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: 2021 03 29 Court File No.: Thunder Bay FO 20-72-00

BETWEEN:

Dilico Anishinabek Family Care Applicant,

— AND —

A.A.-K. Respondent

Before: Justice D.J. MacKinnon

Reasons for Judgment released on March 29, 2021

Counsel: K. Burns, counsel for the applicant society M. Cupello, counsel for the respondent A.A.-K

MacKinnon, J.:

Introduction

[1] This is a decision following a temporary care hearing.

[2] The agency Dilico Anishinabek Family Care has brought an application seeking that the child S.B. born February, 2013, remain in the care of his mother, A. A.-K., subject to the supervision of the agency.

[3] The grounds on which the agency seeks such an order are that the child is in need of protection under:

s.74(2)(b)(ii) which is a pattern of neglect in caring for, providing for, supervising or protecting the child;

s.74(2)(h) that there is a risk of the child suffering emotional harm, serious anxiety, depression, withdrawal, self-destruction or aggressive behaviours resulting from actions, failure to act or neglect on the part of the child’s parent.

[4] S.B. is a special needs child. He is seven years of age. He suffers from ADHD and becomes extremely dysregulated without medication. His dysregulation includes violence and aggression. Without his medication, S.B. is unable to function at school and has been unable to go to school for extended periods of time.

[5] The mother was engaged with voluntary services for a period of time, but withdrew in May of 2020.

The Test on a Temporary Care Motion

[6] The test on a Temporary Care Hearing is set out in subsections 94 (2), (4) and (5) of the Child, Youth and Family Services Act, 2017 (the Act) that read as follows:

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.

Criteria

(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

Placement with relative, etc.

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

[7] The onus of proof or criteria are the same when the society is requesting a non-removal order pursuant to clause 94 (2) (b) of the Act or a removal order pursuant to clauses 94 (2) (c) and (d) of the Act.

[8] The issue to be determined in making the non-removal order under clause 94 (2) (b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the child will suffer harm if reasonable terms and conditions of a supervision order are not imposed. Children's Aid Society of Halton Region v. Z. (T.A.), 2012 ONCJ 231, par. 20.

Allegations of the Agency

[9] The agency believes that the mother is unable to follow through on services for the child and has a lack of caregiving skills. In particular, the agency alleges that the mother:

a. Has not given the required medication to S.B.;

b. May be taking the child’s medication herself;

c. Refused to provide herself and the child for urine screens;

d. Has refused to be cooperative with the school of the child;

e. Has not ensured that the child has regular medical appointments;

f. Has failed to cooperate or follow the instructions of the First Nation or Dilico;

g. Has a mental health and drug history;

h. Has struck the child when unable to control the child.

#1 Medication

[10] S.B. needs to be on his medication so that he can function at school. He is under the care of a pediatrician. The agency spent some time investigating this issue. The most that can be said is that two doses appeared to be missing on April 2, 2020, which Ms. A.-K. was unable to explain. On another occasion during a random visit, S.B. was out of medication.

[11] The school and the agency suspect that S.B.’s uncontrollable behaviour at school was related to the failure of his mother to provide medication to him. There is only the above results of the investigation. However, I note that at one point the medication had to be changed by the doctor as it was ineffective.

[12] There is insufficient evidence for me to conclude that the cause of the child’s behaviour is primarily that the mother has failed to provide his medication.

#2 Taking the Medication Herself

#3 Failing to Provide Urine Screens

[13] There is no evidence that the Respondent mother has taken the child’s medication. The mother refused to provide urine screens for herself and the child. Was this reasonable?

[14] The idea of urine tests seems to have come from Sandy Bay Child and Family Services in Manitoba. In her affidavit of July 21, 2020, Erika Halverson, the Family Wellness Worker for Dilico states:

On April 2, 2020, I spoke to Sara Yager(“ Ms.Yager”) Intake Supervisor with Sandy Bay Child and Family Services by teleconference to discuss Dilico’s child protection investigation for the family that was opened on February 28, 2020, due to S.B.’s unregulated behaviours at school and concerns that S.B. was not receiving the medication prescribed for his ADHD. On behalf of the First Nation, Ms. Yager requested that Dilico have workers attend the home and observe S.B.’s medication; that additional mental health supports be provided for S.B.; and that S.B. and A. A.-K. both have urine screens.

[15] The requirement to provide urine screens triggers the privacy and Charter Rights of Ms. A.-K. and S.B.. A child welfare agency is considered to be the skilled professionals related to issues faced by children. Where is the medical evidence supporting the request for drug screens?

[16] If there is evidence of a drug addiction of the mother, it has not been produced on this motion.

[17] There is no evidence that the mother is addicted to drugs such that the medications of the child support a drug habit. Based on the lack of evidence that the mother has a drug addiction or has taken the medication of the child, providing urine screens is not reasonable.

