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: January 21, 2020

Court File No.: Gore Bay C15-0028

Between:

R.F. Applicant,

— AND —

KINA GHEZHGOMI CHILD AND FAMILY SERVICES, W[…] FIRST NATION, WHITEFISH RIVER FIRST NATION, B.G., R.J. Respondents

Before: Justice Andrew L. Buttazzoni

Heard on: December 12, 2019

Reasons for Judgment released on: January 21, 2020

Counsel and Representatives

Réjean Parisé ............................ counsel for the applicant

J. Rachelle Philippe ..................... counsel for the respondent KINA

Constance Shawanda ..................... Band Representative W[…] First Nation

Judgment

BUTTAZZONI J.:

Facts

[1] The child in these proceedings, N.J. (hereafter referred to as N.J.) was born on […], 2004.

[2] N.J. was apprehended at birth on […], 2004 by The Children's Aid Society of Oxford County due to concerns with the biological parents' inability to provide proper care for her. On November 19, 2004 N.J. was discharged from the hospital and placed in a foster home in Woodstock, Ontario. In March of 2005 N.J. was moved to the foster home of the applicant, R.F. and his spouse C.F. in Little Current, Ontario.

[3] On December 12, 2005, N.J. was found to be a child in need of protection. She was made a Ward of the Crown with no access. The Crown Wardship order was subsequently transferred to the jurisdiction of Sudbury and Manitoulin Children's Aid Society in 2008.

[4] The applicant, R.F. and his wife C.F. are now separated.

[5] N.J. is a registered member of the W[…] Unceded Territory.

[6] N.J. has both physical and developmental delay issues. She has been described as severely impaired, both physically and cognitively. She requires specialized care both at home and at school.

[7] N.J. has lived exclusively with R.F. at his residence until KINA's most recent intervention in October of 2019.

[8] A formal Customary Care Agreement was entered into on June 29, 2015 which provided, among other things, that the applicant, R.F. would be the customary care provider for N.J. The Customary Care Agreement was endorsed by the W[…] Unceded Indian reserve #26 pursuant to a Band Council Resolution dated June 29, 2015.

[9] On May 5, 2016, the Crown Wardship order of December 12, 2005 was terminated.

[10] Sometime in August of 2019 another foster child in the applicant's care alleged that she had been touched inappropriately by the applicant. Understandably, this child was removed from the applicant's care as a result of the allegations. As of the date of this motion, R.F. is unaware of the specific nature of the complaint and he has not been charged criminally. In order to avoid displacing N.J. from her home, the applicant agreed to leave the residence and N.J. continued to reside at the applicant's residence.

[11] On October 27, 2019 representatives of KINA attended at the residence of R.F. and removed the child N.J. The applicant does not know where or with whom the child, N.J., is now residing. KINA did not bring the child before the court within five days of removing the child from the home of the applicant R.F., nor did it commence any child protection application for a judicial finding that the child N.J. was in need of protection.

[12] In mid-November 2019, R.F. was advised by the Band that they were cancelling the existing Customary Care Agreement with him. On November 12, 2019 the W[…] Unceded territory passed a Band Council Resolution confirming the placement of N.J. with another caregiver. While a copy of the new Customary Care Agreement has not been placed before this court, I have been advised that N.J.'s biological parents, the new customary care provider and the Band have all signed the new Customary Care Agreement. I do not know if KINA is a signatory to that agreement.

[13] It should be noted that the applicant, R.F. was not a party to the originating child protection proceeding in Oxford County.

[14] Based on the evidence before me, I believe that there is no order, neither a domestic order nor a protection order, that deals with the child N.J. This relates to care of, custody of, protection of or any access to N.J.

Legal Proceedings

[15] On November 22, 2019 the applicant, R.F. filed a Status Review Application, (form 8 B.1) returnable at the Gore Bay Courthouse on December 12, 2019. The respondents are KINA, W[…] Unceded Indian Reserve, Whitefish River First Nation and the biological parents of N.J. By way of relief R.F. was seeking the following orders:

1. That the child be placed in his custody;

2. A declaration that the removal of the child on October 27, 2019 was contrary to section 109 of the Child Youth and Family Services Act;

3. For a temporary order that the child be returned to his care as the child's foster parent along with compliance with section 109;

4. Production of records from Kina Gbezhgomi Child and Family Services and the W[…] Unceded Indian reserve;

5. That the child be identified pursuant to section 90(2) of the CYFSA as a child of the Whitefish River First Nation and as a citizen of that First Nation;

6. Compliance with the Customary Care Agreement of June 29, 2015 with respect to placement of the child until the determination of the child's identity or any further court order;

7. Compliance with section 4 of the Customary Care Agreement dated June 29, 2015 and that pending compliance that the child be placed in the care of R.F.;

8. That the child be provided with legal representation from the Office of the Children's Lawyer; and

9. Costs.

[16] The application was accompanied by a notice of motion, returnable on the same date. Relief was being sought pursuant to subsection 90(2) and section 94 of the CYFSA. Alternatively, R.F. was seeking enforcement of the Customary Care Agreement dated June 29, 2015.

