COURT FILE NO.: FC-20-210

DATE: 2020/09/15

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.

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHILDREN’S AID SOCIETY OF THE REGION OF WATERLOO, Applicant (Moving Party)

AND:

K. C., Respondent Mother

AND:

Constance Lake First Nation

BEFORE: Madam Justice J. Breithaupt Smith

COUNSEL: Ms. Sherry Currie, Counsel for the Applicant Society

Mr. Patrick Brohman, Counsel for the Respondent Mother

Ms. Carrie Sutherland, Representative for Constance Lake First Nation

HEARD: September 2, 2020

E N D O R S E M E N T -- COVID 19 PROTOCOL

[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

[2] In accordance with the consolidated Regional Notice to the Profession issued on June 26, 2020 effective July 6, 2020 and the Protocol for Central South dated April 7, 2020, electronic materials were filed by email to Kitchener.Superior.Court@ontario.ca:

a. The Applicant Children’s Aid Society of the Region of Waterloo (the “Society”) filed:

i. Notice of Motion returnable September 2, 2020, in which it seeks an amendment to the Temporary, Without Prejudice Order of Piccoli, J. dated July 2, 2020;

ii. Affidavit of Juanita Parent dated August 17, 2020;

iii. Society’s Notice of Intention to File Business Records dated August 17, 2020;

iv. Society’s Document Brief (inclusive of Tabs 1 – 26 comprising 96 pages);

v. Reply Affidavit of Juanita Parent dated August 31, 2020;

vi. Confirmation; and

vii. Affidavits of Service.

b. The Respondent Mother (“Mother”) filed:

i. Her Affidavit dated August 27, 2020;

ii. Affidavit of Mother’s partner, P.B., dated August 27, 2020;

iii. Confirmation; and

iv. Affidavits of Service.

[3] In addition, I requested a scanned version of the file from Court Services Division and was provided with the following:

a. Child Protection Application dated July 2, 2020;

b. Society’s Notice of Motion originally returnable July 2, 2020, seeking placement of the children in the Society’s care;

c. Affidavit of Juanita Parent dated June 30, 2020;

d. Affidavit of Daniel Drummond dated June 30, 2020;

e. Society’s Plan of Care dated June 30, 2020;

f. Notice of Change in Representation confirming Mr. Brohman’s retainer for Mother dated July 29, 2020;

g. Mother’s Answer & Plan of Care dated July 29, 2020, seeking: withdrawal by the Society; or alternatively, placement of the twins in the care of Respondent Mother and her partner, P. B.; or in the further alternative placement of the twins in the care of any combination of Mother, Mother’s partner, and Maternal Grandmother;

h. Affidavits of Service; and

i. Endorsement and Order of Piccoli, J. dated July 2, 2020.

[4] Upon the resumption of court operations, the parties shall file their materials in the continuing record at the courthouse if they have not already done so. I confirm that it is my understanding that all portions of the Continuing Record have been provided to me in electronic format, but that complete accuracy in that regard cannot be guaranteed.

Scope of Relief Sought and Parties’ Positions

[5] The Society’s Motions before the court seek the following substantive relief:

a. In the context of sections 90 through 94 of the Child, Youth and Family Services Act, 2017 (the “CYFSA”), a Temporary Order placing the twin children, N. J. C. and M. N. C., in the care of the Society; and

b. An adjustment to the Temporary Without Prejudice Order of Piccoli, J. (dated July 2, 2020) with Mother to have “in person visits with the children at least twice weekly at a location approved by the Children’s Aid Society” plus the right to attend all of the children’s medical appointments.

[6] The Society seeks to adjust Piccoli, J’s Order to remove the requirement that Mother’s twice-weekly visits occur at Waterloo Region’s only Indigenous community center, Healing of the Seven Generations (“H7G”), located a few blocks from the courthouse in downtown Kitchener. The Society says that the time spent in transit to and from visits at H7G is burdensome for the children, who have been placed with an Indigenous foster family near London, Ontario. The Society argues that the placement hierarchy at section 16(1) of An act respecting First Nations, Inuit and Métis children, youth and families, R.S.C. 2019, c. 24 (“Bill C-92”) prevents it from placing the children in a non-Indigenous foster home locally.

[7] Mother seeks to have the twins placed in her care on the terms of supervision as set out in the Society’s Plan of Care under the heading “Expectations” at paragraphs 5(a) – (h) and (j). In effect, Mother queries the need only for term 5(i), which would require her to complete counselling “for victims of domestic violence” as she says that there is no power imbalance or history of abuse in her three-year relationship with her partner, P. B.

[8] Constance Lake First Nation has not filed any materials. Ms. Sutherland advises that the focus of her agency continues to be on the preparation of a Customary Care Agreement in the event that the children are not returned to Mother. All parties agree that, if the children cannot be returned to Mother under terms of supervision, then a Customary Care Agreement placing them with Maternal Grandmother is their best option. The Society notes that, had it been possible, such an arrangement would already have been approved and that its primary goal is always to place children with family.

Summary of Conclusions Reached

[9] At this stage, Mother does not seek to disturb Piccoli, J.’s finding, on a temporary basis, that the twins are in need of protection. Her position in response to the Society’s Motions is that it is in the children’s best interests to be returned to her care on terms of supervision. I agree.

[10] If I am wrong, and it is in the best interests of these children to remain in the care of the Society, I find that the Society cannot decline to place them in a suitable foster home in Waterloo Region solely on the grounds that a culturally-matched foster family is only available elsewhere. I interpret the interplay between Bill C-92 and the CYFSA as establishing an augmented best interests test as the paramount consideration that overrides the hierarchy of placement for Indigenous children set out at section 16(1) of Bill C-92. A rote application of Bill C-92’s section 16(1) to the detriment of the best interests of the Indigenous child detracts from the legislation’s overall goal of promoting substantive equality between Indigenous and non-Indigenous children.

[11] Consistent with the general practice on a “place of safety” hearing under section 88 of the CYFSA, Piccoli J.’s Order was made on an interim without prejudice basis pending fulsome argument, which took place before me on September 2, 2020. In the context of the scheduling challenges arising from the COVID-19 response, this hearing was scheduled for one hour although such matters are generally allotted half a day. I again thank counsel for their focused and succinct arguments before me having regard to the time constraints.

