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 08 06 COURT FILE No.: Kenora FO-23-36

BETWEEN:

Anishinaabe Abinooji Family Services Applicant,

— AND —

N.J., Traci Lockman, A.N.A. (G.N. First Nation) Respondents

Before: Justice E. J. Baxter

Heard on: May 16, June 5, & July 5, 2024 Reasons for Judgment released on: August 6, 2024

Counsel: Darryl Buxton.................................................................. counsel for the applicant society Umme Habiba................................................................. counsel for the respondent, N.J. Matthew Huston....................................... counsel for the respondent, Traci Lockman Ashley Ash…counsel for the respondent, A.N.A. (G.N. First Nation) William Hedges & Maureen Bulbrook…… counsel for the Office of the Children’s Lawyer, legal representative for the Child

Baxter J.:

[1] The following are my reasons on the Anishnaabe Abinooji Family Services’s (the agency/ AAFS) motion for temporary care and custody of the child, M.P., (the child) born May 2012, now aged 12.

[2] The child was apprehended without a warrant and brought to a place of safety on October 23, 2023, when the agency received a call from a Treaty Three Police Services officer indicating the child had been brought to the Lake of the Woods Hospital in Kenora, because the child was threatening to self-harm if forced to return to the home and care of the respondent, Traci Lockman.

[3] The child was brought to hospital for a mental health assessment. The child was released into the care of the current caregiver, the elder sister of the child, S.P.. The child has been in her care ever since.

[4] The AAFS commenced a protection application on October 26, 2023, and brought this motion for temporary care and custody on October 27, 2023, which was granted by me on a temporary, without prejudice basis, along with appointing Indigenous counsel for the child from the Office of the Children’s Lawyer (OCL).

[5] A further temporary order setting out access to the former caregiver, Traci Lockman, was granted by me on March 13, 2024. The matter has been adjourned from time to time to allow for materials to be filed, to conduct a case conference, to allow counsel to be brought on board and up to speed, and an assessment to be conducted. The parties were not able to settle the matter to this stage, and a contested motion for temporary care and custody was heard by me on May 16, June 5, and July 5, 2024.

Background

[6] The child’s biological father is the respondent, N.J.. The child’s biological mother, M.P., is deceased since October 2017. The child is Indigenous and is a member of the respondent First Nation, G.N. First Nation (GNFN).

[7] The Respondent, Ms. Lockman, was the previous caregiver of the child. She came to care for the child and siblings through a private arrangement between N.J. and the Lockmans. The older siblings had left the care of Ms. Lockman at one point, and M.P. remained until M.P. went on an extended visit to GNFN in September 2023 and the apprehension occurred.

[8] Ms. Lockman brought a family court proceeding in Fort Frances in 2022 with file number FO-22-14 (Lockman v. N.J.) seeking primary care, decision-making authority over the child, with parenting time to N.J. This matter is now stayed because of the child protection proceedings.

[9] In October 2023 the child was on an extended visit to GNFN with family, including the current caregiver, S.P. The child was refusing to return to Fort Frances to Ms. Lockman, indicating the child did not feel safe or comfortable in the Lockman home. In the result, Ms. Lockman obtained an order for the police to apprehend the child to be brought to her on October 23, 2023, which then triggered the hospital visit and the apprehension.

[10] Ms. Lockman and her spouse had cared for the child since approximately September 2015 until October 2023 – initially through a caregiving role with AAFS and then privately with the father, N.J..

[11] The agency amended its Protection Application for a custody order in favour of S.P. pursuant to s. 102 of the CYFSA. The amended application was filed on July 16, 2024 - after the motion for temporary care and custody was heard. This issue will have to be determined later in the proceedings and is not being considered here as no protection findings have yet been made.

[12] The parties agreed to commission an assessment by an Indigenous social worker to examine the parenting of S.P. and the views and preferences of the child. My understanding was the assessment was intended to assist OCL as well. At the time of the hearing, the assessment was not completed. The matter proceeded without the assessment.

