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 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(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-17-FO283
DATE: 2021-11-22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant
AND
J.P., Respondent mother
R.H., Respondent father
M.B. and C.B., Respondent Kin
Qalipu Mi’Kmaq First Nation, Respondent Band
BEFORE: The Honourable Madam Justice J.D. Walters
COUNSEL: E. Smith, for the Applicant
Mr. Balmer, counsel for J.P.
Mr. Skursky, counsel for R.H.
Mr. Grainger, counsel for M.B. and C.B.
HEARD: August 26 and 27, 2021
Corrected decision: The correction was made on November 30, 2021.
The citation read CAS v. J.P., R.H., M.B., C.B. and Qalipu Mi’Kmaq First Nation, ONSC 7691
and has been amended to include the year of the citation and now reads
CAS v. J.P., R.H., M.B., C.B. and Qalipu Mi’Kmaq First Nation, 2021, ONSC 7691
THE HONOURABLE MADAM JUSTICE J.D. Walters
REASONS FOR DECISION
Overview
[1] The Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”) seeks a temporary order placing A. (the “child”) in the care of his father, R.H. It is the Society’s position that it is in the child’s best interests to be placed with his father despite being in the care of M.B. and C.B. (the “kin”) for most of his young life.
[2] The child is Indigenous and Black. He is Mi’kmaq through his maternal family, and Black through his paternal family. The kin are not Indigenous or Black. They are White and belong to the Mennonite faith.
[3] The kin argue that they have been a consistent presence in the child’s life. They do not support the child being in the care of the father. They argue that the father has been absent from the child’s life and has not addressed the protection concerns. They love the child. They argue that the child should not have been removed from their care and that it is in the child’s best interests to be returned to them.
[4] The Society argues that the child’s best interests require a change in the child’s care and custody. The child cannot be returned to the kin. The kin have not demonstrated that they are willing or able to facilitate, encourage and support a relationship between the child and his father. The kin have not demonstrated that they are willing or able to recognize and embrace the child’s wholistic cultural identity, to understand the importance of that identity and the relationship with his father, or even to acknowledge that there may be struggles raising the child within their Mennonite culture. They also argue that the placement with the father is required by the Federal Government legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, (“FNIM”).
[5] The child is a member of the Qalipu Mi’kmaq First Nation (the “Band”). The Band has not taken part in the court proceedings and has not taken a position.
[6] The kin were added as parties before argument of these motions on consent of the mother, J.P., and unopposed by the father and the Society.
[7] For the reasons that follow, I find that the child’s best interests require a change in the child’s care and custody. I find that the Society acted reasonably and pursuant to their mandate. The Society obtained a warrant to bring the child to a place of safety due to concerns with the kin following its investigation. The concerns arose out of the kin’s own actions. I find that the child must be removed from the kin and be placed in the care of his father. I do not accept the kin’s argument that the child was illegally removed from their care. I believe that they love the child, but they are unable to put the child’s needs above their own. I find their actions very concerning given their history of fostering children for the Society. Foster parents should be aware that their role in a child’s life is temporary, however hard that may be, and that the best interests of a child is paramount. Instead, they have questioned the father’s motives for wanting to know his own child, they have made allegations that resulted in the involvement of the police and they have challenged the authority of the social workers advocating for access between the father and the child. They are not focused on the child’s best interests – they are only focused on their own interests in obtaining custody of the child.
[8] There are three issues that the court has been asked to decide.
Was the child’s removal from the kin “unlawful”?
Is a change in placement required in the child’s best interests?
Should costs be awarded?
Background
[9] This is a case about a four-year-old child who has a Mi’kmaq mother and a Black father. For the first half of his life, he has been in the care of White foster parents, who have a Mennonite background and practice the Mennonite faith. The Society placed him in the care of his maternal grandmother on September 18, 2018, however because of her own health circumstances she could not care for the child long-term. The maternal grandmother arranged for the child to return to the care of the foster parents — this time as kin. The child returned to the kin on March 1, 2019.
[10] On May 7, 2019, an interim order was made placing the child in the care of the kin. On July 30, 2019, the child was placed in the care of the kin for six months on a final order.
[11] The father was present at the hospital for the child’s birth in 2017. He attests that although he put forward a plan for the child’s care at the birth, no one listened to him. He did not participate in court proceedings because he was overwhelmed and did not have anyone to advocate for him. He did not become involved in the child’s life until March 2020, when the Society approached him about putting forward a plan.
[12] The Society acknowledges that historically they have not done a good job of pursuing plans with fathers. In this case, they did not provide support to the father to pursue a relationship with the child until March 12, 2020. Katie Macrae (“Macrae”) is the family service worker assigned to the file since September 10, 2019. In Macrae’s affidavit, sworn December 17, 2019, she speaks to her minimal involvement with the father. The father contacted her in October 2019, and a meeting was arranged for November 2019, then rescheduled to December 2019, but the meeting never occurred. It is stated in the Society’s status review materials dated December 17, 2019, that the Society continued to contact the father to inquire about a relationship with the child.
[13] In March 2020, the father engaged with the Society and began to exercise access with the child. The father stated his intention to have the child placed with him. The Society began to assess the father’s plan and access between the father and the child began to increase. The Society communicated to the kin that they were assessing the father’s plan for the child’s care. The kin worked with the Society initially, however they voiced concerns about the plan.
[14] The COVID-19 pandemic also played a role in the delay in the father’s relationship with the child. A meeting was held with the father and the worker in March 2020, however his access with the child was not discussed until COVID-19 restrictions were reduced in the summer of 2020. The Society communicated to the kin that access was being arranged between the father and the child. The response back from M.B. on July 25, 2020 was, “Definitely curious what your thoughts are on the beginning of visits after a three year absence of presence!”.
