Notice

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: December 20, 2022 COURT FILE No.: CFO 09-10753

BETWEEN:

Native Child and Family Services of Toronto Applicant

— AND —

P.B. (deceased); B.C.; S.M.-W.; Wahgoshig First Nation Respondents

— AND —

Kunuwanimano Child and Family Services Respondent (on motion)

Before: Justice M.B. Pawagi

Heard on: December 15, 2022 Reasons for Judgment released on: December 20, 2022

Counsel: Rebecca Kingdon.............. counsel for Native Child and Family Services of Toronto Allana McComb.......................... counsel for Kunuwanimano Child & Family Services Elizabeth Julien-Wilson............................................................ counsel for the father B.C. Marco Pasquale Frangione………………………..counsel for Wahgoshig First Nation William Hutcheson.............................. counsel for the Office of the Children’s Lawyer Legal representative for the child

PAWAGI, J.:

Nature of the Case

[1] The question on this motion, brought by Wahgoshig First Nation, is where should this child protection proceeding be heard: Toronto or Timmins?

[2] The subject child is almost 9 years old. She has been residing in Wahgoshig First Nation in northeastern Ontario in the care of S.M-W., pursuant to a Customary Care Agreement, for 8 years. The First Nation is in the territorial jurisdiction of Kunuwanimano Child & Family Services, which is in the territorial jurisdiction of the Ontario Court of Justice in Timmins.

[3] The Customary Care Agreement was terminated on or about September 20, 2022, after the child had been moved to the care of S.M.-W.’s mother, C.M., also on Wahgoshig First Nation. At that time there was a dispute between the two child protection agencies as to which agency should bring the matter before the court: Native Child and Family Services of Toronto (“NCFS”) or Kunuwanimano Child & Family Services (“Kunu”). So as not to leave the child in limbo, NCFS filed the protection application in Toronto; and both NCFS and Wahgoshig First Nation filed motions seeking to transfer the proceeding to Timmins. It was agreed between them that it was the First Nation’s motion which would be heard. Kunu is the only party opposing the transfer.

[4] For the reasons set out below, I find there is absolutely no merit to Kunu’s position that this matter be heard in Toronto, and I order the proceeding to be transferred to Timmins forthwith.

Parties

[5] The parties on this motion were also the parties on the Customary Care Agreement which was signed in September 2014 when the child was 7 months old, as follows:

(1) NCFS, the agency who brought the initial protection application in 2013 in Toronto which was withdrawn in favour of the Customary Care Agreement; (2) P.B., the biological mother, who died April 3, 2017; (3) B.C., the biological father, who resides in Toronto and is not opposing the transfer nor presenting a plan for the child; (4) S.M-W.: who was the customary caregiver but is not participating in the proceeding; (5) Wahgoshig First Nation; and (6) Kunu, the only party who opposes the transfer motion.

[6] Counsel on behalf of the child takes no position on the transfer motion, but advises the court the child is content in the care of C.M.

Facts

[7] The following facts are not disputed with the exception of those set out at paragraph 11 below.

[8] NCFS apprehended the child at birth in 2013 at St Michael’s Hospital in Toronto (now called “removed to a place of safety”). The protection concerns regarding the biological parents were domestic violence, substance abuse and mental health issues.

[9] Wahgoshig First Nation proposed that the child be placed with S.M-W. who lived on reserve. Kunu assessed S.M-W. and approved her as a licensed “Alternative Care Home.” All the parties supported the long term care of the child with S.M.-W. by way of a Customary Care Agreement, which was signed by the biological mother, the biological father (and his counsel Ms. Julien-Wilson), the customary care parent S.M.-W., Wahgoshig First Nation, Kunu and NCFS. The protection application was then withdrawn.

