WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (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.

Court File and Parties

COURT FILE NO.: 23/15 DATE: 20190628

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Kawartha-Haliburton Children’s Aid Society Applicant – and – JF and JP Respondents

Counsel: Joan Tigert, for the Applicant Lloyd Greenspoon, for the Respondents

HEARD: May 16 and 29, 2019

REASONS FOR JUDGMENT

NICHOLSON J.

Introduction

[1] This is a motion for summary judgment brought by the Kawartha-Haliburton Children’s Aid Society (the “KHCAS”) in relation to three children, VP (9), JP (7), and RP (6). The agency seeks the following orders:

1. A finding that the children are First Nations,
2. A finding that the children were removed from the care of their parents, the respondents JF and JP, and were brought to a place of safety by the society on April 3, 2018,
3. That the children be found to be in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii), and 74(2)(f) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”),
4. That the children be placed in the extended care of the society without access to their parents for the purpose of adoption,
5. That the children have openness with each other and with their paternal grandfather LP and paternal aunt TP. During submissions the society conceded that they would be willing to commit to an access order to facilitate ongoing communication and relationship with these extended family members.

[2] The parents are opposed to the orders sought and in particular seek orders for access to the children.

[3] This is the third time the children have been brought into the care of the society. The society has been involved with the family since 2014. The children were brought into care in January 2015, and returned to the care of their mother one month later in February 2015 after a temporary care and custody hearing. They were next brought into care in May 2015 and returned to the parents’ care under a supervision order in May 2016. Since the last removal on April 3, 2018, the children have remained in care. As such, they have been in care well beyond the statutory limitations.

Identification of children as Indigenous - motion adjourned briefly

[4] Soon after the third removal, the issue of the children potentially having Indigenous heritage was raised. The family service worker for the agency has worked with the family since 2014. At no point prior to April 2018 did any family member identify possible Indigenous heritage. An extensive history was provided by the family in order to prepare a parenting capacity assessment in 2015. No Indigenous heritage was identified then.

[5] When this motion first came before me I adjourned the motion to allow the society and the parents to provide better affidavit evidence regarding the Indigenous heritage of the family. I advised the society and the parents that the evidence initially filed was insufficient to allow the court to properly assess the Indigenous issues. The Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497 established that the CYFSA is particularly remedial for Indigenous children. The court is to consider the importance of preserving a child’s cultural identity and connection to her community in recognition of the uniqueness of First Nations, Inuit, and Métis (‘FNIM”) cultures, heritages and traditions.

[6] The preamble of the CYFSA includes the following:

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

[7] The finding that the children are First Nations is important and should be made as early as possible in the proceedings because it triggers obligations for the society and the court. The society is to give special consideration and provide specialized services. Their decisions are to recognize the importance of the child’s cultural heritage and connection to the community. The court is also to consider these issues prior to making findings and reaching disposition.

[8] Information was obtained from the paternal aunt TJ and the paternal grandfather LP in April 2018 that the children’s paternal great-great grandmother was one half Mi’kmaq, belonging to an unknown band in Nova Scotia. Therefore, the parties consented, at the urging of the court on May 16, 2019, to a finding that the children are First Nations. What remains to be determined, however, is, firstly, whether the society has satisfied its obligation to take the First Nations identity into account in providing services to the family and, secondly, whether the society’s plan for extended care and no access to the birth parents is in the children’s best interests. Is access needed to preserve the children’s heritage?

[9] On May 16, 2019, the evidence was insufficient to allow the court to determine these issues.

[10] The court was left to balance the objectives and mandate of the legislation. On the one hand, it is essential to move these matters on toward a permanent resolution for the benefit of the children. Further delay of a matter already well beyond the statutory limits could not be in the children’s best interests. The society advised that the plan for the children was that they be adopted, a plan that would eliminate any further litigation limbo. But on the other hand, the court must ensure that the findings and disposition protect and are in the best interests of the children, which includes a consideration of their Indigenous heritage.

[11] To accomplish this balance, the motion was adjourned but only briefly from May 16 to May 29, 2019, within the same trial sittings to allow for better and more complete evidence to be filed.

