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: 2022 02 25 COURT FILE No.: Toronto CFO-17-00015499-0001
BETWEEN:
NATIVE CHILD AND FAMILY SERVICES OF TORONTO Applicant
— AND —
A.B., L.P., V.S. and B.B. Respondents
Before: Justice Maria N. Sirivar
Heard on: January 28, 2022 Reasons for Judgment released on: February 25, 2022
Counsel: Rebecca Kingdon ................................................................ counsel for the applicant society Sharon Worthman ................................................................ counsel for the respondent, A.B. Lisa Laborde ......................................................................... counsel for the respondent, L.P. No one appearing for the respondents V.S. and B.B. Sarah Clarke counsel for the Office of the Children’s Lawyer, legal representative for the child Al. B.
SIRIVAR J.:
INTRODUCTION
[1] Native Child and Family Services of Toronto (the “Society”) has brought a motion pursuant to sections 94(2) and (8) of the Child Youth and Family Services Act (the “Provincial Act”) seeking:
a. that the children Au. B. (born … 2015) and Aa. B. (born … 2018) be placed in the temporary care and custody of the Society;
b. that the child M.P. (born … 2016) be placed in the temporary care and custody of his father, L.P., subject to the supervision of the Society, with terms and conditions; and
c. that access to any parent and sibling be as arranged with the Society, supervised by the Society, including the discretion to have access take place by way of video/telephone/electronic means for so long as Covid-19 restrictions are in place as advised by all levels of government and public health authorities, a minimum of twice per week.
[2] The mother opposes the motion and seeks to have all children returned to her care subject to the supervision of the Society with terms and conditions. In the alternative, the mother seeks to have gradually increasing access in the community and eventually in her home until the children are returned to her care.
[3] L.M. takes no position with respect to Au. B. and Aa. B. but supports access between the siblings. He supports the Society’s position with respect to his son M.P. being placed in his temporary care and custody with terms and conditions.
BACKGROUND
Voluntary Services Agreement
[4] On or about January 31, 2020, the mother signed a Voluntary Services Agreement to address parenting, home safety and mental health concerns. On or about April 21, 2020, the maternal grandfather reported to the Society that he had serious concerns for the safety of his grandchildren, because of the condition of the home. He described the home as “disgusting”. He reported the following:
- the mother was smoking marijuana with Al. B. who was pregnant;
- the home smelled of urine and was dirty;
- the children were not appropriately dressed as they did not have clean clothes;
- laundry was overflowing and smelled of urine;
- Al. B.’s boyfriend, who was staying with the family, was drinking and smoking;
- Al. B.’s boyfriend was exposing the family to Covid-19 because he was not following Covid-19 rules;
- M.P. was urinating and defecating on the floor and furniture and the mother was not cleaning it up; and
- M.P. was out of control, being violent with his siblings, and the mother was not intervening.
[5] The Society attended the home to investigate but the mother refused to meet the worker at the home. Police assistance was obtained to conduct a wellness check. Al. B. and her boyfriend were found in the home, having barricaded the door with a dresser.
[6] Upon entering the home, the worker found the conditions to be “deplorable”. The children were removed from the mother’s care and brought to a place of safety. When Al. B. was being driven to the foster home, however, she jumped out of the vehicle when it had stopped and ran.
Consent Temporary Supervision Order
[7] The Protection Application, issued April 29, 2020, related to the following children: Al. B. (born … 2004); Au. B. (born … 2015); M. P. (born … 2016); and Aa. B. (born … 2018). All children were identified as being first nations, Inuk or Metis and the Band, First Nation or Metis community as being Serpent River First Nation.
