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.

87(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-18-CP35-4

DATE: 2022/09/27

ONTARIO

SUPERIOR COURT OF JUSTICE

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

AND IN THE MATTER OF G.H. (DOB: April 7, 2018)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

J.H. (Mother)

Tara MacDougall, for the Applicant

Kristen Robins, for the Respondent (Mother)

B.K. (Father)

Respondent (Father), Self-Represented (In default)

C.L. (Kin)

Respondents

Alexandra Kirschbaum, for the Respondent (Non-Relative)

HEARD: September 15, 2022

decision

Maceachern j.

[1] This is my decision on the motion argued on September 15, 2022.

[2] This motion is brought within the Society’s Amended Protection Application seeking a finding that the child is in need of protection and a six month supervision order to the mother.

[3] I am granting the Society’s motion to place the child in the temporary care of his mother, J.H., subject to the supervision of the Society, pending disposition of this Application, on the terms and conditions set out in the order signed today. I make this order because of the following.

[4] Ms. H., the child’s mother, consents to the order.

[5] Mr. K., the child’s father, is a party to this proceeding but has not filed an Answer. He is in default[^1].

[6] Ms. L. is a party to this proceeding as kin. She has filed an Answer and opposes the relief sought by the Society.

[7] A finding was made in 2018 that the child is a First Nations child for the purpose of s.90(2) of the Child, Youth and Family Services Act, S.O. 2017, c.14, ( CYFSA), but that the child is not connected to a First Nations community. None of the parties’ challenge this finding and for the purpose of this motion, I accept this finding. I note that I have limited evidence before me regarding the child’s identity as a First Nations child, other than that the finding was made on the basis of the father identifying as Caucasian Canadian with some Cherokee heritage. The mother identifies as Caucasian. In accepting this previous finding for the purpose of the motion today, I note that the CYFSA provisions regarding First Nations, Metis and Inuit children are remedial in nature, based on self-identification, and the provisions relating to whether a child is determined to be First Nations, Metis or Inuit have been read expansively, although there still must be some evidence to satisfy the provisions.

[8] All parties also accept that, for the purpose of this motion, The Federal Legislation – an Act Respecting First Nations Inuit and Metis children, youth and families, S.C. 2019, c.24 (“The Federal Act”) - also applies, and that, again for the purpose of this motion, the child is an Indigenous child under this legislation. I note here that the definition of Indigenous child for the purpose of the Federal Act is tied to the meaning assigned to Aboriginal Peoples in subsection 35(2) of the Constitution Act, 1982, which is a different test that what is defined under the CYFSA. Again, though, all parties on this motion accept that for the purpose of this motion, the child is an Indigenous child under the Federal Act.

[9] Ms. L. is a party to this proceeding because of s.13(2) of the Federal Act, as she was a care provider to the child. Ms. L. is not related to the child but was a close friend of the mother. The child, now age 4, has been in Ms. L.’s care for approximately half of his life.

The Federal Act

a) The Federal Act is paramount to the CYFSA, although both Acts operate. Where they conflict, the federal legislation prevails.

b) The Federal Act requires that the best interests of the child be given primary consideration, and that, at every stage of the process, the factors set out at s.10(3) be considered, with primary consideration to the child’s physical, emotional and psychological safety, security and well-being, as well as the importance, for the child, of having an ongoing relationship with his family and with the Indigenous group, community or people to which he belongs and of preserving the child’s connection to his culture.

c) The Federal Act also provides a priority of placement for an Indigenous child under s.16, to the extent that is consistent with the best interests of the child. Under this priority of placement, again to the extent consistent with the child’s best interest, the mother has priority as the child’s parent, under s.16(1)(a). A placement with the mother, to the extent that it is consistent with the child’s best interests, has priority to a placement with Ms. L. Ms. L. falls under the last identified priority category s.16(1)(e), as “any other adult”.

d) The Federal Act also requires that there must be a reassessment conducted on an ongoing basis, on whether it is appropriate to place a child with a parent, if the child does not reside with the parent.

[10] The Society submits that, as is their duty, they have continued to reassess whether it is appropriate to place the child with the mother and have determined, at this point, that it is, subject to the terms of a temporary supervision order that mitigate the concerns. The mother agrees with these submissions.

[11] I accept the Society’s position and make the order that they are seeking. The evidence before me on this motion supports that the mother has made significant progress in addressing the child protection concerns and that any remaining concerns are addressed in by the terms and conditions of the supervision order, and that a placement with the mother, at this time, is consistent with the child’s best interests.

[12] There was some argument on the motion regarding the application of s.94(4) and (9) of the CYFSA. To the extent that these sections apply, they cannot prevail over the principles set out in the federal legislation, which is paramount, nor dilute the purposeful protections under that Act. At most, in my view, they can inform the application of the best interest analysis under the federal legislation, but they cannot defeat it.

[13] For this reason, I do not believe that I have to make a finding regarding whether or not the child should be considered to be in the mother’s care, or Ms. L.’s care, at the time he was brought into care, or whether an analysis under s.94(2) and (4) is appropriate (rather than s.94(9)) because of the length of time that has passed under the September 9, 2021 without prejudice placement to Ms. L.. I have, however, considered the factors raised in these sections in the best interest’s analysis below.

