WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT FILE NO.: FC-20-CP52

DATE: 2022/01/17

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF: G.A. (DOB: […] 2020)

BETWEEN:

The Children’s Aid Society of Ottawa Applicant

– and –

L. A. (Mother)

– and –

A.Q. (Father) Respondents

COUNSEL:

Judith Hupé, for the Applicant

Mellington Godoy for the Respondent L.A.

A.Q.-noted in default and did not participate

HEARD: October 18, 19, 20, 25, and 26, 2021

REASONS FOR DECISION

Somji J.

Overview

[1] This decision addresses the Children’s Aid Society of Ottawa’s (“Society”) application to place an Inuit child G.A. (“child”) in extended society care with a view to adoption. G.A. was born in […] 2020 and is two years of age. He has spent all his life with a foster family except for a brief period of 64 days between January 7 and February 28, 2020, and April 9 to April 22, 2020, when the respondent mother had care of him. He has been in foster care since April 2020.

[2] The Society filed an Amended Protection application on May 18, 2021, and Plans of Care dated May 18, 2021, and September 15, 2021. The Society seeks one, a finding that G.A. is in need of protection pursuant to s. 74(2) of Child, Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”); two, an order placing G.A. in extended society care pursuant to s. 101 CYFSA; and three, an order that G.A. have access to his mother at the discretion of the Society for a minimum of once a month.

[3] The mother filed an Answer and Plan of care dated December 7, 2020 (“Answer”). She reviewed with her counsel an Agreed Statement of Facts (“ASF”) which was filed as an exhibit at trial. In her Answer, the mother argued the child is not in need of protection and could remain in her care. Alternatively, she requested that G.A. be adopted by an Inuit woman E.P. who resides in Ottawa but is from the mother’s community in Baker Lake, Nunavut Territory.

[4] While the mother took this position in her pleadings, she did not attend the five day trial in this matter. Despite efforts by counsel, the Society, and members of her community, the mother’s whereabouts were unknown at trial. As a result, counsel for the mother was unable to present any evidence in support of the mother’s position other than that contained in the ASF. The court was unable to receive any update to the mother’s Answer of December 2020. Counsel for the mother argued that despite the mother’s absence at trial, has not met its evidentiary burden and that this Court has discretion based on the evidence presented to offer the mother an additional opportunity to care for G.A. subject to a supervision order.

[5] G.A.’s father resides in Nunavut Territory. He was noted in default and did not participate in the proceedings. In the fall of 2021, the father contacted the Society and expressed a wish to see G.A. which the Society will attempt to accommodate. The father has not had any other involvement in G.A.’s life and advised the Society he is presently unable to care for G.A.

[6] The issues to be decided are:

1. Is G.A. in need of protection?

2. If so, is it in the best interests of G.A. to grant an order for extended society care with a view to his adoption?

3. If extended society care is ordered, is it in G.A.’s bests interests to have access to either his mother or father?

Evidence

[7] In support of its position, the Society called three witnesses at trial: one, Child Protection Worker Audrée Lavallée (“CPW Lavallée”) who manages, supports, and monitors the placement of G.A. with the foster family; two, G.A.’s foster mother (“R.F.”); and 3) Child Protection Worker Denise Desaulniers, who was assigned to oversee this file and to support the mother (“CPW Desaulniers”).

[8] Counsel for the mother intended to call the mother as a witness. However, the mother did not appear on the first day of trial. Counsel had spoken to her on Thursday of the previous week, and she was expected to participate with him virtually from his office. The mother failed to contact counsel by email or phone and did not return counsel’s calls. CPW Desaulniers was also unable to reach the mother. The matter was adjourned to the following day to allow counsel to locate the mother, but he was unable to reach her. Counsel for the mother agreed to proceed in the mother’s absence even if he was limited in the evidence he could present. Counsel for the mother was satisfied he had sufficient instructions to proceed to trial and make submissions based on his earlier discussions with the mother, the ASF and her Answer.

Statutory findings

[9] Based on the ASF filed and the evidence presented at trial, I am satisfied that the child G.A. was born on […], 2020, his parents are L.A. and A.Q., that he is Inuk, and that he was removed from his mother’s care and brought to a place of safety on February 28, 2020, and again on April 22, 2020.

Issue 1: Is G.A. in need of protection?

[10] The Society argues that G.A. is need of protection pursuant to s. 74(2)(b)(i) and (ii) of and 74(2)(h) CYFSA and seeks an order placing him in extended society care with continued access between the mother and the child.

[11] Section 74(2)(b), (f) and (h) CYFSA state as follows:

A child is in need of protection where:

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(f) the child has suffered emotional harm, demonstrated by serious

i. Anxiety

ii. Depression

iii. Withdrawal

iv. Self-destructive or aggressive behaviour, or

v. Delayed development,

And there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child; or

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

[12] In determining whether a child is in need of protection, the risk of harm must be real and likely, not simply speculative: Children's Aid Society of Rainy River v B(C), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v T and T, 2000 21157 (ON SC), [2000] O.J. No 2273 at para 19. The Society does not need to prove the parents had any intention to cause harm: Jewish Family and Child Service v K(R), 2008 ONCJ 774 at para 57, aff’d at Jewish Family and Child Service v RK, 2009 ONCA 903.

[13] Risk of physical harm can include a variety of things. Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions, and inadequate shelter/food are all common circumstances leading to findings of risk of physical harm: Children’s Aid Society of Oxford County v EMT, 2019 ONCJ 767 at para 16.

[14] The Society argues that despite the mother’s strong love and affection for G.A., she is unable to care for him and the child is at risk of both physical and emotional harm if placed in her care due to the following child protection concerns:

1. the mother’s ongoing addiction and mental health issues;

2. the mother’s lack of commitment to the child as evidenced by her frequent missed visits;

3. the mother’s residential instability and inability to provide a safe plan of care for G.A; and

4. The mother’s inability to work cooperatively with services offered by the Society and various other support networks.

Addiction and mental health

[15] The mother’s issues with alcohol addiction and mental health have been long-standing. The Society became engaged with the mother in 2018 following an urgent request for assistance from Nunavut Territory to check in with the mother given her history and ability to care for her daughter G. who is presently five years of age. Due in part to her own misuse of alcohol and marijuana, the mother consented to the adoption of G.A. to an Ottawa family.

[16] CPW Desaulniers met with the mother in December 2019. The mother told her she was expecting a baby in January 2020 and wanted to keep the child and remain in Ottawa permanently. The mother reported she had been drinking, but stopped when she was three months pregnant. CPW Desaulniers attempted to connect the mother with supports, but the mother was not interested in having a public health nurse visit her after giving birth.

[17] On […], 2020, a day after G.A.’s birth, a hospital worker raised concerns about the mother’s mental health. A referral was made to post-natal mental health services, but it was almost three months before the service was able to reach the mother. Both midwives involved in G.A.’s birth agreed to follow the mother when she returned to O[…] Lodge (“O[…] Lodge”) where the mother was residing. O[…] Lodge is a 21-bed shelter in Ottawa for First Nations, Inuit, and Métis women & children dealing with abuse and other issues.

[18] On January 31, 2020, the mother stated she wanted to place G.A. for adoption with her brother and sister who lived in Baker Lake, Nunavut Territory, because she felt she was unable to care for him. The mother also canvassed the family that adopted her daughter to see if they would take her son, but they could not. The mother’s desire to place G.A. in adoption was corroborated by a worker from O[…] Lodge who indicated that the mother reported she was depressed and in need of a break or else she might hurt someone.

