COURT FILE NO.: FC310/19-01

DATE: November 17, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

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

BETWEEN:

Children’s Aid Society of London and Middlesex

Catherine Dyck for the Society

Applicant

• and -

KR

Bayly Guslits for KR

JR

SC

Patricia Wallace, Band Chief, Madawaska Maliseet First Nation

RL

DB

KRh

Kimberly L. Doucett for KRh

Respondents

Paul Van Meppelen, for the Children’s Lawyer

HEARD: September 21, 22, 23, 28, 29, 2022 and October 3, 4, 11, 2022

TOBIN J.

The Parties and their Respective Positions

[1] The Children’s Aid Society of London and Middlesex (the “Society”) brings this amended child protection application requesting that three First Nations children be found to be in need of protection. The disposition order it seeks is that of extended society care with access to the children’s mother and father.

[2] The Respondent KR (the “mother”) is the mother of the three children. She is a member of the Madawaska Maliseet First Nation. During the hearing, the mother requested, and on consent, was able to have two support persons attend with her in the courtroom. Both persons later testified on her behalf. The mother asks that the children be transitioned from foster care to her care on a graduated basis. However, if the children are not returned to her care, she asks for expansive access with them.

[3] The Respondent JR (the “father”) is the father of the three children. He is incarcerated and will be for a long time, having been convicted of second-degree murder. Service of the amended application upon the father was effected on February 13, 2020 at Millhaven Institution. He did not file an answer although he did serve one on the Society. The father supports the return of the children to the mother. He did not participate in this hearing.

[4] The three children are First Nations children. Their Band is that of their mother, Madawaska Maliseet First Nation, which is located in New Brunswick. The Band chose not to participate in this hearing. In a letter from a representative of the Band, its position was stated to be:

1. The Court should avoid any further delays in the “best interest” of the children involved in this case.

2. The First Nation does not endorse any movement towards any form of adoption of these children.[^1]

[5] The Respondents SC, the father of the children’s older sibling, N, and DB, a former foster parent of the three children, did not participate in this case. The Respondent RL attended as a support and witness for the mother. She had previously been granted custody of the children’s sibling, N.

[6] The Respondent KRh is the foster parent of the children (the “foster parent”). She participated in the hearing with the assistance of counsel. Her participation was pursuant to section 79(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”)[^2]. The foster parent supports the relief sought by the Society.

Preliminary Matters

Evidence

[7] The Society’s case consisted, in part, of evidence adduced by way of affidavit from the child protection workers who had responsibility for this family. This is an effective way to save trial time.

[8] The affidavits of two of the child protection workers who had carriage for the Society were lengthy. Amanda Salter’s affidavit was 258 paragraphs over 43 pages. Lara Downing’s affidavit was 286 paragraphs also over 43 pages. These affidavits were organized as a chronology of events and appeared to be a transcription of the workers’ notes. With respect, the affidavits lacked focus and a thematic organization: see Catholic Children’s Aid Society of Toronto v S. (S.), 2008 ONCJ 274, at para. 15. It would be more helpful to have the affidavits organized in relation to the issues raised in the case.

[9] Both affidavits contained statements made by third parties who were not called as witnesses. There was no attempt in the affidavits to explain why the obvious hearsay evidence was included in the affidavits, nor the basis upon which this type of evidence could be considered as admissible.

[10] While counsel are to be commended for their efforts to save trial time, they are urged to vet these affidavits to ensure that they contain only trial-worthy evidence and are organized in a more helpful fashion.

[11] I do not rely upon the hearsay evidence contained in these affidavits for the truth of the statements made.

Blended hearing

[12] Section 93(2) of the CYFSA provides that evidence relating only to disposition of the matter is not to be considered in determining if a child is in need of protection.

[13] This hearing was conducted as a blended proceeding. I did not consider evidence that went solely to disposition in determining if the children were children in need of protection: see Children’s Aid Society of Algoma v. A. (B.), 2001 CarswellOnt 2345, at para. 21.

The Issues

[14] The issues to be determined in this case are as follows:

1. What are the statutory findings?

2. Are the children in need of protection and, if so, upon what basis?

3. If the children are in need of protection, what disposition order is in their best interests?

4. If the children are to remain in the care of the Society, what access order should be made in the best interests of the children?

Statutory Findings

[15] I make the following determinations as required under s. 90(2) of the CYFSA:

1. Names and ages of the children:

(a) C-RR, born August, (“C-R”);

(b) C-JR, born August, (“C-J”); and,

(c) K-JR, born September, (“K”).

2. All three children are First Nations children, and their Band is Madawaska Maliseet First Nation.

3. All three children were brought to a place of safety from within the County of Middlesex.

Federal child protection legislation

[16] As the children are First Nations children, the Federal child protection legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“the Federal Act”), must be considered. The Federal Act came into force on January 1, 2020. This legislation was enacted in part to ensure courts and child protection agencies follow minimum standards with respect to providing services to, or making decisions about, Indigenous children and to supplement the provisions of the provincial Act: Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251, at para. 30, and Children's Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744, at paras. 62 – 68.

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

Facts

[18] For the eighth time since December 2013, the Society became involved with the mother, in November 2018. A teacher had contacted the Society.

[19] In November 2018, the three children and their older sibling, N, born November, were living with the mother.

The children are brought into care

[20] On December 7, 2018, the mother was arrested and charged with possession of drugs for the purpose of trafficking. She was released on a promise to appear.[^3]

[21] When the Society worker spoke to the mother later that day, the mother acknowledged that she sold drugs to “help her get by”. It allowed her to be home during the day with the children and go out at night when N was home to look after the children.

[22] The Society did not attempt to remove the children from the mother’s care at that time.

[23] However, the Society remained involved with the children. In January 2019, the worker helped the mother on a number of days by driving N to school in the morning. Also in January 2019, the mother left the twins with her friend Mo, and Mo’s mother, Li, for extended periods.

[24] On February 26, 2019, the mother was evicted from the premises she was subletting. When evicted, she learned that the tenant to whom she was paying rent was not paying the landlord. Following her eviction, the twins stayed with Mo and Li. The mother told the worker that she, together with N and K, would go to a motel.

