SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: C1082/20-1

DATE: February 8, 2021

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:

T.E., J.G. and Loni Doxtator, Oneida Nation of the Thames Band Representative

BEFORE: TOBIN J.

COUNSEL: Randolph C. Hammond for the Society Erica Doxtator for T.E. Christina Ninham for J.G.

HEARD: January 29, 2021 by Zoom videoconference

ENDORSEMENT

[1] The Society moves for an order placing Z.E., born in 2020 (“the child”), in its temporary care and custody.

[2] The respondent parents oppose the relief requested by the Society. They ask for an order that the child be placed in their care subject to the Society’s supervision and on terms and conditions.

[3] In this hearing, the court is asked to consider whether the temporary care and custody provisions of the provincial child protection legislation are in conflict or inconsistent with the federal child protection legislation.

Evidence Considered

[4] The court was referred to, and relied upon, the following evidence: affidavits of Barry Verberne, sworn November 20, 2020 and January 28, 2021; affidavit of Dayan Clifford, sworn January 28, 2021; affidavit of T.E., sworn January 27, 2021; affidavit of J.G., sworn January 27, 2021; and affidavit of K.D., sworn January 27, 2021.

[5] The respondents prepared their affidavit evidence before they were served with the Society’s most recent notice of motion and affidavit evidence. The respondents explained this circumstance as follows. The child had been in the care of C.G. pursuant to the without prejudice order of Henderson J. dated November 23, 2019. That placement broke down and the child was removed from her care on January 25, 2021. The respondents prepared their material before they were served with the Society’s motion returning the matter before the court.

[6] None of the parties asked that the temporary care and custody hearing be adjourned so that further or reply evidence could be filed.

[7] It is on this basis that the parties ask for an interim order on this temporary care and custody hearing.

Legal Consideration

Provincial Child Protection Legislation

[8] The purpose of the temporary care and custody hearing is to determine where a child is to stay until the merits of the protection case can be heard: Children's Aid Society of Hamilton v D. (B.), 2012 ONSC 2448, para. 28.

[9] The legal test to apply on this hearing is set out in s. 94(2), (4) and (5) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the Act” or “the provincial Act”) which read as follows:

Custody during adjournment

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

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

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

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

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

Criteria

(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

Placement with relative, etc.

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

[10] If a child is placed in the care of - in this case the parents - or a third-party, s. 94(6) allows the court to impose terms and conditions as follows:

Terms and conditions in order

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

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

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

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

[11] The court must take into consideration the child's views and wishes, given due weight in accordance with the child's age and maturity pursuant to s. 94(11) of the Act. As the child is four months old, her views and wishes are not a consideration in this case.

[12] At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the Society must meet.

[13] The Divisional Court has held that a society seeking an order for temporary society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies society intervention: L.D. v. Durham Children's Aid Society and R.L. and M.L., 2005 CanLII 63827 (ON SCDC), [2005] O.J. No. 5050 (Ont. Div. Ct.), para. 26. The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent's care: CCAS of Toronto v. M.L.R., 2011 ONCJ 652, para. 27.

[14] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (s. 1(2) of the Act): Children's Aid Society of Hamilton v. D. (B.), supra, para. 29.

[15] The degree of intrusiveness of the Society's intervention and the interim protection ordered by the court should be proportional to the degree of risk.

Federal Child Protection Legislation

[16] As the child is a First Nations child, the Federal child protection legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 ("the Federal Act") must be considered. The Federal Act came into force on January 1, 2020. This legislation was enacted in part to ensure courts and child protection agencies follow minimum standards with respect to providing services to, or making decisions about, Indigenous children and to supplement the provisions of the provincial Act: Huron-Perth Children's Aid Society v. A.C., 2020 ONCJ 251, para. 30.

[17] The application of provincial child protection legislation is not affected as long as it does not conflict with, or is not inconsistent with, the Federal Act: Federal Act s. 4. When assessing the best interests of a child, the following must be considered: the principle of cultural continuity, s. 9(2); the principle of substantive equality, s. 9(3); best interests considerations of Indigenous children, s. 10; and priority of placement, s. 16: Huron-Perth Children's Aid Society v. A.C., 2020 ONCJ 251, para. 30.

