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: 2023 05 02 Court File No.: Sault Ste. Marie 112/20
Between:
CHILDREN’S AID SOCIETY OF ALGOMA Applicant,
— AND —
A.B., M.O., J.K., SERPENT RIVER FIRST NATION Respondents
Before: Justice Heather Mendes
Heard on: March 21, 2023 Reasons on Motion released on: May 02, 2023
Counsel: R. Lindenbach.............................................. counsel for the applicant society M. Carter ..................................................... counsel for the respondent A.B. A. Doxtdator................................................ counsel for the respondent J.K. M.O. ..................................................................................... on his own behalf J. Gassi Harnden................. counsel for the Office of the Children’s Lawyer, legal representative for the child A.O. P. Nadjiwan ………………………………. counsel for Serpent River First Nation K. Barry …….. counsel for Nogdawindamin Family and Community Services
Overview
MENDES J.:
[1] The motion at Volume 2 Tab 1 brought by the Children’s Aid Society of Algoma (hereinafter “the Society”) seeks to sever the case involving the child Z.O. (hereinafter “Z.O.”) born March XX, 2020 from court file 112/20 and transfer the matter involving Z.O. to Nogdawindamin Family and Community Services (hereinafter “Nogdawindamin”). The motion was argued on March 21, 2023.
[2] The mother of the child Z.O. is A.B. The father of the child Z.O. is J.K., Mr. K. is a registered member of Serpent River First Nation. M.O. is the step-father of the child Z.O. and the father of the child A.O. born September XX, 2016 (hereinafter “A.O.”).
[3] Ms. Barry for Nogdawindamin, Ms. Doxtdator for Mr. K and Mr. Nadjiwan for Serpent River First Nation consent to the motion for severance and transfer of the matter to Nogdawindamin regarding Z.O.
[4] Ms. Gassi Harnden, for the Office of the Children’s Lawyer (hereinafter “OCL”) who represents the half sibling of Z.O., A.B., born June XX, 2008 (hereinafter “A.B.”) took no position regarding the motion.
[5] Mr. Carter for Ms. B. took the position that if the severance for Z.O. was granted, that the sibling A.O. should also be severed and transferred to Nogdawindamin to keep the siblings together. If the court was not prepared to transfer both children to Nogdawindamin, then Ms. B. opposed the severance and transfer of Z.O.
[6] Mr. O., who is self-represented also opposed the transfer of the proceedings for Z.O. to Nogdawindamin.
[7] When the child protection application (which is still presently outstanding) was commenced in October 2020, Mr. K. was not identified as the father of Z.O. but rather Mr. O. was named.
[8] In February 2021 it was confirmed that Mr. O. was not the father of Z.O. and Mr. K. was identified as the potential father.
[9] Paternity testing was completed by Mr. K. and the results were received on June 17, 2021 confirming him to be the biological father of Z.O. Mr. K. was subsequently added as a party to the proceeding by way of order dated January 5, 2022.
[10] Mr. K. is a registered member of Serpent River First Nation. An updated section 90(2) identification order for Z.O. was made on August 9, 2022 identifying the child as First Nation and that the child is associated and affiliated with Serpent River First Nation.
[11] The same order of August 9, 2022 added Serpent River First Nation as a party to the proceeding.
[12] The Society brought a motion to sever the child Z.O. from the protection application and transfer the proceeding to Nogdawindamin on December 7, 2022. The motion was conferenced at the settlement conference held on December 9, 2022. Thereafter the motion was set for hearing on March 21, 2023.
[13] Nogdawindamin is the agency designated by the Minister to provide services to Serpent River First Nation. Nogdawindamin is prepared to accept the transfer of the file from the Society regarding Z.O.
[14] Ms. B. and Mr. O. would like for Z.O. and the child A.O. to remain together in the same foster home and be serviced by one agency. However, there is no guarantee that even if the severance and transfer was dismissed by the court that the children would remain together.
[15] Ms. B.’s position that both children be transferred to Nogdawindamin for service is not before the court by way of motion and Nogdawindamin has not been put on notice to consider such a request.
[16] The section 90(2) identification order dated January 8, 2021, regarding A.O. finds that she is not identified as First Nations, Inuit or Métis; the parents nor the child identify themselves as First Nations, Inuit or Métis nor is there any evidence of Band membership or First Nations status.
[17] The OCL is of the view that if Z.O. is severed from this proceeding that there be reciprocating sibling access for the children A.B.; A.O. and Z.O.
Legislation
[18] In looking at the purpose of the Child, Youth and Family Services Act (hereinafter “CYFSA”), section 1(2) paragraph 6, the Act states:
First Nations, Inuit and Métis people should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultural, heritages, traditions, connection to their communities and the concept of the extended family.