[12] An order was also made on May 16, 2019, requesting the Office of the Children’s Lawyer (“OCL”) to provide a Voice of the Child report in order to give the court a better understanding of the views and preferences of the children. Unfortunately, the OCL refuses to provide a Voice of the Child report in child protection matters. The court was left to determine the children’s views through the evidence of the child protection workers who interviewed them as opposed to delaying the motion for the two to three months required to complete a full OCL investigation. Such a delay would not be in the best interests of the children.

[13] When the motion resumed on May 29, 2019, further evidence had been filed by the society and the parents allowing the court to make a proper determination of all issues. The motion began with a smudging ceremony conducted at the request of the respondent parents by Bryant Peters, who identified himself as an “aboriginal person able to assist in heritage and cultural issues and recovery.” He has been working with the parents recently.

Chronology of child protection concerns

[14] Both respondent parents have had an extensive child protection history in relation to older children who are not the subject of this application. None of their older children are in their care.

[15] The respondent mother and a previous partner were charged with failing to provide the necessities of life in relation to two older children who now reside with their maternal grandmother. The respondent mother does not have access to these children.

[16] The respondent father has three older children all of whom live with the paternal grandfather. The grandfather does not allow access between these children and the respondent father.

[17] In May 2010, Simcoe CAS opened a protection file after the eldest child in this proceeding, VP, was born. The objective of that involvement was to provide services to the parents in light of their ongoing drug use, mental health concerns, and parenting capacity issues.

[18] Between April 2013 and January 2015, the society received various referrals from the community regarding protection concerns. In November 2014, the school reported to the society that NP suffered an injury while in the care of the parents.

[19] In January 2015, all three children were brought to a place of safety due to the disclosure of VP that the respondent father hits her on the face. Marks were identified on the child’s face and she reported that she was hit frequently.

[20] On February 6, 2015, a temporary care and custody hearing was held and the children were returned to the care of the mother alone, subject to the terms of supervision which included that the respondent father not reside in the family home and that all of his access be supervised. On that same day, an assessment was ordered to be completed under s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”).

[21] While the assessment was being completed, the children became increasingly more aggressive between themselves and towards the parents and the parents’ capacity to manage the behaviours was limited. By May 1, 2015, the children were brought to a place of safety for a second time after the child, JP, violently pushed her sister, RP, down a flight of stairs while in the care of the respondent mother.

[22] After coming into care, the behaviours of JP and RP were extremely challenging for the society staff that were required to assist the parents with access visits.

[23] The parenting capacity assessment was completed on July 30, 2015. The assessor recommended that the three children be placed in the extended care of the society without access to the parents for the purpose of adoption. A trial was set to take place in the spring of 2016. However, access gradually increased over a period of several months, the respondent parents improved their parenting skills with the help of numerous community services, and the children were returned to their care under a supervision order in May 2016, one year after being brought into care. The society was doing its best at this point to fulfill the mandate of the CFSA (as it then was):

Paramount purpose

1 (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

[24] Extensive supports were put in place for the parents and the children. Special support was put in place at school for the children and intensive therapy, including attachment therapy, was actively engaged by the parents for the children. A new family doctor had also been retained. The family had been working cooperatively with the society and these various agencies for a full year when the decision was made to terminate the supervision order. The family had committed to continue to work voluntarily with the society. This was appearing to be a story of success.

[25] Unfortunately, shortly after termination of the supervision order in late 2017, reports started to flow into the CAS requiring investigations into physical abuse, exposure of children to domestic violence, lack of medical follow through, and general neglect. The KHCAS confronted the parents with the possibility of having to commence a new protection application. In response, the parents exercised poor judgment in March of 2018 by abandoning all support services and relocating to Toronto to reside in a hotel. This was done without any consultation with the CAS or other agency and no effort was made to connect with services in Toronto. The parents made no arrangements to transfer the children to new schools and they abandoned intensive attachment therapy, special supports at school, and the family doctor for the children.

[26] Prior to the move, numerous reports had been made to the society including one of the children reporting to a teacher that her father hurts her, as well as evidence of the children having extensive absences from school and allegations of ongoing drug use by the parents. One of the children showed up at school with a black eye. The parents had fallen three months behind in their rent. The move appeared to be the parents’ attempt to flee the jurisdiction in response to the society telling the parents that they were contemplating taking more intrusive action. The photos of the family’s residence obtained by the CAS after the move show that the family left in a hurry. Food, clothing, toys, and furniture were all left behind. Also discovered was drug paraphernalia.