[14] The Federal Act requires that the court consider all factors related to the circumstances of the child in determining the best interest of the Indigenous child, including specific identified factors. The CYFSA also list best interest factors. The CYFSA factors are consistent with The Federal Act and fall into “all factors related to the circumstances of the child” which must be considered under The Federal Act. I have considered all of these factors. In particular:

a) The child has been identified as First Nations through his father’s identification as having Cherokee ancestry. His father is not involved in this proceeding, nor does he have contact with the child. The mother is not First Nations, nor is Ms. L. The mother’s evidence is that she supports the child connecting with his First Nations heritage, and she has taken some steps to do so, although only in a general way and not specifically to try to explore the father’s heritage more fully and seek possible connections with a First Nation community through the father’s heritage.

b) The child has some special needs but the evidence before me supports that the child’s needs do not require significant intervention and that the mother is currently able to meet those needs.

c) The child benefits from stability. The child is 4 years old and has spent approximately 2 years of his life with Ms. L., although with the involvement of the mother, and one year of his life with the mother. The mother’s parenting time has expanded since the spring of 2022, with Ms. L.’s consent. At present, the child spends several overnights per week with his mother and attends school in his mother’s area, and the rest of the time with Ms. L.

d) Given the child’s age, I do not have specific evidence regarding his views and preferences. The evidence before me supports that he is doing well in Ms. L.’s care and that access with his mother has also been going well. I accept that he has a positive bond with both parties.

e) The evidence supports that the risk of harm to the child has been mitigated by steps taken by the mother. The mother has demonstrated that she is able to meet the child’s physical and emotional needs. Her access, which is currently extensive, is going well. In particular, the mother has been mentally healthy since April of 2022, with increased home stability. There have not been reports of substance abuse. The mother has demonstrated an ability to safely care for the child for significant periods, including bringing him to school, playgroups, and other care. These changes relate directly to the risks that gave rise to the Society’s intervention. The terms and conditions in the order signed today address any remaining risk. I find that the changes made by the mother are materially significant to the child protection risk, and that there has been a material change since the temporary without prejudice order in September of 2021. The mother has also, in the past, demonstrated sound judgment by arranging for safe caregivers for the child when she has been unable to do so herself.

f) I also accept that the child’s needs have been met in the care of Ms. L.

g) I have considered that the trial in this matter is scheduled to begin in October of 2022, but trial dates extend through December 2022. The parties anticipate further delays before a decision is made. On the evidence before me, I do not find that it is in the child’s best interests to wait until the trial before considering a change in his placement. I do not see the evidence as so contentious on disputed material facts that a trial is necessary before making this change. This is heightened by the obligations under the Federal Act to continuously reassess whether it is appropriate to place the child with the parent, and to make all decisions regarding the child’s placement in accordance with their best interests.

h) I have considered the evidence put forward by Ms. L. that there remain significant concerns that the child is at risk of harm in the mother’s care. Ms. L.’s position is that the mother’s changes have only been made recently (since the spring of 2022[^2]) and that her history raises concerns about whether these improvements will be sustained. But Ms. L. has in the past supported that it is in the child’s best interests to be reintegrated with the mother, as she has consented to the expansion of the mother’s parenting time. I do not agree that the concerns raised by Ms. L. rise to the level required to displace my finding that it is in the child’s best interests to return to the mother’s care at this time, particularly given the purpose of the Federal Act, and the CYFSA.

i) One of the significant factors underlying this motion is that there has been conflict between the mother and Ms. L. which is impacting on the child. This factor, in my view, supports the order being made as signed today to attempt to minimize the conflict on an ongoing basis. I do not find that centering or extending the locus of control over the child with Ms. L. on a temporary basis is the best way to minimize this conflict, or in the child’s best interests, again given the priorities of the Federal Act, and the CYFSA.

[15] Ms. L. argues in the alternative that if the child is returned to the mother’s care on a temporary supervision order, her access with the child be extended. She seeks substantially more time with the child than the Society’s proposes, which is initially alternate weekends and then one weekend a month. In my view, to support the return of the child to the mother’s care, reduce conflict, the priority of placement to the child’s parent, and consistent with the child’s best interests, I am ordering the access as proposed by the Society, on a temporary basis, pending final disposition.

[16] Accordingly, I make the order as signed today.

MacEachern J.

Released: September 27, 2022

COURT FILE NO.: FC-18-CP35-4

DATE: 2022/09/27

ONTARIO

SUPERIOR COURT OF JUSTICE

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

AND IN THE MATTER OF G.H. (DOB: April 7, 2018)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

J.H. (Mother)

B.K. (Father)

C.L. (Kin)

Respondents

decision

MacEachern J.

Released: September 27, 2022

[^1]: Endorsement of MacEachern J. Jan.20, 2022 [^2]: The mother’s evidence is that her mental health has been stable since January of 2022