[19] CPW Desaulniers is a very experienced child protection worker. She has been with the Society for about 16 years and worked previously for 15 years in Gatineau at a center for victims of abuse. CPW Desaulniers was assigned to work with families on a long term basis. Her role was to establish a relationship with the parent, meet with them regularly, assist them with accessing services and making contacts with schools, hospitals, and organizations that could support the family, and assisting parents with developing plans of care for their children. CPW Desaulniers was very sensitive to issues of culture and language because of her own French heritage and previous work experience. She made strong efforts to ensure parents could work within their own cultural networks and maintain their language traditions. As a result of her training and experience working with First Nation and Inuit people, she was selected to be a representative on the Society’s First Nation Inuit Metis Committee. The Committee addresses how the Society can better serve members of different cultural communities including examining their own cultural biases.

[20] CPW Desaulniers testified that she met the mother in December 2019 and regularly thereafter for a period of almost two years, but still does not know the mother very well. She described the mother as a person who does not speak much and who takes refuge in her silence. The mother is not expressive and when she does speak she has a very flat affect. For example, she once went to see the mother at O[...] Lodge and spent 45 minutes with her, but the mother said only three words.

[21] From the beginning, CPW Desaulniers tried to gather people who were important to the mother to support her. In her view, having diverse support allows for brainstorming to find creative ways to help a parent. Following G.A.’s birth, she relied especially on the two midwives Amy McGee and Anne Summer O’Neil who had participated in G.A.’s birth. Ms. McGee was very active within the Inuit community and when the mother indicated she wanted G.A. adopted, Ms. McGee tried to reach contacts in Nunavut. At this time, the mother was also speaking to her brother and sister to see if they would adopt G.A. CPW Desaulniers testified the Society was present during this process, but did not interfere. The adoption plan did not work and CPW Desaulniers never really understood the reasons why.

[22] The staff at O[…] Lodge reported to CPW Desaulniers that they were also trying to help the mother access resources for support when the mother and baby were initially at the lodge, but the mother was declining help. The mother’s condition worsened and she was well aware of her fragile condition. On February 27, 2020, the mother called the Society and indicated she was depressed. She stated that she suffered post-partum depression when her daughter was born and believed she might be suffering it again. She reported she had a breakdown a few nights earlier and needed some respite otherwise she was going to hurt someone. She did not feel she could keep her son safe and could not identify anyone that could care for the baby.

[23] On February 28, 2020, G.A. was placed in Society care under a voluntary Temporary Care Agreement (“TCA”) signed by the mother. The TCA of February 28, 2020, states that the mother is asking for support and a placement as she suffers from post-partum depression. The mother agreed to work with the Society to plan for the return of the child to her. In this regard, the TCA states the Society agrees to provide the following services for the child 1) a secure placement; 2) regular follow-ups with a child protection worker; 3) medical follow-ups; and 4) access visits with the family. The TCA states the Society will provide the following services for the mother: 1) explore and refer to community services; 2) explore family network; and 3) regular follow-up by the child protection worker. As CPW Desaulniers testified, it was the Society’s expectation that the mother would follow-up with the services provided by the Society.

[24] CPW Lavallée was assigned to oversee G.A.’s placement. CPW Lavallée testified that she knows of only two Inuit families available as foster parents in the region. G.A. was placed with R.F. who is not Inuk, but has been a foster mother for over 15 years and is experienced with fostering Indigenous and Inuit children. R.F. was trained in early childhood education. She has fostered 34 children including infants. G.A. was placed in R.F.’s home where he lived alongside another foster infant, R.F.’s parents, son, and nephew. G.A. was well supported and loved by all the members of R.F.’s family. R.F. indicated he settled quite nicely into the home, was easy to soothe, and had no real behavioural issues.

[25] From the time he was placed in her care, the foster mother introduced G.A. to Inuit culture by exposing him to culturally appropriate books, music, as well as arts and crafts. R.F. is involved with the Inuit community. She is familiar with Inuit resource centers in Ottawa and knows many of the staff there. Once G.A. was older, at about 18 months of age, R.F. took G.A. to a cultural play group every Wednesday at Tungasuvvingat Inuit (T.I), an agency that provides support services to the Inuit community located in the west end of Ottawa. At T.I., G.A. was exposed to Inuit language and culture. R.F. also attended a virtual session with G.A. on throat singing and had been teaching G.A. to drum while at T.I. R.F. and the foster family called G.A. by the name “Nanuk” which means bear. The mother approved the name.

[26] CPW Lavallée testified she had ongoing conversations with R.F. to ensure G.A. maintained his connection to his Inuit culture. R.F. also signed an Indigenous Cultural Safety Plan dated November 23, 2020, that outlined her responsibilities as a foster parent including working collaboratively with the Inuit community, ensuring G.A.’s participation in community activities, and helping G.A. maintain a “life book” that can be used to help him trace his personal story and his community roots.

[27] On April 9, 2020, the mother called the Society indicating she had missed her flight to Nunavut Territory and wished to have her son back. G.A. was returned to her care at O[...] Lodge. However, the placement was short-lived. By April 20, 2020, the mother texted the Society to say she was tired, stressed, angry and impatient. The adoption process was not moving forward. The mother was not able to find anyone to care for the child overnight and left the child at O[...] Lodge on the couch unattended.

[28] The Society spoke to the representatives from O[...] Lodge about what had transpired. They reported that the mother had left her baby at the shelter. Staff said that the mother had been ignoring them all day and that she would not speak to them. A child protection worker spoke to the mother and attempted to engage with her but she refused to speak. The mother was informed that the baby would be taken to a place of safety.

[29] G.A. was placed back in Society care and the mother consented to another voluntary TCA on April 22, 2020. The second TCA states the reason for the temporary placement is because the mother has said “I can’t do it.” It also sates that the mother has contacted a private adoption agency to have her son adopted. The TCA indicates the mother is leaving for Baker Lake on May 2, 2020, for a period of 28 days. In the second TCA, the Society had the obligation to provide similar services for the child but with the added a responsibility to provide G.A. with cultural activities. In the second TCA, the Society agreed to provide the mother the following services: 1) referral for mental health; 2) individual counselling through her community; and 3) Circle of Care to support the mother. Shortly after, on May 5, 2020, CPW Desaulniers made a referral to Circle of Care for the mother.

[30] CPW Desaulniers describes a Circle of Care as a support network of people that sits with the parent, family, and friends invited to the Circle to examine the issues a parent is facing with a view to proposing possible solutions. There is usually a facilitator who will help organize the Circle and parents are asked to invite people they would like to have partake. The process is very respectful, confidential, and a safe space for parents to express themselves. CPW Desaulniers’ experiences with Circles has been very positive.

[31] On May 5, 2020, the mother indicated she had been drinking a lot, but believed she could stop drinking if her son were returned to her care. She wanted to address her alcohol use and depression. She advised she was returning north to work for one month in June and had no plan for where her son might stay. She indicated she was willing to work with the Society to have G.A. return to her care and no longer wanted him adopted. The mother travelled north for the month of June. Upon her return, she was asked to get in contact with the foster mother to FaceTime her son. The mother replied she was looking for a place to say and would be returning north again for two weeks in July. She could not stay at O[...] Lodge because of the pandemic and requirements for quarantining. CPW Desaulniers explored with her places where she might stay such as friends or family.

[32] On August 7, 2020, CPW Desaulniers met with the mother. The mother had still not found a place to live and was residing at a hotel. She explained that she travelled north for work because she had accumulated a housing debt and needed to repay it before she could obtain housing again. The debt amounted to $357.

[33] According to the mother’s Answer, the mother has been providing cleaning services for a company called Agnico Eagle for the past 11 years. The mother flies from Ottawa, Ontario to a place an hour outside of Baker Lake, Nunavut Territory, where she resides and works for two week stretches. The mother reported to the CPW Desaulniers that she has been unable to find equivalent paying work in Ottawa which is why she continues to return to the same job. The mother hoped to return north for work in August. CPW Desaulniers told the mother that her TCA would be ending on August 22, 2020. She suggested the TCA could be extended another month to allow the mother to present a plan of care for G.A. with the help from her community during a Circle of Care. The mother agreed.