[12] The Society’s application cites two broad areas of concern about Mother: (1) her “history (drug use, mental health issues, and criminal charges)”; and (2) her alleged inability to care for the children.

Background

[13] The following facts are undisputed:

a. Mother is now 32 years of age (she was 31 when the twins were born).

b. Mother is a member of Constance Lake First Nation and has extended family, including her mother (Maternal Grandmother to the twins), residing there.

c. Mother is not otherwise known to the Society.

d. Mother is in a relationship with P. B., who is not the twins’ biological father, and who is 58 years of age.

e. P. B. is not otherwise known to the Society.

f. Mother does not know the identity of the twins’ biological father, as she was homeless and had relapsed with drug addiction when they were conceived.

g. Mother has been diagnosed with severe anxiety and post-traumatic stress disorder[^1] and has been in the care of psychiatrist Dr. O. Banjo since November of 2018. He has prescribed her Duloxetine and/or Olanzapine for anxiety.

h. Mother is addicted to opiates and has been on the methadone program for three years. She has not used opiates since discovering she was pregnant in October of 2019. She has the maximum number of allowable “carries” (i.e. prescribed doses that a patient is permitted to take independently of the clinic in recognition of improvements).

i. Mother sought out prenatal care with local obstetrician Dr. A. Alarie, who referred her to Hamilton Health Sciences due to the high-risk nature of her pregnancy with twins whilst being on methadone. Part of the birth plan included a period when the twins would have to be weaned off of opiates.

j. Throughout her pregnancy, Mother had the support of H7G staff and community members.

k. On April 27, 2020, Mother came to the Society’s attention following her voluntary participation in the Healthy Babies, Healthy Children prenatal program in the month prior to the twins’ birth, when a call was made by an employee of that program.

l. On May 12, 2020, Family Worker Daniel Drummond contacted Mother and, after introducing himself, heard a male voice say “this is not okay” and the call ended. He then exchanged text messages with Mother and P. B. via their shared cellphone and the concern was expressed to him that Mother was being racially targeted.

m. Mr. Drummond was unable to speak or meet directly with Mother prior to May 22, 2020, when the file was transferred to Ms. Parent.

n. The children were born in […] of 2020 at Hamilton Health Sciences and remained there until May 26, 2020 when they were discharged to the Neonatal Intensive Care Unit (“NICU”) at Guelph General Hospital, which was the closest available facility at that time. They remained at Guelph General Hospital until June 8, 2020 when they were transferred to the NICU at Grand River Hospital (“GRH”) in Kitchener. They were scheduled to be discharged by GRH on June 29/30, 2020.

o. From birth, the twins were placed on Morphine and, shortly thereafter, Phenobarbital to address withdrawal symptoms anticipated as a result of Mother’s prescribed medications. Further, testing and prophylactic steps were taken to manage a risk of congenital syphilis due to Mother’s historic exposure to that bacterium.

p. Baby A was diagnosed with club feet at birth.

q. Hamilton Health Sciences destroyed Mother’s after-birth almost immediately, and therefore no sample was available to her for cultural purposes. Similarly, despite being provided with pumped breastmilk by Mother, hospital officials destroyed it.

r. About a week after the twins’ birth, P. B. contacted Guelph General Hospital and expressed concern that they were overmedicated and queried why they were not being weaned and whether their bloodwork supported the continuing syphilis treatment.

s. Early in the morning on June 25, 2020, Mother was rushed to GRH as a result of excessive bleeding. P. B. advised the Society of this development by email as a meeting had been planned for June 26th at 9:00 a.m. between Mother, Ms. Parent and the GRH social worker to take place at the NICU. Mother had asked Ms. Donna Dubie, Executive Director of H7G, to be present as a support person for her. It appears that Ms. Dubie was copied with P. B.’s email. P. B. concluded his brief email by writing “If you can reschedule that meeting and co-ordinate with each other, a time that is convenient for the both of you, that would be great. Regards, [P.].” Ms. Parent appears to have responded to Ms. Dubie only: “Good afternoon, if mom is at Grand River Hospital I will see her there at 9:00am. Please advise if you are available in person or on the phone for this meeting.” Mother was discharged in the morning on June 26, 2020 and went home to change her clothes which were covered in blood. She and Ms. Parent each attended at GRH NICU throughout that day but not at the same time, and thus no meeting between them took place on that date. Mother was not present for the 9:00 a.m. discharge update meeting.

t. In anticipation of their discharge, the medical updates for the children were as follows as of June 26, 2020:

Baby A: Normal ECG. On-going eye tests required to rule out congenital syphilis. Will require casting for club feet for both legs and feet. She was on prescription formula (and it was later determined that she had a sensitivity to milk formulas). She had been weaned off of morphine and was ready for discharge.

Baby B: Normal ECG. Diagnosed with a neck mass on or about June 6, 2020 thought to be infantile torticollis (a thickening of muscles impacting the child’s neck strength and position possibly arising from cramping in utero) for which physiotherapy was prescribed. She had a heart murmur but, as of June 25, 2020 showed “normal heart function.” She was expected to be weaned off of morphine and ready for discharge on June 30, 2020.

u. Ms. Parent designated GRH as a place of safety on June 29, 2020 as the twins were about to be discharged. Upon discharge, the children were placed in an Ojibway foster home located between London and St. Thomas, Ontario.

v. Mother did not have her own telephone until one was provided to her by Ms. Parent on June 29, 2020.

w. The first in-person meeting between Ms. Parent and Mother took place at the GRH NICU on June 29, 2020. Also present at that meeting were the GRH social worker and nurse. Ms. Parent advised Mother that the twins would not be discharged into her care but would be going into foster care due to their ongoing medical needs requiring constant attention. Mother attempted to contact Ms. Dubie by telephone but was unable to reach her. Mother declined to authorize Ms. Parent to speak directly to P. B. or Ms. Dubie. Ms. Parent “confirmed that she had declined in the presence of [two hospital staff].”

x. On July 2, 2020, Piccoli, J. made a Temporary Without Prejudice Order placing the children in care, which included both a term that Mother’s right of access be in the Society’s discretion and a further access term that “the mother will have in person visits with the children at least twice per week at Healing of the Seven Generations or another agreed upon location. In addition, the mother shall be entitled to attend all of the children’s medical appointments,” estimated at that time to be six per week.

