Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744

COURT FILE NO.: 307/19 (St. Catharines)

DATE: 2022/02/10

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

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Children’s Aid Society of the Niagara Region, Applicant

AND:

S.S., Father, Respondent

T.F., Mother, Respondent

BEFORE: Madam Justice L. Madsen

COUNSEL: Maggie Scull, Counsel for the Applicant

Patti Lucas, Counsel for the Applicant

Edward Kravcik, Counsel for the Respondent Father, S. S.

Ryan Bonin, Counsel for the Respondent Mother, T.F.

Marlene VanderSpek, Counsel for the Child, B.

Linda McKenzie, Counsel for the Children, R. and W.

Sheena Scott, OCL Co-Counsel

HEARD: October 12 – 15, 18, 19, 21, 22

November 1, 8 – 10, 12, 15 – 19, 22 – 26, 29, 30

December 1 – 3, 6 – 10, and 13 – 17, 2021

CORRECTED DECISION: The Reasons for Judgment released on February 10, 2022 at para. 259 (6) has been corrected to read: “The child, B.’s access to each parent and his grandmother shall be subject to his views and preferences.”

REASONS FOR JUDGMENT

A. INTRODUCTION

[1] This is a fresh as amended child protection application in which the Children’s Aid Society of the Niagara Region (the “CAS” or the “Niagara Society”) seeks an Order for extended Society care for three children: R., age 7; W., age 8; and B., age 9. In addition, the Society seeks inter-sibling access, very limited access by the children to their parents, and access by the children to the paternal grandmother. At the conclusion of the trial, the children had been in care for 1,339 days, well past the statutory limits.

[2] A finding that the children are in need of protection has previously been made by way of summary judgment motion. On May 10, 2021, Walters J. found that the children are in need of protection based on having suffered physical and emotional harm, and based on risk of further physical and emotional harm.

[3] In this trial, the father seeks an Order that the children be returned to his care under a six-month supervision Order. Although the mother previously sought an Order that the children be placed in her care under a section 102 custody Order, her position changed during the trial to support that of the father.

[4] In accordance with the children’s wishes, Office of the Children’s Lawyer (OCL) counsel for the children W. and R. seeks an Order that the children be returned to the care of the father under supervision, with weekly access to their mother. In accordance with the child B.’s views and preferences, his OCL counsel also seeks an Order that he be returned to the care of his father, with the caveat that irrespective of the placement determined by the court, he wants he and his siblings to be placed together.

Themes in this Case

[5] This case involves an indigenous family, with whom, in its work, the Niagara Society missed many opportunities to engage fully, supportively, and constructively to help create circumstances to permit the return of the children to either the father’s or the mother’s care.

[6] Delays in indigenous identification caused delays in referrals to appropriate services. Those referrals in turn were not, in my view, adequately followed up by the Society or pursued with any diligence.

[7] A Children’s Aid Society culture of working in silos obstructed a holistic approach to engagement with both parents, and with the parents and children as a family.

[8] A failure, at the outset, to appreciate and respect each parent’s unique circumstances – a father with cognitive delays and an indigenous mother who was herself made a “Crown Ward” as a child – lead to inadequate communication and miscommunication with each parent.

[9] A failure to increase and meaningfully adapt access, notwithstanding voluminous evidence that on balance, both parents were appropriate and loving during their allocated parenting time, withheld from the court necessary evidence of what parenting could look if expanded and normalized.

[10] Alternative dispute resolution processes, which could have - and should have - helped this family explore care options and plans for the children, were never pursued, whether in the form of an indigenous circle process, aboriginal alternative dispute resolution, family group conferencing, or child protection mediation. This is a significant failure of process with this family.

[11] At the same time, COVID-19 and the governmental response thereto created additional challenges in terms of availability of services.

[12] Both parents face important difficulties and core protection concerns remain unmitigated.

[13] As will be seen below, notwithstanding this court’s concerns about the manner in which the Niagara Society worked, or failed to work with this family, at this juncture there is unfortunately insufficient evidence to find that the father now understands or has addressed the child protection issues, or that he can now safely parent the children. As earnestly as he loves them and as steadfastly as he has hoped for their return, the evidence does not suggest that the children would be safer now than when they were removed from his care two and a half years ago.

[14] While the mother has taken important and impressive steps to address serious mental health issues, has pursued parenting programming, and has recently separated from a volatile and abusive partner, the court is unable to find that she could “fill in the gaps” in the father’s care of the children, or that she could be a sufficiently protective factor to allow placement with him, even under strict terms of supervision. Her insight into her mental health issues, which is profound, is not yet mirrored by insight into the protection concerns related to the father’s care of the children.

[15] The evidence is overwhelming that the children’s relationships with both parents are meaningful and beneficial to them. Both parents have, with very few exceptions, been appropriate and loving during access. The children love both of their parents. The parents both love the children deeply.

[16] This is an indigenous family. The mother is the children’s connection with their indigenous heritage and identity. The father supports the children’s connection with that heritage and identity.

[17] While in my view, a more constructive relationship between the Society and the parents might have expanded the range of the safe, available plans for these children, the court must decide based on the current circumstances and cannot simply “hope” that the children will be safe in the chosen disposition. And, in my view, current circumstances offer only one safe disposition for R., W., and B. at this time.

[18] It is with great regret, disappointment, and indeed sadness that I find, for the reasons that will be set out fully below, that the only option available to the court at this time is to place these children in extended Society care.

[19] The children shall, however, have frequent and robust access with their parents, their paternal grandmother, and with one another, for the reasons and on the terms detailed in this decision.

Brief Overview and Chronology

[20] The parents in this matter are the father, S.S., and the mother, T.F. In this decision, for readability, I will refer to them as the father and the mother. The parents do not live together and have been separated since 2014. They are, nevertheless, a family, albeit a separated family.

[21] The father and mother are parents of three children: R., age 7; W., age 8; and B., age 9. All three children have high needs.

[22] The children’s paternal grandmother, K.S, has been involved with the children. She is not able to put forward a permanency plan but has had significant access with them. She has moved to New Brunswick but sees the children for access in Ontario several times per year. It is agreed that the children have an excellent relationship with her that should be preserved and nurtured.

[23] The mother is First Nations, Cree and Blackfoot, with no band identified. The children are, therefore, indigenous.

[24] The following brief timeline of events was agreed to by counsel.

Hamilton History

[25] All three children were removed from the care of the mother on November 27, 2014 by Hamilton Children’s Aid Society [“Hamilton CAS”].

[26] On March 9, 2015, the children were found in need of protection pursuant to section 37(2)(l) of the Child and Family Services Act.

[27] The children were placed with the father under successive supervision Orders, dated December 9, 2015 (temporary Order), February 1, 2016, and July 20, 2016.

[28] On January 11, 2017, the children were placed in the father’s custody. On March 20, 2017, Hamilton CAS closed their file.

[29] Various reports of concern were made to Hamilton CAS between June 6, 2017 and the date of file transfer to the Niagara Society on May 3, 2019.

Removal, Transfer and St. Catharines Court Proceeding

[30] The children were brought to a place of safety on May 3, 2019, by Hamilton CAS in conjunction with the Niagara Society.

[31] On May 7, 2019, the children were placed in the temporary care and custody of Hamilton CAS, with access to the parents in Hamilton CAS’ discretion. The matter was transferred to St. Catharines.

[32] On June 10, 2019, the matter first returned to the St. Catharines Superior Court. An Order was made placing the children into the temporary care and custody of the Niagara Society, with access in the Society’s discretion. The Office of the Children’s Lawyer (OCL) was appointed for all three children.

[33] On August 30, 2019, the Niagara Society issued a Fresh as Amended Application seeking an Order for extended care for all the children, with no access.

[34] On November 21, 2019, the Niagara Society brought a motion seeking the court’s permission to administer ADHD medication for the child, B. The motion was granted.

[35] A motion for summary judgment was scheduled for May 11, 2020. Owing to Covid-19 related court closures, the motion was not heard. A motion for summary judgment was then set for September 14, 2020 but subsequently withdrawn.

[36] On May 10, 2021, the Society brought a further motion for summary judgment relating to preliminary and protection findings. This Order was granted by Walters J. Findings are set out below.

[37] On August 8, 2021, the Niagara Society filed an updated Plan of Care for the children, seeking extended care with access to each other, the parents and the paternal grandmother (with various terms and conditions).

Children’s Placements

[38] The following have been the placements of the children since they came into care:

a. W. and R. have been placed with I.S. and G.S. since they came into care in May 2019.

b. B. was placed in a group home from May to December 2019. He was then placed with B.L. until October 2020. Finally, he was placed with G.D. from October 2020 to the present.

Niagara Society Workers

[39] During the involvement of the Niagara Society, at least three family service workers were involved as well as three children’s service workers.

[40] While a range of workers have supervised the parents’ access with the children, the primary access supervisor has been Genny Bellon, a family enrichment worker, who has supervised access since September 2020, and has observed at least 50 hours of the mother’s parenting time and a substantial amount of the father’s. In addition, Debbie Bahry supervised the father for an approximately six-month period from Sept 2019 – March 2020.

Non-Expert Witnesses

[41] The Society called the following non-expert witnesses:

a. B.L., foster mother for B., December 2019 – October 2020

b. G.D., foster mother for B., October 2020 to present

c. I.S., foster mother for R. and W., May 2019 to present

d. K.S., children’s paternal grandmother

e. Heather Atlas, Child Protection Worker, Hamilton CAS

f. Michelle Menhennet, Investigation and Assessment Worker, Niagara CAS

g. Debbie Bahry, Family Enrichment Worker, Niagara CAS

h. Jesse Mudie, Therapist, Family Counselling Centre of Niagara

i. Sasiga Sivasunthararasa, Family Service Worker, Hamilton CAS

j. John McLachlan, Therapist, Family Counselling Centre of Niagara

k. Genny Bellon, Family Enrichment Worker, Niagara CAS

l. Judith Jago, Staff Person, Mutual Support Systems Group Home

m. Danielle Koks, Child Protection Worker, Niagara CAS, May-June 2019

n. Nattalie Linger, Child Protection Worker, Niagara CAS, September 2020 – August 2021

o. Detective Jamie Moore, Hamilton Police Services

p. Simon Stephen, Family Service Worker, Niagara CAS, July 2019 – September 2020

q. J.B., Mother’s former partner

r. Julie Anderson, Children’s Service Worker, Niagara CAS, for the child B., May 2019 – July 2020

s. Tina Dale, Children’s Service Worker, Niagara CAS, for the children W. and R., September 2019 present; for B., July 2020 - present

t. Kimberly Dolff, Adoption Worker, Niagara CAS

[42] The parents each testified and called no other witnesses.

