COURT FILE NO.: FC1227/21-1

DATE: November 24, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant

AND:

A.F., C.C., D.G. – Band Representative, Chippewas of the Thames First Nation and W.S. – Band Representative, Oneida Nation of the Thames, respondents

BEFORE: MITROW J.

COUNSEL: Kevin Chao for the Society A.F. in person C.C. not appearing D.G. – Band Representative, Chippewas of the Thames First Nation K.E. – Band Representative, Oneida Nation of the Thames C.N. for Chippewas of the Thames First Nation

HEARD: November 22, 2021

ENDORSEMENT

INTRODUCTION

[1] This child protection application issued February 16, 2021 involves two children, C.F.1 (“C1”), born in 2015, and C.F.2 (“C2”), born in 2019.

[2] The mother of both children is A.F. (“the mother’). C.C. is the father of C1 (“the father”). The evidence is that the father has had sporadic parenting time with the child, C1.

[3] The court was provided with no evidence regarding the father of the child, C2. The evidence from the Society is that the mother has not identified the father to the Society. There is no indication in the material that the biological father has any ongoing relationship with the child, C2.

THE PURPOSE OF THESE REASONS

[4] On November 22, 2021, an order was made placing both children in the temporary care and custody of A.F. and N.K., subject to Society supervision and subject to some specific terms and provisions contained in the appendix to the Society’s application.

[5] The matter was then adjourned before me to December 9, 2021 at 8:30 a.m. and an order was made that the issue of access is reserved.

[6] These are the reasons for the order made on November 22, 2021 and the issue of access also is addressed.

THE RELEVANT BACKGROUND

[7] The background history is contained in the Society affidavit of Rebecca Mendoza.

[8] The mother is First Nation and her Band is Chippewas of the Thames First Nation (“COTTFN”). The mother and the child, C1, both have status with COTTFN and C2 does not have status but is eligible for status. The father is First Nation and his Band is Oneida Nation of the Thames.

[9] The immediate presenting protection issue was both children’s serious asthma condition and the mother’s inability to provide a safe environment for the children and to manage their healthcare. In addition, the mother has a serious issue with substance abuse, which has compromised her ability to care for the children.

[10] The children’s medical history is salient and concerning.

[11] The child, C1, was brought to hospital by ambulance on December 26, 2020. He had been at the father’s home. The child was exposed to heavy cigarette smoke, which exacerbated his asthma. C1 was admitted to the critical care unit. His doctor reported to the Society that C1 was very close to death at one point.

[12] In the early morning hours of December 27, 2020, C2 was brought to the emergency department by her mother. C2 had been exposed to cigarette smoke at the mother’s home, which exacerbated her asthma condition. The mother is a smoker and has been warned previously about smoke inside her home and the health risk to the children. C2 was admitted to the critical care unit.

[13] A determination was made in consultation with COTTFN that the mother would be provided with a support worker to assist her. Protection concerns were verified. In August 2021, the family was assigned Ms. A.H. from COTTFN.

[14] The child, C1, was admitted to hospital on August 6, 2021. Concern was expressed that the mother was absent from the hospital, was not engaged and was frequently leaving the child’s room. Doctors expressed concerns that the mother was not using medications as prescribed for the children. A few days later, C1 was discharged.

[15] On August 17, 2021, the mother contacted the Society, advising that she had taken both children to LHSC for urgent care. C2 was in the trauma unit, was sedated and on a breathing tube. The child, C1, was on oxygen. The children stayed in hospital for a week. While there was some concern that mould at a residence was the reason for the children’s asthma exacerbation, the evidence is that the medical team was concerned that exposure to cigarette smoke was the main issue affecting the children’s health.

[16] Following the discharge from hospital on August 21, 2021, the mother and both children moved into the Rotholme shelter. The mother continued to reside there until the children were removed from her care by the Society.

[17] There is evidence that subsequent to moving to Rotholme, that the mother failed to attend with the children for various medical appointments and failed to follow through in providing the children with medication on a regular and routine basis.