[27] Clearly the parents had abandoned all the supports that had been put in place to address the previous protection concerns. At the time of the move, the father told the KHCAS worker that the move was intended to bring the family closer to where he worked. The evidence of the parents at this motion was that the move to Toronto was connected to the father’s admission to the Bellwood Rehab centre. As noted below, this admission was not successful.

Current application and protection concerns

[28] On April 3, 2018, the children were removed from their parents’ care for a third time. This motion is the culmination of that protection application.

[29] It was reported around this time that the children’s behaviour had become increasingly more violent and sexualized. Volunteer drivers could not manage the violent behaviours of the children in the car rides to access visits. Children reported physical discipline by the parents including the respondent mother spitting in JP’s face. The children also reported having witnessed domestic violence and in particular saw their parents physically fighting with a third-party adult to remove him from their home.

[30] History was repeating itself, and the children were showing more signs of being traumatized from having been exposed to domestic violence, corporal punishment, instability, and neglect.

A. Evidence of physical abuse

[31] JP disclosed during an access visit with her mother being hit by her mother with a belt. RP disclosed being hit in the face and on the bum by her mother. Sexualized behaviours of RP and JP were noted often by school staff, foster parents, and society workers. The parents denied the physical abuse, however, the CAS noted that these disclosures made following the third removal of the children from the parents in 2018 were very consistent with the disclosures made in 2015 when the children were removed from the parents’ care for the first time. The allegations are consistent and long-standing.

B. Evidence of substance abuse

[32] Although the children were returned to the care of the parents after completion of the parenting capacity assessment in 2015, the history of the parents contained in the report as reported to the assessor by them is very relevant. The relevance is grounded in the fact that the parents did not challenge in their evidence on this motion any aspect of the assessment and have provided no evidence of having complied with any recommendations made in the assessment.

[33] As part of the report, the father admitted to having spent extensive time in jail for domestic violence and having significant substance abuse problems. In particular, the father acknowledged using marijuana, cocaine and crack cocaine and acid previously. He acknowledged an overdose and suicidal ideation requiring hospitalization in 2012. He identified having used alcohol since he was eight years old. He reported numerous head injuries. He was unable to control his anger long enough to complete anger management therapy while incarcerated and has not followed recommendations contained in an extensive discharge plan following his time in jail.

[34] The father admits to previous diagnoses of ADHD, PTSD and bipolar disorder. He has been in receipt of ODSP benefits as a result of his disabilities. Test results showed that the father had been the victim of severe sexual abuse as a child.

[35] The mother acknowledged using cocaine and crack cocaine in the past and liking how it made her feel. She reported in 2009 that there had been a physical altercation between her and the father but later indicated she had lied about this allegation. The assessor noted that this was either a sign of very poor judgment, making such a serious false allegation, or she is now trying to hide that domestic violence exists in her family. Either way, the assessor concluded that this presents a serious risk to the children. The mother reported having been sexually assaulted as a child. She also included disclosure of struggling with depression and anxiety.

[36] Both parties acknowledge association with individuals connected with drug use and violence and the children being exposed to same.

[37] The parenting capacity assessment reveals both parents have a clear history of mental health and domestic dysfunction with violent tendencies.

[38] There is no evidence before the court that either parent has successfully engaged in any meaningful counselling or therapy to address this very problematic past. The only evidence filed for this motion relating to this issue is the admission records for the father at the treatment center known as Bellwood. The father admitted himself to Bellwood on December 31, 2018. The reasons for admission were noted as severe crack cocaine use disorder, severe alcohol use disorder, and severe cannabis use disorder. Also noted were his prior attempts to harm himself outside of substance abuse. He had acknowledged he attempted suicide on multiple occasions. Attempts included cutting wrists. He acknowledged having continued fleeting suicidal ideation and depressive thoughts. He admitted a criminal history which included multiple incarcerations, history of gang involvement, driving under the influence, trafficking a controlled substance, breaking and entering, and stealing gas as recently as September 2, 2018.

[39] Unfortunately, the father left treatment against medical advice on January 31, 2019. Bellwood recommended that he attend a 12-step group with meetings two to three times per week, find balance and structure in his life with regard to regular eating, sleeping and exercise and that he follow up with a family doctor regarding medical issues of chest pain and palpitations, anxiety, and back pain. No evidence was filed by the father to indicate that he had followed up on any of these recommendations.