[43] The OCL called the following non-expert witnesses:

a. Cindy Katz, OCL Clinician for the children W. and R.

b. Barbara Hotson, OCL Clinician for the child B.

Expert Witnesses

[44] The Society called Dr. John Burke Baird to testify as an expert. For reasons which were the subject of a detailed ruling following a voir dire (to be released with the publication of this decision), he was found to be a participant expert, and permitted to testify as a pediatrician. The court noted that the weight to given to Dr. Baird’s opinions would depend in part on his sources of information and the extent to which other evidence in the trial did or did not confirm that information. While the OCL expressed great concern about Dr. Baird’s methodology in determining that the children were maltreated, in view of the protection finding, that issue has already been determined. This court’s main concerns in relation to Dr. Baird relate to the links he drew between access and B.’s behaviours, and his failure to consider a range of explanations. This will be discussed further below.

[45] The Society also called Dr. Simon Williams to testify as an expert. Following a ruling, he was permitted to testify as an expert regarding psycho-educational and psychological assessments. While the OCL took the position that he should not be permitted to testify regarding psychological assessments, the court found that the OCL had previously consented to the broader formulation of his expertise. Dr. Williams assessed the children B. and W. in terms of their learning strengths and deficits and made recommendations regarding how best to support them. To the extent that he repeated conclusions of others regarding maltreatment, I give no weight to those statements. However, his assessments are helpful in understanding the children’s academic and other needs. Dr. Williams agreed that each child who is removed from a parent experiences loss and that this can cause dysregulation. He testified that his focus is on how to now help children in those circumstances.

[46] The OCL called Patricia Convery to testify as an expert. Following a voir dire, she was found to be a litigation expert in adoption practice. The court found her evidence necessary and relevant in the current legislative and social context. I noted certain differences in perspective between Ms. Convery and the Society’s adoption worker, Ms. Dolff, on issues related to openness, as is set out below.

[47] The OCL also called Tara Noble to testify as an expert. Following a voir dire, she was found to be a litigation expert and was permitted to testify about grief, loss, and attachment formation for children involved in the child protection system. As she had not met or assessed the children in this case, the court specifically ruled that any opinion she might purport to give about these children specifically would be given no weight.

[48] Finally, the OCL called Kenneth Richard to testify. Walters J. had already found him to be an expert at the finding stage of this proceeding. Despite the objection of the Society, which argued that the affidavit related more to identification of First Nations heritage than to issues related to disposition, I permitted his affidavit to be filed, on the proviso that he be made available for cross-examination. I found that the affidavit might contain evidence relevant to disposition, in the context of the duty to provide culturally appropriate services.

Procedural and Evidentiary Considerations

Zoom Trial

[49] On consent, this very long trial took place by Zoom. There were very few practical difficulties, and the platform enabled counsel and parties living across the region to be able to participate. Both parents had access to the required technology throughout. I thank all counsel for their cooperation and flexibility for the duration of the trial. As CaseLines is not yet available for child protection matters, I ordered the use of the Sync document sharing platform, and Court Services was able to assist. Counsel agreed that this was a highly effective manner in which to work. At no point was any objection made to proceeding with this trial virtually.

Evidence of J.B.

[50] The mother’s former partner, J.B. was summonsed by the Society and attended at the office of a court reporter to testify. He presented as volatile and explosive. Partway through the examination in chief he left and did not return. His testimony in chief was not completed and he was not cross examined. Counsel agreed, based on caselaw including CAS of Hamilton v. B.C. and D.C, 2019 ONSC 4229, that the weight to be given to his evidence is a matter of judicial discretion. His self-presentation spoke volumes.

Children’s Statements

[51] Many witnesses throughout the trial made reference to statements made to them by the children. Some are statements about what the father allegedly did or said to the children; other statements refer to the children’s views and preferences. There were very few objections. Counsel maintained a chart throughout the trial anticipating the need for a Khan voir dire. In the end, all issues related to children’s statements were resolved on consent.

[52] As a protection finding has already been made, at this stage, the children’s statements are not required to determine whether there was harm or whether there is risk of harm. That has been determined. Where children’s statements are specifically relied on below, such as with respect to their views and preferences about where they wish to live, I have indicated same.

Disclosure Motion

[53] It became apparent during the trial that the Society sought to introduce evidence about the criminal record of the mother’s former partner, J.B., through a hearsay source. I did not permit that, but gave the Society permission to bring a records motion. The Society brought that motion, and then called Detective Moore to introduce the records. I was surprised to have a disclosure issue such as this arise during a long trial. This should have been addressed well prior to trial.

OCL Counsel

[54] At the outset of the trial, the Society objected to three OCL counsel attending on behalf of the children, suggesting that the presence and participation of Ms. Scott was excessive, given Ms. VanderSpek’s representation of the child B. and Ms. McKenzie representation of the children W. and R. The OCL indicated that Ms. Scott’s role would be to primarily limited to expert evidence. I overruled the objection, noting that the Society itself had brought in additional counsel, Ms. Lucas, on portions of the trial related to expert evidence. In any event, I directed the OCL to ensure minimal duplication of questioning and argument and I find that this direction was complied with.

Consideration of Evidence

[55] This was a very lengthy trial – much lengthier than required, in my view. Evidence spanned seven weeks, and as seen, upwards of 30 witnesses testified. This was so notwithstanding that “findings” had already been determined by Walters J.

[56] In the analyses below, I have addressed what I have found to be the most relevant aspects of the testimony and evidence tendered during trial, and commented on credibility where I have concerns. While I have not discussed all of the evidence presented at trial, I have very carefully and comprehensively considered the testimony of each witness, and every exhibit. I have considered the totality of the evidence in my determination of the substantive issues.

B. FINDINGS

[57] Initial findings were made following a motion for summary judgment before Walters J. on May 10, 2021, as follows:

a. The children’s names and dates of birth are:

i. B., born _____;

ii. W., born ____;

iii. R., born ___.

[Identification of children and their birthdates have been redacted for publication purposes]

b. The children are First Nations: Cree First Nation and Blackfoot First Nation, with no specific bands yet located;

c. The children were brought to a place of safety from Mr. S.’s care on May 3, 2019;

d. The children are in need of protection pursuant to sections 74(2)(a)(ii), 74(2)(b)(i), 74(2)(b)(ii), 74(2)(f), and 72(2)(h) of the CYFSA, 2017.

[58] The motion for summary judgment proceeded on the consent of all parties other than the father. The father consented to the preliminary findings but not to the finding that the children are in need of protection.

[59] Walters J. delivered an oral judgment on the motion for summary judgment. She noted that the OCL had prompted the Society to investigate the children’s First Nations identification. She accepted Kenneth Richard as an expert in Indigenous Child Welfare. His affidavit for that motion sets out the process to be used by the Society to determine if children are First Nations children.

[60] On the question of protection findings, Walters J. found on a balance of probabilities that the children were at risk of real, not speculative harm. She found that there was more than sufficient trial-worthy evidence to show emotional and physical harm as well as risk of further harms. She found that the father showed no insight and that he had merely provided bald denials and assertions that he is not responsible for harm to the children.

C. DISPOSITION

Legal Considerations

[61] This section will set out and apply the law in relation to the following legal issues related to placement of these three children. Some of these issues also relate to the access analysis set out further below:

a. The federal and provincial legislative context;

b. The primacy of the best interests analysis;

c. Orders available to the court;

d. The role of the Society’s provision of services to the family;

e. Assessment of competing plans of care; and

f. The importance of children’s views and preferences.

a) The Federal and Provincial Legislative Context

[62] As the children in this case are First Nations children, the outcome of the trial is governed by two pieces of legislation: The Act respecting First Nations, Inuit, and Métis Children, S.C. 2019, c. 24 [the “Federal Act”]; and, the Child, Youth, And Family Services Act, S.O. 2017 C. 14. Sched. 1 [“the CYFSA”].

[63] The Federal Act operates as minimum standard. See section 4. Where standards under the CYFSA surpass or exceed those in the Federal Act, the CYFSA will apply. Where standards set out in the Federal Act surpass or exceed those in the CYFSA, the Federal Act will apply.

[64] The duality of the legislative context applies to each and every aspect of the legal framework in this case: the applicable best interests standard; the assessment of services required and provided by the Society; the hierarchy of placement options and the assessment of competing plans of care; and the determination regarding the children’s ongoing contact with family members. That these children are First Nations children is relevant and central to every part of the analysis, and cannot be merely an afterthought.

[65] Among the purposes of the Federal Act are to contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. The Federal Act is to be interpreted in accordance with the principle of the best interests of the child, the principle of cultural continuity, and that of substantive equality. Cultural continuity is seen as essential to the wellbeing of each child. The Federal Act recognizes that children’s best interests are often promoted when a child lives with members of his or her family, and when the culture of the group to which the child belongs is respected; and, that services provided to a child and the family must be provided in a manner that does not contribute to cultural assimilation. Consideration of children’s views and preferences in the decisions that affect them, without discrimination, comprises part of the concept of substantive equality.

[66] The CYFSA also, in its preamble, acknowledges the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples, as well as the principles set out in the Convention on the Rights of the Child. The Preamble also states, in part: “First Nation, Inuit, and Métis children should be happy, healthy, resilient, grounded in their culture and languages and thriving as individuals and as members of their families, communities, and nations.”

[67] The paramount purpose of the CYFSA is to promote the best interests, protection, and well-being of children. Further purposes, so long as they are consistent with the paramount purpose, include supporting the autonomy and integrity of the family unit, intervening in the least disruptive manner that is available and appropriate, providing services that build on strengths of families wherever possible, and providing services to First Nations families in a manner that recognizes their culture, heritage, traditions, connection to community, and the concept of extended family. The court’s decision for these children must take into consideration the paramount purpose of the CYFSA. Children’s Aid Society of Niagara Region v. B.P. and B.W., 2018 ONSC 4371 at 48, per Pazaratz J.

[68] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 [“Kawaratha”], the Ontario Court of Appeal confirmed that the finding that children are First Nations ushers in “a series of special considerations including the provision of services and decisions that recognize the importance of the child’s culture, heritage, and connection to community.” The court emphasized that the “special considerations that apply to indigenous children must be part of every decision involving indigenous children.” See paras. 60 & 80.

b) The Primacy of Best Interests

[69] Under both the Federal Act and the CYFSA, the principle of best interests children is of guiding importance.

