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 29 Court File No.: Kenora FO-24-03

Between:

Tikinagan Child and Family Services Applicant,

— AND —

R.M., S.C. & J.V., J.L. and North Spirit Lake First Nation Respondents

Before: Justice Baxter

Heard on: June 5, 2024 Reasons for Judgment released on: July 29, 2024

Endorsement

Counsel:

Matthew Angeconeb...................................................... counsel for the applicant society Ian Del Bigio, Tisha Hasan, Ulyssess Patola................ counsel for the respondent(s) No appearance by or on behalf of North Spirit Lake First Nation, even though served with notice. Karen Seeley/William Hedges......... counsel for the Office of the Children’s Lawyer, legal representative for the child

Baxter J.:

[1] This is a motion brought by Tikinagan Child and Family Services (TCFS or agency) for an order of temporary care and custody for the child, J.M., born in June 2018. The agency asks the child be placed with the Respondent J.L. with access to the Respondent mother, R.M.

[2] The child is Indigenous and a member of North Spirit Lake First Nation. Therefore, the federal legislation, An Act Respecting First Nations, Inuit and Metis Children, Youth and Families (the Federal Act), S.C. 2019, c. 24, applies in this case.

[3] The mother is a member of, and resides in, North Spirit Lake First Nation. The identity of the biological father is not known.

[4] While the First Nation has not participated in the proceedings, the agency has been consulting with it, and is aware of the First Nation’s supportive position with respect to the child and the Respondent mother.

[5] The Respondents, S.C. and J.V., the former caregivers, bring a motion to have the child placed in their temporary care and custody or other alternative relief for supervision or access (supervised or unsupervised). TCFS is opposed to this motion and asks it be dismissed in its entirety.

[6] The child was originally brought to a place of safety on April 9, 2021, from North Spirit Lake and placed with Respondents J.V. and S.C. in Red Lake until the child was removed from their home on September 11, 2023. The child was then placed with Ms. J.L., the current caregiver, on September 14, 2023, in Kenora. The child has been with Ms. J.L. and her family since that day.

[7] Respondents, J.V. and S.C., entered into a Customary Care Agreement (CCA) with the agency, which agreement was formally revoked, in writing, on January 23, 2024, by the mother. They also brought a Children’s Law Reform Act application on October 21, 2023 (file #RL-FO-23-000006-00) for decision-making authority.

[8] A protection application was made on January 25, 2024, and triggered by the revocation of the CCA. The agency submits the child is in need of protection pursuant to s. 74(2)(a)(i) and (b)(i) of the Child, Youth and Family Services Act, 2017 (CYFSA). On January 26, 2024, the court ordered the child be placed in the temporary care and custody of TCFS on a temporary, without prejudice basis.

[9] The protection issue with respect to the mother does not appear to be contentious as the mother agrees with the agency’s position in this regard given her struggles with substances, mental health, and her inability to properly parent the child; however, the goal of the agency, the mother, the First Nation, and Respondent J.L. is reunification.

Position of TCFS

[10] According to the submissions of TCFS, the mother has completed a residential treatment program with Dilico and is trying to find permanent housing for her and the child. She has been having monthly visits with the child and appears to be doing well, but she is not yet ready to resume care of the child, thereby satisfying s. 94(4) of the CYFSA.

[11] The agency requests the child be placed with Ms. J.L. (s. 94(2)(c)). Ms. J.L. is agreeing with the motion, in part, and is not interested in pursuing a CLRA application as she wishes only to be a temporary caregiver until reunification with the mother can be achieved. Ms. J.L. is not a parent or relative of the child, and she is not a member of the First Nation. She is not consenting to the placement under s. 94(2)(c), but asks the placement be pursuant to s. 94(2)(d) of the CYFSA.

[12] Ms. J.L. entered into a Mamow Obiki-ahwahsoowin Care Agreement (Mamow Agreement) on September 14, 2023, with the mother, TCFS and the First Nation. Ms. J.L. identifies as Metis. A copy of the Mamow Agreement has not been filed with the court.

