WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2019-09-26

Court File No.: Sault Ste. Marie 252/16-01

Between:

Nogdawindamin Family and Community Services Applicant

— AND —

S.S., J.H.-R., Batchewana First Nation Band Representative Respondents

Before: Justice John Kukurin

Heard on: September 24, 2019

Reasons for Judgment released on: September 26, 2019

Counsel

Mr. R. Parise — counsel for the applicant society

Mr. S. McCooeye — counsel for the respondent mother, S.S.

Mr. S. Tijerina — counsel for respondent Batchewana Band Representative, Mary Finlayson

No appearance by or on behalf of — J.H.-R., even though served with notice

Ms. J. Gassi — counsel for the Office of the Children's Lawyer, legal representative for the children H. and S.

REASONS FOR JUDGMENT

KUKURIN J.:

[1] These are my Reasons, pursuant to s. 97 of the Child, Youth and Family Services Act (the "CYFSA"), for my decision on the two motions before me. The motion at Tab 3 is brought by the society, and the motion at Tab 10 is brought by the mother. Each seeks an order for temporary care and custody of the three children, and each seeks a temporary order for parental access.

[2] The children are H. (age 13), S. (age 10) and D. (age 7). They are First Nations children and their band is the Batchewana First Nation. Batchewana First Nation has multiple reserves located in and around the city of Sault Ste. Marie, one of which is the R[…] reserve where the children and their mother have their home. Batchewana First Nation is a well organized and active reserve with many amenities and services that its members may access. It participates regularly in child protection matters and should be commended for this as many First Nations do not. It has a band representative who has retained counsel and who has been working primarily with the mother in this case. The mother is a member of the Batchewana First Nation. So, too, is the father who is currently incarcerated at a local custody facility facing criminal charges. This First Nation is in the unenviable position of perhaps having divided loyalties in this family. It indicates through its counsel that its first loyalties, however, are to the children who are the subjects of this child protection proceeding, and in their well being, protection and best interests. That is good news as it coincides with main purpose of the CYFSA and also with what this court is mandated to apply in its decisions.

LITIGATION BACKGROUND TO DATE

[3] The children were apprehended[1] by warrant. Regrettably, I have not seen the warrant, but would certainly like to, as such warrants seem to be seldom sought by societies in this North East region. In any event I believe that such a warrant was sought and was granted by a Justice of the Peace and was properly executed by the society in apprehending these children. For using this proper procedure, I again commend this society which is a relative newcomer in the child protection world locally, and hope that it will continue this practice whenever circumstances dictate that obtaining a warrant is the proper manner in which to proceed.

[4] At the first court date, on May 9, 2019, two days after the apprehension, a "without prejudice" order was made by Justice Condon which properly identified the children pursuant to s.90 CYFSA, granted temporary care and custody to the society, and granted access to the mother in the following terms:

The Respondent S.S. shall have access with the children [H., S. and D.] supervised by Nogdawindamin Family and Community Services or its designate, and:

a) A specific plan should be developed for the sake of the children;

b) Telephone Access should occur not less than two times per week;

c) In-person access should occur at least once per week for no less than three hours per access visit; and

d) The access shall be between the three children and the mother.

[5] The access provisions of that order also provided that the society

shall give reasonable consideration to any alternate supervisors of access advanced by the mother in writing to Nogdawindamin to allow expansion of access between the children and the mother in the event that an appropriate access supervisor is available

[6] The Respondent father was granted, on a without prejudice basis, access supervised by the society, in the discretion of the society. However, as he is incarcerated, such access does not seem to have ever taken place.

[7] The maternal access that resulted from this order was, in mid May 2019, for three hours once per week Friday 3:30 pm to 6:30 pm, which was subsequently changed on July 10, 2019 to Mondays 3:00 pm to 6:00 pm. It is fully supervised at the supervised access facility of the society. The mother also has telephone access to the children twice weekly on Saturdays and Wednesdays.