[25] In early March 2019, the Society worker had trouble maintaining contact with the mother. The worker attempted to locate N and the twins. She spoke with a neighbour of the mother’s and with Mo. The worker was not able to locate the mother through these persons.

[26] On March 12, 2019, the worker learned that the twins were again in the care of Mo and Li.

[27] On March 14, 2019, the worker learned that Li and Mo could no longer care for the twins but that they could stay a little longer – one more night. On that same day, the worker also learned that the mother, together with N and K, were at Mo and Li’s home. As soon as the worker found this out, she went to that home and met with the mother.

[28] The mother acknowledged to the worker that she and the children had been transient and that “it was not okay that they move around so much”.

[29] The same day that the mother acknowledged that she had been transient, she also acknowledged that she had used drugs and had left the twins for extended periods.[^4]

[30] The mother’s plan that day was to try and secure a spot at Zhaawanong[^5] for the next day.

[31] The plan agreed to by the Society worker and mother was that the twins would spend that night with Mo and Li. The mother, N and K would stay with the mother’s boyfriend, JH.

[32] The next day, March 15, 2022, the mother did not follow up with the worker as expected. However, later that day, the mother did text the worker, advising that she would be “fine to go to [Zhaawanong] for 6:00 p.m.” The problem with the mother’s plan was that the Society worker had no independent confirmation that there was space at the shelter available for the mother and the children. As well, the Society worker had no confirmation or confidence that the mother would in fact follow up as she said she would. If the mother did not secure a place at the shelter that evening, this would leave the family homeless and with no plan for the children to stay with appropriate caregivers.

[33] Based on these escalating concerns, the Society sought and was granted a warrant to remove the children from the mother’s care. At 5:50 p.m. that day, the mother arrived with N and K at Mo and Li’s home. All four children were then taken into care.

[34] When the children were brought into care, the father was in custody at the Elgin Middlesex Detention Centre on serious criminal charges. As set out above, he was subsequently convicted of second-degree murder and is now incarcerated at Millhaven Institution.

[35] On March 19, 2019, Henderson J. granted a temporary without prejudice order placing the children in the care of the Society and granting the mother reasonable interim access. The Society was granted discretion to determine the level, if any, of supervision during access.

[36] The order of Henderson J. was not varied with respect to the twins and K throughout the time this case has been outstanding. The mother wanted to have expanded access, but this was never agreed to by the Society nor ordered by the Court.

[37] The children have been in society care for over three and a half years.

[38] The order was changed with respect to N. On June 13, 2019, N was placed in the temporary care and custody of RL as a kinship caregiver. On October 22, 2020, N was found to be in need of protection, and the kinship caregiver was granted custody of the child pursuant to section 102 of the CYFSA.

[39] Since April 2021, N has been living with the mother, with the consent of RL and without the benefit of a court order. The Society has not taken any action to remove her from the mother’s care.

After the children were brought into care

Housing

[40] After the children were brought into care, the mother experienced periods of housing instability. This included the most recent period from January 2022 until July 2022, when she was without a residence.

[41] While homeless, the mother maintained a relationship with JH. The mother and JH had an on-and-off relationship. She would rely on him for a place to stay on occasion. He was a drug user.

[42] JH is the biological father of the mother’s youngest child, KH, born April. KH remains in the mother’s care. The Society has not tried to remove him from her care.

[43] There is no evidence that the mother and JH remain in a relationship today. He appears to have no interest in a relationship with KH.

[44] In July 2022, the mother secured a two-bedroom apartment for herself, N, and KH.

Criminal activity

[45] The mother was arrested again in October 2019 for possession of drugs and other offences. She was with JH when arrested. The mother failed to appreciate or minimized that there was risk to the children being in her care while she was a drug dealer. This criminal case was resolved with the mother being referred to a diversion program.

Drug use

[46] The mother acknowledged to the Society worker that she was using a number of different drugs including methamphetamine, cocaine, ecstasy, and marijuana. She said she would use methamphetamines from 10:00 a.m. or noon until 4:00 a.m. the next day.

[47] The mother had a number of drug use relapses – methamphetamine – between March 2019 and August 2020. The latter date is when she learned she was pregnant with KH. There is no evidence that she has used illegal drugs since finding out she was pregnant. The mother did not engage in any drug relapse prevention programs except for a few meetings of Narcotics Anonymous and two meetings through the John Howard Society.

Are The Children in Need of Protection?

Position of the parties

[48] The Society, joined by the Children’s Lawyer and foster parent, ask that the children be found to be children in need of protection under section 74(2)(b)(i) and (ii) of the CYFSA.

[49] This section involves a risk that a child is likely to suffer physical harm. The likelihood of risk can arise from:

1. physical harm from the person having charge of the child;

2. physical harm as a result of the failure of the person having charge to adequately care, provide, supervise or protect the child; or,

3. physical harm as a result of a pattern of neglect in caring for, providing for, supervising or protecting the child.

[50] Counsel for the children also asks that the children be found to be in need of protection under section 74(2)(h) of the CYFSA. This clause involves a risk that a child is likely to suffer emotional harm demonstrated by anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development. It looks to the future. In addition, there must be reasonable grounds to believe that serious risk of harm will result from − in this case − the mother’s actions, inaction, or neglect: see CAS of Algoma v. A.B., 2018 ONCJ 831, at paras. 13-18 and Chapman v. York Regional Children’s Aid Society, 2021 ONSC 2620, at para. 25.

[51] The mother submits that the Court should not find that the children are in need of protection. She argues that as two children are in her care without Society involvement, there is now no basis for finding the children to be in need of protection. The additional facts that she relies upon in support of her position is that she now has an appropriate home, is drug-free, is no longer involved with an inappropriate partner, no longer leaves the children with inappropriate caregivers, and is no longer engaging in criminal behaviour.

Legal considerations and discussion

Onus

[52] The onus is on the Society to establish on the balance of probabilities that the children are at risk of physical and, as requested by the Children’s Lawyer, emotional harm.

[53] However, the Society need not prove intention to cause physical harm as a prerequisite to a finding under s. 74(2)(b). Risk of physical harm can be caused by neglect or error in judgment: Children’s Aid Society of Niagara Region v. P. (T.), 2003 CanLII 2397 (ON SC), 2003 CarswellOnt 403 (Ont. S.C.), at para. 65.