[15] On August 7, 2020, the first visit occurred between the father and the child at a local park. The kin were present, as well as the Society, the father and his partner. By all accounts this visit went well. The father and his partner indicated that they did not want to push the child, that it would take time and they would take it slow. On September 1, 2020, the father attended court and stated his intention to have the child in his care.
[16] In December 2020, the father filed an answer confirming his position that he seeks placement of the child in his care. He included in his answer his wish for the child to be comfortable with him and that his time with the child be increased slowly. He gave thanks to the kinship family for providing care to the child and restated his intention to take over full-time care of the child.
[17] The Society workers and the kin communicated over email to arrange access and discuss the Society’s assessment of the father’s plan. Initially, the kin indicated that they support a relationship with the father, however that position changed when the Society began to put more access in place despite the father having missed four visits in the fall of 2020. In an email sent February 2, 2021, from M.B. to Society worker, Stephanie Ricksen (“Ricksen”), she writes, “If this meeting is pointed in the direction of why [the child] should be going through this trauma it is a waste of time for all of us. Point made. M.B” [sic].
[18] In April 2021, things began to unravel when the kin made a report to the Society about possible sexual interference of the child while at the father’s home when he had overnight access. The police investigated. The father and his family co-operated in the investigation and nothing was verified. The father’s access continued to expand.
[19] On April 30, 2021, a referral was made to the Society regarding concerns about the child’s well-being in the kin’s care. The concerns were related to a Facebook group to which the kin belonged and a breach of confidentiality. A meeting was held with the kin and the Society and discussions were had about this group, the communication and the breach of confidentiality. M.B. acknowledged that she had posted one or two pictures of the child crying, to the site to show what she believed was the stress that the child was under and the trauma the child was experiencing.
[20] During, child protection worker, Antoney Ruddock’s (“Ruddock”) meeting with the kin to discuss recent concerns regarding the kin’s interaction with the child, the kin played a recording from their cell phone of the child crying and answering questions posed by them following the child’s access visit with the father. When the worker questioned the kin about the purpose for recording the child, the kin responded with “nope”. After a pause, M.B. stated that the purpose of recording the child was to share it with kinship worker, Mark Wotton, however, he declined to listen. The kin also provided information to the Society worker that they all cry (including the child) when the child attends for visits with the father. This statement was later changed by the kin when they stated that only the child cried before visits and if they cry it is after the child left their home. They admit to telling the child that they are sad when he is not there.
[21] An investigation was commenced and on May 26, 2021, the Society verified emotional harm. It is the Society’s position that the child is not safe in the kin’s care. The Society argues that the kin had demonstrated an escalating pattern of behaviour to prevent the child from having a relationship with his father. They are unable to recognize the importance of the child’s identity and therefore are unable to meet his emotional needs.
[22] On June 1, 2021, the Society obtained a warrant to remove the child from the kin’s care, stating the child was at risk of emotional harm. The Society drafted an Information in support of a warrant and attended before a Justice of the Peace (“JP”) to obtain a warrant to bring the child to a place of safety. A warrant was granted by the JP, executed by the Society and the matter was brought to court.
[23] On June 7, 2021, Breithaupt-Smith J. made a temporary without prejudice order placing the child in the care of his father pursuant to terms of supervision. The child is currently in the care of the father.
Issue #1: Was the Child’s removal from M.B. and C.B. “unlawful”?
[24] The kin argue that the child was unlawfully removed from their care because the material filed by them in response to the allegations that the child is in need of protection was not provided to the JP when the warrant of removal was obtained. They contend that failure to provide full and frank disclosure to the JP renders the JP’s ability to appropriately assess the risk impossible.
[25] The mother supports the kin in its position that the removal was unlawful. The mother argues that a court must be cautious in changing a child’s placement on a status review application. The Society must also be cautious in removing a child from a placement. She argues there are inconsistencies in the Society’s material, and they did not have the evidence to support the steps it took to remove the child from the care of the kin. She argues that removing the child in the way the Society removed him is not in the child’s best interests and that he should be returned.
[26] The Society acknowledges that it has a duty to provide full and frank disclosure to a JP when seeking a warrant. The Society argues that it discharged its duty by advising the JP in the Information submitted that the kin filed extensive material in the court proceedings that disagreed with the Society’s allegations. The JP did not request further information.
[27] The father supports the Society’s position.
Analysis
[28] The Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) sets out the circumstances where a child may be taken to a place of safety pursuant to a warrant. Section 81(2) states that a JP may issue a warrant authorizing a child protection worker to bring a child to a place of safety if the JP is satisfied that there are reasonable and probable grounds to believe that,
a) the child is younger than 16;
b) the child is in need of protection; and
c) a less restrictive course of action is not available or will not protect the child adequately.
[29] The concept of “‘reasonable and probable grounds to believe’ involves the application of common sense”. The process does not deal with hard certainties, but with reasonable probabilities: see Children's Aid Society of the Niagara Region v. C.B., 2005 CanLII 32915 (Ont. S.C.), at para. 62(b).
[30] The JP must rely on more than mere conclusions of the worker seeking the warrant. Suspicion and conjecture are insufficient. Warrants are not intended to be the product of hunches. The task of the JP is to “make a practical, common sense decision about whether (given all the circumstances set out in the affidavit, including the veracity and basis of knowledge…) there is a reasonable probability that the child is in need of protection”: see Children's Aid Society of the Niagara Region v. C.B., at para. 62(c).