[8] On May 24, 2019, the maternal grandfather (H.S., who I will hereafter refer to as the "grandfather") also started to attend the mother's access visits, presumably with the consent of the society. The mother has faithfully exercised all of her access visits. How the times, location, frequency and duration of these maternal access visits came to be is not fully explained in the evidence. The mother's counsel indicates she did not have much input into this and has consistently been requesting more access. It is my inference that the access that was put in place was more or less by unilateral decision of the society. Moreover, there is no information in the society's evidence, that the society gave consideration to the grandfather as a maternal access supervisor. The mother did not formally give written notice to the society as required by the without prejudice order so I do not fault the society for not considering access supervision by the grandfather. However, it is clear that the mother is proposing the grandfather as an alternative to herself, to be granted temporary care and custody, if it is not granted to her. The society makes it equally clear that it does not consider the grandfather as a suitable temporary caregiver and custodian, and it has not embarked on any 'kin' assessment of him, and does not intend to, unless it is directed by the court to do so. What is clear is that the society has chosen to establish maternal access at the minimum access set out by Justice Condon in his order of May 9. 2019. It has done so despite clear expectation in the order for the expansion of the mother's access beyond the bare minimums set out therein, and the fact that all three children have expressed that they wish to have access with their mother more often than once per week.

THE LAW FOR TEMPORARY CARE AND CUSTODY DECISIONS

[9] This is set out in s.94(2) CYFSA. It is a two part test. The society has the onus to meet the test based on evidence. The evidence, at this stage, is whatever the court considers credible and trustworthy in the circumstances. The test is not terribly onerous as all it requires is reasonable grounds to exist. Moreover, the standard of proof is the balance of probabilities. The court is given four options, one of which it must choose when a case is adjourned. It is almost invariably adjourned as no one is ever ready for a hearing to determine if a child is in need of protection. The four choices are set out in section 94(2):

S. 94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

[10] The actual wording of the test is set out in s.94(4):

S.94 (4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

[11] Clauses (a) and (b) are non-removal orders. They do not remove the children from whoever had charge before the society's intervention. Clauses (c) and (d) are removal orders and they do remove the children from the person who had charge of them. Where children are apprehended, this represents the society's intervention. They are clearly removed from their former caregiver and custodian.

[12] The first step in a temporary care and custody determination is always to decide who had charge of the children. In this case it was their mother.

[13] The phrasing of the first branch of the test in s.94(4) makes it clear that all that is required of a society is to satisfy the court of the existence of "reasonable grounds" to believe that the child is likely to suffer harm. What is unsaid but understood is that the risk of the likelihood of such harm will exist if the child remains with the person who has charge. The second branch of the test is again the existence of "reasonable grounds" to believe that the child cannot be adequately protected by an order that returns the child to the person who had charge before the child was removed.

[14] In terms of the options available to the court, clause (c) of s.94(2), to which I refer as the placement with 'kin' clause, is supported by s.94 (5) CYFSA:

S.94 (5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community

[15] Section 94(5) not only supports clause (c) of s. 94(2), it prohibits the court from making an order placing the child in the temporary care and custody of a society until it has considered whether it is in the child's best interests to place the child with a relative of the child or a member of the child's extended family or community. Persons who fall into these categories I consider to be 'kin' even though this word is nowhere found in the CYFSA statute. It is simply for convenience and ease of reference. This imposes on the court, where it decides that it cannot make a non-removal order, an obligation to look at kin of the child as persons to whom it may entrust temporary care and custody. This section 94(5) makes it crystal clear to this court that an order for temporary care and custody to a society is the last resort, to be made only if an order placing with kin is not appropriate. Moreover, identification of kin as candidates for temporary care and custody, while preferable, is not required. The court has to consider all of the evidence and, I suggest, might even be tasked, where information in the evidence is scarce or non-existent, with asking who the child's relatives and extended family or community members are, and whether any may be interested in accepting temporary care and custody.

[16] The CYFSA has implemented a number of changes some of which have been emphasized in the statute. Among these are canvassing the views and wishes of a child where decisions are being made or services are being provided to that child. In particular, in the context of temporary care and custody decisions, the court is not only mandated to consider, but in the case of views and wishes of a child, is prohibited from making a temporary care and custody order until it takes such views and wishes into consideration, if they are ascertainable, and until it gives them "due weight in accordance with the child's age and maturity".