[70] The Federal Act states that the principle must be a primary consideration in relation to service decisions, and is the paramount consideration in relation to decisions and actions related to the apprehension of children. In interpreting specific factors set out in the Federal Act, courts are directed to give primary consideration to children’s physical, emotional, and psychological safety, security and well-being, as well as to the importance, for children, of having ongoing relationships with their families and with their indigenous group, community, or people, and preserving connections to culture. See section 10. Under the CYFSA, the principle of best interests must, among other things, guide decision-making in relation to placement of children where a protection finding has been made.

[71] The two best interests tests are similar but not identical, with the federal test having been aptly described an “augmented best interests test.” See CAS v K.C. and Constance Lake First Nation, 2020 ONSC 5513, at para. 41.

[72] Section 74(3) of the CYFSA provides as follows:

74(3) Best interests of the child

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

a. consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

c. consider any other circumstance of the case that the person considers relevant, including,

i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

ii. the child’s physical, mental and emotional level of development,

iii. the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. the child’s cultural and linguistic heritage,

v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

viii. the merits of a plan for the child’s care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

ix. the effects on the child of delay in the disposition of the case,

x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

xi. the degree of risk, if any, that justified the finding that the child is in need of protection

[emphasis added]

[73] Each of these considerations is encompassed by the factors set out in the Federal Act, to which the latter adds that consideration must be given to any family violence and its impact on the child, and any civil or criminal proceeding, Order, condition or measure that is relevant to the safety, security, and well-being of the child.

[74] Importantly, the CYFSA sets out two mandatory considerations in the determination of best interests, in particular consideration of the children’s views and wishes, to be given due weight in accordance with age and maturity; and in the case of First Nations children, consideration of the importance of preserving cultural identity and connection to community. These mandatory considerations mirror those set out at section 10(2) as well as section 10(3)(d) and (e) of the Federal Act.

c) Placement under the [Federal Act](https://www.canlii.org/en/ca/laws/stat/sc-2019-c-24/latest/sc-2019-c-24.html), and Orders Available under the [CYFSA](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html)

i. Priority of Placement under the [Federal Act](https://www.canlii.org/en/ca/laws/stat/sc-2019-c-24/latest/sc-2019-c-24.html)

[75] Section 16(1) of the Federal Act addresses the placement of an indigenous child in the context of the provision of services, directing that to the extent that it is consistent with the best interests of the child, placement should occur in the following order of priority:

(a) With one of the child’s parents;

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

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

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

(e) With any other adult.

[76] Section 16(2) directs that when subsection 1 is being applied, placing siblings with or near one another must be considered in the determination of whether a placement is consistent with the child’s best interests. Further, ongoing reassessment is required, in the furtherance of family unity. Section 17 directs that where an indigenous child is not placed with his or her parent or another remember of his or her family, the child’s attachment to each such member of his or her family is to be promoted.

ii. Orders Available under the [CYFSA](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html)

[77] Sections 101 and 102 of the CYFSA set out the Orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court Order is necessary to protect the child in the future. The disposition made by the court must be in the best interests of the child or children. As the court stated in CAS of Toronto v L.(P.) - 2012 ONCA 890 at para 15, “the court owes a special duty to ensure that the safety and well-being of children are protected. As a result of this special duty, the best interests of the child are always the paramount consideration in child protection proceedings.”

[78] Section 101(1) provides the option of a supervision Order for a period between three and twelve months; an Order for interim Society care for a period not exceeding 12 months; an Order for extended Society care; or consecutive orders for interim Society care and supervision. Section 101(7) provides that the court may impose reasonable terms and conditions in relation to a supervision Order. Section 102 provides the option of a custody Order on the consent of the proposed custodial parent.

[79] In determining whether a supervision Order may be appropriate, the court must have regard to principles including the following:

a. For a final supervision Order to be an effective instrument of risk management the court should consider the following: the parent must meet a minimum threshold of co-operation and reliability; there needs to be a trusting relationship between the parent and the Society; there needs to be clear and accurate information exchanged between the parties; there should be demonstrable evidence that the parent would be compliant with the terms; there needs to be evidence that the Society could monitor a parent’s compliance; and a supervision Order should not be imposed if a parent is ungovernable. See: Catholic Children’s Aid Society of Toronto v. L.R., 2020 ONCJ 22 at 620.

b. The issue for the court is whether the parenting that could be provided with a return of the children is below the minimum standard tolerated by the community, not whether the children will be “better off” with parents other than their own Family and Children’s Services of St. Thomas and Elgin v. C.(A.), 2013 ONCJ 453 at 158.

c. Courts must recognize that families living in poverty may face challenges. Parents are not to be judged by a “middle class yardstick… provided that the standard used is not contrary to the child’s best interests.” Children’s Aid Society of London and Middlesex v. J.D., 2018 ONSC 6193 at 79. See also C.C.A.S. v. I.(J.), 2006 CanLII 19432 (ON SC), 2006 CarswellOnt 3510 at 38.

d. “A supervision Order requires some element of confidence that the parent being supervised shows awareness of the alleged problems and a real commitment to cooperate and ensure that problems do not re-occur… The likelihood of a supervision Order adequately addressing concerns about a parent must be considered in the context of that parent’s past and present behaviours.” Children’s Aid Society of Hamilton v. R.(A), 2011 ONSC 7248 at 20, 22.

[80] Interim Society care is available where a supervision Order or custody Order is not appropriate. However, the CYSFA places time-limits on the amount of time that children can be in interim Society care. Under section 122, for children over the age of 6 on the day the court makes the Order, the time-limit is 24 months. Previous periods in care must be counted unless they preceded a period of five or more years that the children were not in the care of the Society. Section 122(5) provides that a court may extend the time limit for children to be in interim Society care for a period not to exceed six months where in a child’s best interest to do so.

[81] The length of time a child has been in care is at all times a relevant consideration in determining placement. This must be viewed from the child’s perspective. Further, any decision to extend time should be based on something more than a parent’s heartfelt desire to resume care of a child. The parent(s) must face some better prospects than what existed at the time of the removal of the children from their care and the development of new ability as a parent. CCAS of Toronto v. O. (G.), 2014 ONCJ 523 at 87 and 88; Children’s Aid Society of Toronto v. S.(D.), 2009 CarswellOnt 6725 at 70, 71; Children’s Aid Society of Toronto v. H.(R.), 2000 CanLII 3158 (ON CJ), 2000 CarswellOnt 6170.

[82] An Order for extended Society care, which permanently severs the legal relationship between parents and their children and profoundly reshapes any emotional and caregiving relationship, is an Order to be made only with the highest degree of caution, only on the basis of compelling evidence, and only after careful examination of possible alternative remedies. CAS of Hamilton v. M. (M.A.), 2003 CarswellOnt 1122. The court must assess the degree to which the risk concerns that existed at the time of the removal still exist, and those risks must be examined from the child’s perspective. CAS of Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165. See also CAS of Frontenac v. T.(C)., 2010 ONSC 3054 at 35.

[83] In determining whether an Order for extended Society care is required, consideration should be given to whether the Society has provided the parent an opportunity to parent. Where the Society frustrates contact and offers few or no services, this must be considered. More will be said about this below. Children and Family Services for York Region v. A.W. and M.M. 2003 CarswellOnt 936 at 22; CCAS v. M.(P.A.), 1998 CanLII 14476 (ON CJ), 1998 CarswellOnt 3659; CAS of the United Counties of Stormount, Dundas and Glengarry v. K.(C.), 2001 CarswellOnt 219 at 18, 25.

[84] It is evident in reviewing the federal provisions regarding priority of placement and the CYFSA provisions regarding Orders available, together, that for indigenous children, return to family members, where otherwise consistent with their best interests, is of utmost priority. Where that is not possible, placement with extended family or within a First Nations family, is of substantial importance. Placement in state care through an extended Society care Order is the placement of last resort, as it is in respect of all children. As seen above, the Federal Act in particular places great weight on cultural continuity, and to child welfare outcomes not contributing to the assimilation of indigenous children.

[85] In making any Order under section 101 that would result in removing the child from the person who had charge before the removal, the court must consider the following:

a. What efforts the Society has made to assist the child before intervention (s. 101(2));

b. The court must not remove the child from the person having care, unless there are no less disruptive alternatives available (s. 101(3));

c. If the child cannot be returned to the care of the person from whom he or she was removed, the court must consider whether it is possible to place with a relative, neighbour, or other member of the child’s community or extended family;

d. In the case of a First Nations child who cannot be returned, unless there is substantial reason to place elsewhere, the court shall place the child with a member of the child’s extended family, and if that is not possible, with another First Nations family.

d) The Society’s Provision of Services to the Family, Including Adjustments to Access

[86] Both the Federal Act and the CYSFA address the provision of services in the child welfare context.

[87] At section 11, the Federal Act states that services provided to indigenous children must: take into account the needs of the child, including with respect to the child’s physical, emotional, and psychological safety, security, and well-being; consider the child’s culture; allow the child to know his or her family origins; and promote substantive equality between the child and other children.

[88] The preamble and introduction to the CYFSA both stress the importance of services that build on strengths, the importance of preventative services and early intervention, the need for services that respect diversity, and the importance of ensuring services help children maintain connection to their communities.

[89] As seen above, under section 101(2) of the CYFSA, the court is specifically directed to enquire into the efforts made by the Society and other community services to assist the child and the parent. This inquiry is not limited to the timeframe prior to the litigation, but also includes an inquiry into the Society’s efforts after the removal of the child. Careful scrutiny is required when the Society shifts its position to recommend permanent removal. Children and Family Services for York Region v. C.(H.), 2008 CanLII 64678 (ON SC), 2008 CarswellOnt 7450 at 38 – 52; Frontenac CAS v. T.(C.) 2010 ONSC 3054 at 36.

[90] Courts have held that the Society’s duty to provide services to a family is a fundamental issue in determining whether or not the risk of return to the parent can be addressed or mitigated. If every available service is not provided, or not provided in a timely manner, then the parent has not been given a reasonable opportunity to engage in those services and the ability of the court to assess a parent’s ability to benefit from services is hampered. Children’s Aid Society of Toronto v. C.(L.)., 2016 ONCJ 432, Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113 at 155.

[91] Providing services to the family includes connecting parents with external resources as may be required, whether with respect to housing, mental health or addiction supports, parenting courses, courses or services to address intimate partner violence, for example.

