Publication 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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: November 8, 2021 COURT FILE No.: Brantford C 410/07 ext 008

BETWEEN:

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

— AND —

S.M., E.J., B.S., J.W., B.H., T.M., Six Nations Child and Family Services Department Respondents

Before: Justice A.D. Hilliard

Heard on: August 11, 2021 Reasons for Judgment released on: November 8, 2021

Counsel:

E. Capitano....................................................................... counsel for the applicant society D. Miller............................................................................. counsel for the respondent S.M. E. Carroll........................................................................... counsel for the respondent E.J. R. Sager............................................................................ counsel for the respondent B.H. T.M................................................................................................................. on her own behalf B. Maracle................................... band representative for the respondent Six Nations No appearance by or on behalf of B.S., J.W., having previously been noted in default. V. Mendes da Costa.......................... counsel for the Office of the Children’s Lawyer, legal representative for the child

Endorsement

Hilliard J.:

Overview

[1] There are three (3) remaining subject children: S.J.M. (3), L.J. (5), and A.M. (6) in this status review application. The Respondent, S.M., is the biological mother of all three (3) children. The Respondent, E.J., is the biological father of S.J.M. and L.J. The Respondent, J.W., is the biological father of A.M. The Respondent, B.H., is the maternal great-grandmother of all the children. This judgment relates only to A.M.

[2] A.M. has been identified as First Nations children under section 90(2) of the Child, Youth and Family Services Act (CYSFA). The Respondent mother identifies as a member of the Six Nations of the Grand River Haudenosaunee Confederation.

[3] The Society has brought a motion for summary judgment regarding A.M. seeking that she be placed in the extended care of the Society with access to the Respondent mother, S.M. The Respondent, E.J., takes no position on this motion for summary judgment. The Respondent great-grandmother, B.H., supports the Society’s request. The Band supports A.M. remaining in her current placement with B.H. and advocates for a term for sibling access for A.M. to maintain her relationship with the siblings with whom she is not residing. The Respondent father, J.W., was previously noted in default and has not participated in these proceedings.

[4] Ms. S.M. is not opposing a finding that A.M. continues to be a child in need of protection but is opposed to the Society’s request that A.M. be placed in extended society care.

[5] For the reasons that follow, the Society’s motion will be dismissed.

Law

[6] The test on a motion for summary judgment in a child protection proceeding was clarified in Kawartha [^1]:

• In exercising Hryniak’s fairness principles for summary judgment in child protection matters, the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
• The burden of proof is on the party moving for summary judgment, but if the respondent’s evidence does not establish a genuine issue for trial, the court must be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
• The court must conduct a careful screening of the evidence to eliminate inadmissible evidence.
• Judicial assistance must be provided for self-rep litigants; 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 Person (2006) established by the Canadian Judicial Council.
• Special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[7] The provisions of An Act Respecting First Nations, Inuit and Métis children, youth and families [^2] also apply in this case, specifically s. 16(1):

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.

Placement with or near other children

(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child's family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.

Customs and traditions

(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.

Family unity

(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with (a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or (b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a).

[8] As this is a status review application, the test is what disposition order is in the best interests of the children, pursuant to section 114 of the Child, Youth and Family Services Act (CYSFA).

Analysis

[9] A.M. has been in care since July 5, 2019, having been removed from the care of Ms. S.M. and taken to a place of safety. Prior to the removal in July 2019, A.M. had been placed in the care of Ms. S.M. under terms of supervision on June 19, 2019.

[10] The first order involving A.M. as a subject child was in 2016, where she was placed in the joint care of Ms. S.M. and Ms. B.H. under terms of supervision.

[11] A.M. is residing in a kin-in-care placement with Ms. B.H. along with three of her siblings who are now in the extended care of the Society. [^3] Her residency with Ms. B.H. is the home where A.M. has spent most of her life.

[12] Placing a child in the extended care of the Society remains an option of last resort, particularly for Indigenous children such as A.M. Despite the legislative changes with the enactment of the CYSFA to emphasize the remedial nature of the legislation, an extended care order still represents the termination of the parental role and responsibilities.

[13] It is irrelevant that the Society proposes that A.M. will remain in her current placement, which is with an Indigenous family member. The Society’s position is not that A.M. be placed in the care of Ms. B.H. pursuant to terms of supervision, or in the custody of Ms. B.H., but rather in the extended care of the Society. If placed in the extended care of the Society, A.M.’s placement could be changed without the Society needing to demonstrate that such a change is in A.M.’s best interests. It would terminate the protection proceedings regarding A.M.’s placement and where A.M. resides long term would be in the sole discretion of the Society without any judicial oversight.

[14] The determination as to whether it is plain and obvious that A.M. will be placed in the extended care of the Society is easily distinguishable from my earlier judgment regarding Ms. S.M.’s older three (3) children. In that motion for summary judgment, Ms. S.M. was not seeking that those children be placed in her care. At the time of argument, she was not having any access with the oldest child, and the two younger were still expressing some reservations about having regular access. All three of those children were clear in their views that they did not wish to return to residing with Ms. S.M., which given the ages of those children was a significant determining factor in my decision.