[34] The mother’s housing situation did not improve. Despite the earnings she was making at her northern job, she had difficulty paying off her housing debt of $357 or to retain enough funds to obtain a permanent place in Ottawa. In August 2020, the mother stayed at friend’s home as she did not have money for a hotel or to rent a place. She was texting her sister to see if she could advance her money to stay another night in a hotel. By September 2, 2020, the mother had still not found a place to stay nor had she put any money towards her debt. She claimed she spent her money on hotels and food whenever she returned to Ottawa. The mother continued to return north to work in September and October 2020 in attempt to pay off her housing debt.

[35] The mother’s issues with alcohol addiction and mental health also failed to improve in the summer and fall of 2020. The mother did contact the Wabano Friendship Centre to discuss addiction counselling and Circle of Care, but ultimately never fully engaged with the Circle. On August 25, 2020, the mother reported to the Circle of Care facilitator Tara Arnatsiaq-Barnes that she was drinking six to eight beer on a daily basis and consuming marijuana. When asked by Ms. Arnatsiaq-Barnes what happens if she doesn’t drink for a day, the mother replied she gets the shakes. Ms. Arnatsiak-Barnes offered her different types of treatment programs. The mother said she would think about.

[36] The Society advised the mother in September 2020 that if the TCA could not be renewed, the matter would proceed to court. At that time, the mother indicated she was returning to Nunavut for work. The TCA expired and the Society sought a court order placing G.A. in the temporary care of the Society, with access to the mother at the Society’s discretion. The mother had not progressed on her rehabilitation, had no stable lodging, and continued to be difficult to engage. On September 17, 2020, the Honourable Justice Audet granted a temporary order on a without prejudice basis placing the child in the care and custody of the Society with access to the mother pending final disposition.

[37] The mother’s mental health continued to be of concern in the fall of 2020. The mother reported to CPW Desaulniers on/around October 5, 2020, that she still had suicidal ideation on a daily basis.

[38] On October 6, 2020, the mother indicated to the Circle of Care worker that she intended to take four months off her job, find employment in Ottawa, and address her issues. Efforts were made to put together a Circle of Care when the mother would next be in town. However, in November and December 2020, the Circle of Care coordinators were unable to reach the mother to get things going. There was a period on/around November 28, 2020, when the mother could not be reached by anyone and a missing person report was filed. On November 30, 2020, a Circle of Care facilitator referred the mother to both a court worker and child welfare advocate out of Minwaashin Lodge, an Indigenous women’s center.

[39] The mother indicated in her Answer of December 2020, that she was seeking the return of G.A. in her full-time care. She indicated an intention to manage her alcohol consumption, improve her housing condition, start Circle of Care December 9, 2020, and do what she could to get G.A. back in her care. The mother acknowledged in Answer that she was stressed by not having her son in her care, her housing situation, and her ex-boyfriend. She also acknowledged that she had significant trauma to heal from.

[40] A Circle of Care meeting was scheduled for December 9, 2020, but the mother could not be reached. Another meeting was planned for early January 2021. To assist with connecting with the mother, the Circle of Care Coordinator provided the mother with a new cell phone on December 4, 2020. The mother also received voucher and bus tickets to help her attend her meetings with the community members.

[41] By end January 2021, the mother had still not engaged with Circle of Care to obtain rehabilitative support and assist with developing a plan of care. She had not replied to any contacts from Minwaashin. She advised she had no income and little to eat. She was encouraged again to reach out to Minwaashin to assist her with her personal needs and to help her with forms for accessing unemployment and other benefits.

[42] At the end of January 2021, the mother finally made contact with the representatives at Minwaashin who helped her deal with her housing debt and fill out forms for Ontario Works. The mother asked CPW Desaulniers when she might have G.A. returned to her, but was told that she first needed to engage in services to address her mental health, anger and addiction issues. CPW Desaulniers also reminded the mother to be regular in her access with G.A.

[43] On February 13, 2021, the mother started a six-week residential treatment program at Akwesasne Wellness Family program in Cornwall. She completed the program successfully on March 26, 2021. During this period, she consistently participated in FaceTime visits with G.A.

[44] Upon exiting the program, however, the mother’s emotional state worsened. CPW Desaulniers and Jonayca Fabian from Inuuqatigiit met with the mother on May 14, 2021, and reported she looked sad. Inuuqatigiit is an agency in the east end of Ottawa that provide services to the Inuit community including daycare, playgroups, afterschool care, support services, language classes, and a place for access visits if a parent is well connected to the resource centre.

[45] Staff at Inuuqatigiit recommended counselling and participating in the Circle of Care, but the mother declined. The mother did not have housing and moved temporarily to her cousin’s place. The mother failed to follow up with the on-line addiction program that was offered by Cornwall Hospital following her residential treatment claiming it was too noisy to do the programming from her cousin’s place.

[46] On April 8, 2021, the matter returned before this Court. At that time, it was noted that notwithstanding that G.A. had been in care for over a year, his mother had returned from a treatment program and was strongly motived to secure the placement of her son in her care: Endorsement of Mackinnon J April 8, 2021. The Honourable Justice Mackinnon noted this was a case where all the parties wanted to co-operate and assist the mother to be successful. Although there was no motion before the court, Mackinnon J found that it was in the child’s bests interests to extend the statutory timetable a few months to provide the mother a further opportunity to put herself in a position to care for the child. The case was adjourned to June 8, 2021, at which time the Society would be able to determine if it would seek extended society care or return the child to the mother. In the meantime, the parties agreed to convene Circle of Care to discuss the mother’s safety plan, support network, and participation in follow-up treatment. Counsel for the mother indicated he was very actively pursuing housing for his client that would be suitable for her and G.A.: Endorsement of Mackinnon J April 8, 2021.

[47] In May 2021, the mother was anxious about whether the Society intended to keep her child. CPW Desaulniers reported to her that if the court was satisfied with her progress, then they could consider a return of the child to her. CPW Desaulniers explained step by step how the Society could work with her to help her achieve her goals and reminded her of the importance of being consistent with her visits. CPW Desaulniers suggested the mother engage with services in her community, participate in a parenting class, and develop a support network. CPW Desaulniers praised the mother for completing the residential treatment program and indicated it was good start. She advised the mother that there was help for her. By mid-May, the mother was in a better emotional state. However, instead of prioritizing her rehabilitation goals and visits with her son, she became focused on returning north to work and earn money. She was reminded again of the need to prioritize visits with her son.

[48] By the end of June 2021, the mother resumed work up North and was away for weeks at a time. She did not engage in any further programming. She did not engage with Circle of Care. She did not follow through with counselling or other support services offered to her by Innuqatigiit. In fact, when CPW Desaulniers met with the mother on July 9, 2021, the mother stated she did not like it when she and the Society pushed her to attend programs. By July 15, 2021, it was clear the mother was not making progress. Trial dates were set for October 2021.

[49] Counsel for the mother indicates that the mother’s participation in the residential treatment program is indicative of the mother’s ability to undergo change and that she still has the potential to care for G.A. subject to a supervision order. I disagree. While I am well aware that the road to rehabilitation can be a rocky one and attendance at the residential program was a commendable start, I am not satisfied that the mother has adequately addressed her addiction and mental health issues such that G.A. would not be at risk of physical and emotional harm if left in her care. The mother did not engage in any follow-up programming, declined to engage in further counselling, and was reportedly drinking by the summer and fall of 2021.

[50] While it is true that the mother was never observed to be intoxicated during her visits, the visits were for short periods of less than two hours. Furthermore, CPW Desaulniers believes the mother’s issues with alcohol and drug addiction continued even after the residential program which is why she continued to miss visits with G.A., disengage with services, and continued to be unreachable to everyone including the Society. G.A.’s father in Nunavut also believed the mother was continuing to drink in the summer of 2021 and was not fit to parent G.A., but his reports were not verified.