[92] Service to families must also include making necessary adjustments to access over time, where appropriate. This can mean increasing the amount of access supervised by the Society, moving towards supervised pick up and drop off only, to unsupervised access with unscheduled visits by Society workers. Thus in CCAS of Toronto v. R.M., 2017 ONCJ 784, Sherr J stated:

[77] It is imperative in this process that the initial access Order not stay frozen until trial, unless it would be unsafe for the child to change it. Families sometimes fail in the reunification process because no steps were ever taken to change the original access Order.

[78] The failure to change temporary access places a trial judge in a difficult predicament. The statutory time limit for a child to stay in Society care set out in subsection 70 (1) of the Act may have expired. This means that the child must either be made a crown ward or returned to a parent who might only have had supervised access for two hours once each week since the child was apprehended. Even if the access was positive, how can the judge confidently return the child to a parent if he or she does not even know that the parent can safely parent the child for a full day?

[79] In a constructive child protection case, access is constantly being re-evaluated. Where it can safely be done, access should be gradually increased. This not only improves the parent/child bond, but gives the court some basis to assess whether the parent is capable of parenting the child on a full-time basis. In child protection cases, full family reunification is often achieved one hour at a time.

[93] In CAS of Toronto v. R.B, 2020 ONCJ 113, Murray J. found the Society failed to discharge its duty to the mother under section 102(2) when it failed to properly explain family group conferencing; failed to assist her in locating resources; failed to assist in finding housing; failed to give recommendations about addiction aftercare programs; and, when it failed to increase and attempt unsupervised access so the mother could demonstrate her ability to parent for longer periods. See para 156.

[94] Murray J. noted that the CYFSA does not address what consequences should flow from a failure by the Society to properly assist. However, she considered that such failure might, in some cases, ground a decision to extend time to remain in interim Society care, under section 122, as discussed above. However, this must balance against the need for permanency planning and requires an assessment of whether, with such an extension, it can reasonably be expected that the remaining protection issues can be addressed, and, whether a transition from limited and highly structured supervised access can be successfully transitioned to a return home. In that case, despite her serious concerns with respect to the lack of assistance by the Society to the mother, Murray J. ordered that the children be placed in extended Society care. See paras. 157 - 173.

[95] See also Children’s Aid Society of Hamilton v. O.(E.), 2009 CanLII 72087 (ON SC), 2009 CarswellOnt 8125 in which Gordon J. found the Society’s failure to expand access where warranted to be an aggressive litigation strategy, and criticized the Society for “tunnel vision.” See paras. 201, 204. Gordon J. stated:

An aggressive litigation strategy has no part in child protection cases and is contrary to the Society’s role. The Society must understand it is the court that determines the child’s future, relying on the Society to present all relevant evidence. The court does not rubber stamp decisions previously made by supervisors or management at the Society. In my view the Society comes up well short in meeting its obligations in this case. The court is left with a difficult decision .... See 204 and 205.

e) Assessment of Competing Plans of Care

[96] Before making any Order under section 101 or 102 of the CYFSA, the court must consider the Society’s Plan of Care for the children, which must include information including the services to be provided; an explanation of why the children cannot be protected by the parents(s); statement regarding efforts planned to maintain the children’s contact with parent(s); a description of the proposed arrangements for the children’s long term care and placement and a statement of arrangements being made to maintain the children’s connection to their culture, and to preserve their heritage, traditions, and cultural identity. See section 100. The court must also review and carefully consider the plans of care filed by responding parties.

f) The Importance of Children’s Views and Preferences

[97] Whenever a child is affected by a court or government process, the primary consideration must be the child’s best interests. The voice of the child, as protected by Article 12 of the Convention on the Rights of the Child is an overarching principle that must inform the legal analysis, including that of best interests. See Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at paras. 51, 58, 59, and 63.

[98] Both the Federal Act and the CYFSA directly address the importance of considering children’s views and preferences in planning for them in the child welfare context.

[99] Under the Federal Act, children’s views and preferences are a factor to be considered in determining children’s best interests, giving due weight to those views having regard to age and maturity.

[100] Under the CYFSA, several sections address the importance of children’s views, preferences, and participation. Part II of the CYFSA sets out the rights of children and young persons regarding services and when in the care of the Society. Those rights include: the right to freely express their views about matters that affect them; to have their views be given due weight in accordance with their age and maturity; and to participate in decisions about services to be provided to them. Further, when in care, children have a right to be heard with respect to decisions about issues such as treatment, education, cultural identity, and residential placement. See sections 3 and 8. Moreover, as seen above, one of two mandatory considerations for the court in the determination of children’s best interests is their views and preferences. See Section 74(3)(a).

[101] Consideration of children’s views and preferences must be meaningful. The failure to truly consider children’s perspectives may have long term emotional and psychological repercussions. See G.(B.J.) v. G.(D.L.), 2010 CarswellYukon 108 at 18-24 per Martinson J. in which she emphasized that most children want to be involved and heard in some way in matters that affect them.

[102] That children’s views may be difficult to ascertain – either due to age or special needs or communication challenges – cannot mean that the efforts should not be made. To hold otherwise would be to suggest that only some children’s views matter, and would run counter both to the Canadian Charter of Rights and Freedoms and the Convention on the Rights of the Child. Children with special needs are equally entitled to be heard in respect of processes and decisions that affect them. Those who provide services must find ways to listen in a manner that allows all children to be heard.

g) Where Extended Society Care is Ordered for Indigenous Children

[103] In cases where the court determines, on the law and the evidence, that the only appropriate outcome is extended Society care, the obligations on the Society, in respect of First Nations children, continue.

a. First, and perhaps most importantly, section 16(3) of the Federal Act, there must be an ongoing reassessment of whether it is appropriate to place the child with a parent or another adult member of the child’s family.

b. Under section 17 of the Federal Act, so long as it is consistent with the child’s best interests, the child’s attachment and emotional ties to parents and family members shall be promoted;

c. Under section 109(2)(d) of the CYFSA, where the children are First Nations and an Order is made for extended Society care, the Society is obligated to choose a placement with another First Nations family, if possible;

d. Under section 112(3) of the CYFSA, where a First Nations child is placed in extended Society care, the Society has an obligation to make all reasonable efforts to ensure that the child has a positive, secure, and enduring relationship within a family through a plan for customary care, adoption, or a custody Order under section 116(1);

e. Sections 3 - 6 of Ontario Regulation 156/18 sets out specific requirements on child protection agencies for servicing of the child, including offering culturally appropriate services. Service providers must take into account the child's culture, heritage, connection to community and the concept of extended family. Section 6 in particular sets out requirements for First Nations, Inuit, or Métis children.

f. Section 186 of the CYFSA also provides that the Society may not place the children for adoption with another person until 60 days have elapsed from notice to the band and, if the band submits a Plan of Care for the children, until the Society has considered that plan. This means that even if extended Society care is granted, the band would have the opportunity to participate, if one is identified; and,

g. Section 187 of the CYFSA provides that the Society must consider the importance of developing or maintaining the children's connection to their band or First Nation and shall consider the benefits of an openness agreement in respect of the children and a member of the band or First Nation, or of an openness Order.

See CAS of Hamilton v. B.C. and D.C., 2019 ONSC 4229 at 83.

Analysis and Application

[104] The section below will address the following issues:

a. Underlying protection concerns

b. Services provided to the family

c. Current circumstances of each parent

d. The children and their views and preferences

e. Plans of Care

f. Disposition

a) Underlying Protection Concerns

[105] As seen above, a protection finding was made by Walters J. on May 10, 2021. That the children experienced physical and emotional harm and are at risk of further physical and emotional harm has thus already been determined and it is not for this court to revisit that finding, which was not appealed. Walters J. found that the Society’s materials amply made out the child protection concerns.

[106] For context, however, I briefly set out the nature of the underlying protection issues to ground the analysis that follows.

The Father

[107] As seen above, the children resided with the father under a custody Order after Society involvement in 2014 in Hamilton, which had led to the removal of the children from the mother’s care. The Hamilton CAS became re-involved in or around 2017. Two Hamilton workers, Heather Atlas and Sasiga Sivasunthararasa, testified that in 2018, the Society was regularly receiving calls from the children’s school with respect to statements by the children who disclosed physical discipline, yelling, and name-calling. The father acknowledged at least a dozen calls of this nature although the Society alleged “dozens.” The calls became sufficiently frequent that the Hamilton Society requested that the paternal grandmother move in with the father in late 2018, which she briefly did. During that time there were no calls from the school.

[108] On May 3, 2019 the school contacted the Society in respect of an allegation by W. that his father hit him that day. A worker from each of the Hamilton and Niagara Societies attended the school and the children were interviewed. On the basis of the history and the children’s statements that day, they were removed from the father’s care and placed in temporary Society care.

[109] At the time of the Hamilton Society’s involvement, the father had stable housing. Neither worker expressed concerns about the state of the home. Both workers testified that at that point it was the Society’s intention to support the father in successfully parenting the children. By the time of the trial, housing had become an issue, with the father testifying that he was residing with his brother in a one-bedroom apartment, sleeping on the couch.

The Mother

[110] The primary protection concerns with respect to the mother were her mental health challenges and her relationship with her now-former partner, J.B.

[111] The mother acknowledged that when the children were apprehended from her in 2014, she was struggling with her mental health. Her identified diagnoses include: multiple personality disorder, dissociated identity disorder, post-traumatic stress disorder, obsessive compulsive disorder, depression, and night terrors. Those issues, with which she was diagnosed as a child, persist, although as seen below, she has taken significant steps to address them. She testified that until the Society’s current involvement, however, she did not take those steps.

[112] The second major concern has been the mother’s relationship with J.B., from whom she separated in July 2021. The evidence is that J.B. has a criminal record, including sexual assault against a minor, was on the sex offender registry from 2007 – 2017, and was identified as a high risk offender. He was incarcerated for 40 months in relation to the sex offence. In May 2019, after being placed in the group home, the child B. disclosed to worker Judy Jago that J.B. “hurt his bum and touched his private areas.” There was a police investigation, but ultimately no criminal charges. The Society verified physical but not sexual abuse by J.B. Throughout its involvement the Niagara Society regarded J.B.’s presence in the mother’s life as inimical to her ability to present a viable plan for care of the children.