[31] While not all children in need of protection require apprehension, a worker is not obligated to wait until a child has been harmed before effecting an apprehension. The line between apprehending and not apprehending should not be drawn too finely, otherwise societies will be discouraged from intervening in borderline cases. Borderline cases probably should be resolved in favour of apprehension: see Children’s Aid Society of the Niagara Region v. B.C., at para. 42.
[32] The Society has within its power the ability to seek a warrant if it determines that a child is at risk. In this case, the Society received a referral about the kin’s care of the child. An investigation began and the kin were advised of the investigation. They participated in it. At the conclusion of the investigation, the Society found that the child was at risk of emotional harm in the care of the kin.
[33] The child was already on an access visit with his father and his time there was extended once the investigation began. The child was not moved to a different home. Once the investigation was concluded, it was determined by the Society that the child could not return to the kin, and they took steps in accordance with the legislation to protect the child from harm. This information cannot be communicated to the person from whom the Society seeks a warrant until the warrant is obtained and executed.
[34] Although the complete file was not given to the JP, he was satisfied, based on the information given to him, that there were reasonable and probable grounds to believe that the child was at risk of harm. He issued the warrant.
[35] The Society has an obligation to keep children safe and one of its powers is to attend before a JP and obtain a warrant to bring a child to a place of safety. The Society discharged its duty under the CYFSA by swearing an information. A JP reviewed the material and decided on the material filed whether the test was met. The JP could have requested further material from the Society or denied the warrant, but he did not.
[36] The CYFSA has safeguards in place to protect the privacy of children —the most vulnerable members of the population — in child protection proceedings. When Part X of the CYFSA came into force on January 1, 2020, the legislature confirmed the public’s interest in maintaining the confidentiality of those involved in the child welfare system. Subsection 87(8) of the CYFSA prohibits a person from publishing or making 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. The kin breached the child’s confidentiality when they posted his picture on Facebook. This behaviour cannot be condoned.
[37] The Society’s investigation also revealed that the kin are unable or unwilling to support and facilitate positive transitions for the child with the father and his connections with his Black culture. This has been observed over the past number of months of working with the kin and observing their resistance towards increasing the father’s time with the child.
[38] One of the Society’s concerns is the kin’s inability to acknowledge the importance of the child’s identity and the role it will play in his life. When the Society discussed the concerns with the kin, the Society became further concerned with their ability to put the child’s needs before their own. The kin have focused on the time the father has been absent from the child’s life rather than the benefit to the child of having the father in his life.
[39] On May 26, 2021 the Society worker conducting the investigation regarding the kin verified emotional harm to the child based on the following factors:
(i) The kin have demonstrated an escalating pattern of behaviour to prevent the child from having a relationship with his father. The risks cannot be mitigated as the kin do not acknowledge the concerns;
(ii) The kin’s lack of understanding of the importance of the child’s identity and therefore are unable to meet his emotional needs. The child has been harmed while developing a relationship with the father;
(iii) The kin are alienating the child from his father and have been assimilating the child into their community without regard for his Black culture;
(iv) The kin are unable to acknowledge the importance of the child’s connection to his family and his Black identity. They consider the length of time the child has been with them as more important than a connection with his father or the child’s identity.
[40] Included in the materials are email communications between the workers and the kin and case notes from the Society workers. What is clear from the material filed is that the kin became increasingly concerned with the amount of access being given to the father and their trust of the Society, and its intentions regarding the child began to diminish. What emerges is a pattern of behaviour from the kin that resembles a high conflict custody and access case where the child is in the middle.
[41] Courts provide oversight for these very circumstances. I find that the Society acted reasonably and in accordance with the CYFSA. The kin photographed the child crying and posted it on a Facebook site to gather support. When questioned about their actions, they responded by saying they thought it was private. Their actions suggest they are attempting to gather evidence to support a bid for their own custody of the child rather than considering the child’s interests. They do not recognize the importance of the biological father in the child’s life but rather question why the father should have any role in the child’s life currently, given his past behaviour. They are not able to recognize the damage being done to the child by their own actions.
[42] I accept that the kin love this child. They will though, stop at nothing to have him with them. Their actions are very concerning for caregivers who claim to have the child’s best interests in mind. They also breached the child’s confidentiality in search of support for their position.
[43] Further evidence of concerning behaviour is found in the interview conducted by the police of the kinship provider following an allegation of sexual harm on the child by a member of the father’s family. A transcript was attached to an affidavit setting out the interview of M.B. by the police, where M.B. provides detail of the child’s disclosure to her of sexual interference. M.B.’s statements demonstrate that she elicited information from the child (who was three at the time) on his activities at the father’s home. The father cooperated in the police investigation and no charges were laid.
[44] I disagree with the mother and the kin that the warrant to remove the child is unlawful. The Society received a referral regarding the kin provider’s care of the child. They launched an investigation and only after completing the investigation found that the child could not return to the kinship provider’s care. They obtained a warrant and they brought the matter to court. A temporary without prejudice order was put in place June 7, 2021, confirming the placement with his father. I find the Society’s actions to be reasonable and lawful in the circumstances.
Issue #2: Is a change in placement required in the child’s best interests?
[45] On a status review application, the applicable test is set out in s. 113(8) of the CYFSA, which provides that: “if an application is made under this section, the child shall remain in the care and custody of the person or Society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.”
[46] On July 20, 2019, Piccoli J. granted a final order placing the child in the care of the kin, subject to the supervision of the Society for a period of six months. At the time this order was made, the mother consented to the order and the father was noted in default. In its status review application dated January 28, 2020, the Society sought a six-month extension of the supervision order.
