WARNING

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

87(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-20-20-0000

DATE: 20220805

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dnaagdawenmag Binnoojiiyag Child & Family Services

Clem Nabigon, for the Applicant

Applicant

• and -

L.S.K.

Christina Roncossek, for the Respondent mother

Respondent mother

• and -

B.C.F.

Charles Morison, for the Respondent father

Respondent father

Ken Dutka, for the Office of the Children’s Lawyer, for the child, O.G.F.

HEARD: July 22, 2022

RELEASED: August 5, 2022

JUSTICE ALEX FINLAYSON

PART I: THE NATURE OF THIS RULING

[1] The Applicant is Dnaagdawenmag Binnoojiiyag Child & Family Services (“DBCFS”). DBCFS is a multi-service Indigenous well-being agency that provides a stable foundation for children, youth and families through wraparound services that are culturally based and family oriented.

[2] The child in this case is O. He is 15 years old. He turns 16 in early October. On February 26, 2021, Nicholson J. found that O. is a First Nations, Inuk or Metis child, without community affiliation. O. currently resides with his father pursuant to the temporary order of this Court dated September 14, 2021, but his placement there has not been stable.

[3] O. has multiple mental health, behavioural and other complex needs. O.’s mental health and behavioural issues were not fully diagnosed until the release of the report of psychologist Dr. Jeff Sherman in January, 2022, but they had been manifesting themselves prior to this. Dr. Sherman diagnosed O. with Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and a Conduct Disorder. Dr. Sherman made numerous recommendations for O.’s placement and treatment. He did so in two scenarios, with O. both in and out of care.

[4] At the appearance before me on January 18, 2022, almost immediately after the release of this report, DBCFS sought an adjournment of the protection application for the purpose of seeking permission to withdraw it. DBCFS’ position represented a change from what it had previously sought in the litigation. DBCFS then made subsequent adjournment requests at the Court dates that followed, more or less for the same purpose, none of which the Court granted without terms.

[5] On July 22, 2022, DBCFS sought the fourth adjournment of this protection application since the release of the assessment report, this time to a date in October, 2022, again to pursue a withdrawal. DBCFS proposed October because O. will then be 16, and thus will be old enough to enter into a Voluntary Youth Service Agreement (a “VYSA”). But on July 22, 2022 DBCFS was supposed to have, by prior Court Order of this Court, prepared for a Trial Scheduling Conference.

[6] This adjournment request engages important questions about the responsibilities of the parties in this proceeding, the interpretation of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Schedule 1, as amended (the “CYFSA”) and the Act respecting First Nations, Inuit and Metis children, youth and families, S.C. 2019, c. 24 (the “federal act”), and the duty of a child welfare agency to provide services to children and families, and to an Indigenous child in particular. It raises important questions about where O.’s best interests lie, and what the remedial options available to this Court are at this point.

[7] At the conclusion of the appearance on July 22, 2022, the Court granted DBCFS’ adjournment request. The Court had no choice given the failure to prepare for the July 22, 2022 Trial Scheduling Conference. The Court adjourned this matter to October 28, 2022. It set aside 2.5 hours, by zoom. But the Court also advised the parties that it would release a written decision later, specifying the Court’s expectations as to the next date.

[8] Between the appearance on July 22, 2022 and the release of this decision, O.’s placement with his father broke down again. On July 29, 2022, DBCFS requested an urgent date within the next 5 days, which the Court accommodated. DBCFS then filed a Confirmation Form to vacate the date, without filing any evidence. The Court is largely left in the dark as to what has transpired.

[9] The Court is not granting a straight adjournment, without terms. In addition to the directions that are set out below, having considered the matter further, this Court orders the parties to appear before the Court in person on October 28, 2022. Unless the child’s counsel has a concern about harm of the kind in section 79(4) of the CYFSA, the child should be brought before the Court.

PART II: THE PRIOR PROCEEDINGS

A. The Initial Protection Application

[10] It was the Durham Children’s Aid Society (the “Society”) which originally launched this protection application. It did so on May 29, 2020. O. was 13 years old at the time.

[11] The protection application states that there had already been a Temporary Care Agreement (“TCA”) for O., in place between April 14, 2020 and May 7, 2020, but as I explain below, the father revoked it. The Society sought a finding under section 74(2)(h) of the CYFSA, that O. was at risk of suffering emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of his parent or the person having charge of him. The Society sought a six-month supervision order placing O. in his mother’s care, with various terms of supervision. The Society sought an order that the father’s access would be subject to O.’s views, in consultation with the Society and the parents, “while being subject to any outstanding criminal conditions.” And the Society sought an order appointing the Office of the Children’s Lawyer (“OCL”).

[12] There are no facts pleaded in the protection application to support the relief claimed. The protection application instead directs the reader to the affidavit of Cindy Campbell, which I gather was also filed in support of the first motion. The affidavit of Cindy Campbell is not in the Continuing Record.

B. The Temporary Care and Custody Hearing

[13] The matter first came before the Court for a motion on June 3, 2020, although that hearing was adjourned to June 11, 2020, because the father wanted to retain counsel. In its Notice of Motion, the Society sought a temporary order under section 94(2)(b) of the CYFSA placing the child in the temporary care and custody of the mother on the same terms as those set out in the protection application, similar access terms, and the OCL appointment, among other procedural orders.

[14] The father filed an affidavit sworn June 9, 2020 for the motion. In it, the father described that he was in a “common-law relationship” with the mother between July, 2000 and December 15, 2012. He stated that the mother had two children from a previous relationship, and the parties then had two children together, namely O. and C., now age 17. I learned, during the case management of this proceeding, that C. lives out of the home pursuant to a VYSA.

[15] The father said that the parents separated in 2012. He said the mother assaulted him. He said she was charged and then subject to bail conditions restricting her contact with him. But in her affidavit sworn September 2, 2020 later filed, the mother alleged that the father was the one who was abusive towards her.

[16] The father explained that following their 2012 separation, on January 20, 2014 they entered into a Final Consent order under the Children’s Law Reform Act respecting the mother’s children from the prior relationship, and C. and O. According to the father, C. and O. (and one of the mother’s children from the prior relationship) resided with him primarily, whereas the other children lived with the mother.[^1]

[17] The father alleged that the mother failed to exercise access to the children in his care after that. He said that at some point the mother launched an “ill-conceived” Motion to Change. He said she was intoxicated, unable to parent, clinically depressed and made other poor parenting decisions. He said the Motion to Change was “Dismissed for want of prosecution” and that the mother had to get the Court’s permission prior to bringing any further proceedings.

[18] The father also denied various allegations in Ms. Campbell’s affidavit. Taking issue with the Society’s plan to place the child with the mother, he accused the mother of making “false and scurrilous allegations”. Nevertheless, he admitted that O. had been charged with “Assault with a Weapon” and was subject to a “non-association clause” with him, he acknowledged that the child has “anger impulse issues”, and he talked about the child’s behaviour when at Enterprise Residence.[^2] He also expressed serious concern about the “challenging behaviours of the child”. At that point in the litigation, he said all this for the purpose of opposing the Society’s motion to place the child with the mother, arguing that she was unable to handle O.

[19] The father admitted that he “revoked” the TCA, which I gather triggered the need for this matter to be brought to Court in the first place since O.’s placement at the time was jeopardized. He did not propose any solution as to where the child should be placed, if not in the Society’s care, under the TCA previously in place. Curiously, in his Answer and Plan of Care dated June 13, 2020, just four days after he swore his affidavit, the father sought an Order pacing the child in “interim society care for six months, or until O. receives the necessary services.”

[20] On June 11, 2020, Leef J. granted the Society’s motion to place the child with the mother. She adjourned the matter to July 30, 2020.

C. The Transfer Motion and the Motion to Vary the Temporary Placement

[21] The matter was adjourned on July 30, 2020, because the Society said it was consulting with DBCFS respecting a potential transfer of this file between the agencies. The basis of the discussions was that the father had self-identified as Indigenous. The mother would later accuse the father of making this up to gain a tactical advantage. As the transfer was opposed, Leef J. scheduled a contested motion for October 2, 2020.

[22] The Society’s Notice of Motion for the transfer was dated September 14, 2020. The Society relied on the affidavit of Shelly Shammon sworn September 14, 2020. In it, Ms. Shammon stated that the father self-indentified as Indigenous, but O.’s views about self-identification were unknown to her at the time. She said that the child’s counsel was meeting with the child to elicit those views. In subsequent filings, DBCFS would later describe O. as being of Indigenous heritage through his father, but without a community affiliation being known.[^3]

[23] In addition to addressing the transfer, Ms. Shammon also provided the Court with an update about this family. She reported that O. was then refusing to engage in any communication with his father, including “not lifting the non-association criminal order”. She reported that O. had been registered for school virtually, but that O. was refusing “any programming or attending to see the doctor.” And she advised that after O.’s initial placement with his mother, the police were called three times to come to the family’s home. The cause was reportedly O.’s behaviour.

[24] To deal with this, the Society arranged for a family support program, implemented some in home support for O. at a one-to-one level to give the mother a reprieve, and implemented “virtual admission prevention meetings” with the mother and O. Ms. Shammon reported that these interventions resulted in the complete reduction of incidents involving the police. That would turn out to be short lived.

[25] On September 21, 2020, before the transfer motion was heard, the Society amended the protection application now to seek orders placing O. in its care for six months, and for access between O. and the parents to be in the discretion of the Society. The Society brought the matter forward early, on September 25, 2020, to seek a temporary order under section 94(9) mirroring those terms.

[26] In Ms. Shammon’s new affidavit of September 23, 2020, she wrote about a number of weekly, successful[^4] check in visits with the family, throughout July, August and September, 2020, but she also reported that the Society had received nine phone calls from the Peterborough Police department due to conflict in the home in July and September 2020. She listed seven support services that had been offered to the family by Kawartha Halburton Children’s Aid Society. She discussed the status of O.’s various charges then before the Youth Court. She also wrote that O. was refusing to go to school, although he was registered. He had yet to go to school almost one month into the 2020-2021 school year.