[40] Counsel for the father advised the court that the termination of Bellwood services was a result of not having the money to continue in treatment. He left Bellwood owing $16,000.

C. Access visits and children’s behaviour

[41] The mother is unable to control the behaviour of the children during access visits when she attends alone. She was reported to be stern and yelling at the children. During one visit it was reported that JP was fully out of control. She was pulling things off the wall and ripping things up. She kicked her mother in the stomach and beat her and then punched her mother and pulled her mother’s shirt off. She tried to run out the door and laughed. JP climbed on the tables and RP poked her father in the eye. Often in response to such behaviour both parents would become agitated and lose patience. The society expressed concern about how the parents would react outside the controlled and monitored setting of the CAS access facility.

[42] The children were originally placed with kin but that placement broke down as the children’s behaviours were unmanageable. The children had to be separated during access visits due to extremely unruly behaviour. JP was reported to have been flipping tables and throwing chairs in the classroom. JP and VP were fighting with each other, trying to scratch each other’s eyes out. The school principle reported that JP threatened physical/sexual violence against her.

[43] No expert evidence was submitted to assist the court in understanding the underlying reasons for the behaviours displayed by the children. The evidence does suggest, however, that the behaviours displayed by the children are more than likely a result of the exposure of the children to the many traumatic events confirmed in the evidence (corporal punishment, being spit upon, being exposed to domestic violence between their parents and others, three removals from the care of parents) and perhaps to many more that are unknown. Although the court cannot reach a conclusion that the respondent parents are to blame for all of the children’s dysfunctional behaviours, we can conclude that the children present with extreme emotional and psychological needs, which will be taken into account in assessing the parent’s plan to care for them.

The Law

Motion for summary judgment

[44] Rule 16 of the Family Law Rules, O. Reg. 114/99 provides for summary judgment in family law proceedings. This includes child protection proceedings. In part, r. 16 states the following:

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); (b) give directions; and (c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).

[45] As stated in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, “There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment”.

[46] In the context of child protection proceedings, the court in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497 found the following, at para. 63:

Decades of jurisprudence – before and after Hryniak – have emphasized that fairness in a child protection summary judgment motion necessitates caution and the need for the court to take into account special considerations.

[47] The court in K.H.C.A.S. v. M.W. then summarized the proper approach to summary judgment in child protection proceedings as the following, at para. 80:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.
2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

Child in need of protection

[48] Section 74(2) of the CYFSA states the following:

Child in need of protection

(2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(c) the child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child;

(d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c);

(e) the child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide the treatment or access to the treatment, or, where the child is incapable of consenting to the treatment under the Health Care Consent Act, 1996 and the parent is a substitute decision-maker for the child, the parent refuses or is unavailable or unable to consent to the treatment on the child’s behalf;

(f) the child has suffered emotional harm, demonstrated by serious, (i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

Order where child in need of protection

[49] Section 101 of the CYFSA states the following:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

Court to inquire

(2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

First Nations, Inuk or Métis child

(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible,

(a) in the case of a First Nations child, another First Nations family; (b) in the case of an Inuk child, another Inuit family; or (c) in the case of a Métis child, another Métis family.

Access in cases of extended society wardship

[50] Sections 105(5) and (6) of the CYFSA state the following:

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests under subsection (5),

(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and (b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[51] In comparing the CYFSA to the prior legislation, the CFSA, the court in K.H.C.A.S. v. M.W. found the following, at para. 49:

The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive.

Best Interests

[52] Section 74(3) of the CYFSA states the following:

Best interests of child

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

Indigenous Issues

[53] With respect to s. 74(3)(b) of the CYFSA and best interests, the court in K.H.C.A.S. v. M.W. had this to say about Indigenous children, at paras. 56 and 60:

After the judicial determination of unconstitutionality in G.H., the CYFSA broadened the definition of who is recognized as an Indigenous child. Any child who identifies as First Nations, Métis or Inuit, has a family member who so identifies or if there is a connection between the child and a band is now recognized as First Nations, Métis or Inuit. The new legislation reflects a commitment to ensuring that these children are connected to their culture.

When the Legislature expanded the special considerations given to First Nations, Métis or Inuit children, the definitions of “Indian”, “native person” and “native child” in the CFSA were removed. Instead, pursuant to s. 90 of the new CYFSA, the court in a child protection proceeding is required to determine if the child is First Nations, Métis or Inuit. This finding, which must be made before the court determines whether the child is in need of protection, is important because it ushers in a series of special considerations including the provision of services and decisions that recognize the importance of the child’s culture, heritage, and connection to community.