[13] After the first day of the hearing, I was not satisfied with the quality/nature of the evidence I had received from the agency and the First Nation and ordered additional materials to be provided to assist in the determination of the motion. I now summarize my understanding of the positions of the parties below:

Position of AAFS

[14] The AAFS asks the child remain it is temporary care and custody for six months, placed with S.P., under a supervision order or to have the child placed in the care and custody of S.P.. The temporary order granting access to Ms. Lockman can continue until the court finally decides the matter.

[15] In support of its position the agency noted this matter is unusual and acknowledged 7 months have passed since the child was apprehended. While the matter has been case managed, it ought to have been set down for trial by now.

[16] The sole issue to be determined in this motion is to determine where the child shall be placed pending trial of the protection issue. The relevant date is the date of the apprehension and whether the apprehension was justified. If the apprehension was justified, the court needs to assess the child’s best interests pending the trial and where the child shall be placed.

[17] Counsel referred to Family and Children’s Services of St. Thomas and Elgin v. S.A. et al., 2023 ONSC 4754, to support its position and to guide the court for temporary care and custody motions.

[18] The child is Indigenous; therefore, the federal legislation, An Act Respecting the First Nations, Inuit and Metis Children Youth and Families, S.C. 2019, c. 24 (Federal Act) applies throughout all stages of this proceeding. In addition, the Federal Act is to be given paramountcy over the provincial legislation, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, s. 1, (CYFSA) particularly where the laws conflict.

[19] Given S.P. is an adult member of the child’s family, the priority of placement scheme in the federal legislation gives S.P. priority over that of Ms. Lockman who is not Indigenous, not a parent and would fit at the lowest priority of s. 16 of the federal legislation.

[20] In addition, the Supreme Court of Canada decision in K.L.W. v. Winnipeg Child and Family Services, 2000 SCC 48, upheld the constitutionality of warrantless apprehensions of children in appropriate circumstances. The case is still good law and applies in Ontario. Temporary care and custody hearings are not a full hearing on the merits of a case, and only reasonable and probable grounds are all that is required to show a child is at risk of harm.

[21] In the present case, the child was being apprehended by police at the family home in GNFN at the request of Ms. Lockman. The child became hysterical and threatened to commit suicide or self-harm if forced to return to Ms. Lockman’s care. Out of concern for the child’s mental well-being the child was taken to hospital by police to be assessed.

[22] Because the situation occurred after hours, there was not time to obtain a warrant, and the child was apprehended and taken to a place of safety given the serious concerns about the child being at risk of serious physical or other harm. The protection application was commenced within the required time limit, and an interim order was granted, on consent, to have the child placed in the temporary care and custody of the agency on a without prejudice basis.

[23] Counsel referred to paragraphs 102, 104, 111, 112, 117 and 121 of K.L.W. (supra) to support its submissions regarding warrantless apprehensions.

[24] Further, the views and preferences of the child must be considered where they can be ascertained. (s. 94(11) CYFSA) Here the views and wishes of the child have been stated, and the child wishes to remain with S.P. and does not want to return to the care and custody of Ms. Lockman. The views and wishes have been made known to the First Nation’s representatives and the OCL. Given the child’s age, the views and wishes must be given considerable weight.

[25] Under s. 94 of the CYFSA the child was in the care of S.P. and that is to whom the child would be returned, because the child was with S.P. during the month prior to the apprehension and not Ms. Lockman as Ms. Lockman asserts. Ms. Lockman’s position would result in further disruption to the child which is not in the child’s best interests. The child has been in transition and is rebuilding relationships with the community and family.

[26] The agency referred to the affidavits of its workers, S.P., and of the First Nation to show there are no protection concerns regarding the current placement with S.P. It appears to the agency Ms. Lockman thinks she is better than the family and community and has no interest in reunification.

Position of GNFN

[27] The First Nation supports the position of AAFS. According to the First Nation, S.P. and M.P. have significant community and family support. Remaining in GNFN will serve the child’s best interests.

[28] The First Nation fears if M.P. is returned to Ms. Lockman, the child is at risk of running away, self-harming or committing suicide. If the court is unsure about the placement, the court could wait for the assessment to be completed before deciding this motion.