[15] A.M. is having regular access with Ms. S.M. The evidence before me is that A.M.’s access with Ms. S.M. is occurring on a regular and consistent basis. There are no reports of any issues during access. Unlike in the case of her three eldest siblings, Ms. S.M. is putting forward a plan to care for A.M.

[16] At the time of the removal of all of Ms. S.M.’s children from her care in July 2019, she was caring for eight (8) children simultaneously. There is a significant amount of evidence, which I accept, that Ms. S.M. was overwhelmed by her parental responsibilities for her eight (8) children in and around July 2019 and did not or could not access the necessary supports to adequately care for all of her children at once. However, that issue as been alleviated to some extent by the placement of the three oldest children in the extended care of the Society.

[17] It is also relevant to consider the decisions I have made on the two companion matters, motions for summary judgment argued on the same date as the hearing in this matter, involving four (4) of Ms. S.M.’s other children. In those judgments, which are being released contemporaneously with this judgment, I have determined that those four (4) children will be placed with their respective biological fathers pursuant to s. 102 custody orders. The end result being that Ms. S.M., if successful in demonstrating that A.M. can be safely returned to her care after a trial, would only have one (1) child primarily in her care, her other children only in her care during periods of access.

[18] The Society’s argument that A.M. would be at risk of harm if returned to the care of her mother without any of her older sibling present at protective factors is not supported by the evidence before me. There is evidence that Ms. S.M. has been able to successfully parent A.M. for periods of time unsupervised without any disclosures about inappropriate discipline or neglect. All of the findings I made in my previous decision regarding the abuse and neglect suffered by the three oldest children specifically do not necessarily result in the only conclusion being that A.M. will ultimately be subjected to the same if returned to the care of her mother. As I indicated above, it is clear that Ms. S.M. was overwhelmed by having to care for all of her eight (8) children at once. The fact that a parent is unable to care for multiple children ranging in age from toddlers to teenagers does not necessarily mean that the same parent cannot successfully care for only one (1) child.

[19] I must also consider the provisions of the federal legislation [^4] which mandates a hierarchical prioritization of placement of Indigenous children in child protection proceedings. There is a delicate balance to be struck when dealing with Indigenous children between the need for permanency and stability and ensuring that parental relationships and cultural ties are maintained.

[20] The special considerations in relation to Indigenous children referred to by the Court of Appeal are particularly important when determining a motion for summary judgment requesting extended society care for an Indigenous child, such as A.M., as opposed to a supervision or deemed custody order with a parent or another relative. The intergenerational trauma that continues to be experience by Indigenous people as a result of the forced separation and removal of Indigenous children from their parents has long been acknowledged by Courts across the country. An order that A.M. be permanently removed from the care of her mother on a motion for summary judgment should be made only on the basis of overwhelming evidence, which is not the case here.

[21] I cannot consider Ms. B.H. as a permanent family placement for A.M. for the purposes of this motion, because the Society is seeking an order for extended Society care. If A.M. is ordered into the extended care of the Society, a statutory obligation is then created to seek out a permanent placement for A.M. by way of an adoptive family.

[22] There is no evidence before me that the intention of Ms. B.H. is to adopt A.M. She is not even seeking placement of A.M. in her care either pursuant to terms of supervision or by way of a deemed custody order. Ms. B.H. is also not a young woman. If a situation arises in the future whereby for health or other reasons Ms. B.H. is unable to care for A.M., the Society will have no obligation to then reassess Ms. S.M. as a potential placement if A.M. is in the extended care of the Society.

[23] In order for me to be satisfied that all possible extended family or community placements have been exhaustively canvassed, prior to the request for extended society care, there must be some evidence before me as to the efforts made by the Society in that regard. On this motion, there is no such evidence.

[24] Given the special considerations that must be applied to Indigenous children, and the provisions of the Federal Act, the Society’s motion for summary judgment fails due to a complete lack of evidence of the efforts made to find a permanent placement for A.M. either with family or within the Indigenous community.

Conclusion

[25] I am not satisfied that the Society has met its onus to demonstrate that there is no genuine issue for trial regarding the placement of the child, A.M.

[26] Order to go:

(1) The Society’s motion is dismissed.

Released: November 8, 2021 Signed: Justice A.D. Hilliard

Footnotes

[^1]: Kawartha-Haliburton Children’s Aid Society v MW , 2019 ONCA 316 , [2019] OJ No 2029. [^2]: SC 2019, c 24 , s 16. [^3]: My judgment on a separate motion for summary judgment regarding those three children was reported at Children’s Aid Society of Brant v. S.M. , 2021 ONCJ 27 [^4]: An Act respecting First Nations. Inuit and Métis children, youth and family , supra .