[54] What the Court must consider in deciding whether a child should be found to be a child in need of protection is whether the care given, or likely to be given, to that child fell, or will fall, below minimally acceptable standards. If the care provided is below (i) the minimum standard Society will tolerate, or (ii) that to which children are entitled, the state is justified in intervening: see D. (M.G.L.), Re.1984 CarswellOnt 270, (Ont. Div. Ct.) at para. 32.

Timing of the finding

[55] In determining whether a child is in need of protection, the relevant time period for facts capable of consideration is flexible. The relevant facts can take place at the start of the case, the hearing date, or some other date depending on the individual circumstances of the case.

[56] In Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, at para. 94, Horkins J. observed:

[94] In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.

[57] See also: Children’s Aid Society of the Regional Municipality of Waterloo v. P.W. and M.T., 2022 ONSC 4340, at paras. 75, 76.

[58] The case now before the Court has been ongoing for a considerable period without a finding that the children are children in need of protection. While this case has been ongoing, some of the factors which initially gave rise to the Society’s claim that the children were at risk of physical harm have been addressed by the mother. Concerns related to her drug use, criminal activity, reliance on inappropriate caregivers, and transience have abated. However, as was stated by Zisman J. in Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, at para. 129:

“… Even if the need for protection at the initial stage was found to have been resolved that does not change the court’s ability to make a finding of need for protection.”

Risk of physical harm

[59] In this case, I find that the children are at risk of physical harm and therefore the children are in need of protection based on the following.

Unstable housing

[60] The mother had considerable periods of unstable housing both before and after the children were brought into care. She was not able to ensure the children had a stable, safe and secure residence. This pattern persisted over a number of years up to, and including, July 2022. She has been in her current home for a number of months, but the evidence shows the mother has been in this situation before, where she had a home and then lost it.

[61] The mother continues to work with a housing support worker. She is provided with a subsidy of $400 per month to meet her ongoing rent, which rent the mother said was “a lot”. This financial support will last until July 2023. This struggle with affordability continues even though the mother received $125,000 in June 2021 and receives $4,000 quarterly from her Band.

[62] There remains a continued risk the mother will not be able to maintain her residence over the long term.

Drug use

[63] The mother was, as she described, “in active addiction” while this case has been ongoing. She testified, and I accept, that she has not been using illegal drugs since she found out she was pregnant with her youngest child in August 2020. There was no evidence presented that this is not the case.

[64] However, I note that the mother’s evidence, which I also accept, is that she did not seek drug treatment. She overcame her addiction by doing it on her own over an approximately two-week period while she did not have the children in her care.

[65] The mother has not participated in a professionally provided drug relapse prevention program. This gives rise to there being a risk that without having a drug relapse prevention plan in place she will relapse.

Failure to supervise and neglect

[66] The children’s care before they were removed was described by N. The hearsay statements she made[^6] were admitted in evidence for the truth of their contents, or as evidence of her state of mind. They met the test for threshold reliability. I also accept these statements as credible and reliable and give them great weight. Their probative value is significant and outweighs their prejudicial effect. The worker who recorded the questions and answers was not cross-examined on them. The worker was a professional with no motive to lie being established. The child who made the statements was described as intelligent and mature.

[67] The mother denied some of N’s evidence. In my assessment of the evidence, I accept the child’s evidence when it contradicts the evidence of the mother for the reasons that follow.

[68] N described a chaotic home life. The mother left the children alone “a lot and it was hard. It felt like I was their mom and mom didn’t want to be with them.” On occasion, the mother would leave the children with the babysitter who “was not nice and would yell at us, threaten to hit us, and sometimes leave us alone.” The babysitter was Mo, who had drug use issues.

[69] N also spoke about JH. “He used to yell a lot and the neighbours would come over and check on us. JH and my mom would fight and break up and he would be gone, and then he would be back.” She also told the worker, “I hate [JH]… He does drugs… He hit C-J a lot and would yell… He hit our mom in front of us… Once we had to sleep in the van…” when he kicked us out.

[70] When the mother was at home, N described that there were random men in the home and “I saw them doing drugs and one time, a man threw a cigarette at me.”

[71] The mother denies that she left the children for extended periods or that there was physical abuse, or that they were kicked out. She claims N made these statements because she was angry the mother was having another baby and that JH was the father.

[72] N did not like JH. That may be a motivation for her to fabricate stories about her mother in the moment. However, the mother’s and JH’s interactions admitted to by the mother – their having an on-and-off relationship; being allowed to stay with him for brief periods when needed and then having to leave; and JH’s drug use – is consistent with the child’s experiences. N’s evidence accords more strongly with the totality of the evidence than the mother’s does on these issues.

[73] I also agree with Society’s counsel that N’s fear for the safety of the baby and the mother gives context to the child’s statements. It is more likely she was trying to help her mother, not hurt her.

[74] In her evidence, the mother did not credibly contradict the child’s statements regarding the inadequate care provided by Mo, drug use in her home, the presence of random men, or N being exposed to the mother engaging in sexual activity. The mother knew about the Society’s concerns regarding Mo and JH’s drug use and trafficking. Despite these concerns, the mother continued to expose the children to these people.

Summary − The children are at risk of physical harm

[75] In summary, the children are found to be in need of protection due to risk of physical harm resulting from both the mother’s failure to protect, supervise or care for, and her pattern of neglect in, caring for, supervising or protecting the children. She exposed the children to inappropriate persons, caregivers, and experiences. She did not provide consistently stable housing. She engaged in criminal behaviour and drug use, which adversely affected her ability to care for the children. The possibility of unstable housing and a drug use relapse remain real concerns. In the context of the mother’s history, the Society has met its onus in establishing, on the balance of probabilities, that not enough time has elapsed to demonstrate that these risks have been sufficiently overcome.

Risk of emotional harm

Risk not pleaded

[76] Children’s counsel asks that a finding under risk of emotional harm be made though it was not pleaded by the Society.

[77] The Court can make a finding even if not pleaded. The exercise of the Court’s discretion to do so requires that it must be justified on the evidence, the parent had to have had disclosure of the relevant evidence, the parent was not caught by surprise, and the parent had the opportunity to test the evidence: see Durham Children’s Aid Society v. R.S., [2005] O.J. No. 570 (Ont. S.C.), at para. 24.