[51] As counsel for the Society explained, and I agree, the fact that the Society has not observed the mother drinking or seen her drunk at visits is not determinative. When the child was taken to a place of safety, alcohol addiction was identified as a child protection concern. The mother herself acknowledged this. The onus is not on the Society to provide direct evidence of ongoing drinking at the time of trial, a difficult evidentiary threshold to meet particularly when the parent is evasive and unreachable, to establish a child is need of protection. Rather, the court must be satisfied that the child protection concerns that were identified at the time of the Society’s intervention, alcohol addiction being one in this case, have been adequately addressed in a manner that G.A. could be safely placed in the parent’s care.

Visits

[52] Over the past two years, the mother has wanted to care for and parent G.A., but has been fundamentally unable to provide care or maintain consistency in her visits with G.A. to demonstrate ability to parent or even a strong emotional bond. When the mother was in Ottawa, visits were generally offered twice a week. According to the CPW Lavallée, the mother was offered 59 in-person visits with G.A. but attended only 19. The mother’s last visit with G.A. was on September 13, 2021. Some examples of the challenges with the visits are discussed below.

[53] When G.A. was first placed with the foster mother on February 28, 2020, in-person visits were organized. When G.A. returned to the foster mother’s care in April 2020, in-person visits were suspended due to COVID-19. Virtual visits are difficult with a four-month old infant, but R.F. made sure to FaceTime the mother so she could see how G.A. was progressing. R.F. checked with the mother if there was anything special she would like for her son and the mother asked her to play her voice between visits which she did.

[54] As the mother started to travel north for work, the visits became challenging because the mother was gone for two-week periods. CPW Lavallée testified it was hard to maintain consistency in the visits. The mother did not have cellphone contact while she was north and was also not accessing G.A. virtually during these periods. The mother often missed in-person visits organized at Inuuqatigiit. As a result, the mother was required to conduct a check in with the foster mother so that R.F. would not needlessly show up for a visit with the mother not there.

[55] The mother missed her check in and visit on October 26, 2020, before heading up north for work. Upon her return, a visit was organized for November 18 and 20th, but she missed both those visits. When CPW Desaulniers asked the mother why the morning visits were difficult, she replied it was because she sleeps in the morning and is a very deep sleeper. CPW Desaulniers asked how she would manage if and when her son came to live with her. The mother replied that she needs to sleep more since she is off work. On November 24, 2020, visit times were changed from 10 to 12 pm to accommodate the mother’s difficulty with the morning times.

[56] On November 27, 2020, R.F. brought G.A. to an in-person visit at Inuuqatigiit, but the mother did not attend. She cancelled a visit on December 9, 2020, due to court. She did attend a visit on December 14, 2020, but then missed a visit on December 18, 2020, because of lack of transportation. Arrangements were made for a taxi, but the mother still did not show up for the visit. The mother missed visits with G.A. on December 21 and 23, 2020. The foster mother made sure to ensure Facetime the mother so she could see G.A. on Christmas day 2020.

[57] The visits were re-instated at Inuuqatigiit on January 4, 2021, but the mother did not show up. The mother requested a visit on G.A. for his birthday […], 2021, and with his father, but she did not follow through. The mother failed to comply with check ins for visits on January 8, 11, and 15, 2021, resulting in more missed visits. The mother attended the January 18th visit, but cancelled again on January 22nd. On January 29 and February 1, 2021, the mother failed to contact the foster mother to confirm visits with G.A.

[58] While the mother was in residential treatment, the foster mother organized FaceTime visits with the mother twice a week and she participated each time. The mother also called to inquire about her son. However, things fell apart again upon the mother exiting the program. On April 12, 2021, the Wellness Family Program at Inuuqatigiit offered the mother to come to their center, work with her son, work with her on after care programs, and help her find a place of residence. The mother moved to the home of her cousin. A plan was formed to have visits with G.A. at her cousin’s place, but then the cousin called to say that this was no longer possible because the mother had exploded and criticized her and was told to leave the residence. The mother went to stay with a male friend but he refused to have visits with G.A. at his place.

[59] Inuuqatigiit had to suspend in-person visits in the spring of 2021 temporarily due to COVID rules and regulations. The foster mother offered virtual visits until in-person access could resume at Innuqatigiit or to have visits in a public place like a park, but testified that she often did not hear back from the mother.

[60] By end of April 2021, in-person access visits with G.A. were re-instated at Inuuqatigiit, but the mother missed the first visit on April 29, 2021. Workers from Inuuqatigiit who were assisting with the visits, programming, and housing, reported it was difficult to engage with the mother. She didn’t answer her phone and continued to owe arrears for housing making it difficult to secure housing. The mother would often ask for more time with her son, but was told more visits could not be organized if she consistently failed to attend the visits already organized.

[61] The mother did attend two visits on May 14 and 17, 2021. By the end of June 2021, the mother resumed her work up North and was away several weeks at a time. The mother was up north from July 10 to 28, 2021, and again from August 10 to 25, 2021. As a result, she did not visit G.A. in person or virtually during these times. Even when she was in Ottawa, the mother continued to miss visits with the child. She did not attend her scheduled visits with G.A. on August 27 and 30, 2021, and missed additional visits in September 2021.

[62] There were also concerns expressed about the quality of the mother’s visits with G.A. Visits were never supervised at Inuuqatigiit. CPW Lavallée testified that staff are present at Inuuqatigiit, but their role is not to supervise access. The Society did not have any concerns the mother could care G.A. during the short period of the visits, but there were concerns with the mother’s level of engagement. For example, R.F. testified that while the mother is gentle and soft spoken, she does not fully engage with G.A. During visits, the mother often repeats the same things to G.A. telling him that he is her handsome son or singing him the same songs. R.F. observed that the mother would not read books or play with G.A. and appeared to take little initiative in assisting him to put on his clothing at the end of a visit.

[63] R.F was unable to develop much of a relationship with the mother. She acknowledged it could be due to her own character or sense of humour, but that she found it hard to connect with the mother. She found the mother communicated minimally either directly or indirectly. R.F. testified that she would send pictures and information about G.A.’s development by email, but would not always hear back. She offered the mother to attend G.A.’s medical visits, but she declined. R.F. testified that the mother had once expressed to her that she was frustrated and spoke of racism. R.F. acknowledged the mother feelings, but did not engage in these discussions as she did not feel it was her role. She testified that she knew very little about the mother or her family. The mother once asked her for financial help and R.F. referred her to Inuuqatigiit. R.F. testified the mother sent her a thank you card on Mother’s Day for taking care of G.A.

Residential instability and no meaningful plan of care

[64] The mother has not been able to secure stable housing in over two years. The mother initially had a $357 housing debt. She returned to work within a few months of G.A.’s birth and repeatedly thereafter, but it was only in the summer of 2021, with the assistance of various community supports, that the mother was finally able to pay off the housing debt. Even then, she has failed to obtain a permanent place of residence for herself and G.A. By the time the matter proceeded to trial, the mother’s whereabouts were entirely unknown.

Inability to work cooperatively with Society to address child protection concerns

[65] When the mother initially asked the Society to care for G.A., the Society opted to proceed with a TCA from February 28 to May 28, 2020. The mother requested the child be returned to her on April 9, 2020 and then returned the child to the Society again on April 22, 2020. Another TCA was signed from April 22, 2020 until August 22, 2020. The TCA was extended to September 11, 2020, as the mother was leaving for work in Nunavut.

[66] The TCAs were considered the least disruptive options for managing care of G.A. They provided for G.A.’s care in a safe space while also offering the mother respite as well as an opportunity to address child protection concerns. The mother complied minimally with the terms and conditions of the two voluntary services agreements.