[18] The relevant provisions of the Federal Act are formulated as follows:

Principle - best interests of child

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

Principle - cultural continuity

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

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

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

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

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

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

Principle - substantive equality

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

(a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child's participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs;

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

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

(d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and

(e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.

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.

Primary consideration

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

Factors to be considered

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

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

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

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

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

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

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

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

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

Consistency

(4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.

Placement of Indigenous Child

Priority

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

(a) with one of the child's parents;

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

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

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

(e) with any other adult.

Placement with or near other children

(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child's family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.

Customs and traditions

(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.

Family unity

(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with

(a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or

(b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a).

[19] When considering the Act and the Federal Act together, in the context of making a final disposition order under s. 101 of the Act, Neill J. observed in Huron-Perth Children's Aid Society, supra, at para. 161:

161 Considering the provisions of both the Child, Youth and Family Services Act, and Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families, the best option is to have these children returned to the care of a parent, but only if that is in the best interests of the children [s. 101 Act; s. 16(1)(a) Bill C-92]. Both Acts make it clear that the primary or paramount consideration is what is in the best interests of the children.

[20] Counsel for the parties submit that the Federal Act applies at every stage of a child protection hearing including when the court is determining a temporary care and custody hearing under s. 94(2) of the Act. I agree. The issue now is to determine whether the provisions related to temporary care and custody hearings in the provincial Act are in conflict or inconsistent with the Federal Act.

[21] For the reasons that follow, I find that the temporary care and custody provisions of the provincial Act are not in conflict or inconsistent with the Federal Act.

[22] In determining whether to return a child to a parent's care in a temporary care and custody hearing, the Act requires the court to consider whether the likely risk of harm to the child can be adequately protected against without, or with, Society supervision and terms and conditions.

[23] The Federal Act requires the best interests of the child be the paramount consideration in actions related to apprehensions: Federal Act s. 10(1).

[24] Section 94 does not specifically mention that the determination of a temporary care and custody hearing is to be made on the basis of the child's best interests. The only best interests factor specifically provided for in s. 94 is at ss. (11). This subsection requires the court to take into account the child's views and preferences. The formulation of s. 94(11) is the same as s. 73(3)(a). Section 73(3) sets out considerations the court must take into account when directed to make an order or determination in a child's best interests.

[25] Under a plain reading of s. 94 of the Act, the court is not directed to determine a temporary care and custody hearing on the best interests of a child.

[26] However, the modern approach to statutory interpretation requires reading the words of an Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the Legislature’s intentions: Rizzo & Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, para. 21.

[27] I also take into account the Legislation Act, 2006, S.O. 2006, c. 21 Sched. F s. 64, which requires Acts to be interpreted as remedial and shall be given such fair, large and liberal interpretation as best insurers the attainment of its objects.

[28] The Act provides at s. 1(1) that its paramount purpose is to promote the best interests, protection and wellbeing of children.

[29] The paramount purpose of the Act applies and must therefore be considered at all stages of child protection proceedings, including temporary care and custody hearings: see Children's Aid Society of the County of Dufferin v. E.F., 2020 ONCJ 434, para. 47.

[30] In Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] S.C.J. No. 37, the court dealt with an appeal under the Ontario Child and Family Services Act (the predecessor of the Act) in the context of a status review application. At. para. 48 of that decision, the court held:

48 The law that courts must apply in the present case is the Ontario Child and Family Services Act, which, properly interpreted, mandates a careful balancing of its paramount objective of the best interests of the child with the value of maintaining the family unit and minimizing State intervention. …

[31] The court also stated, at para. 25:

25 … This non-interventionist approach is premised not with a view to strengthen parental rights but, rather, in the recognition of the importance of keeping a family unit together as a means of fostering the best interests of children. …

[32] These statements apply equally to the Act and, in particular, to a s. 94 temporary care and custody hearing. On a temporary care and custody hearing, the court must balance the primary objective of the best interests of the child - which includes keeping the child safe from harm - with the value of maintaining the family unit together.

