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: September 16, 2020
Court File No.: Gore Bay K19-0040
Between:
Kina Gbezhgomi Child and Family Services Applicant
— AND —
M.A., W.S., Wiikwemkoong Unceded Territory and Atikameksheng Anishnawbek First Nation Respondents
Before: Justice J. Wolfe
Heard on: August 27, 2020
Reasons for Judgment released on: September 16, 2020
Counsel and Parties
R. Philippe — counsel for the applicant society
S. Haner — counsel for the respondent mother
Wiikwemkoong Unceded Territory — on their own behalf
Atikameksheng Anishnawbek First Nation — on their own behalf
No appearance by or on behalf of the respondent father, W.S., even though served with notice
S. Treherne — counsel for the Office of the Children's Lawyer, legal representative for the children
Decision
WOLFE J.:
Introduction
[1] The society brought a motion for an order to place the children, L.R.S., born […], 2008; K.S., born […], 2010; T.R.S., born […], 2013; and T.W.S., born […], 2014, in the care of the paternal grandparents, subject to the supervision of the applicant society. The mother, M.A., opposed the society's motion and asked the court for an order placing the children in her care.
[2] For reasons outlined below, I have decided that the children are to be placed in the custody of their mother, M.A., subject to the supervision of the society and with certain conditions and terms.
Background
[3] The applicant society, Kina Gbezhgomi Child and Family Services, filed a protection application and motion under the Child, Youth and Family Services Act, S.O. 2017, Chapter 14, Schedule 1 (the "CYFSA") on August 23, 2019 to be heard on August 26, 2019.
[4] On August 26, 2019, a temporary without prejudice order of Justice Humphrey placed the children in the care of their father, W.S., who resided with the paternal grandparents at the time, with supervised access to the mother, M.A.
[5] The temporary care and custody hearing to determine whether the society has met the test pursuant to s. 94 with respect to that initial removal was not heard until now. The endorsement from January 23, 2020 indicates that the children were with their father and the society noted that significant steps were being taken to address protection concerns. The court had been advised that they were looking towards reunification planning with the mother. The endorsement noted that the children were very bonded to their mother. The matter was adjourned to February 18, 2020 for a s.94 hearing. The s.94 hearing did not take place on February 18, 2020, and instead was adjourned to be spoken to on March 19, 2020.
[6] On March 16, 2020, the Office of the Chief Justice released its first Directive regarding the COVID-19 pandemic, suspending the normal operations of the Ontario Court of Justice. As a result, the matter was administratively adjourned to April 30, 2020 and then again to July 30, 2020.
[7] A 14B was filed on June 23, 2020 by the applicant society asking to have the matter heard as presumptively urgent pursuant to updated COVID-19 directives. This Motion was originally brought without notice to the father who the society advised had left the home of the paternal grandparents where the children were residing. The court ordered on June 24, 2020 that it required notice, and the father has since been served. The court triaged the matter onto the July 30, 2020 docket.
[8] The matter was spoken to on July 30, 2020. The society's motion asked the court to place the children in the care of the paternal grandparents. It was presented at first as being on the consent of the mother but became apparent that neither the mother nor Wiikwemkoong Unceded Territory in fact supported the society's motion.
[9] The mother indicated that her position was that she had done what the society had asked of her, was remaining abstinent from use of cocaine and was engaged in ongoing counselling. The society indicated they needed time to verify some of this information and was given time by way of adjournment to August 17, 2020.
[10] On August 17, 2020 it became clear that the parties still needed to communicate regarding the plan for the children. All were advised that if there was no resolution of the issues on the next date, the motion would proceed. The date was set for August 24, 2020 but later adjusted to August 27, 2020. The motion was heard that day.
Position of the Parties
[11] All parties agreed that the father was unable to continue to care for the children at this time. Despite being served and present on at least one audio appearance, the father did not file any response to the society's motion and did not participate in the proceedings apart from one occasion where he indicated that he wanted the children to stay with his parents. The court was advised that he is currently experiencing homelessness, is active in his addictions, and is difficult to locate. All parties believe him to be out of the Manitoulin District.
[12] The society's position was that they are proposing placement with the paternal grandparents because they continue to have protection concerns regarding the mother. These relate to her health issues, specifically addictions, and her lack of cooperation with the society.
