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

LINDSAY COURT FILE NO.: FC-17-314 DATE: 20190709

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kawartha-Haliburton Children’s Aid Society Applicant – and – AR and DB Respondents

Counsel: Joan Tigert, for the Applicant Brent Walmsley, for the Respondent AR Coulson Mills, for the Respondent DB

HEARD: May 13, 27, 2019

RULING ON SUMMARY JUDGMENT MOTION

Nicholson J.

Introduction

[1] This is a motion for summary judgment brought by the Kawartha-Haliburton Children’s Aid Society (the “Society”) in relation to one child, JB, born [...], 2015 (4 years old). The agency seeks the following orders:

1. A finding that the child is First Nations;
2. A finding that the child was removed from the care of his parents, the respondents AR and DB, and was brought to a place of safety by the society on September 19, 2017;
3. That the child be found to be in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii), and 74(2)(g) and (h) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”); and
4. That the child be placed in the extended care of the society without access to his parents for the purpose of adoption.

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

Identification of child as Indigenous - motion adjourned briefly

[3] When this motion first came before me, I adjourned it to allow the Society and the parents to provide better affidavit evidence regarding the Indigenous heritage of the child. 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 bulk of the evidence included in the Society’s affidavit in support of the motion addressed protection issues. One paragraph from an affidavit filed the morning of the motion identified that the child protection worker had one conversation with the respondent mother about the issue. The worker stated that the mother advised that her grandmother had Indigenous heritage.

[4] 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 cultures, heritages, and traditions.

[5] 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.

[6] The finding that the child is 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.

[7] 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 child. The mandate of the legislation includes, as one of its purposes, providing services in a manner that ensures “early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests.”

[8] JB was brought into the care of the Society September 19, 2017 — 21 months ago. Further delay of a matter already well beyond the statutory limits could not be in the child’s best interests. The society advised that the plan for the child was that he be adopted by the foster family who has cared for him since March 2018, a plan that would eliminate any further litigation limbo. But on the other hand, the court must ensure that the findings and disposition are in the best interests of the child, which includes consideration of their Indigenous heritage.

[9] To accomplish this balance, the motion was adjourned, but only briefly, from May 13 to May 27, 2019, within the same trial sittings to allow for better and more complete evidence to be filed. The Society did file more complete affidavit evidence to allow the court to properly consider the importance of the Indigenous heritage of the child.

Respondent Mother AR

[10] AR has a significant history of substance abuse (crystal meth, crack cocaine, and opiates). At the time of JB’s birth in [...] 2015, the mother was on a methadone program and claimed she had not used illicit drugs for two years prior to the birth. JB required special attention and stayed in the hospital for 16 days following his birth to assist with withdrawal symptoms due to methadone exposure.

[11] The society monitored the care of JB by the respondent parents after birth, and by October 2015 closed their file.

Respondent father DB

[12] DB was reported to have been diagnosed with ADHD, Tourette’s syndrome, and borderline intellectual functioning in the 3rd percentile. In March 2009, he was charged with assaulting a 77-year-old man, allegedly breaking his jaw, ribs, and fingers. He was also charged with assaulting his sister-in-law in March 2009, and with cruelty to animals.

Current application and protection concerns

[13] In September 2017, the Society received a report concerning hazardous conditions in the home of the respondent parents and ongoing substance abuse. When the workers attended at the home to investigate, they discovered the family had several animals living in the home, including four pythons, four cats, seven pet rats, and other live rats as food for the snakes. The largest python was five feet in length. The worker was concerned about the bins containing the snakes as it appeared as if they could easily escape. The house was cluttered, garbage was overflowing and odorous, there were no working smoke detectors or carbon monoxide detectors, parts of the drywall had been cut out, and the kitchen was in poor condition with chemicals easily accessible by JB, who was over two years old and potentially mobile.

[14] At the time of this meeting, both parents reported that they had been on the methadone program for three years. Prior to the program, the mother admitted to having been addicted to crystal meth. The father admitted that he had previously been addicted to using a variety of substances. Both reported that their carries from the methadone clinic had recently been cancelled because their urine screens were showing positive results. The parents were unsure why the urine screens were dirty, admitting only to using some Percocet. The mother confirmed that she had not been prescribed Percocet. The father admitted using marijuana regularly and believed that it may have been laced with cocaine. They both admitted to having had a “little treat” a few months prior, meaning they had both used crack cocaine.