[8] The Society seeks a finding that the children are in need of protection because: a. They have suffered physical harm, inflicted by the person having charge of them or caused by that person’s: i. failure to care for, provide for, supervise or protect the children adequately, pursuant to subclause 74(2)(a)(i) of the Provincial Act; and ii. pattern of neglect in caring for, providing for, supervising or protecting the children pursuant to subclause 74(2)(a)(ii) of the Provincial Act. b. There is a risk that the children are likely to suffer physical harm inflicted by the person having charge of the children or caused by that person’s: i. failure to care for, provide for, supervise or protect the children adequately, pursuant to subclause 74(2)(b)(i) of the Provincial Act; and ii. pattern of neglect in caring for, providing for, supervising or protecting the children pursuant to subclause 74(2)(b)(ii) of the Provincial Act. c. The children have suffered emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behavior or delayed development and there are reasonable grounds to believe that the emotional harm suffered by the children results from the actions, failure to act or pattern of neglect on the part of the children’s parent or the person having charge of the children, pursuant to subclause 74(2)(f) of the Provincial Act. d. There is a risk that the children are likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the children’s parent or the person having charge of the children, pursuant to subclause 74(2)(h) of the Provincial Act.
[9] The Society sought to have the child Al. B. placed in the care of the mother, subject to the supervision of the Society, for a period of six months, with terms and conditions. The Society also sought to have the children Au. B., Aa. B. and M. P. placed in the interim care of the Society for a period of three months and then returned to the mother under the supervision of the Society, subject to terms and conditions for a period of six months. Access was to be at the Society’s discretion as to form, frequency, location, duration and level of supervision.
[10] The Society summarized the protection concerns necessitating the Application in the following terms: Native Child has identified child protection concerns with respect to the physical state of the home, Ms. [B.’s] mental health as she suffers from anxiety and depression and is not taking her anti depressant medication in the prescribed manner (missing doses and taking extra at times), Ms. [B’s] using marijuana throughout the day on a daily basis, conflict and violence within the home, Ms. [B’s] lack of cooperation with her Child and Family Wellbeing Worker and police, and Ms. [B’s] parenting skills and lack of supervision.
[11] According to the Society, there were violent altercations in the home between the mother and Al. B. and between the maternal grandfather and Al. B.’s boyfriend. The Society made the following allegations:
- the mother was drinking and leaving Al. B. to care for the younger children;
- the home was always messy, and Al. B. was the only one cleaning;
- Al. B. was running away and missing school;
- M.P. was not attending daycare;
- the mother was unreachable at times and her voicemail was full;
- the mother missed an appointment for M.P. to be seen by a speech and language therapist, after waiting eight months;
- the Society received reports regarding injuries sustained by M.P.;
- the Ninoshe reported serious concerns about the condition of the home; and
- the Ninoshe reported that the mother was struggling with addiction.
[12] The mother did not deny the Society’s description of the days preceding the children being taken to a place of safety. She explained that she was afraid, she knew her father was going to make the “vindictive report” and that she had fallen behind with the housework because the children were not in daycare and she was distracted.
[13] The mother describes having contacted supports and attached letters to her affidavit confirming the steps she took to address the protection concerns. Specifically, the mother:
- contacted a parenting support worker for “help during this stage when all the children are home on a full-time basis”;
- contacted her family physician and noted that she restarted her anti-depressant medication in April; and
- completed an intake with Anishinaabe Health for counselling and commenced sessions on May 6, 2020 “to deal with trauma and grief”.
[14] The mother had cleaned the home and attached pictures of the clean rooms. She had also purchased some new furniture. The mother affirmed that she was committed to working with the Society and the Ninoshe.
[15] The mother further deposed, “I recognize I messed up in terms of the state of my home, but I immediately rectified this.” She explained that she put together a schedule to follow when the children return to her care to avoid becoming overwhelmed. She concluded that it had been “a major wake up call”.