[17] The only party to respond was KINA. While they have not filed a formal response to the application, KINA did bring a motion returnable on December 12, 2019 requesting that the application and motion be dismissed with costs.

[18] On the return date for this motion I heard from counsel for the applicant, counsel for KINA and Ms. Constance Shawanda, a representative of the Wiikwemkong First Nation.

Analysis

[19] Mr. Parisé on behalf of the applicant acknowledges that the application for a status review is not necessarily the perfect solution to the problem facing the applicant. He submits however that because KINA failed to comply with the statutory requirements of the CYFSA after apprehending N.J. on October 27, 2019, his client was left with no other choice but to bring a status review application himself. He submits that because there has been a previous finding and disposition with respect to N.J., this court now has jurisdiction to deal with what he describes as "N.J.'s apprehension by KINA".

[20] Ms. Philippe on behalf of KINA and Ms. Shawanda on behalf of the First Nation both take the same position. Essentially, they submit that in the absence of an existing order affecting the status of the child this court is without jurisdiction to make any order with respect to N.J. In addition, they submit that there was no apprehension on October 27, 2019. The band, who was acting in the best interests of the child, was entitled to cancel the Customary Care Agreement with the applicant. The events subsequent to October 27, 2019 have simply resulted in a change of placement for N.J. Therefore, this court has no authority to review a change of placement made pursuant to a valid Customary Care Agreement.

[21] After having listened to the submissions of counsel and after having reviewed the material filed, I have some concerns. First and foremost, I am troubled by the respondents' description of what happened to N.J. on October 27, 2019 as a "change in placement". The applicant in this case has been caring for N.J. for almost 15 years. There is not a scintilla of evidence to suggest that he has been anything but an appropriate caregiver in a parenting capacity. In fact, even the respondents acknowledge that R.F. has done a good job as a caregiver for N.J. There is no doubt in my mind that N.J. looks upon the applicant as a parent and he looks upon her as his daughter. At the risk of being repetitious, N.J. has lived continuously with the applicant since she was twenty weeks old. Because of her physical and cognitive deficits, N.J. requires constant care and supervision. N.J. was removed from the only home environment that she has known because of allegations that were made by another child who was in the applicant's care.

[22] From the evidentiary record that was before me there is nothing to suggest that N.J.'s care changed following the termination of the Crown Wardship order and the commencement of the Customary Care Agreement. I think it is safe to infer that from N.J.'s perspective, nothing had really changed in her life. Nothing in the materials filed suggest to the contrary. While there was clearly a change in her legal status, there was none with respect to the care she was receiving from the applicant.

[23] I cannot help but conclude that if KINA had removed N.J. on October 27, 2019 in the face of both an existing Crown Wardship order and allegations of sexual misconduct, KINA's conduct could only have been described as "an apprehension". In this case, the fact that N.J. was removed from her residence while she was the subject of a Customary Care Agreement does not, in my view, convert a de facto "apprehension" into a "change of placement". To describe this sequence of events as nothing more than "a change in placement" is troubling to me.

[24] Having said that, this court is not in a position to grant the applicant the relief that he seeks in his status review application. Specifically, the applicant was seeking an order for custody pursuant to subsection 116(1)(b) of the CYFSA. This subsection reads as follows:

116(1) If an application for review of the Child's status is made under section 115, the court may, in the child's best interests,

(b) order that custody be granted to one or more persons, including a foster parent, with the consent of the person or persons.

[25] Subsection 115(1) clearly states that "This section applies where a child is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) or is subject to an order for society supervision made under clause 116(1)(a) or for custody made under clause 116(1)(b)". [emphasis added]

[26] In this particular case, N.J. is not a child in extended Society care. The Crown Wardship order was terminated on May 5, 2016. At present, there is no other order with respect to the status of the child N.J. Accordingly, this court has no jurisdiction to make any decision with respect to the status review application and the accompanying motion. The motion of the respondent, KINA, is granted. The application and accompanying motion brought by R.F. are dismissed without prejudice to the applicant bringing an application pursuant to subsection 81(4) of the CYFSA or under the relevant custody/access provisions of the Children's Law Reform Act, if he so chooses.

[27] In the unique circumstances of this case I am not inclined to make any order as to costs.

Released: January 21, 2020

Signed: Justice Andrew L. Buttazzoni