[18] There was evidence that Rotholme staff observed the mother being under the influence of substances, including observing the mother staggering and having slurred speech. This was reported to have occurred on or about October 21, 2021.

[19] On the evening of October 23, 2021, the child, C1, was brought to hospital by ambulance. The evidence indicates that C1 was in respiratory distress and was not breathing.

[20] While the mother and C2 were at the hospital with C1 on the day of his admission, observations were made that C2 also was having breathing problems. Although the mother felt that the child was fine, as the mother had given the child her Ventolin, the child nevertheless was assessed, following which the child was admitted to the pediatric floor and administered medication.

[21] The evidence indicates that Dr. Van Horne reported that C2’s asthma is poorly controlled and expressed concern about the number of times that the children were admitted to the intensive care unit for respiratory issues.

[22] Dr. Van Horne expressed the belief that both the home environment and Covid posed a high risk for both children, including environmental inhalants, such as cigarette smoke.

[23] Dr. Van Horne reported, at that time, that C1 was in critical condition, intubated and that his care had been escalated. Dr. Van Horne expressed the possibility that C1 could die. While at the hospital, the mother was reported to present with a blank stare and have a flat affect.

[24] The Society and COTTFN worked in concert to provide additional supports to the mother, including having a Society infant care nurse, a family support worker and daily check-ins while at Rotholme.

[25] The mother also was provided with supports to ensure that she attended all medical appointments with the children, as required, and to ensure that the mother understood the seriousness of the children’s condition and the necessity to administer medication as prescribed to both children.

[26] The children were described by Dr. Sandra as having life threatening asthma.

[27] Both children were discharged from hospital on different dates at or near the end of October 2021 and the children returned to the mother’s care at Rotholme. The Society received information from Dr. Mikhail that, on October 27, the mother had tested positive for fentanyl and that Dr. Mikhail had put a stop to the mother’s weekly carries. Dr. Mikhail further reported that the mother is attending twice a week for testing and carries.

[28] On November 11, 2021, C2 was admitted to hospital. It was at this point that the Society decided that, despite the significant supports provided to the mother, that there were escalating concerns regarding the mother’s follow-up with the children’s medical needs and that the children should be removed from the mother’s care.

[29] The Society did receive information from Dr. Persaud at LHSC that C2 was stable but still in critical care and receiving oxygen and frequent Ventolin.

COURT HEARING NOVEMBER 16, 2021

[30] In the short period of time between the apprehension of both children and the initial court date of November 16, 2021, the Society was advised that COTTFN wished to pursue a traditional customary care agreement (“CCA”). In its application, the Society sought to have the children placed with the maternal grandfather, A.F., and his partner, N.K.

[31] Although the Society application sought placement of the children with the maternal grandfather and his partner pursuant to a supervision order on terms and conditions, the Society’s position then changed in its motion as the Society asked that the protection application be withdrawn on the basis that both children would be adequately cared for and protected under the proposed CCA, which would place both children with the traditional customary care providers, A.F. and N.K.

[32] On that hearing, there was insufficient evidence regarding the proposed traditional customary care providers, or their circumstances, and the matter was adjourned briefly to November 22, 2021. Pending the adjournment, an order was made placing the children in the temporary care and custody of the Society.

CUSTOMARY CARE AGREEMENT

[33] I am satisfied on the basis of the additional affidavit material filed prior to the hearing on November 22, 2021, that it is appropriate to place the children with the proposed traditional customary care providers, A.F. and N.K. Although the proposed care providers both smoke, the evidence indicates that they do so outside of the house and that they have implemented precautions to ensure that there is no smoke in the home and this includes not bringing into the home the jackets worn while smoking outside.

[34] The evidence further indicates that C2 has a spot in the Enji Maajtaawaad Early Years program, which is a daycare program at COTTFN, and that the child, C1, can commence school at Antler River immediately. In addition, the children’s medical needs can be met through the Southwest Ontario Aboriginal Health Access Centre (“SOAHAC”), where the children can be accepted immediately.

[35] The COTTFN has purchased an air purifier for the care providers to assist in ensuring that the children are not exposed to any respiratory issues.