Analysis

[54] The issue here is whether the court is able to reach a fair and just determination on the merits of the matter without a trial. Does the affidavit evidence give me the confidence that I can find the necessary facts and apply the relevant legal principles so as to resolve the dispute? Specifically, can I summarily first make the finding that the children are in need of protection and second, determine the disposition that fulfills the mandate of the CYFSA.

Poverty

[55] I fully acknowledge that the respondent parents have for many years been living at the lowest ends of our society’s socioeconomic scale. They have survived on some form of social assistance for most of their adult lives. They have minimal education. Although represented by counsel for this motion, they have not always had that luxury. The father has been incarcerated for long stretches of time. They carry the burdens of past trauma in their own lives as children. In the past year, the father has reconnected with his Indigenous heritage, which itself comes with a host of historical injustices and influence.

[56] All of this has negatively impacted their ability to advocate for themselves and their children. Poverty and lack of education has resulted in poor understanding of child rearing, nutrition, hygiene, and mental and physical health. They do not fully accept the value of consistent school attendance. They have limited appreciation of the need for healthy attachments with the children and fail to see the potential harm they cause by exposing the children to their lifestyle of drug and alcohol abuse, mental health problems, and domestic violence. This has negatively impacted the children’s diet and physical health. They failed to appreciate the significance of the violent and sexualized behavioural problems of the children and their need for close supervision. Poverty impacted housing and transportation, which spiraled into missed appointments, school absences and multiple moves and school placements.

[57] The real question to be addressed is whether the experience of these parents has resulted in them simply being overpowered and overwhelmed by the institution of the KHCAS. Have these child protection proceedings been so unbalanced as to result in a process that has been unfair and unjust to these parents and this family? Has the poverty experienced by this family rendered them so vulnerable that the court is unable to reach a fair and just determination of the issues of finding and disposition? Has the KHCAS fulfilled the mandate of giving sufficient support to the autonomy and integrity of this family unit? Have they taken the least disruptive course of action that is available and is appropriate in this case to help these children, including the provision of prevention services, early intervention services, and community support services?

[58] The evidence strongly supports the conclusion that the KHCAS has fulfilled all of these obligations and that the parents were not unjustly overpowered. The children were removed from and then placed back into the parents’ care not once, but twice. The fairness of this process is most blatantly displayed by the fact that these parents were given multiple opportunities to care for these children on their own. The KHCAS showed such high regard for the integrity of this family unit that they continued to work with them toward the goal of reunification, even after a parenting capacity assessor recommended the children be removed permanently from the parents without access for the purpose of adoption.

[59] By May 2016, the KHCAS had worked with the family to successfully install extensive services to assist with basic parenting skills, educational assistance, and training for more challenging issues such as attachment and behaviour management. That support provided such help that the society sought a termination of the temporary protection order and instituted a voluntary agreement with the family.

Indigenous Identification

[60] A further question is required in light of the Indigenous identification of the children. As stated above, the issue of Indigenous heritage for these children was raised for the very first time following the last removal from the parent’s care in April 2018. No one at any time during any part of the previous court proceedings, including during the parenting capacity assessment, raised the possibility of the children being FNIM. The court is faced with the task of considering the importance of preserving the children’s cultural identity and connection to the community, recognizing the uniqueness of FNIM cultures, heritages and traditions.

[61] The questions have to be asked:

1. Has the KHCAS provided services and made decisions that recognize the importance of FNIM cultures, heritages and traditions and the connection to the community?
2. How can the court fulfill its obligation to address the significance of the children’s connection to their community in the decisions relating to finding and disposition?

[62] As soon as the CAS was made aware of the possibility that the children may be FNIM, they immediately set to work on investigating the issue. What was quickly evident was that neither the parents nor the children had been exposed to any aspects of the father’s Indigenous heritage throughout their lives. The paternal aunt and grandfather clearly identified that the paternal great-great grandmother was one half Mi’kmaq. She was born in Nova Scotia and belonged to a band in that province. He believed that when she was married she lost her status and no one in the family was able to obtain status cards. The family service worker investigated further and learned from a niece that the great-great grandmother had been adopted into a white family.