[17] Section 94(11) provides the following wording:

S.94(11) Before making an order under subsection (2), the court shall take into consideration the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[18] As a final note, these three children are identified as First Nation children whose band is the Batchewana band. As a result, there are several provisions in the CYFSA that are peculiar to a First Nation child and do not apply to non-indigenous children. This unequal treatment, or one might even say "preference", has so far not been Charter challenged and it represents what the legislature has determined what courts are to do when deciding issues under the CYFSA. Among these provisions are:

S. 1(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. 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. Services to children and young persons should be provided in a manner that,

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

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

   iii. takes into account a child's or young person's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

   vi. includes the participation of a child or young person, the child's or young person's parents and relatives and the members of the child's or young person's extended family and community, where appropriate

3. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

[19] Lastly, but not least, there are definitional sections in the CYFSA that establish statutory relationships that inform the services that societies are to provide to its clients, and that courts are to apply in making determinations and decisions under the Act. Among those that are of some relevance are the following:

S.2 (1) In this Act,

"extended family" means persons to whom a child is related, including through a spousal relationship or adoption and, in the case of a First Nations, Inuk or Métis child, includes any member of,

(a) a band of which the child is a member,

(b) a band with which the child identifies

"foster care" means the provision of residential care to a child, by and in the home of a person who,

(a) receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and

(b) is not the child's parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),

"relative" means, with respect to a child, a person who is the child's grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption;

SEQUENTIAL STEPS IN DECIDING TEMPORARY CARE AND CUSTODY

[20] STEP 1 — The first step should always be a determination of who was or were the person(s) who had charge of a child prior to society intervention. This is very important and often overlooked. Not much time is required on this determination as it is obvious that the mother is the person who had charge of the three children.

[21] STEP 2 — The second step is to determine, on the evidence of the parties which the court accepts and is prepared to act upon at this point in the case, whether the society has satisfied the first part of the test in s. 94(4). It has. The facts are:

(a) that the mother has been in a long term and dysfunctional relationship with the father, has been threatened by him multiple times, once with a knife, and has been the victim of physical assaults at his hands which have taken place primarily in the family home with the children present,

(b) that the father has been charged by the police with domestic assault charges and has otherwise engaged in a criminal lifestyle;

(c) that the father has little if any respect for the law, or for the mother, and even from his current custodial setting, he has been telephoning the mother mainly to threaten her and berate her;

(d) that the father has allies in his two older (adult) sons, C.-N. and J., who were living at the family home and pestering the mother to the point that she evicted them from her home;

(e) that, even though she was warned multiple times, the mother has maintained a relationship with the father permitting him in the family home, denying he was there when he was, and, in fact, secreting him, most recently in a hole cut-out in her bedroom closet;

(f) that the mother and/or father has/have connived to have the entire family including the three children in this proceeding, to lie to authorities searching for the father, telling them that he was not in the home.

(g) That the mother had entered into a Family Wellness Plan, one of the terms of which committed her to notify both the police and the society if the father tried to contact her, a commitment which she failed abjectly to keep

(h) that the police and prison authorities apparently cannot even prevent the father from ceasing to call the mother by telephone from his custodial quarters, and, although it is not in evidence, the court was advised anecdotally that the father will be released from custody in 38 days.

[22] The upshot of all of this information is that reasonable grounds exist to believe that there is risk of likely harm to the three children who were in the care of their mother. The test does not specify the type of harm that is likely to materialize. Nor does it say anything about the quantity of that harm. It is enough that the father can walk into the mother's home and do what he wants there. It is evident that the mother has a long track record of putting up with the father, even aiding him despite his treatment of her, and has co-opted her children in protecting and shielding the father. The fact that he still physically threatens her and has, in the past, wielded a knife is clearly a threat to any child in that household. The fact that the mother is seeking a restraining order against the father in this proceeding is of some comfort that she is finally seeing the light, but it comes very late in the day. I am convinced that the mother loves her three daughters and this certainly comes through in her rambling affidavit in which she refers to them as her beauties and her babies. But love is not enough. They need to be protected. Frankly, I don't trust that the mother, despite her most recent conduct in seeking assistance to avoid contact with the father, is actually able to do this. The only reason she is doing it now, and is even now not totally successful, is because he is locked behind bars.

[23] STEP 3 — The third step is to determine if the society has satisfied the court that reasonable grounds exist to believe that the court can craft an order that will protect the children if they are returned to the mother. It has. Mainly for the reasons mentioned in the next preceding paragraph. No order will protect the children if the father decides to go to the mother's home, which I gather is his home as well. I have no faith that the mother can comply with a court condition that she not allow the father in the home. Also, he will likely walk right through any restraining order just as easily as he will likely walk through the front door of the house.

[24] The result so far is that a non-removal order is not in the books, at this point in time, as far as this mother is concerned. This leads to the fourth step: to look for a kin placement.