[33] When comparing the two Acts, both require a consideration of the child’s best interests and maintaining the family unit.[^1] The Federal legislation requires the best interests of the child be considered and prioritizes maintaining the Indigenous family unit. When considering best interests under the Federal Act, s.10(2) states that "primary consideration must be given to the child's physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child's connections to his or her culture."

[34] The best interest considerations in the Federal Act are more expansive than in the provincial Act. This comparison was addressed in CAS v. K. C. and Constance Lake First Nation, 2020 ONSC 5513, at para. 41, as follows:

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

[35] I adopt this interpretation: the augmented best interest provincial test governs.

[36] I also take into account that the principle of cultural continuity is recognized in the additional purposes of the provincial Act at s. 1(2)6.

[37] In summary, the paramount consideration in both Acts is the best interests of the child. The provincial Act adds “protection and well-being” to the paramount consideration. On temporary care and custody hearings, the provincial Act specifically requires the court to consider likely risk of harm if the child is returned. Risk of harm is a best interests consideration. In the Federal Act, all factors related to the circumstances of the child must be considered in the determination of the best interests of an Indigenous child. In both Acts, placement of the child is to be considered on a priority basis (s. 94(2) and s. 16(1)). While there is potential conflict between these two sections, there is no conflict in their operation in this case. In assessing placement, both Acts require the court to consider measures relevant to the child’s safety, security and well-being. Finally, the provincial Act recognizes the importance of indigenous cultures, traditions, connection to communities, and the concept of extended family, s. 1(2)6. When considered in the context of this temporary care and custody hearing, the provisions of the provincial Act are not in conflict nor inconsistent with the Federal Act.

Facts

[38] The respondent, T.E., age 18, is the child's mother ("the mother"). The respondent, J.G., age 17, is the child's father ("the father").

[39] The mother has heritage with Chippewas of the Thames First Nation, however, does not currently have status.

[40] The father is a member of the Oneida Nation of the Thames. It is with this Band that the parents have indicated they plan to register the child.

[41] The Oneida of the Thames Band representative, Loni Doxtator, has assisted this family and participated in this temporary care and custody hearing.

[42] Members of the child's extended family have been involved in helping her and the parents from time to time.

From Birth to Removal from Parents' Care

[43] Following the child's birth, the plan was for the parents and child to stay with a relative. That plan changed before the child left hospital because the mother became angry with that relative. Instead, they went to the home of the child's maternal great aunt, K.D. (Ms. K.D. traditionally adopted the mother through their Longhouse, so the child is her granddaughter.) The parents and child left that home three days later because there was no working fridge and a water advisory was in effect.

[44] They then went to the child's maternal aunt's home, O.T. ("O."). The plan was to have O. care for the child while the parents completed mental health assessments.

[45] Approximately two weeks later, this plan ended because there was not enough room in O.’s home for all of them.

[46] The next plan was for the parents and child to spend the weekend with another relative and then move to the home of extended family members of the mother's, named G. and R. That home was inspected and observed by the Society worker to be clean, with no visible safety hazards.

[47] Initially, G. and R. observed the parents were "doing a great job of caring for the [child]." The worker observed the parents to be "attentive toward the child with no concerns noted."

[48] However, within a few days, concerns arose:

1. The parents were arguing. The parents acknowledged that they could benefit from counselling. The mother also agreed to participate in her own counselling.

2. The father was observed to have bloody knuckles from punching a wall. He denies this. He acknowledged punching a wall approximately two years earlier.

3. A bong was found, which the mother acknowledged was hers.

4. The mother acknowledged smoking marijuana, but only when the child was sleeping.

5. The parents had been consuming alcohol. The father confirmed that this was the case on Hallowe'en 2020.

[49] The plan to remain with G. and R. broke down within a few weeks.

[50] The parents and child then went to the home of the father's cousin, C.G., while they looked for a secure place to stay. They stayed at Ms. C.G.’s home for a number of days.