[29] Section 16 of the Federal Act prefers placing the child with S.P.. The First Nation leadership and band representatives indicate S.P. is responsible and hard-working. She is 25 years old and employed at the Ontario Works office at the First Nation as a receptionist. She lives in a one-bedroom apartment. She is single and has no children of her own. While the transition to GNFN has been difficult for M.P., the community will continue to support the continuity of care and cultural connection to ensure the child is well supported.

[30] The Deputy Chief of the First Nation, Sherry Ackabee, stated in her affidavit and in court one of her priorities will be to provide a two-bedroom home for S.P. and M.P. as soon as possible.

[31] The First Nation is concerned Ms. Lockman will not maintain cultural and community connections for the child, particularly since Ms. Lockman has no connection to GNFN whatsoever.

[32] S. 16 of the Federal Act does not place Ms. Lockman on equal footing with S.P.. One must read the preamble of the legislation, the purpose of which was to keep Indigenous children with their Indigenous families and communities, not to remove them and place with the non-Indigenous caregivers.

[33] Further, s. 16(2) contemplates placement with siblings. S. 16(3) favours S.P.. The court must also take into account the reasons set out in Kina Gbezhgomi Child and Family Services v. J.M. et al, 2023 ONCJ 93 at paragraphs 26 and 27 regarding the intentions of Parliament in the Federal Act’s preamble.

[34] Placing M.P. with a non-Indigenous caregiver is contrary to the Federal Act and the child’s views and preferences.

[35] S.P. and M.P. will have many “eyes on them” and will be supported, including if M.P. wants visits with Ms. Lockman.

[36] The First Nation finds the assertion it abandoned M.P. to be offensive and disrespectful. Ms. Lockman has not acknowledged the impacts of colonization and how they play a role in this matter.

Position of the Father

[37] The position of the father, N.J., is that the child remains with his eldest daughter, S.P., in GNFN.

[38] In his Answer and Plan of Care (Tab 8), the father sets out his plan to continue to have contact and visits with his children who still reside at GNFN. He lives in Winnipeg with one of the children. He is working on recovering from substances and building a more stable life.

[39] N.J. states the child is feeling safe and comfortable with S.P. The child was forced into a traumatic and stressful situation when Ms. Lockman sent police to forcibly remove M.P. from the First Nation.

[40] N.J. feels Ms. Lockman is attempting to desperately have control over the child against the child’s wishes thereby disregarding the child’s well-being, safety, Indigeneity, family bond with the other siblings, and community connection. The father is concerned if M.P. is forced to return to Ms. Lockman’s care the child will come to harm.

[41] He asserts the care arrangement with Ms. Lockman was meant to be temporary, but the placement was prolonged for various reasons, including the pandemic. It was never intended the placement be permanent. He further asserts the child was not in her care continuously from 2015 and which “on and off” care does not afford Ms. Lockman any entitlement to “full control” over the child while disregarding the child’s Indigenous connections, culture, best interests or safety.

[42] N.J. does not consider Ms. Lockman to be family. He feels Ms. Lockman is “obsessive” about controlling M.P. after the other of his children left the Lockman home under problematic circumstances which resulted in the relationship between he and the Lockmans to become “hostile”. He sees Ms. Lockman as trying to sever the bond between his children in her quest to have custody over M.P. as shown by her bringing a family law application against him.

[43] Further, Ms. Lockman has presented no evidence she is being alienated or that M.P. is being coached or manipulated.

[44] N.J. asserts Ms. Lockman used underhanded tactics to “trick” him into being noted in default in the family matter and to give her an unfair advantage over him which ultimately allowed Ms. Lockman to obtain the order to send the police to remove M.P. from GNFN. He finds her tactics to be a show of bad faith, and which were “shocking and devastating” to him.

[45] The father is confident the community will provide adequate supports to S.P. in her care for M.P. in addition to ensuring M.P. attends school and receives the required care and services.

[46] The father seeks an order to place M.P. in the care and custody of S.P. with reasonable and regular parenting time with M.P., and the claims of Traci Lockman be dismissed with costs.

Position of Traci Lockman

[47] Ms. Lockman asks the child to be returned to her care. The child had been in Ms. Lockman’s care from 2015 until 2023 when the child went for a visit to the family in GNFN. Joubert, J. ordered the police to apprehend the child to be returned to Ms. Lockman.