[18] There is evidence that the mother is a user of alcohol and marijuana. Neither of these substances require a prescription, nor are they illegal. It can be said, however, that a high needs child such as S.B. requires 110% of any caregivers’ attention, a level of attention which can be diminished by use of any substances.

#4 Refusal to Cooperate with the School

[19] The school has called numerous times when the child has been acting out and cannot remain in the school. These outbursts seem to correspond with periods when the child is suspected not to have his medication or to have ineffective medication.

[20] In other ways, the agency applauds the mother for being a strong advocate for the child at school and attempting to get him the services that his disability requires.

[21] The real issue about the mother’s involvement with the school appears to be that she has not attended at the school to pick him up when the school has called to say that he cannot remain there, or she has been late in picking him up. This has resulted in frustration for the school.

[22] The mother, a single parent, indicates that she cannot leave work to pick the child up when the school calls. The agency says, “ A. has repeatedly shown that she has difficulty making S.B.’s issues her priority. A. is often preoccupied with her own issues such as her complaints about the school, how school policies for SB prevent her from working, why she cannot respond to the school when called…”. The agency suggests that the failure to leave work to pick SB up is a purposeful choosing by the mother of her own interests over those of the child.

[23] I find this characterization is unfair. The mother is a single parent who indicates in her affidavit that she has no one else who could pick up the child. As the records provided by the agency show, it is a frequent request that the child be picked up. Instead of finding a way to support the mother and child, the agency portrays the mother as uncaring.

[24] The mother says, “I acknowledge I have had some issues with finances. However, I do my best to obtain employment and provide for my family. My child has always had shelter, food, clothing, love and support. I have lost employment positions because of prioritizing my child’s needs. I am a single mother with a high needs child, with limited to no support from the Respondent Father.”

[25] Perhaps it is only another single parent who could understand the stress of trying to work and still balance extraordinary circumstances such as SB’s behaviours demand. There actually are people who do not have alternate caregiver support. I find that the conclusion of the agency that the mother fails to make the child a priority is unfair and unrealistic. Her work makes his housing, food and other needs a priority.

#5 Has not ensured that the child has regular medical appointments

[26] There is evidence that the mother has failed to make some appointments and SB has lost services as a result. However, it is clear that she is engaged with the Dilico Family Health Team. She has also arranged attendance at Sullivan and Associates for the child to have counselling. While it is more important for a child with SB’s needs to be consistent in regard to attendance for appointments, it is not to the level of perfection. Appointments can be missed unfortunately. It appears that there is compliance not to a laudable, but to an acceptable, degree.

#6 Has failed to cooperate or follow the instructions of the First Nation or Dilico

[27] A review of the materials filed show that the mother worked cooperatively with the agency until May of 2020 when she terminated her voluntary service agreement. This is about the time that the First Nation became involved in the case. It is difficult to determine if the father, MB, is actually registered with Sandy Bay Ojibway First Nation in Manitoba, or if he is simply affiliated with them. The community is located about one thousand kilometres from Thunder Bay in Manitoba

[28] In the affidavit of Erika Halverson, the Family Wellness Worker for the agency, she states that, “ A. does not accept that she needs to work cooperatively with the First Nation. Because SB does not have a status card, A. believes that she is not required to follow direction from the First Nation, even though SB, is recognized by the First Nation through MB. ”

[29] Ms. A.-K. is not Indigenous. She is not a member of Sandy Bay First Nation. She has no benefits from the First Nation. She does not live there. She is not allowed to vote there. She has no relationship with them. The First Nation only became involved with this family and in this case in January of 2020.

[30] It is a mystery why Dilico believes that Ms. A.-K. has to take instructions from or comply with an organization that she is not a member of, and that is a stranger to her and her family. It is fundamental in a democratic society that individuals can make a choice about who they wish to associate with. There is no statutory or legal requirement for Ms. A.-K. to take direction from, cooperate with or have any involvement with the First Nation. This is an unreasonable expectation of the agency.

[31] Even if SB is or becomes a member of the Sandy Bay Ojibway First Nation, Sandy Bay Ojibway First Nation does not have authority over him. They are entitled to present their position and evidence to the court about his best interests, but do not have any control over individuals who do not reside there.

[32] The mother, the sole custodian of the child, is choosing not to register the child with the First Nation. It is her choice not to have another government involved with her family. It is unfortunate that the child will miss the benefits of membership as a result. In this case, there is no evidence before me that SB or his father or other immediate family have ever visited or lived in this First Nation community.

[33] Similarly, citizens are not required to follow the directions of a child welfare agency. The implications of failing to do so are set out in the Act, that is that there be an apprehension of the child in prescribed circumstances.