[113] In her testimony, the mother described J.B to be verbally abusive to her, name calling and threatening her regularly. J.B. testified but left partway through examination-in-chief. His demeanour and presentation confirmed the Society’s concerns about his volatility. He testified that he has multiple personality disorder and experiences significant depression and anxiety. He presented as explosive and uncooperative, with little insight into what steps he might have taken to assist the mother in her goal to parent the children. The mother did not separate from J.B. until July 2021, and thereafter again resided with him until partway through the trial.

[114] During the Society’s involvement the mother did have housing, albeit in rooming-type quarters, in a building with heating and other issues. However, by the time of the trial, she, like the father, also did not have stable housing. She was residing with a sister in a temporary arrangement where she would be unable to accommodate the children.

b) Services Provided to the Family

[115] As set out in the introduction, I have concerns about the engagement of the Niagara Society with this family over the life of its involvement. In my view, the involvement proceeded with insufficient recognition that this is an indigenous family, and with limited commitment by workers to rolling up their sleeves to see how they could help build on both parents’ strengths with a goal of a family-based plan for the children. It is difficult not to conclude that after the child protection application was amended to seek extended Society care, the assumption was made that that is how it would go, and the work of actively supporting the family simply never got off the ground. The mother’s counsel alleged tunnel vision on the part of the Society led to a failure to engage meaningfully with the parents. That, on the evidence, is a fair characterization.

[116] I acknowledge that some limited supports were put in place for the children and the parents. These included (but may not have been limited to):

a. The father was referred to therapy in the fall of 2020 with John McLachlan, a year and a half after the removal of the children;

b. B. was referred to a therapist, Jessie Mudie, also in the fall of 2020, and had several sessions with her;

c. The children were referred to Dr. Williams for psychoeducational assessments;

d. The Society connected the children with the Akwego program, an indigenous children’s program in the fall of 2021.

[117] I also acknowledge that COVID-19 has, from March 2020 onwards, caused some disruptions to external services available to children and families.

[118] However, I set out here a non-exhaustive list of my observations and concerns regarding the engagement of the Niagara Society overall, with this family:

Lack of Services and Support to the Father

a. Although the father has cognitive difficulties, and notwithstanding that this issue was listed in the 2019 transfer memo from the Hamilton Society to the Niagara Society, neither of the two family service workers considered the impact of this on how best to communicate with the father to work effectively with him.

b. Not until April 2021 (almost two years after removal of the children) had a referral to Developmental Services Ontario (DSO), to request an Adult Protective Services Worker (APSW) been completed. Therapist John McLachlan explained to the court that DSO assists those with disabilities to connect with community services, and that an APSW can work with people with the father’s strengths and challenges on problem solving and life skills. As a result of the very late referral, as at trial, the father was still on the waiting list for a range of services in which he had not yet been able to participate. It is unknown to what extent those services could have assisted him, but efforts should have been made earlier to make this connection.

c. Nattalie Linger acknowledged that she offered little practical support to the father to connect with a family physician, obtain a mental health assessment, or secure housing. While the Society attempted to “repair” the evidence on this in redirect examination, the worker agreeing that part of what the Society is assessing is a parent’s ability to independently complete these tasks, I find that this ignores the obligation of the Society to actively assist vulnerable parents.

d. Although Simon Stephen testified that the Society wanted the father to take an anger management course, no financial assistance was offered when the father indicated he could not afford the $150 fee.

Lack of Services and Support for the Mother

e. Several Niagara Society workers confirmed that their working assumption, while assigned to the file, was that the mother could not and would not be the primary caregiver for the children. This assumption was made very early on. In my view, this lead to inadequate engagement with her, given the strengths that she showed in terms of mental health treatment, parenting courses, and understanding of the children’s needs.

f. That the mother is indigenous was set out in a Hamilton CAS case note dated November 28, 2014. However, Simon Stephen testified that he never fully reviewed the Hamilton file. In any event, he was aware, by at least September 2019 that the mother is indigenous. He acknowledged that other than connecting the mother with “Angie” at the Niagara Chapter of Native Women, he did not follow up with any indigenous services which could assist or work with her. He acknowledged that other than that referral, the mother was “on her own” to access supports. Given the balance of Mr. Stephen’s testimony, I believe the mother’s evidence that Mr. Stephen told her that it was “not the Society’s job to help her on the indigenous side.”

g. Nattalie Linger confirmed that after the identification steps were taken, there was no follow up by her regarding culturally appropriate services for the mother or the children. Ms. Linger stated that the mother was already connected with an indigenous housing worker and seemed to regard that as sufficient.

h. As will be seen below, the mother addressed mental health concerns to the apparent satisfaction of the Society, took parenting courses of her own initiative and demonstrated learning from those courses. She also successfully attended access over a substantial period of time. Workers confirmed that the main remaining child protection concern was her relationship with J.B. Yet, there is no indication that work was done with the mother to support her to be able to separate from J.B. or to establish separate housing. Nor was any counselling or other support offered that could have assisted her in gaining insight into the nature of the protection concern with respect to J.B.

Issues Common for Both Parents

i. As seen above, the appropriate management of access for parents is a form of service provision of the Society. More will be said about this in the access section below. However, the evidence is that both parents’ access with the children was positive. Both engaged with the children lovingly and largely appropriately. Yet, at no point was either parent’s access expanded and neither parent was given the opportunity for access with less supervision. This denied both parents the ability to show their strengths and capacity in this regard, or to be guided and supported in the event that issues arose. In the father’s case, assumptions were made about a link between access and B.’s behaviours in particular with inadequate exploration of other or supplementary explanations.

j. Both parents experienced a lack of information sharing by the Society about medical and other issues related to the children. The father testified that he was never provided with report cards, for example, and that he received copies of the first two Dr. Baird reports only months later after having to request them from the family service worker. I regard this as a failure of service provision as well. Other than consulting with the parents with respect to medications, the parents were generally not advised about or informed of issues related to the children. In the father’s case, where he opposed ADHD medication, a motion was brought rather than inviting him to attend medical appointments to better understand the concerns leading to the prescription of medication.

k. The lack of information extended to the shocking failure to meet with both parents and tell them about R. having been sexually abused in the foster home, at least once, and of W. having witnessed that abuse. While the Society suggested this was “in the documentary disclosure” (which, the court was advised, comprised thousands of pages), this is inadequate. The parents should both have been immediately advised about the incidents and next steps should have been discussed and planned in consultation with them.

Lack of Services for the Children

l. There were also service inadequacies in relation to the children.

m. Although the evidence was that as early as when B. was at the group home, there were concerns about possible “psychosis”, and evidence over time that B. has struggled with how he sees himself (referring to himself as a psychopath, for example, and as a “mean” or “bad” person), B. was only referred to counselling for a brief period in the fall of 2020. When that therapist by her own description had difficulty doing meaningful work with B., referring to it largely as play time, it does not appear that further referrals were made. Ms. Dale confirmed that B. is not currently on the waiting list for any mental health or other services. Although Dr. Williams, who conducted a psychoeducational/psychological assessment for B. had recommended counselling for “self-talk” and testified that he might have been available to provide that counselling, he was never asked. Assistance from a psychologist such as Dr. Williams might have assisted in providing B. with tools for expression and self regulation.

n. As discussed, R. was sexually assaulted by another child in the foster home on more than one occasion. W. witnessed at least one of these assaults. During its involvement the Society failed to appreciate the significance of this, reflected in the near invisibility of evidence regarding this in the affidavit materials filed for trial, the failure to advise the parents or meet with them about this and the failure to refer R. to services in a timely manner thereafter. This, notwithstanding evidence that R. continued to speak about the incidents at school and showed concerning ongoing behaviours such as touching herself. Even if I accept Ms. Dale’s evidence that the referral she made in April 2020 for services for R. related to the sexual abuse (and the OCL argues that I should not), it is difficult to understand why it would have taken 6 months to make that referral, and then inexplicable that it was not followed up on until October 2021, one and a half years after the assaults, during this trial. That the worker could testify that even after the assaults she did not have concerns about the children’s safety in the home is at best, difficult to understand, since they had so self-evidently been inadequately supervised.

o. Since the children’s removal, three children’s service workers have been involved. While Ms. Anderson made an internal referral to an aboriginal advocate for the children and did make some efforts to engage on this issue, she acknowledged that during her time on the file no culturally appropriate services were offered to the children. While Ms. Dale was involved, the children attended an indigenous March Break Camp in 2021. They were also briefly connected with a virtual program called Akwego, but the court was advised that it conflicts with access times, so that has not continued. During the trial, the children started drumming on Monday nights. No other indigenous services or programming has been made available in two and a half years.

p. As seen, B. stated in October 2019 that he did not wish to see his mother. The worker stated that she repeatedly asked if B. wanted to see her and he continued to decline. Not until March 2021, did B.’s perspective change, and only in April 2021 did regular access between B. and the mother resume. Given how appropriate the mother was in her access with W. and R., and given that the mother is B.’s connection with his indigeneity, I have difficulty understanding why therapeutic work was not done with B., and potentially with B. and the mother together, to enable a much earlier repair of that relationship. Given B.’s difficulties this could surely have been an ongoing source of love and strength.

General Comment Regarding Services

q. I have several related observations about the approach to services in this case more generally:

r. First, the efforts of Society workers are fragmented, without the communication required to bridge the divides between respective roles. Children’s service workers do not always talk to family service workers, and visa versa, and this lack of information results in a disjointed approach to families. Thus, Simon Stephen, for example, did not know that R. had been sexually assaulted in the foster home and did not communicate that to the parents.

s. Further, the role division between the workers – in terms of working with parents, or working with children, but no one – apparently – having regard to the whole family, compromised the Society’s ability to see the broader picture, to appreciate the collective strengths of the parents, and best determine which services could realistically result in being able to return these indigenous children to family. Workers repeatedly testified that certain tasks related to this family were “not my job” or “not within my role.”

t. As seen, the Society only belatedly came to appreciate that B., W., and R. are indigenous children. Are no point, however, was there an apparent recognition that therefore, this is an indigenous family, or that the children’s connections with their indigeneity are through their mother. This, notwithstanding the Memorandum of Understanding between the Niagara Society and the Niagara Chapter of Native Women, in which the Niagara CAS “recognizes… the importance of identity, early attachment, the traditions and cultural views of each person…” The mother testified she was not told about the Society’s limited efforts regarding indigenous services for the children, or about the Society having reached out to the indigenous child advocate, even though she is the children’s link to their indigenous identity.

u. In my view, service delivery to this family could have been strengthened, had the Society, from the outset, worked with the parents and children together, and worked across roles to build on the parents’ strengths. The Society should have left open both the hope and goal that a family-based plan could be made for these children.

v. This family should also have been offered the opportunity to attempt to develop a plan, with the Society, through an alternative dispute resolution process. This could have been, as I have stated elsewhere, through the use of an indigenous circle, a child protection mediation, or a family group conference. Those processes could have helped identify support persons and arrangements of benefit to the children. In my view, serious consideration of these alternatives should be part of the management of each and every child protection case, as they assist in framing the issues as a joint planning process to keep children safe and well taken care of, as opposed to a litigated win-lose scenario.

w. My final comment on services is this: it came out during the trial that foster parents have access to considerable supports to be able to parent the children effectively. These include access to respite care on what the court understood to be an unlimited basis, as well as the availability of babysitting hours, and the placement of a child and youth worker in the foster home for a number of hours each week. In addition, W. and R.’s foster mother testified that the Society provided tablets for the children which she stated was very helpful. The foster parents clearly needed assistance – the father would likely have benefitted from a similar level of support.

c) Circumstances of Each Parent

The Father

[119] The father is 35 years old. He has worked in the past but is presently receiving Ontario Disability Support Payments (ODSP). He testified that he has a learning disability and speech impediment. He has been diagnosed with adjustment disorder and post traumatic stress syndrome. No medication has been prescribed. The father presented as earnest and as a man who loves his children.