[10] The circumstances which lead to the child’s move from S.M-W.’s home to C.M.’s home and the subsequent termination of the Customary Care Agreement were as follows:

(1) Around July/August 2022, S.M-W. went on a trip to North Bay and left the child (along with her own children) with S.M.-W.’s brother, who was not permitted by Kunu to be in a caregiving role; (2) Police were called to the home due to a disturbance and found S.M.-W.’s brother in a caregiving role while under the influence of alcohol; (3) Wahgoshig First Nation crisis team attended at the home and moved the child, and S.M-W.’s children, to C.M.’s home with the consent of both S.M-W. and C.M.; (4) Kunu wrote to NCFS on September 20, 2022 to advise they were closing S.M.-W.’s home effective that day and that “alternate arrangements will need to be made to secure another placement.”

[11] I note the following areas of dispute and/or uncertainty:

(1) Wahgoshig First Nation submits that their removal of the child from S.M.-W.’s home was at the “behest” of Kunu, which Kunu disputes; (2) Wahgoshig First Nation submits that “beginning in about late August 2022” Kunu had child protection concerns about S.M.-W. and as such it closed her home in September 2022. However, in her affidavit sworn November 30, 2022, at paragraph 24, Kunu worker Jamiee Trout deposes that Kunu had ongoing concerns about S.M.-W. over the last four years during which time they received “fourteen referrals due to concerns of substance use, domestic violence, neglect of basic needs and risk of mental/emotional harm.” Ms. Trout further deposes at paragraph 25 that S.M.-W. “would not schedule nor attend the child’s medical, dental and optical appointments, nor would she follow through with scheduled meetings with myself.” (3) Does Kunu’s letter dated September 20, 2022 advising NCFS of the closing of the home constitute the 15 day notice of termination pursuant to the terms of the Customary Care Agreement or does it constitute the termination itself?

[12] The child considers S.M.-W., whom she resided with for 8 years, to be her mother and S.M-W.’s children to be her siblings. She now resides with S.M.-W.’s mother C.M. whom she considers to be her grandmother. S.M.-W.’s children also reside with the child at C.M.’s home. The child is also close to S.M.-W’s partner and C.M.’s partner.

[13] The child also has a relationship with two of her siblings by blood: a brother and a sister. Her brother is 7 years old and has special medical needs. He resides in a therapeutic foster home outside of Toronto, pursuant to a Customary Care Agreement to which NCFS is a party and Kunu is not. Her sister is 13 years old. She used to reside in Wahgoshig First Nation, but recently moved a few hours away to Englehart. She still visits Wahgoshig First Nation weekly.

[14] The child’s biological mother died when the child was 3 years old.

[15] The child’s biological father lives in Toronto and has not seen the child since prior to the pandemic. He has only called the child a few times over the last three years. He is not presenting a plan for the child, nor is he opposing the transfer motion. He just asks that his participation be facilitated in whichever jurisdiction the matter proceeds. He has also asked that the child be placed with her brother which is not possible as her brother resides in a specialized therapeutic foster home. He is not consenting to the child residing with C.M.

[16] The child’s school and medical/dental clinic are located close to Wahgoshig First Nation, in Matheson and Timmins respectively.

[17] The child is involved in Indigenous activities and events on Wahgoshig First Nation, including most recently a pow wow in September 2022 to celebrate her brother’s reintroduction to the First Nation.

[18] The child has many friends in the First Nation and she is currently active in the First Nation’s Choose Life Program, which a program that promotes the mental, emotional and behavioural well-being of Wahgoshig First Nation youth.

[19] The child is presently with C.M. subject to a temporary supervision order.

[20] Only the father, B.C., opposes this placement.

Analysis and the Law

[21] On the first appearance of the protection application on October 7, 2022, Justice O’Connell made a temporary order on a without prejudice basis placing the child on a supervision order with C.M. and adjourned the matter to December 7, 2022 for a “motion for jurisdiction,” referring to both the agencies’ jurisdiction and the courts’.

[22] While the within motion deals only with the question of whether this court should transfer the proceeding from Toronto to Timmins, there is a preliminary question, as Justice O’Connell noted, that also needs to be addressed; namely, did NCFS have the authority to initiate the proceeding in Toronto in the first place?

[23] Both questions have to do with “territorial jurisdiction”; both the court’s and the agency’s.

