The Children’s Aid Society of Ottawa v. I.L., E.L. and I.O.
COURT FILE NO.: FC-14-2273
DATE: May 11, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
I.L., E.L. and I.O.
Respondents
Judith Hupé for the applicant
Lisa Sharp for the respondent E.L.
Cedric Nahum for the respondent I.O.
HEARD: April 12, 2021
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 Act, 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.
reasons for judgment
Justice Sally Gomery
[1] This application concerns the care of I.L. (“Ileana”), born […], 2018 and now almost three years old.[^1] Her parents E.L. (“E.L.”) and I.O. (“I.O.”) had a volatile relationship punctuated by incidents of domestic violence. On November 21, 2018, when she was four months old, Ileana was found to be in need of protection, removed from E.L.’s care and placed in foster care. On April 14, 2020, Ileana was placed in the care of E.L.’s former partner, D.D. (“D.D.”), under a temporary supervision order. Ileana has since lived with D.D. and two half-siblings who are now 16 and 18 years old. She currently spends two days each week at her mother E.L.’s residence. E.L. also stays at D.D.’s home on weekends. Ileana has not seen her father I.O. for about eighteen months.
[2] The Children’s Aid Society of Ottawa (the “Society”) seeks a summary judgment on this protection application. It asks for a final order under section 102(1) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, sched. 1 (“CYFSA”) that would give E.L. and D.D. joint decision-making responsibility over Ileana, without prejudice to E.L.’s right to seek exclusive responsibility in the future. Ileana would continue to live at D.D.’s residence most of the time but would spend two days each week at E.L.’s residence. E.L. would also spend each weekend with Ileana and her two half-siblings at D.D.’s residence. Any contact with I.O. would be supervised and he would continue to be prohibited from any direct communication with E.L..
[3] E.L. consents to the proposed order. I.O. opposes it on the basis that the issues on the application should not be adjudicated by summary judgment motion. He contends that there is a genuine issue requiring trial with respect to whether Ileana’s best interests are served by the proposed order, because (1) he would like to share decision-making responsibility with respect to Ileana with E.L.; (2) he does not see any basis for giving D.D. any decision-making responsibility over Ileana; and (3) the Society’s proposed plan would not allow him to teach Ileana about her First Nations heritage and pass on Indigenous traditions to her.
[4] For the reasons that follow, I find that this is an appropriate case for summary judgment. I am able, on the evidence filed, to make a fair determination of the issues. I further find that the Society’s proposed order is in Ileana’s best interests. I therefore grant the motion.
Legal principles applicable to this motion
[5] Further to r. 16 of the Family Law Rules, a party may move for summary judgment without a trial on all or part of the claim. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence filed by the parties and may exercise certain powers for the purpose of making this determination, “unless it is in the interest of justice for such powers to be exercised only at a trial”. These powers, set out at r. 16(6.1) include the power to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence.
[6] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (“Kawartha-Haliburton”), the Court of Appeal held that the principles applicable to summary judgment motions in civil matters apply in summary judgment motions governed by r. 16. There will accordingly be no genuine issue requiring a trial when the judge hearing the motion is able to reach a fair and just determination on the merits, that is, where the summary judgment process allows the judge to make the necessary findings of fact, to apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than a full trial: Hryniak v. Mauldin, 2014 SCC 7. In deciding whether summary judgment will be fair, the question “is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”; Hryniak, at para. 50.
[7] Application of this standard in child protection matters is subject to important qualifications, however. The Court in Kawartha-Haliburton noted at para. 63 that: “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.” This is due to the Charter implications of child protection proceedings, particularly in proceedings involving Indigenous children; the practical difficulties faced by many parents involved in child protection proceedings; and a longstanding recognition by courts in child protection cases that summary judgment ought to be used only where there is “no realistic possibility of an outcome other than that sought by the applicant”; Kawartha-Haliburton, at paras. 65 to 79.
[8] At para. 80 of Kawartha-Haliburton, the Court of Appeal summarized the principles applicable to summary judgment motions in child protection proceedings, as follows:
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.
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.
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.
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.