[27] Ms. Shammon wrote that on September 18, 2020, the mother said that she could no longer care for O. given his behaviour. It was alleged that the mother had given O. some of her prescription medication and marijuana (O. was then 14) to aid him with sleeping.

[28] Meanwhile, on September 23, 2020, the police attended the residence due to O.’s escalating behaviours. O. was taken to the Hand in Hand group home. The father later told the Society he wanted O. to be placed back at Enterphase in Durham, but the Society reached out to Enterphase and they declined to take O.

[29] On September 25, 2020, Rowsell J. made a temporary without prejudice Order placing the child in the temporary care and custody of the Society, he made an access order, and he ordered the file transfer.

D. The Consent Variation to Place O. in His Father’s Care

[30] O. remained in care for only 7 days under the terms of Rowsell J.’s Order. When the parties next appeared before Leef J., on October 2, 2020, she noted in her Endorsement that the parties were now either consenting to, or not opposing O. being placed with his father. Leef J. adjourned the matter to October 7, 2020 to allow the parties to work out the terms of their consent. She endorsed that in the interim, O. could go to his father’s home on an extended visit.

[31] On October 7, 2020, Leef J. made a temporary order placing the child with the father on various terms and conditions, including that O. was be supported to participate in his Mental Health Youth Diversion program and that he participate in anger management programming. The Endorsement also notes that through the Mental Health Youth Diversion, it would be determined if an assessment would be beneficial for O., and that O. was to engage with a Child & Youth Mental Health and Addicitons worker through DBCFS in the meantime. Leef J. put the matter over to December 11, 2020, for a Settlement Conference.

E. The Settlement Conference Before Leef J. in Late 2020 and Early 2021

[32] The Settlement Conference did not proceed on December 11, 2020, because the parties were negotiating the terms of a six-month supervision Order. When the matter next came before the Court on January 13, 2021, Leef J. endorsed that DBCFS had circulated a 14B Motion with the terms of a supervision Order, but the father did not agree to a particular term. DBCFS suggested an all-counsel meeting to resolve the impasse. Leef J. adjourned the matter to February 2021 for a summary judgment motion.

F. The Summary Judgment Motion on February 26, 2021

[33] The summary judgment motion was supposed to proceed on February 26, 2021. DBCFS served its summary judgment motion on just four days’ notice. The Notice of Motion failed to ask for the statutory findings or any protection finding, both required before the Court can make a final supervision order: see sections 74(2), 90(2) and 101 of the CYFSA. DBCFS did not file a Plan of Care either, as required under section 100 of the CYFSA. DBCFS relied on the affidavit of Victoria Heard sworn February 22, 2021 in support of this motion.

[34] Ms. Heard’s affidavit summarized much of the same procedural history that I have just outlined. By way of update covering the period of time after O. went to live with his father in October, 2020 to the date of the motion, Ms. Heard said:

(a) The father reported that O. was “not right in his head” and the father had seen more behaviours from O.;

(b) The father reported that he was not comfortable leaving O. alone with his older brother, as O. was quick to escalate;

(c) The father reported that O. recently slapped him on the shoulder during one of the escalations;

(d) The father reported that O. had been experiencing hallucinations and required constant reassurance and attention from the father;

(e) The father reported that O.’s doctor had recommended that O. be taken to the adolescent crisis unit at Lakeridge Health but O. was refusing to go. The father took O. to the hospital, but O. was not assessed. The affidavit does not otherwise explain what happened at the hospital nor does it provide much if any of a plan thereafter in terms of treatment;

(f) The father reported at the end of October, 2020 that O.’s hallucinations were getting more severe. The doctor prescribed sleeping medication, which the father said made the hallucinations worse. The father and/or O. refused to sign a consent for the agency to speak to the doctor;

(g) A worker attended at the home on October 27, 2020 and observed O. under visible stress. During this meeting the father advised that he completed paperwork for the Early Psychosis Prevention Program through Lakeridge Health, but that O. was not accepted;

(h) The father refused to allow workers to come into the home on November 12, 2020, and apparently said to the worker at the time that the agency could “come and taken O. if [it wanted]”;

(i) On November 23, 2020, the father advised that O. was doing better, and he would still not let a worker have in person visits;

(j) The father refused to allow the agency to conduct its required 30-day home visit in November;

(k) On November 30, 2020, the father refused to give consent regarding O.’s “mental health services and supports”;

(l) On December 7, 2020, the father told Ms. Heard that that agency’s involvement was causing more harm than good, and that the family would participate by phone calls, but he would not be allowing any in person service;

(m) On December 16, 2020, the father telephoned Ms. Heard to report that O. was doing better but that the “CAS ruin lives, and that he will continue to refuse Workers to enter his home”;

(n) The father refused another 30-day home visit in December;

(o) The mother reported that when she saw O. over the Christmas break, he had a black eye. There is information in the affidavit about the source of the blackeye, which was reportedly due to a “snowball fight” between the siblings;

(p) The father refused to allow another 30-day home visit in February, 2021;

(q) On February 19, 2021, the father telephoned Ms. Heard to advise that he needed to sign a TCA to place O. outside the home. He said that the behaviours were becoming worse, that he cannot handle the stress, that O. was fighting with his older sibling and breaking things around the house, and that the police had attended the residence multiple times; and

(r) The father later reported the same day, that he had diffused the situation, and that O. could remain in his care.

[35] The father filed two affidavits sworn February 23, 2021. The first one purported to respond to the Society’s Amended Application, filed back in September, 2020. Among other things, in this affidavit the father said that there is “no evidence before the Court in support of [the finding claimed relating to the child’s mental health].”

[36] In the second affidavit of February 23, 2021, the father acknowledged that “on or about April 14, 2020, there were legitimate protection concerns”, but he went on to blame the Society for having placed the child with the mother. He complained about hearsay in Ms. Heard’s affidavit. He said it was “unfortunate” that Ms. Heard had “minimal personal contact” with him, without specifically addressing the fact that she said he was refusing in person contact. He said that he had engaged appropriate community services for O., without explaining what those apparent services entailed. He denied that he needed or wanted a TCA, despite what Ms. Heard had said about the phone call on February 19, 2021 to the contrary. He concluded by saying that he did not want or need the assistance of DBCFS, that DBCFS had not done anything to assist in managing the child’s behavioural issues, and that DBCFS had exacerbated the situation.

[37] What this reveals, is that when the parties went before Leef J. in December 2020 representing they were working towards a supervision Order, there were already a myriad of problems and they continued right up until the scheduled date for the summary judgment motion. In particular, there was evidence of conflict in the home, concerning behaviours on the part of the child, the father’s inability to manage the child’s behaviour, police involvement, the absence of a plan to diagnose and treat O.’s mental health by either the agency or the parents, an absence of a Plan of Care from this agency as required by the legislation, and multiple statements and refusals on the part of the father to cooperate with the agency’s workers under the terms of the temporary supervision order then in place, let alone what would happen under the terms of a final supervision order.

[38] In the end, DBCFS abandoned its summary judgment motion because in the intervening four days, the child had either been charged with allegedly assaulting the father’s partner, or it came to light that this had occurred. The placement with the father could no longer continue.

[39] On February 26, 2021, Nicholson J. noted that the child had now been placed with his older sister, T.K., after this alleged assault, on another “extended visit”. Nicholson J. ordered that O. was to continue residing with T.K. or another sister, K.K., on an extended visit, pending DBCFS bringing O. to a place of safety and a motion to have the child come into care. Nicholson J. granted a brief adjournment to March 5, 2021 to permit these things to happen.

G. The Amended Amended Application and the Next Change to O.’s Temporary Placement

[40] On March 4, 2021, DBCFS amended the protection application for the second time and it brought another motion on March 5, 2021 respecting O.’s temporary placement. DBCFS continued to seek a finding under section 74(2)(h), and it added a claim for a finding under section 74(2)(n). DBCFS claimed an order that O. be in interim society care for 6 months. In the additional facts added to the body of the Amended Amended Application, DBCFS said that O. was taken to a place of safety on March 3, 2021, and that it had arranged for a placement at Hand in Hand in Peterborough, after exhausting potential family plans for O. DBCFS stated that there was no other viable plan for O.

[41] On March 5, 2021, Scott J. granted a temporary order placing the O. in DBCFS’ care and she made an access order. On consent, she made an order for disclosure from various collaterals. She ordered the parties to encourage the child to sign any consents needed. She also observed that a finding under section 74(2)(j) of the CYFSA was appropriate, and she ordered the parties to consider resolving the finding on this ground.[^5] Scott J. put this matter over for a Settlement Conference on May 11, 2021 before me.

H. The Father’s Answer and Plan of Care

[42] On March 12, 2021 and again on May 7, 2021, the father filed a fresh Answer and Plan of Care dated March 8, 2021. This document provides little additional information about the father’s Plan. In it, the father said he will “use any needed support services”, again without elaboration. He continued to deny that there was any factual or legal basis for a finding.

I. The Settlement Conference on May 11, 2021

[43] Since this matter came before me for the first time on May 11, 2021, DBCFS has filed very little by way of evidence. Updates have generally been given in Confirmation Forms, orally and occasionally in briefs.

[44] On May 11, 2021, DBCFS gave the Court an update about what had transpired since the last Court date. As I noted in the Endorsement of May 11, 2021, O. did not remain at Hand in Hand in Peterborough starting almost immediately after that placement had been sourced. For various reasons that I need not detail here, he was instead at Bayfield Treatment Centres. Various events transpired between the appearance before Scott J. on March 5, 2021 and the return date before me on May 11, 2021 resulting in more changes to O.’s placements.