[120] As seen, when the children were removed, the primary concerns regarding the father related to physical and emotional harm to the children. Those concerns have been verified by this court through the protection finding.

[121] While I have the concerns set out above with respect to the efforts of the Society in terms of engaging the father, as at the trial, the unfortunate reality is that none of the protection concerns have been alleviated.

[122] The father did not complete any programs that might assist with anger management or parenting strategies, and, throughout the Society’s involvement, remained focused on a particular trauma-parenting course that he stated had been recommended by Dr. Baird. He continued, at trial, to state that parenting courses would not be helpful, notwithstanding the position that he would cooperate with terms of supervision.

[123] Despite the protection finding having been made, the father denied using physical discipline or verbal abuse of the children. This was so despite providing his own evidence that at least twice he did harm the children – on one occasion throwing B. against the bed and having his head hit the wall, and on another, hurting W.’s legs on the day the children were removed. He did not believe there was any merit to the numerous concerns raised by the school.

[124] Asked about the calls from the school the father stated that an educational assistant had a problem with him. Events reported by the children were either “accidents,” or the children hurt one another and he was blamed. He did not acknowledge yelling or name-calling. There was ample evidence of the children telling witnesses in the proceeding about physical incidents and name-calling. The paternal grandmother testified that the father did yell at the children, in the “loudest voice you could imagine.” The mother testified that she believes that the father did yell and name-call because, she said, they did that to one another when they were together.

[125] Asked about what had changed between 2019 when the children were removed, and the present, the father was unable to provide a clear answer.

[126] The paternal grandmother, who loves the children and has an excellent relationship with them, testified that she could not support a return of the children to the father’s care. She stated that she has tried to support the father, but ultimately, from her perspective, coming into care has been “the best thing” for them. This is unusual and persuasive evidence – for a loving and supportive grandparent to state that in her view the children are not safe with their parent is notable.

[127] While expressing considerable empathy for the father and encouraging further supports for him including having an Adult Protective Services Worker, therapist John McLachlan confirmed that the father did not appreciate the nature of the child protection concerns. Counselling was stopped after a number of sessions, and it was clear that little headway was being made.

[128] While the father has now been connected with an Adult Protective Services Worker, that individual was not called as a witness, and the evidence was vague regarding what programs, specifically, the father is on the waiting list for, or what either he or the APSW believes he could gain from those supports to increase his parenting capacity.

[129] The father’s relationships with others who could potentially assist or support him is poor. He testified that he does not have a good relationship with the paternal grandmother or with his brother (with whom he is staying). And, although the mother is open to working with and supporting his parenting plan, the father did not express similar openness to working with or being supported by the mother, stating that he does not trust her.

[130] Further, as at the date of the trial, the father is now without stable housing. He is living with his brother in a one-bedroom apartment, staying on the couch, and there is no evidence he could actually accommodate the children were an Order made placing the children in his care.

[131] As at this time, the court is unable to find that the children would be parented differently by the father, or be safer – physically and emotionally – than they were in 2019 when they were removed.

The Mother

[132] As also seen, when the children were removed the main protection concerns about the mother related to mental health, and her former partner, J.B.

[133] The mother is 34 years old. She is in the process of completing her high school education, and hopes to pursue a diploma in early childhood education at Mohawk College. Like the father, she is in receipt of ODSP.

[134] Over the course of the Society’s involvement, the mother made significant progress with her mental health challenges. She followed the recommendations of her physician. She obtained a mental health assessment. She participated, and clearly learned a great deal from a 24-week program in dialectical behavioural therapy. She employs a range of strategies to manage her well-being. She testified with candour and insight into how she maintains her mental health. She is compliant with medications. Society workers Mr. Stephen and Ms. Linger both testified that the mother has followed medical recommendations. Nothing was requested of her in terms of attending to her mental health, with which she has not complied.

[135] The mother did testify to the persistence of some of her mental health issues. She continues to experience dissociations, and lives with “alters”, although she states that she has more tools to manage them. She testified that she self-harmed as recently as September 2021. Nevertheless, there is little evidence that to the extent that the mother continues to experience mental health issues, it perceptibly impacts her parenting time with the children. Apart from occasional short temperedness with Society workers (which is surely understandable in the circumstances), the evidence is that the mother is appropriate with the children when she sees them, notwithstanding mental health concerns.

[136] As seen, the mother did separate from J.B., albeit not long before the trial. In July 2021, she left the relationship and moved to a shelter. She received therapeutic support in that setting. She stated that she then needed to move back with J.B., not being in a relationship, and she shared accommodation with him until partway through the trial. At its highest and best, it appears that the mother has at last been able to separate from a man who has been abusive to her. The separation, however, is relatively recent, and they have previously reconciled after breaks in their relationship. I agree with the Society that is difficult to know how durable the current separation is in that context.

[137] Of her own volition, the mother took a range of parenting and other courses. The evidence is that during access she made active efforts to use what she had learned. She kept the materials so she could go back to them and refer to them as needed. There were no additional courses the Society requested that she take.

[138] The mother was impressive in her testimony – both in terms of her level of insight into her mental health issues, issues related to the children’s behavioural presentation, and her separation from J.B.

[139] The mother was largely cooperative with the Society. While there were instances where she became angry or frustrated, she followed Society’s advice regarding her mental health, cooperated regarding the medical needs of the children, and signed consents as requested. Workers confirmed there were no further programs she had been asked to take.

[140] As indicated at the trial, the mother was supporting the father’s Plan of Care. She testified generously about how she would be prepared to support him and help him manage the children, and to contribute financially. I believe that she wants to work with the father collaboratively to support his parenting.

[141] However, her testimony – heard after that of the father – also revealed a lack of appreciation for the gravity of the protection concerns related to the children in the father’s care. Having heard all of his evidence, and notwithstanding the protection finding already having been made, she maintained that he did not harm the children, and to the extent that there was any harm, she focussed on the father’s intention, not on the effect on the children. When evidence about harm was put to her, she stated that the incidents were accidents, that the father is “klutzy”, that children sometimes hurt themselves, and that the children mix up their stories.

[142] She did acknowledge that the father probably yelled at the children and called them names when they were in his care.

[143] Further, she did not recognize risks to the children posed by J.B. during her access with the children (before the Society’s removal of them from the father), notwithstanding that she said he would yell and be verbally abusive, to the extent that she would need to remove them from his presence. Despite showing considerable insight in other ways, on these issues she did not.

[144] While this is of less relevance as the mother withdrew her own plan to care for the children, as at the trial she did not have housing.

d) The Children and their Views and Preferences

[145] The evidence is that all three of the children are delightful, loving children.

[146] All three of the children also have special needs.

The Child B.

[147] The child B., who is 9 years old, was described as a sweet, loving, affectionate boy who, among other things, loves video games and Pokemon. He needs and craves consistency and routine. He thrives when he receives one-on-one attention. He adores his siblings and clearly loves spending time with them.

[148] B. has, in the words of his counsel, suffered a great deal over the course of his young life. He experienced physical discipline by his father, as well as verbal abuse including name-calling. In the group home, where he was placed with children much older than him and routinely bullied, he was repeatedly restrained, resulting in numerous occurrence reports. He has now lived in two foster homes. Over the course of the Society’s involvement, B. has demonstrated a range of behaviours, including meltdowns and soiling. These have been difficult to correlate directly against specific factors, given what he experienced before coming into care and his circumstances over the last two and a half years. There is evidence that he is fearful of being abandoned.

[149] B. may struggle with mental health issues, although as at trial these have not been diagnosed. While in the group home, staff queried psychosis at one point. Recently, his current foster mother has had great difficulty managing his behaviour, on at least one occasion wondering whether he should be taken to the hospital. During the trial, B. stopped wanting to have access with his father, stating that he felt out of control and that he was a psychopath like his father. His current foster mother stated that while living with her B. has stated he worries about being a bad person, and about being mean.

[150] B. has ADHD. In his psychological assessment dated February 21, 2020, Dr. Williams found B. to be average in terms of intelligence but assessed a deficit in working memory, and expressed concern about B’s academic development. He made a series of recommendations, including a stable, secure, loving home environment; consistency, predictability, and routines; that B. be taught self-talk strategies to help him with novel or complex situations; and, working collaboratively with B. regarding his behaviours.

[151] B. does not appear, generally, to have been consulted or actively listened during the Society’s involvement, except in relation to his access preferences with his mother, and now, with respect to his current request not to see his father. This has been most pronounced with the current children’s services worker’s involvement. Notably she testified that although B. specifically requested in person visits with his father, she never discussed this with him. B. was also not directly engaged by Dr. Baird, who reached conclusions about access without discussion with B.

[152] B.’s views and preferences are clear. More than anything, he wants to be placed with his siblings. That is his highest priority. His preference is to live with his father and siblings. If that is not possible he wishes to live with his mother and siblings. He does not want to live in a “forever home”, and, if he has to stay in foster care, he wants to live with a foster parent whom he knows.

[153] No specific views and preferences were provided with respect to access in the event that B. cannot be placed with a parent. During the trial, he stated to the OCL clinician Ms. Hotson that he did not currently want access with his father. Nevertheless, he continued to state that his view and preference is to live with his father and siblings.

The Child W.