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[9] Notwithstanding the evidentiary burden on the party seeking summary judgment, a party opposing it must have some foundation to assert that there is a genuine issue for trial. In Children's Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), the court held that, in the context of determining the placement of a child in need of protection, the genuineness of an issue “must arise from something more than the heartfelt expression of a parent’s desire to resume care for the child”; see, to the same effect, Children’s Aid Society of Ottawa v S.K., 2015 ONSC 4623, at para. 82.
The evidence on the motion
[10] The Society relies on affidavits by three child protection workers who have been involved with the family since April 2019. I.O.’s lawyer, Mr. Nahum, objected to some of this evidence on the basis that it was hearsay. As already noted, the usual rules of evidence apply in the context of summary judgment motions, and evidence that would be inadmissible at trial is equally inadmissible on a motion like this. Some passages in the Society’s affidavits do rely on second-hand information relating to background facts. This does not make the affidavits as a whole inadmissible. Mr. Nahum was unable to identify any hearsay evidence critical to the determinations I must make on this motion.
[11] At the hearing, I.O. also objected because E.L. had not filed an affidavit saying she consents to the Society’s proposed plan of care. After the hearing, however, an April 14, 2021 affidavit sworn and signed by E.L. was filed with the court. In it, she confirms that she has consented to the proposed order and explains why.
[12] An unsigned and unsworn affidavit by I.O. was filed by Mr. Nahum. I allowed him to present arguments at the motion based on the unsigned affidavit but directed that he either file a signed version or other evidence establishing that it was reliable. Mr. Nahum subsequently filed an affidavit from an articling student in his office, stating that he had reviewed the affidavit with I.O. during a virtual meeting on April 6, 2021 and that it accurately reflected I.O.’s evidence on the motion. The student explained that he had been unable to obtain a sworn version because I.O. is in the Ottawa-Carleton Detention Centre, which is currently in lockdown for public health reasons. Based on this further affidavit, I accept I.O.’s unsigned affidavit as reliable evidence of his views.
[13] There is another important source of evidence on the motion. In June 2019, Justice MacLeod issued detailed reasons for judgment following a lengthy trial of the Society’s application for an order for extended care for Ileana’s two older siblings: Children’s Aid Society of Ottawa v. E.L., 2019 ONSC 3724 (“CAS v. EL 2019”). Section 93 of the CYFSA provides that a court may consider the past conduct of a person toward a child in making a decision about that person’s role and access with respect to the child, and that “any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence”. MacLeod J. made numerous findings of fact with respect to the family’s history that inform the decision on this motion.
[14] A second decision was rendered by R. Smith J. in 2020, granting an order placing Ileana’s third sibling into extended Society care: Children’s Aid Society of Ottawa v. E.L. and I.O., 2020 ONSC 1598 (“CAS v. EL 2020”). Smith J. relied heavily on the findings in CAS v EL 2019, but also made his own factual determinations with respect to events in 2019-20. These findings are also relevant to the issues on this motion.
Is there a genuine issue requiring a trial in this case?
[15] Guided by the principles set out in Kawartha-Haliburton, I conclude that there is no genuine issue requiring a trial in this case. The process in this case allows me to make the necessary findings of fact, and to apply the law to those facts, in order to reach a fair and just determination on the merits of the Society’s application. Adjudication of the application on the basis of this motion is, in the circumstances, a proportionate, more expeditious and less expensive means to achieve a just result than a full trial.
[16] As held in Kawartha-Haliburton, 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. I find that the Society has met this onus.
[17] I reach this conclusion conscious of the need for caution. Caution is required in every child protection case, but particularly where the court is considering a final placement order in the context of a summary judgment motion. The need for caution is heightened in this case, because Ileana is indigenous, and the Society proposes that a non-Indigenous person, D.D., would have a significant role in her life, despite I.O.’s objections. Based on the findings in CAS v EL 2019, I.O. and E.L. are burdened with the challenges faced by many parents involved in child protection proceedings, as well as additional issues stemming from negative experiences as Indigenous persons in Canada.
[18] In this case, however, there are no serious factual disputes that would prevent me from reaching a conclusion on the merits of the Society’s application and hence raise a genuine issue for trial. The evidence filed by the Society and E.L. is effectively uncontradicted. It is supplemented by established findings of fact in CAS v EL 2019 and CAS v EL 2020. I.O.’s affidavit consists largely of his views as opposed to any additional facts that would be relevant to the determination that the court must make. I take very seriously the concerns raised about Ileana’s exposure to her Dene heritage, culture, traditions and practices. He has not, however, provided the court with any viable alternative to the Society’s plan, evidence that factually contradicts the evidence of the other parties, or evidence that Ileana’s placement with D.D. will foreclose her identification with or knowledge of her indigenous heritage.