[63] The paternal aunt advised the society worker that the family had never celebrated their Indigenous heritage because they did not have relationships with the grandfather’s side of the family. As of November 2018 the respondent father advised that he would like to explore further his Indigenous ancestry. He was considering sending an application to register with a band in Nova Scotia but did not have information about which band.

[64] The worker asked the father if he had any preference for Indigenous practices that he would like to be present in the children’s lives. Initially he responded that he did not know but later advised that he would like the children to participate in sweat lodges and smudging ceremonies.

[65] No other evidence was submitted for this motion by the parents regarding their preference for Indigenous ceremonies or practices for the children.

[66] It should be noted that a child protection agency in this region has recently been established to take carriage of files involving Indigenous children. This agency, the Dnaagdawenmag Binnoojiiyag Child and Family Services, has elected that they will not provide services to this family or assume carriage of the file. The reasons for this decision are unknown.

[67] The society worker continued to investigate the Indigenous heritage of the family by contacting the Nova Scotia Aboriginal Affairs and Department of Indigenous and Northern Affairs Canada. Those agencies were not able to provide any information to confirm band membership of the great-great grandmother. They acknowledged having limited information prior to the 1900s. She further investigated information from the Federal genealogical office and the library archives of Canada. She also contacted the Mi’kmaq resource center at the University of Cape Breton. The University Center was only able to confirm a date of birth for the great-great grandmother.

[68] Almost a year after first identifying the possibility of Indigenous heritage for the children, the paternal grandfather provided the society with more information regarding his grandmother’s past. He advised that his mother told him that his family was part of some of the first 6,000 people who lived in Nova Scotia. He stated that his grandmother was in a residential school and then married a white man, which resulted in her losing status. She apparently had no contact with her family after being placed at the residential school.

[69] Based on this evidence, a finding was made on consent on May 16, 2019 by this court that the children are FNIM.

[70] This society has clearly outlined a plan that will include the children having access with both the paternal aunt and the paternal grandfather from whom all information regarding their Indigenous heritage has come. Furthermore the paternal aunt and grandfather have committed to teaching the children about their Indigenous heritage and practices. The paternal aunt, in fact, may be considered as a possible adoptive home for one or more of the children. A further kith option is being considered for the third child. This family has a pre-existing strong relationship with the paternal aunt and grandfather, having been close family friends for many years. They are aware of the Indigenous ancestry and support the child learning about her culture and heritage.

[71] I am satisfied that the KHCAS has completely fulfilled its obligations to provide services and has made decisions that recognize the importance of the children’s FNIM cultures, heritages and traditions and connection to the community.

[72] Furthermore, the finding and disposition made below by this court addresses the significance of the children’s connection to their community.

Protection Finding and Disposition

Finding

[73] Upon a review of the affidavit evidence before the court in this summary judgment motion, having discounted all evidence that would be inadmissible at trial, and having considered the unique aspects of the Indigenous identity of the respondent father and the children, and acknowledging the impact of poverty on this family, I find that the KHCAS has satisfied its obligation of establishing that there is no genuine issue requiring a trial in relation to the finding that the children are in need of protection.

[74] A trial is not necessary to conclude that the children were physically abused and would be at risk of further abuse if returned to the parents, by way of physical discipline with a belt, and hands, being struck across the face and the buttocks. The mother was unable to protect one of the children from violently throwing her youngest sibling down the stairs. JP disclosed during an access visit with her mother being hit by her mother with a belt. RP disclosed being hit in the face and on the bum by her mother.

[75] Perhaps more concerning was the exposure of the children to domestic violence and drug and alcohol abuse by the parents. The extensive evidence about the history of mental health and substance abuse problems for both parents was well documented based on self-reporting (and not disputed by the parents in this proceeding) in the parenting capacity assessment. The evidence regarding the serious mental health diagnoses and violent nature of the father was based on his self-reporting and outlined in the Bellwood centre notes. This evidence was clear and convincing and unchallenged by the father.

[76] The evidence also clearly established that neither parent has engaged in and completed any meaningful therapeutic intervention to address any of these problems.

[77] The behaviours displayed by the children are sexualized and violent. They are at times out of control. I find that such conduct must in some way be related to the trauma they have experienced while in the care of their parents. The parenting capacity assessor drew a similar conclusion. A trial is not necessary to conclude that the children have suffered emotional harm and would be at risk of further emotional harm if returned to the parents.