[154] The child W., who is 8 years old, was described as an adorable, lovely child who is generally positive and enthusiastic. He is friendly and eager to please. He loves to play with cars and building blocks and is very active. He enjoys school. Like B., he loves Pokemon cards. He loves his siblings, B. and R. W. enjoys seeing his parents.

[155] W., like B., has also experienced much in his young life. He too experienced physical discipline by his father, as well as verbal abuse including name-calling. He remembers living with his father and how his father parented him. The evidence is that he witnessed one of the sexual assaults on R., and that he has not been provided with any therapeutic support in that regard.

[156] W. has resided in one foster home since his removal from his father’s care. His foster mother described him as having made great strides since then. She stated that when he arrived, he would scream, hit, and yell; did not know how to shower, toilet himself, or brush his teeth; he had difficulty speaking clearly; and was unable to follow instructions or take turns. Now, according to her, there are fewer behaviours; he is able to shower and manages toileting without accidents most of the time; his speech has improved; and he is able to follow routines and accept that certain behaviours have consequences. He is below grade level at school but progressing.

[157] W.’s pediatrician, Dr. Wahi, has assessed W. as having ADHD. Dr. Wahi also queried a diagnosis of global developmental delay and in January 2020 recommended genetic testing. In the psychological assessment dated February 17, 2020, Dr. Williams found that W. has outstanding non-verbal problem-solving skills, but deficits in other areas of his cognitive development. He was not diagnosed with a learning disability, Dr. Williams noting that at W.’s age, “things are still very much in flux.” Dr. Williams recommended that W. see a speech pathologist; that he be given an environment with structure and consistency; and that he be provided with a loving, stable and secure home environment. Dr. Williams notes that over time, the gap between W.’s verbal and non-verbal skills may lessen.

[158] W.’s views and preferences are also clear: W. wants to live with his father and be reunited with his siblings. W. does not want to live with a “forever family.” W. did not express a wish to live with his mother. The OCL clinician Ms. Katz stated that it “never seemed to be an option for them” (referring to W. and R.).

[159] As with B., the court heard no specific views and preferences with respect to access in the event that W. cannot be placed with a parent. The foster parent testified that W. loves to see both parents. I am prepared to infer that given his wish to live with his father, W. would want as much access with his father as possible if he could not live with him.

The Child R.

[160] The child R., who is 7 years old, was described as an affectionate, lovely, polite child who is eager to please. She loves to play with her dolls. She was described as a “social butterfly” who likes to help, loves life, and likes making gifts for her mother. She loves one-on-one “girl time.”

[161] R., who has been in care since she was 5, has experienced much. While there was little evidence that R. experienced the same level of physical discipline or verbal abuse her brothers did, she was exposed to the same home environment.

[162] R. has been placed in the same foster home with W. since removal from her father’s care. When she came into care, R. had difficulties with gross motor skills, sleep issues, and challenges at school. While she was easier to understand than W., she too had speech delays. She displayed temper tantrums and had difficulty regulating her behaviour. She also had toileting issues and was unable to bathe or dry herself. Her foster mother described improvements across all of these domains while R. has been in care. Her gross motor skills have improved; she sleeps better, partly due to medication; she has learned to read; she is better able to regulate her behaviour and can talk about feelings; and she is now able to bathe herself. Her toileting, however, has been uneven, and as at the trial she seemed to be once again having accidents.

[163] R. also has ADHD and takes medication to assist with this. She has not yet had her psychoeducational/psychological assessment with Dr. Williams. In 2019, Dr. Hogan noted gross motor delays and delays in expressive language.

[164] As discussed above, while in care, in August 2019, R. was sexually assaulted by another foster child. R. said that a boy had tried to put his penis in her private parts. The foster mother reported this to the Society and the boy was removed from the foster home. She stated that a person from the Kristin French Centre came to speak with R., but couldn’t recall if there had been counselling. Other evidence in the trial suggested that there was not. Since then, there is evidence that R. sometimes speaks about the assault at school, and that she continues intermittently to touch herself. A referral to Contact Niagara in April 2020 (more than six months after the assaults for supports for R. was not followed up on until October 2021 (during trial), one and a half years later. R. has remained in the same foster home, and the foster mother stated that “she seems fine with it.” Clearly, this issue has not been taken seriously by the Society. As I have also noted elsewhere, the parents were not informed about this.

[165] R’s views and preferences are clear: R., like her siblings wants to live with her father and her siblings. In the third meeting with OCL clinician Ms. Katz, she stated that she would be “OK” with a forever family, but her siblings would have to be with her. The foster mother appears to have been discussing the father not being able to properly care for the children.

[166] The court heard no specific views and preferences with respect to access in the event that R. cannot be placed with a parent. Again, I am prepared to infer that given her wish to live with her father, she would want as much access as possible if she could not live with him.

General Comment About Views and Preferences

[167] The OCL clinicians, Ms. Hotson for B., and Ms. Katz for W. and R., both essentially testified that they took the children’s views and preferences at face value. That is, if the child said “I want to live with my father,” that is what would be shared with the court.

[168] Ms. Katz testified that it was not her role to discuss the underlying protection concerns with the children, but only to obtain their views and preferences going forward. She stated it was also not her role to look at how the children were affected by what brought them into care, or whether they were traumatized.

[169] Similarly, Ms. Hotson testified that when B. expressed to her his wish to live with his father, they did not discuss approaches or strategies that could keep B. safe in that context, or what B. thought a return might actually look like. When B. told her his father did “horrible stuff” to him, she stated that to her recollection she did not ask follow-up questions about that. She said that her role is not to conduct a child protection interview, but simply to talk about views and preferences. Ms. Hotson did ask what B. would do if his father hurt him again when he went home, to which B. replied that he would tell his dad not to hurt him. This was not explored further. It is unclear what B.’s views would be if there is no basis to think that his father would parent differently than before the removal from the home.

[170] The Society argued in closing submissions that given the type of questions put to the children by the clinicians, the court should ascribe limited weight to their views and preferences. Counsel noted the testimony of the OCL’s expert witness, Tara Noble, that it is insufficient to consider only the bald statements of a child that he or she wishes to live with a particular parent. Ms. Noble emphasized the importance of understanding children’s views and preferences in context. I agree.

[171] While the Society’s critique of the OCL approach to obtaining views and preferences in this case is somewhat ironic, given what I have found to be the failure of Society workers to meaningfully engage with the children directly over two and a half years, it is certainly more helpful to the court to receive children’s views where it is clear that the full scenario has been addressed with them. For example, when B. said repeatedly that he wants to live with his father, it would have been helpful to also know B.’s thoughts about returning home if the protection concerns have not been mitigated.

[172] While the Society argued that the children’s views should be given minimal weight in the circumstances, in this case I find that not to be the case. The sheer frequency with which the children have stated their wishes – in particular W. and B. – leaves me with little doubt that returning to their father is what they do wish for. That wish must be balanced against the other factors which this court must consider in ascertaining the disposition that is in the children’s best interests.

e) Plans of Care

The Plan of Care of the Society

[173] The Society’s Plan of Care, filed August 30, 2019, is spartan. It provides that the children be placed in extended Society care, without access, for the purpose of adoption. The plan provides that “The Society recognizes the importance of the children’s culture and will preserve their heritage, traditions, and cultural identity.” There is no indication as to what steps might be taken to secure an adoptive match for these children, who are indigenous, have high needs, and wish deeply to remain together. It is also entirely unclear how an Order for no access, as set out therein, would help “preserve heritage, traditions, and cultural identity.” As seen, the Society’s position shifted modestly just before trial to include very limited access.

The Father’s Plan of Care

[174] The father’s Plan of Care, dated September 3, 2019 asks that the children be returned to him under a supervision Order. The father commits to: allowing scheduled and unscheduled visits; signing authorizations as requested by the Society; ensuring regular school attendance; completing parenting programs as requested; and refraining from the use of physical discipline.

[175] As indicated, the mother did not pursue her Plan of Care at the trial, indicating instead that she is supporting that of the father.

f) Disposition

[176] Having considered all of the evidence in the trial and the governing legal tests, I conclude that the only option available to the court is to place the children in extended Society care. As noted in the introduction I reach this conclusion with great regret, for reasons including the following:

a. In this case, the court has two choices: to return the children to the care of the father under terms of supervision, or to place them in extended Society care.

b. I am unable to find that placing the children with the father would be safe or appropriate in the circumstances. The evidence is that the father does not have insight into the protection concerns that lead to the finding by Walters J., and he has not taken steps which would suggest that parenting now would look different and safer than parenting when the children were removed in 2019. He has taken no parenting courses, no anger management courses, and does not accept that the concerns of the Society were and are legitimate. His own Plan of Care, signed over two years ago, indicated that he would pursue programming, but he has not done so.

c. I am unable to find that the mother’s strengths could “fill the gaps” in the father’s plan or make his parenting sufficiently safer to allow for a return of the children. While, as I have indicated, her own progress has been impressive, she also does not recognize the child protection concerns in the father’s home that led to the removal.

d. This is not a case where an extension of time under section 122 of the CYFSA is appropriate. The father did not provide a concrete plan as to what could be achieved with a further Order for interim Society care, were that in fact available. He could have called his APSW to testify as to the programs he is on the waiting list for, but did not do so. The court does not have a sense of how his circumstances could improve within a 6 month time frame, given that they have not changed since the removal of the children in May 2019. The children have already been in care twice almost twice as long as permitted under the statute.

e. I reach the conclusion that I have with respect to section 122 notwithstanding my concerns about the lack of full and supportive engagement by the Society with both parents in this case. While section 122 can sometimes be used to provide time to the parents where services have been inadequate, this is not such a case.

f. At the end of the day, despite what I have found to be deficits in the Society’s management of this case and engagement with the parents, the question remains whether risk to the children has been mitigated. I find, having reviewed the evidence fully and carefully, that the risks that led to the removal of the children from the father’s care still exist. The children have high needs, and he has not taken steps to put himself in an improved position to parent. The children would be no safer upon a return to his care than when removed.

g. A supervision Order not being appropriate, I find that there are no less disruptive alternatives available than an Order for extended Society care in this case. The court was not provided with evidence of alternative plans for the care of the children.

h. I have heard, I respect, and I have seriously considered the children’s views in this case. I hear – loud and clear – that they want to return to the care of their father and they want to be together. The father loves the children and they love him. If there were a way in which, on the evidence, I could make this Order safely, I would certainly do so. In the circumstances of this case, however, balancing all of the considerations to which the court must have regard, I am unable to give effect to those views. As will be seen below, the children’s perspective shapes the outcome with respect to access, however.

i. I have also considered, as I am obliged to do as part of the determination of the disposition that is in the children’s best interests, the importance of preserving the children’s indigenous identity and connection to community. That the only safe outcome is extended Society care, notwithstanding that the children are indigenous, is of deep concern to this court. I find, within the meaning of section 101(4) and (5), that there is no evidence at this time of an available no community placement whether with a First Nations Family or otherwise, and therefore substantial reason for placing elsewhere. The obligations on the Society, in this context, as set out in paragraph 103, above, are of significant import.

j. In all of the circumstances, the father’s Plan of Care is not viable and cannot be expected to address the child protection concerns.

k. While I find that the Society’s Plan of Care is spartan, and that significant efforts must now be undertaken to respect that this is an indigenous family with high needs children who want to stay together, it is the only plan that will adequately protect the children from the risks that formed the basis of the child protection finding.