[13] TCFS submits placing the child with S.C. and J.V. is not feasible for various reasons. Ms. S.C. was a former employee of TCFS. The affidavits filed by TCFS in support of this motion note S.C. and J.V. are not Indigenous and not affiliated with any Indigenous community or First Nation.

[14] In the course of S.C. and J.V. being caregivers of the child, there were service complaints and safety concerns raised pertaining to them:

• restraining or being physical with the child;
• yelling at the child;
• interference with visits/access with the mother;
• bringing the child on after-hours services calls in the course of Ms. S.C.’s employment with TCFS as a child protection worker;
• leaving the child unattended in a vehicle on more than one occasion, and
• making inappropriate/disparaging comments about the child’s mother and family.

[15] TCFS found the concerns about emotional and physical harm were justified following interviews with Ms. S.C., Mr. J.V., and the child. The child was removed and placed with Ms. J.L. in Kenora.

[16] TCFS also submits s. 16 of the Federal Act applies with respect to the priority of placement for the child, subject to the child’s best interests. J.V. and S.C. are not Indigenous, and are included in the s. 16 list at paragraph e. Ms. J.L. being Metis does qualify at paragraph d – one level up from the position of S.C. and J.V. In this case paragraphs a to c are not available as placements for the child, for the time being.

Position of the Mother

[17] The mother submits she agrees with TCFS that she is not in a position to parent the child at the moment.

[18] She notes since the child has been placed with Ms. J.L., she has enjoyed increased access with the child. When the child was with S.C. and J.V., access decreased, and her relationship with them soured. Their CLRA application has destroyed any hope of having a relationship with them in the future.

[19] The mother supports Ms. J.L.’s role as caregiver and has a congenial relationship with her.

[20] The mother is still working on her service plan, and her goal is reunification. She is hoping to have her own home. For the time being, she is residing with her sister in North Spirit Lake First Nation. She is not requesting an access order as she is satisfied she is receiving adequate access.

[21] She urges the court to apply the priority of placement scheme set out in s. 16 of the Federal Act as it pertains to Ms. J.L. superseding S.C. and J.V.

[22] Returning the child to S.C. and J.V. are not in the child’s best interests and finds their approach to be “selfish”.

Position of Respondent J.L.

[23] Ms. J.L. filed an affidavit in support of her position on this motion, along with written submissions and a Book of Authorities.

[24] She is an approved TCFS caregiver and a former speech therapist and education assistant. The child does have a speech impediment and is in senior kindergarten at a Kenora school.

[25] Ms. J.L. submits the child should stay with her until reunification can be achieved. She supports the mother having access with the child and will cooperate with TCFS as required.

[26] Ms. J.L. does not support S.C. and J.V. having access with the child. She expressed concern in her affidavit regarding some inappropriate sexualized and other behaviour by the child. In addition, comments the child made to her regarding what S.C. and J.V. have said about the mother confirm what TCFS had indicated in its investigation.

[27] Ms. J.L. also had concerns about S.C. and J.V. not keeping up with the child’s need for glasses and daily “puffers”, and when the child came into her care, the glasses and puffer were not provided. She expressed concerns about the child’s hygiene, diet and other behaviours that have since been corrected or improved in her care.

[28] In short, Ms. J.L. has concerns with respect to S.C. and J.V. having care and custody of the child and supports the motion of TCFS for temporary care and custody.

[29] Ms. J.L. plans to foster the child’s cultural and community understanding and connection. She has also set up additional services for the child to improve the child’s overall development and well-being.

[30] S.C. and J.V. now live in Sioux Lookout. Ms. J.L. submits moving the child around the northwest region for visits or to live is not in the child’s best interests. The child needs stability, consistency and no further disruptions.

