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.

(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.

(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.

Ontario Court of Justice

Date: June 1, 2021 Court File No.: Brantford C86/14 ext. 009

BETWEEN:

The Children’s Aid Society of Brant o/a Brant Family and Children’s Services Applicant

— AND —

R.T.S., B.H., J.S., L.H., S.S., Child & Family Services Department Six Nations Respondents

Before: Justice A.D. Hilliard

Heard on: May 5, 2021 Reasons for Judgment released on: June 1, 2021

Counsel: E. Capitano..................................................................... counsel for the applicant society D. Maltby....................................................................... counsel for the respondent R.T.S. E. Porter............................................................................ counsel for the respondent J.S. R. Sager............................................................................ counsel for the respondent L.H. D. Maslov.......................................................................... counsel for the respondent S.S. M. Elchami..................................................................... counsel for the respondent Band V. Mendes da Costa ....................................................... legal representative for the child

Hilliard J.:

Identification and Overview

[1] The Society brought a motion for summary judgment seeking continued protection findings in relation to the remaining subject child, T.E.H., an order that T.E.H. be placed in the deemed custody of the Respondent, L.H., specific orders for access to the Respondent mother and T.E.H.’s siblings, an order for no access to the Respondent, J.S., and an order that access to the Respondent father, B.H., be in the discretion of the Society.

[2] R.T.S. is the biological mother. B.H. is the biological father of T.E.H. J.S. is R.T.S.’s current partner and biological father of her three (3) youngest children. L.H. is the paternal aunt of B.H. S.S. is the paternal aunt of J.S.

[3] The child and the Respondents are First Nations people, members of the Six Nations of the Grand River. Consequently, the Child and Family Services Department of the Six Nations is also a Respondent to these proceedings.

[4] For the reasons that follow, the Society’s motion will be granted in part.

Background

[5] The application currently before the court is a Status Review issued on June 10, 2020. The status review initially was brought with respect to all R.T.S.’s children. The only child now subject to these proceedings is T.E.H., born […], 2013.

[6] T.E.H. was placed in the care of the Respondent paternal aunt, L.H., in July 2019 and he remains in her care under the supervision of the Society. On December 9, 2019 findings were made on consent that T.E.H. was a child in need of protection pursuant to s. 72(b)(i) [risk of physical harm resulting from failure to care, provide, supervise or protect] and 72(h) [risk of emotional harm] and on February 12, 2020, T.E.H. was placed in the care of L.H. under a supervision order.

[7] The basis for the findings that T.E.H. was in need of protection were that the Respondent mother, R.T.S., had injured T.E.H. by subjecting him to unnecessary blood testing for diabetes and was charged criminally for causing injury to T.E.H. while he was in her care. T.E.H. has subsequently been tested and it has been confirmed that he does not have diabetes. None of R.T.S.’s other children were subjected to blood sugar testing.

[8] R.T.S.’s criminal charges were ultimately withdrawn after she entered into a peace bond on January 18, 2021 for a period of six (6) months. As a result of the criminal charges, R.T.S. has not had any access or contact with T.E.H. since May 2019. The terms of the peace bond allow R.T.S. to have contact with T.E.H. pursuant to a court order made after the date of the bond or at the direction of the Society.

[9] R.T.S. has seven (7) other children, all of whom are in her care. The Society withdrew the protection application in relation to those other six (6) children on consent, based on the marked improvement in child care demonstrated by R.T.S. and her current partner, J.S.

[10] Over the last seven and a half years of his life, T.E.H. has only been in the care of his mother for approximately one (1) year, between the ages of four (4) and five (5). For the other six years of his life, T.E.H. has been in the care of either his father, B.S., or the paternal aunt, L.H.

[11] T.E.H. has consistently expressed the view that he wishes to remain in the care of L.H. He does, however, wish to have contact and access with his older siblings. At present, the only sibling that is having regular access with T.E.H. is M.M.H. The access between T.E.H. and M.M.H. takes place at L.H.’s home.

[12] T.E.H.’s oldest sister, S.D.T., and older twin brothers, B.M.H. and T.W.H., refuse to attend for access at L.H.’s home. There is some sibling contact during M.M.H.’s access visits with T.E.H. via virtual communications.

[13] Until recently, T.E.H. was expressing the view that he did not wish to see his mother, R.T.S., or his step-father, J.S. At the time of the hearing of this motion, the OCL indicated that T.E.H. does now wish to have contact with and access to his mother.

[14] L.H. and R.T.S. do not have a good relationship. There is significant animosity that exists between these two women. The do not have any communication with one another and both have expressed that the other is not welcome in their respective homes. As a result, access for T.E.H. with his mother in L.H.’s home is not possible at this time.