[45] There were some resolution discussions that day about the protection finding, and disposition, and some procedural discussions relating to securing the disclosure of health information about O. A significant portion of the conference involved the Court questioning the parties about whether O. would now be receiving an assessment and treatment in his current placement, and about the kind of information that should be obtained, to formulate a proper Plan of Care for him. There was also a brief discussion about the parents’ access at the time, given that O. was at Bayfield and other restrictions were then in place.

[46] In the result, I endorsed that there appeared to be consensus on finding, but not disposition. I endorsed the Court’s concern that O.’s situation was still very unstable. I ordered DBCFS to circulate a draft SAF on the issue of finding only. I ordered DBCFS either to file a signed SAF for the next Court date, or if not agreed to, to file one in draft for discussion purposes. I ordered DBCFS to obtain a letter from Bayfield as to the specific services and assessments it is providing for O. and other related matters for use in the development of a Plan of Care. I also made further orders for the release of information, and ordered a certain term respecting access.

J. The Appearance TBST on June 16, 2021

[47] The matter was next spoken to on June 16, 2021. Although I had ordered it to be filed, no signed SAF, or unsigned draft on the issue of finding was put before me. And yet again, O.’s most recent placement at Bayfield had broken down and the father was seeking O.’s return to his care. This time, DBCFS opposed that. There was more discussion, focused on getting O. the appropriate assessment and treatment.

[48] The Court was given a psychiatric consultation note of Dr. Susan Reddick dated May 13, 2021. Dr. Reddick’s note states that the information that she was able to gather about O. was sparse. She wrote that she had no information about his developmental, childhood and family history. She wrote that O. had been referred to Bayfield due to “multiple and complex” reasons, including physically and verbally aggressive behaviour towards others, assaults, property damage, animal abuse, fire play, theft and side effects to using the mother’s psychotropic medication (possibly hallucinatory experiences).

[49] Dr. Reddick noted the myriad of placements for O. that had been implemented to date, and she wrote that each of these placements broke down secondary to O.’s unmanageable behaviours, listed above. She elaborated that in the short time O. had been at Bayfield, he refused food, he refused to do schoolwork, he was constantly oppositional and defiant, he had difficulty following direction, he was argumentative and passive aggressive, he made inappropriate sexual comments to a peer, and he exhibited verbal aggression to staff and peers.

[50] O.’s immediate needs seemed to Dr. Reddick to be the need for an individual education plan, individual crisis management with safety planning, individual therapy, a psychological assessment, a psychiatric diagnosis and possible recommendations for medication. Yet she wrote that it was impossible to formulate all of the difficulties that O. was experiencing. She said she required additional historical information. She wrote that psychological testing was imperative. Dr. Reddick gave some provisional diagnoses, but recommended that the further information be obtained, so that appropriate treatment could be be sought.

[51] Meanwhile, O. was then (and as I understand it, still continues to be) before the Youth Court in the Ontario Court of Justice. In light of Dr. Reddick’s opinion, I inquired of counsel on May 11, 2021, whether an assessment under section 34 of the Youth Criminal Justice Act could be obtained in the Youth Court, and then an order obtained from the Youth Court for use of the assessment report in this proceeding. I asked counsel to reach out to O.’s criminal lawyer, to that perhaps a coordinated approach to the two cases could occur.

[52] But I also said that if there was not to be an assessment in the youth court matter, then the parties should be prepared to proceed with a request for an assessment under section 98 of the CYFSA at the next Court date. I directed the parties to file evidence about potential assessors, their consents, estimates of the time needed, curriculum vitae and draft questions to be put before the assessor.

[53] The father said that day that he wanted to bring a motion for O.’s return home. I directed him to speak to his lawyer about this. I then gave the parties a quick return date to try to resolve the terms of an assessment.

K. The Appearance TBST on July 13, 2021

[54] On July 13, 2021, I was told that counsel did explore whether there might be an assessment in the youth court matter, but in the end that did not materialize. In a positive development, counsel for the OCL said that O. was now prepared to consent to an assessment under section 98 of the CYFSA. But the necessary evidence to enable the Court to order an assessment was not put before it.

[55] Instead, in DBCFS’ Confirmation Form, it stated that O. was now placed at Mary Homes, but that he was still struggling in various respects, not dissimilarly to the issues that had arisen in the past. The Confirmation Form asserted that the father continued to impede O.’s treatment. DBCFS orally updated the Court that perhaps there could be another “preliminary assessment” at Mary Homes to determine what might be beneficial for a “full assessment”. It was not clear that this was any different from what was already done at Bayfield.

[56] Towards the end of DBCFS’ Confirmation Form, it wrote that “upon completion of an assessment to determine O.’s mental health treatment plan, [DBCFS] is seeking a youth led ADR at York Hills to determine what steps need to be taken by the family to ensure that O.’s treatment needs can be met and to plan for O. to return home” but the father and O. had not committed to the ADR. DBCFS also said it would continue “to pursue a positive and productive working relationship with [the father] for the best interest of [O.]” and the ADR process.

[57] The father repeated, now for the second time, that he wanted to bring a motion to have O. return home. In so doing, his counsel said there had been at least 14 placements in the last six months. Counsel also went on to say that there should be a “full blown assessment”.

[58] The order for the assessment under section 98 of the CYFSA could have been made on July 13, 2021, but no one put the necessary information before the Court as I had directed. This was now the third appearance at which the same issues had been discussed. I admonished the parties about the need to get O. diagnosed and then treated. I ordered DBCFS to file information for the next date about where O. was being housed, what services were being provided for him there, and what treatment recommendations were being made there, among other things. I also ordered DBCFS, again, to file the evidence needed for the Court to deal with the section 98 assessment.

[59] Finally, I granted the father leave to bring a motion as he asked for it, but I also set out for him what the kind of evidence that would be helpful and necessary for the Court to consider that motion. I adjourned the matter to September 14, 2021.

L. The Appearance TBST on September 14, 2021

[60] For the September 14, 2021 Court date, DBCFS filed an affidavit of Danielle Thomas sworn September 9, 2021, to address the assessment, and in the same document, DBCFS asked the Court to place O. in his father’s care under a temporary supervision Order. This is one of just two sworn documents that DBCFS has filed in over a year. I was told about a number of positive developments, and some problematic ones too that day, both in this affidavit and orally by Ms. Thomas directly.

[61] Ms. Thomas’ affidavit said that DBCFS had sourced Dr. Jeff Sherman to assess O. In fact, the assessment was already underway. The draft Order that DCFS put before the Court included an assessment of not only O., but the parents too.[^6]

[62] Dr. Sherman’s curriculum vitae revealed that he is a clinical psychologist in Ottawa with experience working with children, adolescents and adults suffering from attention deficit disorder, conduct disorder, anxiety disorter, learning problems, oppositional behaviour, autism and developmental disorders. Dr. Sherman has experience performing psychological assessments. I was told that Dr. Sherman had advised DBCFS that he would undertake his assessment through an Indigenous lens, and although he was located in Ottawa, he agreed to travel to Oshawa to meet with the family.

[63] In regards to the request to have O. return home, Ms. Thomas’ affidavit said that O. had visited his father over the course of multiple, extended periods of time in July and August, 2021. There was no longer a plan for O. to return to Mary Homes. Meanwhile, the father continued to report that O.’s behaviour was problematic, but Ms. Thomas said that DBCFS responded by holding weekly virtual circles with the family, and the father agreed to work with DBCFS.

[64] During this period, O. was charged criminally again, this time in an incident involving a stolen bicycle. But I was told that the father had enrolled O. in school, and O. was set to start school soon.

[65] While Ms. Thomas’ affidavit of September 9, 2021 was not entirely positive, DBCFS sought a return to the father based on the fact that the assessor had been sourced and the assessment was underway, because the visits over the summer occurred without a breakdown, and based on the family’s, and O.’s views and preferences. DBCFS specifically submitted to the Court that it was concurrently planning for O. Ms. Thomas orally represented to the Court that it was her view, that there had been sufficient positive developments. Counsel submitted that the request for the change in placement was based heavily on the success over the summer since the last Court date. The father orally told the Court that that he was using the behavioural modification techniques that had been implemented while O. was at Mary Homes. I was even told by the father that O. had been doing so well that there might be a withdrawal of a particular criminal matter in the youth court.

[66] I granted the order for O. to come out of care, with terms of supervision and I ordered the assessment that day. The terms of supervision included that the father was required to permit announced and unannounced home visits, that he would sign consents for the release of information, that he would develop a safety network with DBCFS, that he would ensure O. was fully supervised at all times while at home in the presence of family members, and that he would ensure O. attends school, among other things. I encouraged the father to continue to work with DBCFS and to try to maintain the placement, to avoid O. having to be moved again. I adjourned the matter to October 19, 2021.

M. The Appearance TBST on October 19, 2021

[67] At the next appearance on October 19, 2021, the Court was informed that O.’s placement had been maintained but the assessment with Dr. Sherman was not complete. Counsel for the OCL reported to the Court that O. was still going to school and things were going as well as could be expected. Therefore, I adjourned the matter once more to January 18, 2022, I made a further order for the release of information as asked by counsel for the OCL, and I directed DBCFS to file the assessment report for the next Court date.

N. DBCFS’ 14B Motion dated December 21, 2021 for the Release of Information

[68] Regrettably, the positive developments reported on September 14, 2021 did not last. Reports have been made to the Court subsequently, that O.’s behavioural problems continued, and both O. and the father became increasingly obstructionist in their dealings with DBCFS.

[69] This was first revealed on December 22, 2021, when DBCFS filed a 14B Motion asking for an Order that DBCFS be permitted to provide to Dr. Sherman a number of documents from various doctors, its notes and records, and documents from Hand in Hand Children’s Services, Bayfield Treatment Centres and Mary Homes. It also sought orders that Dr. Sherman be permitted to release the section 98 assessment report to counsel. This dispute about the release of information was impeding the completion of the assessment report.