[13] Regarding the issue of addiction, the society argued that the mother's efforts to mitigate concerns originally raised when their application commenced almost a year ago are not satisfactory. The society submitted that the mother is still consuming alcohol and marijuana from time to time, though they presented no evidence that this was ever done while in a caregiving role or that it was done in excess. They relied on an affidavit sworn by a society worker from a year prior to demonstrate addictions as being the reason for their ongoing protection concerns. This affidavit was sworn well before the mother attended treatment.
[14] While the society did not dispute that the mother attended treatment as recommended by the society, they argued that the treatment program she attended promoted recovery based on abstinence, and since they had no further information regarding whether the program's position had changed on whether abstinence was still preferred over harm reduction, the society's concerns were still live.
[15] The society filed a further affidavit from Dawna Chartrand, a Child Well-Being Worker employed by the society, that stated the mother did not believe the society was working in good faith towards family reunification and did not want to speak with them when they attended her residence after one of the last court appearances. As a result, Ms. Chartrand expressed concern that the mother is not working cooperatively with the society.
[16] This latter concern of perceived lack of cooperation from the mother also stems from her not having signed updated consents to verify certain information about her treatment efforts. The society was not satisfied to have that information verified by her First Nation, with whom the society has a protocol for service provision, and who was the service provider for at least some of the mother's ongoing counselling. The society did not make any submissions on what the society – as a service provider – could do to mitigate some of the stress in the relationship that had now arisen between them and the children's mother.
[17] The society also indicated that they are uncomfortable with returning the children to the mother when they believe there are people living in her basement. The society made no submissions on the mother's sworn evidence that she would ensure they moved out prior to the return of the children.
[18] Relying on affidavits from the paternal grandparents, B.S. and T.S., which indicated their willingness to continue to provide a home for the children as long as needed, and to support access to the mother, the society advocated placement of all four children with the paternal grandparents.
[19] The mother filed a sworn affidavit on August 21, 2020 wherein she indicated that she is disappointed to see the society continue to resist a return of the children to her, even with supervision.
[20] The mother indicated that she has continued to access the support of Wiikwemkoong Unceded Territory as well as other services. Her lawyer conceded that the mother needs support, including financial assistance, but that the mother was prepared to accept that help, and that with the support of Wiikwemkoong Unceded Territory, the relationship between the mother and the society could be repaired. This work, counsel argued, would require effort on both sides. Counsel submitted that it is only natural the mother feels frustrated and hurt in the circumstances given that the goal posts seem to keep changing.
[21] The mother submitted that there is no evidence she has consumed alcohol before or while in the presence of her children with whom she has had unsupervised access. Her alcohol use, she argued, hadn't given rise to the original protection concerns and there is no evidence currently before the court to suggest that it has been anything other than sporadic or recreational.
[22] The mother's position was supported by Wiikwemkoong Unceded Territory. The evidence of Ms. Pangowish, Band Representative for Wiikwemkoong Unceded Territory, was that the mother has completed treatment and continues to work towards pro-social and culturally-informed ways of managing her addictions. I find Ms. Pangowish's evidence on these issues to be credible and trustworthy.
[23] Wiikwemkoong supported the return of the children to the mother who, they affirmed, "is doing her best, to be the mother she can be, with the skills she has, and her children have seen the difference and are happy with their mother" (Affidavit of Loretta Pangowish, volume 1 of the continuing record, tab 24). She added that the mother "is doing her best to provide the love, learning our cultural teachings, sharing the values and beliefs of our living in our own community, and what family is all about – This mother knows more than any agency, what her children needs" (sic).
[24] Ms. Pangowish submitted that it is her belief that the mother is being overlooked because she has less financial stability than the paternal grandparents. Ms. Shawanda, who is the Band Representative Team Lead for Wiikwemkoong Unceded Territory, also submitted that from Wiikwemkoong's perspective, the children are being torn between "living at the candy store" to the prospect of suddenly living without the luxuries of the grandparent's home and that this disparity in income might be impacting not only the society's position, but that of the children.