[16] The parties reached an agreement and the children were placed in the temporary care and custody of the mother, subject to the supervision of the Society, with conditions. The Society and the mother agreed to the following conditions:
- Ensure the physical home environment is safe and free from hazards;
- Make efforts to advise her doctor that she is consuming marijuana;
- Work with her doctor to review her medication;
- Provide a letter from her doctor outlining her medication (s), treatment recommendations and any further recommended supports;
- Follow her doctor’s recommendations with respect to her marijuana use in conjunction with her medications;
- Not be under the influence while in a caregiving role;
- Ensure all medications, marijuana and marijuana paraphernalia are securely locked and stored;
- Ensure the home is free of physical, verbal and emotional violence;
- Not allow anyone to attend or remain in the home while under the influence of drugs or alcohol;
- Not allow Al. B.’s boyfriend in the home;
- Attend for trauma counselling and follow through with recommendations to address the impact of her past trauma on her parenting;
- Continue to work with the Ninoshe Program around parental skills, specifically to ensure adequate supervision of the children, scheduling/routines, managing sibling negative interactions, consequences and nutrition;
- Sign consents as reasonably requested after having an opportunity to review the consents with legal counsel;
- Advise Native Child as soon as practicable of any changes to phone number, email, address and family constellation
- Allow the Child and Family Wellbeing worker access into the home on announced and unannounced visits and to meet with the children privately in the home and community.
[17] The mother continued to work with the Ninoshe. The Society organized and paid for extreme cleaning teams to deep clean and to provide regular cleaning. They also provided a letter of support to the housing authority for repairs to be completed. In July 2021, the mother was given a $150 food card.
July 2021 Motion to Remove the Children from the Mother’s Care
[18] Despite the consent order, conditions agreed to and steps taken by the Society and the mother, the problems persisted. As a result, the Society sought to have the children Au. B. and Aa. B. brought into care and M.P. placed in the temporary care and custody of his father. The Society argued that the mother demonstrated a pattern of addressing the protection concerns when there was a risk of the children being removed and then allowing the situation to deteriorate. Some of the Society concerns were:
- the children missing school;
- the condition of the home which included feces being smeared on the floor and walls;
- lack of routine and parenting skills;
- the mother’s improper management of her mental health;
- the mother’s use of marijuana and being under the influence; and
- poor decision making such as not addressing warrants for her arrest.
[19] The mother resisted the motion arguing that she had taken steps to remedy the concerns and was prepared to work with the Society. She explained:
- she had challenges with securing the equipment the children needed for virtual school;
- she had cleaned up the home but there were difficulties with scheduling the cleaning company and extermination of roaches and bedbugs;
- it was difficult to manage all the children at home all the time;
- she continued to take her medication and see her counsellor virtually; and
- she had never been under the influence while in a caregiving role.
[20] L.P. supported the Society’s position regarding placing M.P. in his care. He was concerned about the mother not complying with the access order despite him being available to provide respite for the mother. The OCL, on behalf of Al. B., took the position that her siblings should be not separated and should not be in the Society’s care.
[21] The Court dismissed motion, finding that the Society had not established that the problems experienced in the home were the result of the mother’s parenting. It appeared that some of the children may have been experiencing challenges that caused them to behave in appropriately.
[22] The Society had expressed, months earlier, an intention to have an assessment completed in order to identify the specific needs of each child and the mother in order to support the family appropriately. The mother’s parenting was to be assessed after the problems had been properly identified and appropriate support had been put in place.
MOTION CURRENTLY BEFORE THE COURT
[23] The Society seeks to have Au. B. and Aa. B. placed in its temporary care and custody and M.P. placed in the temporary care and custody of his father, L.P. The Society also seeks an order for access between the siblings and with the mother.
[24] The Society worker deposed that a referral was received from a doctor at the Hospital for Sick Children. The doctor was concern that the children were being neglected because of how dirty they and their clothing were. The doctor also reported that the mother appeared exhausted and somewhat overwhelmed.
[25] On the same day, the mother reported to the Society that she had taken Aa. B. to the hospital because her eye was swollen shut. She believed that Aa. B’s eye condition was caused by an infection or bed bugs. Aa. B. was treated for an eye infection and was prescribed antibiotics. The mother also reported that Aa. B. and M.P. had red marks all over their bodies.
Aa. B. and Au. B.
[26] After receiving the referral from the doctor and speaking with the mother, the worker attended the home to investigate. She saw the mother and children walking to the home to meet her. The worker observed three-year-old Aa. B. trailing behind with her head down, holding her arm. She noted that Aa. B.’s arm was swollen. The worked also observed that the children had red marks all over them.
[27] The mother explained that Aa. B. had fallen at the park. She assessed the situation, and her arm was not swollen. She intended to ice Aa. B.’s arm when they got home.
