alcohol or drug use. She did not know the mother had missed many of her access visits.

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

[66] C.A. is a stranger to the child. She is part of N.K.'s extended family, but she did not have contact with the child except on a few occasions, even though she was invited to do so. C.A. said that she was taking courses for her Smart Serve and First Aid and was too busy to visit in the last few months. I take notice that she also lives a distance from the child.

[67] If the child stays with the foster family, he will be with his First Nations Mohawk community and with the only caregivers and family he has known. It is best for him to remain there.

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

[68] The mother's plan does not have permanency or any predictability. C.A. has had three child protection openings during her children's lives. Two of her relationships ended badly. She has children with special needs that are not being addressed. Her daughter would benefit from grief and/or attachment counselling. Her youngest son would benefit from speech therapy. C.F. has not followed plans and direction from the MBQ or the Society and there is a risk that she could destabilize the placement with C.A. C.A. does not have the insight as to the protection concerns involving C.F. C.A. and C.F. have not lived together for approximately nine years. C.F. would have been under ten when C.A. left. C.A. says she has the support of her family, but when she needed help with caregiving, she testified that she could not find it.

[69] The Society's plan is adoption, but with openness with the Mohawk community and some form of openness but not direct contact with the mother. It is a good plan and in the child's best interests.

The Effects on the Child of Delay in the Disposition of the Case

[70] If the child was to be placed with C.A., the placement would be subject to a supervision order, resulting in a delay in a final resolution for N.K. He has been in care for 19 months. Delay is not in his best interests.

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

[71] I find that there would be a risk of emotional harm if N.K. was removed from his psychological parents and family. He has special needs and C.A. and J.B., despite their best intentions, may not be able to meet those needs based on C.A.'s struggles with her own children.

[72] There is a concern that N.K. suffered a stroke before coming into care because of the lack of left side mobility. The mother put the child at risk when he was an infant. I find that the risk of physical harm was great. A premature baby should not have been "couch surfing".

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

[73] I find that the Society and the MBQ did their best to work with the mother and her family to maintain N.K. in a kin placement. The mother chose her relationship with N.D. over maintaining a stable residence in the transitional housing. The mother has not consistently exercised access as arranged and supervised by her extended family.

[74] The Society and MBQ have assessed other family plans and there have been family plans that were withdrawn.

[75] C.A. came late in this matter to propose a plan. Her plan would not have been approved by the Society. There is no indication of how the child's First Nation's heritage would be preserved. I have confidence that the MBQ and the foster family will ensure the child's First Nation's heritage will be preserved.

Crown Wardship

[76] Crown Wardship is the most intrusive order a court can make in child protection proceedings. The Court can only grant this relief with the highest degree of caution and on the basis of compelling evidence. Crown Wardship is an order of last resort. Chatham-Kent Children's Services v. L. (L.), 2016 ONSC 2944, at para 48.

[77] The purpose of the Child and Family Services Act (CFSA) includes supporting the autonomy and integrity of the family unit and promoting the participation of the child's parents and relatives in children's services. Accordingly, the CFSA imposes an obligation on the Society to find the least disruptive alternative placement for a child that is consistent with the child's best interests. [Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1(1), 1(2), 1(3)(iv)].

[78] I find that the Society has fulfilled its mandate in supporting the autonomy and integrity of C.F.'s family. A placement of the child in the Mohawk community was the least disruptive placement that was available at the time of placement and it is in his best interests to remain there.

Access

Section 58(2.1) — Access: Crown Ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

2006, c. 5, s. 17(2).

[79] The mother has not exercised consistent access. She is described by a worker as being a natural mother in her interactions with N.K., and he does recognize her. The mother did not testify nor was there any evidence as to how the access is beneficial and meaningful to the child. No evidence was lead as to the effect of access on adoption. It is clear that the foster parents may be apprehensive about contact with the mother because of worries of conflict or reasons unknown to the Court. Given that I cannot find that access is beneficial and meaningful, I do not need to consider whether the access would impair the adoption. Even if the access was beneficial and meaningful I would be concerned that it may impair the chance of adoption.

Final Order

[80] There shall be an order that the child N.K. be made a Ward of the Crown and placed in the care and custody of the Society without access for the purpose of adoption.

Released: March 8, 2018

Signed: Justice W. Malcolm