The Law

[15] On a Status Review application, s. 114 of the Child Youth and Family Services Act (CYSFA) provides an exhaustive list of the orders that can be made:

Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101(1), including a term of condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 101; or

(d) make an order under section 102.

[16] The factors to be considered when making a determination under the CYSFA as to what order is in the best interests of the child are set out at 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 recognitions of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, or 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 circumstances 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.

[17] The test to be applied on a motion for summary judgment is set out in the Ontario Court of Appeal’s decision in Kawartha-Haliburton:

1. Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children. [1]

[18] T.E.H. is an Indigenous child and therefore I must also consider the provisions of An Act respecting First Nations, Inuit and Métis children, youth and families. In particular, section 16(1) of that Act sets out a hierarchical structure for prioritizing caregivers for Indigenous children:

16 (1) The placement of an indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child’s parents;

(b) with another adult member of the child’s family

(c) with an adult who belongs to the same Indigenous group, community or people as the child;

(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or

(e) with any other adult. [2]

[19] As the Society is requesting that access to some of the Respondent parents be in their discretion, I must also consider the Divisional Court’s decision in Ottawa when determining what access order should be made:

49 Section 104 of the CYFSA makes it clear that it is the court's obligation to impose the terms and conditions of an access order. This is a discretionary decision. Nothing in the language of sections 104 or 105 of the CYFSA either explicitly or implicitly includes the power to sub-delegate the decision as to terms or conditions of access to a nonjudicial actor such as a Society.

50 In fact, the language of section 105(8) implies the opposite. That section provides that: "If a society believes that contact or communication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) is in the best interests of the child and no ... access order is in effect with respect to the person and the child , the society may permit contact or communication between the person and the child"(emphasis added). Without an access order in effect, a Society has discretion about contact and communication. But there is now an access order with no terms. This contradicts the statutory provision, which reserves Society discretion to situations in which there is no access order in effect.

51 A judicial decision that delegates the discretionary elements of access including type, frequency, and duration to a Society offends the principle against sub-delegation: A.G. of Canada v. Brent, [1956] SCR 318 at 321. It is a decision to delegate discretionary adjudicative authority to a nonjudicial actor where the power is statutorily reserved to a judicial decision-maker. [3]

Analysis

Protection finding

[20] I am satisfied that there is no genuine issue for trial regarding whether T.E.H. remains a child in need of protection.

[21] For a significant period of time, T.E.H. did not wish to have any contact with his mother. I accept the evidence of the Society that T.E.H. has suffered emotional harm from the differential treatment from his siblings that he was subjected to while in the care of R.T.S. There is no evidence that T.E.H. has received any counselling or services specifically designed to address the emotional harm he suffered.

[22] R.T.S. does not accept her role in the harm suffered by T.E.H. while he was in her care. Her evidence filed on this motion for summary judgment asserts that T.E.H. is no longer a child in need of protection because the Society has now withdrawn the protection application with respect to all of R.T.S.’s other children.

[23] The evidence before me demonstrates that T.E.H. has different and distinct emotional and mental needs from his siblings, who are in the care of R.T.S., and there is no evidence that R.T.S. recognizes T.E.H.’s individual needs and has a plan or an ability to meet those needs at present.

[24] I find that there is a risk of emotional harm to T.E.H. if he were to be returned to the care of his mother. To place T.E.H. in the care of a person he has not had any interaction with in two years, and who, until recently, he did not even want to have any contact with, could result in mental and emotional distress.

[25] There is no evidence before me to support a continued finding under s. 74(2)(b)(i). T.E.H. has been tested for diabetes and the Respondent mother now acknowledges that T.E.H. does not have diabetes. I am satisfied that there is no risk that R.T.S. would now persist in testing T.E.H.’s blood glucose levels were he to be returned to her care. The evidence with respect to the care that the Respondent mother is providing for all of her other children is that there are no concerns with her ability to provide for, supervise, and otherwise meet there physical needs. There is simply no evidence to support a finding that T.E.H. would be at risk of physical harm should he be returned to the care of his mother.

[26] Therefore, the protection finding on this status review will be pursuant to s. 74(2)(h).

Placement on Status Review

[27] At the disposition stage of a status review application, I must apply the best interests test to determine what order should be made.

[28] An order placing T.E.H. in the care of his mother would not be in his best interests. Such an order would be contrary to T.E.H.’s expressed views and wishes and would constitute a significant disruption in the continuity of care that T.E.H. has enjoyed while living with L.H.