[47] The Society amended its status review application on May 4, 2021. It now seeks placement of the child in the care of the father for six months. The Society is asking the court to vary a final order that was deemed to be in the child’s best interests and to vary that order on untested affidavit evidence. The court must be satisfied that the child will be better off in the care of another individual such that the change will be required on a temporary basis, before a trial.
[48] The Society submits that FNIM is applicable to the motions before the court. Both FNIM and the preamble and remedial sections of the CYFSA were prompted by the history of this country and specifically the impact of colonization. Wolfe J. noted in Kina Gbezhgomi Child and Family Services v. M.A. at para 42-43:
Indigenous families have felt the negative and sometimes fatal impacts of colonization most acutely in dismantling of Anishinaabe laws and kinship structures. This intentional disruption to the transmission of culture was achieved through the removal of Indigenous children into the residential school system, and now through the disproportionate removal of Indigenous children from their families through the child welfare system (see: Honouring the Truth, Reconciling for the future, Summary of the final Report of the Truth and Reconciliation commission of Canada (Ottawa: Truth and Reconciliation commission of Canada, 2015). This overrepresentation is well-known, and I am entitled to take judicial notice of not only the statistics in relation to this, but also the alienation, disempowerment and frustration that Indigenous families and communities feel when it comes to child welfare.
This history is what prompted not only the preamble and remedial sections of the CYFSA, but also the most recent federal legislation in Bill C-92, An Act respecting Frist Nations, Inuit, Metis children, Youth and Families, S.C. 2019, c.24 which came into force on January 1, 2020. Both Acts instruct the courts on the need to approach child welfare differently when dealing with Indigenous families, and with a view to recognizing the importance of continuity of culture and of family. This is, as the preamble of the CYFSA instructs, to be done ‘in the spirit of reconciliation…working with First Nations, Inuit and Metis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.
[49] Section 8 of FNIM explains that its purpose is to affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services; to set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and to contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
[50] The fundamental principles in accordance with which FNIM is to be administered are the best interests of the child, cultural continuity and substantive equality: see s. 9. FNIM contains a definition of the best interests that is similar, but not identical, to that set out in the CYFSA. The interplay between FNIM and the CYFSA creates an augmented best interest test.
[51] Section 16(1) of FNIM outlines a priority of placement for Indigenous children in the context of providing child and family services. To the extent that it is consistent with the best interests of the child, placement is to occur in the following order of priority:
(i) With one of the child’s parents;
(ii) With another adult member of the child’s family;
(iii) With an adult who belongs to the same Indigenous group, community or people as the child;
(iv) With an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or
(v) With any other adult.
[52] In the context of providing child and family services, FNIM provides that there must be a reassessment, conducted on an ongoing basis, as to whether it would be appropriate to place the child with a parent, or another member of the child’s family. There is no time limit on this reassessment obligation: see s. 16(3).
[53] FNIM provides that if the child is not placed with a parent or other family member, 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.
[54] The Society submits that the child’s best interests do require a change in placement on an immediate basis.
The Society’s Position
[55] The Society’s position can be summarized as follows:
The provisions of the CYFSA and FNIM are applicable when considering placement of the child.
FNIM and the preamble and remedial sections of the CYFSA were prompted by the history of this country and specifically the impact of colonization.
The court must carefully consider the child’s best interests when determining whether the current order for placement should be changed. The court must be satisfied after reviewing untested affidavit evidence that the child will be better off in the care of another individual pending trial.
In assessing best interests, the court must consider the relevant factors set out in s. 74(3) of the CYFSA. The child’s views and wishes are given elevated status and importance, as is the preservation of cultural identity and connection to community for First Nations, Inuit and Métis children. Section 74(3) includes many other circumstances which are highly relevant in this case including the child’s race, ancestry, color and ethnic origin; the child’s cultural and linguistic heritage; the child’s emotional ties to a parent; and the risk the child may suffer harm through being removed from or kept away from a parent.
The Society argues that the court must consider FNIM and its fundamental principles: best interests of the child, cultural continuity and substantive equality. Consideration must also be given to the priority of placement for Indigenous children in the context of providing child and family services. Parents should be considered first when considering a child’s placement.
The Society argues that there must be a reassessment conducted on an ongoing basis as to whether it would be appropriate to place the child with a parent or another adult member of the child’s family. There is no limit on this reassessment.
Section 17 of FNIM provides that if the child is not placed with a parent or other family member, 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.
The Society submits that the child’s best interests require a change in placement for three fundamental reasons. First, placement with the father is mandated by FNIM. Placement with the kin would be fifth in priority after the parents. Placement with the father is appropriate and emotionally and culturally safe for the child, who is Black as well as Indigenous. This placement will also allow his connections with his maternal family and Mi’kmaq culture to continue. Second, the kin have not demonstrated that they are willing or able to facilitate, encourage or support a relationship between the child and his father. The evidence supports that they have discouraged, interfered with, and tried to prevent a relationship with the father. The kin have subjected the child to emotional harm by their actions including: exposing the child to their own emotions, conducting surveillance on the father, questioning and recording the child about visits with his father, and posting pictures of the child on Facebook. Third, the kin have not demonstrated that they are willing or able to recognize and embrace the child’s wholistic cultural identity to understand the importance of that identity and relationship with his father.
[56] The onus to change an Order is on the Society. The Society submits that the child’s best interests require a change in placement on an immediate basis. The kin are unable to meet the child’s cultural and emotional needs, and they are unable to keep him culturally and emotionally safe.
The Father’s Position
[57] The father supports the Society’s position. The father’s position can be summarized as follows:
He was not given proper consideration for the child’s placement with him when the child was first born. He cites his inexperience with the courts as the reason for his delay in putting his position forward or securing counsel.