[51] Acting on concerns arising from the parents', at times fractious relationship, the Society workers decided to ask the parents to have the father be the child's primary caregiver. The day after the Society worker informed the parents of the Society's plan, the child spent the night with O. When O. could not reach the father to pick the child up, she contacted K.D. Ms. K.D. then had the child. Ms. K.D. wanted to present a plan of care for the child. However, before the plan could be put in place, a new plan was made. The child was placed in the care of C.G. When Ms. C.G. worked outside of the home, Ms. K.D. would assist with care.

[52] The Society then brought this child protection application that was issued on November 20, 2020. It also brought a temporary care and custody hearing that was to be heard on November 23, 2020. On that date, Henderson J. made a without prejudice order placing the child in the care of C.G. subject to terms and conditions. The parents were granted reasonable access.

From Placement under the Order of Henderson J.

[53] The child remained in the care of C.G. until January 25, 2021. While in her care, Ms. C.G. reported that the child did well.

[54] Ms. C.G. had occasion to report inappropriate behaviour by the parents. On November 26, 2020, she reported to the police that the parents were intoxicated, arguing and aggressively pushing one another. The child was present. When the police did attend, the "parents were calm and did not appear drunk." The next day, the Society worker went to Ms. C.G.’s home. He told the parents they needed to leave that home. This advice upset both parents. Notwithstanding, Ms. C.G. felt that she could de-escalate the situation while the parents packed their belongings. Shortly afterwards, K.D. came to Ms. C.G.’s home. Ms. C.G. was not able to de-escalate the situation. The worker called the police via 911. At some point, Ms. K.D. came outside of the home and told the worker that she would take the parents and the child to her home. The worker would not allow her to leave with the child.

[55] Shortly afterwards, Ms. K.D. left with the parents.

[56] Since then, Ms. C.G. reported "ongoing bullying and harassment from the mother and her family." These actions continued and, on January 25, 2021, the Society worker removed the child from Ms. C.G.’s care at her request.

[57] Ms. K.D. then put forward a plan whereby the child would be placed in her care and the parents would live with her as well. Later, the same day that Ms. K.D. had put forward that plan, the mother reported to the Society that she could not stay with Ms. K.D. and that she needed to find her own place.

[58] The Society did not approve Ms. K.D.’s plan in these circumstances.

[59] The child is now in an approved foster home, which Society counsel advised was with an Indigenous foster family.

[60] While the child was in Ms. C.G.’s care, the parents had access two days per week at the Society and three days per week at K.D.’s home. The Society did not note any concerns with access.

[61] The mother acknowledges that there was conflict between her and the father. She says they disagree at times but now there is no ongoing conflict. She also acknowledges being upset at two meetings she had with Society workers. She explains the breakdown of the placement at G. and R.’s home as their fault.

[62] The mother's request is that the child be placed in her and the father's care. She has suitable accommodations with Ms. K.D. She has plenty of family support. She says that she will put the needs of the child ahead of her own. She wants to maintain the strong bond that she has with the child.

[63] The father's evidence is that, since the child was removed from the parents' care, he has stopped taking drugs and drinking alcohol. He has stopped engaging in adult conflict. He will start counselling and take an online parenting course. He also states that he was consistent with access and was able to meet the child's needs during this time.

[64] K.D. supports this plan.

[65] Ms. K.D. resides at Oneida Settlement and currently is working from home. She has a safe and secure home where the child, parents and she can continue to live. She does not have a criminal record, nor pending charges before the court. Ms. K.D. has been assisting the parents to develop their life skills. She is willing to have the child placed with the parents in her home and to ensure the child's needs are met while there.

Risk the Child is Likely to Suffer Harm

[66] I find that the Society has, on credible and trustworthy evidence, met its onus and established that it is more probable than not that, if returned to the father and the mother, the child would suffer harm:

− The child is an infant, whose needs must be consistently met by her caregivers.

− The parents are young and inexperienced caregivers.

− The parents have had difficulty establishing a stable residence for the child. In the two and a half months they had the child in their care, they never had their own home and moved from relative to relative many times.

− The parties engaged in domestic conflict. On occasion this occurred in front of the child. The parties recognize their need for counselling.