[25] STEP 4 — The grandfather is the only kin placement proposed. He has sworn an affidavit that indicates his consent to care for these three children on a temporary basis. The court has an obligation to consider the grandfather as a temporary placement for his granddaughters. It can only do that based on the evidence before it. In this consideration, the court is legislatively directed to apply the best interests test to make this determination. The best interests test lists a number of circumstances that the court should consider in deciding if the test favours or rejects a particular order or determination it is making. In the case of the grandfather, many of these circumstances favour him as a temporary caregiver and custodian:

1. He has been a constant in the children's lives since birth

2. He has a close and special bond with them.

3. He has visited them at least four or five times a week

4. He physically and financially has assisted the mother in caring for the children, ensuring they get to extracurricular activities, and have school supplies and school snacks

5. He is a grandfather and therefore a "relative" to the children.

6. He is a band member of the band of the children and conversant with the indigenous culture, heritage and customs that he and the children share

7. He has a home that is not far from the home of the mother, and so would keep the children in their usual neighbourhood with all of the familiar persons, places and things that are in or around that neighbourhood

8. He has stated under oath, that he will follow any court order that relates to limiting contact between the father and the children

9. The children have expressed their views and wishes that, if they cannot be in the mother's care, they wish to be in his care. With respect to the two older children who have legal representation, this wish has been corroborated by their OCL (Office of the Children's Lawyer) counsel

10. He recognizes that the father is a risk. However, the grandfather does not have the lengthy history, the entanglements and the baggage that the mother has to deal with in respect of the father.

11. He is a more appropriate temporary placement from the viewpoint of maternal access as his home is familiar to the mother and to the three children, he is much more available as an access supervisor than the society can ever be, and this opens up the possibility of considerable expansion of maternal access, which the children indicated to the society that they want.

[26] It is clear from the best interests test that the grandfather is favoured in his family connection to the children, his First Nation connection, his close relationship to the children, the children's express wishes, their ages and stages of development, the facility that the placement will afford to expanded and more meaningful maternal access, the minimization of disruption, the promotion of continuity and familiarity and family ties. All of these are circumstances set out in the best interests test[2] or in the purposes of the CYFSA statute cited above. There are however, some circumstances that may not favour him.

[27] The society have discounted the grandfather as a placement candidate. Its reason, according to its counsel's submissions, is that he lived in such close proximity (apparently two doors away) to the mother and father that he could not possibly not have known what was going on in the home, yet he did nothing. This statement comes not from any positive evidence, but rather from an absence of any evidence. In short, the society wishes the court to make this inference on the basis that there is no evidence that the grandfather did anything. I am not prepared to make this mental jump. The onus is on the society in temporary care and custody hearings, and it has to lead some evidence from which the court could reasonably make the inference it is inviting.

[28] The merits of the competing plans in the context of temporary care and custody also favours the grandfather slightly. The children are placed with what the society calls an "Alternative Care" family, an innocuous and rather nice description synonymous with a "foster family". There is no actual evidence that this alternate care family is indigenous but the court was advised anecdotally that it was, and was on the R[…] reserve. The alternative care placement may meet the First Nations preference for placement but is hampered by representing a bigger disruption for the children than if they were placed with their grandfather. He is not a stranger to them as they are. Moreover, placement with him would facilitate better contact by the children with their mother. It would enhance the opportunities to implement the Batchewana First Nation Summary Plan that the mother has committed to on June 3, 2019 which involves attending with the children at various events and activities geared to eventually re-uniting the mother and the children.

[29] The down side of the grandfather is that C.-N. and J., the adult siblings of the three girls, when they were evicted by the mother from her home, went to live with the grandfather. They are still there and I am not prepared to permit the three children to reside with the grandfather so long as they are there. The mother's evidence is that when they lived in her home, they were verbally abusive to her, would yell at the mother, disrespected her, sided with the father, conveyed his veiled threats to the mother, and refused to leave the mother's home until she called the police. These are not good influences and I suspect that they would sabotage the grandfather's care of the girls. Getting them out of his home is a pre-requisite for his being awarded temporary care and custody.

[30] The other concern is that the father, once released from custody, may go to the grandfather's home even though uninvited and perhaps be a source of risk of harm there. All I can say is that this is also a risk if the father decides he wants to go to the Alternate Care home. The only persons that can stop him are the police. Police are as available to the grandfather as they are to foster parents. They are only a 911 call away. The grandfather has said he will obey any court order. If the father shows up at his place, he will have to "do something".