[48] Counsel argued the decision of the father, N.J., to remove M.P. from Ms. Lockman, against legal advice and the settlement conference is what set off this protection application. From the endorsements of Joubert, J., the family court matter was near settlement.

[49] Further, the court should not extinguish the rights of a caregiver lightly. Each case must be decided on its particular facts and whether there is a change in circumstances of the child.

[50] Counsel took issue with the fact the AAFS waited eight months to bring this motion. The without prejudice nature of the initial order has not lapsed. The legal test is the test at first instance, and the court should not consider the evidence tendered since it is not legally supported. CYFSA s. 94(10) allows a court to consider evidence on adjournments it considers credible and trustworthy in the circumstances, and a court can vary or terminate a without prejudice order at any time (s. 94(9)).

[51] In this motion the best interests of the child must be considered; however, the court also has to consider the application for protection findings against Ms. Lockman. The test set out in s. 74(2) must be applied. If there is no protection finding, the application cannot be sustained. This is not a family matter, but any decision made in the protection matter will wind up in family court.

[52] Counsel agreed the Federal Act applies, and the child should be returned to Ms. Lockman as there are no protection concerns. The priority of placement is at issue as well (s. 16 of the Federal Act). Ms. Lockman is agreeable to terms that see M.P. have continued meaningful relationships with the family and community.

[53] Counsel argued the agency has not met its onus and there is a real possibility the child will suffer harm with remaining in care of the agency. (Exhibit A of Lockman affidavit at Tab 12)

[54] Based on the affidavits tendered, it is clear the best interests of the child are not being met given the quality of care provided over the past several months. The child has ADHD, anxiety, a speech impediment and possible FASD. The child has been self-harming by “cutting” as shown in photos at exhibits L and N of the Lockman affidavit. The childcare worker, Ms. Joseph, says the injuries are not self-inflicted.

[55] Ms. Lockman also alleges the child is playing with knives, is not taking medication as prescribed, is regressing, is not in speech therapy anymore, is not attending school regularly, is no longer on an IEP, has too much screen time, has no regular bedtime schedule, and is gaming for hours, putting the child at risk of becoming addicted to electronics. Moreover, counsel expressed alarm at the fact when the child left Fort Frances, M.P. was in grade 6, while at GNFN, the child was enrolled erroneously in grade 5, thereby setting the child back by one grade that will have an impact on the child’s entire educational career. Overall Ms. Lockman asserts the child is doing worse in care than when the child was living with her.

[56] The second part of the test to be considered here is whether the agency can show terms and conditions will not be adequate. Here, the agency has not provided any terms and conditions in its plan of care, and no safety plan has been provided. The agency has yet to meet with Ms. Lockman to discuss options or conditions. She remains open to any reasonable terms and conditions the agency may require.

[57] Counsel further argues s. 15.1 of the Federal Act has been violated by the agency when it failed to meet with the child’s parent or another adult member of the child’s family before apprehending the child. Here the agency did not try to avoid apprehension or a supervision order. Counsel asserts Ms. Lockman is a parent.

[58] The Federal Act applies in this matter and will likely be determinative of this temporary care and custody hearing. Under the s. 16 priority of placement regime, Ms. Lockman is a parent or an adult family member. Under s. 74(1) of the CYFSA, Ms. Lockman is a parent. The term parent is not defined in the Federal Act. That legislation does not differentiate between biological parents, or Indigenous parents or non-Indigenous parents.

[59] Section 1 of the Federal Act defines the term family, and the child considers Ms. Lockman to be a family member as M.P. referred to Ms. Lockman as “mom” and Mr. Lockman as “papa”.

[60] In counsel’s submission, Ms. Lockman and S.P. are on equal footing in the priority of placement scheme in the Federal Act, but the best interests test favour returning the child to Ms. Lockman given the concerns that have been raised. Ms. Lockman will do what she can to continue the connection with M.P. family and community. Ms. Lockman asserts child’s family and community abandoned her, and the allegations against her are unfounded.