[31] Ms. J.L.’s counsel submitted the preamble and s. 1(2) of the CYFSA and s. 9(1)(c) of the Federal Act require a respect for the child’s culture, which S.C. and J.V. have not demonstrated.

[32] In addition, s. 10 of the Federal Act sets out the requirements for the best interests of the child. The factors set out in s. 10(3) must be taken into consideration.

Position of Respondents S.C. and J.V.

[33] S.C. and J.V. set out their position in their Notice of Motion and supporting affidavits. In submissions, they argue but for the child’s disclosures, this matter would not have been brought before the court, and the child would still be living with them.

[34] They argue the agency did not choose the least disruptive course of action when they abruptly removed the child from their care and placed the child with a stranger, Ms. J.L.

[35] The child’s age and speech impediment make ascertaining views and preferences unknown. The court must consider credible and trustworthy evidence in deciding the motion for temporary care and custody. The affidavits of the agency do not rise to the required level of evidence, and they should be given little weight.

[36] S.C. and J.V. deny they interfered with or prevented access with the mother. The agency has not provided sufficient evidence in this regard.

[37] The test is what is in the child’s best interests? The child was with them for 2.5 years, and they saw to the child’s needs and development. They support reunification. They also ask their motion be granted.

[38] Counsel attempted to file a late affidavit and a letter, to which all the other parties objected under the Family Law Rules and the Evidence Act.

Office of the Children’s Lawyer

[39] The OCL noted s. 94(11) of the CYFSA requires the views and preferences of the child be considered. However, in this case, it was not possible to obtain the child’s views and preferences given the child is only 5 years old and has language and speech issues. The OCL needs to spend more time with the child to further canvass views and preferences. OCL did note the child spoke positively or nicely about all the adults involved in this matter.

Analysis

[40] I have reviewed all the submissions, materials filed for these motions, the jurisprudence and the applicable legislation in this matter.

[41] The issues I have identified here are:

a) Whether TCFS has discharged its onus to prove on reasonable and probable grounds, 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 a supervision order if the child is returned to S.C. and J.V. b) Whether any of the relief sought by S.C. and J.V. ought to be granted.

[42] The issue of temporary care and custody of a child in a child protection matter is governed by s. 94 of the CYFSA. When an Indigenous child is involved, the Federal Act applies at all stages of a child protection matter and supersedes the provincial legislation where there is a conflict of laws. The overarching test is the best interests of the child, with additional considerations to be made when an Indigenous child is involved.

[43] The Federal Act necessitates a change in how courts analyse and assess risk and deciding placements for Indigenous children. (Kina Gbezhgomi Child and Family Services v. J.M., 2023 ONCJ 93, para. 26)

[44] The purpose of a temporary care and custody hearing is to determine where a child is to stay until the merits of the protection matter can be decided. (Family & Children’s Services of St. Thomas and Elgin v. S.A., J.W. and Caldwell First Nation, 2023 ONSC 4754, para. 21)

[45] Subsection 94(4) of the CYFSA requires the court to be satisfied reasonable and probable grounds exist the child is at risk of suffering harm and cannot be protected by s. 94(2)(a) or (b). The agency bears the onus on such a motion.

[46] Paragraph 94(2)(c) is not a viable option for placing the child with a relative or community member as the mother has stated she is not yet in a position to resume care of the child, and no other relative or community member has been proffered as a placement option (s. 94(5) CYFSA).

[47] In determining who had charge of the child before the protection proceedings commenced, the courts must be cognizant the Federal Act s. 16 sets out a priority of placement regime that makes s. 94(2) of the CYFSA less significant in determining the placement of the child in terms of who had charge prior to the protection proceedings arose. (see Children’s Services of St. Thomas and Elgin)

[48] In assessing the best interests of Indigenous children, the following must be considered: the principle of cultural continuity, s. 9(2) [of the Federal Act]; the principle of substantive equality, s. 9(3); best interests considerations of Indigenous children, s. 10; and priority of placement, s. 16. (supra at para. 37)

[49] In assessing the best interests of Indigenous children, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs, and of preserving the child’s connections to his or her culture: s. 10(1) and (2) Federal Act. (supra para. 41) The factors to be considered are set out in s. 10(3).