[19] In these circumstances, I am able to make the necessary findings of fact almost entirely without resorting to the special powers given to me in r. 16(6.1). To the extent I need to draw on these powers, it is for the limited purpose of drawing inferences based on I.O.’s affidavit evidence. By reviewing the uncontradicted evidence and drawing these limited inferences, I am able to make the necessary determinations of fact and apply the relevant legal principles to those facts in order to resolve the dispute fairly and justly, without the necessity of a full trial
Facts
[20] Ileana is now almost three years old. She is described by D.D. as an “outspoken, happy little girl” who gets along well with other family members.
[21] Ileana has lived with D.D. and his two children, her half-siblings, now 16 and 18 years old. She has lived there for over a year. E.L. is very present in her life, as Ileana spends two days each week at E.L.’s residence, and E.L. also stays at D.D.’s house on weekends.
[22] Ileana is Indigenous. Her mother E.L. is Inuk and grew up in Iqaluit. Her father I.O. is First Nations and registered with the Yellowknives Dene First Nation.
[23] In CAS v. EL 2019, at par. 35, MacLeod J. described E.L. as “articulate, intelligent, educated and fluent in both Inuktitut and English”. He stated that she was deeply respectful of Inuit teachings and culture and had also adopted some First Nations practices. He also found that E.L. has dealt with enormous hardship during her life, including a childhood marked by poverty, alcoholism and sexual abuse. She has been diagnosed with PTSD, anxiety and a borderline personality disorder. By her own admission, E.L. has addictive personality traits and has occasionally used drugs including crack cocaine. She has a criminal record for assault.
[24] I.O. was born in Edmonton, adopted by a white family and raised in Ottawa. He was described by MacLeod in CAS v. EL 2019 at para. 47 as an articulate person who demonstrates “deep respect for his traditions and a willingness to teach and share”. After growing up with little exposure to his indigenous culture, I.O. sought out information about First Nations traditions in his teens and later spent years in the United States studying indigenous cultures there. On his return to Canada, he was adopted by an Algonquin clan mother and became involved in indigenous community activities in Ottawa.
[25] Like E.L., I.O. faced significant hardships while growing up. This has left deep scars. He had learning difficulties as a result of Fetal Alcohol Syndrome. He was the victim of racist incidents in high school, which he did not complete. I.O. was sexually abused after running away from home and has struggled with alcohol addiction. He developed PTSD after spending time in the Canadian military. He has a criminal record, which will be discussed further below.
[26] D.D. was raised in Gatineau, Quebec and is of Eurocanadian descent. He and E.L. met when they both lived in Iqaluit and moved south together when E.L. was 18 years old. While E.L. lived with D.D., she completed high school and some college, and then worked as a counsellor at Tungasuvvingat Inuit and later Inuit Tapiriit Kanatiami. Ileana’s half-siblings are Inuk and Eurocanadian and they speak both Inuktitut and English fluently.
[27] E.L. met I.O. when her relationship with D.D. was ending. They had five children together, including Ileana. The eldest was born in 2014 and the youngest, who died at the age of three weeks, in 2020.
[28] E.L. and I.O.’s relationship was described in CAS v EL 2019 as “turbulent” and “chaotic”. E.L. was convicted of assaulting I.O. and another woman on one occasion. I.O. assaulted E.L. repeatedly. As a result, all four of E.L. and I.O.’s surviving children, including Ileana, have been found to be in need of protection.
[29] MacLeod J. found that E.L. and I.O.’s two eldest children “had been exposed to significant domestic violence” and that E.L. and I.O. continued to live in an “unstable, volatile relationship” in February 2019. He also found that they had violated court orders and had failed to cooperate or be truthful in dealing with the Society. E.L. and I.O.’s history and dynamic, including their repeated breach of orders to stay apart to avoid exposing their children to domestic violence, led MacLeod J. to conclude that the best interests of Ileana’s two eldest siblings would not be served by returning them to their parents.
