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 Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: FC-19-146
DATE: November 8, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Family and Children’s Services of Renfrew County, Applicant
AND:
K.C. and P.G. and P[...] First Nation, Respondents
BEFORE: Justice Mary A. Fraser
COUNSEL: Anais Lussier-Labelle, for the Applicant
Terese Ferri for the Respondent, K.C.
Mellington Godoy for the Respondent P.G.
P[...] First Nation – self-represented/noted in default
HEARD: July 12, 2021
ENDORSEMENT
[1] As a result of COVID-19 which caused the suspension of regular court operations at the 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/) this matter was heard by Zoom video conference.
[2] The Applicant Family and Children’s Services of Renfrew County (the “Society”) has brought a Motion for Summary Judgment on this Application pursuant to Rule 16 of the Family Law Rules.
[3] A protection finding was made, on consent, on January 27, 2020.
[4] With respect to disposition, certain terms are not contested. The parties are in agreement that the child, R., born [...], 2018, will be in the physical custody of and reside in the primary care of E.P. and C.P. pursuant to Section 102 of the Child, Youth and Family Services Act 2017, S.O. 2017, Chapter 14 (“CYFSA”) on certain terms. As well, there is no dispute that K.C. shall have parenting time with R. upon certain agreed upon terms.
[5] The relief sought by the Society and disputed by K.C concerns the nature of any parenting time and contact between R. with P.G. and the extended paternal family. While K.C. does not oppose parenting time to the father, she asks that it be supervised by E.P. and C.P. or a third party agreeable to E.P. and C.P. and that it be initially limited to one day per month, with provision for expansion of time commensurate with P.G.’s consistency and progress.
[6] K.C. also opposes an order for joint decision-making which confers decision making authority upon P.G. She agrees that he may access all information about R. directly from third parties.
[7] Additionally K.C. does not oppose contact with the paternal extended family. However, she does not support an order for such contact.
Background Facts:
[8] R. was born on [...], 2018.
[9] K.C. is the biological mother of R.. P.G. is the biological father of R..
[10] R. has First Nations heritage on both maternal and paternal sides. K.C. is a band member of P[...] First Nations. P.G. is eligible for registration with the “816 General List Quebec” through Algonquin heritage.
[11] K.C. had charge of R. when he was brought to a place of safety. R. was initially placed in foster care, but he did not prosper.
[12] On June 26, 2019, he was placed with E.P. and C.P. A contested Temporary Care and Custody motion was heard by Justice Gomery on September 4, 2019 and an was Order made that R. remain in the care of E.P. and C.P. E.P. and C.P. are maternal kin/kith to K.C. They have been involved in supporting and assisting K.C. since before R. was born.
[13] R. is presently meeting his milestones and his medical and social needs are being met. He is reported to be a happy, outgoing, inquisitive boy.
[14] K.C. has been having very regular and positive parenting time with R. since the beginning, at a minimum three times per week. In addition, she spends time with R. at the home of E.P. and C.P. and in the community for various family and Indigenous events.
[15] Notwithstanding some initial setbacks, K.C.’s circumstances have improved since R. was brought to a place of safety. She now has secure and appropriate accommodations through publicly assisted housing. She lives by herself, and her home is well furnished and equipped for R.. He has his own bedroom and many toys.
[16] K.C. is presently well connected to mental health supports.
[17] Her parenting time has gradually and progressively increased in length and quality. It is now “lightly supervised” by E.P. It is their mutual intention to continue to increase her parenting time in accordance with her progress.
[18] It is the intention of both E.P., C.P. and K.C. to continue to expand K.C.’s role in R.’s life, gradually and naturally, with the objective that R. could be returned to her primary care in due course. E.P. and C.P. have demonstrated their commitment both to R.’s safety and well-being, and to K.C.’s long term well-being and bond with him.
[19] K.C. is consulted regularly about R. and participates in decisions about every aspect of his care.
[20] R. was baptized in the Roman Catholic faith, the religion of the paternal family. K.C. consented to this and attended the Baptism as did P.G. Some of the paternal family attended as well.
[21] K.C., E.P. and C.P. agree that and have discussed and decided that when R. is school age, he will attend the Catholic school system. In this way he will learn his father’s Catholic faith as part of his educational program and then, in attending church with E.P., C.P. and K.C., he will learn their Christian faith.