[36] Also included in the CCA is an appendix that includes the terms and conditions that had been sought by the Society as a part of its request for a supervision order placing the children with the traditional care providers. That schedule includes a term that the Society will continue to be involved and will be allowed in the home for home visits with the Band representative.

[37] Further, a Society worker did have access to the care providers’ home, which enabled the Society to file additional evidence with the court.

[38] During the hearing, the court did express concern that the CCA provided for the mother to have unsupervised access, and with no terms and conditions applying to the visits.

[39] While the overall objective is to continue to provide the mother with services and resources that address her issues of substance abuse and ability to care for the children and attend to their medical needs, I find that the terms of access as set out in the CCA do not sufficiently address the risk to the children regarding the mother’s access.

[40] In relation to Indigenous children, federal legislation has recently been enacted: An Act respecting First Nations, Inuit and Métis children, youth and families, Statutes of Canada 2019, c. 24 (hereinafter referred to as the “Federal Act”). The Federal Act must be interpreted and administered in accordance with the principle of the best interests of the child: s. 9(1).

[41] The Federal Act requires the best interests of the child to be a primary consideration when providing child and family services, and the paramount consideration in relation to a child’s apprehension. These provisions are contained in s. 10(1) of the Federal Act:

Best interests of Indigenous child

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

[42] The Federal Act applies at every stage of a child protection proceeding, including when the court is determining a temporary care and custody hearing under s. 94(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1: Children's Aid Society of London and Middlesex v. T.E., 2021 ONSC 788, at para. 20.

[43] Pursuant to s. 4 of the Federal Act, nothing in the Federal Act affects the application of a provision of a provincial Act or Regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of the Federal Act.

[44] I find that the placement of the children with their proposed care providers pursuant to an interim supervision order satisfies the best interests test in the Federal Act and also the provisions of s. 94(2)(c), (4) and (5) of the Child, Youth and Family Services Act, 2017.

[45] In addition to the proposed care providers, there is an adult child of one of the care providers living in the home. All three adults have provided police records checks disclosing no criminal record for any of the adults.

[46] Although one of the proposed care providers has had some past history with a Children’s Aid Society, I am satisfied on the evidence that that history does not affect the placement of the subject children with the proposed care providers.

ACCESS

[47] In my view at this time, until the next court hearing, the mother’s access should be supervised as set out in the order below.

[48] Given the lack of any regular involvement of the father in the child, C1’s life, I accede at this time to the submission of counsel for the COTTFN that the order should be silent in relation to access to the father.

MATTERS TO BE ADDRESSED PENDING THE NEXT COURT DATE

[49] The issue of concluding this matter by way of withdrawal of the application in favour of the CCA is a laudable goal. It is acknowledged that the COTTFN has consented to the interim supervision order on a without prejudice basis to its position that this matter should not be before the court and, instead, the COTTFN should be providing for the care of the children pursuant to the CCA.

[50] In the Child, Youth and Family Services Act, 2017, customary care is defined in s. 1 as follows: “… the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community.”

[51] Customary care agreements are addressed in s. 80 of that Act:

Customary care

80 A society shall make all reasonable efforts to pursue a plan for customary care for a First Nations, Inuk or Métis child if the child,

(a) is in need of protection;

(b) cannot remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part or, where there is an order for the child’s custody that is enforceable in Ontario, of the person entitled to custody under the order; and

(c) is a member of or identifies with a band, or is a member of or identifies with a First Nations, Inuit or Métis community.

[52] The court is not involved in the preparation and execution of a CCA. However, where a court is requested to permit an application to be withdrawn in favour of a CCA, then the court is obligated to make that decision in the best interests of the child, both under the Child, Youth and Family Services Act, 2017 and the Federal Act.

[53] In the present case, I find that the terms of the CCA do not sufficiently address the children’s best interests in relation to the provision that permits unsupervised access to the mother.

[54] At the next court date, the parties are encouraged to consider revisions to the CCA so that access to the mother has some appropriate conditions in relation to supervision of her access and conditions that require the mother to ensure that the children are not exposed to smoke and prohibiting the mother from consuming substances for a period of time prior to and during any access. Also, the father’s access should be addressed.