− The mother uses marijuana regularly. She says that she does not use it except while the child is sleeping. She did not address whether her ability to parent would be impaired when the child woke up.

− The parents consumed alcohol on occasion to such an extent that it affected their ability to adequately parent the child.

− The parents require the help of family members to care for the child.

− There is a history of concern for the mother's mental health.

− The parents have been inconsistent in cooperating with the Society worker.

Placement of the Child

Position of the Parties

[67] The Society asks for an order that the child remain in its care. Its position is that terms of supervision will not adequately protect the child if placed in the care of the parents. The Society workers, and family members, have worked hard to keep the child safe while in the care of the parents and to promote the family’s First Nations connections. Even with this help, the Society argues, the parents have not been able to stabilize their behaviour or put the child’s needs ahead of their own. In response to the parents’ request to involve K.D., the Society submits that past plans involving her have not worked out. Finally, the Society argues that applying the best interests considerations under both Acts to the evidence requires the child remain in its care at this time.

[68] The parents argue that, since December 15, 2020, the Society has “failed to provide negative evidence” regarding the parents to such an extent that supervision terms would not adequately protect the child. In the notice of motion filed on behalf of her client, Ms. Ninham has suggested a number of terms of supervision.

[69] The Band representative’s position is that the Band’s “ultimate goal” is to support having the child placed with the parents. It supports the child being placed with K.D. under strict terms of supervision. In addition to the supervision terms suggested by Ms. Ninham, the Band representative also suggests that there be a term requiring the mother to participate in a mental health assessment and counselling as directed by the Society.

Application of Legal Principles

[70] Before the court can place the child in the care of these parents, the evidence must demonstrate that terms of supervision will adequately protect the child by providing her with a stable residence and a safe and peaceful environment with parents who are consistently meeting her needs.

[71] I find that the child can be adequately protected by terms of supervision and it is in the child’s best interests if placed in the joint care and custody of the mother and father, subject to strict terms of supervision.

[72] The plan whereby the child’s and parents’ residence will be in the home of K.D. will provide stability in relation to housing. I accept Ms. K.D.’s evidence that she is willing to do whatever is needed to support the parents raising their child, her granddaughter. She has demonstrated her willingness to support the parents by coming to their aid since the child was born. She has the experience and the skills to help the parents develop their life skills. Ms. K.D. expressed confidence that the parents are now receptive to the help that she will offer.

[73] At this time, Ms. K.D. works from home and will be able to be a constant presence and support for the child and the parents.

[74] I must also consider the developmental needs of the child.

[75] The child is four months of age. She was in the care of the parents for slightly over half of her young life. The child had time to attach to the parents and they bond with her. This relationship had the opportunity to be sustained during the five times per week access visits. Returning the child safely to their care would allow this relationship to develop and restore continuity of the child’s care by the parents. This would take place in the environment of the child’s culture and heritage. This environment would be enhanced with the support they will receive from family members and their First Nations community.

[76] The court must also take into account the behaviour of the parents that gave rise to the reasonable grounds to believe that the child would be at risk if returned to them.

[77] It is also the case that the Society has an ongoing obligation to keep reassessing the parents’ and the child’s circumstances, so that best interests, including her safety from likely risk of suffering harm, can be addressed based on current circumstances.

[78] There is evidence that the parents are addressing those risk factors.

[79] The parents have exercised access regularly and often. This access has been positive, with no concerns noted. They have demonstrated a commitment to caring for their child.

[80] The parents have lived in K.D.’s home since the child was brought to a place of safety. They have demonstrated the ability to maintain a stable home with K.D.’s support. The mother’s evidence is that she intends to remain in K.D.’s home until secure housing can be found. That may be her goal but an essential aspect of the parents’ plan of care to adequately protect the child is to have the child’s residence remain in K.D.’s home. She is providing the stable home, oversight and direction to the parents. If this were to change, the placement of the child with the parents will need to be reassessed based on all the circumstances that exist at that time.