[67] The Society obtained further interim court orders maintaining the child in Society care while allowing the mother a further opportunity to address issues. Save for her attendance at the residential program, the mother made little progress on the child protection concerns identified.

[68] In April 2021, upon the mother’s completion of the residential program, the statutory timelines were extended to provide the mother a further opportunity to turn things around. CPW Desaulniers reached out to Circle of Care and other support services again, but the mother did not engage. On the contrary, she became more evasive with the people around her.

[69] The Society may not utilize the child protection system as a means of delay and then rely on the statutory time limits to argue Crown wardship, what is now referred to as extended society care, as the only remedy available. By the same token, a parent may not frustrate a child protection agency’s efforts to assist and then claim that the agency did not fulfill its statutory duty to provide guidance, counseling or other services. There is a reciprocal obligation on the parent to obtain services and to take advantage of the opportunities given to them: Catholic Children’s Aid Society of Toronto v C.T. and J.Y., 2012 ONCJ 372 at paras 99-100.

[70] In this case, CPW Desaulniers made continuous efforts over two years to have the mother access as many resources and particularly culturally appropriate ones, to help her. The mother was connected with support persons at O[...] Lodge, Wabano, Inuuqatigiit, T.I., Minwaashin, and the Ottawa Native Women’s Association. A network of people were committed to supporting the mother through Circle of Care including her midwives, a public health nurse, and multiple staff from the above-noted community agencies, so that the mother could begin addressing her concerns and develop a plan of care. The mother failed to meaningfully engage with any of these services.

[71] CPW Lavallée also described issues with the mother’s level of engagement. Part of her responsibility in overseeing G.A.’s placement was to have plan of care meetings at regular intervals to monitor the child’s development and address issues such as the access schedule, communication with parents, and the development of new goals. CPW Lavallée tried to involve the mother at these meetings, but found it challenging because the mother was often travelling north for work. In April 2021, she knew the mother was in town and tried to connect with her for a plan of care meeting, but there was no response. She testified there were other occasions when she called the mother who did not answer and there was no place to leave messages.

[72] In the summer/fall of 2021, CPW Desaulniers testified she and the mother started a few conversations to look at her plan of care, but nothing materialized and the mother would not always show up for meetings. The Circle of Care facilitators tried again to contact her to develop a plan of care, but the mother was difficult to locate. A final attempt was made for a Circle on/around September 21, 2021, but it did not occur. In the last couple of months before trial, the mother became even more evasive than before, not attending access or scheduled meetings with the Society worker.

[73] CPW Desaulniers’ last contact with the mother was in September 2021. They had been discussing the possibility of G.A. being adopted by an Inuk woman E.P. A referral was sent to the Society’s adoption team. At one point, CPW Desaulniers texted the mother and sent emails and Facebook messages to tell her the Society’s adoption workers were trying to reach her, but was unsuccessful. Another colleague also tried, but was unsuccessful. Further attempts to reach the mother through Facebook were unsuccessful. The last time CPW Desaulniers saw the mother was on September 13, 2021.

[74] Counsel for the mother argues the mother should be provided a further opportunity to care for G.A. subject a supervision order. I find on the evidence presented that she was not able to abide by the terms and conditions of any voluntary or court-ordered agreements in the past two years and is unlikely to be able to do so in the future.

[75] Despite the challenges in communicating with the mother and having her engage in services, CPW Desaulniers continues to care for and support the mother. When she initially met the mother, CPW Desaulniers was left with the impression that this was a woman who just wanted to disappear from life and was isolating herself from people. The mother would not answer questions about herself and refused to take help from services. CPW Desaulniers believes that the mother has likely experienced a lot personal and intergenerational trauma and that some of her learning difficulties could be due to the trauma she has experienced.

[76] CPW Desaulniers believes that the mother is at peace with her decision to have her daughter adopted and has never spoken negatively about the adoptive parents. She speculates that perhaps the mother had higher hopes for herself in being able to parent when her son was born, but then things did now work out. On both occasions when G.A. was in her care, the mother became overwhelmed and consequently, worried she would harm him. CPW Desaulniers also noted that even when the mother was at her cousin’s place in the presence of children, she had difficulty coping with the noise and what she perceived to be chaos of the children.

[77] CPW Desaulniers testified that despite the mother’s learning difficulties and troubles, she is a woman who is caring, self-aware, insightful, and would listen and think about what was being told to her. CPW Desaulniers testified that she would sometimes ask the mother a question and she would not respond. However, the mother would sometimes come back a day later and say “I have thought about that….” CPW Desaulniers still has tremendous hope for the mother’s rehabilitation. It is her sincere wish that one day the mother will be able break through her isolation and obtain the help she needs.

[78] In conclusion, I find G.A. is in need of protection pursuant to section 74(2)(b)(i) and (ii) CYFSA. She has been offered extensive support from the Society and resources within her community. Other than attending a six week residential treatment program, the mother has made no progress in the last two years in addressing the child protection concerns identified. There is no evidence that her issues with alcohol addiction have abated. On the contrary, her conduct through the fall and summer of 2021 suggests she continues to drinking.

[79] The mother has not been able to secure any housing to provide a safe and secure home for G.A. or developed a support network for raising G.A. She continues to reside in hotels or friend’s residences. The mother has not fallen through on the intentions set out in her Answer of December 2020. In that Answer, she stated she had the support of the adoptive mother of her daughter and telephone support of her mother, father, sisters and brothers. However, there is no evidence of her contact with any of these people except perhaps one sister who speaks to her and sends her money from time to time. CPW Desaulniers testified that the mother has two brothers and six sisters, but was reluctant to involve them in her life. The mother reported she had not seen most of them for three years. The mother was in contact with her cousin, but that relationship fell through when she was asked to leave the cousin’s home.

[80] The mother has not demonstrated any ability to parent G.A. Within six weeks of his birth, the mother sought to have him placed in care. When G.A. was returned to her in April 2020, she was only able to parent him for 11 days and called the Society indicating she could not cope. She left G.A. unattended on a couch at O[...] Lodge and left the home without telling anyone where she was going. The mother has not parented G.A. since that time and has not demonstrated any ability to parent him.

[81] She has also been inconsistent in her visits and has only seen G.A. in-person 19 times in 24 months. While the mother is a gentle and loving person and the visits were all reported to be positive, the mother has not demonstrated any ability to meaningfully engage with the child beyond her expressions of love and affection for him.

[82] Counsel argues that the mother’s calls for help on February 27 and April 21 are indicative of someone who is protective of their child and not necessarily someone who is putting their child in harm’s way. However, I find there is a huge distinction between being protective and being able to parent. The mother is certainly well meaning and seeks to ensure G.A.’s well-being, but she has not demonstrated any ability to parent him when given the opportunities.

[83] I find that if G.A. were placed in his mother’s care, there is a significant risk that he would suffer physical harm pursuant to s. 74(2)(b) and emotional harm pursuant to s. 74(2)(h) CYFSA because of the mother’s inability to adequately care for, supervise, nurture, and protect him. The risk of harm in this case arises from concerns around neglect. I wish to note there is no evidence that the mother has or would deliberately harm the child. On the contrary, she is very protective of G.A. as counsel pointed out and has sought help whenever she recognized she could not cope in caring for G.A. and was at risk of hurting him if he remained in her care.

[84] I find that G.A. is in need of protection.

Issue 2: Is it in the best interests of G.A. to grant an Order for extended society care with a view to adoption?

Law governing orders of extended society care and the best interests of the Child

[85] Where the court finds a child is in need of protection and intervention is necessary to protect the child in the future, the court must make one of the following orders under s. 101(1) CYFSA:

i. a supervision order placing the children in the care and custody of a parent(s) or another person for 3 to 12 months;

ii. interim society care for a specified period not exceeding 12 months;

iii. placing the child in extended society care with a view to adoption;

iv. a consecutive order placing the child in interim society care followed by a supervision order.

