WARNING

The court hearing this matter directs that the following notice should 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 26, 2021 Sault Ste. Marie

BETWEEN:

NOGDAWINDAMIN FAMILY AND COMMUNITY SERVICES Applicant,

— AND —

A.K. T.N. B.R. BRENT NIGANOBE, THESSALON FIRST NATION BAND REPRESENTATIVE Respondents

Before: Justice J. Kukurin

Heard on: June 25, 2021 Reasons for Judgment released on: June 26, 2021

Counsel: Mr. R. Parise .................................. counsel for the applicant Nogdawindamin Ms. V Chu, legal aid duty counsel assisting Respondent mother, A.K. (present) Ms. V Chu, legal aid duty counsel assisting Respondent father, B.R. (present) No appearance by or on behalf of T.N. (not yet served) with notice Ms. N. Seabrook agent for Brent Niganobe Thessalon F.N. Band Representative

KUKURIN J.:

[1] The Nogdawindamin Family and Community Services (“Nogdawindamin” or the “society”) has brought a child protection application pertaining to three children, ages 4, 2 and three months. They are all half siblings to one another having the same mother and different fathers. The society seeks findings that they are in need of protection under s. 74(2)(b)(ii) and (h) of the Child, Youth and Family Services Act (the CYFSA). It also seeks an order that places them in interim society care (ISC) for 12 months. Contemporaneously with this application, the society has brought a motion for an order that grants to it temporary care and custody of the three children. The children are all First Nation children and their band is the Mississauga First Nation.

Removal, Service, Notice and First Court Date

[2] The society has rushed to get this application and its motion before the court. It did not need to do so. The CYFSA permits in s.88 that a society may apply to the court to determine whether a child is in need of protection.

S. 81 (1 ) A society may apply to the court to determine whether a child is in need of protection.

[3] Where a society removes a child from its caregiver and custodian, brings the child to a place of safety, and wishes to proceed with its protection application, it must bring the matter before the court for a hearing under s.90 within 5 days of placing the child in a place of safety.

S. 88 As soon as practicable, but in any event within five days after a child is brought to a place of safety under section 81, subclause 83 (1) (a) (ii) or subsection 136 (5),

(a) the matter shall be brought before a court for a hearing under subsection 90 (1) (child protection hearing);

[4] The evidence in this case, filed only by the society, indicates that none of the children were removed from the persons who had charge of them prior to the intervention of the society. None were physically taken to a place of safety by the society. Therefore s.88 does not apply to impose a five day outside limit on the society placing its application and motion before the court.

[5] What does apply are the Family Law Rules that give a person served with an application, 30 days to respond by filing an Answer.

Rule 10. (1) A person against whom an application is made shall serve an answer (Form 10, 33B, 33B.1 or 33B.2) on every other party and file it within 30 days after being served with the application. O. Reg. 114/99, r. 10 (1) ; O. Reg. 91/03, s. 2; O. Reg. 519/06, s. 4.

[6] The motion for temporary care and custody is brought under Rule 14. A person bringing such a motion is required to serve the other parties to the motion, with the motion materials not later than six days before the motion date and file with the court not later than four days before the motion date.

Rule (11) A party making a motion with notice shall,

(a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than six days before the motion date;

(b) file the documents as soon as possible after service, but not later than four days before the motion date;

[7] The court can abridge the time for service and filing of a motion. The society, in fact, has a claim for such an abridgment order in its motion for temporary care and custody. However, simply because it asks for such order does not mean that the court will make it.

Rule 3(5) The court may make an order to lengthen or shorten any time set out in these rules or an order, except that it may lengthen a time set out in subrule 33 (1) (timetable for child protection cases) only if the best interests of the child require it. O. Reg. 114/99, r. 3 (5) .