y. On July 6, 2020, Ms. Parent advised Mother of the children’s upcoming medical appointments with professionals near London where the children had been placed. Her email suggests that Mother’s visits with the children would take place at a child protection facility in the London area. On that date, Ms. Parent contacted Family & Children’s Services of St. Thomas and Elgin to request assistance in supervising Mother’s visits.

z. On July 8, 2020, Ms. Parent emailed Mother, writing: “All parties were advised due to the foster placement location that supervised access between mom and the children will be at the local CAS of their residence to ease the travel time for the children.” Mother responded by confirming the requirement of Justice Piccoli’s Order that visits take place at H7G or another agreed upon location and took issue with the delay in arranging the first visit (scheduled for July 10).

aa. Between July 10 and July 30, inclusive, it would appear that Mother had three visits at H7G, namely on July 10, July 24 and July 30. Present at the visits were a Society worker and the Foster Placement Worker in addition to Mother’s supports.

bb. On July 15, 2020, Dr. Sudhir D’Souza, the London paediatrician to whose care the children had been transferred was advised by the foster parents that the children were exhausted on the days when they travelled to and from access at H7G, and therefore recommended “Avoid car trips longer than 40 – 50 minutes.”

cc. Mother “missed” the 14-day in care meeting, conducted virtually, because she was not provided with the call-in details.

dd. On July 30, 2020, Mother had her last visit at H7G. On July 31, 2020, Ms. Parent advised Mother’s counsel that she provided Mother with “the August 2020 calendar of access for [Mother] and her daughters in the foster home.”

ee. Mother did not attend visits in the foster home on August 5, 7, 10 or 12, having expressed her concern that such visits were contrary to Piccoli J.’s Order.

ff. Mother did attend visits, with the Society providing some of the transportation for her, in the foster home on August 14, 19, 21, 24, 26 and 28. Always two, and sometimes three, Society-aligned adult persons were present at these visits. P. B. was not permitted to attend these visits.

[14] In addition, the Society’s evidence is that:

a. Hamilton Health Sciences staff alleged that Mother was spending little time with the babies while she was still in hospital, that on May 20th she “smelled strongly of alcohol and her speech was slurred” and that she had “gone missing for a few hours” on May 21, 2020 prior to her discharge on May 22, 2020.

b. On May 22, 2020, a telephone call took place between Mr. Drummond and P. B. who “would only discuss his anger towards staff at McMaster Hospital for fabricating allegations against [Mother] and his plan to file lawsuits against the hospital.”

c. It did not rely upon any information obtained from Hamilton Health Sciences in making the decision to designate GRH a “place of safety” but rather did so as a result of the subsequent observations of staff at Guelph General Hospital and Grand River Hospital (“GRH”).

d. Mother telephoned Guelph General Hospital and spoke with a nurse but did not attend at the hospital on the following dates: May 29, May 30, June 3 and June 4.

e. Mother attended at Guelph General Hospital on the following dates: May 31 and June 1.

f. P. B. telephoned Guelph General Hospital on May 29. He attended at the hospital with Mother on May 27, May 31 and June 1.

g. On June 5, 2020, a nurse at Guelph General Hospital NICU contacted Ms. Parent to advise that beds for the twins had become available in the paediatric unit of GRH but that, due to understaffing, no NICU space was available. In order to take advantage of this change of location, Mother would have to sign a contract with GRH to remain at the unit “24 hours a day/7 days a week to provide care for the twins.” Without contacting Mother, Ms. Parent declined the spot, stating that Mother “would not be able to make a contract if she was not even visiting the twins on a regular basis now…” and that she “would not be able to provide security to ensure that no one took off with the babies in a pediatric unit.”

h. On June 8, 2020, as the twins were being transferred from Guelph to Kitchener, Ms. Parent told a social worker at GRH NICU: “that according to [Mother], P. B. was not the father, and was not in an intimate relationship with [Mother]. I advised that P. B. tended to be overbearing and defiant with medical staff.” She further disclosed that she had not had contact with Mother since the twins were born and that she had received an alternate address for Mother from police that day.

i. On June 26, 2020, staff at GRH NICU expressed concern to Ms. Parent that Mother was “overwhelmed and could not process the information being provided to her” such that she was unable to bathe the babies or perform their physiotherapy exercises and was distraught and crying. Staff at GRH NICU confirmed that the babies have high needs requiring complete commitment by the caregiver and advised that only parents were permitted into the ward due to the hospital’s COVID-19 policy.[^2] P. B. was not admitted.

j. Various communications have taken place between the Society, Mother, Mother’s supports and the First Nation regarding a Customary Care Agreement. The Society supports an approved cultural family placement but is of the view that the process has not conformed to expected norms regarding timing and information flow.

k. A draft Customary Care Agreement started to circulate on August 13, 2020 listing Maternal Grandmother as the Customary Caregiver.

l. On August 20, 2020, a medical appointment took place for the twins at the West Elgin Community Health Centre. Mother arrived at the health centre accompanied by P. B., but he did not attempt to attend the appointment. Mother attended the appointment in the presence of Ms. Parent, foster placement worker Ms. Ally Farquhar and both foster parents. Three interactions amongst these various individuals took place which were interpreted by Society-aligned witnesses as demonstrative of P. B.’s aggressive and over-bearing nature; and by Mother and P. B. as further marginalization of Mother in her attempt to obtain information from the medical professionals.[^3]

Mother

[15] Mother and her partner attest that:

a. She meets with Dr. Banjo by telephone approximately every six weeks and her mental health has stabilized since being under his care.

b. She does not consume alcohol at all and views the allegation that she was “slurring her words” in a telephone conversation as an example of being stereotyped as an Indigenous woman.

c. Mother’s birth plan was to be induced at 1:00 p.m. on a Saturday at Hamilton Health Sciences (McMaster University Medical Centre). After laboring for almost thirty-six hours, Mother was given an emergency Caesarian section in the wee hours of the following Monday morning.

d. Mother was exhausted and in pain following the twins’ birth, and developed severe endometriosis following the emergency Caesarian section. She was also experiencing emotional distress and possibly post-partum depression exacerbated by her twins’ situation. She says that these factors resulted in her inability to attend the hospital as much as the children deserved in the first few weeks after their birth.

e. On July 6, 2020, Mother, via a support person from H7G, provided Ms. Parent with contact telephone numbers for her mother and other family members.