He was completely shut out of his son’s life even prior to his birth and, until more recently, had no one advocating for him having a relationship with the child.
Although he was introduced late to the child, he and the child have a strong bond. He wishes to have the child placed with him to become part of his family unit.
The father is agreeable to working with the Society and others to assist him in providing services to the child to promote his cultural heritage on all fronts. He acknowledges that the child has a multi-layered background.
He supports the mother and the maternal grandmother having contact with the child (as organized by the Society) and hopes that the child can have contact with his extended circle of caregivers. He acknowledges that the child could benefit from having contact with all the people in his life.
He does not agree with the child being placed with the kin. He does not agree that they should receive priority over the father. In their material, they minimize or dismiss the importance of the child’s Black heritage.
The kin have been quick to judge the father without taking any opportunity to get to know him. They have not favored the child visiting with him and made allegations of sexual abuse against a member of his household. Although this allegation was not substantiated, it caused an investigation to occur. This approach is not child-focused.
The kin have not accepted that the child has Black heritage, nor have they taken any steps to educate themselves on the issue.
He has concerns about the approach that the kin bring to the care of the child, especially when comments are made that there is a “high probability that placement with him will break down and we will be called upon to pick up the pieces”. The father submits that he is concerned about the approach that they take to the child.
The father is aware of the Society’s investigation of the kin providers and supports the Society’s position that the child would not be safe in the care of the kin providers.
The father is ready and eager to care for his son and has not been able to do so, in part due to the actions of the kin.
[58] The father argues that the Society sought him out, as they are required to do, to discuss placement of the child with him. There is systemic racism in the child welfare system and in the world generally, and his child is, and will be, impacted. The father explains his lack of involvement due to being ignored and overwhelmed with the paperwork and court process. Following the father’s communication with Society worker, Risken, in March 2020, he has been cooperating with the Society. He wants what is best for his child.
[59] The father supports the child having a relationship with other significant people in his life. He wanted the kin to have contact with the child up until they filed comments about him with the court. He posits that they do not understand the importance of the child’s Black culture and they have done little to foster his relationship with his son. They have overlooked the child’s Black heritage. They have taken no steps to educate themselves or the child on systemic racism. They do not acknowledge any potential problems the child may face. The father seeks an order placing the child in his care.
[60] The father acknowledges that although he was previously absent from the child’s life, he has been having access since August 2020 and intends to care for the child. His home is safe, he is working with the Society, the child is doing well in his care and he wants to continue to care for the child.
The Kin’s Position
[61] The kin’s position can be summarized as follows:
The child is safe in their care.
It is not in the child’s best interests to have his placement changed. The child has been in the care of kin since his birth and that placement should continue until the trial.
They argue that the father has been absent from the child’s life for the first three years and, given his lack of motivation to parent and his most recent missed visits in autumn 2020, it is not in the child’s best interests for the placement to be changed.
The Society’s materials have inconsistencies and credibility problems. Although the Society argues that they did not involve the father, their materials state otherwise. They have had past involvement with the father, but the father has not been interested in having a relationship with the child.
The kin are the only caregivers this child has known. They love the child and they want what is best for him.
The kin believe that the child suffers from “attachment trauma” as witnessed by them when the child returned to their care after a brief time with the maternal grandmother. This “trauma” resurfaced when the child began to spend time with the father. It is important to note that these words are the kin’s words and there is no trauma expert report substantiating these observations.
They acknowledge that he has Indigenous heritage and they have worked to promote that heritage by continuing visitations with the maternal grandmother and attending a pow wow.
They acknowledge that the child has Black heritage and they deny that he will ever be subject to racism in their home. They say they are receptive to the importance of his Black heritage and enthusiastic to explore his Black culture, just as they are with his Indigenous background.
They have recently begun to learn about Black heritage by talking to others in their community.
They argue that the Society cannot be trusted, and that they have caused harm to the child by unlawfully removing the child from the care of the kin providers and not allowing any visitation with them.
[62] The kin argue that the Society is not credible. They deny that the child is at risk of harm in their care. The Society’s removal of the child from their care was baseless and manifestly unfair. They acknowledge that they have done their best to learn about the child’s cultural diversity.
[63] The kin argue that the child is attached to them and that he should be returned. They argue that the child cannot be attached to the father as he has been absent from the child’s life. They raise attachment and trauma issues although they cannot point the court to any evidence other than their own statements that support that the child must be traumatized from being removed from their care.
[64] The kin argue that a child’s culture should not prevent a child from remaining in their care. They argue that the Society has harmed this child by removing him from the only home he has ever known.
The Mother’s Position
[65] The mother’s position can be summarized as follows:
The mother is unable to care for the child due to a criminal court order preventing her from having any contact with children under the age of 16.
The mother supports the plan put forth by the kin and she does not support the child being placed in the care of the father.
The mother is concerned about the father and his treatment of her, dating back to when they were together before the child’s birth.
It is in the child’s best interests to return to the care of the kin.
The Society did not have the evidence to justify the steps it took in removing the child from the care of the kin. The child has resided with the kin since his birth. Removing the child from the care of the kin is not in the best interests of the child nor is it substantiated in the evidence before the court.
The best interests of the child must require a change in the care of the child and that otherwise the status quo must be maintained. The Society has not met its burden in this motion, at this time, in this case, with this child.
The mother seeks an order dismissing the Society’s motion for placement of the child with the father.
The mother seeks costs.
The mother argues that the Society must prove that a change in the child’s placement is in the child’s best interests. The mother argues that the Society has not met its onus, as they have provided no evidence to support its position. The affidavit evidence provided by the Society is based on speculation, opinion and supposition. The mother alleges that the child was removed from the kin home because they had the temerity to raise questions as to how the child was coping with the introduction of the father in the child’s life.
