WARNING This case is governed by the Child, Youth and Family Services Act, 2017 which provides:

87 (8) 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.

142 (3) 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.: FC17-FO90 DATE: 2020-08-05 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Children’s Aid Society of the Niagara Region, Applicant AND: M. K., Respondent (mother) AND: B. L., Respondent (father) AND: Chippewas of Saugeen First Nation, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Chris Etherden for Applicant; Ashley Gibson for Respondent mother; Katharine Hensel for Respondent First Nation

HEARD: August 4, 2020

Endorsement

[1] The Society brought the current Application under s.81 of the Child, Youth and Family Services Act, 2017, S.O. 2017 c.14, Sched. 1 in June of 2019. A temporary order was made placing the child in the care of the Society. She remained in foster care until April 9, 2020, when I made a temporary order under s.94 of the Act on consent, placing the child with the mother under the supervision of the Society. On July 20, 2020 the child was removed to a place of safety. On July 24, 2020 Sweeny J. placed the child with the Society temporarily and adjourned the matter to July 31 to give the parties a chance to investigate and prepare for today’s motions. On July 31, over the strenuous objection of the mother and the First Nation, Gregson J. adjourned the matter to August 4 to allow the Society to put before the court photographic evidence that the police had not released earlier. Before me now are the Society’s motion to place the child in foster care pending further adjournment of the Application and the mother’s motion to return the child to her under supervision.

[2] The child is a First Nations child through descent from her mother.

[3] The Society’s plan is foster care. An Indigenous foster home is not available. The mother’s plan is to care for the child under the supervision of the Society on the terms of my order of April 9, 2020. The mother’s partner affirms by affidavit that he will participate in her plan although they are separating. The First Nation supports the mother’s plan.

[4] The child was born on […], 2017. The mother was 14 years old at the time. She is now 17. The child is three and a half. The father, also a minor at the time of the child’s birth, is not in the picture at the moment. He has done nothing to deal with his mental health, violence and transience issues and has not participated in the proceedings recently. It is not in the child’s interest at the moment for the father to have access to her. Some of the evidence before me suggests that the father has sought access from the mother, although she was not entitled to permit it without Society approval. This must have caused the mother unnecessary stress.

[5] The child was apprehended at birth. For some time, mother and child were in the same foster home. Later on, the child was placed with an Indigenous couple through a customary care agreement. The mother visited the child. The customary care placement broke down and in April 2019 the child was moved to a foster home in Niagara. By this time the mother was living with Alex, who was no doubt an improvement over her own abusive mother. In June 2019 the mother was discharged from the care of the Society and the present Application was brought.

[6] In June 2019 the mother began to cooperate with the Society and take part in recommended programmes. She was eventually allowed access visits with the child in her own home. In February 2020 the mother advised the Society that the child had suffered a bruise to her cheek during a game in which Alex playfully pinched her. The next week the worker spoke to the mother and Alex and all agreed that the pinching game would not be repeated.

[7] By April of 2020 the mother had satisfied the Society that she was ready to care for the child under supervision. She took over care of the child following my order of April 9, 2020. The child went to live with her mother, Alex and his child in an apartment. Alex is of the age of majority and has custody of his son under an order made in proceedings under the Children’s Law Reform Act.

[8] In May 2020 the mother told the Society that she and Alex had separated. They are still under the same roof until new accommodations can be found.

[9] On July 20, 2020 Jasmine, a friend of the mother’s, reported some serious allegations to the Society about Alex’s treatment of the mother and the child. There is credible evidence to suggest that Jasmine has an animus against the mother. Jasmine’s more serious allegations, about domestic violence perpetrated by Alex on the mother, and the mother leaving the child with her own mother, who is eminently unsuitable, were not witnessed by Jasmine and are denied by the mother, Alex and the grandmother. The investigation did reveal, however, some objectively supportable concerns.

[10] The police, and now the Society, have obtained photos of the child with a large bruise on her cheek and a bruise on her ear. A bruise on the ear is often a sign of abuse in the opinion of Dr Baird, whose report has sufficient credibility and trustworthiness in my opinion for its admission into evidence here. I do not think that compliance with Rule 20.1 of the Family Law Rules is necessary at this point in view of s.94(10) of the Child, Youth and Family Services Act. That does not mean that Dr Baird’s report, however credible, is highly probative. He gave a general opinion about the sort of injury he saw in some photographs. He does not pretend to know what actually happened in the instant case.

[11] In the past, the child has innocently bruised herself and the mother has always told the Society about it. She did not tell the Society about this one until asked. She had no explanation for the bruise near the ear when first asked. She now says that she is fairly certain that it happened when the child fell off the couch and rolled onto the coffee table.