[24] The statutory provision relating to “territorial jurisdiction” is found at s. 91 of the Child, Youth and Family Services Act (CYFSA), set out in full below:

Territorial jurisdiction

91 (1) In this section,

“territorial jurisdiction” means a society’s territorial jurisdiction under subsection 34 (1).

Place of hearing

(2) A hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides, except that,

(a) where the child is brought to a place of safety before the hearing, the hearing shall be held in the territorial jurisdiction in which the place from which the child was removed is located;

(b) where the child is in interim society care under an order made under paragraph 2 or 4 of subsection 101 (1) or extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the hearing shall be held in the society’s territorial jurisdiction; and

(c) where the child is the subject of an order for society supervision under paragraph 1 of subsection 101 (1) or clause 116 (1) (a), the hearing may be held in the society’s territorial jurisdiction or in the territorial jurisdiction in which the parent or other person with whom the child is placed resides.

Transfer of proceeding

(3) Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there.

Orders affecting society

(4) The court shall not make an order placing a child in the care or under the supervision of a society unless the place where the court sits is within the society’s territorial jurisdiction.

[25] I will answer the second and easier question first, in which territorial jurisdiction should this matter be heard?

[26] I find Wahgoshig First Nation has amply met its burden of demonstrating that there is a preponderance of convenience in favour of conducting this proceeding in Timmins based on the following:

(1) The child is almost 9 years old. She has been residing in Wahgoshig First Nation since she was 7 months old, essentially her entire life. All of the evidence with respect to her physical, psychological and emotional well being is found where she resides; (2) The current protection concerns relate to her former customary caregiver S.M.-W. with whom the child had been residing for the last 8 years, until around August 2022, in Wahgoshig First Nation; (3) The only plan being proposed for the child at this time is for her to continue to reside with C.M. in Wahgoshig First Nation.

[27] Kunu’s opposition to the transfer is based on the following incorrect and/or alarming assumptions:

(1) The child’s ordinary residence is Toronto. This is incorrect. The child resided in Toronto for only the first 7 months of her life. She was then moved to Wahgoshig First Nation on a Customary Care Agreement that the parties agreed was long term. She has been residing there ever since (a period of 8 years). All her connections to services and people are there. (2) Transfer of the proceeding would mean Kunu would be responsible for the child’s brother and they do not have the level of services in their jurisdiction to meet his specialized medical needs. This is incorrect. The child’s brother is not the subject of the within court proceeding. The child’s brother is subject to a Customary Care Agreement of which NCFS is one of the parties and is providing funding to his customary care provider. Kunu’s only obligation will be to ensure the child has access to her brother, not to provide care for her brother. (3) Transfer of the proceeding means if the matter proceeds to trial, Kunu would not have any evidence to speak to protection finding as NCFS has been the agency to service the family since the child has been in care. This is incorrect. Kunu has the most up to date information regarding the protection concerns posed by S.M.-W. The Kunu worker Ms. Trout herself deposed, as set out above, that concerns about S.M.-W. cover the period of the last four years. While NCFS has evidence regarding historical concerns of the child’s biological parents from 8 years ago, the preponderance of the most recent evidence to support a protection finding is with respect to S.M.-W and thus lies with Kunu. (4) Transfer of the proceeding means Kunu would have to begin “reintegration” of the child into the biological father B.C.’s care. I am quoting directly from Ms. Trout’s affidavit at paragraph 26. This is incorrect. There is no question of “re” integration. The child has never been in the care of her biological father. She was removed from her mother at birth from the hospital. Kunu would have an obligation to assess the biological father as a caregiver, except for one thing: B.C. is not presenting a plan to care for the child. Even if he were to do so in the future, the fact that one plan may have to be assessed outside of Kunu’s jurisdiction does not change the fact that the preponderance of the evidence about the child is in Kunu’s jurisdiction. (5) NCFS agreed to repatriate the child to Toronto in the event of a placement breakdown pursuant to paragraph 12 of the Inteagency Service Agreement between NCFS and Kunu with respect to this child. Counsel for Kunu actually appeared to submit that NCFS should have moved the child to Toronto, presumably to a foster home, since there is no family member presenting a plan in Toronto. This is alarming – that Kunu could suggest that moving the child to Toronto, away from Wahgoshig First Nation where she has resided essentially her entire life, would in any way be in the child’s best interests. It also contradicts what Ms. Trout deposes in paragraph 27 of her affidavit, that Kunu “does not necessarily disagree with the child’s current placement [with C.M.] and is more than willing to continue to assist in supervising the child in her current placement without the need of transferring the matter to our jurisdiction.” Counsel for Kunu relies on their being a “contract” between the two agencies that the jurisdiction is Toronto. However, the question of jurisdiction is not something that can be determined by agreement between parties.

