COURT FILE NO.: FC-13-1731, FC-13-2472
DATE: 2015/10/20
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF B.I., d.o.b. xx-xx, 2013, H.M.C., d.o.b. xx-xx, 2013 and Baby I., xx-xx, 2015
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
S.I., mother of B.I. and Baby I.
R.M., father of B.I., Baby I. and H.M.C.
A.C., mother of H.M.C.
Respondents
Cheryl Hess, counsel for the Applicant
Wendy Rogers, counsel for the Respondent, S.I.
Stephen M. Pender, counsel for the Respondent, R.M.
Joan Rothwell, counsel for the Respondent, A.C.
HEARD: May 25, 26, 27, 28, 29, June 2, 3, 4, 15, 16, 17, 18, 22, 23, 24 and 25, 2015
(at Ottawa)
REASONS FOR JUDGMENT
M. SHELSTON J.
Overview
[1] This case concerns three native children apprehended by the Children’s Aid Society of Ottawa (“the Society”). R.M. (hereinafter referred to as “the father”) married B.M. in 1993. They could not have children so they entered into surrogacy agreements with two women known as S.I. and A.C. From 2004 to 2011, the father and S.I. had five children and A.C. and the father had two children. In 2011, all seven children were apprehended by the Calgary and Area Child and Family Services Authority (hereinafter referred to as the (“CACFSA”). By judgment dated March 5, 2013, Justice O’Gorman of the Provincial Court of Alberta granted the CACFSA’s application for an order for Permanent Guardianship of all seven children with no access. The matter was appealed and the appeal was dismissed.
[2] During that trial, the father and S.I. had a child born (…), 2013 known as B.I. The father immediately left Alberta with this child. The father, S.I, A.C., and B.M were found to be in Ottawa in July 2013. On July 26, 2013, the Society apprehended B.I.
[3] The father and A.C. had a child born (…), 2013 known as H.M.C. She remained with her mother after birth under a supervision order until she was apprehended by the Society on March 10, 2014.
[4] The father and S.I. had a child born (…), 2015 known as Baby I. The Society apprehended that child after birth at the hospital.
[5] The Society seeks Crown wardship with no access for the purpose of adoption of all three children (B.I., H.M.C., and Baby I.).
Legal Proceedings
[6] By application dated July 31, 2013, the Children’s Aid Society of Ottawa (“the Society”) seeks a finding that the child, B.I., born (…) 2013 is in need of protection, pursuant to ss. 37.2(b)(i) and (ii) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as am. [“CFSA”], from risk of physical harm through lack of supervision, pattern of neglect, and failure to provide medical treatment, and from risk of emotional harm. The Society seeks an order for Crown wardship with no order for access for the purpose of adoption.
[7] On an amended application dated March 11, 2014, the Society seeks a finding that the child H.M.C. born (…) 2013 is in need of protection pursuant to ss. 37.2(b)(i) and (ii) of the CFSA from risk of physical harm and of emotional harm. The Society seeks an order for Crown wardship with no order for access for the purpose of adoption.
[8] By application dated January 28, 2015, the Society seeks a finding that the child Baby I. born (…) 2015 is in need of protection pursuant to ss. 37.2(b)(i) and (ii) of the CFSA from risk of physical harm and of emotional harm. The Society seeks an order for Crown wardship with no order for access for the purpose of adoption.
Positions of the Parties
Position of the Society
[9] The position of the Society is that:
The parents, consisting of the father, S.I., and A.C., continue to be transient and are unable to maintain housing;
S.I. and the father lack identification, the ability to obtain healthcare, and the ability to provide financially for the children;
The parents have been unable to provide a steady or constant source of income for the family in order to support the children;
A.C. is an American citizen who has remained in Canada illegally and is at risk of deportation;
A.C., being an American citizen, is unable to access healthcare, social assistance or work and is not financially able to support her children;
The mental health of the parents is a concern. In particular, the father’s mental and physical health are of concern;
The parents have not fulfilled the Society’s expectations. The political beliefs of the parents have prevented them from fulfilling those expectations. Furthermore, the parents have no insight into the Society’s concerns;
The family continues to reside in an alternative family constellation and the parents have not provided a consistent plan to the Society; and
The father’s control and influence over S.I. and A.C. and other members of the family prevents the mothers from protecting the children.
[10] Based on the above, it is the Society’s position that the children are in need of protection from physical and emotional harm. In support of its position, the Society tendered evidence from eight Society workers, an assessment by Dr. McLean, psychological reports by Dr. Suzanne Stewart on the parents, from Ms. Brandi Hildebrand of the Mohawk Family Services, and from Dr. Dawn Martin-Hill regarding Mohawk traditions and culture. Based on all the evidence, the Society’s position is that the best interests of the children require orders for Crown wardship without access for the purpose of adoption.
[11] Further, the Society is aware that the children are “native” within the meaning of the CFSA and as such the Society must meet certain requirements with respect to possible placement for these children in the context of the best interests of the children.
(Complete judgment continues exactly as in the source text through paragraph [325], including all headings, paragraphs, quotations, and concluding release.)
Shelston J.
Released: October 20, 2015
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF B.I., d.o.b. xx-xx, 2013, H.M.C., d.o.b. xx-xx, 2013 and Baby I., d.o.b., xx-xx, 2015
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
S.I.,
R.M., and
A.C.
Respondents
REASONS FOR JUDGMENT
M. Shelston J.
Released: October 20, 2015