[29] Although I must consider prioritizing placement of T.E.H., as an Indigenous child, with a parent pursuant to An Act respecting First Nations, Inuit and Métis children, youth and families, in the circumstances of this case, it would not be in T.E.H.’s best interests to be placed in the care of either of his biological parents. T.E.H. and his mother have not had any contact for a two (2) year period. R.T.S. has not put forward any evidence to demonstrate why, after such a significant hiatus in care, it would be in T.E.H.’s best interests to be placed in her care. B.H. has not been participating in these proceedings and there is no evidence before me that he currently has a plan to care for T.E.H.

[30] L.H. is a family member and a member of the same Indigenous group as T.E.H. An order that T.E.H. remain in the care of L.H. will ensure that the preservation of T.E.H.’s cultural identity and connection to community is maintained. An order confirming T.E.H.’s placement in the care of L.H. thereby addresses the concerns regarding Indigenous children in care that the new federal legislation seeks to remedy.

[31] I find that T.E.H.’s physical, mental, and emotional needs are being met by L.H. She is ensuring that T.E.H. is receiving the appropriate care or treatment required to meet his needs.

[32] T.E.H.’s connections and emotional ties with L.H. are also an important consideration in determining what order is in T.E.H.’s best interests. I find that L.H. is T.E.H.’s psychological parent. Given the ongoing and significant animosity that exists between R.T.S. and L.H., removing T.E.H. from L.H.’s care and placing him in the care of his mother, would likely result in the severance of the relationship T.E.H. has with L.H.

[33] The undisputed evidence of the Society is that since the protection application with respect to R.T.S.’s seven (7) other children was withdrawn, R.T.S. and J.S. have refused the family service worker (FSW) access to the home. Due to the refusal to allow the FSW to enter and assess the home, there is no evidence before me as to what arrangements, if any, have been made to accommodate T.E.H. in a home where seven (7) other children are already living with two (2) adults.

[34] After having been the subject of child protection proceedings for almost his entire life, it is important for T.E.H. to bring these matters to a conclusion. The end result of a s. 102 custody order to L.H. will mean permanency for T.E.H. that he requires.

[35] I find that on the evidence before me, the Society has met its onus of establishing that there is no genuine issue requiring a trial regarding the placement of T.E.H.

Access

[36] The issue of what access T.E.H. should have with his mother, R.T.S., and his siblings is less straightforward. Although all parties agree that T.E.H. should have access with his mother and his siblings, the animosity that exists between R.T.S. and L.H. and the current public health directives in place to address the COVID-19 pandemic create significant challenges for arranging access.

[37] At present, the entire province of Ontario is under a stay-at-home order issued by the provincial government, which order is in effect until June 2, 2021. Although the caselaw developed since the inception of the pandemic has made it abundantly clear that COVID-19 concerns are not to restrict or interfere with parents having access with their children [4], the ability for people to gather in groups, even outdoors, is severely curtailed for the time being.

[38] Any reintroduction to his mother should be gradual and responsive to T.E.H.’s mental and emotional needs. Although a structured supervised access setting such as is being requested by the Society might be optimal, there are very limited options at present to accommodate that form of access. Dalhousie Place Supervised Access Centre in Brantford is temporarily closed as a result of the provincial order in effect until June 2, so any order that T.E.H. have access with R.T.S. at Dalhousie Place could not be accommodated by that facility until it reopens. There was no evidence filed regarding when Dalhousie Place anticipated reopening after the end of the provincial stay-at-home order. The end result would be an order for no access at present.

[39] R.T.S. has been clear that she will not attend for access at L.H.’s home so it is also not an option to make an order that T.E.H. have access with the Respondent mother at his residence. R.T.S. has instead suggested that access could occur at her residence. I am not satisfied that an order for T.E.H. to have access at R.T.S.’s residence is appropriate at this time. I have very little information about the residence in which R.T.S. resides with J.S. and her seven (7) other children. After such a long separation, I am not convinced that access at a residence with seven (7) other children and one (1) adult would provide T.E.H. a meaningful opportunity to interact with and reconnect with his mother. There is also insufficient evidence to assess T.E.H.’s comfort level with such an arrangement.

[40] I am not satisfied that there is no genuine issue for trial regarding what access T.E.H. should have with his mother and his siblings. Although all parties agree that T.E.H. should start having access with his mother and his older siblings who he is not currently seeing, there is no clear path forward on how access should commence and be expanded. It may be that, after a reintegration period, an order should be made for T.E.H. to have access with R.T.S. in her home, which would also allow for sibling access to occur at the same time. However, there is insufficient evidence before me at this time for me to make a determination as to when and if such an access order would be appropriate. I am satisfied that there is sufficient evidence for me to made a temporary order for access. I find that a temporary order is in T.E.H.’s best interests, as that will ensure that access commences but can then be reviewed after some visits have taken place, allowing for an order to be responsive to T.E.H.’s emotional needs.