[50] In this case, I am satisfied TCFS has discharged its onus, with credible and trustworthy evidence, reasonable and probable grounds exist there is risk of harm to the child, if the child is returned to S.C. and J.V.

[51] Given the findings of TCFS, and the position of the parties with respect to S.C. and J.V., I find it is not in the best interests of the child to be returned to their care and custody. Further I am not satisfied a supervision order will eliminate these concerns.

[52] I am satisfied the concerns raised about the treatment of the child, the attitudes of S.C. and J.V. toward the child, the mother and family give rise to concerns the child is at risk.

[53] Additionally, the priority of placement in s. 16 of the Federal Act does not favour placing the child with S.C. and J.V. Section 16 sets out the priority of placement:

(a) with one of the child’s parents; (b) with another adult member of the child’s family; (c) with an adult who belongs to the same Indigenous group, community or people as the child; (d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs, or (e) with any other adult.

[54] The priority of placement regime does result in reconsideration of the applicability of s. 94(2) of the CYFSA vis a vis the appropriateness in preferring placing the child with non-Indigenous people rather than an Indigenous family.

[55] Furthermore, the CLRA application and Motion brought by S.C. and J.V. demonstrate to the court they have no intention in supporting reunification. I have serious concerns the CLRA application being brought against an Indigenous mother regarding her child indicates to me S.C. and J.V. have not taken the child’s cultural continuity and substantial equality into consideration in this motion.

[56] Moreover, the child is doing well and thriving in Ms. J.L.’s care. Ms. J.L. is supportive of reunification and appears to appreciate the importance of ensuring the child has continued contact with the mother, extended family and First Nation. She has been able to help the child with speech and language development given her previous work. The child’s behaviour has improved and appears to be settled at her home in Kenora. I see no point in further disrupting the child with a move from Kenora to Sioux Lookout.

[57] Now that the child has started school, has been having increased access to the mother, is receiving supports and services for the deficits identified in the materials, and is placed in an Indigenous (Metis) home, I am satisfied the criteria set out in the Federal Act have been met.

[58] Therefore, I order the following:

1. Pursuant to s. 103 of the CYFSA, the Application issued on October 21, 2023, with Court File Number RL-FO-23-000006-00, is stayed.
2. The affidavit of Tammy Bruce, sworn and filed on June 5, 2024, and attached exhibit, is rejected and ordered not admissible for not complying with the Family Law Rules and the Ontario Evidence Act.
3. Pursuant to s. 94(2)(d) of the CYFSA, the child, J.M., as identified in the Affidavit of Parties sworn January 25, 2024, at Tab 4 of the Continuing Record, shall be placed in the temporary care and custody of J.L., subject to the supervision of Tikinagan Child and Family Services and pursuant to the Mamow Obiki-ahwahsoowin Care Agreement currently in place, and which may be amended from time to time.
4. The child shall have access to the mother as arranged between Tikinagan Child and Family Services and/or J.L. and subject to the best interests of the child.
5. Access to the mother shall be at a minimum of one in-person visit per month, with frequent and regular video or telephone access as arranged by Tikinagan Child and Family Services and/or J.L.
6. Tikinagan Child and Family Services and J.L. shall continue to support the mother with her service plan and her goal of reunification.
7. There shall be no access to J.M. with S.C. and/or J.V.
8. The motion (at Tab 10 of the Continuing Record) of S.C. and J.V. is dismissed in its entirety.
9. There shall be no order as to costs.

[59] This matter can proceed to settlement conference. Dates can be set on the next court date of July 31, 2024.

[60] I thank counsel for their hard work on this matter.

Released: July 29, 2024 Signed: Justice E.J. Baxter