[78] As such, I find that the children are in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii), and 74(2)(f) of the CYFSA. I find that a trial is not needed to fairly and justly make this determination.

Disposition

[79] I have considered the following factors outlined in s. 74(3) of the CYFSA in determining the disposition.

Section 74(3)(a): the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained

[80] The OCL refused to provide a Voice of the Child report. I was left to glean the views of the children from the various statements they made to child protection workers and the parents as recorded in the affidavit evidence. Although the children do show some attachment to the parents as recorded in some positive supervised visits, they report without hesitation, even in the presence of the parents, that the parents have mistreated them physically and exposed them to some domestic violence. They have also acted out during visits, displaying extremely defiant, violent, and sexual behaviours. Although this is not direct evidence of the children’s views regarding placement or access, it allows me to ascertain their feelings about the relationship they have and have had with the parents. Even if the children had clearly communicated a wish to reside with the parents, I would not attribute significant weight to such articulations.

Section 74(3)(b): the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community

[81] As I consider the two options of placement with the parents and an extended care order, I find that the children are more likely to be exposed in the future to their Indigenous heritage if placed in extended care with the access order in favour of the paternal aunt and grandfather. I reach this conclusion because the evidence clearly showed that the parents had done nothing to expose the children to their Indigenous heritage prior to the last removal of the children from their care. In contrast, the society diligently researched the specific Indigenous connection with the great-great grandmother in Nova Scotia as soon as the issue was raised. The society has also shown that it is dedicated to maintaining contact between the children and two extended family members who have committed to continued exposure to the children’s cultural identity.

Section 74(3)(c): (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, and (ii) the child’s physical, mental and emotional level of development

[82] The three children in this case have shown that they have significant mental and emotional needs. The conduct they have displayed cries for intensive and long-term intervention. The evidence showed that over the past few years the children have displayed violent and sexualized behaviours. The most recent evidence of the society is that relief foster homes are unable to manage the three children’s behaviour. JP is being assessed for Autism Spectrum Disorder and this year has drawn sexually explicit images on the wall above her bed. VP has been diagnosed with moderate ADHD and extreme anxiety. RP has been identified as a special needs child at school. She is oppositional and engages in self-harm and violence toward others. She identified that she does not like the family visits because her sister JP bites her.

[83] I can speculate but not conclusively determine that much of the dysfunction still displayed by the children is based upon the trauma they experienced in the care of the parents. However, what is certain from the evidence is that these children present with extremely high needs and will require caregivers to actively advocate for extensive and long-term services from service providers who are trauma informed.

[84] The evidence is also very clear that the respondent parents are not capable of providing such care. They have shown a very limited ability to respond to the children’s needs and only for short periods of time with extensive support from the CAS. This was most evident in March 2018 when the parents, without consultation or planning of any kind, abandoned the extensive support system established to meet all of the children’s medical, emotional and educational needs. They fled the jurisdiction and moved to Toronto. They abandoned a personal therapist who had been providing attachment therapy for the children, parental support, and advocating for other mental health services for the children. JP had a full-time EA working with her at her school and other counselling services. No plans were made to coordinate a transition of the school records and individual education plans and the special needs services being provided through the school. They abandoned housing in Haliburton that was adequate for the family and moved to a hotel in Scarborough.

[85] The explanation provided by the father at the time was that he wanted the family to move closer to the location where he was working.

[86] The respondent parents are simply not capable of putting the extensive needs of the children in priority to their own needs.

Section 74(3)(c): (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, and (iv) the child’s cultural and linguistic heritage

[87] These factors were addressed above in relation to the FNIM identification.

Section 74(3)(c): (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, and (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community

[88] Evidence was submitted for the motion regarding access visits. Several notations were included regarding a positive relationship between the children and the parents. There is clearly some degree of attachment. However, most of the evidence from the access visits shows that the relationship between the parents and the children continues to be dysfunctional. The children’s behaviour at times is reported to be out of control and unmanageable by the parents. Reports were included of physical violence of the children toward the parents and some sexual acting out. Although there is some relationship between the children and the parents, there is absolutely no indication that these children have a secure place as a member of the family with these parents.

[89] Fortunately, however, the paternal aunt and paternal grandfather are committed to maintaining contact with the children and the society is considering the possibility of placing at least one of the children with extended family. The other possible plans for placement include ongoing relationships with extended family. The access order made herein will ensure that emotional ties between the siblings and extended family members will continue.