[78] Children’s counsel submits that with respect to these three children, all the elements needed to have the Court exercise its discretion to make a finding under s. 74(2)(h) are present. He argues that the evidence supports this finding; the mother had disclosure of the evidence from the Society and should not have been taken by surprise. He also asserts that the witnesses who offered this evidence were before the Court and could be cross-examined. I agree. It is appropriate to consider whether the children are in need of protection on this basis.

Emotional harm demonstrated

[79] The evidence in this case is that the children have behavioural and emotional regulation challenges. The foster mother described them as having “big emotions”.

[80] The children’s therapist described their behaviour.

[81] The children received therapy from Alicia Farr, a social worker. Following a voir dire Ms. Farr was qualified to give opinion evidence, as a participant expert, in the area of therapeutic treatment for trauma and loss.

[82] Ms. Farr testified that C-R has limited ability to express her emotions. The therapist also stated that the child’s limited emotional expression was typical of children who have learned that expressing emotion is not safe, or that a caregiver will not respond to their needs. The child, according to Ms. Farr, is delayed in her emotional literacy.

[83] Ms. Farr testified that C-J was two years behind in his feelings literacy.

[84] Regarding K, Ms. Farr gave evidence that she had difficulty expressing her emotions and was emotionally delayed.

[85] I accept Ms. Farr’s unchallenged evidence regarding the described behaviour and delays.

[86] The behaviour as described was also observed in the children by the foster mother.

[87] Counsel has established that there is risk that the children will continue to suffer emotional harm as described in the legislation by reason of delayed development.

Resulting from mother’s actions

[88] Children’s counsel asked that the Court find that the children’s respective emotional problems are directly linked to their experiences while in their mother’s care. He submits that these are the same experiences that give rise to the risk of physical harm. He argues that these experiences and the children’s respective ongoing high needs and requirement of long-term services support a finding under s. 74(2)(h).

[89] Though not a prerequisite to making a finding under s.74(2)(h), there is no expert evidence that connects the mother’s likely actions or inaction to the likelihood of the risk to the children of their suffering ongoing emotional harm. Ms. Farr, as a social worker, was not qualified to diagnose the children as having attachment disorders. She was not able to identify the source of their respective injuries. It was not part of her responsibility or professional purview to undertake a parenting assessment. Her opinion was limited to treating the children for attachment injuries.

[90] In summary, more cogent evidence than was provided in this case is required to connect the likelihood of risk of the children’s emotional harm to the mother’s actions as contemplated in s. 74(2)(h). Therefore, I will not make a s. 74(2)(h) finding as asked by Children’s counsel.

Emotional harm if the children are removed from their foster parent

[91] Children’s counsel also submitted that the children could be found to be in need of protection on the basis of potential emotional harm if removed from their long-term caregiver, the foster mother. He relies upon Catholic Children’s Aid Society of Metropolitan Toronto and M.(C.), 1994 CanLII 83 (SCC), [1994] 2 SCR 165. This case recognized that the need for continued protection may arise from the existence or absence of circumstances that triggered the first order for protection, or from circumstances which have arisen since that time (para. 37).

[92] M.(C.) dealt with a review of the provisions of the CFSA[^7] regarding status review applications (para. 1). The case now before the Court is a child protection case. Section 74(2) lists the grounds upon which a finding – as opposed to a continued finding – can be made. Risk of emotional harm due to being removed from a long-term foster care placement, as framed by Children’s counsel is not made out under the categories listed in s. 74(2) in this case. This type of risk of harm is best addressed at the disposition stage of the case, when the best interests of the child must be considered. See, for example, Children’s Aid Society of Toronto v. S.A.P. et al, 2019 ONSC 3482, at paras. 27-30, aff’d 2020 ONCA 208.

[93] Section 101 of the CYFSA provides that a disposition order may not be made unless it is necessary to protect the child in the future. It is in that context that risk of emotional harm if removed from the care of the foster mother will be considered. Concerns other than those that resulted in the children coming into care and being found to be in need of protection may then be considered by the Court in a child protection application: S.A.P., at para 28.

What Disposition Order Is in the Children’s Best Interests?

Interaction of the federal and provincial legislation

[94] As noted above, the Federal Act is engaged in this case because the children are First Nations children.

[95] In Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744 (“S.S.”) Madsen J. considered the interaction of the federal and provincial legislation in the context of making a disposition order. The Federal Act operates as a minimum standard: S.S., at para. 63. The duality of the legislative context applies to every aspect of the legal framework: S.S., at para. 64. This includes a consideration of the following in the Federal Act: the principle of cultural continuity (s. 9.2), the principle of substantive equality (s. 9.3), best interest considerations of Indigenous children (s. 10), and priority of placement (s. 16). These considerations apply to all Indigenous children and must be part of every decision involving them: S.S., at para. 68.

Necessity for an order

[96] CYFSA s. 101(1) provides that where a child is found to be in need of protection, the Court must be satisfied that intervention through a Court order is necessary to protect the child in the future.

[97] I find that an order is necessary to protect these children in the future.

[98] The three children have been in society care since March 15, 2019. C-J and C-R have been in the care of the same foster parent since May 2019. Their sister K was placed with them at the foster home one month later, in June 2019. For the past three and a half years, this foster parent has provided constant and stable care. She has worked with the Society to address and meet the needs of the children. These needs include addressing their behavioural and emotional challenges.

[99] The evidence is clear that the foster mother has become, in the past three and a half years, the children’s psychological parent. The children have an attachment to the foster mother. Children’s counsel submits that the children have “developed an irreversible attachment to the foster mother.”

[100] In C.M., the Supreme Court of Canada held that a Court order may be necessary to protect the child from emotional harm which would result in the future, if the emotional tie to a caregiver, who the child regards as her psychological parent, is severed: para. 37. This analysis is also consistent with the expectation that the Court maintain a child-centered focus when deciding, in the light of interceding events, whether continued state intervention is required: para. 42. This analysis is consistent with the requirements of the Federal Act s. 10(1), that the child’s best interests must be a primary consideration in making decisions.

