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 07 08 COURT FILE No.: Sault Ste. Marie 10/24

BETWEEN:

Nogdawindamin Family and Community Services Applicant,

— AND —

C.M. (Deceased), J.B., A.W., C.I.B, Batchewana First Nation Respondents

Before: Justice Heather-Ann Mendes

Heard on: June 3, 2024 Reasons for Judgment released on: July 8, 2024

Counsel: K. Barry......................................................... counsel for the applicant Agency L. Tegosh...................... counsel for the respondent Batchewana First Nation K. Whitfield............ counsel for M. R. & D. R. seeking to be added as parties. No appearance by or on behalf of J.B., A.W. or C.I.B., served with notice.

Mendes J.:

[1] The court heard a motion on June 3, 2023, brought by M.R. and D.R., former customary caregivers to the child, R.S.V.B. born May **, 2019, seeking to be added as parties to this proceeding. Batchewana First Nation, with whom the child is a registered member, brought a motion to have the motion by M.R and D.R. dismissed. Both motions were argued together.

Background

[2] C.M. is the biological mother of the child. She passed away on June 19, 2021. The biological father of the child is J.B. The father’s access with the child has been suspended since December 2022 as he did not attend access regularly. In April 2023, the Agency closed the father’s access file as he was not in contact with them.

[3] C.I.B. is the paternal cousin of the father and the caregiver for the child, along with his partner A.W. at the time this application was commenced in January 2024. J.B., C.I.B., A.W. and the child are all registered members of Batchewana First Nation.

[4] A Customary Care Agreement was entered into by the mother, the father, the Agency, the First Nation and M.R. on February 22, 2021. The Customary Care Agreement was to be in place until the child was 18 years of age.

[5] M.R. and her husband D.R. cared for the child pursuant to the Customary Care Agreement from February 2021 to November 2023. Since the child was placed in M.R.’s care, she has expressed a desire to adopt the child or obtain custody of the child and this was consistently raised by her with the Agency and the First Nation. Both the Agency and the First Nation were opposed to the adoption of the child or M.R. being granted custody of the child.

[6] The child was removed from the care of M.R. and the Customary Care Agreement terminated in November 2023 due to significant protection concerns regarding M.R.’s Customary Care home as well as the wellbeing and safety of the child while in the care of M.R. and D.R.

[7] The incidents of concern included repeated exposure of the child to high-risk individuals such as one person who was investigated for accessing and possessing child pornography but was not charged due to his cognitive delays and capacity, as well as permitting contact with another individual who is a convicted child sex offender. The child was privately interviewed by the Agency, and she confirmed that she had contact with these individuals on multiple occasions.

[8] In addition, M.R. and D.R. applied and were approved to act as sureties for an individual charged with aggravated assault, assault and mischief. M.R. and D.R. did not consult or advise the Agency or the First Nation of their intention to be sureties. The Agency was subsequently notified by the Crown Attorney’s office of this development. Neither the Agency nor the First Nation supported this individual residing in the home of M.R. and D.R. with the child present.

[9] Prior to the removal of the child from the care of M.R. and the Customary Care Agreement being terminated, these issues were raised with M.R. M.R. initially denied that she had exposed the child to these individuals but later in the meeting admitted that she did so and attempted to minimize the number of occasions and justify her actions, claiming that the child was never alone with these individuals. M.R. in her affidavit materials continues to deny the allegations and she states that the incidents were taken out of context, blown out of proportion or were not as significant as reported.

[10] The signed Customary Care Agreement also stated at section 5 paragraph d, that access for the parents to the child is “at the discretion of the Agency, in consultation with the First Nation, and is supervised with adequate and responsible supervision”. Despite M.R. being a signatory to the Customary Care Agreement, she permitted the father access with the child in her home on a regular basis for Sunday family dinners without the approval or consent of the Agency or First Nation.

[11] The child’s sibling, A.M. who was placed in the care of M.R. and D.R. by a different Agency after the mother’s passing in 2021, was removed from their care due to concerns regarding physical discipline as well as cruel and inappropriate treatment of the child by M.R. These concerns regarding M.R.’s treatment of the sibling were corroborated by her older children, resulting in the sibling being removed in July 2022. In her materials, again M. R. attempts to justify and defend her actions in relation to the sibling.