#7 Has a mental health and drug history

[34] The agency makes allegations that the mother has a mental illness and a drug addiction. There is no evidence supporting these contentions.

#8 Has struck the child when unable to control the child

[35] The agency says that a referral was received that the mother was seen outside with the child in a stroller near Intercity Plaza, and could be seen striking the child. The source of this allegation is not provided. The allegation is hearsay.

[36] The allegation does not answer any questions one would have if such an allegation were made such as; how does the person know it was the mother? What day and time was this alleged to have occurred? Was the observer in a moving vehicle? Was there other traffic? What length of time was available for observation?

[37] The mother says that it was not her. She says that SB is too old to be in a stroller and was not available on the day she believes it is alleged to have occurred. The mother also says that previous allegations she believes have come from the father’s family.

[38] The agency has failed to provide sufficient evidence to convince me that it was the Respondent and SB that someone observed.

#9 Lack of parenting skills

[39] SB is a challenging child at home also. His behaviour during visits by social workers has often been uncontrollable. His medication seems to have helped.

[40] The mother has taken a number of parenting courses. It is obvious that any parent would need continuing education to deal with the changing challenges of a child with SB’s difficulties.

Summary

[41] Overall, the materials filed by the agency do not verify their stated concerns about parenting, drug misuse or abuse by the mother, or a failure by Ms. A.-K. to ensure services for S.B.

[42] In regard to the best interests of SB, his mother meets his ongoing needs. However, it is clear that there are a number of important factors that have to be continued in his best interests. SB is a high needs child.

[43] SB needs to continue in the same school to develop his social skills, friendships and be able to rely on consistent educational supports. In addition, services from the Childrens Centre, counselling and other programs can help SB to develop his own coping strategies in order to change or control his behaviours. Assessments of his progress and plan adaptation are essential. It is a critical time in his life, for a child who is left behind at this stage may take years to catch up to his contemporaries, if at all.

[44] While the test is not one of perfection, the mother must continue to address SB’s needs. It is unfortunate that her relationship with the agency was impacted by some unreasonable requirements. The court expects that the agency can put aside unreasonable expectations and judgements and assist the mother to address SB’s needs. The mother must be more open and show that she is rising to the challenge.

[45] The agency is uniquely positioned to have a role in supporting this mother. Having some unreasonable expectations are barriers in this case. The mother is understandably resistant to the requirements of the agency for compliance in some areas. The agency should never foist their own requirements of consulting with the First Nation or cooperating with them, onto families who are already struggling.

Order

[46] Considering all of the circumstances, I want to see the continuation of some positive characteristics of the current situation.

[47] I order, on a temporary basis, as follows:

1. The child, SB born February, 2013, shall remain in the temporary care and custody of his mother, subject to the following terms and conditions: a. SB shall attend [name removed] Public School, or the Day Treatment Program, on days he is scheduled to attend by agreement between the mother and the school. There shall be no unexplained absences from school. b. Ms. A.-K. shall ensure that her contact information is provided to the school for school hours. In the event that the mother cannot be reached or cannot attend the school when SB needs to be removed during school hours, either the agency shall respond or the agency shall arrange for the father or another adult to be the second call backup. c. SB shall remain engaged in his counselling program with Sullivan and Associates, and with the Children’s Centre or any other program agreed between the mother and the school. The mother shall cooperate with the Multi-Disciplinary Student Support Team. The agency will support the mother and child in these endeavours. d. The child shall not change schools without further order of the court. e. The mother shall not have or consume drugs or alcohol in her home at any time, without a prescription. f. No other adult shall reside in the family home without the prior consent of the court. g. The mother will ensure, with the assistance of Dilico, that SB remains engaged with and will attend any assessments or medical appointments with his current physicians and specialists that the health care or education professionals deem necessary. h. The mother will sign consents for the release of information, from any service provider with whom the child is engaged, to Dilico Anishinabek Family Care, failing which the matter of consents can be addressed by the court.

2. Dilico shall be entitled to attend at the home of the child once in each fourteen day period on an agreed day, in order to assess the child in the home. The mother shall ensure that she is in attendance and allows entry and that the child is home.

3. Dilico shall be entitled to one unscheduled visit per month without notice.

4. Dilico will assist the mother in summer programming or childcare for SB.

5. Ms. A.-K. shall ensure that SB receives any medication prescribed for him as set out by the attending physician. Dilico is entitled to obtain the pharmacy records in regard to SB and to do a prescription count on each home visit.

6. The father, MB, and Sandy Bay Ojibway First Nation were each served on July 23, 2020. Neither have filed an Answer. They are each granted a further two weeks from today’s date to serve and file an Answer, failing which they shall be noted in default.

[48] Matter is to return to the next list day, to set a date for a conference.

Released: March 29, 2021 Signed: Justice D.J. MacKinnon