[8] While the primary objective of the Family Law Rules is to enable the court to deal with cases justly [See Rule 2(2)], one has to question whether the current practice, and particularly the custom that seems to be universally accepted or tolerated at what I refer to as ‘apprehension hearings’, really meet that objective. In the case of a child protection application such as in this case, for example, why is the application permitted a first court date well within the time that a respondent served with the application would have to respond by filing an Answer? And why is a motion allowed to be before the court on much less than the six days notice time required for any other motion? Does a society have different Rules?

[9] In the present case, there is nothing that requires a court date earlier than thirty days after the application has been served on at least one party. There was no apprehension or removal of any child to warrant an earlier date. Similarly, the motion of the society should have provided at least the six days notice time required for such motions, or the society should be called to task to justify short service. And the court should give good reasons why it would allow an abridgement of time for service and filing of such motion. To do otherwise leads to a disregard, perhaps even a disdain for the Rules by litigants and the legal profession, and may lead the community to wonder where exactly does “justly” fit in.

[10] The net result of this practice is that respondents are sometimes not served until the day the matter is in court. What is served is generally a mountain of material with inadequate time to read, much less digest, and not enough time to consult, much less retain legal counsel. In short, such practice is anything but “just” and is almost sure to put a respondent behind the “eight ball” right from the very start, a position that is extremely difficult to alter.

[11] If the applicant society had given thirty days notice of its application, the application would not be before the court today. Accordingly, s.94(2) CYFSA would not be engaged today.

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.

[12] This subsection requires the court that adjourns the application, as it inevitably does on a first court date, to make an order for temporary care and custody of the child. But by making the return date today, the society forces the court to make a temporary care and custody order today when circumstances are not such that, by any reasonable standard could conceivably be called either fair or just.

[13] The society’s motion for temporary care and custody is also not within the proper notice time. However, the court can abridge that time. It would need a good reason to do so. I see none here to warrant abridgement. Moreover, the society has not argued that there is. If a similar motion was brought in any other context, any respondent to such motion would be quick to object to its being dealt with in any way on such short notice, or on absence of notice.

[14] Why this diatribe on procedure? It is because procedure and Rules can affect outcomes and can certainly affect the conduct of a proceeding. Our Court of Appeal has adverted in Kawartha-Haliburton Children's Aid Society v. M.W. [1] to the imbalance between societies and parents [at paragraph 69]

“Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality, we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms”.

And refers to the need to recognize in child protection proceedings,

“… the significant imbalance between parents and Children's Aid Societies, noting that parents, even when represented by counsel, were "simply overpowered" (at p. 121). Fairness in the child protection context demands recognition of these dynamics .”

[15] The end result is that the respondents have not argued that either the application or the motion is improperly before the court. They have not argued that service on them was inadequate. Nor have they proffered any other avenue that the court might take to address any unfairness to them. As will be seen below, this all becomes academic because of the decision made this day.

Historical Background - Customary Care Agreements

[16] The background is relevant to how the circumstances came about that led to the society commencing its child protection application. This will necessarily be brief and perhaps not completely accurate because of the embryonic state of the evidence. The two older children of the mother, ages 4 and 2, were placed in Customary Care by separate Customary Care Agreements (CCA’s) dated November 26, 2020. They are still with their customary caregivers who reside in another community. The CCA can, by its own terms, be terminated by any party to it

“… by providing written notice to the Child Welfare Worker who will arrange a case conference that will involve all parties within 10 business days”

[17] Aside from the fact that this provision does not state when the CCA actually terminates, there was no evidence before this court that

(a) the mother gave written notice of termination;

(b) the notice, if any, was given to the Child Welfare Worker ;

(c) the date on which such notice was actually given;

(d) a case conference was arranged or held with the parties to the CCA at any time

[18] In fact, the society’s evidence is that the society was intending to transition the two girls to a different customary caregiver, namely, their maternal grandmother, and the mother refused to sign “an addendum” to permit this to take place. Anecdotally, the mother and the maternal grandmother appear to have an on again-off again, often vitriolic relationship, and the mother does not want any of her children in the maternal grandmother’s care, or in her home.