[25] Wiikwemkoong Unceded Territory submitted that the paternal grandparents have served an important role in supporting the family; one which is consistent with Anishinaabe kinship and cultural norms. The court heard about the role of grandparents in Anishinaabe families and how essential that relationship is. This was not challenged by any of the other parties. They argued that it is a positive thing for the children to continue their relationship with their grandparents, but that it was time for the grandparents to step back and let the mother serve her role as their mother, now that she is in a better place to do so.
[26] Further, while the society and Atikameksheng Anishnawbek argued that the grandparents could ensure access to the mother, Wiikwemkoong Unceded Territory and the mother submitted it should be the other way around. They argued that given the undisputed evidence that the mother and the grandparents work well together, the court can be satisfied that the mother would ensure this transition is as easy on the children as possible by making sure they are seeing their grandparents frequently and regularly.
[27] The court also heard that the society only has part of the information when it assesses families for risk. Ms. Shawanda argued passionately on behalf of the mother and Wiikwemkoong Unceded Territory, advocating for courts to listen to the people who live in the community with the parents; who see them every day. She advised that there are many who would tell the court how well the mother is doing. She also advised there are many in the community who feel that the society is working against their community members' interests. She submitted that it is a tense and fractured relationship despite the partnership and protocols that currently exist between the First Nation and the society. Wiikwemkoong Unceded Territory is prepared to support the mother to work with them in accordance with the principles of the protocol, should the children be returned to her custody and care subject to society supervision.
[28] John Miller, Band Representative for Atikameksheng Anishinabek, argued that the grandparents have provided a caring, safe home for the children. He submitted that Atikameksheng supports both parents but are concerned that a premature return of the children to the mother could result in her being overwhelmed. No specific evidence was presented on this point by Atikameksheng or the society.
[29] Finally, counsel for the children submitted that the children miss their father. They are rooting for him, as are his parents and community. Counsel submitted that the children feel supported and comfortable in the grandparent's home, and that all the children have benefitted from access with their mother. They are happy to see their mother doing so well. The court was advised that the two youngest want to return to their mother's care and custody immediately, while the older children are content to stay where they are, with the paternal grandparents, if that is what the court orders. There was no evidence that they feel unsafe or unhappy with their mother.
Issues
[30] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondent, it is more probable than not that they will suffer harm.
[31] Further, the onus is on the society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.).
[32] Only after this burden is satisfied as against the party who had charge of the child before the intervention, can the court look to other options, such as the placement of the children in another home, using a best interests test. See: Catholic Children's Aid Society of Toronto v. K.S., 2020 ONCJ 268.
Application to the Facts of This Case
1. Are there reasonable grounds to believe that there is a real possibility that if the children are returned to the respondent, it is more probable than not that they will suffer harm?
[33] First, I find that the mother had charge of the children prior to the society bringing this motion. While there was an order placing the children in the father's care and custody, and until recently, he was living with them and had decision-making authority in their day-to-day lives, that order was made on a without prejudice basis and as a result, the original removal from mother's custody and care remains the focus of this motion.
[34] I find that the mother has been proactive in addressing the addiction issues that were the original basis for the society's intervention a year ago. She has done so through attendance at treatment and through her continued accessing of services, including the "Steps to Change" relapse prevention program offered through Wiikwemkoong Unceded Territory, as well as ongoing Addiction Services Initiative counselling through Ontario Works.
[35] I accept the evidence of Wiikwemkoong Unceded Territory that she is meaningfully engaged in services to address these concerns. The path to sobriety is often challenging and non-linear but I find that she understands her wellness is linked to her ability to parent. She has satisfied the court that she is committed to this, and to working towards a culturally-grounded understanding of her sacred role as a mother.
[36] The mother has overcome a number of barriers to be able to do this. Access to programming has been difficult for the people going through our courts during the COVID pandemic. Yet despite this, the mother has persevered. I am in agreement with Wiikwemkoong Unceded Territory's position that the mother is doing what was asked of her, and that she continues to engage meaningfully in services.
[37] I find that there is no evidence to support a finding that the mother has continued to abuse drugs, or that she has consumed any mood-altering substance while in a caregiving role. On the contrary, I find that the mother has been honest and upfront with her care providers about her progress and her needs. Her children have seen this progress. They are proud of her and are happy to have their mom back. I find it is in their best interests to be returned to the mother's care so that pride can be nourished. A strengths-based approach to assisting families will almost always be of benefit Anishinaabe children, families and communities.