[19] Section 72 of the Act states:
A society, person or entity that provides services or exercises powers under this Act with respect to First Nations, Inuit or Métis children or young persons shall regularly consult with their bands and First Nations, Inuit or Métis communities about the provision of the services or the exercise of the powers and about matters affecting the children or young persons including,
(a) bringing children to a place of safety and the placement of children in residential care; (b) the provision of family support services; (c) the preparation of plans for the care of children; (d) status reviews under Part V (Child Protection); (e) temporary care agreements under Part V (Child Protection); (f) society agreements with 16 and 17 year olds under Part V (Child Protection); (g) adoption placements; (h) the establishment of emergency houses; and (i) any other matter that is prescribed.
[20] An Act respecting First Nations, Inuit and Métis children, youth and families S.C. 2019 c. 24 received Royal Assent on June 21, 2019 and clearly states:
…Parliament recognizes the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services;
[21] Section 8 of the Act further states:
Purpose
8 The purpose of this Act is to Affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;
Analysis
[22] First Nations Communities have advocated for Indigenous child welfare agencies so that the culture, heritage and traditions of the First Nation, Inuit and Métis children may be preserved and that these children have decisions made for them and in their best interests, protection and well-being with that cultural lens as contemplated in the purpose of the CYFSA under section 1 and in An Act respecting First Nations, Inuit and Métis children, youth and families.
[23] When I consider the reason why specific First Nation communities have designated Indigenous protection agencies and that the Minister has designated certain agencies to work with specific First Nation communities, it highlights to the court the uniqueness of the cultural heritage and traditions in each First Nation community.
[24] The Society has an obligation to provide services to First Nation children in a culturally appropriate manner. However, when a specific First Nation has a chosen Indigenous protection agency who is Ministerially designated to facilitate services for children of that specific First Nation, that is the child protection agency that should have carriage of the matter for that child.
[25] In this specific case, Nogdawindamin is the agency who is aware of the specific culture, heritage, traditions and concepts of extended family for the children and families affiliated with Serpent River First Nation and should have carriage of matters involving their affiliated children such as Z.O.
[26] While no formal motion was brought to have both Z.O. and A.O. severed from the application and transferred to Nogdawindamin, the section 90(2) identification order for A.O. confirms that she is not a First Nation, Inuit or Métis child, she does not identify as First Nation, Inuit or Métis and she is not affiliated with any Band.
[27] As such, the considerations regarding service under the CYFSA and federal legislation do not apply to A.O. and I decline Ms. B.’s request to have A.O. severed from the existing application and transferred to Nogdawindamin along with Z.O.
[28] Regarding the OCL’s position with respect to reciprocating sibling access for the three children, again, while no formal motion was brought in this regard, this is most certainly in line with the paramount purpose of the CYFSA and both agencies have an obligation to ensure that the children’s best interests are met, and this includes sibling access.
Conclusion
[29] Therefore, the motion for severance regarding the child Z.O. from the existing child protection application is granted and the file involving the child Z.O. is transferred to Nogdawindamin.
[30] An order shall issue as follows:
The child Z.O. born March XX, 2020 shall be severed from the Child Protection Application bearing Court File No. 112/20 and shall be continued as a separate Child Protection Application bearing Court File No. 112/20-01.
Court File No. 112/20-01 shall include the following Respondent parties: a. A.B. (mother); b. J.K. (father); c. Serpent River First Nation; and d. M.O. (step-father).
Court File No. 112/20-01 involving the child Z.O. born March XX, 2020 is transferred from the Children’s Aid Society of Algoma to Nogdawindamin Family and Community Services.
An Amended Child Protection Application for Court File No. 112/20-01 shall be prepared by the Children’s Aid Society of Algoma with the originating Child Protection Application dated October 2, 2020 removing as the Applicant, the Children’s Aid Society of Algoma and their counsel and substituting Nogdawindamin Family and Community Services and their counsel. As well as removing the Respondent J.M. and the children A.B. born June XX, 2008 and A.O. an born September XX, 2016.
The Respondents J.K. and Serpent River First Nation shall be removed from Court File No. 112/20. An Amended Child Protection Application shall be served and filed by the Children’s Aid Society of Algoma reflecting same in Court File No. 112/20.
The documents filed in Court File No. 112/20 that reference the child Z.O. born March XX, 2020 shall be refiled in Court File No. 112/20-01 by the Children’s Aid Society of Algoma.
The care of the child Z.O. born March XX, 2020 is transferred from the Children’s Aid Society of Algoma to Nogdawindamin Family and Community Services.
Released: May 02, 2023 Signed: Justice Heather Mendes Ontario Court of Justice