[28] Upon entering the home, the worker noted that it was in poor condition. Au. B. disclosed that there is never any food at home because her mother does not have money. She further disclosed that her mother has stolen from Walmart and it scares her.
[29] The Ninoshe reported that she had observed the home to be very dirty. The children’s feet were dirty and black. When she had assisted with brushing Au. B.’s hair, it was “like a rat’s nest” with food bits in it. Au. B.’s hair had not been combed for two weeks.
[30] The worker took Aa. B. to the hospital where it was discovered that her arm was broken. Aa. B. required surgery. It was later discovered that Aa. B. also had lice.
M.P.
[31] L.P. deposes the following regarding M.P.’s presentation when he was removed from the mother’s care:
- he was wearing his sister’s uniform pants that were too big;
- his shoes were wet and smelled of urine;
- he had red marks on his neck;
- he had raised, red, swollen marks all over his body;
- he ate three helpings of the meal provided and requested more food soon thereafter; and
- his top front teeth were grounded down almost to the gums.
[9] The Society also noted concerns regarding the mother’s ability to manage M.P.’s behaviour. In August 2021, for instance, the worker observed M.P. throwing a long pipe from the bed at Au. B. and the mother did not discipline him. Similarly, the mother reported that M.P. throws shoes and brooms off the balcony. As worker was leaving, M.P. shouted “Fuck Off!”. The mother did not discipline him.
[32] The worker conducted an unannounced visit in or about July 2021 and noted the following:
- the mother disclosed that she suffered from Attention Deficit Disorder and a Learning Disability and marijuana helps her cope;
- the mother was advised to access “more counselling”;
- the condition of the home was unacceptable as there were dirty clothes on floor, toys on top, sticky brown liquid that spilled, dirt on the floor, and two boxes of tools in the hall;
- there was a bedbug and cockroach infestation in the home;
- there was only one mattress and the three children slept on the couch with the mother;
- the mother stated, in response to the deterioration of the condition of the home, that she is a single mom with “issue and she isn’t getting the help she needs”; and
- The mother identified her needs as follows: i. to have a schedule organizing her day created for her; ii. to have her home cleaned for her.
[33] The mother deposes that she submitted two work orders including replacing loose, damaged wooden floor tiles. She notes that the home requires further fumigation for the ongoing infestation. The mother states that she has requested assistance from the Society, on numerous occasions, to secure a new cleaning service because she does not have the financial means to do so.
[34] In late August 2021, the Ninoshe offered to help the mother clean her home, but she declined. The mother indicated that she did not want to work with the Ninoshe but feared it would be used against her in court. The Ninoshe terminated the service because the mother was not following through with goals or support. Cleaners were sent to the home, but they did not stay because they felt unsafe.
The Mother’s Concerns
[35] The mother has expressed the following concerns about all three children since they were removed from her care:
- the children are separated;
- Au. B. and Aa. B were moved to a new foster home out of the City of Toronto in December;
- L.P. is interfering with her telephone access with M.P.;
- M.P. is being abused and bullied by his sibling in L.P.’s home. She points to a mark she observed under his eye. She called the police to attend L.P.’s home on two occasions.
M.P.
[36] L.P. denies the mother’s allegations. The Society’s evidence is that the mother’s allegations of abuse and bullying were not verified. The injuries M.P. sustained were the result of an accident after his eight-year-old sister threw a toy that accidentally hit him.
[37] L.P. deposes that M.P. is doing well in his care. He has made gains in school, he has received dental care, and he has settled into a routine. L.P. is working with the pediatrician to address social-emotional-behavioural issue and has arranged for M.P. to participate in play therapy.
[38] M.P.’s behaviour has improved such that he has only had two “melt downs” in his father’s care and none since September 21, 2021. His use of profanities has also improved. Moreover, there has been no fecal smearing or “toileting” issues since M.P. has been in L.P.’s care.
[39] M.P.’s routine involves waking at 7:30 a.m. and going to bed at 9:00 p.m. His bedtime routine includes brushing his teeth, which he previously refused to do. His appetite has normalized, the pace at which he eats has slowed and he is learning to use utensils.