[70] The 14B Motion should not have been necessary. But according to the affidavit of Victoria Heard sworn December 20, 2021, Dr. Sherman felt he needed consents from the parents and O. to provide information to the parties given positions that were then being taken. So DBCFS circulated consents, but they were not signed by “all parties”.

[71] Although the order for the assessment made in September already required the parties to sign releases, and although O. had previously signed a form of a consent for the release of information, he would no longer consent. A lawyer in counsel for the OCL’s office swore an affidavit on December 22, 2021, saying that O. agreed to sign releases while he was still in care, but once he returned home, he refused to sign releases, and viewed it to be a breach of his privacy.

[72] On January 6, 2022, Fryer J. granted the 14B Motion to ensure that the Court would have the report at the upcoming attendance in January.

O. Dr. Sherman’s Assessment Report

[73] For the January 18, 2022 appearance, DBCFS filed a short Confirmation Form, along with Dr. Sherman’s 21-page assessment report. Dr. Sherman’s report reveals that during the assessment, the father reported a series of problematic and violent behaviours on the part of O. and that he had been unable to manage those behaviours. It reveals that staff members from the latest group home reported similar observations. At the same time, staff reported that O. is able to be helpful when he wants to be, that he is able to be mature and respectful, that he is able to communicate well, and that he is intelligent.

[74] Dr. Sherman performed a number of psychological tests. Dr. Sherman diagnosed O. with ADHD and Oppositional Defiant Disorder. He wrote that significant challenges to O.’s adaptive functioning arise from unmanaged ADHD, prominent and moderately severe ODD, cognitive deficits and academic problems. More serious behavioural challenges had evolved since the age of 12, which Dr. Sherman said also define the presence of a Conduct Disorder (Childhood Onset Type/moderate severity) in O. Dr. Sherman also attached the specifier to this diagnosis, that O. has limited prosocial emotions.

[75] Dr. Sherman was of the view that O. is at an extremely likely risk of having difficulty maintaining friendships and family relationships and of experiencing social isolation. He wrote that O. may believe that success is beyond his control, he may have negative peer associations through substance abuse or violent acts, he may deny his problems, refuse to show concern and denigrate the importance of schoolwork for future success, he may suffer from a lack of self-esteem and have conflictual relationships, among other things. Dr. Sherman also formed the impression that O. has various cognitive deficits (processing speed, short-term memory, long-term retention) and learning deficits (reading comprehension, math, expressive writing).

[76] While during the assessment process the father reported to Dr. Sherman that O.’s behaviour had improved lately, something that the father has also said at various times during this proceeding, Dr. Sherman was of the view that any improvements were likely due to fears of being removed again, rather than due to internal changes in morality and self-regulation. Dr. Sherman was of the view that O.’s risk of further violence and illegal behaviour is high.

[77] Nevertheless, because the father said O.’s behaviour had improved in November and December, 2021 and the father said he was willing to implement recommendations to keep O. at home, Dr. Sherman made a number of recommendations were towards O. remaining at home for a six month trial period, to assess success. He recommended that a behavioural analyst (psychologist or BCBA) be engaged to help O. achieve certain specified objectives, including school attendance and impulse control. He recommended that the professional use Dr. Russell Barkley’s Defiant Teens program or similar content and that there be a detailed contract wherein O. could remain at home only if he met the objectives. He also wrote that if the objectives were not achieved within the 6-month period, then O. should be placed in a residential treatment facility.

[78] In addition, Dr. Sherman recommended:

(a) There is no medical treatment specific to a conduct disorder, but O. should obtain medical treatment to manage the ADHD;

(b) O. should be given intensive remedial tutoring in reading, math and writing;

(c) O. should receive specified counselling to become aware of his emotional states and how to self-regulate;

(d) O. should be helped to acquire good note taking skills and there are various recommendations in the report for that; and

(e) O. be associated with elders and healers from his First Nations community in order to guide him towards better mental health.

[79] Dr. Sherman made five recommendations to assist O. with his working memory and long-term memory. He also made multiple recommendations to address O.’s ADHD in a school setting.

[80] Significantly, Dr. Sherman wrote that O. is capable of post-secondary education. But he said O. needs assistance to complete his high school diploma and consideration should be given to individual supervision of Ministry on-line courses. Dr. Sherman recommended that completion of this be part of the contract to remain at home.

P. DBCFS’ Position Upon the Release of Dr. Sherman’s Report

[81] In its Confirmation Form for January 18, 2022, DBCFS advised the Court that its plan would be to seek to terminate its involvement “in light of views of youth and father, coupled with placement being maintained since last appearance”.

[82] Contrary to what had been represented to the Court in September, 2021 when DBCFS sought the Order for the child to come out of care, and in contrast to what the father had apparently told Dr. Sherman during the assessment, counsel now said that the father was unwilling to engage with DBCFS, and as such the agency could not “discharge its mandate”.

[83] The father supported DBCFS’ views about the request to withdraw, but going even further with his counsel saying that the Court should terminate the proceeding that very day. The father’s counsel made this request without any motion or evidence before the Court. Counsel also relied on the absence of a finding having yet been made in asking for the withdrawal.

[84] The mother opposed the withdrawal and took the position that DBCFS had to be responsible for “spearheading” services. Counsel submitted that without agency support, O. would be a young man, with no education, no job skills and the prospect of incarceration.

[85] Counsel for the OCL also opposed a withdrawal, notwithstanding the child’s views and preferences. Counsel said the OCL’s position was to ensure that DBCFS discharges its statutory mandate.

[86] I endorsed that the matter would be adjourned because the assessment had just been released. I endorsed that I would schedule the hearing sought by DBCFS on the withdrawal. With DBCFS’ consent, I also endorsed that the issue of whether there would be a finding was to be heard at the same time. At DBCFS’ request, I endorsed that I would not hear the matter since I had presided over a Settlement Conference in May, 2021 on the issue of finding. I also noted that the mother and perhaps the OCL wished to call viva voce evidence from the assessor on the hearing. In the result, I made a scheduling order, directed that the issues be heard on the May, 2022 trial sittings and scheduled a Settlement Conference for April 12, 2022 to discuss the issues one more time beforehand, but on a date after the affidavit material was expected to have been exchanged and filed.

Q. The Settlement Conference on April 12, 2022

[87] The matter next came before me on April 12, 2022. DBCFS did not follow the Court’s scheduling Order. DBCFS did not file any evidence, and so there was nothing for the parents to respond to.

[88] Instead, DBCFS filed a Confirmation Form and a Settlement Conference Brief. The OCL also filed a brief. The mother filed a Confirmation Form. The father did not file any material. No Offers to Settle were put before the Court.

[89] DBCFS’ brief contained additional information from the fall of 2021, not previously reported to the Court, but which arose after the September 14, 2021 Order. It also contained some information about some services that might theoretically be available. Rather than proceeding on the May, 2022 sittings, DBCFS now wanted an adjournment to August 2022, when it said it would be proposing a termination in favour of a VYSA.

[90] The OCL continued to oppose the termination of this case. Counsel complained that father was interfering in his solicitor-client relationship with the child. The mother continued to complain that the recommendations in the report had not been implemented.

[91] In response to questions or comments from the Court about what had been done in terms of providing the assessment report to potential professionals to procure services, DBCFS raised a new objection, saying that it was prohibited from doing this under the statute for reasons of confidentiality.

[92] In the result, I refused adjourn this matter to August as asked. In the Endorsement, I wrote the following that following the discussions, counsel for DBCFS now agreed to get instructions from his client about which recommendations of the assessor DBCFS accepts, which ones (if any) that it disagreed with, and if so why. Counsel agreed to explore appropriate services having regard to the recommendations in the report and to craft a plan. I noted the Court’s recommendation that a supervisor from DBCFS be involved in the discussions too, and I invited the supervisor to participate in the discussion next time.

[93] I authorized DBCFS to release the assessment report to any professional it saw fit to contact, to enable it to canvass their willingness and ability to provide service to O. I ordered DBCFS to write a letter to counsel for the parties and to the OCL setting out its position on services on the terms set out above. I ordered DBCFS to attempt to source specific professionals who could work with O. and the family and to include some information about their qualifications and confirmation that they have agreed to act. I also ordered that counsel for the OCL was to be given an unhindered opportunity to discuss the letter with O. I adjourned the matter to May 9, 2022, to be spoken to.

R. The Appearance TBST on May 9, 2022

[94] According to the OCL’s submissions on this day, DBCFS did not provide the letter that was ordered on April 12, 2022. The OCL was therefore unable to get specific instructions about O.’s willingness to engage in specific services, although I have been told he is unwilling to engage more generally. DBCFS did not specifically object to any of the recommendations in the assessment report in its Confirmation Form filed for May 9, 2022.

[95] That said, there was some attempt to follow the Court’s April 12, 2022 Order, but without success. For example, DBCFS reported that two psychologists and one service agency respecting behavioural therapy had been approached, but declined to get involved. Three other psychologists had been approached and DBCFS was awaiting their response. But still, as counsel for the mother pointed out, the Confirmation Form did not state when those inquiries had been made, nor was information about qualifications provided, nor did DBCFS have consents from any professionals to act.

[96] DBCFS’ Confirmation Form further advised the Court that a child and youth mental health addictions worker attended the home twice, without success. Apparently, he met with the father on April 27, 2022 and arranged for an appointment on May 3, 2022. But no information was given about what this worker’s role was supposed to be, or what happened after April 27, 2022.

[97] DBCFS’ Confirmation Form advised that a youth justice worker was supposed to be assigned in the fall of 2021. That file was closed, apparently because of verbal aggression from the father.

[98] I was given new and conflicting information in the Confirmation Form about O.’s education. The school principal apparently advised that O. was in grade 10 and started at home learning because he was not permitted on school property. The principal said the school would contact the police if O. attended. The father disputed this information. His counsel read an email from the school stating that O. was allowed to have in person check-ins at the school, but as part of at home learning. Counsel for the mother said the father was putting a positive spin on the email that the school had sent.