[16] It is undisputed that Mother’s post-traumatic stress disorder stems in large part from unrelated events from 2017 and 2018 that stink of racism. In 2017, a man (“K. E.”) was stalking and harassing Mother. She made a complaint to Sudbury Regional Police in August of 2017 but no charges were laid and, instead, Mother was told by police that they would warn K. E. to stay away from her. Police neither warned off K. E., nor was any report filed about Mother’s complaint. Police failed to advise Mother of K. E.’s 56 prior convictions including sex offences and an assault on K. E.’s own 18-month-old child. When K. E. later attempted to rape Mother, who fought him off and fled, he called Sudbury Regional Police who charged her with Break and Enter and Assault. Although Mother initially intended to take the matter to trial, she found the situation overwhelming and pleaded guilty to the reduced charge of unlawfully entering a dwelling house. In mid-July of 2018, a detective from Sudbury Regional Police contacted Mother to discuss her futile effort to file a complaint against K. E. and the attempted rape she subsequently suffered at his hands. Mother travelled to Sudbury to speak with this detective in person. Upon returning home to Waterloo Region, Mother received a follow-up call from Waterloo Regional Police Services (“WRPS”), calling on behalf of the Sudbury detective seeking further information. Mother agreed to provide a videotaped statement in August of 2018. These two instances of questioning by separate police agencies about the same violent assault from which Sudbury Region Police failed to protect Mother triggered her post-traumatic stress disorder such that she found herself suffering from hallucinations and fears that she was being stalked and watched.

[17] According to P. B., Mother had five significant incidents through the Fall of 2018:

a. In the third week of August (shortly after meeting with WRPS), [Mother] became panicked and hysterical, expressing to P. B. that she had thought he was dead. They went to the GRH emergency department where Mother was given medication that helped her to calm down.

b. In late August, Mother had an episode of hallucination thinking that other tenants in the apartment building were stalking her. She started to throw furniture around the apartment and, at some point, left. The following day, P. B. attended to file an incident report with WRPS in order to document the event and ask for a wellness check and was told that “if [police] investigated and found [Mother] did something wrong they would have to press charges.” P. B. left without filing a report as a result. The following day, P. B. received a call from WRPS indicating that they had “picked up” Mother and held her overnight, and a detective asked P. B. to “come in and tell [his] side of the story.” While initially intending to do so, P. B. changed his mind upon confirming that no charges would be laid, and Mother was released thereafter.

c. In mid-September, P. B. returned to their shared apartment to again find that Mother had thrown furniture around and was in great distress. P. B. called WRPS for assistance, having already been told by the Canadian Mental Health Association that no other options were available in an urgent situation, and WRPS brought Mother to the GRH mental health facility. Less than two days later, the attending psychiatrist released Mother, stating that she did not have any mental health issues.

d. A further incident took place in September such that P. B. again called police for help, but Mother left the apartment before they arrived. Later, P. B. convinced Mother to attend a walk-in clinic and, when they were turned away by that facility, to go back to the GRH emergency department. Mother left after waiting for four hours without assistance.

e. Finally, a similar and “very difficult episode” occurred in November of 2018 when P. B. again rushed Mother to GRH, with the result that she was referred to Dr. Banjo.

[18] Although no police records have been filed by the Society in its Document Brief, the Society appears to rely upon these events to suggest that Mother has a history of domestic violence. In particular, Ms. Parent has decided that Mother and P. B. have “a history of violence between them” and that, as Mother:

…is an Indigenous woman I was concerned as this is a pattern for Indigenous women to have a non-Indigenous person controlling them for a potential sexual or intimate relationship. I was concerned for [Mother’s] well-being and that she was so much younger than [P. B.].

There is no evidence of any history of domestic violence or police involvement in the relationship between Mother and P. B.

Mother’s Partner, P. B.

[19] P. B. and Mother attest that:

a. He is divorced with three adult children.

b. He is a certified public accountant and acted as external auditor to the Applicant’s sister Society in Timmins, Ontario for almost eight years.

c. His criminal record consists of one conviction for impaired driving which arose when he attempted to escape a violent assault by getting into his vehicle and driving to another location to park it, at which time he was stopped by police in the parking lot. P. B. says that his defense of necessity was disbelieved by the trial judge and he was convicted on March 25, 2015. He was required to pay a fine of $1,000.00 and was prohibited from driving for one year.

d. P. B. has maintained unwavering support for Mother, even during the periods when she was living on the streets such that he was in almost-daily contact with her.

e. P. B. supports Mother’s celebration and participation in every aspect of her culture.

f. Mother denies being controlled by P. B. and describes him as “a patient, loving support in assisting me with dealing with my issues and has been a needed advocate for me when it is required.”

Records Review

[20] What follows is a summary of the relevant information gleaned from the business records filed by the Society, admissible under sections 35 and 52 of the Evidence Act, R.S.O. 1990 c. E-23 and section 93 of the CYFSA. Note further that section 94(10) of the CYFSA provides that the court “may admit and act on evidence that the court considers credible and trustworthy in the circumstances” which has been held to include the “amplified record” (including evidence obtained since the place of safety hearing under section 88).[^4]

a. Hamilton Health Sciences noted that Mother had first trimester prenatal care and was followed by both her family physician and her obstetrician.

b. Having had syphilis in 2010 for which she completed treatment, Mother and the twins were candidates for testing for the bacterium during pregnancy. Mother had been tested and treated with penicillin in December of 2019 and again in January of 2020 and had monthly tests thereafter without any noted need for further treatment. P. B. tested negative for signs of infection in December of 2019.

c. When Mother attended for inducement as planned, she was described by one of the treating physicians as “alert and oriented. Pupils are equal and reactive to light and accommodation.”

d. The twins were delivered by emergency Caesarian section. Both twins had normal APGAR scores upon delivery.

e. The twins were placed on morphine on May 20, with phenobarbital added May 24, due to history of “methadone in pregnancy, plus antipsychotic (Olanzapine) and SNRI.” Their neonatal discharge summary notes both read: “Infant with significant NAS scores because of maternal medication requiring treatment with maximized Morphine and Phenobarbital. … Baby treated as congenital syphilis (though most likely not affected) …”

f. Baby A was born with bilateral club feet requiring daily stretching and follow up with orthopaedics. Notes indicate that she “will need casting.”