[86] Section 122 CYFSA sets out statutory timelines for orders. The court is not entitled to make a further order placing a child in Society care and custody for a period exceeding twelve months if the child is less than six years old on the day of the order. In this case, G.A. is two years of age. He has already been in the Society’s care for over 12 months and has exceeded the timeline. Therefore, the court cannot make a further interim order. This leaves only the option to place G.A. under a supervision order in the care of a parent or to order extended society care with a view to adoption. The length of time children are in care, “is at all times a relevant consideration in determining placement when a child is found to be in need of protection: Children’s Aid Society of Toronto v DS, 2009 60090 (ONSC) at para 70.

[87] In determining an appropriate order, I must consider what is in the child’s best interests. Section 74(3) CYFSA sets out a non-exhaustive list of factors to be considered in determining a child’s best interests. Since G.A. is Inuk, this includes special consideration of the best interest factors in the CYFSA that emphasize the importance of maintaining his connection to his culture, identity, language and community: s. 74(3)(b) and (c)(iii) and c(iv) CYFSA.

[88] In addressing the child’s best interest factors under the CYFSA, the court must consider that the paramount purpose of the CYFSA which is to promote the best interests, protection, and well-being of children: s. 1(1) CYFSA. One must also consider the additional purposes including, whenever possible, helping children maintain connections to their communities: s. 1(2) CYFSA.

[89] The treatment of Indigenous children in the child welfare system in Canada has been a longstanding concern. As explained by author and Board of Directors of the Saskatchewan Law Review, Kylee Wilyman, in an article entitled: A Nation of Hollow Words: An Act respecting First Nations, Inuit and Métis children, youth and families, 2020 Docs 2076 at page 11 (“A Nation of Hollow Words”):

Indigenous children make up 7.7 per cent of all children under the age of fourteen but account for 52.2 per cent of children in foster care.[31] When Indigenous children are raised apart from their families, they are stripped of their identity, culture, and language.[32] This trauma is then passed down from one generation to the next, contributing to the propagation of the high number of Indigenous children in the system.[33] Parliament has attempted to recognize these facts in the preamble of the Act, as well as in its focus on preventative care,[34] substantive equality,[35] and improvement of socioeconomic conditions.[36] While achieving substantive equality is a laudable goal, Indigenous communities are currently faced with a multitude of problems and struggle to provide basic services such as clean drinking water, education, and housing.[37] The federal government needs to recognize that, to keep its promises, it must shift its colonial view of children’s rights as an individualistic framework to one that appreciates the centrality of community and connectedness. A holistic approach to community development and engagement will be necessary moving forward, but the concept is still a foreign one to our legislatures. Indigenous children deserve better. Will the status quo continue, or will we be able to meet the challenge as a society?

[90] On January 1, 2020, an Act respecting First Nations, Inuit and Metis Children, Youth and Families, S.C. 2019, c. 24 (“FNIM”) came into force. FNIM is meant to augment and enhance provincial and territorial child protection legislation as it relates to Indigenous children: Mi’kmaw Family and Children’s Services of Nova Scotia v. RD, 2021 NSSC 66 at para 35.

[91] Section 10(1) FNIM states that the primary consideration in making decisions related to Indigenous children is the bests interests of the child. S.10(1) FNIM states as follows:

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.

[92] Section. 10(3) FNIM sets out best interest factors many of which are similar to the best interest factors set out in s. 74(3) CYFSA. The applicability of these factors in this case are addressed further below.

[93] The FNIM emphasizes cultural continuity for Indigenous children in ss. 9(1) and (2) 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.

[94] If an order for extended society care is to be granted, the CYFSA and FNIM both mandate how the long-term placement of First Nation, Inuk, and Metis children is to be prioritized. If an Indigenous child is not placed with a parent, s. 101(5) CYFSA requires the child to be placed with extended family if possible, or if it is not possible, in the case of an Inuk child, another Inuit family unless there is a substantial reason to place the child elsewhere: s. 101(5) CYFSA.

[95] Section 16(1) FNIM also sets out priorities regarding the placement of an Indigenous child as follows:

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.

Applicability of best interests factors in this case

[96] The Society is legally mandated under s. 112 CYFSA to find a permanent family for every child in extended society care. The Society’s plan for G.A. if extended society care is granted, is to place him for adoption, preferably with E.P. CPW Lavallée testified that if the proposed plan with E.P. does not work out, the Society will continue to explore placements within the Inuit community before considering adoption placements in the Society’s larger network.

[97] It is important to note that the Society has made strong efforts to find alternate solutions to the child protection issues in this case: s. 17(2) CYFSA. For example, CPW Desaulniers engaged multiple community and culturally appropriate resources to assist the mother with housing and employment. She also made a referral for a Circle of Care for the mother with family and community supports.

[98] The Society has also canvassed, via the mother, other family and community members as possible caregivers for G.A.: s. 101(4) CYFSA. The Society was supportive of the mother’s initial plan to have G.A. adopted by her siblings in Baker Lake, but that plan fell through. CPW Desaulniers then put together a family tree with the mother to identify possible kin caregivers, but the mother was reluctant to engage her family. The mother has had minimal contact with her own family and has not facilitated any contact between her extended family and G.A. in Ottawa or Baker Lake. Consequently, G.A. has not had the opportunity to develop a connection to either his maternal or paternal extended families and none of those members have come forward as caregivers on a short or long-term basis.

[99] If the child cannot be returned to her, counsel for the mother has indicated that she approves adoption by E.P. It was the mother who initiated contact with E.P. in the late summer/fall of 2021. E.P. resides in Ottawa, but is also originally from Baker Lake. She has offered to adopt G.A. At the time of trial, the Society commenced a referral and assessments of E.P. as a possible long-term placement for G.A.

[100] In this case, I find that the following best interest factors under both the CYFSA and FNIM favour an Order placing G.A. in extended society care with a view to adoption by E.P. and failing that, adoption by a member of the Inuit community. Given some of the overlap in the best interest factors, they have been grouped into six categories.

i. Child’s views and wishes

[101] Section 74(3)(a) CYFSA states that where a person is directed to make a determination in the best interests of a child, the person shall consider the child’s views and wishes, giving due weight in accordance with the child’s age and maturity, unless those wishes cannot be ascertained. Section 10(3)(e) FNIM uses identical language stating the court must consider for an Indigenous child, their views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. In this case, G.A. is two years of age and his views and preferences cannot be ascertained. This factor does not apply here.

ii. Child’s physical, mental, and emotional needs and development

[102] Section 74(3)(c)(i) CYFSA requires the court to consider the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. Section 74(3)(c)(ii) CYFSA requires the court to consider the child’s physical, mental and emotional level of development.

[103] There are comparable provisions in FNIM. S. 10(2) FNIM states that when the court is considering the best interests factors, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture. S. 10(3)(b) FNIM states that the court must consider the child’s needs, given the child’s age and stage of development, such as the child’s need for stability.

[104] G.A has been described by the foster mother and CPW Lavallée as a smart, sweet, loving, curious, and affectionate young boy. He plays well on his own, is fascinated by cars and machinery, and likes climbing and going for walks. He enjoys being read to and his favourite book is Baby shark losses his tail. G.A. is described as strong boy who has rarely been sick during his nascent years. At the age of two, G.A. is doing well in all areas of his development except that his speech and language is delayed. He will require further assessments and monitoring for these issues.

[105] While G.A. attends Akausavic Clinic which provides medical care for Inuit families and children, he was referred to and is presently on the waitlist at the Children’s Hospital for Ottawa (“CHEO”) for speech and development assessment. Efforts are being to expedite services, but there is presently a long waiting list. In the meantime, his foster family continues to support him in his speech development by reading to him, labeling things, explaining what is being done, and getting him to articulate sounds and words. As the foster mother testified, it will be very important going forward that whoever is caring for G.A. be aware of his developmental needs and that he may require special supports throughout his life to develop into his full potential.