[99] I was told that a referral had been made to DBCFS Education Liaison, without explanation. I was told that O. had been offered a section 23 class, but the father and O. refused it. I was told that O. was doing the “SAL program” earning one credit at a time.

[100] Despite these problems in the Confirmation Form, DBCFS now said it just wished to adjourn to June 2022, in order that the “collateral engagement and outreach may continue”. DBCFS orally asked the Court to schedule another Settlement Conference. It did not raise a request to withdraw on this date. Counsel specifically said that DBCFS was no longer pursuing that option.

[101] I declined to do book another Settlement Conference. I endorsed that although Dr. Sherman’s assessment report was released in January, various supports had not yet been sourced, and few if any serviced had been put in place. I endorsed that there was conflicting information about the extent to which O. was attending school. The child was before the Youth Court and appeared not to even be working with a youth court worker. I further wrote that O’s instructions continued to be that he would not consent to engaging in services.

[102] I also noted DBCFS’ position, that while it was not seeking to withdraw, it was also not seeking to have the child come into care under these circumstances. The father did not want DBCFS involved. The mother, by contrast, said that O. should be taken into care, but she would not bring a motion. And the OCL was still opposing a termination, should that be pursued.

[103] In conclusion, I wrote, “at this point, scheduling more settlement conferences is not productive. As DBCFS is no longer seeking leave to withdraw, there will be a hearing about whether this child is in need of protection”. I adjourned the matter to July 22, 2022 and I directed that a Trial Scheduling Endorsement Form was to be filed in draft.

S. The Trial Scheduling Conference on July 22, 2022

[104] For July 22, 2022, DBCFS filed a Confirmation Form saying that the placement had been maintained since the last appearance, except for a “disruption in mid-June 2022, where O. returned in early July 2022.” There was no elaboration about what happened during this “disruption”.

[105] The Confirmation Form said that the father was prepared to maintain the placement until O. is 16, whereupon O. would enter into a VYSA. Respecting school, it said that O. had registered for 1.5 school credits this summer. It also said that an “assessment with Dr. Fountain” had yet to commence. There was no explanation given as to the involvement of Dr. Fountain, and why there needed to be another assessment. Finally, DBCFS returned to its earlier position, and said it wanted “to maintain placement and work with O. for the purpose of a VYSA upon his birthday in October 2022”; in other words, a withdrawal.

[106] The OCL’s Confirmation Form provided an update, more or less in the nature of similar behaviour described in the past. Counsel said he had no instructions. Counsel felt he is not able to assist any further. Counsel indicated that he would remain on the file, if the Court believed the OCL has a tenable role to play. Meanwhile, counsel orally stated that the father regularly sent him correspondence saying the situation was “untenable” and that he cannot manage the child. Counsel described matters as appearing to be getting worse.

[107] The mother’s Confirmation Form continued to criticize DBCFS for not taking more active steps. Orally, counsel confirmed that the mother was still unwilling to take any steps to have the child come into care. The father did not file anything at all and added little of assistance, orally.

[108] Meanwhile, no one had filed the TSEF in draft as had been ordered. At the outset of this appearance, I asked counsel why that had not been done. Counsel for DBCFS said that the TSEF had been circulated, “albeit recently”. In response to a further question about this, I was told that the form had just been sent out “yesterday”. Counsel went on to say that he would instead circulate a VYSA. Although he failed to circulate the TSEF that was ordered, he committed to circulate the VYSA quickly.

[109] The Court had no choice but to put the matter over. I booked a return date on October 28, 2022, with this ruling to follow.

T. The Request for An Urgent Motion

[110] On July 29, 2022, while this decision was under reserve, DBCFS sent a request to the Court for an urgent date within the next 5 days. The matter was initially scheduled by the Court before another judge, but was brought to my attention because the file was with me. I directed that the matter proceed on August 2, 2022, within the timeframes asked by DBCFS. But no one appeared on August 2, 2022.

[111] I asked the Registrar to reach out to new counsel for DBCFS. She then attended before the Court. She advised that she thought the date was booked for August 3, 2022 and that the motion material was not ready. She advised that there had been another placement breakdown, that DBCFS did not know where the child was, and that DBCFS intended to seek a placement, she thought, with an aunt. She anticipated having the material prepared later that day. The matter was put over to August 3, 2022.

[112] No one then attended on August 3, 2022 either. Instead, DBCFS filed a Confirmation Form seeking to vacate the date, saying that the “placement breakdown has now been resolved”, that “a court date/motion is no longer required” and that the child would be remaining with the father. In the end, once again, DBCFS failed to place any evidence before the Court about what transpired respecting this most recent placement breakdown.

PART III: ISSUES AND ANALYSIS

A. The Statutory Frameworks that Apply in this Case

[113] It is necessary to situate the current adjournment request within the statutory frameworks that apply in this case. As this case has been brought before the Court, and customary care is not being pursued, there are two options, both of which require a hearing. The Court must either hold a hearing to determine if O. is in need of protection and if so, consider what order as to disposition is required. Or, the Court must hold a hearing about DBCFS’ request to withdraw, whether on its own, or in favour of a VYSA.

(1) Hold A Hearing About Finding and Disposition

[114] Pursuant to section 90(1) of the CYFSA, the Court is required to hold a hearing to determine whether the child is in need of protection based on one or more of the grounds in section 74(2). If the Court finds O. is in need of protection, unless no further order is necessary to protect him in the future, the Court is required it is required to make an order as to disposition under section 101 or 102.

[115] Before the Court determines whether the child is in need of protection, it must make certain statutory findings: see section 90(2) of the CYFSA. This is supposed to be done as soon as practicable in a case. At this point, only the finding about the child’s FNIM status has been made by Nicholson J. on February 26, 2021. The other statutory findings remain outstanding.

[116] When it comes to disposition (should a finding be made and should the Court find that a dispositional order is needed to protect this child in the future), the Court is required, under section 101(3) of the CYFSA to consider less disruptive alternatives to removing the child, including non-residential care and whether the assistance referred to in section 101(2) was offered. Section 101(2) requires the Court to ask the parties what efforts the society or another person or entity made to assist the child before intervention under Part V of the CYFSA. Despite the wording of section 101(2), the Court’s inquiry is not limited to the timeframe prior to the application; it is an ongoing inquiry: see Frontenac CAS v. T.(C.), 2010 ONSC 3054 ¶ 36(15.).

[117] The Court is required to consider community placements for all children as an alternative to removal. In the case of an FNIM child in particular, the Court is required to consider specific family or community placements unless there is a “substantial reason for placing the child elsewhere”: see sections 101(4) and (5).

[118] Section 74(3) contains a lengthy list of criteria that the Court must consider when making determinations in a child’s best interests. The Court is required to consider O.’s views and wishes, but in context and weighted appropriately. The Court is required to consider the importance of preserving O.’s, a FNIM child, cultural identity and connection to community. The Court is also required to consider a number of other relevant factors, about the child’s needs, development, family and community connections, the effects of delay, risk factors and so on.

[119] The federal act is engaged here, given that O. is an FNIM child. As Madsen J. recently wrote at ¶ 63 of Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744, section 4 of the federal act operates as a minimum standard. Where the standards under the CYFSA surpass or exceed the federal legislation, the CYFSA will apply. Where the standards under the federal act surpass or exceed those in the CYFSA, the federal act will apply. Special considerations apply to Indigenous children, and these must be part of every decision involving them: see ¶ 68; see also Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 ¶ 60-80.

[120] The best interests’ principle is a primary consideration in relation to service decisions under the federal act. It is the paramount consideration in relation to decisions and actions related to the apprehension of children too: see section 10(1) of the federal act; see also Children’s Aid Society of the Niagara Region v. S.S. and T.F. ¶ 70.

[121] Section 10(3) of the federal act contains a non-exhaustive list of best interests’ factors that apply to an Indigenous child. The list is similar, but not identical to the best interests’ factors under the CYFSA. The list in the federal act has already been described as an “augmented best interests test”: see Children’s Aid Society of the Niagara Region v. S.S. and T.F. ¶ 71; see also CAS v. K.C. and Constance Lake First Nation, 2020 ONSC 5513 ¶ 41.

[122] Section 10(2) of the federal act directs that when considering the factors under section 10(3), 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.

[123] There are particular rules about the placement of an Indigenous child under the federal act, to the extent consistent with the child’s best interests: see section 16(1). The Court must consider the possibility of placing the child with or near children who have the same parent, or who are otherwise members of the child’s family: see section 16(2). Customs and traditions of Indigenous peoples are to be taken into account: see section 16(2.1). And where a child has been removed from a parent, there is to be a continual reassessment of the placement: see section 16(3). See also See Children’s Aid Society of the Niagara Region v. S.S. and T.F.¶ 75, 76.

(2) Hold A Hearing About the Withdrawal of the Protection Application

[124] While DBCFS has in the past sought to withdraw the protection application on a standalone basis, its current plan is to withdraw in favour of a VYSA. But as I indicated previously in case management, O. is not even eligible at this time to enter into a VYSA. Section 77(1) of the CYFSA provides that DBCFS and O. may only enter into a VYSA once O. turns 16, hence the reason for the latest request to adjourn to October.

[125] Once O. attains that age, DCBFS and O. may make a written agreement for services and supports for him [my emphasis added]. But for that to happen, the agency must have determined that O. is or may be in need of protection. It must be satisfied that no course of action less disruptive to the child, such as care in the home, with a relative, neighbour or other member of the child’s community or extended family is able to adequately protect the child. Yet as recently as August 3, 2022, DBCFS chose not to bring any motion to change the temporary placement, choosing to leave the child with the father. The child must also want to enter into the agreement.

