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 04 27 COURT FILE No.: Thunder Bay FO19-0171-01 and FO19-0171-00

BETWEEN:

Dilico Anishinabek Family Care Applicant

— AND —

S.M-S.S. V.A. Mamalilikulla-Qwe’Qwa’Sot’Em Band Respondents

Before Justice D.J. MacKinnon

Heard on February 8, 2021 Reasons for Judgment released on April 27, 2021

Counsel: K. Burns...................................................................................... counsel for the applicant(s) M. Frangione............................................................. counsel for the respondent S.M.-S.S. E. VanVoort........................................................................ counsel for the respondent V.A. C. Belda................................................................................................................. OCL for J.S.1 K. Costa…………………………………………………………………………..OCL for J.S.2

MacKinnon J.

[1] A temporary care hearing was held in this matter regarding JS1 born in July 2015 and D.A. born in May 2020. Argument was also heard in regard to JS2, however the parties later agreed to a disposition related to her and I am not required to make that determination.

Background

[2] JS1 and DA are two of the children of SMSS and VA. The other children are: JS2 (12) in the care of the maternal grandmother, NS (8) in the care of her father, VA Jr. ( 4) in the care of Dilico, and EA (3) in a kin-out-of-care arrangement.

[3] The grounds of protection claimed by the agency are that there is a risk that the child(ren) are likely to suffer physical harm inflicted by the parents by failing to care for, provide for supervise or protect the child(ren) or a pattern of neglect.

[4] The agency has been involved with the mother and her partners since 2009 regarding domestic violence, lack of caregiving skills, mental health issues and substance/alcohol abuse.

[5] The children have been in care under temporary care agreements for various periods of time since 2016. On May 21, 2019 the mother revoked her consent to a Customary Care Agreement which was in effect and the children were apprehended.

[6] Following the apprehension, the parents, according to the agency, did not follow through on programming, failed to cooperate with them, did not keep all of the access visits with the children and continued to abuse alcohol and have domestic abuse issues as a result. The parents deny these allegations.

[7] In this case, the agency supports their claim of domestic violence with a number of Incident Reports from the Thunder Bay Police Service (Affidavit of Michelle Marie dated August 14, 2019). While the mother characterized one incident as a verbal argument, the police report includes her statement that VA had assaulted her and took some money from her. The mother later told the worker that she had been assaulted by him a number of times. A video surfaced showing the father drinking a beer when the parents had care of their children.

[8] The parents reluctantly began working with the agency and began to have unsupervised access with JS1. On May […], 2020, when DA was born, the parents were engaged in numerous services and matters seemed to be improving. JS1 was returned home on an extended visit. The older sister, JS2, returned from living with her grandmother. The new baby was also in the care of his parents. Everything looked positive for the family.

[9] JS1 has displayed both physical and emotional difficulties. He is involved with occupational therapy, physiotherapy and speech services. He had a developmental services worker helping him weekly to deal with his behaviours.

[10] Suddenly in October of 2020, the parents terminated involvement of the developmental services worker for JS1. The father failed to follow through with Adult Mental Health and Addictions programming.

[11] During this period, JS1, who was five years of age, was kept in his room and had time outs. A worker attended at the home and found him crying in his room during a three hour time out. He believed he was “bad”. The parents felt that they knew how to parent their own children and refused discussion on the point. The parents were missing visits with their other children. They refused to sign consents. The mother admitted struggling with JS1’s behaviour. They did not feel that the children needed to be interviewed in private.

[12] On October 26, 2020 JS1 told his teacher that his mother tried to kill the family’s cat and that his mother no longer wanted him. The agency tried to support the family and have them enter into a family support program. The parents did not do so. The parents withdrew JS1 from school and he never reattended while in their care. The agency later became aware that JS2 was also not in school.

[13] At the beginning of December, JS2 met with a friend and her mother and refused to return home as she was afraid of her parents. The police were called and she gave a statement to the police. She was afraid they would strike her as they did her brother. The parents were drinking and trying to get her to drink alcohol and take percocets with them.

[14] JS2 reported that JS1 was often left in his room as a form of discipline for a whole weekend or a whole day. He was yelled at, called names and struck by the parents. He was not fed or allowed to go to the bathroom. She was also afraid for her baby brother DA. She said that her mother pushed DA down aggressively to make him take his bottle.

[15] JS1 also indicated that he was afraid of his parents. He said that he often had to stay in his room even overnight. His parents removed the light from his room. He was slapped and struck in the head which hurt. He was hit with a spatula.