[40] While M.P. still faces challenges, he has made gains at school. When first in his father’s care, M.P. had difficulty managing a full day. He has the following school supports:
- Psychologist;
- Speech Language Pathologist;
- Social Worker;
- Education Consultant;
- Urban Indigenous Education Centre Social Worker; and
- an Individual Education Plan (“IEP”) has been created.
[41] According to M.P.’s teacher, this is the first year he has spent a significant amount of time in school. M.P. communicates basic needs through simple sentences and pantomime. He has had limited success with conversation skills. She notes that he displays toddler-like behaviour such as tantrums, repetitive questioning, a very short attention span, as well as difficulty sharing and waiting his turn.
[42] Although he is usually congenial, when he is excited, he plays in rough manner and if frustrated he may lash out randomly like throwing his mask, swearing, tipping furniture, and throwing toys.
[43] With respect to M.P.’s health, speech and hearing tests have been scheduled through the family doctor. He is speaking more, and his speech is increasingly intelligible. M.P. was prescribed trial Attention Deficit Hyperactive Disorder medication and his rash has resolved.
The Mother’s Access
[44] The mother’s access with the children is scheduled to occur twice per week, supervised at the Society office. The Society alleges that the mother has not attended access with the children consistently and on time. Additionally, during access, the Society alleges that the mother has difficulty refraining from adult conversations, following through on consequences, setting boundaries and ensuring supervision while in the access visit.
[45] The Society is particularly concerned about the mother’s inability to confirm access by 9:05 a.m., as it may suggest that she may not be able to manage getting the children ready and to school on time.
[46] In response, the mother deposed: It is difficult to exercise access before 9 am as I have obligations to fulfill in order to have exemplary access time with my children but my access as noted above has been consistent for 6 weeks.
[47] The mother alleges that the Society has not been working with her. She was asked to confirm access and when she voiced how difficult it was, no accommodation was made for her.
[48] L.P. denies interfering with the mother’s telephone access with M.P. He explains that he is unable to facilitate evening calls when he is required to work. He shares his work schedule with the mother and the Society. He does not answer the mother’s calls outside the designated times.
The Mother’s Efforts to Address the Protection Concerns
[49] Since the children were removed from her care, the mother has taken steps to address the protection concerns.
[50] First, with respect to the condition of the home, the mother has refurbished her apartment including the installation of new laminate flooring. She has also planned a renovation of the kitchen and bathroom. The unit has been fumigated for bedbugs and other pests. She has also purchased new beds.
[51] Second, the mother deposes that she continues to access counselling through Anishinaabe Health. She has attended six sessions in the one-year period between October 14, 2020 and December 14, 2021.
[52] The mother further deposes that she asked for referrals from the Society but none were given. She also asked the Society for a new Ninoshe because of communication difficulties and lack of traditional teaching.
LAW AND LEGAL PRINCIPLES
Temporary Care and Custody
[53] The applicable legal test on this motion is set out in subsections 94 (2), (4) and (5) of the Provincial Act. The relevant sections read, in part, as follows:
94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing: (a) that the child, 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) . [Emphasis added]
[54] The onus is on the Society to establish, on credible and trustworthy evidence, that: a. there are reasonable grounds to believe that there is a real possibility that if the children are returned to the mother, it is more probable than not that they will suffer harm; and b. the children cannot be adequately protected by terms and conditions of an interim supervision order. [1]
[55] A court must choose the order that is the least intrusive placement, consistent with adequate protection of the child. [2] The degree of intrusiveness of the intervention sought should be proportional to the degree of risk to which the children are exposed. [3] Section 94 of the Provincial Act must be read in conjunction with its Preamble and Purpose.
Temporary Access
[56] Subsection 94 (8) of the Provincial Act provides that where an order is made under clause (c) or (d) of subsection 94 (2), a court may order access on any terms that it considers appropriate.