[15] There was very little food in the home, and the parents had no money left to purchase food and were intending to rely upon the food bank. They were not engaged with any support services, and JB was not attending a daycare program.

[16] At this initial meeting in September 2017, the worker advised the parents to address the hazards in the home and obtained releases from the parents to allow the methadone clinic to disclose to the Society their urine screens.

[17] Four days later, the Society received the urine screens for the parents for the period between May 2017 and September 15, 2017. The screens showed the mother had completed 40 urine screens, 25 of which had been positive for substances, including 13 for cocaine. The father had completed 38 urine screens of which 25 came back positive for substances, including 12 for cocaine and one time for ketamine.

[18] JB was removed from the parents’ care on that same day, September 19, 2017, and taken to a place of safety. He has remained in the care of the society since that date.

[19] When the Society attended at the home on September 19, 2017, the hazardous conditions were not rectified, and the worker noted a strong foul odor coming from the home. The mother was unable to provide any clothing to send with JB (she explained later that all of JBs’ clothes were in the laundry) and the child’s health card was expired. The Society later determined that JB’s immunizations were also not up-to-date, although the mother denies this allegation.

[20] Since September 2017, when JB was removed from the parents’ care, the Society has attempted to work with the family to address the protection concerns. The society maintains that it has been transparent and consistent in identifying those concerns to the parents. They have identified the concern that the parents failed to provide basic care for JB and to meet his developmental and emotional needs. Part of these challenges included the hazardous condition of the home. They have also identified concerns regarding drug use by both parents, primarily because of the very negative impact of such drug use on their ability to meet the child’s needs and improve their parenting skills. They have failed to do so during the period of time the child has remained in care.

[21] The greatest challenge the parents face is their inability to accept that they have substance abuse problems. Screens have consistently shown both parents positive for a variety of drugs. As recently as October 2018, both parents tested positive for cocaine. Further concern resulted from positive tests in April 2019 for carfentanil. Carfentanil is an opioid that is used by veterinarians for very large animals like elephants. It is approximately 100 times more toxic than fentanyl and 10,000 times more toxic than morphine. It can be deadly in even small amounts.

[22] The parents deny using carfentanil and explain that they must have been exposed to the drug second hand because family members in their home used the drug. The fact that anyone was using this dangerous drug in the parents’ home is a protection concern.

[23] Evidence regarding the access visits suggested that the parents had weak attachment with JB and limited capacity to parent him. They required much intervention and help during access visits. JB rarely sought out his parents for comfort during the visits, and seldom acknowledged them with excitement when they arrived, and was not distressed when he left them at the end of the visits. The parents were reported too often to be preoccupied with their own needs during the visits. One particular worker noted that the parents had made little gains in their attachment to or parenting of JB between the time she supervised visits in Haliburton in the early stages of the application and December 2018 when the visits were transferred to Peterborough, Ontario.

[24] For the past year, the parents have refused to allow the Society access to any residence they occupied. The housing problem for the parents has evolved from unsafe housing to no housing at all as of the date of the motion.

[25] They have also missed a substantial number of access visits as they struggled financially and transportation was often a problem. They have been unable to attend access visits for several weeks prior to the motion because they were preoccupied with housing, notwithstanding the fact that the Society was providing transportation for them to the access center pursuant to an order of this court. They were unable to identify a pickup location for the driver.

The Law

Motion for summary judgment

[26] 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).

[27] 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”.

[28] 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.

[29] 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

[30] 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

[31] 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

[32] 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.

[33] In comparing the CYFSA to the prior legislation, the Child and Family Services Act, R.S.O. 1990, c. C.11, 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

[34] 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

[35] 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, Metis 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, Metis 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, Metis 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, Metis 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

[36] The issue here on this motion for summary judgment 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 child is in need of protection and second, determine the disposition that fulfills the mandate of the CYFSA.

Poverty and Integrity of the family

[37] The Court of Appeal in K.H.C.A.S. v. M.W. has commented on the reality of the child protection litigant, at para. 69:

Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms. The miscarriages of justice outlined in the Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) speak, by way of example, to the significant imbalance between parents and Children’s Aid Societies, noting that parents, even when represented by counsel, were “simply overpowered” (at p. 121). Fairness in the child protection context demands recognition of these dynamics.

[38] In this case, the lives of AR and DB have been significantly adversely affected by poverty and mental health problems. Both parents have been diagnosed with ADHD. They have often not been able to afford proper housing and adequate food. Financial limitations have had a negative impact on their personal hygiene including clothing and cleanliness. They often lacked the funds to pay for any type of transportation to attend access visits.