g. The twins were scheduled to be discharged to Guelph General Hospital on May 28, 2020. The day before, Social Worker Jessica Coke of Hamilton Health Sciences contacted Social Worker Mary Parent of Guelph General Hospital to advise:

i. Children’s Aid involvement had already been initiated;

ii. The Society “would be involved in babes’ discharge”;

iii. Mother “would not allow” the Society’s involvement at that time;

iv. There were “multiple agencies involved;”

v. There were “complex social issues” including “maternal mental health as well as substance abuse” and observed behaviours of babes’ mother;

h. On May 28, 2020, the day of the transfer from Hamilton Health Sciences to Guelph General Hospital, and before Mother or P. B. had been in contact with the new NICU staff, Ms. Juanita Parent called to advise Social Worker Ashley Beehoo of Guelph General Hospital that P. B. “is not to visit without mom present and is not to receive information regarding the twins over the phone. Mom must be the one to call and ask about twins and mom must be present if P. B. is in NICU.”

i. That same day, following the entry for the telephone call between Ms. Juanita Parent and Ms. Beehoo, Ms. Beehoo writes:

[P. B.] called this morning and claimed [Mother] was listening on the phone, although [Mother] was not heard. [P. B.] asked about morphine doses and was pushing for a wean as he felt babies were lethargic and overmedicated. He also asked why babies were still in PenG, RN explained a reaction to blood results and [P. B.] argued that it “wasn’t true”. RN explained he could speak to the dr [sic] about that. [P. B.] said they would be in later to see babies. No further contact today.

j. Baby A was weaned from Morphine on May 31, 2020. Baby B was weaned from Morphine on June 22, 2020.[^5] Phenobarbital was discontinued for both babies on June 12/13, 2020.

k. Mother’s attendance at Guelph General Hospital was sporadic.

l. Mother’s attendance at GRH was uneven such that, although in mid-June of 2020 she had “been coming in and doing some periods of care and handling her babies more and more,” she did not attend to provide any baby care between June 25th and 27th such that one of the GRH NICU nurses contacted the Society with that update.

m. On July 27, 2020, following an appointment at which Mother was present, London paediatrician Dr. D’Souza made the following comments on the Eagle’s Nest Medical Form after confirming his knowledge of the existing Order of Piccoli, J. [sic]:

I am not mother’s physician but the infants’. I do not believe it is their best interests to spend 3 hrs in a car twice a week to support a court order. My medical directive is to stop these trips. To successfully place the twins back with mother, provide her with training and support. I recommended that mother is provided housing proximal to the foster parents home for 6 weeks. In that period, mother will actively participate in the care of the both children, then have supervised care of the children and finally solo care with support. On demonstrating competency, mother may have her children.

Issues with the Service Relationships

[21] I pause here to note that the Society alleges that Mother has been disengaged with them and with the medical officials, and that P. B. has been “overbearing” and aggressive in his demeanour. The Society specifically claims that Mother and P. B. have questioned medical directives and that this implies that they will not follow prescribed courses of treatment for these medically-fragile babies. Throughout her Affidavit material, Ms. Parent suggests that Mother’s refusal to meet with her in the absence of a support person shows that P. B. controls her.

[22] From the outset of her involvement, Ms. Parent’s approach appears high-handed rather than collaborative. Despite her assertion that she brings cultural sensitivity to her role, she ambushes Mother with discrepancies in details learned from persons in positions of established authority.[^6] She has told variations of the power imbalance narrative to a number of persons in positions of authority over Mother. By June 8, 2020, before having met P. B. in person, she had spread this story to an Officer of the WRPS and to hospital staff. On June 15, 2020, she wrote condescendingly to the Executive Director of H7G:

I clearly emailed you Donna on June 9/2020 and called you with a voicemail message, and requested your presence Donna either in person or on the phone when I was to attend [to meet Mother at a home visit] on June 15 @ 830AM. There is a history of violence between them, an intimate relationship for over 3 years, and it is not appropriate at this time to have a conversation with both of them present, which I have been clear about with you and [P. B.] [sic]”

[23] Ms. Parent maintained this opinion without any evidence of any abuse perpetuated by P. B. against Mother. Recall that when Ms. Parent met Mother, Mother was 31 years of age. It is not surprising that this service relationship is irreparably tainted.

[24] Finally, the notations made by Dr. D’Souza on July 23, 2020 regarding his views of Piccoli J.’s Order are of great concern. This court would not presume to opine about the best course of medical treatment for one of his patients; he should not presume to have the ability to issue a “medical directive” authorizing parties to breach a court order. It is the height of arrogance for him to continue by setting out a plan which concludes with: “On demonstrating competency, mother may have her children.” Dr. D’Souza purports to don the mantle of the Superior Court of Justice in deciding the legal fate of these twins. That is not his role. He must stick to his job of managing the medical conditions of his patients and allow my colleagues and I to stick to our job in upholding the rule of law.

[25] Mother’s assertion that her past experiences have made her extremely wary of unwitnessed interactions with persons in authority is understandable. She feels marginalized if she or P. B. ask any questions about the courses of treatment recommended for the twins. Effectively, they are branded as contrarian for challenging unilateral expressions of authority. In view of all of the circumstances, the approaches taken by Mother and P. B. are not surprising.

Analysis

A. Placement of Children with Mother

[26] This is an interim proceeding, and therefore sections 90 – 94 apply. Sections 94(2); and (6) are the most significant for today’s purposes, and they read:

94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

94 (6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision;

(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

[27] Section 74(3) of the CYFSA sets out the criteria in determining a child’s best interests. It is reproduced as Schedule “A” to these Reasons. My conclusions regarding the augmented best interests test applicable to Indigenous children incorporating the federal legislation is set out below, and it should become apparent that I have applied the factors of the augmented best interests test in my discussion of the Society’s areas of concern.

[28] The Society relies upon two broad areas of concern about Mother: (1) her history; and (2) her inability to care for the children.