[12] In September 2022, the Agency determined that M.R.’s Customary Care home would be closed due to the issues with the child’s sibling. However, the decision was reconsidered by the Agency, and the child was permitted to remain in the care of M.R. as the concerns appeared to be directed solely towards the sibling and not the subject child.

[13] Over the course of 2022, M.R.’s relationship with the Agency and the First Nation appeared to deteriorate as both the Agency and the First Nation were not in agreement with a plan that she adopt the child or be granted custody of the child.

[14] Concerns were also noted by the Agency regarding the state of M.R.’s home, including the child’s bedroom, being cluttered, disorganized and smelling of animal urine. In addition, M.R. was not very cooperative with neither the Agency or the First Nation as she would be obstructive and not let the Agency meet with the child privately as she would interrupt the worker’s meetings with the child, and she would not engage with the First Nation band representative.

[15] As a result of the ongoing concerns and deterioration of the relationship with M.R. and D.R., the Agency closed M.R.’s Customary Care home on November 14, 2023 and removed the child from her care.

[16] The father, J.B. has not filed an Answer & Plan of Care and is noted in default. He has expressed to the Agency that he is not in a position to care for the child due to his substance misuse and transient life. Upon the child being removed from the care of M.R. the father signed an agreement with the Agency consenting to the child being placed in the care of his family member. M.R. claims that the father stated to her that he was coerced by the Agency to agree to this plan.

[17] The father has also signed a document, along with M.R. and D.R., which was notarized by a Notary Public, stating he wanted the child returned to the care of M.R. and D.R. This document was provided to the Agency through legal counsel for M.R. and D.R. The father subsequently claimed to the Agency that M.R. was the one who wrote the document and induced him to sign.

[18] At the time of the hearing of the motions, the placement of the child with the paternal family broke down due to unexpected health concerns of the paternal family member. An alternative placement was arranged for the child, however the child did not do well with the other children in the home and so further options for placement of the child are being explored by the Agency and First Nation.

Legislation & Case Law

[19] As outlined in the Ontario Court of Appeal decision, Children’s Aid Society of London-Middlesex v T.E., 2023 ONCA 149 at paragraph 28:

Party status in child protection proceedings can arise in one of two ways: (i) pursuant to r.7(5) of the Family Law Rules; or (ii) by way of provincial or federal statutes, which both define party status. The Family Law Rules provide a discretionary approach. The statutes are not discretionary: if a person is a “parent”, as defined by either statute, the court has no jurisdiction to find otherwise. Catholic Children’s Aid Society of Toronto v. D.L., 2014 ONCJ 587, 51 R.F.L. (7th) 251, at para. 21.

[20] Rule 7(5) of the Family Law Rules states:

The court may order that any person who should be a party shall be added as a party and may give directions for service on that person.

[21] The case of Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R. set out the four criteria for adding parties in child protection cases as follows:

(i) Whether the addition of the party is in the best interests of the child, (ii) Whether the addition of the party will delay or prolong proceedings unduly, (iii) Whether the addition of the party is necessary to determine the issues, and (iv) Whether the additional party is capable of putting forward a plan that is in the best interests of the child.

[22] A fifth criterion was added by the case of Children's Aid Society of London and Middlesex v. J.P., whether the person seeking to be added as a party has a legal interest in the proceeding i.e., whether an order can be made in their favour or against them.

[23] Section 79(1) of the Child, Youth and Family Services Act (“CYFSA”) sets out the criteria for party status in a child protection application as follows:

The following are parties to a proceeding under this Part:

1. The applicant.
2. The society having jurisdiction in the matter.
3. The child’s parent.
4. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

[24] Section 74(1) of the CYFSA defines “parent as follows:

“Parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children’s Law Reform Act.
2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7(2) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.
3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.
4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.
5. An individual who has lawful custody of the child.
6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.
7. An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.
8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children’s Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force.