[81] The parents’ evidence is that there is no ongoing conflict between them at this time, nor are they now misusing drugs or alcohol. There is no evidence to the contrary. They are willing to participate in counselling to work toward a healthy relationship and enhancing their parenting skills.

[82] It is essential to protect this child and that she not be exposed to any family violence whether directly or indirectly.

[83] In addition to the terms of supervision proposed by Ms. Ninham, I would add the term suggested by the Band representative, Loni Doxtator. I would also require the parents to advise the Society if and when K.D. returns to work outside of her home. This order will be reviewable in that event.

Order

[84] A temporary order shall go on the following terms:

1. The child shall be placed in the joint care of the mother and the father, subject to Society supervision.

2. The terms and conditions of supervision are as follows:

a) The father and the mother shall allow access, on both a scheduled and unscheduled basis, to the home and cooperate with a worker and/or family support worker from the Children's Aid Society of London and Middlesex, as frequently as and for as long as deemed necessary by the Children's Aid Society of London and Middlesex.

b) The father and mother shall attend and participate in all scheduled meetings with a worker from the Children’s Aid Society of London and Middlesex.

c) The father and the mother shall allow a worker from the Children's Aid Society of London and Middlesex to have independent access to the child.

d) The father and mother shall sign all necessary consents for the release of information to and from the Children’s Aid Society of London and Middlesex as deemed necessary by the Children’s Aid Society of London and Middlesex.

e) The child shall reside exclusively at the residence of K.D. until further order of the court.

f) The father and mother shall not move from K.D.’s home without prior approval of the Children's Aid Society of London and Middlesex or further order of the court.

g) The father and mother shall refrain from the use of any physical or verbal aggression in the presence of the child nor allow her to be exposed to conflict, directly or indirectly.

h) The father and mother shall refrain from the use of, and from being under the influence of alcohol, illegal substances, non-prescribed medications, or marijuana while in a caretaking role or in the presence of the child.

i) The father and mother shall not permit smoking in the home and shall ensure that the child is not exposed to secondary smoke in the home.

j) The father and mother shall advise the Children's Aid Society of London and Middlesex of the full names of any adults spending significant time in the home or residing overnight in the home.

k) The father and mother shall ensure that any other person proposed as an alternative caregiver for the child (except K.D., who is already approved) be approved by the Children's Aid Society of London and Middlesex in advance.

l) The father and mother shall participate in counselling, services, and programming as recommended by the Children's Aid Society of London and Middlesex and comply with all recommendations arising therefrom.

m) The father and mother shall ensure that the child is seen regularly by a family physician, at a frequency recommended by the said physician, and follow through with all medical treatment as recommended by the said physician.

n) The father and mother shall assist K.D. in ensuring that the residence is maintained at an acceptable level of cleanliness and free from safety hazards at all times.

o) The mother shall participate in such mental health assessments and in counselling as directed by the Children's Aid Society of London and Middlesex and comply with all recommendations arising therefrom.

p) The father and the mother shall participate in such parent education programs as directed by the Children's Aid Society of London and Middlesex and comply with all recommendations arising therefrom.

q) The parents shall inform the Children's Aid Society of London and Middlesex immediately upon K.D. no longer working from her home.

r) The father and the mother will follow all government and health authorities’ pandemic regulations and directives.

3. This order shall be reviewed if K.D. is no longer able to work from home.

4. The return date of the temporary care and custody hearing on February 23, 2021 is vacated.

[85] K.D. is not included in the terms and conditions of supervision as she is not a party for the purposes of this hearing. However, based on her evidence that she will ensure that the child’s needs are met, her cooperation in allowing the Society to supervise the placement is expected.

[86] I wish to thank counsel for their helpful submissions.

“Justice B. Tobin”

Justice B. Tobin

Date: February 8, 2021

[^1]: The hierarchy of placement provided for at s. 94(2)(a) and (b) requires the court to first consider placement of the child with the person who had charge of the child immediately before society intervention. In this case, it was the parents. The hierarchy provided for in s. 16(1) requires the court to consider first placing the child with one of that child's parents. This could result in a conflict, when the person who had charge of the child immediately before society intervention was not one of the child's parents but not in this case.