Analysis
[66] The kin raise concerns about the child being retraumatized by bringing the father into his life, however, there is no evidence from an attachment specialist of concerns with the child. The affidavit material includes observations made by the workers, the father and the kin of the child’s relationship with his father. The workers indicate that when the father was first introduced to the child, he was clingy with the kin, but that reaction no longer occurs, and they observed the child to be comfortable and happy in the father’s care.
[67] The kin describe the child being angry when he returned to their care and he displayed behaviour never seen by them. They attribute this behaviour to being at the father’s house. They question the father’s absence, as well as his presence. Following the child’s first two-day overnight visit they reported concerns of possible sexual interference to the Society, which resulted in a police investigation. The father and his family cooperated in the investigation and the file closed without any criminal charges being laid.
[68] A transcript of the interview between M.B. and the investigating officer is disclosed and there are remarks made by M.B. that are concerning. In response to the question, “how did he get placed with Nana?” M.B. responds, “this racial card that CAS is holding so high, that is hurting children and that they are trying to just pick an option that isn’t safe because of this … after the racial thing took hold and so in the fall the Two Row Team wanted to try to bring dad back into the picture … we stated Mommy and Daddy love you and we’re sad when you are not here to the child”.
[69] On May 26, 2021, the Society verified emotional harm to the child by the kin. They sought a warrant to bring the child to a place of safety. Although the kin asked for contact with the child, the Society only permitted one video visit between the kin and the child on June 11, 2021, after having consulted with Charmaine Lane (“Lane”), a registered psychotherapist and attachment specialist for the Society on the issue. It is noted by the kin and the Society worker that the child was teary in this visit, however there was nothing unusual about his reaction to seeing the kin providers. It was also acknowledged that the kin were crying, and the child’s reaction may have been to that.
[70] The Society acknowledges that the child has been in the care of kin for a large part of his life, however, they are concerned with the risk that they pose to the child. They have consulted with Lane to determine whether continued access between the kin and the child is beneficial and meaningful to the child. This was established despite the kin taking matters into their own hands to have a visit with the child that was not approved by the Society.
[71] On June 30, 2021, the child was picked up by the worker from his visit with the maternal grandmother. The child was observed to be rocking very hard against the back of the couch when the worker arrived to drive him home. Ricksen describes his facial expressions as distressed, and it took her 30 minutes to get the child in the car. It was discovered on the car ride home that the reason for the child’s change in behaviour was the result of M.B. having an unscheduled in-person visit with the child.
[72] M.B. acknowledged that she attended at the maternal grandmother’s home while the child was there for a short visit. When questioned about her attendance at the visit, M.B. responded by asking if there was a no contact order in place preventing her from having contact with the child. Once again, the kin’s response to the worker was not child focused. The Society confirmed in its evidence that they are consulting with an attachment specialist about visits between the child and the kin. They continue to evaluate whether it is in the child’s best interests and that any contact between the child and the kin would be supervised and as directed by the consultant. The worker also asked if the kin would be willing to meet.
[73] The kin agreed to meet with the Society and Lane. The meeting occurred over Zoom. The kin, without the knowledge of the other participants, recorded the meeting. A transcript of the meeting was filed with the court by the kin, for the motion, although the transcript was not signed. The Society attests that the kin never sought permission to record the consult from the consultant or the Society worker. The Society attached to its affidavit of Ricksen, sworn August 3, 2021, a letter from Lane. I do not accept either document as proper evidence in a motion for placement and in that respect am not giving it any weight. Lane has not been properly qualified as an expert by this court, and I have concerns about the reliability of the transcript. I do not believe that either is necessary to make a determination in this case.
[74] I have been asked to decide whether the child’s best interests require a change based on the evidence before me. In determining whether that change is required, I must consider the child’s best interests as set out in the CYFSA. I must also consider the best interests set out in s.10 of FNIM given this child’s Indigenous heritage. The impact and consequences of our history have created systemic barriers that prevent people from fully participating in all parts of society. Statistics support an over-representation of both Indigenous and Black children in care. The preamble of the CYFSA, the proclamation of FNIM and various initiatives through the Ontario Association of Children’s Aid Societies represent the work that still needs to be done to ensure that history is not repeated: see One Vision One Voice: Changing the Ontario Child Welfare System to Better Serve African Canadians, Practice Frameworks (2016), online: Ontario Association of Children’s Aid Societies http://www.oacas.org/what-we-do/onevisiononevoice/; and the Other Side of the Door: A Practice Guide for child Welfare Professionals in working with First Nation, Inuit and Métis Peoples (2014), online: https://www.oacas.org/wp-content/uploads/2017/09/1114-Other-Side-of-the-Door_web_2017.pdf.
[75] The factors to be considered in determining the best interests of a child are contained in s. 74(3) of the CYFSA.
[76] In assessing this child’s best interests, the first step is to consider the child’s views and wishes in accordance with his age and stage of development. There is no evidence before me regarding the child’s views and preferences.
[77] Next, the court must consider the child’s Indigeneity and the importance and uniqueness of First Nation, Inuit and Métis cultures, heritages and traditions, and of preserving the child’s cultural identity and connection to community. This child is Indigenous Mi’kmaq. He receives his Indigeneity from his maternal family. It is agreed that the mother and the maternal grandmother are unable to put forward a plan for him. It is also agreed that the child should continue to have contact with the maternal grandmother and that any contact with the mother cannot occur until the criminal court order prohibiting contact is varied. The father supports continuing the relationship between the child and the maternal family.