[57] In determining what order is appropriate, a court should consider the paramount purpose of the Provincial Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children. In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the Provincial Act. [4]
Duties of the Society
[58] Pursuant to section 35 of the Provincial Act, children’s aid societies are tasked with a number of functions, including the investigation of allegations that children may be in need of protection, and the protection of children. Part of their mandate is to provide guidance, counselling and other services to families for protecting children or to prevent circumstances requiring the protection of children.
[59] A parent may not frustrate the children’s aid society's efforts to assist and then claim that the agency did not fulfill its statutory duty to provide guidance, counseling or other services. The parent is expected to take advantage of opportunities for services provided by the agency and to make independent efforts to obtain services. [5]
First Nations and Indigenous Children
[60] Subsection 37(4) of the Provincial Act requires the court to "take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child's cultural identity" when determining the best interests of an "Indian or native" child.
[61] Subsection 57(5) provides that, "unless there is a substantial reason for placing the child elsewhere", Indigenous children shall be placed with a member of the child's extended family, a member of the child's "band or native community", or "another Indian or native family."
[62] Act Respecting First Nations, Inuit and Metis children, youth and families (the “Federal Act”), supplements the Provincial Act and establishes minimum standards to be observed by child protection agencies providing services to Indigenous children and to courts making decisions about Indigenous children.
[63] Specifically, s. 9(2) addresses the issue of cultural continuity, s. 10 describes the best interest test for Indigenous children, and s. 16 speaks to priority placement. Both Acts, however, make it clear that the paramount consideration is what is in the best interests of the children. [6]
Overrepresentation of Indigenous Children in Foster Care
[64] Courts have taken judicial notice of the over representation of Indigenous children in the child welfare system and its history including systemic discrimination and the intergenerational impact of residential schools. [7] The Truth and Reconciliation Commission of Canada and the National Inquiry into Missing and Murdered Indigenous Women and Girls make clear that Indigenous children represent over fifty percent of children in foster care while representing less than ten percent of the population of children in Canada. [8]
[65] Justice Wolfe, in Kina Gbezhgomi Child and Family Services v. M.A., 2020 ONCJ 414 , articulated some of the practical implications of this crisis for courts making decisions about Indigenous children in the following terms: It is trite to say that as a result of a history that requires such remedial legislation, Indigenous families sometimes find it difficult to work with child welfare agencies. This is true even when they are partnered with First Nations to provide culturally appropriate approaches to services. It is a strange dynamic to have to put your faith in the people who have taken your children, but even stranger when working with Indigenous families given this history of systematic discrimination . This is the context a court must consider when it is asked to use perceived non-cooperation with a society as a justification to keep Indigenous children on orders that don’t allow them to live with their parents. [9] [Emphasis added]
POSITIONS OF THE PARTIES
The Society’s Position
[66] The Society takes the position that the evidence establishes a pattern of ongoing chronic neglect that puts the children at risk of harm which cannot be mitigated by a supervision order.
[67] The Society argues that the pattern consists of five areas that, taken together, have a significant impact on the children. These include: a. poor decision making: being subject to warrants for her arrest and shoplifting at Walmart with the children; b. the state of the home: although it is has greatly improved recently there is a pattern of improving and then deteriorating to a deplorable state; c. neglect of the children’s physical hygiene such dirty clothing, matted hair, smelling of urine, lice and not brushing teeth; and d. lack of supervision and responsiveness: being unable to supervise, create a routine and manage M.P.’s challenging behaviour.
[68] The Society takes the position that the mother’s access should be supervised until she no longer requires support and direction regarding: a. providing adequate supervision during the visits to maintain the safety of the children to reduce the destruction of property; b. setting limits; c. enforcing consequences; d. not engaging in adult conversations in front of the children; and e. attending prior to her visit so that the children can see her upon arrival and are not waiting for her.
[69] The Society concludes that the orders sought are in the children’s best interest and will allow the parties to work together to identify, through an assessment, and address the underlying problems that are impacting the mother’s ability to meet the needs of the children.
L.P.’s Position
[70] L.P. supports the Society’s request to have his son M.P. placed in his temporary care. He takes no position with respect to Au. B. and Aa. B. but support regular access between the siblings. He argues that the evidence paints a general picture of deterioration including poor conditions in the home, lack of food, the children not attending school, and neglect.