[101] In addition, I am satisfied that intervention through a Court order is necessary to protect the children in the future for the same reasons that the children were found to be in need of protection. The mother has not engaged in drug relapse prevention programs in any substantive way. As well, it was only two months before the trial started, that with support, the mother was finally able to secure housing.

Efforts to assist before intervention

[102] Section 101(2) requires the Court to ask the parties what efforts were made by the Society or others to assist the children before the Society intervened under Part V of the CYFSA.

[103] From November 2018, when the Society again was involved with the family, until the case was started, the Society attempted to assist the mother. N was regularly taken to school by the Society worker. The worker also tried to help with finding daycare for the three younger children. When homeless and transient, the worker tried to help the family find place in a shelter, and while waiting for a shelter placement, helped locate alternate accommodations.

[104] The Society worker did not contact N’Amerind Friendship Centre until immediately after the children were brought into care.

[105] The Society worker did try to contact the mother’s and children’s Band just prior to the children being brought into care.

[106] The Society did not explain why it waited until there was a crisis that required a warrant before trying to engage the Band and other Indigenous-based support. But for this, the Society acted reasonably to assist the children before they were brought into care.

Disposition options

Legal considerations

[107] Section 101(1) also prescribes the orders that can be made in a child’s best interests if an order is necessary.

[108] Sections 9, 10 and 16 of the Federal Act must also be considered in this best interests analysis regarding First Nations children.

[109] In this case, there are two options available to the Court under the CYFSA. Either the children are to be returned to the mother subject to Society supervision (s. 101(1)(¶1)), or they are to be placed in extended society care (s. 101(1)(¶3)). This is not inconsistent with the priority of placement options the court is to consider in section 16 of the Federal Act.

[110] Section 101(1) is limited by section 122 of the CYFSA. The latter section provides that a Court is not to make an interim society care order that would result in the children in this case (who are over six years of age) being in society care for more than twenty-four months (122(1)). This subsection is subject to s. 122(5), which allows the Court to extend the time by six months if it is in the child’s best interests to do so.

[111] In this case, the children have been in society care for forty-three months.

[112] In Windsor-Essex Children’s Aid Society v. E.W., 2020 ONCA 682, the Court of Appeal held at para. 33 that the time limit under s. 122(1) was plain on the face of the provision and that time limits imposed by the statute must be presumed to reflect its objective, including, and especially, the protection of best interests of the children: para 34.

[113] There is some caselaw[^8] that provides that time limits are not a fixed maximum. In those cases, the granting of extensions was noted to be appropriate if it accorded with the child’s best interests, and the longer a child has been in care, the discretion should be exercised only in exceptional cases. An example where it might be appropriate to grant an extension is where a child needs additional time to successfully transition from foster care to a parent’s care.

[114] The court is not to make an order removing a child from − in this case the mother − unless satisfied that less disruptive alternatives would be inadequate to protect the child: CYFSA s. 101(3).

[115] An extended society care order is the most profound order the court can make: Catholic Children’s Aid Society of Hamilton-Wentworth v G. (J.), (1996), 23 R.F.L. (4th) 79 (Ont. Div. Ct.) at para. 48. To take away someone’s children from them is a power that a judge must exercise only with the highest degree of caution and only based on compelling evidence and only after a careful examination of possible alternative remedies: Children’s Aid Society of Peel (Region) v W. (M.J.), 1994 CanLII 7444 (ON SC), [1994] O.J. 2062 (Ont. Gen. Div.), at para. 31.

[116] The length of time children are in care is a relevant consideration in determining placement of children found to be in need of protection. In Children’s Aid Society of Toronto v S. (D.), 2009 CarswellOnt 6725 at para. 71, Czutrin J. stated that

Time is to be considered from a child’s needs and perspective. The time consideration, like all considerations in child protection matters should be child-focused.

[117] In deciding if an extended society care order is required, consideration should be given to whether the Society has provided the parent an opportunity to parent: Children’s Aid Society of Niagara Region v S. S. and T.F., 2022 ONSC 744 at para. 83.

[118] The Federal Act s. 16(1) requires the court to prioritize the placement of Indigenous children as follows:

(a) with one of the child’s parents;

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

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

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

(e) with any other adult.

[119] Under section 16(2), the court is required to consider the possibility of a child being placed with or near children who have the same parent or who are otherwise members of the child’s family, subject to that placement being in the child’s best interests.

[120] Best interest considerations at CYFSA s. 74(3) and in the Federal Act s. 10(3) are similar but not identical. The interplay of the two acts has been called an “augmented best interests test”: CAS v. K. C. and Constance Lake First Nation, 2020 ONSC 5513 at para. 10.

Plans of Care

The mother’s plan

[121] The mother asks that the children be transitioned to her care on a graduated basis and then remain with her subject to Society supervision. The supervision terms she proposes will include that she cooperate with the Society, remain drug-free, and participate in counselling as recommended.

[122] The mother’s plan is to have the three children live with her in her two-bedroom apartment with N, KH, and some pets.

[123] Her housing worker is looking for a three or four-bedroom home for the family. If one is found, the mother states that “she is on top of the list”.

[124] The mother has availed herself of help and support from N’Amerind. She would like the children to engage with their First Nations heritage.

[125] The mother is not employed outside of the home. It is her plan to be at home to provide care for the children on a full-time basis.

[126] It is also part of the mother’s plan to remain drug-free and avoid associating with inappropriate third parties and caregivers.

[127] The mother will cooperate with the Society and engage in recommended programs.

[128] The mother’s plan also includes the support she will receive from her good friend RL.

[129] The mother would like the children to have some contact with their father.

[130] It is not part of the mother’s plan to have the children vaccinated because she does not trust vaccinations.

[131] If returned to the mother’s care, she would support the children seeing the foster mother regularly.

Community plans

[132] Section 97(1) and section 101(4) of the CYFSA require the Court to consider every plan of care proposed for the children, including community placements.

[133] Section 16 of the Federal Act provides that placement of an Indigenous child, in the context of providing child and family services in relation to that child, is to be considered in a certain priority to the extent that it is consistent with the best interests of the child. As set out above, the first priority is to place the child with one of their parents. The second priority is to place the child with another adult member of the child’s family. Fifth in priority is placement with any other adult. The Court is also to consider the possibility of placing a child with or near children who have the same parent as the child.