[41] J.S. argues that I should not make an order for no access to T.E.H. as that will result in a significant barrier to R.T.S. having access with T.E.H. I agree. Although J.S. is not asking for a specific order allowing him to have access with T.E.H., he does not wish to be barred from being present during R.T.S.’s access visits with T.E.H. R.T.S. and J.S. are residing together and raising their three (3) biological children together, along with R.T.S.’s four (4) older children from previous relationship. If there were an order that J.S. have no access with T.E.H., in the event that T.E.H. and R.T.S. ever were able to have access in R.T.S.’s home, J.S. would effectively be barred from being present in the home during access. That is not in T.E.H.’s best interests.

[42] Given that J.S. is not requesting a specific access order be granted to him with respect to T.E.H., I am satisfied that there is no genuine issue for trial regarding access to J.S. Given my finding that a no access order would not be in T.E.H.’s best interests, the appropriate remedy in all of the circumstances is to make no order as to access. The absence of a specific order as to access will provide the necessary flexibility to the parties to ensure that T.E.H.’s access with his mother and sibling is not unduly complicated by an order prohibiting J.S. from being present during access visits with R.T.S. or T.E.H.’s siblings.

[43] As indicated above, B.H. has not been participating in these proceedings. I am therefore satisfied that there is no genuine issue for trial regarding the issue of B.H.’s access with T.E.H. Given the Divisional Court’s direction in Ottawa, I am not prepared to place access to B.H. in the discretion of the Society. Although it is arguable that Ottawa is distinguishable on the facts, as in that case the issue of access was in the context of an order for extended society care, I am of the view that delegating the decision regarding B.H.’s access to the Society is not appropriate in this case. As I have determined that T.E.H. such be placed in the care of L.H. under a deemed custody order, it is reasonable to anticipate that the Society’s involvement with this family will be marginal or non-existent in the future. A final order granting B.H. access at the discretion of the Society would require ongoing Society involvement with a family that would otherwise have their interaction with child protection authorities terminated. I find that such court ordered involvement is not in T.E.H.’s best interests.

[44] The evidence is that B.H.’s access with T.E.H. is sporadic, verging on non-existent. I find that it is in T.E.H.’s best interests that there be no order for access for B.H. rather than a specific order providing for B.H. to have access with T.E.H. at a minimum frequency. If there is a dispute as between B.H. and L.H. in the future regarding T.E.H.’s access with his biological father, B.H. can apply for parenting time with T.E.H. under the provisions of the Children’s Law Reform Act (CLRA) by way of an application.

Conclusion

[45] Final order to go as follows:

(1) T.E.H. shall be found to be in continuing need of protection pursuant to s. 74(2)(h) of the CYSFA.

(2) The child, T.E.H., shall be placed in the care of the Respondent, L.H., under a deemed custody order, pursuant to s. 102 of the CYSFA.

[46] Temporary order to go as follows:

(1) T.E.H. shall have access with the Respondent mother, R.T.S., in the community at a location to be agreed upon in consultation with the Society and L.H., at a minimum of once every two (2) weeks for a minimum period of one (1) hour. The specific duration of each access visit shall be subject to the wishes of T.E.H.

(2) T.E.H. will have access with his siblings on alternate weekends in the community or some other mutually agreeable location for a minimum period of two (2) hours, which access may be in conjunction with T.E.H.’s access with the Respondent mother.

(3) The issue of access will be reviewed at the next court date, or on a motion brought on notice in accordance with Rules and any local practice directive in place at the time.

Released: June 1, 2021 Signed: Justice A.D. Hilliard

[1] Kawartha-Haliburton Children's Aid Society v MW, 2019 ONCA 316, [2019] OJ No 2029, 24 RFL (8th) 32, 432 DLR (4th) 497, [2019] 4 CNLR 143, 2019 CarswellOnt 5927 at paragraph 80.

[2] S.C. 2019, c. 24.

[3] JSR v Children's Aid Society of Ottawa, 2021 ONSC 630 at para 49 – 51.

[4] See Ribeiro v Wright, 2020 ONSC 1829, [2020] O.J. No. 1267, Chrisjohn v. Hiller, 2020 ONSC 2401, [2020] O.J. No. 1617, KAB v. PMSB, 2020 ONSC 3700, [2020] O.J. No. 2757, Thibert v Thibert, 2020 ONSC 3701, [2020] O.J. No. 2764.