[106] For reasons already previously discussed, I am not satisfied the mother, despite her love for G.A., is able to provide for his mental, emotional, and physical needs. G.A. has been in foster care for 22 of the 24 months of his life. A permanent plan is required. He requires a long-term caregiver who will prioritize his needs and provide him a safe, stable, and nurturing home. The mother has not demonstrated any significant change in her behaviour nor has she addressed the child protection concerns necessary to make her a suitable caregiver for G.A. She has not demonstrated any ability to parent G.A. for any significant period of time, and I am not satisfied she could do so even under a supervision order. It is not in his best interests to place G.A. in the care of his mother.

[107] G.A. has not had contact with his father. The Society and foster mother were only recently made aware that the father has four children from another spouse and that G.A. has step siblings. The father recently reached out to make contact with G.A. but a visit had yet to be arranged. The father reported to CPW Desaulniers that he has issues with alcohol and was to present himself for a criminal trial in Nunavut Territory in November 2021. If convicted, the father anticipated he could be incarcerated for three years. The father indicated he is unable to care for G.A. and is not a viable placement.

[108] In the circumstances of this case, I find these best interest factors favour an order for extended society care with a view to adoption by a person that can meet G.A’s physical, mental, and emotional needs, including the special development needs identified for him such as speech and language therapy.

iii. Child’s cultural identity, language, and community

[109] Section 74(3)(b) CYFSA states that in the case of a First Nations, Inuk or Métis child, the court must consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations specified under clauses 74(3)(a) and (c) CYFSA.

[110] Section 74(3)(c)(iii) CYFSA requires the court to consider the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression. Section 74(3)(c)(iv) of the CYFSA requires consideration of the child’s cultural and linguistic heritage.

[111] There are parallel provision under s. 10(3)(d) and (f) FNIM. Section 10(3)(d) FNIM states that the court must consider 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. Section 10(3)(f) FNIM requires the court to consider 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.

[112] G.A. is Inuk. His foster mother has taken great care to introduce G.A. in the past two years to various aspects of his culture and language. He has been exposed to Inuit language, food (i.e. caribou), music, arts and crafts, as well as Inuit cultural celebrations. G.A. has been regularly attending a playgroup at T.I. with other Inuit children and has also met his Inuk sister with whom he shares the same biological parents.

[113] The Society’s present proposal for adoption is to place G.A. with E.P who is Inuk and from the same community as the parents. G.A.’s placement with E.P. or alternatively, another Inuit family, will allow him to maintain his ties to his Inuit cultural and linguistic heritage.

[114] Placement with E.P. is also consistent with s. 16(1)(c) FNIM which indicates that where an Indigenous child cannot be placed with either a parent or member of the parent’s family, priority should be given to placement with an adult who belongs to the same Indigenous group, community or people as the child.

[115] Finally, E.P. resides in Ottawa and G.A.’s placement in her home will allow him to be near his adoptive sister. This is consistent with the mother’s wish which is that he remain in the same city as his sister. It is also consistent with s. 16(2) FNIM which priorities placement of an Indigenous child near children who have the same parent(s) as the child.

[116] These best interest factors favor an order for extended society care with a view to adoption by E.P. or an Inuit family.

iv. Child’s need for Security and stability

[117] Both the CYFSA and FNIM require consideration of the child’s need for security and stability. Section 74(3)(vii) CYFSA addresses the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. Section 74(3)(ix) requires the court to consider the effects of delay in the disposition of the case on the child. Section 10(3)(b) FNIM requires consideration of the child’s development and need for stability.

[118] G.A. needs to find a permanent home as soon as possible having already spent most of his life in foster care. He needs to be able to develop a positive attachment to a loving family who can meet his needs. This factor favours an order for extended society care with a view to adoption as soon as reasonably possible.

[119] In the past, the foster mother has invited adoptive families to reside in her home for a period of time to assist in the child’s transition by enabling the child to develop an attachment to his new adoptive parents in a familiar setting. Provided such an arrangement is agreeable to all involved, it would certainly assist G.A. in the emotional transition to his new family.

v. Child’s relationship with parents, siblings, family, and community

[120] Both the CYFSA and FNIM require the court to consider the child’s relationship with his parents and members of his family. Section 74(3)(c)(v) requires the court to consider the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. Section 74(3)(c)(vi) requires the court to consider 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. Section 10(3)(c) FNIM requires the court to consider 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.

[121] I do not find that an order for extended society care with adoption into a new home will disrupt any continuity of care being provided by the parents given that G.A. has not stayed with his mother for any extensive period nor developed any strong emotional ties to her. G.A.’s mother has not exposed him to any of his maternal or paternal extended family either. This best interest factor favours an order for extended society care.

[122] The adoption plan proposed by the Society aims to maintain G.A.’s access with his mother and adoptive sister and therefore, that contact will not be disrupted. Consideration is also being given to initiating contact between G.A. and his father.

vi. Risk of harm and the merits of the proposed plans of care

[123] Section 74(3)(c)(x) CYFSA requires the court to consider the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and s. 74(3)(c)(xi) the degree of risk, if any, that justified the finding that the child is in need of protection. Similarly, s. 10(3)(g) FNIM states the court must consider 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.

[124] For the reasons explained earlier, I find that if G.A. is returned to the care of his mother, he is likely to be at risk of harm because the mother has not addressed the child protection concern identified. The degree of risk is high in this case given the mother’s lack of demonstrated parenting skills, absence of secure housing, and inability to adequately engage professional and personal support services to help her in raising this child.

[125] Section 74(3)(c)(viii) CYFSA requires the court to consider the merits of the plans of proposed by the Society, including adoption, in comparison to that proposed by a parent seeking return of the child. In this case, while the mother filed an Answer requesting the return of the child to her care, she has not demonstrated any ability to follow through on her plan of care in either the short or long-term.

[126] For all these reasons, I find that the best interest factors under the CYFSA and FNIM warrant an order placing G.A. in extended society care with a view to adoption by E.P. or alternatively, another member of the Inuit community.

[127] If G.A. cannot be adopted by E.P. or a member of the Inuit community, the matter should return before me for further submissions. Section 101(5) CYFSA requires the Society to place G.A. with an Inuit family unless there is a “substantial reason” for placing the child elsewhere. If G.A. cannot be placed with an Inuit family, I find the mother should be entitled to hear and make submissions on what that substantial reason is. The Court has a responsibility to ensure the principles and legislation governing child protection for Indigenous children are respected to the fullest extent possible. The FNIM preamble emphasizes that maintaining Indigenous children’s connection to family and community continues to be a paramount consideration in the treatment of Indigenous children in the child welfare system. However, the principle can only be effectively applied if all participants in the child welfare and judicial system, including the courts, remain diligent in its application. As stated by Kylee Wilyman in A Nation of Hollow Words in her concerns about the effectiveness of FNIM at page 10:

The third potential issue regarding the implementation of the Act is the interpretation of the best interests of the Indigenous child. Historically, the best interests of the child have been framed by colonial courts which have failed to recognize the significance of cultural continuity.[27] Indigenous groups have argued that cultural continuity and family connection should be recognized as fundamentally important to Indigenous child wellbeing rather than simply considerations to be balanced with other interests.[28] As the legislation stands, there is still a risk that Canadian courts will continue assessing “best interests” without regard for Indigenous laws and traditions, especially given that Indigenous laws are not paramount over the sections dealing with the best interests of the child.[29] Ensuring that cultural continuity is recognized as fundamental to the wellbeing of Indigenous children will be critical to preventing yet another “scoop.”[30]

Issue 3: Is it in the best interests of G.A. to have access to his mother and father?