[25] The Federal Legislation, An Act respecting First Nations, Inuit and Metis children, youth and families (the “Federal Legislation”) provides:

In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child, (a) the child’s parent and the care provider have the right to make representations and to have party status; and (b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations.

[26] “Care provider” is defined, in s. 1 of the Federal Act, as:

A person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs.

[27] “Foster parent” is defined in the CYFSA as follows:

“Foster care” means the provision of residential care to a child, by and in the home of a person who, receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing), and “foster home” and “foster parent” have corresponding meanings; (“soins fournis par une famille d’accueil”, “famille d’accueil”, “parent de famille d’accueil”).

[28] The defining feature of foster parent is that they receive compensation for caring for the child. In Windsor-Essex Children’s Aid Society v. D.L.H., 2015 ONCJ 310, Tobin J. at paragraph 21 stated:

“A foster parent, by definition, is one who receives compensation for caring for a child”.

[29] The Ontario Court of Appeal also referenced in the T.E. decision the “presumption of implied exclusion” as set out in the Cadieux v. Cloutier, 2018 ONCA 903 case as follows:

…the principle of statutory interpretation known as the presumption of implied exclusion (sometimes referred to as expressio unius est exclusio alterius) precludes such an approach. The principle of implied exclusion presumes that "to express one thing is to exclude another" and accordingly, when a statutory provision refers to a particular thing, but is silent with respect to other comparable things, that silence reflects an intention to exclude the unmentioned items … In other words, "legislative exclusion can be implied when an express reference is expected but absent".

Position of the Parties

[30] M.R. and D.R. seek to be added as parties to these proceedings. It is their position that the placement of the child in their care broke down because the father withdrew his consent. M.R. and D.R. seek to be added as parties based on the best interests of the child and pursuant to Rule 7(5) of the Family Law Rules, as they have been involved with the child since her birth and they have provided her with stability, security and consistency.

[31] Both the Agency and the First Nation oppose the addition of M.R. and D.R. as parties advancing that it is not in the child’s best interests, it will prolong and delay the proceedings, adding them is not necessary and they are not capable of putting forward a viable plan for the child nor would their plan maintain the child’s cultural connection to the community.

Analysis

[32] It is clear from the history of the file that the placement of the child in the care of M.R. was specifically pursuant to a Customary Care Agreement executed by all interested parties, that being the mother when she was alive, the father, the Agency, the First Nation as well as M.R.

[33] The placement of the child in the care of M.R. pursuant to the Customary Care Agreement specifically provided in two sections (section 5 and section 8) of the executed Agreement that M.R. is to be financially compensated for the placement of the child in her care. Making her role as a caregiver, parallel to that of a foster parent, who is specifically financially compensated for the care of a child placed in their home.

[34] As such, based on the definition of “party” and “parent” in the CYFSA and that foster parents are specifically excluded for the very reason that they are compensated, M.R. and D.R. would not meet the statutory interpretation of a “party” or “parent” under the CYFSA.

[35] With respect to the Federal Legislation, while the Act sets out that the child’s parent and care provider have the right to make representations and have party status, M.R. and D.R. specifically and deliberately confirmed at the hearing of the motion on the record, that they were not and did not wish to advance a claim for party status under this legislation, but rather only pursuant to Rule 7(5) of the Family Law Rules. As such, no submissions were made by any counsel in this regard and so the court is not in a position to adjudicate or decide the issue of party status under the Federal Legislation for this specific case.

[36] Further, no evidence was advanced by M.R. and D.R. or any of the parties regarding any Indigenous heritage or background for M.R. and D.R. nor what M.R. and D.R. have done to support, foster and encourage the child’s relationship with her First Nation, heritage and culture during the time that the child was in their care as contemplated by the Federal Legislation and the Customary Care Agreement. It is also unclear, nor was there any evidence put forward by any party, as to what the expectations were specifically of M.R. in order to “respect the inherent rights, including the cultural traditions of the child” as stated in section 7 paragraph b of the Customary Care Agreement.