[61] Counsel alleges Ms. Lockman was alienated from M.P. from September 2023 until February 2024 and referred the court to Children’s Aid Society of Haldimand and Norfolk v. J.H. & M.H., 2020 ONSC 2208, para 164 to 165, regarding cautioning the court about a child’s views and preferences being given undue weight where a child has been influenced or coached resulting in parental alienation. In such circumstances, a child’s views and preferences cannot be treated as independent.

[62] In the present case, the opinion of M.P. toward Ms. Lockman changed drastically as shown in the screen shots of the text messages with M.P. contained in the Lockman affidavit at exhibit H. Counsel alleges the agency was complacent in the alienation and actually played a part in it. Therefore, the court ought not give the child’s views and preferences much weight. Moreover, the child has been exposed to adult issues and conflict.

[63] With respect to credibility, it is difficult for the court to assess credibility from affidavit evidence, but the Lockmans know M.P. well, and the agency workers do not. Counsel pointed out several inconsistencies in the affidavits of the agency staff in regard to their knowledge of the child and the child’s circumstances. The lack of reply and other information filed by the agency is telling.

[64] In conclusion, counsel submitted temporarily placing child with Ms. Lockman with directives on continued contact with the child’s family and community are in M.P.’s best interests and not contrary to the Federal Act.

Position of the Child

[65] OCL noted the child is “careful”, “shy” and “quiet”, and was difficult to ascertain the views and preferences, despite meeting with the child on three occasions. OCL feels the child is overwhelmed with all the workers and meetings.

[66] Initially, the views and preferences have been inconsistent and unclear, yet all the parties have their own perspectives on what they may be.

[67] OCL was able to indicate the child has never indicated they do not want any contact with Ms. Lockman. OCL stated this matter appears to be more of a “custody battle” than a temporary care and custody hearing. The child is caught in the middle of a “tug of war”.

[68] The parties commissioned an assessment that is underway with a social worker that is intended to assist OCL in determining the child’s views and preferences. The report is not yet complete, but it will be telling.

[69] OCL expressed concerns that no safety planning has been done to date. One would think that at least would be done. In addition, counsel was perplexed as to why none of the parties are communicating with OCL about the child and how they are engaging with the child. The conflicting positions and evidence here make this a difficult case to assess the child’s views and preferences.

[70] However, at the July 5, 2024, continuation of the hearing, Indigenous OCL counsel was in place, and the child expressed the preference to stay with S.P. and wants less frequent access to Ms. Lockman and that the visits take place in Kenora at a hotel and not in Fort Frances and for only 1 night. The child does not want day visits.

[71] OCL recommends the visits be scheduled in advance to give the child certainty and that no other options be presented to the child so that M.P. is not placed in the position of choosing between a visit or doing something else.

Analysis

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

[73] The main issue I have identified here is:

a) Whether AAFS has discharged its onus to prove, on reasonable and probable grounds, there are reasonable grounds to believe there is a risk the child is likely to suffer harm, and the child cannot be protected adequately by a supervision order if the child is placed with Ms. Lockman.

[74] 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.

[75] 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)

[76] 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)

[77] The test for temporary care and custody is set out in subsection 94(4) of the CYFSA, which 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) - returning child to the person who had care and custody immediately before intervention, or (b) - remain in that person’s care and custody subject to a supervision order. The agency bears the onus on such a motion.

[78] The evidentiary requirements of a temporary care and custody hearing are more relaxed than in other stages of the protection proceeding, for example. This is because of the requirement the court decide on this placement very early in the process and before the parties may be able to fully prepare for a more fulsome hearing on the protection issue.

[79] 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 commencing. (see Children’s Services of St. Thomas and Elgin)

[80] 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)

[81] 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).

[82] In this case, I am satisfied AAFS has discharged its onus, with credible and trustworthy evidence, that reasonable and probable grounds exist there is risk of harm to the child, if the child is placed with Ms. Lockman. The risk of harm is in the form of the child self-harming, or worse, if M.P. is forced to reside with Ms. Lockman in Fort Frances.