[22] K.C., E.P. and C.P. maintain that they support P.G. having a healthy and strong relationship with R.. However, they believe that P.G. has had difficulty engaging with the Society in any meaningful way in order to address the protection concerns. The Society confirms that P.G. has, in its view, made little progress since R. came into care.
[23] To date, P.G.’s visits have been inconsistent. It is clear that he has difficulty engaging for more than a few hours at a time. Supervision is required due to ongoing protection concerns. It is reported that, when he does attend, visits are usually positive.
[24] Over the past several months, P.G.’s parenting time has occurred at the home of A.C. and J.C. He has not availed himself of all parenting opportunities; he has attended in person approximately once a month for a few hours. He has also had some video contact.
[25] Additionally, P.G. has struggled to organize his life. He cannot be contacted easily and for lengthy periods of time. He is often without an address, phone, or internet. As a result, E.P. and C.P. have frequently had difficulty confirming arrangements for P.G.’s parenting time with A.C. and J.C.
[26] P.G. cannot arrange for his own transportation. The Society has been covering taxi fares for him to get to the visits he does attend.
[27] Notwithstanding the fact that P.G.’s involvement has been inconsistent, his extended family has made a concerted effort to remain involved and to connect R. to his Indigenous heritage on the paternal side. His mother, J.D. has made a number of trips from Southern Ontario to visit R. and to facilitate R.’s connection to his paternal siblings.
[28] A.C. and J.C. have additionally had regular contact with R.. They are both Indigenous and have been long time family friends to R.’s great-aunt. They have supported ongoing parenting time between R. and P.G. A.C. and J.C. have a positive relationship with P.G. and this has translated in P.G. having positive and experience-rich visits with R..
[29] Both E.P. and C.P. are non-Indigenous. In her Affidavit sworn June 30, 2021, E.P. sets out in detail the many Indigenous activities, programs and education which they have pursued since R. was placed in their care. They have demonstrated unequivocal respect for and commitment to maintaining and encouraging R.’s First Nations cultures on both maternal and paternal sides. They have additionally connected with K.C.’s extended family and, equally, with R.’s paternal extended family. They have demonstrated a solid respect for and commitment to maintaining and encouraging R.’s bonds to his extended family on both maternal and paternal sides.
Legal framework:
[30] Rule 16 of the Family Law Rules allows a party to move for Summary Judgment for a Final Order without a trial on all or part of any claim made or any defence presented in the case after the Respondent has served an Answer or after the time for serving an Answer has expired.
[31] Hyrniak v. Mauldin 2014 SCC 7 (S.C.C.) remains a landmark case outlining the criteria for a Summary Judgment Motion to succeed. In Hyrniak, the Supreme Court of Canada determined that there will be no genuine issue for trial when the Court is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.
[32] The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court confidence that it can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[33] Hyrniak outlined a two-step process for reaching a fair and just determination on the merits. First, the motions judge should take a liberal approach only on the evidence before them, without using the new fact-finding powers under the second part of this test. If the summary judgment process provides the motions judge with the evidence required to justly determine the motion, it will be held that there is no genuine issue requiring a trial; and second, if there appears to be a genuine issue requiring a trial, the motions judge is entitled, at their discretion, to weigh evidence, evaluate credibility, and draw reasonable inferences, in order to determine if the need for a trial can be avoided by using these new tools to come to a fair and just result. To succeed on a summary judgment motion, an applicant must prove there is no genuine issue requiring a trial on a balance of probabilities.
[34] The paramount purpose of the CYFSA as set out in Section 1 is to promote the best interests, protection and well-being of children. I am to attempt to support the autonomy and integrity of a family as long as it is consistent with the best interests of the child. I am required to consider the least disruptive course of action that is available.
[35] Section 74(3) of the CYFSA speaks to the factors that must be taken into consideration when making an Order or determination in the best interests of a child. It also speaks to the importance of preserving the child's cultural identity and connection to community in recognition of the uniqueness of First Nations cultures, heritages and traditions.
[36] The available relief once a child is deemed to be in need of protection is detailed at Section 101 of the CYFSA.
[37] Section 101(5) specifically speaks to placement preferences where the child is a First Nations child.
[38] Section 102(1) directs that a custody order can be made if it would be in the child's best interests.