[16] The parents argue that these allegations are the result of “strict” home rules imposed by them on JS2. They blame JS2 for the apprehension of the children, citing that she has lied because she did not want to stay with them as they would not let her associate with her friend.

The Test

[17] 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.

[18] The onus is on the agency to prove that there are reasonable grounds to believe that there is a risk that the children will suffer harm in their parents’ care.

Analysis

[19] The children have set out the concerning elements of their lives with their parents:

a. Physical disciplining;

b. Inappropriate time-outs;

c. Failure to meet the needs of the children regarding school and socialization;

d. Use of drugs or alcohol by the parents.

[20] The treatment of JS1 by his parents is extremely concerning. A special needs child such as JS1 needs a considerate and understanding environment. There appeared to be many opportunities for the parents to become educated in regard to his needs and the parenting approach necessary to help him. The physical striking of a child has implications for their feeling of self-worth, confidence and security.

[21] In addition, I find that confining a child of this age to his room for more than a few minutes, encourages feelings of isolation, worthlessness, alienation and self-loathing. There are long term implications for children treated in this manner, as already exhibited by the emotions of the child and his feeling that he is “bad”.

[22] The changes made by the parents to JS1’s world do not seem to be based on his best interests. What was the benefit to him to terminate the use of a developmental services worker? Why was it better for him not to be in school where he could establish social relationships with children his age? While it seems as though these decisions are the purview of parents, they are open to scrutiny especially considering that the parents have not been able to parent other children in the family. It is particularly worrying when the parents have rejected assistance offered by the agency.

[23] JS1 is only five years of age. He loves his parents and wants to be at home with them, but he doesn’t want to go there if they hit him or force him to have time-outs.

[24] The mother has a history of being involved in violent domestic relationships. The police reports corroborate this view. It seems as though she is sometimes also a perpetrator. It is not clear to the court the charges for which she is currently on house arrest.

[25] Domestic violence contains some markers: isolating the victim from other supports or family members, eliminating opportunities for the victim to talk to others, excluding others from the home, making the victim believe that they deserve punishment. The recounting of physical violence by JS1 is supported by the same markers in the actions of the parents.

[26] The position of the parents in regard to JS2 is also revealing. They put forth reasons why she is lying, according to them. They blame her for the apprehension of the other children and have been quoted as telling JS1 that she is no longer a member of their family and her brother won’t be able to see her. This is petty and immature. It fails to present a view that the parents are able to put their differences with the children into perspective.

[27] DA has only been in the care of parents. There is only one allegation related to him – that is that his mother pushed his head down harshly to make him drink his bottle. It is very important for young children to bond to their parents and to have security in their first few years. However, the context of the parenting is very important.

Decision

[28] The mother and the father love their children and want them in their care. Last year they worked hard to get the children back in their custody.

[29] The court must determine if there are reasonable grounds for the concern of the agency that the children are at risk of physical harm in the care of their parents. I find that there are reasonable grounds to believe that they are.

[30] The allegations made by the children are consistent between JS1 and JS2 and believable. The disciplining of JS1 was inappropriate. There is a risk that the parents have not learned how to appropriately discipline their children or how to consider the best interests of the children. In addition, I must consider that JS1 is a child with special needs who requires a particular type of parenting.

[31] In regard to DA, it is unfortunate, but the parenting of JS1 causes a concern that the parents will be unable to demonstrate appropriate disciplining and care of him as he develops.

[32] The court must consider the least intrusive action to protect the children. I consider the following at this time:

a. The actions alleged to the parents occur within the privacy of the home;

b. The parents have been uncooperative with the agency over periods of time;

c. There appears to be little insight by the parents into the impact of their behaviours on JS1;

d. There is no verification that the parents are abstaining from alcohol or drugs which have been an issue in the past;

e. The parents have failed to complete rehabilitative programs offered to them.

[33] I cannot, at this point, allow the children to be in the care of the parents. I do not think they will be cooperative to allow supervision to be effective, nor does their view support an understanding of the real change that needs to occur.

[34] In these circumstances, I order as follows:

a. JS1 born in July 2015 and DA born in May 2020 shall be in the temporary care of Dilico Anishinabek Family Care.

b. The parents, S.M-S. S. and VA, shall have access to the children as follows:

i. Three hours per week to JS1;

ii. Four hours per week to DA;

iii Other access in the discretion of the agency.

c. The access of the parents shall be supervised. It is expected that the access will be in person as soon as Covid 19 regulations allow.

d. There shall be access between JS1, DA and JS2.

e. The file dealing with JS1 and the file dealing with DA shall be merged and continued under the file number dealing with JS1.

Released: April 27, 2021 Signed: Justice D.J. MacKinnon