[30] A year later, Smith J. found that there had been a further series of violent incidents involving E.L. and I.O. after they began living together again in 2019. These episodes led to criminal charges laid against I.O.. On November 15, 2019, E.L. moved to a new apartment, the location of which was unknown to him. E.L. and I.O. had not resumed contact when Smith J. heard the Society’s summary judgment motion three months later. I.O. had not filed a plan of care and behaved so aggressively that he had to be removed from the courtroom. Smith J. concluded that E.L. and I.O.’s third child remained in need of protection from I.O., and that there remained a risk that E.L. and I.O.’s relationship would resume. Taking into account E.L.’s consent to the Society’s proposed order, he held that the child’s best interests would be met by placing her in extended Society care, with access by her parents and siblings at the Society’s discretion, and a plan for her adoption by kin.
[31] E.L.’s living arrangements over the past year show that D.D. fully supports her contact with their children and with Ileana. E.L. lived full-time at D.D.’s home for several months in 2020. She stayed there initially after March 2020 because she otherwise would have been unable to cross the Quebec-Ontario border to see her children during the first few months of the Covid-19 public health restrictions, and remained there over part of the summer for health reasons. According to E.L.’s affidavit and the affidavit of Matthew Lafosse, the Society worker involved with the family since April 2019, she and D.D. share decision-making responsibilities for their two teen-aged children and Ileana.
[32] An email from the Victim Witness Assistance Program attached to E.L.’s affidavit states that I.O. was found guilty of assault, assault causing bodily harm, sexual assault and unlawful confinement on March 26, 2021. These charges are apparently based on incidents of domestic violence against E.L.. I.O.’s bail has been revoked. It is not clear when he will be sentenced or how much custodial time he will be obliged to serve.
[33] Although I.O. has not seen Ileana for over 18 months, he says that he now feels that he is stable enough to start rebuilding his relationship with Ileana once he is released, without predicting when this might occur. He expresses concern, based on his own background, that D.D. will not be able to ensure that Ileana is exposed to First Nations culture or traditions:
I was raised in a white home without the benefit of my indigenous culture being passed on to me. I had to learn this on my own as an adolescent and it took a long time for me to be able to establish my cultural identity.
I was a victim of the Sixties Scoop and now my children are part of the millennial scoop. I am hoping to stop this cycle by allowing my daughter to be raised by her parents and knowing directly from her parents, who she is and where she comes from.
I believe it is in [Ileana’s] best interest to have me in her life so that I can properly teach her and pass on our traditions that I have learned from elders.
Is the proposed order in Ileana’s best interests?
[34] The central issue is whether Ileana’s best interests are served by permanent placement with E.L. and D.D., who would also exercise decision-making responsibility together. I.O. objects to the proposed order because (1) he would like to share decision-making responsibility with respect to Ileana with E.L.; (2) he does not see any basis for giving D.D. any decision-making responsibility over Ileana; and (3) the Society’s proposed plan would not allow Ileana to learn about her First Nations heritage or for I.O. to pass indigenous traditions on to her.
[35] With respect to the first two objections, I find that the facts, and the application of the law to those facts, overwhelmingly supports the proposed order. With respect to the third objection, I find that the order takes into account Ileana’s best interests as an Inuk and First Nations child. The order will preserve her ongoing relationship with her family and her connections to both Indigenous communities and groups to which she belongs. Although her situation currently does more to promote her self-identity as an Inuk than as First Nations, Ileana will have the opportunity to learn about her First Nations culture, heritage and traditions through her father, and through the demonstrated commitment of E.L. and D.D. to ensure that all aspects of her cultural identity are nurtured.
The statutory framework
[36] The Society seeks an order pursuant to s. 102(1) of the CYFSA, which must be read together with s. 101(1). The two sections provide as follows:
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
- 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
- That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care
- 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
- 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.
Custody order
102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of that person or persons.
[37] The requirement that decisions under ss. 101 and 102 be made in the best interests of the child echoes s. 1 of the CYFSA, which provides that the paramount purpose of the Act is “to promote the best interests, protection and well-being of children”. The analysis to be used in determining the best interests of a child is set out in s. 74(3) of the CYFSA:
Best interests of child
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.
[38] Where a child is indigenous, the court must consider additional provisions in An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c. 2 (the “FNIM Act”). Paragraph 10(1) of the FNIM Act states that the best interests of a child “must be a primary consideration in the making of decisions or the taking of actions in the context of child and family services in relation to an Indigenous child”. The factors to be considered are set out in para. 10(3), as follows:
Factors to be considered
(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.