[78] FNIM is relevant legislation that seeks to establish a uniform process across Canada for working with Indigenous children in the child welfare system. One of the purposes of FNIM is to establish where Indigenous children should be placed should they receive child welfare services. At s. 16(1), FNIM provides that to the extent that it is consistent with the best interests of the child, placement is to occur in order of priority. The first order of priority is one of the child’s parents. The fifth and last order of priority is with any other adult, which in this case the Society argues is the kin.
[79] I agree that children should be placed with parents where child protection concerns do not exist or can be mitigated through a supervision order. This is the least intrusive option available to societies and what is considered the best possible outcome for children. In this case, the father has put forward a plan to care for the child. The child has resided with kin for the past four years. The father has had an increase in access with the child since August 2020, and although the child was shy in the beginning, the evidence is that he smiles when he sees his dad and is happy and bonded with the father. The Society seeks, by motion to change, the final order in favor of a temporary order placing the child with the father. The question, however, for the court is whether the change of the child’s placement is required for the child’s best interests.
[80] I will now assess each of the enumerated best interests individually.
(i) The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs — as outlined in the Society’s affidavits, the kin have been unable to meet the child’s physical, mental and emotional needs. The most significant evidence of this is when the kin acknowledge that they photographed the child crying and posted those pictures to a Facebook site. Rather than consoling the crying child, they photographed him, and this behaviour is not child-focused and is not in the child’s best interests. The father asked to proceed slowly with an increase in access schedule to ensure that the child is comfortable. He also acknowledges that it is important for the child to maintain relationships with all people important in his life.
(ii) The child’s physical, mental and emotional level of development — by all accounts the evidence supports normal child development with a few exceptions. Concerns regarding the child were noted when an unplanned visit occurred between the child and M.B. There is evidence that the child was teary when he saw the kin in a video call, and he displayed rocking behaviour following an unplanned kin visit. There is evidence that the child was clingy to kin when he first met his father, however, after several visits he has become more comfortable and now smiles and runs to his father without concern.
(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 — the child has a diverse background in that he shares Mi’kmaq and Black heritage, although he presents as Black. Although the child has been in the care of the kin for most of his life, when asked about the child’s Black heritage and the impact this will have on him as he grows, the kin deny that he may experience racism. While the kin have embraced the child’s Indigenous heritage, they have not done the same to embrace his Black heritage. The father wishes to teach the child about his Black heritage and understands the importance of the child’s race and the impact it will have on him as he grows. He also accepts the importance of his Indigenous heritage and supports a continued relationship with the maternal family.
(iv) The child’s cultural and linguistic heritage — the kin acknowledge that the child has a dual cultural and linguistic heritage. They have focused on the child’s Indigenous heritage without much regard, until recently, for his Black heritage. The father is willing to teach the child about his Black cultural heritage while also continuing his connections with his Indigenous 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 — the father wants the child in his family while also maintaining the important relationships in his life. The kin are connected to the child’s maternal family and are committed to maintaining that connection, but they are not prepared to connect with the father or promote the child’s connection with his father. The evidence is when the child returned from visits the kin provider asked questions about the visit and recorded the child’s responses. The kin also made a report to the Society about sexual interference, which resulted in a police investigation.
(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 —The kin providers have promoted a connection to the maternal family, but the same is not true for the father’s family. The evidence is that the kin have not accepted the Society’s role in pursuing placement of the child with the father and they do not accept that the Society has done its job to ensure that the placement is safe. They attest that the Society is dishonest and not credible and that the father has not provided enough information to accept that the child would be safe in his care. The father has acknowledged the importance of relationships continuing in the child’s life although he has raised some concerns about whether it would be safe to do so with the kin given the most recent impact to the child when kin visited him without the approval of the Society.
(vii) The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity — the child has been in the care of the kin for most of his life, however, the Society verified emotional harm in their care. The evidence supports that the kin have not been child focused and have engaged in harmful behaviour to the child, which supports a disruption to the child’s continuity of care.
(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 — the father has proposed a plan for the child to be placed with him, he is working with the Society and presents a plan that is child focused.
(ix) The effects on the child of delay in the disposition of the case — the child has been involved with the Society since his birth. The mother has not addressed the protection concerns that prevent her from being involved in the child’s life. The maternal grandmother continues to have a connection with the child. The father’s delay in responding to the Society’s application has further delayed permanency for this child. The father has been consistent in his involvement with the Society for the past 18 months and the child has built a relationship with him. Although the kin have been a consistent presence in the child’s life, their recent desire to obtain custody of him has clouded their judgment and behaviour such that it is no longer in the child’s best interests to remain in their care.
(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 — the kin’s behaviour indicates that the child is at risk of emotional harm were he to remain in their care. They have also failed to promote a relationship between the child and the father. This was further evidenced when M.B. visited with the child without the Society’s permission. Based on the evidence before me, there is real concern for the child’s safety if he were to return to the kin. I am also not confident that the kin would promote a relationship for the child with his father, which I deem to be in his best interests.
(xi) The degree of risk, if any, that justified the finding that the child is in need of protection — when the child was previously found in need of protection, the father was noted in default. The father has now engaged with the Society and is following their directions while also promoting the child’s continued relationship with his maternal family. The degree of risk currently relates to the kin and a risk of emotional harm established by their behaviour.
[81] Section 10(3) of FNIM also lays out a number of factors to be considered in the determination of the best interests of an Indigenous child. Many of these factors are repetitive with the CYFSA considerations which I have laid out above. Section 10(2) of FNIM requires that primary considerations must be given to a 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”. As Abel J. writes in Michif Child and Family Services v. C.L.H. 2020 MBQB 99, FNIM directs ‘that the best interests of the child be considered at all stages of the process” (para. 33). I have considered those factors in arriving at my decision.