[28] Turning now to the preliminary and more difficult question, did NCFS have the authority to initiate the protection application? And I say difficult not because the answer is difficult to ascertain, but rather because the answer puts the court in a difficult situation.

[29] NCFS acknowledges that its territorial jurisdiction covers child protection matters in Toronto, not in Wahgoshig First Nation. NCFS made this clear in the first appearance before Justice O’Connell which is clearly why the adjournment was for a “motion for jurisdiction” as opposed to simply a transfer motion.

[30] Justice Blishen described what “territorial jurisdiction” consists of in CAS of Ottawa v. H.C., 2003 ON SC 41092, [2003] OJ No 5293:

Children’s aid societies have the mandate and obligation to investigate allegations that children within their territorial jurisdictions may be in need of protection and to take action to protect those children, including apprehending children or bringing cases before the court where necessary, regardless of the “ordinary residence” of the children (emphasis added).

[31] But while NCFS did not have the authority to initiate the within protection application, I find that a protection application was required for the following reasons:

(1) There is no Customary Care Agreement currently in effect; (2) NCFS and/or Kunu have protection concerns about the parents of this child: the biological father B.C. and the former customary care provider S.M.-W.; (3) The child is presently in the care of C.M. who is not a parent. The father consented to this placement only on a without prejudice basis. Thus, a new Customary Care Agreement is not possible at this time.

[32] Kunu had the authority and the obligation to initiate a protection application once the Customary Care Agreement was terminated and failed to do so.

[33] It may be that the proper procedural path is for the protection application to be dismissed on the grounds that NCFS lacked the territorial jurisdiction to bring it; and then for Kunu to initiate a protection application in Timmins. However, NCFS tried that route and Kunu refused to initiate the application and the possibility of Wahgoshig First Nation initiating the application did not appear to be considered. Thus, taking this path would leave the child in an unprotected legal limbo and would be contrary to her best interests.

[34] Another possible path can be found in Rule 5(2) of the Family Law Rules which provides that if there is “immediate danger to a child’s or party’s health or safety,” a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to the municipality provided for under s. 91(2) of the CYFSA. However, I cannot find on these facts that the child is in “immediate danger.”

[35] In the end, I rely on Rule 2 of the Family Law Rules, and find that I may order the transfer based on the following:

(1) It would be fair to all the parties. They all have notice of the protection application and they would all then be able to put their positions before the court that has the jurisdiction to make the orders sought. I also note that Kunu is not taking the position that there should not be a protection application, but only that it should be heard in Toronto not Timmins. (2) It would save time and expense as the next court date could be obtained in a timely manner as opposed to the parties having to start from scratch with respect to the drafting, serving and filing of all the documents. (3) It would be in the best interests of the child as it would ensure the matter would be heard without a gap where the child is in the care of C.M. with no legal basis and no required oversight by any agency.

[36] Transferring the proceeding to Timmins would have the result that this matter would be dealt with by the agency and the court which has the territorial jurisdiction to do so.

Part Four: Order

Pursuant to s. 91(3) of the Child, Youth and Family Services Act, order is to go transferring the within proceeding, status quo, to the Ontario Court of Justice at 38 Pine Street North, Timmins, Ontario P4N 6K6, to be heard on January 13, 2023 at 2 p.m. in courtroom 1 before Justice David Thomas

Released: December 20, 2022 Justice M.B. Pawagi