[39] Paragraph 10(2) provides that, in considering these factors, “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”.
[40] Paragraph 16 of the FNIM Act establishes specific guidance for the placement of an Indigenous child, as follows:
Priority
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.
Placement with or near other children
(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.
Customs and traditions
(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.
Family unity
(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on an ongoing basis, of whether it would be appropriate to place the child with
(a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or
(b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a).
[41] Finally, para. 17 of the FNIM Act sets out considerations that apply if an Indigenous child cannot be placed with one of the child’s parents or with another adult member of the child’s family in accordance with para. 16(1)(a) or (b). In such a case, “to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each such member of his or her family are to be promoted”.
[42] In sum, in making orders for the protection of any child, the primary imperative is that child’s best interests. Where the child is Indigenous, their best interests include not only their physical, emotional, and psychological safety, security and well-being, but consideration of their ongoing relationship with their family; their relationship with the Indigenous group, community or people to which they belong; and the preservation of the child’s connections to their culture
Application of legal principles in this case
[43] By all accounts, Ileana is thriving in the current arrangement. She lives with her two half-siblings on a full-time basis and with her mother four days a week. She has a happy and affectionate relationship with her half-siblings, with whom she has bonded. Based on his observations, Mr. Lafosse states that Ileana is well loved and cared for within D.D.’s home, and that, working together, E.L. and D.D. are able to ensure that her physical, emotional and developmental needs are met. Michela Ferguson, another child protection worker involved with the family, states that, in her observation, Ileana is “smiling and calm” in the presence of D.D. and her two half-siblings. She has a particularly strong connection to her half-sister and follows her around at home.
[44] E.L. and D.D. share decision-making responsibility for Ileana. According to E.L., they are a “good team” and work well together. She appreciates his ongoing support and he believes in her parenting ability. E.L. states that she, D.D., Ileana and her two half-siblings enjoy spending time together as a family.
[45] Ileana also has regular contact with her three older siblings. Although they have been placed in extended care, E.L. has openness agreements with the families with whom they have been placed. As a result, E.L. and Ileana regularly spend time together with the other children.
[46] As already mentioned, E.L. supports the Society’s proposed order, which is without prejudice to her right, should she choose to exercise it, to eventually seek sole custody and decision-making with respect to Ileana.
[47] I.O. says that he is willing to share custody and decision-making with E.L.. He has not, however, produced any concrete proposal that would allow this to happen. Given the couple’s history, there appears to be no realistic possibility that it could.
[48] In E.L.’s affidavit, she states that I.O. has not taken responsibility for his violence against her and how it hurt their family for many years. I.O.’s affidavit makes no reference to the couple’s history of domestic violence, his recent conviction for assault and sexual assault against E.L., and the condition that he does not contact her. He states that his children never came to any harm in his care and he has never exposed them to harm. This shows that I.O. is unaware or unaccepting of the risk of harm to Ileana if she is exposed to physical and verbal altercations between her parents, or the near certainty that such altercations would occur if I.O. and E.L. attempted to parent Ileana together.
[49] I.O. has had no contact with Ileana in over a year and a half. This effectively spans the period since Ileana has been placed with D.D. on a temporary order. In his affidavit, I.O. contends that D.D. has always treated him negatively, has not been cooperative the few times they have been in contact, and has threatened to call the police and “make up stories” to put I.O. in jail. Elsewhere in his affidavit, however, I.O. acknowledges that his lack of contact with Ileana has been due to his incarceration; impacts to his mental health due to medication problems and the death of E.L. and I.O.’s fifth child in July 2020; restrictions arising from the Covid-19 pandemic; and his inability to drive. Despite his allegation that D.D. is hostile, he does not say that the lack of contact with Ileana results from anything D.D. has said or done.
[50] The child protection worker involved in the case says that attempts to contact I.O. have been largely unsuccessful. There is no evidence that I.O. had made any attempt, through the Society, to reconnect with Ileana. I conclude that the lack of contact between I.O. and Ileana does not result from any attempt by D.D. to prevent I.O. from seeing her. On the basis of I.O.’s affidavit, I accept that he sincerely would like to re-establish his relationship with his daughter. At this point, however, it would not be fair to Ileana to keep her in a state of uncertainty about her future based solely on this hope.