[31] STEP 5 — I find that it is in the best interest of all three children to award temporary care and custody to the grandfather, subject to the foregoing comments about the adult siblings. Having come to this conclusion, clause (d) of s.94(2), namely temporary care and custody to the society, is no longer an option. The provisions of clause (c) of s. 94(2) require that placement with kin (like the grandfather) is to be subject to a supervision order by the society and to be subject to such terms and conditions that the court feels are appropriate. Step 5 is to flesh out these terms and conditions. Regrettably, I heard very little from any party about what they felt were appropriate conditions. Probably because they were not thinking ahead. I would like to see if the parties, including the grandfather and OCL counsel, can arrive at mutually acceptable supervision order terms. Failing that, I will either entertain submissions, or decide on my own.

[32] STEP 6 — This will effectively end the temporary care and custody determination, assuming it can be implemented. However, there are also in the motions before the court, claims for temporary maternal access and paternal access. On these, I have heard only skeletal submissions and none that I found particularly reasonable. I expect that the society may still want to supervise the mother's access. If so, what form of supervision does it seek? The mother may want to exercise some of her access outside of the grandfather's home? Should she be able to, and on what terms? These three children have older siblings, and what contact should they be having, if any? Finally, I have heard nothing about the father's access to these children. Despite his conduct, he is still their father and at least one of the children has expressed a desire to visit with him. In summary, I have scant evidence and even less by way of submissions as to what access provisions would be appropriate on a temporary basis.

[33] I might add as a comment that the First Nation has a role and a responsibility to keep the children protected. The protection desired appears to be from their father. He will not be incarcerated forever, maybe not even much longer. I am unaware of the actual ownership entitlements of persons residing on the R[…] reserve. However, I understand that the chief and band council can pass resolutions that effectively can ban a band member from attending on a particular property on the reserve. If this is so, it could effectively prohibit the father from attending at the grandfather's home. This measure might have more of an impact on the father than an order of the court and may serve as a deterrent that might dissuade the father from starting any trouble at that location. So far as I am aware, the father loves these three daughters and has never directly harmed any of them nor has he directly threatened them.

[34] I had considered the making of a s.137[3] CYFSA order in addition to the conditions of a supervision order and the conditions of an access order. However, the father must be served personally with a claim for this. He has not been so served. However, I am still amenable to hearing submissions on such claim if proper proof of service is filed. I do not believe that any Rule that is different than a statutory requirement for service is a satisfactory legal alternative.

[35] It is not my intention that these Reasons be considered as my order on these motions. Any order I make will be endorsed in the endorsement record. As will be obvious from the foregoing, I require proof that the adult siblings of the three children are no longer in the grandfather's home. I need either a consent to the supervision terms and conditions of the temporary placement with the grandfather or submission on these from all counsel/parties and the grandfather. I need either a consent to the terms of maternal access, or further submissions relating to these from all parties/counsel and the grandfather. I also need some submissions on the father's access. Lastly, if a s.137 order is being sought on a temporary basis, I need proof of proper service on the father and submissions on what this order should include.

[36] In the meantime, the existing order will continue.

Released: September 26, 2019

Signed: "Justice John Kukurin"

Footnotes

[1] I use the word "apprehension" even though I am aware that the CYFSA no longer uses this word to describe an involuntary removal of a child from its caregiver. The more correct wording is the removal of a child to a place of safety, which I interpret as a legislative attempt to soften what actually takes place when a child is taken by a society away from its caregiver, typically the child's mother. I prefer to continue to use "apprehension", not only because I believe it has a more realistic and honest connotation of what actually happens, but also because apprehension has been in use for such a long time that the court population and the general public understand this word and what it means. Moreover, if I can be allowed to be critical, the present wording is cumbersome, especially in Reasons such as these, and I cannot reconcile why I would use nine words when I could use one that is synonymous and equally acceptable to readers of these Reasons.

[2] S. 74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) 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,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) 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,

(ix) the effects on the child of delay in the disposition of the case,

(x) 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, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection

[3] S.137 (1) Instead of making an order under subsection 101 (1) or section 116 or in addition to making a temporary order under subsection 94 (2) or an order under subsection 101 (1) or section 116, the court may make one or more of the following orders in the child's best interests:

1. An order restraining or prohibiting a person's access to or contact with the child, and may include in the order such directions as the court considers appropriate for implementing the order and protecting the child.

2. An order restraining or prohibiting a person's contact with the person who has lawful custody of the child following a temporary order made under subsection 94 (2) or an order made under subsection 101 (1) or clause 116 (1) (a) or (b)

S. 137 (2) An order shall not be made under subsection (1) unless notice of the proceeding has been served personally on the person to be named in the order.