[29] The connection between a parent’s history and the unique situation in cases of newborn apprehension was succinctly described by Kukurin, J. in Children’s Aid Society of Algoma v. R.T.[^7]:

The oddity in newborn apprehensions is that there was no custodian or caregiver for the child. The child is a new arrival to terra firma. There is no history of care giving with respect to the child. The evidence as to risk of harm, in such cases, has to do with the history of the person who is entitled to have custody of the child. This history may be dated or recent, and may relate to a person’s care giving to another child, or children. It may also be in relation to the period of gestation of the child who is the subject of the proceeding. This history can, and often does, involve the lifestyle of the child’s custodian, or his or her cognitive level of functioning, or his or her ability to parent effectively, or such person’s challenges or handicaps, both physical and mental.

[30] The court has to start with the premise that a biological parent is entitled to parent his or her child. All parents start as first-timers: no inference should be drawn that a new parent cannot adequately care for his or her child.[^8] In this case, Mother was not known to the Society before a service provider at a prenatal program that Mother chose to attend called to report that, in the caller’s view, P. B. “did all the talking” for Mother, who was on the methadone program. The caller expressed concern that there would not be sufficient room in their one-bedroom apartment for the twins, although the caller had not visited the home, citing COVID-19 policy for that choice. The caller expressed concern about three other adults allegedly living in the apartment, but P. B.’s evidence is that there were three adults in total living in the apartment at the time: P. B., Mother and another community member who was upgrading his computer analytics degree from the University of Waterloo and who returned home to Timmins, Ontario shortly thereafter. To summarize, Mother’s attendance at a voluntary prenatal program with her support person on April 27, 2020 was used against her because she is under medical care for her historic opiate use and lives in a one-bedroom apartment. It is little wonder that Mother and P. B. believe that she was racially profiled, and that P. B.’s initial words when Society worker Mr. Drummond telephoned Mother two weeks later were: “this is not okay.”

[31] During the balance of Mother’s pregnancy, Mr. Drummond confirms he was advised of the following:

a. Mother had attended all medical appointments, was taking vitamins and had been told that the babies were healthy; and

b. Mother had the support of H7G and had attended women’s healing circles.

[32] The details of Mother’s dreadful treatment by Sudbury Region Police in 2017 and her subsequent involvement with WRPS, who P. B. contacted for help with Mother’s mental health in the Fall of 2018, also form part of her history. Her birth plan, inclusive of anticipated medicating of the babies as a result of prescriptions taken to manage her mental health and addiction, is part of her history. Her success with the methadone program is part of her history. Considering her lived experiences and the steps she has taken to address their impact upon her ability to parent, her history supports placement of the twins in her care.

[33] Three factors clearly do impact Mother’s ability to care for the children: (1) her anxiety and attendant issues; (2) the significant burden of caring for twins in general; and (3) the additional therapeutic needs of these children (Baby A needing physiotherapy to address the congenital club feet and Baby B needing physiotherapy to address the muscles in her neck). Mother is personally at a reduced capacity to contend with new parenthood in general and with medically-fragile children specifically through no fault of her own. She has made great strides since the dark days of 2018 and, although she relapsed approximately one year ago, learning of this pregnancy has given her the impetus to prioritize her mental health. Secondly, Mother sees her twins as the blessing that they are, but it would be disingenuous to fail to recognize that, as one of the GRH NICU nursing staff noted in soothing Mother, feeling overwhelmed “was normal as she had two babies.” The third compounding factor is that the twins need daily physiotherapy care now and will need additional treatment (such as Baby A’s anticipated need for casting of both legs) in the future. While we all hope that the twins’ long-term medical prognosis will be excellent, the stress of providing daily medically-prescribed therapy to one’s own children should not be minimized.

[34] Mother and P. B. were extremely reluctant to meet with workers and would not agree to a home visit until the last minute. Ms. Currie argues that these were the biggest issues blocking the Society’s ability to evaluate the option for placement with Mother on terms. Particularly having regard to the twins’ special needs, the thwarting of a home visit and the inability of Society staff to engage with Mother directly on a personal level made the situation unworkable. The Society viewed Mother’s cagey approach in misrepresenting the apartment’s buzzer information as “game playing”. Certainly, it was an error by Mother not to ensure that a home visit took place, but each person’s own lived experience informs his or her approach in navigating communication with authority figures. I am not prepared to conclude either that the Society engaged in racial profiling necessitating a self-protective approach by Mother or that she was intentionally playing games with Society staff. Regardless, I was advised at the hearing that the required buzzer information had been provided and that a home visit would be scheduled forthwith. I am hopeful that, as of the release date of these Reasons, the home visit has already taken place.

[35] Mother has the support of her partner, P. B.; of the local Indigenous community through H7G; and of the Society. Despite Ms. Parent’s misgivings about P. B., it is important to note that through the Summer and Fall of 2018 he contacted police and the Canadian Mental Health Association seeking help in addressing Mother’s mental health. This, and a traffic stop involving a bicycle, is the extent of Mother’s police involvement (being relevant to the inquiry under s.10(3)(g) and 10(3)(h) of Bill C-92). P.B. reached out to authorities with the eventual result that Mother was connected to Dr. Banjo in whose care her mental health has improved dramatically. While this early chapter of interactions with the Society has gone poorly, all involved appear to feel that an Indigenous Healing Circle will provide a path toward a more positive and collaborative relationship that places its focus squarely on the best interests of the twins. Moving forward, I see no reason to think that P. B. would not contact the Society for assistance as part of his support of Mother’s care for the children.

[36] As noted above, Mother indicated her agreement to a Temporary Supervision Order on terms as set out in the Society’s Plan of Care under the heading “Expectations” comprising paragraphs (a) through (j). Those terms address all three of the Society’s concerns regarding Mother’s ability to care for the children as described above. Mother must follow the plan outlined by Dr. Banjo including taking all medications as prescribed. Mother will attend a relapse prevention program. Mother and P. B. will attend parenting counselling, which ideally could be tailored to parents of multiples.[^9] Mother and P. B. will learn the physiotherapy treatments for the children and will participate in those treatments in addition to managing the children’s medical appointments.[^10] Mother will be required to ensure that the Society has unfettered communication with service providers working with the children, so that any issues that may arise can be addressed immediately. Without making any evidentiary finding of the existence of a power imbalance between Mother and P. B., I am nonetheless ordering Mother to participate in counselling regarding power imbalances in relationships which can only benefit her self-described “timid” personality.

[37] I find that the least intrusive course of action in the best interests of these twins is to return them to Mother’s primary care, with the support of P. B., on the terms of supervision set out at the end of these Reasons.