[71] L.P. acknowledges that there are unanswered questions regarding the root causes of the challenges in the mother’s home. He submits, however, that the mother only identifies external remedies and takes little responsibility.
[72] He argues that the conditions of supervision have not been effective. Specifically, that M.P. cannot be protected in the mother’s home while the underlying cause is ascertained, and creative solutions are identified. He submits that M.P. has distinct health, behavioral, educational needs that the mother has not been able to address.
The Mother’s Position
[73] The mother’s position is that all three children should be returned to her care. She submits that the children were removed because of Aa. B.’s eye infections. She argues that she acted appropriately because she brought Aa. B. to the hospital when the swelling did not improve.
[74] The mother submits that she has been addressing the concerns since May 2020. She argues that her parenting skills are not in question. In support of this submission, she points to evidence from third parties from the September of 2020.
[75] She submits that she is addressing “the need for counselling and lack of insight”. As evidence of having insight, she points to the fact that she asked for a new Ninoshe. The previous Ninoshe used what the mother described as colonial approaches to discipline.
[76] The mother acknowledges needing help in the form of “an extra set of hands” and someone she can communicate with. She concedes that she is sometimes tired and overwhelmed as she has many obligations, parenting three children in a small apartment in a pandemic.
[77] The mother further submits that there is no rational for supervised access. She believes that the Society is moving the goal posts and that she is being “set up to fail”. The mother concludes that any risks can be addressed as she is “willing to do whatever it takes”.
The OCL’s Position
[78] The OCL, representing the oldest child who is not subject of this motion, made submissions regarding the relevant legislations and her client’s position. She supports the mother’s position. She is concerned that her younger siblings are separated and that two of them are in non-indigenous homes. Moreover, she urges the Court to consider the over representation of Indigenous children in foster care.
ANALYSIS AND CONCLUSION
There is a risk that the children are likely to suffer harm if returned to the mother.
[79] The mother did not deny the following material facts alleged: a. the condition of the home was deplorable with feces on the floor and walls, a bedbug and cockroach infestation, dirty floors, and dirty laundry; b. the children exhibited various signs of neglect including dirty clothes, matted hair, smelling of urine, rashes all over their bodies, inconsistent school attendance, dental issues, and inappropriate behaviour; c. the mother was not managing her mental health adequately including not taking medication as prescribed and not consistently engaging services; d. the mother was not working with the Society consistently; and e. the mother made poor decisions such shoplifting with the children and not attending to warrants for her arrest.
[80] The mother’s response to the allegations can be summarized as providing explanations and describing the remedial steps she has taken. She has acknowledged the Society’s concerns in the past such as when she entered a Voluntary Services Agreement and when she consented to a temporary supervision order.
[81] Based on the affidavit evidence of the Society workers, L.P. and the mother, I find that there are reasonable grounds to believe that there is a real possibility that if Au. B., Aa. B., and M.P. are returned to the mother’s care, it is more probable than not that they will suffer harm.
The children cannot be adequately protected by an order.
[82] A consideration of the over representation of Indigenous children in foster care is vital to a proper assessment of the best interests of Indigenous children. Failure to acknowledge this reality and the underlying dynamic risks exacerbating pre-existing inequities and their consequences.
[83] The history of oppression and the continued discrimination that Indigenous peoples face has led to social and economic disadvantages, including poverty, poor and unsafe housing, substance use and mental health challenges.
[84] The impact of theses inequities is clear in this case. The challenge is delineating which aspects of the protection concerns identified are attributable to the cumulative impact of factors outside the mother’s sphere of control and those that she ought to be able to manage, with support if necessary.
[85] Factors outside the mother’s sphere of control include poverty, poor and unsafe housing and possible developmental challenges of one or more children. Factors that she ought to be able to influence (with support if need) include managing her mental health, establishing routine and structure for the children, attending to the children’s hygiene and keeping the home reasonably tidy.
[86] It is also important to understand if and how her mental health challenges, for which she is taking anti depressants and engaging in counselling for trauma and grief, are impacting her ability to parent.