[134] In this case, the Society worker considered family members as possible caregivers, but no plans worked out. A kinship assessment of the father’s uncle was started but never completed.

[135] There were no kinship plans suggested by the Band.

[136] The day submissions on this case were scheduled to be heard, mother’s counsel asked that the case be adjourned so that a kinship assessment of RL could be undertaken. This request for an adjournment for that purpose was not granted:

− Details of the plan were not provided, just the request to adjourn to allow for an investigation.

− This case has been ongoing for far too long.

− RL had been previously positively assessed, and as a result N was placed in her care and eventually custody. As set out above, RL eventually allowed N to return to her mother’s care.

− No explanation as to why this proposal was made as the trial was coming to a close was provided.

The Society’s plan

[137] The Society’s plan is for the children to remain in extended society care. They will have access with the mother and the siblings now in the mother’s care.

[138] The Society will respect the Band’s request that the children not be made available for adoption without its consent. Instead, the Society intends to keep the children in the care of the foster parent on an indefinite basis. The foster parent has agreed to this plan. The foster parent will support the children learning about and participating in their First Nations culture and heritage.

The Children

C-J

[139] C-J is described by the foster mother as smart, adventurous, and having a good sense of humour. He is eager to learn and likes to explore.

[140] This year he is in grade two, where he does “really well” academically.

[141] The child protection worker, Lara Downing, observed C-J to be affectionate, active, and happy, with a lot of energy, but struggles to stay still.

[142] C-J is protective of his siblings.

[143] However, there is another side to C-J. He can be very angry, which is manifest by verbal and physical behaviour. When he has an outburst, he will lash at things and people.

[144] It is not always clear to the foster mother what sets C-J off. She deals with his behaviour by staying close to him while he is lashing out. Eventually, he will begin to cry and then come to her for comfort.

[145] C-J also has problems sleeping. The foster mother must sit outside of his room until he falls asleep. It is only after he falls asleep that the foster mother can turn his light off. At present, he wakes up through the night approximately twice a week. He looks for comfort from the foster mother.

[146] The child also has toileting problems. He has accidents at school approximately three times a week. Sometimes, this now seven-year-old child is sent home from school as a result.

[147] The foster mother has observed that stress appears to exacerbate the child’s troubling behaviour. An example of a stressful situation was an increase in the access schedule with the mother, including a possibility that it could take place in her home.

[148] For a period, C-J had access with the mother on Wednesdays after school. C-J would resist getting into the car and going to access by spitting and sometimes urinating. The foster mother would need help getting C-J into the car. Once in the car, resisting behaviour continued. Eventually, these Wednesday after-school visits stopped and were replaced by a longer Saturday visit. Since this change, the foster mother has observed that “it makes for a better week.”

[149] C-J continues to resist going to access on Saturdays, however the foster mother has strategies that result in him going. Once there, C-J will most often go into the supervised access program with the mother for his access visit.

[150] As a result of C-J’s behaviour, he was referred for therapy with Ms. Alycia Farr, a social worker. C-R and K were also referred because of their behaviour. Their involvement with Ms. Farr will be addressed later in these reasons.

[151] Ms. Farr was qualified as a participant expert in the area of therapeutic treatment for trauma and loss in children. She was involved with the three children from October 2019 until November 2021 and saw C-J weekly.

[152] Ms. Farr was provided information that C-J and his siblings were referred to her based on their early “life experiences of parental instability and neglect”. Specifically, Ms. Farr’s work with C-J and his siblings was based on them being left alone with inappropriate and abusive caregivers. They witnessed domestic violence. Their mother struggled with substance abuse. Their basic needs for shelter and food were not always met. The evidence in this case, and which is the basis for the finding that the children are in need of protection, supports the basis for Ms. Farr’s understanding of the circumstances of the children. I find that she was provided with an accurate picture of the children’s early lives while in the care of the mother.

[153] When therapy for C-J started, he was “highly dysregulated.” As his therapy progressed, “themes related to family dynamics, foster care/apprehension, attachment, trauma and loss were present…” Ms. Farr’s observations of C-J’s behaviour was consistent with that of the foster mother. With therapy, C-J was able to demonstrate adaptive skills related to his life in the foster home. An example of this was when the foster parents separated. He was able to deal with that change. C-J was not able to demonstrate the same adaptive ability when asked to change his access schedule with the mother. He had significant negative responses. He became withdrawn and upset, and regressed in his toileting, both at home and at school. These behaviours were observed by the foster mother.

[154] Ms. Farr’s opinion is that C-J presented as a child who had “experienced attachment trauma congruent with his early history of caregiver disruptions, transiency, neglect and abuse.”

[155] C-J’s long-term placement with the foster mother has allowed him a “sense of physical and emotional security, safety and consistency in his life.” It is also Ms. Farr’s opinion that C-J had made positive gains in therapy. His emotional and physical dysregulation has abated. He is better able to communicate his feelings, needs and concerns. He remains overwhelmed by thoughts of returning to his previous circumstances. Suggestions made to C-J about increasing his access are associated with an increase in his negative behaviour and need for frequent assurance that he will continue to live with the foster mother. The foster mother recounted that at the beginning of access, she had to “pinky swear” with C-J that she will pick him up at the end of the visit.

[156] Once C-J is at access with the mother, he is affectionate with her. The access visits appear to go well.

[157] I accept Ms. Farr’s opinion that C-J needs a stable and secure environment and the reliability of a consistent caregiver. This is the relationship he has with the foster mother.

[158] Despite C-J’s ongoing emotional behaviour, he has made gains while in the care of the foster mother and is otherwise thriving. The child protection worker, Ms. Downing, observed that C-J is securely attached to the foster mother and appears to feel safe in her care.

C-R

[159] C-R is described by Ms. Downing as a funny girl with a sense of humour. She is artistic and loves to draw. The foster mother describes C-R as smart, curious, and “girlie”.

[160] In interactions with her brothers, she can be bossy. She acts as their caretaker. She makes sure they do what they are supposed to be doing and lets the foster mother know when they are not.

[161] In school, she is “on track academically”. She is a little behind in reading.

[162] C-R’s behaviour has been observed by the foster mother to be quiet. She is a child who is eager to please and shows little emotion. When hurt, she will not react. Sometimes she uses inappropriate grownup words and demonstrates inappropriate sexualized behaviour.