[39] Section 104(1), in turn, speaks to the ability to make, vary or terminate an order for a person's access to the child if it is in the child's best interests.
[40] The principles outlined in An Act respecting First Nations, Inuit and Métis Children, Youth and Families, 2019, S.C. 2019, c. 24 must also be given due consideration given that R. is a First Nations child.
[41] Section 10 specifically speaks to the best interests of an Indigenous Child, and section 10(2) indicates that primary consideration must be given to the importance for that child to have an ongoing relationship with his or her family and with the Indigenous group, community or people to which he belongs, and of preserving the child's connections to his culture.
[42] Section 10(3) delineates the specific factors to be considered in order to determine the best interests of an Indigenous child.
[43] Section 16 identifies which placement options are to be prioritized for an Indigenous child.
[44] Section 17 indicates that if a child is not placed with a member of his family, then the child's attachment and emotional ties to each such member of his or her family are to be promoted.
Analysis:
[45] In the case at bar, the facts are largely undisputed.
[46] There is a consensus that R. should remain in the care of E.P. and C.P. under a custody order and that the parenting time Order sought for K.C. is appropriate.
[47] What is disputed is what Final Order would best address R.'s needs in terms of parenting time with his father, and ongoing contact with his paternal extended family.
[48] I conclude that this can be appropriately addressed by way of a Summary Judgment Motion.
[49] K.C. has been exercising her parenting time with R. regularly, and has developed a bond with E.P. and C.P. She participates in many of their family activities, and can more easily set up special visits over and above her scheduled parenting time (i.e. if her family is visiting so that R. can spend time with them too).
[50] Through this connection, I conclude that R. will remain connected with his extended maternal family and his culture and indigenous roots from that side of the family.
[51] On the other hand, P.G. has not always been consistent with his parenting time visits, He is not a reliable conduit for R. to remain connected with his paternal extended family and indigenous culture. This would not be in R.’s best interests and would in fact, in my view, be to his detriment.
[52] Although there is a consensus that R. should remain in E.P. and C.P.'s care and custody under a s. 102 Custody Order, the reality is that E.P. and C.P. are a white, non-Indigenous family.
[53] Although it is clear that they are learning and are fully supportive of ensuring that R. remains connected to his Indigenous culture, this is not equivalent to the lived experiences that R. could absorb through regular contact with his biological parents, siblings, and extended family.
[54] The importance of this connection has been recognized in An Act respecting First Nations, Inuit, and Métis Children, Youth, and Families. The Act clearly states that priority is to be given to a placement in an Indigenous home, and that placement in a non-Indigenous home should be a last resort.
[55] The Act also specifies that, if a child is not placed with a member of his family, then the child's attachment and emotional ties to each such member of his family are to be promoted.
[56] Given K.C.’s level of engagement with R., and E.P. and C.P.’s commitment to support and enlarge upon K.C.’s bond and connection with R., I do not have any concern that R. will remain connected to K.C. and as a result, his maternal heritage.
[57] R.’s ability to continue to have an ongoing relationship with his paternal family and Indigenous community to which P.G. belongs and remains connected to that culture is less secure. P.G.’s lack of consistent engagement with R. and his apparent unstable lifestyle leads me to conclude that R.’s connection to his paternal extended family and heritage could be at risk over the long term.
[58] The Society submits that to guard against this, an Order should be made providing that R. have a minimum of three overnights per month with P.G. or absent that, his extended family on the paternal side. P.G.’s parenting time would also take place during these visits but the contact with his paternal side should occur regardless of P.G.’s level of engagement at any particular time.
[59] I agree with the Societies position in this respect.
[60] It is within the Court's jurisdiction to make a contact Order for any person if it is in the child's best interests. "Person" does not mean that this relief is limited to individuals who are parties to a specific court matter.
[61] Having a specific Order providing for contact between R. and his extended paternal family/community, given P.G.’s lack of ability to remain consistently engaged, is, in my view, necessary if we are to ensure that R. has the opportunity to learn the Indigenous culture and traditions that is unique to P.G.’s Algonquin heritage. As an Indigenous child, I find such contact to be necessary and in his best interests, keeping R.’s physical, emotional and psychological safety, security and well-being as the primary consideration.