[39] I recognize that many of these factors are beyond the control of the parents. They are simply unable to provide the same standard of living and security that the society can offer to JB in foster care, nor do I expect them to rise to that level of capacity. I recognize this imbalance and do not fault the parents for these dynamics. This imbalance was in fact recognized at an earlier stage of these proceedings when the case management judge ordered the society to provide transportation for the parents so they could attend access visits. Unfortunately, this broke down in the weeks prior to the motion when the parents became homeless and could not identify an address at which the volunteer driver could attend to pick them up.

[40] In order to reach a conclusion that is balanced, fair, and just, I have given very little weight to the above concerns that are directly a consequence of the poverty that the parents have experienced.

[41] The question of fairness also requires consideration of whether the Society 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 was available and appropriate in this case to help JB?

[42] The evidence strongly supports the conclusion that the Society has fulfilled all of these obligations and that the parents were not unjustly overpowered in these proceedings.

[43] The Society identified the protection concerns clearly to the parents. Specifically, the Society identified concerns about the parents’ drug use and its negative impact on their ability to meet JB’s needs. They also identified concerns about the condition of the home and the need to create a safe space for JB. Urine screens indicated continued drug use by the parents and the worker was not able to observe changes to the home to improve safety for JB. Part of the problem in this regard was that the parents refused to allow the Society to visit the home. They acknowledged that they had not followed through with improving the conditions in the home.

[44] For access visits, the Society put in place a plan which included supports to improve parenting skills and promote JB’s development. However, the parents made little progress with improving their skills. The parents also did not follow through with services that had been previously established through referrals from the Society which would have resulted in improved parenting skills.

Indigenous identification

[45] In September 2017, at the first appearance following the removal of JB from the parents’ care, based on the evidence presented at that time, the court that found that JB did not have “native status,” under the preceding legislation. Notwithstanding this information, the society worker met with the parents in October 2017 to obtain details regarding their family in order to complete an Indigenous and Northern Affairs Canada family check.

[46] In February 2018, the society kinship worker contacted the respondent mother’s grandmother DW as a part of assessing possible kinship placements for JB. DW advised the worker by way of a Facebook message that she had been told by her adoptive parents that she had Indigenous heritage on her biological mother’s side, but this was the extent of the information available. DW had no interest in pursuing any further information about her biological family or her Indigenous heritage.

[47] For many months in 2018 (May to August), the society worker made multiple attempts and scheduled in excess of 10 appointments with the parents for the purpose of completing a social history document for JB so that more information could be gathered about the family history. The respondent parents refused to allow visits by the worker at their home and they were not attending access visits during these months. Eventually, the worker arranged to meet with the parents following an access visit in August 2018. The respondent father did not identify as having any Indigenous heritage. The respondent mother reported that her grandmother, DW, has some Indigenous ancestry but the respondent mother knew nothing further about it. Neither of the respondent parents identified having incorporated any Indigenous culture or practices into their lives.

[48] In November 2018, the society worker provided the respondent parents with information regarding Ontario aboriginal low-income housing support.

[49] The Society has no information from the family with regard to a First Nations band or community to which DW may have been connected. As such, no band or First Nations has been given notice or participated in these proceedings. Dnaagdawenmag Binnoojiiyag Child and Family Services, designated as a child well-being agency for Indigenous families in this jurisdiction, has not elected at this time to assume carriage of this file.

[50] The court is faced with the task of considering the importance of preserving the child’s cultural identity and connection to the community, recognizing the uniqueness of First Nations, Inuit, or Métis (“FNIM”) cultures, heritages and traditions.

[51] The questions have to be asked:

1. Has the Society 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 child’s connection to his community in the decisions relating to finding and disposition?

[52] Since March 2018, JB has been residing in a foster home with a family who are prepared to adopt him. As soon as they were made aware of JB’s possible Indigenous heritage, they have demonstrated a commitment to learning more about it and integrating the Indigenous culture into JB’s life. They have placed a high value on learning as much as they can about the Indigenous culture. For example, for Canada Day 2018, the foster parents attended a concert in Peterborough with JB during which they were exposed to Inuit throat singing. In September 2018, they took JB to a powwow at Curve Lake where he observed a ceremony, drumming, dancing and enjoyed the food and participated in dancing. The foster grandparents attended this activity with the family as well.