B. CYFSA and the Federal Legislation

[38] With respect to the issue of placement of the children if they remain in care, the Society argues that it is required, by operation of section 16(1) of Bill C-92, to place the twins in an Indigenous foster home located at a distance from Waterloo Region rather than with a local non-Indigenous foster family. Although my primary conclusion (that the least intrusive order in the children’s best interests is their return to Mother with the support of P. B. on terms of supervision) renders this issue moot, it would be a disservice to this family and indeed to all connected with the Ontario child protection system to ignore this pressing question of interpretation.

[39] At issue is the impact of the federal legislation that came into force on January 1, 2020. The following specific sections of Bill C-92 are germane to this matter:

Preamble

Whereas Parliament recognizes the legacy of residential schools and the harm, including inter-generational trauma, caused to Indigenous peoples by colonial policies and procedures;

Whereas Parliament affirms the need

to take into account the unique circumstances and needs of Indigenous elders, parents, youth, children, …

to eliminate the over-representation of Indigenous children in child and family services systems,

4 For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.

8 The purpose of this Act is to … (b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children;

9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

9 (2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

9(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts:

(b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, …

10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

10 (2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

10 (3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including

(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

11 Child and family services provided in relation to an Indigenous child are to be provided in a manner that

(a) takes into account the child’s needs, including with respect to his or her physical, emotional and psycho-logical safety, security and well-being;

(b) takes into account the child’s culture;

(c) allows the child to know his or her family origins; and

(d) promotes substantive equality between the child and other children.

16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child’s parents;

(b) with another adult member of the child’s family;

(c) with an adult who belongs to the same Indigenous group, community or people as the child;

(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or

(e) with any other adult.

[40] To summarize, therefore, the best interests of the Indigenous child are the paramount consideration in determining the placement of that child. The hierarchy of placements is to be followed where it is consistent with the Indigenous child’s best interests in the context of promoting substantive equality between the Indigenous child and other children.

[41] How are the best interests of an Indigenous child determined? Only two factors in the inclusive list set out at section 10(3) of Bill C-92 regarding the best interests of an Indigenous child do not already exist in the more comprehensive list of factors at section 74(3) of the CYFSA. Those two factors are 10(3)(g) regarding family violence and 10(3)(h) regarding any civil or criminal proceeding, order or measure relevant to the child. Having regard to section 4 of Bill C-92, these two factors are therefore to be added to the list of factors set out at section 74(3) of the CYFSA when analyzing the best interests of the Indigenous child in Ontario. Otherwise, the provincial legislation is not in conflict or inconsistent with the federal legislation, and therefore the thus-augmented CYFSA best interests test governs.

[42] What is “substantive equality” and how can it be promoted in the child protection context? The academic discourse is vigorous and on-going,[^11] so rather than embarking upon a detailed and lengthy discussion of such pithy issues, I rely upon the following tiny excerpts of reasoning by far more experienced jurists than I to provide a basic understanding of the term “substantive equality.”

a. Justice McIntyre’s ground-breaking reasons in Andrews v. Law Society of British Columbia[^12] starts off this discussion. In that case, the Supreme Court was asked to consider whether the requirement of Canadian citizenship for admission to the British Columbia bar was discriminatory under section 15(1) of the Charter in a manner not demonstrably justifiable under section 1. In rejecting the concept of equality of application of the law to similarly-situated groups or individuals, Justice McIntyre wrote[^14]:

…mere equality of application to similarly situated groups or individuals does not afford a realistic test for a violation of equality rights. For, as has been said, a bad law will not be saved merely because it operates equally upon those to whom it has application. Nor will a law necessarily be bad because it makes distinctions.

It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.

b. The human need for substantive equality was affirmed by Justice Cory’s words in Vriend v Alberta[^15], in finding that Alberta’s human rights legislation infringed section 15(1) of the Charter by not including sexual orientation as a prohibited ground of discrimination:

Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection.

c. Substantive equality supports, and in some ways enables, the dignity of personal autonomy and self-determination.

The principle of personal autonomy or self-determination, to which self-worth, self-confidence and self-respect are tied, is an integral part of the values of dignity and freedom that underlie the [Charter’s] equality guarantee ... Safeguarding personal autonomy implies the recognition of each individual’s right to make decisions regarding his or her own person, to control his or her bodily integrity and to pursue his or her own conception of a full and rewarding life free from government interference with fundamental personal choices.[^16]

[43] Unlike Mother’s home territory of Constance Lake First Nation, there is no established First Peoples governance structure in Waterloo Region. Living in Waterloo Region, Mother has connected with the local community, which includes a broad diaspora of First Peoples, through H7G.[^17] As the twins are young babies, Mother’s connection with H7G is their connection with the local First Peoples community. It cannot be correct to disconnect an Indigenous child from culturally-supportive resources already accessed by her parent in favour of alternatives which, although undoubtedly excellent in their own right, are inaccessible as a result of geographic distance. If, as the Society argues, its goal is to return children to their parents’ care wherever possible, then it seems logical to support Indigenous parents living in Waterloo Region in accessing local cultural resources.

[44] Most importantly, though, is the growing bond between the children and Mother (and, by extension, P. B.). The evidence includes reference to challenges experienced by Mother in travelling to and from Hamilton and Guelph when the children were in hospital in those cities. Transportation accommodations were made by the Society (first with gas cards and thereafter with a driver) to facilitate Mother’s visits at the foster placement in the London area. If the children remain there in a culturally-matched foster placement with the result that their time spent with Mother is curtailed due to transportation constraints, this has the effect of prioritizing a statutorily-driven cultural match with strangers over the parent-child relationship. A barrier is created that would not form itself for a child of the demographically-dominant group, that being Canadians of primarily European descent here in Waterloo Region. Thus the struggle between “affirmative action” legislation and practical reality has a direct impact on two little babies. The practical reality, a separation from Mother that would be less likely to occur if the children were not Indigenous, flies in the face of Bill C-92’s goal of promoting substantive equality between First Peoples and other Canadians.

[45] Therefore, if I am wrong in finding that it is in the twins’ best interests to be returned to the care of Mother and her partner, P. B., I find that it is in their best interests to be placed with a foster family as geographically close to Mother’s residence as possible regardless of the foster parents’ ethnicity.