[38] That said, I am satisfied that there remains a risk to the children that the mother, who is still relatively new in her recovery, may become overwhelmed if not provided with significant support, as submitted by Atikameksheng and the society. It has been a difficult year for her, as Ms. Shawanda pointed out, and absent continued supervision, the court is concerned that she may fall back into old habits that gave rise to the original protection concerns. Relapse is unfortunately often a step on the path to recovery, and the court has concerns that on her own, without supervision, this could result in harm to the children.
2. Can the children be adequately protected by terms and conditions of an interim supervision order?
[39] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (s.1(2)2 of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[40] Furthermore, the degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. CCAS of Toronto v. J.O.1, 2012 ONCJ 269.
[41] The society argued that the children should not be returned to the mother because she is not cooperating and therefore a supervision order would not suffice to keep the children safe. That this is an Indigenous family requires a nuanced analysis that takes the history of the child welfare system into context when evaluating this type of argument put forward by the society.
[42] Indigenous families have felt the negative and sometimes fatal impacts of colonization most acutely in the dismantling of Anishinaabe laws and kinship structures. This intentional disruption to the transmission of culture was achieved through the removal of Indigenous children into the residential school system, and now through the disproportionate removal of Indigenous children from their families through the child welfare system (see: Honouring the Truth, Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of Canada, 2015). This overrepresentation is well known, and I am entitled to take judicial notice of not only the statistics in relation to this, but also the alienation, disempowerment and frustration that Indigenous families and communities feel when it comes to child welfare.
[43] This history is what prompted not only the preamble and remedial sections of the CYFSA, but also the most recent federal legislation in Bill C-92, An Act respecting First Nations, Inuit and Métis Children, Youth and Families, S.C. 2019, c. 24 which came into force in January 1, 2020. Both Acts instruct the courts on the need to approach child welfare differently when dealing with Indigenous families, and with a view to recognizing the importance of continuity of culture and family. This is, as the preamble of the CYFSA instructs, to be done "in the spirit of reconciliation…working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions".
[44] It is trite to say that as a result of a history that requires such remedial legislation, Indigenous families sometimes find it difficult to work with child welfare agencies. This is true even when they are partnered with First Nations to provide culturally appropriate approaches to services. It is a strange dynamic to have to put your faith in the people who have taken your children, but even stranger when working with Indigenous families given this history of systematic discrimination. This is the context a court must consider when it is asked to use perceived non-cooperation with a society as a justification to keep Indigenous children on orders that don't allow them to live with their parents.
[45] On the evidence before me, I find that the mother's recent lack of engagement is not indicative of her unwillingness to work with others, for she is doing so with Wiikwemkoong Unceded Territory and other service providers. The mother has clearly felt discouraged by the society's failure to recognize the steps she has taken, but I find that she has not let that stop her from continuing on her path towards wellness and culture.
[46] It also appears from the evidence that the mother was working cooperatively until recently, when the father's withdrawal from a caregiving role did not prompt a return of the children to her despite her best efforts to do what was asked of her.
[47] Further, I do not find that there is any evidence to demonstrate it is impacting her ability to parent, as is clear from the evidence of successful unsupervised access in the months following her treatment.
[48] It is important to stress that information sharing, as outlined in the purposes of the CYFSA at s.1(2) 7 is a critical part of a supervision order. However, it is only possible when trust is there. That trust has to go both ways and societies have an obligation to ensure that the services they provide, which include child protection interventions and investigations, are provided in a manner that gives support to the autonomy and integrity of family units and "wherever possible, be provided on the basis of mutual consent". This is particularly true when good faith efforts have been made to meet the protection concerns of the society. That said, it is critical going forward that both the mother and the society find a way to maintain respectful communication that is supportive, clear in terms of direction and expectations, and above all else, puts the children at the forefront.
[49] As a result, I find that the risk identified above can be alleviated with a supervision order.
3. Is there a person, other than the person who had charge of the children, with whom it would be in the best interests of the children to have them placed under s.94(2)(c)?