[19] So, from the point of view of the evidence, the Customary Care agreements for the two older children appear to be in full force and effect, and so far as this court is concerned, are not threatened by termination as no one has complied with the formalities that initiate the termination process.

[20] As an aside, I note that CCA’s are not documents that are governed or prescribed in the CYFSA or in any Regulation made under the CYFSA. At most, s. 80 CYFSA mentions a CCA in the context of imposing an obligation on a society to make efforts to pursue a plan for customary care for a child who is First Nation, Metis or Inuk provided that certain pre-requisites are met. A CCA is, in my view, an an agreement that is a private agreement among its party signatories and, to the extent that it deals with child welfare or child protection matters, it runs parallel to the CYFSA. A child protection court cannot order a child into or out of customary care, nor impose any conditions that will apply to the customary care of a child. It is not appropriate, therefore, for the court to comment on any particular customary care agreement. [2] Such agreements are simply a factual piece of evidence that a court occasionally has placed before it in the evidence of one or more of the parties, just like evidence, for example, that a child once lived with his/her uncle or aunt.

Historical Background – Voluntary Kinship Placement Agreement

[21] The youngest child is only several months old. The society advised the mother that it would not permit the mother to take the child with her on his release from hospital. The mother, apparently faced with its probable apprehension, entered what is titled a “Voluntary Kinship Placement Agreement” (a VKPA) of which there is no mention in the CYFSA statute. The placement was with the maternal grandmother, which is where the child remains to date. Its terms provide that its duration is from May 12, 2021 to November 12, 2021. It also states that it is “ voluntary ” and that it “ can be discontinued by the mother at any time with five days notice ” by contacting a named individual (a Nogdawindamin Child Welfare Worker) or an unnamed Nogdawindamin designate. There is absolutely no mention of the father in this kinship placement agreement, even though the child bears the father’s surname.

[22] The evidence is that the mother stated to the named CWW on June 22, 2021 that

“ …she no longer wanted the Voluntary Kinship Agreement for the child (J.R.), placing him with [S.K.] the maternal grandmother.”

[23] What happened after that date is nothing. The mother did not remove the child. The society did not remove the child. The maternal grandmother has continued to care for the child. The Mississauga band representative did not remove the child. The society started its application on June 24 or 25, 2021 and has confirmed today that it has not removed the child. It does state in its evidence that

“ The Designated Place of Safety for the children will be with their maternal grandmother, [S.K]”

[24] This statement suggests that the society has, in fact, removed the youngest child, at least, from the maternal grandmother [S.K.}, as kin caregiver in the child’s kinship placement, to the child’s maternal grandmother [S.K.], as a “designated place of safety” [3] as that term is defined in the CYFSA. This may be what was informally called a “technical” apprehension and may now be called a “technical” removal, even though no physical changes actually took place. The court has to assume that the society has completed the assessment of the grandmother’s home that is mentioned in s.74(4) CYFSA.

[25] Again, without commenting on the validity, propriety or authority of the VKPA (the kinship agreement) in this case, but simply accepting it as a factual event in the background summary, it may be that the society is wrong, that it has, in fact, apprehended (if I can be excused for using this word) the child from whoever had charge, and has placed him in a place of safety, albeit with the identical caregiver and in the identical home. If so, then the court has to deal with this child under s.94(2) by way of one of four possible temporary care and custody orders.

Temporary Care and Custody

[26] The options available to the court are set out in paragraph [11] above.

[27] What is common with all three children is that they appear well cared for in their present placements. I see no reason why these should change. The mother has triggered a society reaction with respect to the youngest. While the court may semantically call this “temporary care and custody”, in practical terms, this does little except to place the child under a court order that only the court can change or vary. In short, the child’s placement with his grandmother is no longer subject to the terms of any ‘kinship agreement” but is subject to the provisions of the CYFSA.