[53] The foster family listens to an Indigenous radio station in the car with JB and he is exposed to drumming and singing on a regular basis. They have purchased Indigenous story books that they read to JB and a wall calendar displaying Indigenous art. They have attended with JB at the canoe museum on more than one occasion to learn some Indigenous history.

[54] They have started to attend a First Nations friendship center, attending the children’s group and the family socials. JB has participated in the drumming circle there. The family has taken JB to a weekly group called creative kids. It is an afterschool program for kids to come and have fun with their creativity and arts and various crafts. They report that JB enjoys the activities.

[55] The foster family went on vacation to Sudbury in May 2019 and attended the science north center and took in the movie called “Great Bear Rainforest” about a place in British Columbia that is protected by Indigenous people. They also attended the planetarium and heard Indigenous creation stories.

[56] The foster mother is attending college, currently working towards her social services worker diploma, taking Indigenous studies courses with a plan to graduate with an Indigenous perspectives designation.

[57] Both foster parents are devoted to learning as much as they can about Indigenous heritage and introducing JB to the culture. They have taken a wide and varied approach to their investigation given that JB’s particular culture and heritage is unknown. Given that the birth family was not practicing any Indigenous cultural lifestyle prior to the removal of JB, this has been a new and exciting experience for JB. The foster family is committed to continuing this investigation and exposure for JB on a long-term basis.

[58] I am satisfied that JB should be identified as a FNIM child and that the Society has completely fulfilled its obligations to provide services and made decisions that recognize the importance of the child’s FNIM cultures, heritages and traditions and the connection to the community.

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

Possible options for placement with kin

[60] The respondent parents proposed 10 individual family members as a possible kinship placement for JB. One of the proposed individuals was the respondent mother’s grandmother, DW. Unfortunately, none of the 10 individuals proposed agreed to move forward with a formal kinship assessment by the society.

Protection Finding and Disposition

Finding

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

[62] A trial is not necessary to fairly and justly determine that JB was in need of protection when removed from his parents’ care in September 2017. The condition of the family home, including the presence of snakes and other risks, together with clear evidence of ongoing abuse of substances by the parents leads me to conclude JB was at risk of being physically and emotionally harmed in the parents’ care.

[63] Unfortunately, the drug screens have continued to show that both parents test positive for a variety of drugs. As recently as October 2018, both parents tested positive for cocaine. Further concern resulted from positive tests in April 2019 for the deadly drug carfentanil. The only evidence filed by the parents relating to their drug consumption is an affidavit of the respondent mother just prior to the motion. She denies using the drugs detected in the parents’ recent drug screens and explained that second-hand exposure was the reason they tested positive. In essence, the mother admits to residing in a home where illicit drug use, including carfentanil, was very common.

[64] The mother maintains that both parents have commitment to continuing to attend the methadone clinic. Unfortunately, this does not provide the court with sufficient evidence to reach a conclusion that the drug use by the parents is under control. If they had filed evidence of having attended at a residential treatment program and/or evidence of long-term commitment to intensive counselling to address the underlying reasons for their drug abuse I might have questioned whether this issue required a trial to resolve. They did not.

[65] The mother challenges the society’s evidence regarding the access visits. The mother contends that the access visits have been going very well and JB is excited to attend. According to her, JB refers to the parents as dada and mama. After a year of such weekly visits, I am not surprised to learn that the child has become comfortable and enjoys his time with the parents. However, the evidence filed by the society was that JB showed little sign of attachment to the parents during the early visits after he was brought into care. That evidence is an indication of the inability of the parents to meet JB’s emotional needs prior to his removal from them.

[66] As stated above, the parents have refused to allow the CAS access to any residence they occupied in the past year. Furthermore, the housing problem for the parents has evolved from unsafe housing to no housing at all as of the date of the motion.

[67] As such, I find that JB was and continues to be in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii), and 74(2)(g) and (h) of the CYFSA, and that a trial is not needed to fairly and justly make this determination.

Disposition

[68] 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

[69] Given JB’s age, his wishes and preferences could not be ascertained or considered.