[50] In this case, there were two proposals for placement: the society's motion to place the children with the paternal grandparents, and the mother's proposal to have them returned to her custody and care. As a result of my findings above, that the protection concerns can be mitigated through a supervision order when placing the children with their mother, I am not required to decide this issue.
[51] That said, given the evidence that came forward in this case, it is important to express that I accept the undisputed evidence that the paternal grandparents have stepped up and cared for the children in a loving and safe home since their father's recent departure. This stability has been integral to their well-being and they are to be commended for this.
[52] I wish to reiterate that the decision to place the children with their mother is not a judgment on the paternal grandparents who have done a beautiful thing, keeping the children in their home and ensuring they were loved and cared for after their father left and until this matter could be heard in court. I am grateful for their participation in this process.
[53] I accept the evidence of Wiikwemkoong, which was supported by Atikameksheng Anishnawbek, that grandparents have an important role in Anishinaabe families. This includes caring for their grandchildren and their day-to-day needs when one or both of the parents are not in a position to do so. In this case, I find that while the grandparents have offered a suitable placement, I am satisfied that the mother is in a position to resume her parenting responsibilities and it would therefore have been inconsistent with the distinct culture, heritage and tradition of the Anishinaabek from this territory on Manitoulin Island to not allow her to do so.
[54] Further, the court is always required to consider the purposes of the CYFSA when making decisions impacting children in child protection matters. The paramount purpose in s.1 is to promote the best interests, protection and well-being of children. Where the children are Indigenous, the language in the preamble is both remedial and instructive. It reads:
With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:
The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.
First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.
Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan's Principle.
The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.
Further, the Government of Ontario believes the following:
First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.
Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.
For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.
[55] In other words, courts need to consider evidence of the traditions, cultural norms and laws of the Indigenous community it is serving. It may be in some cases that where a child cannot be returned to their parent(s), courts will need to hear evidence about Indigenous kinship structures and the roles of grandparents in the communities they serve in order to make proper determinations on best interests.
[56] In this case, I have considered this evidence in understanding how a supervision order involving a return to the mother's care can be facilitated in a manner that ensures the transition is the least disruptive on the children. It may be that given the views of the children, this family decides the older children will transition out of the grandparents' home more gradually. The evidence demonstrates a willingness to work together, bound by a deep love of these children, and I am confident that the mother can make appropriate decisions in that regard.
[57] As a result of these findings, I am ordering the following:
Order
1. The children, L.R.S., born […], 2008; K.S., born […], 2010; T.R.S., born […], 2013; and T.W.S., born […], 2014, are to be placed in the care and custody of their mother, M.A., subject to the supervision of Kina Gbezhgomi Child and Family Services and subject to the following terms and conditions:
a) The respondent, M.A., shall allow the applicant society to have announced and unannounced visits to their home;
b) The respondent, M.A., shall advise the applicant society seven days in advance of any change in their address and/or telephone number;
c) The respondent, M.A., shall not have anyone live in their residence apart from herself and the children, unless approved by the applicant society in advance;
d) The respondent, M.A., shall comply with any reasonable request made of her by the applicant society that pertain to the best interests of the children, including signing any updated waivers for the applicant society to monitor ongoing counselling or treatment;
e) The respondent, M.A., shall maintain their home as a safe, clean and appropriate environment;
f) The respondent, M.A., shall ensure the children receive timely and appropriate medical attention;
g) The respondent, M.A., shall take all reasonable steps to ensure that any alternative caregiver(s) for the children are fully capable of caring for the children and that these caregivers are aware of her whereabouts, how to contact her in the case of an emergency, and when she shall return to the residence;
h) The respondent, M.A., shall ensure no non-medically prescribed drugs are inside the residence;
i) The respondent, M.A., shall abstain absolutely from the use/consumption of drugs/alcohol while in a caregiving role, and shall continue to engage in any treatment or counselling as recommended by the society and sign updated consents so they may monitor her attendance.
2. Access by the respondent father, W.S., shall be supervised by Kina Gbezhgomi Child and Family Services or its designate at the Society's discretion.
3. This matter shall otherwise be spoken to on November 5, 2020 at 10:00 in Wiikwemkoong Unceded Territory.
Released: September 16, 2020
Signed: Justice J. Wolfe