[126] Furthermore, section 21(2) of the CYFSA sets out what is required for an agreement under the CYFSA to be valid. An agreement will only be valid if the person making it has capacity, is reasonably informed as to its nature and consequences, and of the alternatives to it, makes the agreement without coercion or undue influence, and has had a reasonable opportunity to obtain independent legal advice. In this case, that requires a good working relationship between O. and his counsel, and specifics of any Plan being proposed.

[127] And before the VYSA to come into effect, any temporary care agreement under section 75 or order for the care or supervision of a child under Part V of the CYFSA must terminated: see section 77(6). That requires an act of this Court.

[128] I have been unable to find any reported decision that sets out the legal considerations to terminate a temporary supervision order in favour of a VYSA. That said, the test to withdraw a protection application, which if granted would result in any temporary orders made within it expiring, is well known. As Justice Sheilagh O’Connell wrote in Children’s Aid Society of Toronto v. A.J., 2021 ONCJ 411 at ¶ 76-86:

(a) Rule 12 of the Family Law Rules, which provides for a unilateral withdrawal of a case by a party, does not apply to child protection proceedings;

(b) Once a child protection case is brought before the Court, the Court is required to hold a hearing. Section 90(1) requires a child welfare agency to access to the Court’s power to have the determination of protection made;

(c) The Court is obliged to make a determination, whether that is done in the case of an agency wishing to withdraw an application, where court approval of a settlement is sought, or in a full hearing;

(d) The factors to consider on a request to withdraw are whether continuing child protection concerns exist, the parties’ positions on the withdrawal, the reasons for the withdrawal, and how the withdrawal would affect the fairness of any other pending parenting litigation;

(e) The parties’ consent is persuasive, but not determinative;

(f) The reasons for the request must be considered in each case; and

(g) Where there are serious ongoing protection concerns, an agency’s request to withdraw is a request to divest itself of the protection matter and amounts to “handing off” its responsibility to ensure the protection of children to a private litigant.

[129] Importantly, this is not a case where a child welfare agency pursued a VYSA with a child as an alternative to bringing a protection proceeding in the first place, such that there was never any court oversight to begin with. This is a case where DBFCS brought a protection application, that is still not resolved, and a VYSA is a possible option on the horizon, because the child aged while the proceeding went unresolved.

[130] In light of the Court’s statutory duties under the legislation, it cannot be that the act of terminating a temporary supervision order to give effect to a VYSA is a mere exercise in rubber stamping. In my view, under the circumstances, the availability of a VYSA, information about the services to be provided under it, and the likelihood of its success, are all factors for the Court to consider under the umbrella of deciding whether to permit the withdrawal of a protection application and/or to terminate a temporary supervision order, according to the test that O’Connell J. articulated above.

[131] Again, given the specific statutory requirements of sections 77(1)(b) and (c), for DBCFS to pursue a VYSA, it must acknowledge that it has determined that O. is or may be in need of protection and that other family or community placements are not viable options. I would think that the agency’s concessions in this regard and its apparent contradictory position on placement during the interim stages of this case would be relevant considerations under the test to withdraw. I would also think that the Court would have to be satisfied that the requirements of section 21(2) are met.

(3) The Importance of Services In Either Scenario

[132] Importantly, in either scenario, whether a hearing about finding and disposition, or a withdrawal hearing, there needs to be a Plan. IN fact, it is both incumbent upon DBCFS, and required, that it put a Plan before the Court. It would help his case, if the parents put more detailed plans before the Court, too.

[133] As it pertains to DBCFS’ obligations, the additional purposes in section 1(2) of the CYFSA are important to review. Section 1(2) reads:

1(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.

3. Services to children and young persons should be provided in a manner that,

i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons,

iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. takes into account a child’s or young person’s cultural and linguistic needs,

v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and

vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.

5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

[134] Additionally, a child welfare agency has certain specific statutory duties under section 35 of the CYFSA. As I wrote at ¶98 of Catholic Children’s Aid Society of Toronto v. T.T.L. and S.S., 2019 ONCH 530, under this section, child welfare agencies are tasked with a number of functions, including the investigation of allegations that children may be in need of protection, and the protection of children. Part of their mandate is to provide guidance, counselling and other services to families for protecting children or to prevent circumstances requiring the protection of children. And children’s aid societies are required to adequately supervise, when required to do so.

[135] Under the federal act, the reference to services begins right in the preamble. The preamble recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices. One of the needs that parliament affirmed is the need to address the needs of Indigenous children and to help ensure that there are no gaps in the services that are provided in relation to them, whether on or off of a reserve [my emphasis added].

[136] Section 11 of the federal act specifically requires that child and family services in relation to an Indigenous child are to be provided in a manner that takes into account child’s needs, culture, allows him to know his or her family origins and promotes substantive equality between the child and other children. Under section 14(1), priority is to be given to services that promote preventive care to support the child’s family to the extent that is consistent with the child’s best interests. And under section 15.1, before apprehending a child who resides with a parent or another adult member of his family, there is a duty on a service provider to demonstrate that he or she has made reasonable efforts to have the child continue to reside with that person.

[137] One of DBCFS’ core arguments in favour of a withdrawal is that the father and the child will not work with it, and so it cannot supervise them. That argument is not without merit. As I also wrote at ¶ 100 of Catholic Children’s Aid Society of Toronto v. T.T.L. and S.S., a child welfare agency’s obligation to provide services has to be looked at in context. For example, an agency should not have to force services upon a family where they are not likely to be successful.

[138] But it does not automatically follow that a refusal of a parent or a child to work with an agency means that the agency’s job is done. IF DBCFS is unable to work with the family and the child under a temporary supervision order, then just how then will it be able to provide services under a VYSA?

(4) The Relevance of the Proceedings Under the [Youth Criminal Justice Act](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)

[139] Moreover, this case should not be treated as if it is operating in a vacuum from related proceedings in which O. is involved. The information that has been put before the Court is that O. has had numerous run-ins with the criminal justice system, and although full details have not been provided, I am under the impression that he is subject to pending charges before the Youth Court.

[140] Dr. Sherman has opined that O. is at high risk of future contact with the criminal justice system. The information that has been put before me is that the police have been called when the child was under the care of both of the parents in their respective homes at different times, and the father has even called the police with a view to having the child arrested.

[141] The principles in section 3(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 include holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, promoting the rehabilitation and reintegration of young persons who have committed offences and supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour.

[142] Parents and the community more broadly are integral partners in the youth criminal justice process. Measures taken against young persons are to be meaningful given the young persons’ needs and level of development, and where appropriate, should involve the parents, extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration.

[143] If, as Dr. Sherman says, O. is in the future at risk of criminal behaviour, he may be detained on a charge, or even found guilty of another offence, let alone in respect to anything that may still be pending. Pursuant to sections 28.1 and 38(2)(e.1)(iii) of the Youth Criminal Justice Act, if he is detained or found guilty of an offence while still a young person, the youth court cannot impose a condition of a release order or as a youth sentence as a substitute for child protection, mental health or other social measures. But the youth court still engages in planning. It is essential for a youth court judge to know, or be given information when dealing with a young person under the Act, what services and community support network that that the child has in place that address the underlying offending behaviour. A properly crafted plan in this proceeding can only serve to help O. improve his outcomes when it comes to any proceedings under the Youth Criminal Justice Act.

(5) Conclusions Respecting the Statutory Frameworks

[144] Running throughout both child protection statutes, but augmented by the federal act, an FNIM child’s best interests are at the forefront. Provided it is in O.’s best interests, efforts should be made to keep this child out of care, and preserve his connection to his family, community and culture. For the Court to do that, there needs to be a properly developed plan marshalled into evidence and the cooperation of the family, and the child. And for the Court to apply all of the applicable statutory provisions, there needs to be both evidence, and a properly developed plan.

[145] No matter what outcome is pursued in this proceeding, the Court will be required to consider the provision of services. Terminating in favour of a VYSA does not mean doing nothing. By failing to have an actual developed plan before the Court, by engaging in conflict with one another and disobeying Court orders, DBCFS, the parents and O. are limiting the options that will be available to the Court when this matter comes on for a hearing. That is contrary to requirements of both pieces of legislation, and importantly to a myriad of provisions in the new federal act. I am quite concerned that this is not being taken with the appropriate degree of seriousness by all of the parties and the child involved in this case.

B. Adjournments in Child Protection Cases Beyond Prescribed Time Lines Are Granted Only If the Best Interests of the Child Require It

[146] In this context, I turn now to the specific provisions that govern the adjournment of the hearing.

[147] Section 94(1) of the CYFSA prohibits the Court from adjourning a hearing for more than 30 days, unless all parties present and the person who will be caring for the child during the adjournment consent, or if the Court is aware that a party who is not present at the hearing objects to the longer adjournment. Rule 33(1) of the Family Law Rules contains a timetable that governs child protection cases. The hearing is supposed to be completed within 120 days.

[148] Although the Court may extend the timeliness if the child’s best interests require it under rule 33(3), it is well established that child protection proceedings are supposed to be conducted without delay. Just as it is at the forefront of the applicable statutes, the consideration of what is in a child’s best interests is focal when it comes to adjournment requests according to rule 33(3). Continuing to adjourn a case where directions are not being followed and progress is not being made, is problematic delay, and that is not in a child’s best interests.

(1) The Meaning of Delay in this Context

[149] At ¶ 34-35 of C.M. v. Children's Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, the Ontario Court of Appeal said the following about what is expected when adhering to timelines in child protection:

[34] That requires, among other things, that assessment reports be prepared with dispatch; that Children’s Aid Societies make decisions in accordance with statutory timelines about how to proceed in a particular case; that meaningful case management occur in which timetables are set and witness lists are fully canvassed; that trials be scheduled so that trial days are not stretched over months; and that trial judges receive adequate time to prepare reasons in a timely fashion.