[163] C-R, like C-J, was referred to Ms. Farr because of her early life experiences. She was also referred because of her sexualized language and behaviour.

[164] When her therapy started with Ms. Farr, its purpose was to help C-R verbalize her emotions and create security in her ability to express what she was feeling. In sessions, she would “shut down” or become silly and distracted. The same themes regarding her early life that were evident with C-J also developed with C-R. C-R was able to use her artistic creativity as part of her therapy.

[165] Proposed access changes caused her to worry. The focus of therapy was to help C-R understand her different emotional states and how to express them in healthy ways.

[166] It was Ms. Farr’s observation that C-R’s placement with the foster mother has allowed her a sense of physical and emotional security, safety, and constancy.

[167] As a sensitive child, C-R has been observed to worry about her mother. She does not present a challenge when it comes to attending to, or returning from, access. Though regarding access, C-R wants assurances that she will return to the care of the foster mother at the end of access visits.

K

[168] The foster mother described K as energetic, inquisitive, and smart. She is generally happy and outgoing.

[169] When K was first placed in the foster mother’s care, she was wild and aggressive in her play. She went to strangers too easily. At night, she appeared to relive unpleasant experiences from her past.

[170] K is now in grade one. She likes her teacher. Her play is less aggressive, but she needs to be reminded to be less physical. Like C-J, she struggles with toileting accidents when stressed.

[171] K was referred to Ms. Farr because of her emotional dysregulation and physically volatile behaviour. In therapy, the child has responded to social situations in the manner of a much younger child. She needs help processing her early life experiences.

[172] Also according to Ms. Farr, K presented as a child who experienced attachment trauma. Her placement with the foster mother has allowed K to develop a sense of security, stability and constancy in her life. K was observed to become reactive to sudden changes in expected routines, with transitions being particularly difficult for her.

[173] It is Ms. Farr’s observation that K has developed a strong attachment to the foster mother. She is able to display love and affection towards the foster mother and receive it in return.

Evaluation of Mother’s Plan

[174] There are a number of positive findings about the mother’s plan of care.

(a) The children would live with their biological mother and have the opportunity for some contact with their biological father.

(b) The mother would be able to provide the children with a connection to their First Nations heritage, culture and community.

(c) The children know that the mother is their mother. C-R and K appear to enjoy their visits.

(d) At access visits, the children have been affectionate towards the mother. The mother did have some child-centered visits where she would focus on the children.

(e) The children appear to want a relationship with the mother.

(f) The mother has been able to stop using drugs.

(g) The mother has avoided ongoing involvement in criminal activity.

(h) The mother recently found a residence for the children and her.

(i) The mother has been able to avoid relationships with inappropriate persons.

(j) The mother says she will cooperate with the Society and engage in appropriate services.

(k) The mother has engaged with the N’Amerind Friendship Centre for indigenous-based support.

(l) The mother has been able to engage support through Rotholme.

(m) The Society has not had cause to intervene in the mother’s care of N and KH. Instead, the mother and Society entered into a voluntary services agreement dated April 8, 2021.

(n) The mother recently acknowledged the trauma that the children experienced as a result of her decisions and actions.

(o) The mother has recognized the children have a connection with the foster mother that should be maintained.

Concerns with the Mother’s Plan

[175] Despite the many positive aspects of the mother’s plan, serious concerns remain.

[176] The children need to be able to count on their parent to provide them with safe, stable, and secure housing. They need their parent not to expose them to dangerous activities and persons. These are essential aspects of being a parent.

[177] It has taken the mother a long time to achieve these goals.

[178] During the past three and a half years, while waiting for the mother to make her gains, the children have found safety, security, and stability in the care of the foster mother. It is the foster mother who has met the needs of the children, with support of Society workers. The foster mother has become the psychological parent of C-J, C-R, and K. They are attached to her. While in the care of the foster mother, the children have made gains in dealing with the effects of the trauma they experienced while in the mother’s care.

[179] The augmented best interest analysis must be considered from a child-centered point of view.

[180] As referred to earlier in these reasons, Courts have recognized that children need to be protected from the emotional harm which would result in the future, if the emotional ties they have with their caregiver is severed: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, at para. 37.

[181] The evidence in this case is unchallenged that all three children are securely attached to the foster mother after being in her care since May and June 2019.

[182] I agree with Society counsel that to remove the children from the care of the foster mother now would cause the children trauma. This harm would be magnified by the past trauma they experienced while in the mother’s care.

[183] Assuming, without deciding, that the Court has the discretion to extend the timelines and make an interim society care order, there are not the exceptional circumstances present that would justify doing so. These children are not in counselling at this time, as their therapist is of the view that future counselling can only be resumed once a permanency plan has been made. Delay in determining a permanency plan for these children and their resumption of therapy is not in their best interests.

[184] A secondary concern with the mother’s plan is that she expects to move again if the children are placed in her care. This would result in another transition for the children. The evidence discloses that in this case, transitions are difficult for these three children.

Best Interests Factors

[185] In addressing the relevant clauses in s. 74(3) of the CYFSA and section 10 of the Federal Act, and based on the evidence facts as found, I find as follows:

(a) The Society’s plan better accords with the children’s views and wishes. According to the Children’s Lawyer, whose submissions were not objected to, the children’s wishes have been clear and consistent. They wish to remain with the foster mother. I agree with Children’s Lawyer’s submission that the children’s wishes can fairly be seen as directly related to the bond they developed with the foster mother.

In the circumstances, their wishes and views should be given weight despite their young ages.

(b) The mother’s plan would better establish and preserve the children’s First Nations cultural identity and connection to their community. In the mother’s care, the children would be better able to acquire and develop their identity as First Nations children.

The foster mother has taken some steps to connect the children with their culture and community. She is also educating herself how to do so. I recognize that this is no substitute for being raised in a home with an Indigenous parent who, on a daily basis, would be able to share and impart their traditions and values.

The Society did try to have the children placed in an indigenous foster home, but that did not work out. When that placement broke down, the mother agreed that it was better for the children to remain together even in a non-indigenous foster home.