[37] Turning to the court’s discretionary authority to add a party pursuant to Rule 7(5) of the Family Law Rules, I must consider if adding M.R. and D.R. as parties is in the child’s best interests; if the addition will delay or prolong the proceedings unduly; whether the addition is necessary to determine the issues; whether they are capable of putting forward a plan that is in the child’s best interests and whether they have a legal interest.

[38] In the case at hand, the mother is sadly deceased, and the father is still struggling with his substance misuse and transient lifestyle. The only parties participating in this matter are the Agency and the First Nation. Given that neither of the parents are participating, the Office of the Children’s Lawyer should be appointed to represent the child in this case and the Agency should address this issue at the next return date. That being said, given the limited parties participating in the matter, I find that the addition of M.R. to the case would not unduly delay or prolong the proceedings.

[39] As I have determined with respect to the statutory pathways for M.R. and D.R. to be added as parties above, they are not parties under the CYFSA as I find caregivers who are financially compensated to care for a child akin to foster parents and they specifically did not advance a claim for party status under the Federal Legislation. As such, I find that M.R. and D.R. do not have a legal interest under which they can advance a claim, nor can a claim be advanced against them.

[40] With respect to whether the addition of M.R. and D.R. is necessary to determine the issues in this matter, I do not find this to be the case. The child was in the care of M.R from 2021 to 2023 pursuant to a duly executed Customary Care Agreement. M.R. made her intention known that she wished to adopt the child or obtain custody of the child despite signing a Customary Care Agreement which stated that it was to be in place until the child reached 18 years of age.

[41] The roles and expectations of the parties involved were clearly outlined and set out in the Customary Care Agreement. Further, the Agreement stated that the child was to be cared for in accordance with the custom of the First Nation and that while the parents were not presently in a position to care for the child, the objective of the Customary Care Agreement was “the safe reunification and continuity of the family”, which means that a return of the child to the care of the parents was always contemplated until the child reached the age of 18 years. Further, financial compensation and funding for the care of the child for M.R. was also to be provided by the Agency for the length of the Agreement.

[42] While the emotional attachment to the child may have grown for M.R. and D.R. over the years and they made their intentions to adopt or obtain custody of the child known to the Agency and the First Nation, M.R. did not take steps to terminate the Customary Care Agreement as she was permitted to do pursuant to section 12 paragraph b of the Agreement. Nor did she do so, and attempt to advance a claim for custody under the Children’s Law Reform Act. A claim under the Children’s Law Reform Act was only advanced once the Agreement was terminated by the Agency, M.R.’s Customary Care home closed and the child removed from M.R.’s care.

[43] Furthermore, the Agency as well as the First Nation have demonstrated a commitment to finding a suitable and culturally appropriate placement for the child. Family members were approached and only due to unexpected health reasons was the child removed. There was a placement with another culturally appropriate community member, however this placement was not successful due to issues with the other children in the home and so further options, while maintaining the child’s identity, and sense of belonging to her family and First Nation community are being explored.

[44] In turning to whether M.R. and D.R. are capable of putting forward a plan that is in the best interests of the child, the court has significant concerns in this regard. While anyone may be able to put forward a plan of care, a plan of care from an individual seeking to be added as a party, needs to be practical, viable and sustainable in order to meet the best interests of the child. This is simply not the case for M.R. and D.R.

[45] First, M.R. and D.R., have not set out in their materials what their plan of care is for the child. M.R. and D.R. simply rely upon the fact that the child was placed in M.R.’s care from 2021 to 2023. It would have been prudent and helpful for the court if M.R. and D.R. attached to their affidavit a completed answer and plan of care they intended to file if added as parties, or even set out the elements of their proposed plan of care for the child in the body of their affidavit.

[46] Second, there were significant documented concerns with respect to M.R. not following the Customary Care Agreement. This included allowing the father access with the child, despite the Agreement stating that the father’s access is to be supervised by the Agency. Furthermore, M.R. failed to advise or inform the Agency and First Nation that she was permitting the father Sunday dinner visits with the family, including the child.

[47] Third, M.R. allowed high risk individuals contact with this very young and vulnerable child. This included contact with an individual who was found to be accessing and in possession of child pornography, although allegedly not charged due to issues of capacity, which adds to the risk factor, as well as allowing a convicted child sex offender regular contact with the child.