[55] The parties may also wish to consider whether the CCA should include, on page 3, an acknowledgement that the mother’s inability to provide for the children’s current needs also includes substance use.

[56] On a more minor point, on page 4 of the CCA, paragraph 9, the last sentence of the paragraph appears to be grammatically incorrect. Some revision may be necessary.

[57] At this point, the father has not been served and the father of the youngest child has not been named.

[58] In Ogwadeni:deo v. P.E., 2020 ONCJ 145 (Ont. C.J.), the court was asked to consider the withdrawal of a protection application on the basis of the children being cared for pursuant to a CCA. The court noted the importance of ensuring that the parents have notice of the proceedings and the court considered the notice provisions in s. 12 of the Federal Act.

[59] In the present case, the COTTFN submits that s. 12(1) provides that notice is subject to the best interests of the child. Specifically, s. 12(1) of the Federal Act states:

Notice

12(1) In the context of providing child and family services in relation to an Indigenous child, to the extent that doing so is consistent with the best interests of the child, before taking any significant measure in relation to the child, the service provider must provide notice of the measure to the child’s parent and the care provider, as well as to the Indigenous governing body that acts on behalf of the Indigenous group, community or people to which the child belongs and that has informed the service provider that they are acting on behalf of that Indigenous group, community or people.

[60] At this point, I am not prepared to make a finding that the court should dispense with notice to the father, C.C.; nor am I prepared to order that the court should not make any further inquiry with respect to the unnamed biological father of the youngest child. The best interests test in s. 12(1) must be interpreted in the context of the stage of the protection application. Non-service of parents or a care provider may be more common in early stages where it is necessary to make a temporary order, as distinguished from a situation where a final order is made.

[61] In relation to the father, the order below does provide for some additional evidence to be filed as it relates to the respondent father and also the unnamed father of the youngest child.

[62] In addition, at the next hearing, the parties should provide a brief update to the court as to how the children are doing in their new home, an update as to the children’s medical condition, confirmation that the children have been placed in school or daycare and, if possible, an update from the children’s treating physicians as to their current state of health. It would also assist if there was a brief update as to the mother’s access visits and any proposal as to expansion of those visits.

[63] It is noted that in the order made on November 22, 2021, I did not specifically indicate it was on a without prejudice basis. In the circumstances, that was the intent of the order and the order below clarifies that point.

ORDER

[64] An order shall go as follows:

1. The order dated November 22, 2021, placing both children in the temporary care and custody of A.F. and N.K. subject to Society supervision and terms and conditions, is varied only to the extent to indicate that the order was made on a without prejudice basis.

2. The mother shall have interim reasonable access to both children as follows:

(a) the access shall be supervised by a person or persons agreed to by the Society and the Chippewas of the Thames First Nation;

(b) the mother shall not consume any alcohol or any non-prescription substances 24 hours prior to and during access;

(c) the mother shall not expose the children to any smoke, whether secondary or otherwise, at any time during access; and

(d) with the agreement of the Society and the Chippewas of the Thames First Nation, the mother may have unsupervised access with the children, so long as the unsupervised access visit does not exceed three hours and so long as the unsupervised visit occurs at a location or locations as approved by both the Society and the Chippewas of the Thames First Nation.

3. The Society shall serve the respondent father or, alternatively, provide evidence as to attempted service, together with sufficient evidence to permit an order for substituted service.

4. In relation to the unnamed father of the child, C2, the Society shall make appropriate inquires to identify the father and the Society shall serve the father or, alternatively, the Society shall provide evidence as to attempted service, together with evidence sufficient to permit an order for substituted service or, if applicable, an order dispensing with service.

5. In serving the persons referred to in paragraphs 3 and 4 of this order, the documents to be served shall include the application, motion, all three affidavits, a copy of the signed customary care agreement, copies of all handwritten and typed endorsements, and copies of the issued orders dated November 16, 2021 and November 22, 2021.

“Justice V. Mitrow”

Justice V. Mitrow

Date: November 24, 2021