[62] Given P.G.’s lack of consistent engagement and his lack of stability, I do not conclude that it is practical nor in R.’s best interest that P.G. have joint decision making responsibility.
Order:
[63] On a final basis, pursuant to Rule 16 of the Family Law Rules, the following Final Order shall issue:
- Pursuant to Section 90(2) of the Child, Youth and Family Services Act (‘CYFSA’), the child before the court is:
a) R., born [...], 2018;
b) He is a child who has First Nation heritage. The respondent mother, K. C., has status with the P[...] First Nation. The father, P.G. is eligible for registration with the “816 General List Quebec” through Algonquin heritage;
c) R. was removed from the care of the respondent mother, K. C., without a Warrant on the evening of June 13, 2019 from within the province of Quebec and transported by the Society workers back to Ontario at K.C.’s request. Pursuant to Section 91 of the CYFSA and Rule 2 of the Family Law Rules, this matter shall proceed in the territorial jurisdiction of Renfrew County, Ontario. On September 4, 2019, Justice Gomery heard argument of the temporary care and custody motion. On September 16, 2019, pursuant to written reasons, Justice Gomery placed R. in the temporary care and custody of kith, E.P. and C.P. R. has remained in their care to date.
The protection finding was made, on consent, on January 27, 2020.
Pursuant to Section 102 of the CYFSA the following Order shall be made with respect to disposition:
a) R., born [...], 2018, will reside primarily with E.P. and C.P.
b) E.P. and C.P. will consult and collaborate with K.C. on all major decisions about R.’s care and welfare. If, after consultation in good faith between K.C., E.P. and C.P. has occurred, if they are unable to reach agreement within a reasonable period of time, E.P. and C.P. may make the final decision, and they will advise K.C. of their decision forthwith.
c) E.P., C.P., K.C., and P.G. may make inquiries and be given information by R.'s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors and / or any others involved with R.. These parties shall each be entitled to access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, it is required in order to give effect to this Order, E.P., C.P., K.C., and P.G. will cooperate and execute any required authorization or direction with third parties as may be necessary.
- Pursuant to Section 104 of the CYFSA, K.C.’s Parenting Time with R. will be as follows:
a) R. will be in the care of his mother, K.C. at a minimum, three (3) times per week, at times and for periods to be mutually agreed upon between K.C., E.P. and C.P;
b) K.C.’s parenting time may be expanded to include such further and other parenting time, as mutually agreed upon by K.C., E.P. and C.P, and which E.P. and C.P. deem appropriate and in R.’s best interests (including holidays, and special occasions);
c) There shall be additional visits arranged on holidays and special occasions, including but not limited to Mother’s Day, Christmas, Easter, and any other Indigenous celebrations, events, gatherings, ceremonies etc.;
d) K.C. must provide E.P. and C.P. with her updated contact information so that arrangements can be made in advance; failing which K.C’s parenting time may not occur;
e) K.C. will ensure R.’s physical, mental, emotional, developmental and basic needs are met at all times during her visits with him. K.C. will ensure R. is not exposed to any adult conflict or any people / places who would otherwise pose a risk to R.’s safety.
- Pursuant to Section 104 of the CYFSA, P.G.'s Parenting Time with R. shall be as follows:
a) With respect to scheduling and other arrangements, E.P. and C.P. may communicate with P.G. through A.C. and J.C., or another third party, or other communication method as mutually agreed upon;
b) R. will visit with his father, P.G., a minimum of three (3) times per month. A visit will span twenty-four (24) hours. E.P and C.P. and A.C. and J.C. will agree on start and end times for the visits that will best meet R.'s routine and any activities planned for the visit. These visits can occur and will eventually ideally occur consecutively to allow for R. to be there for a full weekend, and in any event, will be consecutive by the time R. begins attending school;
c) P.G’s parenting time will take place at the home of A.C. and J.C. (which can include their cottage) unless otherwise agreed upon. Visits will be supervised by A.C. and J.C. and/or the other mutually agreed upon third party. The level of supervision may be decreased over time as agreed upon by E.P. and C.P. having regard for R.’s age and maturity;
d) P.G. may participate in the visits either in person, and/or virtually;
e) It is understood that P.G’s parenting time will also be an opportunity for R. to spend time with his extended paternal family and such contact between R. and the paternal family/community shall occur during P.G.’s parenting time even if P.G. is not participating;
f) As such, in the event P.G. is not available or exercising the Parenting Time provided to him pursuant to the terms of this Order, it is expected that arrangements should be made to alternatively provide R. with contact with his paternal extended family and community. Such contact with his paternal extended family shall occur concurrently with or in lieu of P.G.’s parenting time in the event that P.G. is not available or exercising such Parenting Time. This contact shall occur at the home of A.C. and J.C. (which shall include their cottage) but also may be exercised by J.D.