(c) The Society’s plan has met and, more likely, will better meet the children’s physical, mental and emotional needs and provide them with the ongoing care and treatment to meet these needs.

(d) The Society’s plan will better allow the children to develop a secure place as a member of a family and maintain relationships and emotional ties with their siblings.

(e) The Society’s plan will better provide long-term stability for the children. While the children will not be adopted without the Band’s consent, the foster mother is committed to their long-term placement with her.

(f) The risk of the children suffering emotional harm if removed from the foster mother’s care and placed in the mother’s care is unacceptably high.

(g) This case must not be further delayed to see if a transition plan might work.

Conclusion

[186] Despite Ms. Guslits’ able and forceful submissions, I find that, when all these factors are taken into account, the least disruptive disposition consistent with the children’s best interests is that they be placed in extended society care. In making this determination, I have considered the primary and additional purposes set out in s. 1 of the CYFSA and the principles contained in section 9 of the Federal Act.

[187] These reasons also explain why maintaining these First Nation children in the stable and secure home of the foster mother as proposed by the Society comprises the substantial reason for not placing the children elsewhere: CYFSA s. 101(5) and Federal Act s.16(1).

What access order should be made in the best interests of the children?

[188] Sections 105(5) and (6) of the CYFSA set out the test for access for children who have been placed in extended society care. It is the best interests test. As part of the best interests test, the Court must consider whether the relationship between the person and the child is beneficial and meaningful to the child. The Federal Act also must be taken into account in any determination regarding access for the children placed in extended society care. Both present and future benefits of children’s relationships with family must be considered.

[189] In Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744 at para. 185, the Court stated with respect to access as follows:

The new access provisions of the CYFSA must be read harmoniously with other provisions within legislation which emphasize the importance of preserving indigenous children’s cultural identity and connection to community (s. 74(3)(b)). Similarly, the access sections (as indeed all sections of the CYFSA) should be interpreted in the spirit of the acknowledgments set out in the Preamble, including that indigenous children should be grounded in their cultures and thriving both as individuals and members of their families. In my view, with the advent of the CYFSA, indigenous children’s ongoing connection to family members must now, where in their best interests, be seen as an important aspect of promoting and maintaining indigenous identity and connection.

[190] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the Court of Appeal observed that a child can still have a meaningful and beneficial relationship with a parent warranting access post-extended society care even if there are protection concerns.

[191] In this case, all parties submit that it is in the children’s best interests that they have access with the mother and their siblings in her care.

[192] There already exists a beneficial and meaningful relationship between the children, the mother and their siblings. I agree.

[193] Access will not impair the children’s future chances for adoption in this case. That process will take place only with the consent of the Band.

[194] Also in this case, access will allow the children to remain connected with their First Nations culture and heritage through ongoing contact with the mother and their siblings.

[195] Once an extended society care order is in place and permanency is established, therapy for the children is expected to resume. This will allow the children to know with confidence that they will be returning to the foster mother at the end of an access visit.

[196] The mother’s inability to have access in her home has been a concern of hers. However, the Society has had valid reasons for its position why access has not occurred in her home to date. The traumatic reactions of the children in attending at her home as identified by the foster mother and therapist militated against this taking place. As well, for longer periods, while this case was ongoing, the mother did not have stable housing. While she was without a residence, the issue of access in the mother’s home was moot.

[197] The Society asks that access be a minimum of once a month. The mother asks for expansive access, including but not limited to alternate weekends from Friday until Sunday. The Children’s Lawyer submitted that access should be at least once a week for three hours.

[198] I find that access terms in this case must be flexible as to time, location and mode (in person or virtual). As therapy for the children resumes, and when it proves to be successful, they should be able to have access with the mother for longer periods and in her home. This in-person access in the mother’s residence or in the community will be of help in the children becoming grounded in their culture and fortify their connection with their community: see S.S. at para. 254(b).

[199] As all parties support the children having the opportunity to have contact with the father I will accede to this request. It is in the children’s best interests to allow for the possibility of a relationship in the future. They know some things about him. The terms of his access must be flexible as to time, location and mode such as by letter or greeting card.

[200] Access terms must also allow the children to settle and remain secure in the foster mother’s home.

Order

[201] For these reasons, an order shall go in the following terms:

(a) The statutory findings required under section 90(2) of the CYFSA shall be as set out in para. 14 above.

(b) The children are found to be in need of protection under s. 74(2)(b)(i) and (ii).

(c) The children are placed in extended society care.

(d) The children, mother, and children in the mother’s care (N and KH) shall all be access-holders.

(e) The children, the mother, and the children in her care shall have access a minimum of twice a month for a minimum of four hours, supervised at the discretion of the Society. The location and mode of access shall also be at the discretion of the Society.

(f) If the children are not placed in the same foster home for whatever reason, they are to have access to one another as arranged by the Society four times per month.

(g) The father shall have supervised access with the children one time each year. The mode of this access shall be at the discretion of the Society.

[202] I realize that the mother will be most disappointed that the children are not being placed in her care. I recognize how much she loves the children and commend her for the efforts she made to overcome the challenges that brought the children into the Society’s care. The mother has much to offer the children now and in the future as they grow and mature.

“Justice Barry Tobin”

Justice Barry Tobin

Released: November 17, 2022

[^1]: See Exhibit 1.

[^2]: CYFSA s. 79(3) provides as follows: “Any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing, (a) is entitled to the same notice of the proceeding as a party; (b) may be present at the hearing; (c) may be represented by a lawyer; and (d) may make submissions to the court, but shall take no further part in the hearing without leave of the court.”

[^3]: These charges were eventually resolved when the mother pleaded guilty and was given a nine-month conditional sentence followed by six months of probation.

[^4]: See affidavit of Amanda Salter sworn April 4, 2022, paras. 64 and 66.

[^5]: Zhaawanong is an Indigenous led emergency women’s shelter.

[^6]: See Exhibit 7 for a chart of the statements the child made.

[^7]: The CFSA (Child and Family Services Act) was the predecessor statute to the CYFSA.

[^8]: Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, at para. 162; Valoris v. J.W., C.R. Muskeg Lake Cree Nation, 2022 ONSC 2901, at para. 593, and Children’s Aid Society of Toronto v. A.L., 2021 ONCJ 258, at paras.308, 309 and 311.