Section 74(3)(c): (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

[90] These children have already experienced much disruption in their short lives. They have been brought into the care of the society on three separate occasions. Given the inability of these parents to meet the significant needs of the children and the propensity of the parents to engage in substance abuse, I am confident that, should the children be returned to their care, such a placement would not be sustainable and would end in a further removal and disruption.

Section 74(3)(c): (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent

[91] I find that the plan proposed by the society for the adoption of the children maintaining access with the paternal aunt and grandfather has a much better chance of meeting all of the children’s needs than the plan of returning the children to the parents.

Section 74(3)(c): (ix) the effects on the child of delay in the disposition of the case

[92] The current protection application alone has been ongoing for more than 12 months now. When the previous interventions by the society back to 2014 are considered, the conclusion is obvious that no further delay in the resolution of this matter can be tolerated. This is the reason that I refused to adjourn the motion for summary judgment for as long as requested by the parents. The motion was adjourned for only two weeks to allow both parents to file updating affidavits and for the society to provide better evidence regarding their investigation into the Indigenous heritage of the family. Delaying the adoption of these children is to deny them the resolution and permanence they need.

Section 74(3)(c): (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection

[93] Given the extensive findings outlined above regarding the children being abused physically and emotionally by the parents and the evidence that the parents have done little to address their deeply ingrained mental health and substance abuse problems there exists a high degree of risk of the children being harmed if returned to their care.

[94] The evidence is preponderant, and a trial is not needed to determine that the least intrusive option to protect these children that is in their best interests is an order that they be placed in the extended care of the society.

[95] I am satisfied that the efforts made by the society to assist the parents and children before intervention under this Part were sufficient as noted above.

[96] I have considered whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family and I am satisfied that the society will pursue the options of adoption by a combination of the paternal aunt and the kith being considered.

[97] Because no band has been identified for the family, the order for access between the children and the paternal aunt and grandfather who have some knowledge of the family’s Indigenous heritage is sufficient and substantial reason to justify placement of the children with a family other than a First Nations family.

[98] I find that a trial is not needed to make a just and fair determination of the issue of disposition in this case.

Access to parents

[99] As outlined above, the new Act states that the court shall not make an access order unless it is satisfied that it is in the best interests of the child. For the same reasons I have found that an order placing the children in the extended care of the society is in their best interests, I find that an order that they have no access to their parents is also in their best interests. I find that the current relationship between the respondent parents and the children is not beneficial and meaningful to the children. On the contrary, I find that a continuation of access between the children and their parents will be confusing and continue their state of limbo and uncertainty. They may wonder if they will be returned to the care of their parents, causing undue anxiety and stress. Continued visits with the parents may also be traumatizing for the children. They clearly suffered trauma while in the parents’ care. To facilitate their recovery and maximize the benefit of therapy, the contact between the children and the parents should be terminated. The society shall have the discretion to determine the best process to bring access with the parents to an end.

[100] As outlined in more detail above, I have considered the importance of preserving the children’s cultural identity and connection to the community, recognizing the uniqueness of FNIM cultures, heritages, and traditions. I find that an order for access between the children and their parents is not needed to preserve the children’s cultural identity and connection to the community.

[101] The access order that is required to meet this need is that the children have access to each other and to their paternal aunt TJ and their paternal grandfather LP Sr. TJ and LP Sr. shall also have access to the three children.

[102] Given the provisions of the legislation for moving forward with adoption options even though access orders exist with proper notice to all holders of access, I find that these access orders will not impede future plans for adoption.

[103] I find that a trial is not needed to fairly and justly determine these issues of access.

Orders

[104] To summarize I make the following findings and orders:

1. The children are First Nations,
2. The children were removed from the care of their parents, the respondents JF and JP, and were brought to a place of safety by the society on April 3, 2018,
3. The children are found to be in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii), and 74(2)(f) of the CYFSA,
4. The children shall be placed in the extended care of the society without access to their parents for the purpose of adoption,
5. That the children shall have access with each other and with their paternal grandfather LP and paternal aunt TJ, and
6. The Society shall ensure that the children receive therapy/counselling from trauma informed service providers.

The Honourable Mr. Justice P.W. Nicholson

Released: June 28, 2019