g) A.C. and J.C. and/or the third party facilitating the visits will accurately advise E.P. and C.P in writing as to when and for how long P.G. was present during each visit.
h) P.G., A.C. and J.C. must provide E.P. and C.P. with their updated contact information so that arrangements can be made in advance;
i) E.P. and C.P. must be made aware of the location of visits in advance (unless they will take place at the home of A.C. and J.C.) and will be made aware of any changes to the plan immediately;
j) P.G.’s parenting time may be expanded to include such further and other parenting time, as mutually agreed upon by P.G., E.P. and C.P. and as E.P. and C.P. deem appropriate and in R.’s best interests;
k) There shall be additional visits arranged on holidays and special occasions, including but not limited to Father’s Day, Christmas, Easter, and any other Indigenous celebrations/events/gatherings/ceremonies/etc;
l) P.G. will ensure R.’s physical, mental, emotional, developmental and basic needs are met at all times during his visits with him;
m) P.G. will ensure R. is not exposed to any adult conflict or any people/places who would otherwise pose a risk to R.’s safety;
n) P.G. may call R. once (1) per week at the home of E.P. and C.P. It will be P.G.’s responsibility to communicate with E.P. and C.P. to schedule same.
E.P. and C.P. will be responsible for R.’s transportation to and from Parenting Time, unless otherwise agreed upon between E.P. and C.P. and the respondent parents (and A.C. and J.C.).
P.G. and K.C.’s Parenting Time is meant for them and for R.. Unless stipulated otherwise by the terms of this Order and with the exception of the extended family and/or kith, any other party must be approved by E.P. and C.P. prior to attending the visit.
In the event that the parents relocate outside of Renfrew County, they will be responsible for arranging for their own transportation back to Renfrew County for visits. Further, the frequency and duration of visits may be varied as necessary, pending further court Order or mediated agreement.
K.C. and P.G shall be notified by E.P. and C.P. of any life-threatening emergencies regarding R., and any other important elements regarding R.’s overall health and wellbeing. Likewise, K.C. and P.G. shall keep E.P. and C.P. updated regarding any important birth family information and any important information regarding their parenting time with R.. E.P. and C.P. may communicate with P.G. through A.C. and J.C., or another third party, or other communication method as mutually agreed upon.
R.'s name will not be changed without the written consent of K.C. and P.G.
[64] E.P. and C.P. shall communicate regularly with K.C. and P.G., and with the maternal and paternal families, with respect to meeting R.’s needs, including how R. can and should stay connected to his indigenous cultures. E.P. and C.P. shall make it a priority to keep R. meaningfully connected to his culture and his indigenous heritage(s) through both his maternal and paternal families and through daily activities including but not limited to stories, food, music, toys, games, playdates, and community activities/events.
[65] Nothing in this Order prohibits or prevents E.P. and C.P. from arranging additional and meaningful contact between R. and his extended paternal and maternal families, siblings, and community. In fact, this is encouraged especially over holidays and special occasions.
[66] If there is any disagreement as to a term of this Order, E.P. and C.P. and K.C. and/or P.G. should participate in a form of Alternative Dispute Resolution as mutually arranged between them (including but not limited to a Circle). If they cannot come to a resolution between themselves within a reasonable time, any party, including E.P. and C.P., may initiate court proceedings in accordance with the relevant legislation.
[67] The issue of K.C.’s parenting time may be returned to court by K.C or by E.P. and C.P. at any time. The issue of P.G.’s parenting time may be returned to court by P.G. or by E.P. at any time without the need to prove a material change in circumstances (i.e. pursuant to the Children’s Law Reform Act).
[68] If any part of this Order returns to court within twenty-four (24) months, the Society will be notified and served.
M. Fraser J.
Date: November 8, 2021