Order

[46] Based on all of the foregoing, Temporary Order to go:

1. The children, [names and birthdates redacted], are placed in the care and custody of their mother, Mother, and her partner, P. B., subject to the supervision of The Children’s Aid Society of the Regional Municipality of Waterloo on the following terms and conditions:

a. Mother and P. B. will co-operate with The Children's Aid Society of the Regional Municipality of Waterloo.

b. Mother and P. B. will meet with a worker from The Children's Aid Society of the Regional Municipality of Waterloo at the home, agency and/or community as requested by the worker.

c. Mother and P. B. will sign consents to release information to allow The Children's Aid Society of the Regional Municipality of Waterloo to communicate with service providers and vice versa.

d. Mother and P. B. will advise The Children's Aid Society of the Regional Municipality of Waterloo in advance of any change in address and/or telephone number.

e. Mother and P. B. will allow a worker from The Children's Aid Society of the Regional Municipality of Waterloo to have access to the home and to [the children] at home and at school on both a scheduled and unscheduled basis.

f. Mother and P. B. will consistently maintain a safe and stable home environment.

g. Mother and P. B. will learn the physiotherapy and ongoing medical requirements for the children and will engage in doing the services as demonstrated.

h. Mother will attend and successfully complete individual and/or group parenting counselling, at an Agency approved by The Children's Aid Society of the Regional Municipality of Waterloo.

i. Mother will follow the plan outlined by her mental health practitioner to address her mental health concerns. If taking prescribed medication is part of that plan, she will advise The Children's Aid Society of the Regional Municipality of Waterloo immediately if any medication has been discontinued.

j. Mother will actively participate in a relapse prevention program for addictions at an agency approved by The Children's Aid Society of the Regional Municipality of Waterloo and will follow through with all treatment recommendations offered by the service provider.

k. Mother will attend and successfully complete individual and/or group counselling to learn about power imbalance and the abuse of power in relationships at an Agency approved by The Children's Aid Society of the Regional Municipality of Waterloo and will follow through with treatment recommendations offered by the service provider.

2. Approval of this Order by unrepresented parties is waived.

3. Matter is returnable on Tuesday, September 22, 2020 at 11:20 a.m. to be spoken to (as previously scheduled).

J. Breithaupt Smith, J.

DATE: September 15, 2020

Schedule “A”

74 (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.

[^1]: Although there is mention in the evidence of an alleged further diagnosis of “Schizophreniform disorder,” that information comes from a staff person at Hamilton Health Sciences who Mother and P. B. allege was racially prejudiced against Mother, and the information is not otherwise corroborated in the evidence presented.

[^2]: The impact upon Mother of the hospital’s COVID-19 response is obvious: with no other “parent” involved, she was precluded from bringing any support person with her.

[^3]: The incident is also significant as a further example of Mother being obligated to attend meetings regarding the children without her own support person but in the presence of multiple Society-aligned individuals.

[^4]: Children’s Aid Society of Niagara Region v. B.(C.), 2005 32915 (ON SC) at paragraph 83.

[^5]: It is concerning to see considerable discrepancies in the medical notes regarding the medications provided to the twins and the rationale behind dosages. In Dr. R. Bihun’s June 24th note from GRH NICU, the following appears: “Mom used multiple substances (methadone, fentanyl, cocaine, crystal meth and psychotropic agents).” Based on the evidence presented, this is inaccurate at best and, at worst, could suggest to the reader that Mother was actively using throughout her pregnancy. Similarly, Dr. Bihun notes, regarding the Finnegan Neonatal Abstinence Score: “Secondary to Methadone use during pregnancy (as well as ? Fentanyl). Unclear what max morphine dose was as this is not documented in available records.”

[^6]: See the event described at paragraph 13(v) of these Reasons, where Ms. Parent attests to taking the step of underscoring the involvement of medical establishment witnesses to Mother’s statement to her. During that discussion, Ms. Parent challenged Mother’s recitation of her address, saying “that was not the address she gave to the police.” One wonders why Ms. Parent would reference Mother’s contact with police in front of two hospital social workers if her goal was to support Mother and nurture their working relationship.

[^7]: 2012 ONCJ 455 at paragraph 10 (note that this case was decided under the former legislation.

[^8]: Children’s Aid Society of Algoma v. R.T., supra at paragraph 21.

[^9]: I note the existence of the local organization “KW POMBA” which states the following on its website, http://kwpomba.ca/, retrieved September 10, 2020: “Our mission is to provide guidance, support and encouragement to families and expectant families of multiples. We aim to connect our members with each other, and with relevant resources in our community so they can better enjoy their unique parenting experiences.”

[^10]: In considering the hospital’s statements about Mother’s ability to engage with the physiotherapy needed by both of the twins, one wonders what those observations might have been, had the hospital’s COVID-19 response policy not prevented P. B. (or any other person) from attending to support Mother and participate in that learning process.

[^11]: For a persuasive and interesting read on this topic, see: Sangiuliano, Anthony Robert. "Substantive Equality As Equal Recognition: A New Theory of Section 15 of the Charter." Osgoode Hall Law Journal 52.2 (2015) : 601-646.

[^12]: 1989 2 (SCC), [1989] 1 SCR 143 (“Andrews”).

[^13]: The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”).

[^14]: Andrews, supra, at paragraph 28.

[^15]: 1998 816 (SCC), [1998] 1 SCR 493 at paragraph 102.

[^16]: Excerpt from LeBel, J.’s dissenting opinion as part of the complex and divided reasons of the Supreme Court of Canada in Quebec (Attorney General) v. A., 2013 SCC 5, [2013] 1 SCR 61 at paragraph 139.

[^17]: The following mission statement appears on the website for Healing of the Seven Generations, https://healingofthesevengenerations.ca, retrieved September 10, 2020: “The Healing of the Seven Generations assists First Peoples residing in the Region of Waterloo and surrounding areas. We work with individuals and families who are suffering the inter-generational impacts of the residential school system. This includes growing up in dysfunctional families; emotional, physical, sexual, and spiritual abuses; poor self-esteem or poor self-image as a First Peoples person; loss of culture; lack of awareness of cultural identity, teachings, values, and traditions; poverty, and addictions. We welcome First Peoples from all ages, genders, and cultural groups, including status and non-status First Nations, Métis, and Inuit individuals and families.”