[83] Therefore, the apprehension was justified, and placing the child with S.P. was a place of a safety, was less disruptive and permitted in the Federal Act’s priority of placement. Moreover s. 74(4) of the CYFSA contemplates a place of safety to include the home of a child’s relative, extended family or community which the agency is satisfied is a safe place. The risk of the child self-harming or committing suicide as the child threatened caused significant concern that prompted the police (and agency) to not carry out the family court order to bring the child to Ms. Lockman’s home in Fort Frances.

[84] Pursuant to CYFSA s. 94(2)(a), I find S.P. is the person who had care and custody of M.P. immediately [my emphasis] before intervention under Part V of the CYFSA. M.P. was at the home of S.P., and had been for about one month, when the police attended on October 23, 2023, to forcibly remove M.P. and bring the child to Ms. Lockman pursuant to an order obtained on the family court proceeding she had commenced.

[85] While it is possible to find Ms. Lockman also had care and custody of the child prior to intervention, the Federal Act’s priority of placement scheme requires further consideration of where the child is to be placed.

[86] The Federal Act, section 16, sets out the priority of placement which is to be read and interpreted with the preamble to that legislation along with the historical and colonialism context and experiences of Indigenous people enmeshed in child welfare matters. Colonization and other systemic factors have resulted in the devastating overrepresentation of Indigenous children in the child welfare system in Canada.

[87] Moreover, the CYFSA also sets out its considerations and commitments with respect to Indigenous children, families and communities in its preamble. It is well settled both pieces of legislation are remedial. The provincial and federal governments have only recently recognized the serious harms the child welfare system has wrought upon Indigenous communities, families and children. Reconciliation and recognition of the need to restore and support Indigenous communities and families in returning and retaining Indigenous children to their communities, cultures and families are paramount.

[88] I find Ms. Lockman is not included in the term family as defined under s. 1 of the Federal Act. In that section, a family member is one whom a child considers to be a close relative or whom the Indigenous community…considers to be a close relative.

[89] Here, the First Nation, and the father are clear they do not consider Ms. Lockman to be a close relative. She has no connection to the community and is not Indigenous. Although the child may have referred to Ms. Lockman as “mom”, this carries little meaning or weight in the context of the preamble of the Federal Act and the remedial nature of the legislation.

[90] Additionally, the priority of placement in s. 16 of the Federal Act does not favour placing the child with Ms. Lockman. S. 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.

[91] 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. (see paragraph 74 above) Courts must be mindful of the distinct differences between Indigenous and non-Indigenous placements when deciding child protection matters.

[92] The Federal Act s. 10(1) demands the best interests of Indigenous children be paramount while considering the importance of the child having an ongoing relationship to his or her Indigenous group, community…to preserve a child’s connection to his or her culture. (s. 10(2))

[93] Therefore, I find S.P. is the adult member of the child’s family contemplated in s. 16(2)(b) of the Federal Act. The parent, N.J., has not put himself forward as a placement under s. 16(2)(a), given his personal circumstances. The child’s biological mother is deceased. I do not find Ms. Lockman to be a parent, or a family member of the child. She could be considered as a placement under s. 16(2)(e) only, thereby placing Ms. Lockman below S.P. in the priority scheme. Ms. Lockman is not Indigenous and has no connection to GNFN. I did note, Ms. Lockman’s spouse is Indigenous, as are her adult children, but they are not parties to this matter. Further, they have no connection to GNFN.

[94] Pursuant to s. 10(3) of the Federal Act, the following best interests factors are to be considered:

[95] I find the child has not had sufficient cultural, linguistic, spiritual upbringing and heritage because of the previous placement with Ms. Lockman, which is not in keeping with the child’s best interests.

[96] The child was 11 years of age at the time of apprehension and has challenges with respect to ADHD, anxiety, speech and emotional regulation. The need for stability is important here, and I find moving the child back to Fort Frances, which is nearly 4 hours’ drive from GNFN, will jeopardize that stability. The First Nation’s and agency’s plans for providing services to support M.P.’s needs will have to be improved and maintained until the protection proceeding is concluded.

[97] The child has been enjoying a stronger relationship with the family, caregiver and community overall.