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

[70] In relation to this factor I have consider the two options available to the court. The first is placement of JB with the parents under a supervision order and the second is an extended care order for the purpose of adoption. I find that JB is more likely to be exposed in the future to his Indigenous heritage if placed in extended care and adopted by the current foster family. I reach this conclusion because the evidence clearly showed that the parents had done nothing to expose JB to his Indigenous heritage prior to his removal from their care. In contrast, the foster family has gone to great lengths to explore JB’s Indigenous culture and heritage and are committed to continuing to do so in the future. I am fully aware of the fact that the Society is not obligated to finalize an adoption with this family, nor do I have jurisdiction to order such as part of this disposition. However, the Society has indicated that their plan is for JB to be adopted by his current foster family and I accept this as the plan that is the most likely and least disruptive end result of this process. The extended care option is more likely to result in the preservation of JB’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

[71] Fortunately, JB presents with no exceptional needs at this time. Much of this is to the credit of the work done by society in the 18 months JB has been in care, because, at the time JB was removed from his parents, he did not have a valid health card and was not up-to-date with his immunizations. He was also observed to have a limited vocabulary and was not meeting his developmental milestones. In my view, this is further evidence of the respondent parents’ inability to meet the basic physical, mental, and emotional needs of JB.

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

[72] 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

[73] JB’s emotional ties with the respondent parents were tenuous when he was first removed from their care. That relationship has only marginally improved. Given the ongoing struggle the parents face with drug use and its negative impact on their capacity to parent, I am not confident that JB would find a secure place as a member of their family. Other kinship options were thoroughly canvassed, and no kin was willing to proceed with a kinship assessment. JB has, on the other hand, developed a very positive and secure relationship with the foster family.

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.

[74] Since September 2017, JB has experienced security and continuity of care. Should he be returned to the care of his parents, such a placement would not only be tremendously disruptive to him, but it would also not be sustainable and would likely end in another removal and more 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

[75] I find that the plan proposed by the society that JB be adopted and maintain a connection to his Indigenous heritage through efforts of the foster family has a much better chance of meeting all of JB’s needs than the plan of returning him to his parents. In the most recent affidavit filed by the respondent mother, she indicates that she and the respondent father have met the foster parents and believe they are good people who are doing a good job with JB.

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

[76] The current protection application has been ongoing for more than 22 months now.

[77] 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 updated affidavits and for the Society to provide better evidence regarding their commitment to the Indigenous heritage of the family. Delaying the adoption of JB is to deny him the resolution and permanence he needs.

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

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

[79] The evidence is overwhelming, and a trial is not needed to determine that the least intrusive option to protect JB that is in his best interests is that he be placed in the extended care of the Society.

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

[81] 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 has canvassed these options thoroughly.

[82] No band has been identified for the family connection. The respondent parents never exercised any Indigenous practices while JB was in their care. The society plan is to have the current foster parents adopt JB. JB is strongly connected to them and they are committed to maintaining JB’s exposure to his heritage. I find that this plan is a sufficient and substantial reason to justify placement of JB with a family other than a First Nations family.

[83] 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

[84] 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 JB in the extended care of the Society is in his best interests, I find that an order that JB have no access to his parents is in his best interests. I have concluded that the relationship between JB and his parents is amicable and familiar, however, this minor benefit does not rise to the level of being so meaningful and beneficial to JB as to offset the negative consequences of continuing his confusing state of limbo and uncertainty. Termination of access will facilitate a healthier attachment to the foster/adoptive family.

[85] The Society shall have the discretion to determine the best process to bring access with the parents to an end.

[86] As outlined in more detail above, I have considered the importance of preserving JB’s cultural identity and connection to his Indigenous community, recognizing the uniqueness of FNIM cultures, heritages, and traditions. Given the acknowledgment of the respondent parents that they never practiced or exposed JB to the practice of any aspect of their Indigenous heritage or culture, and their complete disconnect from any Indigenous community, I find that an order for access between JB and his parents is not needed to preserve his cultural identity and connection to the Indigenous community. The respondent parents did not propose that anyone else from the Indigenous community have access to JB.

[87] I find that a trial is not needed to fairly and justly determine this issue of access.

Orders

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

1. JB is a First Nations child;
2. JB was removed from the care of his parents, the respondents AR and DB, and was brought to a place of safety by the society on September 19, 2017;
3. JB is found to be in need of protection pursuant to ss. 74(2)(b)(i), 74(2)(b)(ii), and 74(2)(g) and (h) of the CYFSA; and
4. JB shall be placed in the extended care of the society without access to his parents for the purposes of adoption.

The Honourable Mr. Justice P.W. Nicholson

Released: July 9, 2019

LINDSAY COURT FILE NO.: FC-17-314 DATE: 20190709 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Kawartha-Haliburton Children’s Aid Society – and – AR and DB RULING ON SUMMARY JUDGMENT The Honourable Justice P.W. Nicholson

Released: July 9, 2019