[51] I have considered Ileana’s best interests specifically using the test at paragraph 10(2) and the priority of placement at para. 16(1) and (2) of the FNIM Act. The proposed order promotes her physical, emotional, and psychological safety, security and well-being. It would place her with one of her parents and preserve her relationship with her half-siblings. Her father would be able to exercise access, although it would have to be supervised. This leaves only the question of whether the order takes into account the importance of maintaining her relationship with the Indigenous groups, communities and peoples to which she belongs, and whether it preserves Ileana’s connections to her culture.
[52] The order would clearly allow Ileana to express her cultural identity as an Inuk and provide her with a connection to her mother’s culture, heritage and traditions. E.L. would continue to have joint decision-making responsibility for Ileana and live with her four days a week. Although D.D. is of Eurocanadian descent, he has consistently supported and maintained his children’s connection to their Inuk culture in a variety of ways.
[53] D.D. and E.L.’s two older children, Ileana’s half-siblings, speak both Inuktitut and English fluently. They both attended the Tumiralut Child Care Centre for Inuit Children, Youth and Families for cultural support and programs. E.L. and D.D. also intend to enrol Ileana with the Tumiralut Child Care Centre; the proposed order specifically provides for this. D.D.’s home is decorated with traditional Inuit artwork, prints and sculpture, and he regularly prepares traditional Inuit dishes for the family. Ileana attends medical appointments at the Akausivik Inuit Family Health Team.
[54] A similar plan has regrettably not yet been developed to ensure the maintenance of Ileana’s cultural identity and connection to her First Nations culture, heritage and traditions. In her 2020 kinship assessment, Ms. Merkley acknowledged that D.D. was less well-informed about First Nations cultural resources than he was about Inuit cultural resources. There is no evidence that I.O. has any family or community members who have expressed an interest and willingness to help foster Ileana’s First Nations self-identity. The Yellowknives Dene First Nation has not been involved in these proceedings, although it was served with them.
[55] There are nonetheless prospects for Ileana to form a greater connection with her First Nations heritage. The proposed order gives I.O. supervised contact with Ileana. He says that he would like to teach her about First Nations traditions that he has learned from elders. He will have an opportunity to do so, if he takes steps to remain present in her life.
[56] D.D. also indicated, in the 2020 kin assessment, that he is willing to create a cultural safety plan for Ileana that addressed the breadth of her heritage. E.L. has already adopted some First Nations practices, such as smudging. There are First Nations focused services at Wabano and other agencies in Ottawa.
[57] Given I.O.’s commitment to pass on his knowledge to Ileana, D.D. and E.L.’s successful efforts to foster their children’s Indigenous identity, and First Nations cultural and community resources in Ottawa, I conclude that the proposed order would allow Ileana to maintain her full cultural identity and her connection to both Indigenous communities of which she is a member.
[58] I accordingly find that the proposed order is consistent with Ileana’s best interests, both in the general sense and insofar as she is an Indigenous child.
Disposition
[59] The Society’s motion for summary judgment is granted. I order as follows:
(1) The child I.L. shall be placed in the joint decision-making responsibility of E.L. and D.D., without prejudice to E.L.’s ability to seek further parental rights at a future time.
(2) I.L. shall live with D.D. on Mondays and Tuesdays, with E.L. on Wednesdays and Thursdays, and on Friday E.L. and I.L. shall stay at D.D.’s house for the weekend. Any changes to this plan shall be made by D.D. and E.L.
(3) E.L. and her support network, namely J.M. and J.S., shall work together to arrange transportation for I.L. to attend Headstart, if she is accepted to the program.
(4) I.O. may have supervised contact to I.L. at the Supervised Access Program. Any request for contact shall be made to an agreed upon third party. I.O. shall not communicate with E.L. for any reason, including to set up visits.
Justice Sally Gomery
Released: May 11, 2021
COURT FILE NO.: FC-14-2273
DATE: May 11, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
I.L., E.L. and I.O.
Respondents
REASONS for judgment
Justice Sally Gomery
Released: May 11, 2021
[^1]: Ileana is not I.L.’s real name. I have used pseudonyms instead of initials when referring to parties to the action.