The law governing access and best interests of the child

[128] Access can be ordered pursuant to s.104 CYFSA. The best interests of the child also governs what form of access, if any, should attach to an order for extended society care: 105(5) CYFSA. In assessing whether to order access in accordance with the child’s best interests, the court shall determine (a) whether the relationship between the person and the child is beneficial and meaningful to the child; and (b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption: 105(6) CYFSA.

[129] The Court of Appeal for Ontario held that when a court considers a child’s best interests, it should consider all relevant factors including past, present, or future considerations. This permits a court to conduct a more holistic and comprehensive analysis of what is best for a child which will assist in making the best possible decisions for children: Children’s Aid Society of Toronto v JG, 2020 ONCA 415, at para 46.

[130] Assessing what form of future access is in a child’s best interests involves a delicate weighing and balancing of multiple factors. It is not a fact-finding mission, and the exercise is not assisted by determining what the onus is or where it lies: Children’s Aid Society of Toronto v JG, at para 63.

[131] The Court must specify who will be the access holder and who will be the recipient: 105(7) CYFSA

Access by the mother

[132] I agree with the Society that the mother should have access to G.A. It is clear from the evidence that while the mother has been unable to parent G.A., she loves him very much. CPW Desaulniers and R.F. both observed the mother to be gentle, affectionate, and loving with G.A. It was also clear form the evidence of CPW Desaulniers and R.F. that while the mother does not speak much, she is a pleasant person. I find that it is in G.A.’s best interests, particularly with respect to his emotional development as he grows up, to have contact with his birth mother: 74(3)(c)(ii) and (vi) CYFSA; 10(3)(b) and (c) FNIM.

[133] Maintaining parental and family connections, particularly in this case where the relationships are healthy ones, are important best interest considerations for children: 74(3)(c)(v) and (vi) CYFSA; s. 10(3)(c) FNIM.

[134] CPW Desaulniers also noted that the mother is not intrusive or oppositional and is unlikely to interfere with the adoption process or the decisions of an adoptive parent. This is evidenced by the fact that the mother has maintained respectful relationships with both the foster mother of G.A. and the adoptive mother of her daughter. I find that it is unlikely the mother would interfere with the adoption process.

[135] Finally, while G.A. will be able to connect to his Inuit culture upon adoption by E.P. or another Inuit family, I find that his connection to his Inuit culture, language, and history will likely be enhanced if he is also able to maintain contact with his mother and birth family: 74(3)(c) CYFSA; s. 10(3)(d) and (f) FNIM.

[136] I find that it is in the best interests of G.A. to have access to his mother. G.A. will be the access holder and the mother the access recipient.

Access by the father

[137] As CPW Desaulniers testified, given the father’s absence in G.A.’s life, she had not really turned their mind to whether the father should have access. In the absence of any real relationship between G.A. and his father, it is difficult for the Society to determine if there is any beneficial relationship between G.A. and his father. Little is also known about the father.

[138] The father has, however, recently expressed an interest in having contact with his son. Whether this contact will materialize and how consistently is yet to be determined. There is no evidence to suggest that the father intends to interfere with the adoption process. He has stated that he is not in a position to care for the child.

[139] I find that it would be in G.A.’s best interests for the father to have access with G.A. notwithstanding there had been no contact at the time of trial. G.A. is still an infant and there is time for him to develop some form of relationship with his biological father should that be possible. It provides him an opportunity to be exposed to teachings and practices of his Inuit culture, including possibly time on the land in Nunavut, from the perspective of his father and paternal family. For the purpose of his emotional and personal development, I find it is in G.A.’s best interests to at least have this opportunity as he grows older: s. 74(3)(c)(i) and (ii) CYFSA; s. 10(3)(a) and (f) FNIM.

[140] In addition, being able to have contact with his father will permit G.A. to learn about and potentially make contact with the paternal side of his family in Baker Lake, Nunavut, including his four step-siblings. The importance of a child’s relationship with his birth parent, relatives, grandparents, and siblings, including step siblings, is a best interest factor that must be considered in: s. 74(3)(c)(v) and (vi) CYFSA; s. 10(3)(c) FNIM.

[141] While it is expected that G.A. will have continued access to his culture and language through his prospective adoptive Inuit family as well as through contact with his mother, I find that is in his best interest to be also maintain his cultural connection through his father’s side of the family: s. 74(3)(c)(iv) CYFSA

[142] I also do not think there is any evidence that contact with his birth father will cause emotional trauma because of historical violence or make it difficult for G.A. to develop an attachment with his adoptive family which may, in some cases, be reasons to deny access: Kawartha-Haliburton Children’s Aid Society v JF and JP, 2019 ONSC 3994 at para 99. The father has not presented himself as an intrusive person or one who intends to interfere with the adoption process. He has acknowledged his own limitations and ability to care for the child. His request to date is simply to have contact with his son, the exact nature and form of which is yet to be determined. In this regard, it is important to note that access can come in many forms other than in-person visits. The exchange of gifts, emails, video chats or phone calls are all forms of access. The form and frequency of access should be tailored to the child's specific needs and age-appropriate wishes: Children’s Aid Society of Toronto v JG, at para 64.

[143] Finally, the fact that the father has been absentee for the past two years is not determinative. He does not live in the jurisdiction. Travel to Nunavut was not permitted with the mother due to child protection concerns, G.A.’s young age, and COVID restrictions. As stated recently by the Ontario Court of Appeal in Kawartha-Haliburton Children’s Aid Society v M.W. 2019 ONCA 316, the absence of a previous beneficial relationship or evidence from the party seeking access is not determinative. The court must take a wholistic approach in determining what is in the best interests of the child. The Court of Appeal states at para 49:

[49] The burden is no longer on the person requesting access to demonstrate that the relationship is beneficial and meaningful to the child and will in no way impair the child’s future adoption opportunities. Instead, the court is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. This means that it is no longer the case that a parent who puts forward no evidence will not gain access. Similarly, while any evidence of possible impairment to adoption opportunities would have thwarted previous requests for access, under the new Act, access is to be ordered for a child with otherwise excellent adoptive prospects if it is in her overall best interests. And, as shown in s. 74(3) of the CYFSA, the best interests analysis is comprehensive:

[144] I find that it is in the best interests of G.A. to have access with his father at the Society’s discretion. I find that contact with the father, should it materialize in the short or long-term, will be beneficial and meaningful for G.A. for the above-noted reasons. G.A. will be the access holder and the father the access recipient.

Order

[145] There will be an Order that:

1. G.A. is Inuk.
2. G.A. was taken to a place of safety by the Society on February 28, 2020, and April 22, 2020.
3. G.A. is in need for protection pursuant to s. 74(2)(b)(i) and (ii) and 74(2)(h) CYFSA.
4. G.A. will be placed in extended society care of the Children’s Aid Society of Ottawa with a view to adoption by E.P. or alternatively, an Inuit family pursuant to s. 101(3) and 101(5) CYFSA.
5. If G.A. cannot be adopted by an Inuit family, this matter will return to the court for further hearing and submissions on why such a placement is not possible.
6. GA. shall have access to the mother to be at the discretion of the Children's Aid Society of Ottawa, keeping with the best interests of the child. Access shall be a minimum of once per month, with the frequency of access to be reviewed and possibly increased if the mother demonstrates a clear commitment by attending all the visits. Access may also be reduced if the mother does not attend access consistently.
7. G.A. is the Access Right Holder. The mother L.A. is the access recipient.
8. G.A. shall have access to the father at the discretion of the Society of Ottawa, keeping with the best interest of the child. The duration, times, location, form, and terms and conditions of the access shall be determined by the Society.
9. G.A. is the Access Right Holder. The father A.Q. is the access recipient.

Somji J.

Released: January 17, 2022