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: 2024 02 02 Court File No.: 112/20-01 Sault Ste. Marie

Between:

Nogdawindamin Family and Community Services, Applicant,

— AND —

A.B. M.O. J.K. S.R. First Nation, Respondents

Before: Justice Heather-Ann Mendes February 2, 2024

Endorsement

Counsel:

K. Barry............................................................................. counsel for the applicant society M. Carter............................................................................. counsel for the respondent A.B. K. Whitfield........................................................................ counsel for the respondent M.O. J.K., self-represented P. Nadjiwan..................................................................................................... S.R. First Nation

Endorsement

[1] The subject child in this matter is Z.O. born March XX, 20XX. The Respondent A.B. is the mother of the child, the Respondent J.K. is the biological father of the child. At the time of the child’s birth, A.B. and M.O. were in a relationship and M.O. stood in the place of a parent to the child.

[2] In July 2020, A.B. left the children, including the child Z.O in the care of M.O. On October 5, 2020 the children, including the child Z.O were removed from M.O.’s care.

[3] The child was returned to M.O.’s care on October 14, 2020, however as of September 27, 2021 the child was once again removed from M.O.’s care due to his lack of cooperation with the Children’s Aid Society of Algoma as well as M.O.’s outburst and aggressive behaviour towards a nurse practitioner at the Group Health Centre when discussing the child Z.O. not meeting his milestones.

[4] The issue of paternity for the child Z.O. was initially raised in October 2020 and paternity test results received in February 2021 confirmed that M.O. was not the biological parent of the child Z.O. In June 2021 it was confirmed that J.K. was the biological father of the child Z.O., however it was not until January 2022 that J.K. and subsequently S.R. First Nation were added as parties to the proceeding.

[5] The Court questions how J.K. was not added as a party when he was determined to be the father in June 2021, however a different protection agency had carriage of the matter at that time.

[6] In July 2023 the child Z.O. was placed on an extended visit with J.K. and a motion was brought returnable on August 23, 2023 for placement of the child in his care. On that day, this judicial officer made in interim and without prejudice order placing the child in the care of J.K. given that the child had been in the care of the Agency for almost 2 years.

[7] The Agency, the First Nation, A.B. and J.K. all agree that the without prejudice term of the order dated August 23, 2023 be removed given that there are no protection concerns with J.K.; the child has resided with him for almost 7 months and is doing well in his care and most importantly, the child who is a First Nation child, is placed with his parent and that the Federal legislation, An Act respecting First Nations, Inuit and Metis children, youth and families, sets out that the priority of placement is with one of the child’s parents.

[8] M.O. is of the position that he is the child’s parent as he has stood in the place of a parent to the child since birth, he has acknowledged the child as his child, he has had his other child returned to his care and he wishes to have the family reunited, he has a partner who is First Nation and is committed to the cultural identity of the child.

[9] The purpose of a temporary care and custody hearing is to determine where a child shall reside pending the protection application being heard at a trial or resolving on consent of the parties. The court is obligated to assess and order the least intrusive method in order to facilitate and meet the paramount purpose of the CYFSA, that being to promote the best interests, protection and well-being of children.

[10] Parliament enacted “An Act respecting First Nations, Inuit and Metis Children, youth and families” in 2019 to recognize the legacy of residential schools and the harm, including intergenerational trauma caused to Indigenous peoples by colonial policies and practices. As well as to recognize 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.

[11] The Federal Act applies at every stage of a child protection proceeding, including this temporary care and custody hearing. The Federal Act is in place to ensure that the Court and agencies follow minimum standards with respect to providing services to or making decisions about Indigenous children and to supplement the provisions of the CYFSA.

[12] It is for this very reason that this file was transferred from the Children’s Aid Society of Algoma to Nogdawindamin Family & Community Services in May 2023.

[13] The Federal Act, in all practicality, alters the method of analysis in assessing risk and determining placement under the CYFSA. The analysis of who had “charge” of the child prior to placement is a secondary consideration as the Federal Act makes it clear that the priority of placement the court must consider in section 16 of the Federal Act.

[14] The priority of placement makes it clear that the first priority goes to the parent of a child. In this case, I interpret the legislation to mean a biological parent, that being A.B. and J.K.

[15] In my view, the child Z.O.’s best interests are met by being placed with his parent, J.K. given that there are no protection concerns with this placement, J.K. through no fault of his own, was not made aware of being the parent of Z.O. until the paternity test was completed in June 2021 and bafflingly to the Court, he was not added as a party until January 2022, some 7 months later.

[16] J.K. is able to provide the child a direct connection to his culture and identity. J.K. has cooperated with the Agency and worked towards having Z.O. placed in his care and removed from the Agency’s care where he was for almost 2 years. This certainly also meets the purpose of the Federal Act of eliminating the over-representation of Indigenous children in the child and family welfare system.

[17] This decision is not by any means to slight the child Z.O.’s relationship with M.O. or Z.O.’s relationship with his siblings. The definition of family, especially with blended families is very expansive and the access terms for M.O. and Z.O. shall remain in place as per the order of August 23, 2023.

[18] Presently access is suspended due to an issue that needs to be investigated by the Agency. This is to be done forthwith so that access may resume if possible as per the existing terms. I take no issue with M.O. having a support person present during his meetings with the Agency workers.

[19] As such, an order shall issue removing the without prejudice term of my order dated August 23, 2023.

[20] A Settlement Conference date is scheduled for May 2, 2024 at 9:30 a.m. before Kwolek J. via Zoom [details removed]. A Trial Management Conference date is scheduled for April 22, 2024 10:30 a.m. before Mendes J. Via Zoom [details removed].

Released: February 2, 2024 Signed: Justice Heather-Ann Mendes