[48] Fourth, M.R. and D.R. agreed to be sureties for an individual who was charged with aggravated assault, assault and mischief. This individual would be residing in their home along with the child. M.R. and D.R. failed to advise the Agency of this development or seek their consent and approval. Again, this lack of judgment by M.R. and D.R., or them not seeing this as a potential risk for the child and discussing it with the Agency is concerning to the court.

[49] Fifth, the child’s sibling was removed from the care of M.R. and D.R. due to concerns regarding physical discipline as well as cruel and inappropriate treatment of the child by M.R.

[50] Sixth, when the concerns noted above were raised to M.R. by the Agency worker regarding the inappropriate individuals in the presence of the child, her permitting the father access without the consent or approval of the Agency, becoming a surety without notifying the Agency and the concerns regarding discipline of the sibling, MR.’s response was to deny that this occurred, then when she admitted it occurred, she attempted to minimize the incidents and justify her actions. This response by M.R. demonstrates very little insight and recognition of the risks and concerns identified by the Agency, as well as the court, to a very young and vulnerable child.

[51] Seventh, M.R. became frustrated with both the Agency and the First Nation when they would not support her plan for adoption or to obtain custody of the child. While it is understandable that she may be frustrated or upset, the concern for the court is that M.R.’s actions were such that she began to not work cooperatively with the Agency and First Nation, in the best interests of the child, but rather started working against them and would interfere with the Agency meeting with the child and she would not engage with band representative from the First Nation.

[52] Eighth, the child was placed in the care of M.R. pursuant to a Customary Care Agreement and the Agreement specifically recognized that the child is a First Nation child and it prioritized the best interests of the child maintaining her identity and sense of belonging to her Frist Nation community, however neither M.R. nor D.R. presented any evidence to the court as to what they did between 2021 to 2023 to support the child in connecting to her indigenous heritage and culture nor what they plan to do to ensure that the child maintains her connection to her First Nation community in the future.

[53] Ninth, there appears to be conflicting information regarding the father’s position as to with whom he would like the child to be placed. More concerning to the court is that there appears to be undue influence by M.R. upon the father in order to advance hers and D.R.’s claims to have the child placed in their care.

[54] Furthermore, some of the concerns the court has with the notarized document signed by the father, M.R. and D.R. which was forwarded through the R.’s counsel to the Agency include:

(1) The notarized statement does not appear to be a domestic contract. (2) The statement does not set out that there are no representations, collateral agreements, warranties or conditions affecting the agreement. (3) The statement did not set out whether any of the parties to the agreement had independent legal advice or declined it, with having the opportunity to obtain legal advice.

[55] Tenth, while it may be that M.R. and D.R. thought of the child as one of their own children and wished to adopt her or obtain custody of her, it was clear from the wording of the Customary Care Agreement that the intention was always that they were customary caregivers for the child; that reunification with the parents was always a goal; that the Agreement was to be in place until the child reached the age of 18 and that M.R. would receive financial compensation for the child in her care.

[56] Despite the child being placed with M.R and D.R. from 2021 to 2023 and their commitment to seek the return of the child to their care and advance a plan of care for her by being added as parties, based on the above detailed concerns, I cannot find that adding M.R. and D.R. as parties to this proceeding is in the child’s best interests.

Decision

[57] For the above reasons, the motion at Volume 1 Tab 7 brought by M.R. and D.R. is dismissed and the motion at Volume 1 Tab 11 brought by Batchewana First Nation to dismiss M.R. and D.R.’s motion is granted.

[58] The Agency and the First Nation shall consider the appointment of counsel for the child R.S.V.B. born May **, 2019 through the Office of the Children’s Lawyer, which is to be addressed at the next return date.

[59] The application and the motion at Vol. 1 Tab 15 by the Agency for placement of the child in the care of alternate caregivers, is adjourned to the Child Protection List on July 10, 2024 at 9:30 a.m. to set the date for the next step in the matter.

Released: July 8, 2024 Signed: Justice Heather-Ann Mendes Ontario Court of Justice