[98] It goes without saying preserving the child’s cultural identity and connections to the language and territory of GNFN is in the child’s best interests. I find such a connection is not feasible or likely if the child were to live in Fort Frances. GNFN has a unique history and features that are not the same as those First Nations in the Fort Frances area despite them all belonging to the Treaty Three territory. Taking a pan-Indigenous approach in such matters is tone deaf and ill advised. I find the Plan of Care of Ms. Lockman does not adequately address this factor and smacks of a “white saviour” attitude.

[99] The child’s views and preferences have been set out. I find them to be reasonable in the circumstances. The expressed views and preferences demonstrate to me the child has considered a compromise that allows Ms. Lockman to still have access with the child while keeping the child closer to GNFN and Kenora.

[100] The First Nation and the agency have noted the child will take part in GNFN events and cultural education.

[101] I have received no evidence about family violence occurring or affecting M.P. in this case. I do not need to consider this factor at this time.

[102] At the moment there are no other relevant legal proceedings or orders to be considered as the family court matter has been stayed.

[103] Given the findings of AAFS, and the position of the parties with respect to Ms. Lockman, I find it is in the best interests of the child to be placed in the temporary care and custody of S.P., subject to a supervision order.

[104] Furthermore, the family court application brought by Ms. Lockman demonstrates to the court she has no intention to support reunification. I have serious concerns the family court application being brought against an Indigenous father regarding his child indicates to me Ms. Lockman has not taken the child’s cultural continuity and substantial equality into consideration in this motion. I also have concerns regarding her high handed, and at times, callous approach, to this family and community from what I have seen in the affidavits filed.

[105] Therefore, I order, on a temporary basis, the following:

1. The child, M.P., as identified in the materials filed, shall be placed in the temporary care and custody of S.P., which placement shall be supervised by AAFS pursuant to s. 94(2)(b) of the CYFSA and s. 16(2)(b) of the Federal Act for a period of 6 months. The following terms and conditions apply:
2. AAFS and GNFN shall supervise the placement with S.P. and ensure all necessary medical, dental, emotional, cultural, safety and educational supports and services are being provided.
3. A safety plan shall be put in place no later than August 15, 2024.
4. In order to support S.P. and M.P., parenting education, information and training in navigating ADHD shall be provided to S.P. by AAFS.
5. S.P. shall cooperate with AAFS and allow home visits, announced and unannounced.
6. S.P. shall allow M.P. to have private meetings with AAFS workers in the home or at school.
7. S.P. and N.J. shall sign any authorizations or consents required by AAFS to access information about M.P.’s health, education, or therapeutic care.
8. S.P. shall ensure M.P. takes all medication as prescribed and will keep prescriptions up to date.
9. AAFS and GNFN shall liaise with S.P. and N.J. to evaluate and discuss M.P.’s cultural and community connections on a monthly basis.
10. The father, N.J., shall have reasonable, regular access to M.P. as arranged by S.P., the AAFS or GNFN.
11. My order of March 13, 2024, is vacated and replaced as follows:
12. Ms. Lockman shall have unsupervised access to M.P. up to two Saturdays per month in Kenora. Access will be one overnight at a Kenora hotel, subject to the wishes and best interests of M.P.. The AAFS shall be responsible for arranging transportation of M.P. to Kenora and back to GNFN. Ms. Lockman shall bear the other costs of the access.
13. M.P. shall be provided a schedule of visits no less than 14 days in advance.
14. Ms. Lockman shall have telephone or video call access to M.P. at a minimum 1 day per week, subject to the wishes and best interests of M.P.. Such access shall take place before 8 pm.
15. Ms. Lockman shall provide to AAFS any identification of M.P. she has in her possession, such as health card, status card and/or passport forthwith.
16. M.P. shall not be exposed to adult issues, conversations, or conflict, especially with respect to the child protection matter.
17. The parties and caregiver, S.P., shall not speak in disparaging terms of any other party in the presence or earshot of M.P.
18. There shall be no order as to costs.

[106] I thank all counsel for their thorough work on this file.

[107] This matter can be set down for a settlement conference on the next appearance.

Released: August 6, 2024 Signed: Justice E. J. Baxter