[87] The mother and the Society previously agreed to conditions, but they were not effective. Rather, the situation deteriorated and culminated in the children being brought to a place of safety for a second time.
[88] The mother and the Society did not work well together. I find that while the Society provided some services, it did not effectively discharge its duty to supervise the mother’s parenting. For example, the mother agreed to provide consents to release information. Her progress could have been better monitored in order to adjust services and support. Moreover, the Society was aware, many months ago, of the complexity of the issues impacting the mother and the children. The assessment should have been completed and if there were challenges, the issue should have been brought to the Court’s attention.
[89] The mother asked for help. To address a basic need, she requested a Ninoshe with whom she could communicate effectively and who follows traditional teachings. She has demonstrated a motivation and willingness to remedy the issues identified by the Society. The issue has been her inability to maintain her progress.
[90] Given the complexity of the situation, the mother is not to be faulted for not being able to diagnosis the issues and then request the specific and appropriate services and supports she and the children require.
[91] There is a complex and multifaceted set of variables that are impacting the mother’s ability to parent. Given the history of this proceeding, in the absence of an understanding of the operative dynamics such as the specific needs of each child and the mother, including cultural needs, it is not possible to craft conditions that would adequately protect the children.
[92] Accordingly, I find that the children cannot be protected adequately by an order under subclauses 94(2)(a) or (b) of the Provincial Act.
[93] M.P. shall be placed in his father’s home with his other siblings. This is the least intrusive placement consistent with priority placement, in the circumstances. Au. B and Aa. B., however, are in foster care as no alternative placements were proposed to the Court.
The mother’s access should be meaningful.
[94] I accept the Society’s submission that the mother must address the concerns with lateness and appropriate conduct during visits. The other concerns, such as those related to evaluating her parenting skills and maintaining the home, are not remedied by requiring supervised access. It is difficult to manage three children in the Society’s office. This is an artificial environment that undoubtedly creates stress for the mother and the children.
[95] The bond between the mother and the children is undisputed. The objective is not to be punitive. Considering the primary and secondary purposes of the Provincial Act and Federal Acts, it is in the children’s best interest to foster their relationship with their mother by not unnecessarily restricting and encumbering their time together.
[96] The mother has a history of effectively parenting the children. Their removal from her care risks causing trauma to both the mother and the children. Au. B. and Aa. B., in particular, are in foster care in a non-Indigenous home. Access terms should not exacerbate these unfortunate consequences. Frequent and meaningful access is critical.
ORDERS
[100] For the reasons set out above, the Court orders: a. The Society’s motion is granted; b. The children, Au. B. born […] 2015 and Aa. B. born […] 2016 shall be placed in the temporary care and custody of the Society; c. The child M.P. born […] 2018 shall be placed in the temporary care and custody of L.P. subject to the supervision of the Society with the conditions set out in the Society’s notice of motion; d. Access between the siblings shall be as arranged with the Society and a minimum of twice per week; e. The mother’s access to the children shall take place a minimum of three times a week in the mother’s home (if the condition remains acceptable) or in the community, supervised, with the view of progressively increasing the frequency and duration and removing supervision, when appropriate.
Released: February 25, 2022 Signed: “Justice Maria N. Sirivar”
[1] Children's Aid Society of Ottawa-Carleton v. T., 2000 ONSC 21157, [2000] O.J. No. 2273 (Ont. Sup. Ct.) . [2] Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448. [3] CCAS of Toronto v. J.O.1, 2012 ONCJ 269. [4] JFCS v. H.B.S., 2012 ONCJ 5055 [5] Catholic Children's Aid Society v. L.M. and T.R., 2011 ONCJ 146; Catholic Children's Aid Society of Toronto v. C.T. and J.Y., 2012 ONCJ 372; Children's Aid Society of Toronto v. L.G., 2015 ONSC 3706, [2015] O.J. No. 3034. [6] Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251 [7] Kina Gbezhgomi Child and Family Services v. M.A., 2020 ONCJ 414 [Kina] [8] Canada, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol. 1a (Ottawa: N.I.M.M.I.W.G., 2019); Truth, Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of Canada, 2015) [9] Kina Supra at para 44