[35] We acknowledge that additional factors may contribute to delay in particular cases. It is our hope, however, that all those involved in the child welfare system will do their part to minimize delay and promote finality for children. The children involved in this system deserve better.

[150] Delay is also relevant when it comes to requests to withdraw protection applications. In Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.R., 2021 ONCJ 41, Kukurin J. wrote that where, in that case, no finding had been made and the case had carried on for two years beyond the timelines, the message that granting leave to withdraw sends must be taken into account. He concluded that the society should do what it ought to have done two years ago, and it should permit the Court to do what it should have been done two years ago: hold a hearing.

(2) Active Case Management Is A Method to Fight Against Delay

[151] An important tool to reduce or avoid delay is case management. The aforementioned passages from C.M. v. Children's Aid Society of the Regional Municipality of Waterloo mention meaningful case management. But the Court does not act on its own in case management. The obligation to ensure every court appearance is meaningful is a shared responsibility between the Court, the lawyers and the parties. This is enshrined in the rules, and in rule 2 in particular.

[152] Rule 2(2) provides that the rules’ primary objective is to enable the Court to deal with cases justly. What that means is set out in rule 2(3). According to rule 2(4), the Court is required to apply the rules to promote the primary objective, and the parties and their lawyers are required to help the Court promote the primary objective. Rule 2(5) enumerates what is required of the Court in the management of its cases.

[153] In the child protection context, soon after the CYFSA came into force, Sherr J. released the decision Catholic Children’s Aid Society of Toronto v. K.R., 2018 ONCJ 288. At ¶ 7, he gave child welfare agencies early guidance about some of their basic responsibilities in the legislation. He told agencies that promptly, they should be providing disclosure, assessing families, having discussions about services, providing children and families the opportunity to have input into planning, and providing a clear list of expectations.

C. Conclusions Respecting DBCFS’ Request to Adjourn

[154] This Court is not unaware that in many cases, this one included, the timetable in Rule 33 is not met, and cannot be met. O.’s situation has been fluid from the outset and there have been many changing and difficult circumstances. This Court is not unaware that there are circumstances in this case and with this family that those on the front lines may find challenging.

[155] But there has been far too much problematic delay in this case. There have already been at least 15 adjournments in this case, on my count. Despite that, there are still many things to be done.

[156] The question of whether there should be a finding remains unresolved. This could have, and ought to have been resolved at the summary judgment motion before Nicholson J. on February 26, 2021, but the motion was not even properly constituted. Failing that, this ought to have been resolved at either of the appearances before me on May 11, 2021 or July 13, 2021. Yet the parties failed to sign a Statement of Agreed Facts, and DBCFS failed to put before the Court a draft document for discussion purposes, contrary to an Order. DBCFS then failed to avail itself of the opportunity to have the hearing on the trial sittings in May of 2022, when the finding could have been addressed. Finally, it failed to prepare for the Trial Scheduling Conference about this on July 22, 2022.

[157] Furthermore, although the protection application in this case has already been amended twice, DBCFS has not amended its application to claim a finding under section 74(2)(j) of the CYFSA, which Scott J. identified on March 5, 2021, and which DBCFS said it agreed to. No Plan of Care has ever been put together either, or at least no Plan has been filed with the Court. The latter is in spite of the fact that DBCFS attempted to proceed with the summary judgment motion in February 2021, at which a Plan of Care was required.

[158] Moreover, it should have been readily apparent to DBCFS, and the parents, that an assessment of this child was required. Although the issue was raised early on at an appearance before Leef J. and again by this Court on May 11, 2021, an assessment was only eventually put in motion after this Court raised the issue more than once, and eventually admonished DBCFS to get it going. There needed to be three appearances to deal with the terms of the assessment. This is in direct contradiction of the Ontario Court of Appeal’s admonition in C.M. v. Children's Aid Society of the Regional Municipality of Waterloo, that assessments are to be prepared with dispatch. Now, the recommendations in the assessment report are not being implemented.

[159] On September 14, 2021, when this Court ordered both the assessment and the child’s return to the father, it expected that the assessment would be taken seriously and not disregarded. Even then, after its release and DBCFS immediate request to withdraw for the first time on January 18, 2022, this Court was prepared to give DBCFS the opportunity to have a hearing within a reasonable timeframe, with a Settlement Conference on the issue in intervening period. DBCFS did not adhere to the timelines set out in the Court’s order of January 18, 2022 to prepare for the hearing. In so doing, it deprived the Court of the evidence that it ordered to be filed, to have a more meaningful Settlement Conference on the issue on April 12, 2022.

[160] I accept that on May 9, 2022, after it was ordered to do so, DBCFS put some information before the Court, in unsworn form, about services for this child. Nevertheless, to my knowledge, except perhaps for the not explained reference in DBCFS’ Confirmation Form for July 22, 2022 to Dr. Fountain now possibly doing some kind of assessment, no professional has yet to be retained, and none of the key recommendations in the report have been implemented. It has been 7 months since the release of the report.

[161] If one of the parties is of the view that the assessment is flawed, then that is one thing, and reports may be challenged at a hearing. But none of the parties have ever said they intended to challenge the report on such a basis. DBCFS was even given the opportunity to put such position before the Court too: see again this Court’s Endorsement of April 12, 2022; and it did not.

[162] This delay does not sole rest on DBCFS’ shoulders. The parents have very much contributed to the delay, too. While both complaining that DBCFS has done little to nothing to help the family, the information that I have been given is that the father is engaging in conflict with DBCFS and he is encouraging the child to do so too. The father denies this. The child’s relationship with his counsel seems to have all but deteriorated. The mother is complaining about DBCFS’ inaction, while herself being unwilling to take any other steps.

[163] Meanwhile, the child has been subjected to multiple changes in placements, he has been in and out of residential care, he is involved in the youth criminal justice system, the police have been called as a tool to manage his behaviour, there is concerning information before the Court about his school attendance, and he is not receiving treatment.

[164] All of these factors heavily militate against granting an adjournment.

D. Terms of the Adjournment

[165] The Court had no choice but to grant an adjournment on July 22, 2022 because of the deliberate failure to prepare for that appearance, as directed. But this Court is not required to grant a straight adjournment without terms.

[166] Pursuant to rule 39(5) of the Family Law Rules, this Court in case management is tasked with supervising the progress of the case, conducting and scheduling conferences, and hearing motions. Although there have been two settlement conferences, rule 17(24) does not prohibit this Court from setting the next steps in the case and imposing directions on the parties according to its supervisory functions over this case: see the decision of Kiteley J. in Canepa v. Canepa, 2018 ONSC 5154 ¶ 10-16.

[167] Pursuant to rule 1(7.1), this Court may make an order under subrules (7.2), (8), (8.1) or (8.2) at any time during a case. The power to make such an order is in addition to any other power to make an order that the rules may specify in the circumstances, and it exists unless the rules expressly provide otherwise. For the purposes of promoting the primary objective of the rules under rule 2(4) and particularly rule 2(5), rule 1(7.2) empowers this Court to make orders giving directions or imposing conditions respecting procedural matters as are just. They include ordering that any motions be brought within a specified time, filing statements of agreed facts, directing a party to serve and file a will say statement, directing how evidence will be called at a hearing, directing that a party serve and file a summary of argument, identifying the issues to be decided, ordering the parties to appear before the court, and trial scheduling. Some of these kinds of orders have already been made, and not observed.

[168] Rule 1(8) sets out the Court’s powers to sanction non-compliance with an order made in a case. The Ontario Court of Appeal in Bouchard v. Sgovio, 2021 ONCA 709 recently confirmed rule 1(8) provides this Court with broad authority, both procedural and substantive, to sanction breaches of court orders.

[169] Section 92 of the CYFSA empowers the Court, on its own initiative, to summon a person to attend before it, testify and produce any document or things, and may enforce obedeience to the summons as if it had been made in a proceeding under the Family Law Act.

[170] The Court intends to use these powers. The Court will be imposing a series of trial directions on DBCFS, and some preliminary ones on the parties. Additional directions as needed can be issued on October 28, 2022 once there is compliance with the terms the Court intends to Order now.

E. Amicus Curiae

[171] This Court also intends to appoint amicus curiae.

[172] The considerations for appointing amicus in a family law case are set out in Morwald-Benevides v. Benevides, 2019 ONCA 1023. There, the Ontario Court of Appeal applied the principles from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 in family law. Among other considerations, the Ontario Court of Appeal set out that the appointment of amicus is “exceptional” or “rare”, courts should consider whether they can provide sufficient guidance to permit a fair and orderly trial, and they should consider alternatives to appointing amicus, such as the availability of legal aid or the Children’s Lawyer.

[173] But there are two important distinctions between the situation before the Court in Morwald-Benevides v. Benevides and this case before me. First, the Ontario Court of Appeal was considering an appeal of an order appointing two amici to assist the Court by assisting the parties present their case in a way that approximated the duties of traditional counsel. Second, the Ontario Court of Appeal was careful to restrict its discussion about the parameters of the appointment of amicus in family law cases to disputes between two private litigants. The Court did not specify how the considerations might differently apply in child protection cases, where different interests, including constitutional ones, are at stake.

[174] This Court is not appointing amicus to assist one of the litigants, like in Morwald-Benevides v. Benevides. All of the parties are represented and the child also has counsel. Nevertheless, even if the rigid criteria in Morwald-Benevides v. Benevides were applied to unique context of this child protection case, I would still find amicus to be appropriate.

[175] I have already tried to issue directions and guidance so that what is needed in this case would get done. As I have stated already in different contexts in these reasons, this Court is concerned that the trial judge will need the assistance of amicus as essential the discharge of its judicial functions. The trial judge will be required to consider and apply the aforementioned legal frameworks and the myriad of best interests’ factors to arrive at the best outcome for O. The Court must have all of the best evidence about O.’s circumstances before it to discharge the functions assigned to it under the legislation. The interaction of the new federal act with the CYFSA will be in issue. There are questions about how the VYSA provisions should be interpreted. In the current landscape of this case, this Court is very concerned that all of the remedial options that this Court is required to consider, and the evidence needed, will not be presented. And the availability of legal aid for the parents, and the presence of counsel for the Office of the Children’s Lawyer, are not adequate alternatives, given the positions being taken and the fact that the OCL’s solicitor-client relationship with O. is being undermined.