[28] With respect to the two older children, they are not and have not been apprehended or removed from who had charge of them. They are, however, the subjects of a child protection application in which the court is called upon to determine whether they are children in need of protection. The court is required to make some temporary care and custody order as it must necessarily adjourn the hearing of the protection issue that is placed before it in the society’s application.

[29] This court proposes to keep the children exactly where they presently are subject to a temporary care and custody order [4], with no supervision by the society, and no conditions that apply to their caregivers or to anyone else. This will be a temporary care and custody order that is made ‘without prejudice” as the motion of the society is being adjourned to set a date for a hearing.

Interim Access

[30] The society’s motion asks for an order for maternal and paternal access to the children with minimum frequencies and specified durations. Frankly, there is no evidence why the frequencies and the durations sought by the society ought to be ordered by the court. There is no evidence why these are in the best interests of the children which is the determining criterion for access orders, even those made without prejudice. The making of an access order is not a mandate that is imposed on the court like the making of a temporary care and custody order. Access orders are made in the court’s discretion. Finally, the motion that seeks parental access orders is brought on short notice, permits the parents virtually no time to respond to these claims and, in my view, is totally unfair to them. An access order is not necessary here as the mother seems to be free to exercise access and needs only to make the arrangements with the society. The father has not been exercising access so far as is known, but he also can seek to make arrangements with the society to visit his son, who, it must be remembered, is only about three months old anyway. I prefer to simply adjourn the access claims in the motion so that they can be heard at a proper hearing with all parties having the opportunity to place any evidence they wish before the court, have an opportunity to be represented by counsel and have the opportunity to bring any cross motions and to argue them before the court.

Other Matters

[31] It has occurred to me in reviewing the society’s evidence that little thought has been given to who should be named parties in this child protection proceeding. The customary caregivers are not “foster parents”, as defined in the CYFSA, so far as can be determined. There is reference in the customary care agreement to funding (per diem and reimbursable rates) of the customary caregivers by the society, and while I am open to being convinced otherwise, I do not presently believe that they are “foster parents”. Otherwise they seem to qualify as statutory parents under the CYFSA definition in s.2(2) and/or paragraph 5, 6 or 7 of s.74(1) of the Act. My reading of the CCA’s and the VKPA in this proceeding leads me to the conclusion that there is a conspicuous absence of who has “custody” of these children under any of these agreements. If the caregivers are “statutory parents” then they are proper parties and perhaps should be named as such in this proceeding. They certainly have a practical interest in what becomes of these children and in the plans of various interested parties for them.

Released: June 26, 2021 Justice John Kukurin

Footnotes

[1] Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316

[2] Despite the writer’s belief that a court ought not comment on a CCA, this does not prevent a court from wondering about the contents of a CCA. An obvious question, for example, is who are the necessary signatories and where is the requirement found for who is needed to sign a CCA for it to be valid and binding.

[3] In the CYFSA, place of safety is defined, in a more or less convoluted form in s. 74(1)

“ place of safety” means a foster home, a hospital, a person’s home that satisfies the requirements of subsection (4) or a place or one of a class of places designated as a place of safety by a Director or local director under section 39, but does not include a place of temporary detention, of open custody or of secure custody; (“lieu sûr”)

This is qualified by s.74(4)

S.74(4) For the purposes of the definition of “place of safety” in subsection (1), a person’s home is a place of safety for a child if,

(a) the person is a relative of the child or a member of the child’s extended family or community; and

(b) a society or, in the case of a First Nations, Inuk or Métis child, a society or a child and family service authority, has conducted an assessment of the person’s home in accordance with the prescribed procedures and is satisfied that the person is willing and able to provide a safe home environment for the child.

[4] Placing the two older children in the temporary care and custody of their present caregivers may impact on the funding that they receive from the society as customary caregivers. Whether they are still recognized as customary caregivers for society purposes is a question whose answer is not known to the author. I point out, however, that the society that is funding these customary caregivers under the CCA’s is the same society that is seeking that this court place in the temporary care and custody of the society.