[12] A photograph shows the child with her mother and a hand, which must belong to Alex, squeezing the child’s cheek. The child appears distressed. I think this is the pinching game from February 2020.

[13] There are also photos of bruises on what I conclude is the mother’s body. I find the mother’s explanations of these bruises to be plausible. She says that Alex has never touched her improperly. There is not sufficient reason in the evidence for me to believe otherwise.

[14] An exchange of text messages between the mother and Jasmine suggests that the mother sent Jasmine the photographs just mentioned, Alex subsequently deleted the photograph from the mother’s phone without her knowledge and Jasmine sent a copy back to the mother at the mother’s request. That is suspicious. It looks as if Alex was trying to hide some evidence that the mother wanted to preserve. It suggests a certain level of conflict around the time of the decision to separate. The mother explains that she sent the photos to Jasmine in the first place because she and Jasmine were joking about how clumsy she is. That strikes me as implausible, especially in the context of the associated word messages, which suggest nothing of the sort.

[15] The Society worker found two liquor bottles at the mother’s residence. Alex is of legal drinking age. The mother says that she does not have a problem with alcohol. She admitted to the worker that on one occasion she left the child with the child’s paternal uncle and aunt, who had not been approved by the Society, while she and Alex were drinking in the apartment. She also admitted that she had left the child with her own father on July 16, again without Society approval.

[16] The worker found a reefer in a place within the child’s reach.

[17] Since removal the child has spontaneously uttered to the foster mother that she does not want to go home because Alex says bad things to her mother.

[18] I have to decide where to place the child pending adjournment. The principles I have to follow are set out in sections 1, 74 and 94 of the Child, Youth and Family Services Act, 2017 and sections 9, 10 and 16 of An Act respecting First Nations, Inuit and Metis Children, S.C. 2019, c.24.

[19] The circumstances that are left are the bruise on the ear which is not well explained, the bruise on the cheek that I think took place in February, a very young child in the care of an inexperienced mother at a time when the mother’s live-in relationship is unstable and in which there is more conflict than the mother and her partner have admitted. There is also the possibility of abuse of alcohol and neglect of safety measures around cannabis. The context is a very young mother who has only cared for the child for three months in three and a half years. In earlier days, the mother abandoned the child for an extended period. She only started getting serious about being a mother in 2019.

[20] It is a question of weighing competing factors and deciding whether the child can be adequately protected without making the order under s.94(2)(d) of the provincial Act for placement with the Society and instead making the order under s.94(2)(b) to place her with the mother under supervision. On the evidence before me either option is reasonably open. I am inclined to the latter because the most serious concerns remaining are one bruise, an unknown level of conflict in a relationship with some instability and some alcohol consumption with unknown effect. Taking that along with the First Nation’s judgment, to which I give serious weight, and applying the criterion set out in s.94(4) of the Act in the light of sub-clause 3. iv and clauses 2 and 6 of subsection 1(2) of the Act, I conclude that the child can be adequately protected by supervision under the terms of my order of April 9, plus a few new conditions to address the recent concerns. I shall make explicit the condition that the child not be left with anyone who has not been approved by the Society, I shall require all visible injuries to be reported to the Society without delay, I shall prohibit the mother from using alcohol and cannabis, and I shall suspend the father’s access.

[21] I find it necessary to address counsel for the First Nation’s criticism of the Society. In a written memorandum dated July 28, she wrote:

The Society's position and evidence evinces, in Saugeen's submission, a casua1 indifference to the well-being of this child and Mother, and the harm caused by the apprehension. Further, the Society's slow conduct of its investigation, and failure to provide the parties and this Court with timely and meaningful evidence in support of its motion (and in response to the Mother's motion), reflects a lack of respect for the process, the role of the Court in ensuring the just and effective administration of the CYFSA (and the application of Bill C-92), and the pernicious effects of unnecessarily intrusive child welfare interventions in the lives of Indigenous children.

[22] I do not accept any of these submissions. The Society has been assiduously seeking the reunion of mother and child for three and a half years in difficult circumstances. It has been sensitive to the principles that have now been codified in the federal legislation. The present concerns looked very serious at first and some concerns remain after a thorough and fair investigation that was accomplished relatively quickly in spite of the Society’s heavily taxed resources. As to the Society’s alleged casual indifference I can do no better than to cite the mother’s own observation in her affidavit of July 22:

My FACS worker Gina Greene, who I know at times, I have driven absolutely to the brink of insanity, is a wonderful support to me. I was raised to believe that FACS was my enemy. I had also never experienced what it was like for an adult to show me actual love and support and proper guidance. Although I have likely caused Gina Greene many sleepless nights, I am so thankful for her, as she has helped me learn how to be a mother, and that is invaluable.

J.A. Ramsay J. Date: 2020-08-05