[82] Abel J. also notes that the factors enumerated in s. 10(3) are not “merely examples” of what should be considered in the best interests of an Indigenous child, but “specific categories that must be addressed”: Michif Child and Family Services at para. 32. Therefore, out of an abundance of caution, I note that the factors enumerated in ss. 10(3)(a) – (f) have been adequately addressed in para. 80, but I will note that there are no concerns with family violence in the child’s placement with the father, as enumerated in s. 10(3)(g); and that I am not aware of any civil or criminal proceeding (other than this one) that is relevant to the safety of the child (as per s. 10(3)(h).
[83] In child protection worker, Ruddock’s affidavit sworn June 4, 2021, he notes concerns with the kinship provider’s care of the child, and at paras. 14-15 he writes the following:
Even prior to the current investigation, the Society had increasing concerns that M.B. and C.B. were unwilling and/or unable to support and facilitate positive transitions for A [the child] with his father, R.H. and connections with his black heritage. These concerns are outlined in detail in the Affidavit of Society worker Stephanie Ricksen dated May 20, 2021, which was filed in response to the motion for party status. A true copy of that Affidavit is filed at volume 4, Tab 6 of the continuing record. I rely upon the contents of that Affidavit with respect to the current motion. As noted above, …
The current investigation verified significant additional concerns regarding the ability of M.B. and C.B. to meet A [the child’s] collective emotional, psychological and cultural needs. M.B. and C.B. have participated in a Facebook page where pictures were posted of children involved in court proceedings (including A [the child]) in contravention of the provisions of the CYFSA, and racist, disparaging and negative comments were made towards the Society and families working with the Society. M.B. and C.B. have engaged in an escalating pattern of behaviour which has interfered with A’s relationship with his father. They appear to lack understanding of A’s cultural identity, and the importance of his connection to his paternal family and identity. They plan to assimilate A into their home and community and consider the length of time he has been with them to be more significant than his father or his own identity. The Society believes that A [the child] would be at great risk of further emotional harm should he be required to return to the care of M.B. and C.B.
[84] I am not satisfied that if the child was returned to the care of the kin that he could be adequately protected by terms of a supervision order. They have demonstrated actions that are not child-focused, but rather support the Society’s position that the kin are not interested in promoting a relationship between the child and his father. Their priority is gathering evidence, at the child’s expense, to support their custody case.
[85] The kin want custody of the child and they do not support the child returning to the father when he has been absent for the first three years of the child’s life. Culture, they argue, should not trump their “time” with him. They are the child’s parents and he should be with them.
[86] I cannot accept this argument. While the father was late in putting forward his plan, he did request to have the child with him at the child’s birth, but no one listened. He was overwhelmed with the court process and he had no one to advocate for him. He is working with the Society and he has been assessed as appropriate. Societies are required to continue to assess parents and seek a return of a child to their care, if possible. The father wants his child in his life, and he has cooperated with the Society. Through a slow introduction, the child has become comfortable in his care. He only wants what is best for the child and is willing to continue to promote all relationships in the child’s life. Putting culture aside for a minute, this is what all children need: adults in their life to take responsibility for their actions and put them first.
[87] The CYFSA and FNIM have both been enacted to recognize the importance of culture and identity in a child’s life. Cultural awareness and tradition play important roles in helping young children develop a positive sense of identity and build self-esteem. Studies show that cultural appreciation and awareness contribute to building a positive self-image. The father offers the child stability in a loving home with a parent who is focused on the child’s best interests. He also offers the child the ability to know himself through both sides of his family.
[88] The father is Black. The child is also Black. Statistics confirm that anti-Black racism exists and that Black children are over-represented in the child welfare system. The kin have denied that this child will experience racism if left in their care. They have acknowledged that they are White, but they have ignored the real implications that the child being Black will have on his life. This is problematic. They cannot acknowledge the benefit of the father in the child’s life. They can only focus on the time the child has been with them and the pain that they feel when he is not with them.
[89] The evidence before me supports the child being placed with the father. I find that it is in the child’s best interests to be with his father and that this change is required now.
[90] I cannot ignore the time that the child has spent in the care of the kin. Throughout the material it is acknowledged that the child has a relationship of importance with the kin. The Society has been exploring whether the child should continue to have contact with them while establishing a relationship with the father. The Society should continue to retain the services of experts to determine what role the kin can play in the child’s life that is free from harm. Given the concerns outlined in the material, I am only prepared to order access between the child and the kin at the Society’s discretion following an expert report.
[91] The child’s connection to his Mi’kmaq heritage comes from his maternal family. I support access with the maternal grandmother continuing.
[92] I am not satisfied, based on the evidence filed, that returning the child to the care of the kin is in the child’s best interests. I find that the child’s best interests require a change and that the child should be placed in the care of the father pursuant to a supervision order.
[93] I am not prepared to order costs. I find that the kin contributed to increased legal fees through their behaviour. The mother has not changed her circumstances since this matter began at the child’s birth. The Society was carrying out its mandate and I find they acted reasonably. For these reasons this is not a case where costs should be ordered.
Orders Granted
[94] This court orders the following:
The Order of Justice Breithaupt Smith dated June 7, 2021 shall be made temporary.
The Society shall obtain an attachment expert report forthwith regarding access between the child and the kin. Any access between the child and the kin shall be at the discretion of the Society in accordance with the expert’s recommendation.
There shall be no order for costs.
Matter adjourned to a Settlement Conference on January 13, 2022 at 2:15 p.m.
J.D. Walters J
Released: November 22, 2021