[176] The Court is also concerned that funding may be an issue laying underneath the surface. It is not a stretch to surmise that the services that Dr. Sherman recommended in an out of care scenario will be expensive. Except for the mother’s counsel, who has pointed out that the father in unable to spearhead the services the child needs and so DBCFS must do so, no one else has even broached with the Court the subject of what the services that O.’s needs will cost. Funding may very well be influencing the positions being taken.

[177] If a placement under a supervision order is considered, section 101(7)(c) of the CYFSA provides that reasonable terms and conditions of supervision shall not require a child welfare agency to provide financial assistance or purchase any goods or services. But there are also the numerous other statutory provisions that may inform whether there is a duty to pay for a service, as part of the duty to provide a service. And if a VYSA is pursued and the Court allows it, the services to be provided will be on agreement, and so payment will clearly be a consideration in whatever will be proposed. The Court may very well require submissions on these important questions too, if payment ends up being an impediment or motivating factor driving the positions.

[178] For those reasons, the Court is appointing amicus. In short, it is doing so to ensure that the Court gets the evidence and submissions it needs to discharge its judicial functions in this case.

[179] Normally, notice to the Attorney General for Ontario is required before the Court appoints amicus. Because of the delay, rather than directing another appearance on this issue, I am directing that a copy of this decision is to be sent to Stan Jenkins at Legal Aid Ontario and to counsel for the Attorney General for Ontario. I ask Mr. Jenkins to provide me by email c/o the judicial assistant karen.hamilton@ontario.ca with some names of lawyers who would be willing to act as amicus and I will select someone. Mr. Jenkins has permission to provide a copy of this decision to potential amicus for their review.

[180] Once selected, I ask the person to enter into negotiations with the Attorney General respecting the payment of his or her fees, which I understand would normally be paid at legal aid rates. If there is any dispute from the Attorney General about this appointment, I ask that an effort be made to try to sort out any issues respecting the appointment consensually and as soon as possible, in light of the timelines being imposed, below, and the Court’s comments about delay.

[181] Subject to any further submissions about amicus’ role, which may be raised on October 28, 2022, I would think amicus’ role would be to:

(a) source and ensure that there is evidence about available services for this child;

(b) ensure that all of the evidence about this child’s best interests is put before the Court; and

(c) make submissions about all the available statutory pathways and options for this child, including considerations respecting the VYSA, the interpretation of the federal act and funding.

[182] To discharge his or her role, amicus will be entitled to disclosure, to bring any motions, to call evidence at any hearing and to conduct cross-examinations.

[183] Amicus is to be given a copy of the Continuing Record, this Court’s Endorsements and Dr. Sherman’s assessment report. The Court requests that once appointed, amicus immediately begin to source professionals, including their consent, qualifications, details about wait lists and cost. The Court requests that amicus circulate a list of available service providers amongst the parties as soon as possible. This does not relieve DBCFS of its obligation to do the same.

PART IV: ORDER

[184] I make the following Orders:

(a) This matter shall return before me on October 28, 2022 at 9:30 AM, now to proceed in person, for a Trial Scheduling Conference. Unless the child’s counsel has a concern about harm of the kind in section 79(4) of the CYFSA, the child should be brought before the Court. Any future appearances beyond the next date will also be in person, unless this Court directs otherwise;

(b) I am directing that in addition to the parties, a copy of this decision is to be sent to Stan Jenkins at Legal Aid Ontario and to counsel for the Attorney General for Ontario. The Court requests that Mr. Jenkins provide the Court by email c/o the judicial assistant karen.hamilton@ontario.ca with some names of lawyers who would be willing to act as amicus, and I will select someone. Mr. Jenkins has permission to provide a copy of this decision to potential amicus for their review;

(c) The Court requests that amicus, once selected, have any necessary discussions with counsel for the Attorney General for Ontario, and then submit a draft Order for the Court’s signature containing the terms of the appointment, specified above. Only if it is necessary, there may need to be a further attendance before me to deal with disputes, but that cannot happen until September, and if it ends up being needed, it risks further delay;

(d) Once the terms of the appointment are resolved, then within 7 days of DBCFS being given notice of that by the amicus appointed, DBCFS shall provide a complete copy of the Continuing Record, all Endorsements and Orders and a copy of Dr. Sherman’s assessment report to amicus;

(e) The Court requests that amicus immediately begin to source professionals, including their consents to act and qualifications, and details about wait lists and cost. The Court requests that amicus circulate a plan amongst the parties as soon as possible;

(f) On the later of 7 days after amicus appointment is resolved, or August 31, 2022, DBCFS shall provide comprehensive file disclosure to amicus;

(g) Because DBCFS failed to pursue the opportunities afforded to it for hearings on withdrawal or the protection finding, and because DBCFS failed to file the required TSEF on July 22, 2022, the Court is imposing a series of trial directions on DBCFS. To ensure advance preparation by all, the Court is also imposing some directions on the parties;

(h) This matter shall be placed on the trial list during the November 2022 sittings. The issues for trial shall be whether the remaining statutory findings should be made, whether a protection finding and disposition order should be made, and/or whether permission to withdraw should instead be granted;

(i) I recommend that within 7 days, DBCFS amend the protection application to claim a finding under section 74(2)(j). DBCFS may also claim any other relief that it sees fit, including the request to withdraw the protection application;

(j) If DBCFS is unwilling to amend to claim the finding, and given that the father’s position in his Answer and Plan of Care is that there is no factual or legal basis for a finding, then the mother should claim it in Part 5 of an Amended Answer and Plan of Care. She will have 7 days to do so after receipt of any amended pleading from DBCFS, or if none is delivered, then 14 days from the date of this ruling;

(k) DBCFS shall serve and file the trial record by September 30, 2022. Its trial record shall contain its Plan of Care and any draft VYSA;

(l) DBCFS shall serve and file a witness list by September 30, 2022. DBCFS’ witness list is to include Dr. Jeff Sherman;

(m) Any employees of DBCFS that it includes on its witness list shall provide their evidence in chief by way of affidavit. Affidavits shall only contain trial worthy evidence. The Court will have a discussion with the parties on October 28, 2022 about whether there should be some examination in chief in addition;

(n) DBCFS’ affidavit evidence shall be served and filed by September 30, 2022. Without limiting any additional information it sees fit to provide, DBCFS’ evidence is to include a complete history of this matter, details of all of the child’s placements and the reasons those placements changed, details of DBCFS’ interactions with the parents, information about the parents’ ability to care for the child, a complete account of the child’s education and any current issues there, a complete account of all interactions with the police and the youth criminal justice system, a complete account of the services it has provided to this family and to this child, a complete account of its efforts to source services, including the dates of any inquiries, responses received, consents from any service providers to act, wait lists and costs, evidence about which, if any, of Dr. Sherman’s recommendations have been implemented with all relevant details, its position as to the payment for any services, and a draft copy of any VYSA;

(o) If it has not done so already, DBCFS shall obtain any relevant documentation from any facilities in which the child has resided, any relevant health records, educational records and records pertaining to O.’s involvement with the police or the youth criminal justice system. If necessary, disclosure may be pursued by way of 14B Motion;

(p) For the purposes of complying with these provisions, DBCFS shall consider whether it needs to bring an application before the Youth Court under section 119 of the Youth Criminal Justice Act, and if necessary, it shall do so in a timely fashion so as to not delay the trial;

(q) DBCFS’ evidence for trial shall be compiled in briefs that are tabbed and page numbered. DBCFS shall ensure that it serves any required Notices under the Evidence Act as required by the statute;

(r) The Court reminds the parties that 2 hard copies of the trial record and any evidence briefs, in addition to electronic filings, are required for trial;

(s) On or before October 17, 2022, the parents and the OCL shall each serve and file his and her witness lists;

(t) On or before October 24, 2022, amicus shall serve and file a brief containing the services that he or she has sourced;

(u) On October 28, 2022, the Court will have a discussion about the parties about time estimates for the evidence, the method of presentation of the case, including how the parents and the OCL will present evidence, whether the parties or amicus are of the view that there is missing documentation, whether amicus intends to call any evidence, and any other directions that may be needed for the conduct of the trial; and

(v) If DBCFS’ material includes a draft VYSA and if there is time after completion of the Trial Scheduling Conference, the Court is prepared to hold settlement discussions about it or any other matter.

Justice Alex Finlayson

Released: August 5, 2022

COURT FILE NO.: FC-20-20-0000

DATE: 20220805

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dnaagdawenmag Binnoojiiyag Child & Family Services

Applicant

• and –

L.S.K.

Respondent mother

• and –

B.C.F.

Respondent father

REASONS FOR DECISION

Justice Alex Finlayson

Released: August 5, 2022

[^1]: The Final Order dated January 20, 2014 was not attached to the father’s affidavit.

[^2]: The father did not explain when the child was at Enterphase, although I have been told during case management that there is a chart in existence documenting numerous changes in O.’s placements.

[^3]: See for example the affidavit of Victoria Heard, sworn February 22, 2021 ¶ 6.

[^4]: Success is not defined.

[^5]: Section 74(2)(j) is engaged where the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide treatment or access to treatment, or where the child is incapable of consenting to the treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to the treatment to remedy or alleviate the condition.

Despite Scott J.’s statement about the appropriateness of this finding, DBCFS had not claimed this ground in its Amended Amended Application, it has not amended the claim again to do so, and the finding has not been resolved.

[^6]: The eventual assessment report released in January, 2022 (described further below) does not contain assessment of the parents.