[177] On the evidence then, the children shall be placed in extended Society care.

[178] A brief note about placement, post-extended Society care: The Society stated in reply submissions an acknowledgment that the children could be in extended Society care for some time, and that if an adoption plan is not achieved, it could well be that the Society could seek a status review to place the children with the mother if she continues to improve. This is an important comment, particularly in light of the obligations which I have set out at paragraph 103 above.

[179] While this court can make no Order to this effect, I urge the Society to carefully consider my comments above with respect to the mother’s strengths, and the deficiencies to date in terms of services. I urge meaningful, fulsome engagement with her to help her understand and appreciate the protection concerns, and support in obtaining appropriate housing. In my view, it is possible that she could eventually offer a safe placement for these children, with appropriate supports. She has much to offer, and she is these children’s connection with their indigenous identity and heritage. I have already noted the obligation under the Federal Act to continue to reassess, in the furtherance of family unity.

[180] While I can also make no Order to this effect, I urge the Society to make every effort to place these children together. The sibling bond is clearly strong and the children love one another deeply. B. has been pleading for this. If the children cannot be with their biological parents at this time, as I have found is the case, if at all possible, they should be with one another.

D. ACCESS/ PARENTING TIME

[181] As with the question of disposition, the court’s determination regarding access, in a case involving First Nations children, is governed by both the Federal Act and the CYFSA.

[182] Under the Federal Act, as seen above, best interests is the primary consideration, which includes, under section 10(2), the importance of children maintaining an ongoing relationship with their families, having regard, among other things, to the nature of the relationship and the importance of preserving the child’s cultural identity and connections to the indigenous group to which the child belongs. Under section 17, as seen, where a child is not placed with family, the child’s attachment and emotional ties to family are to be promoted to the extent that it is in the child’s best interests.

[183] I agree with the submission of the OCL that the Federal Act must be integral in any determination regarding access for children placed in extended Society care, and that both present and future benefits of children’s relationships with family must be considered.

[184] Under the CYFSA, the approach to access changed significantly from the prior approach under the CFSA. Best interests is the guiding principle, as defined under section 74(3)(b) and augmented under section 105(6) (see below). The direction now, to the extent possible and in the children’s best interests, is to keep children connected with important people in their lives. The new approach is less rigid, more flexible, and focused on a holistic assessment of what is truly in children’s best interests. CAS v. J.G., 2020 ONCA 415; Kawartha-Haliburton CAS v. W.(M.), 2019 ONCA 316; M.(L.) v. Peel Children’s Aid Society, 2019 ONCA 841.

[185] 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.

[186] Section 104(1) of the CYFSA provides that the court may, in the child's best interests,

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[187] Section 105(4) provides that where a court makes an Order that a child be placed in extended Society care, any Order for access is terminated. Under section 105(5), a court shall not make or vary an access Order under section 104 with respect to a child in extended Society care unless the court is satisfied that the Order or variation would be in the child's best interest.

[188] Section 105(6) of the CYFSA sets out additional considerations for the best interests test in respect of access as follows:

The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),

(a) Whether the relationship between the person and the child is beneficial and meaningful to the child;

(b) If the court considers it relevant, whether the access ordered will impair the child's future opportunities for adoption.

[189] In Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, the Ontario Court of Appeal held that with the changes to the child protection legislation, the onus no longer falls on the person requesting access to demonstrate that the relationship is meaningful and beneficial to the child and will in no way impair adoption opportunities. Rather, the court stated at paragraph 49:

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

[190] In CAS of Toronto v. J.G., 2020 ONCA 415, the Ontario Court of Appeal expanded on aspects of the Kawartha decision, holding as follows:

a. There is no longer a presumption against access for children placed in extended Society care;

b. When considering whether to grant access to children in extended Society care, the interpretation of “meaningful and beneficial” as interpreted under the former Act no longer governs;

c. Unlike under the CFSA, courts can and should consider future or ongoing benefits of an access relationship as part of the determination of whether the relationship in question is meaningful and beneficial; and

d. The court emphasized that while evidence of possible impairment of adoption opportunities would previously have thwarted access requests under the CFSA, under the CYFSA, access is to be ordered for a child with otherwise excellent adoption prospects if in his or her overall best interests.

See paragraphs 45 - 66.

[191] Importantly, 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. See Kawartha, at 54.

[192] The governing framework regarding access was recently summarized as follows:

a. Pre-CYFSA case law that provided a rigid definition of beneficial and meaningful is no longer applicable. This includes the requirement that access must be "significantly advantageous" for the child.

b. In considering whether a relationship is beneficial and meaningful the court can consider any factor, whether past, present or future. This would include the prospect of an openness Order.

c. The child's best interests clearly are not static. This is confirmed by the wording of s. 74(3) which requires the court to consider: (i) any other circumstance of the case; (ii) the child's development of a positive relationship; (iii) continuity in the child's care and the possible effect on the child of disruption of that continuity; (iv) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

d. The underlined words all demand considerations that continue through time. There is simply nothing in the plain wording of the current Act to suggest that access should be decided without reference to the future.

e. The "beneficial and meaningful" test is not a separate pre-condition as it was before. Instead, it is a consideration within the context of the child's best interests.

f. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child.

g. A child's best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies.

CCAS of Toronto v. K.G., 2021 ONCJ 621 at 193.

[193] Section 107 of the CYFSA provides that when making an access Order, the court must specify who is the access holder and who is the recipient. This is particularly important where it is anticipated that the child or children will be adopted. See: CAS of Brant v. S.M., 2021 ONCJ 27 at paras. 41 and 43. Considerations regarding whether parents should be made access holders include whether they would unreasonably litigate openness, thus delaying adoption. See CAS v. Y.M., 2019 ONCJ 489 at 316, 361.

[194] Access and “openness” are not the same thing. Access is the framework for a relationship with family when a child is placed in extended Society care but before adoption. Openness is the form that contact with family takes once adoption placement is made. Openness could include visits, but also letters, cards, gifts, and other forms of contact.

[195] There is no expectation at law that access will or must mirror anticipated openness provisions. This makes sense, as for many children, adoption prospects are, at the point of being placed in extended Society care, uncertain at best. In my view, the legislative amendments were designed to open up and liberalize post-extended Society care access rather than limit it, recognizing the importance of children’s pre-existing relationships. The legislation permits a wide range of access, without any limits on frequency. That the legislation provides for a consideration of impairment of adoption “only where relevant”, suggests a recognition that it will often not be relevant, such as where there is no identified prospective adoptive family which has taken a position against access and eventually openness.

[196] Under the access provisions of the CYFSA, whether access might impair adoption is a factor that may, but is not required to be considered. How access and potential future openness arrangements affect adoption possibilities will vary from case to case. There may be cases where a potential adoptive family is known to the Society and it is anticipated that fulsome access will impair adoption; and other cases, where a potential adoptive family welcomes such access and openness, with a view to the security and stability of the adoption placement where children have an ongoing connection to the birth family.

[197] Attributes of parents, including the following, have been identified as potentially impairing children’s future opportunities for adoption, where those parents are made access holders: difficulty with aggression, anger, or impulse control; lack of support for an alternative caregiver for children, potentially manifesting in undermining an adoptive placement; dishonesty and secrecy; a propensity to be unreasonably litigious; and, the presence of mental health or substance abuse issues, transience or chaotic lifestyle. See CAS of Toronto v. A.F., 2015 ONCJ 678 at 166 – 169; CCAS of Toronto v. K.G., 2021 ONCJ 621 at paras 198 – 203; CAS of Toronto v. Y.M., 2019 CarswellOnt 10957 at 359.

[198] Where access is ordered, the Divisional Court has held that it is an error in law for the court to delegate discretion about type, frequency, and duration to the Society. It is the court’s obligation to impose such terms and conditions. See J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 at 5. In my view, an Order for a “minimum” of one face-to-face visit per year, coupled with the argument that the Society may arrange more in its discretion, does not meaningfully diverge from an Order that “access be in the discretion of the Society.”

[199] An Order for extended Society care does not, by implication, necessitate minimal or no access. In CAS Niagara v. JCPT, 2021 ONSC 2930, Henderson J. recently ordered weekly access for a child with his mother, where the evidence was that the child was well bonded with her, and she truly loved the child and wanted what was best for him. The court found that this “could only be beneficial”. Even though there was some evidence that an access Order might impair adoption, access was in the child’s best interests while in extended Society care. Henderson J. made both parents access holders. Henderson J. also noted that openness in adoption had become much more frequent in recent years.

Positions Regarding Access

[200] Until very recently, the Society took the position that with the Order for extended Society care, there should be an Order for no access. In August of 2021, just before the trial was scheduled to commence, the Society adjusted its position. The Society now seeks an Order that the children have access with one another a minimum of 12 times per year; that they have a minimum of one in-person visit and two additional contacts with each parent each year; and that they have a minimum of six contacts per year with the paternal grandmother (being a combination of virtual and in person visits as well as written contact).

[201] The father’s position in this matter has been for the return of the children to his care. No specific submissions were made regarding what access should look like in the event of an Order for extended Society care.

[202] In the event of an Order for extended Society care, the mother seeks a continuation of the access currently in effect, namely one visit per week, supervised within the discretion of the Society.

[203] Both OCL for the children also seek a continuation of the current access with each parent, in addition to ongoing access to the paternal grandmother, including weekends and holidays. In the event that the children are not placed together, sibling access is sought, a minimum of once per week. The OCL also seek an Order that the Society arrange for an alternative dispute resolution process before serving an Intention of Notice to Place for Adoption. OCL for the child B. asks that his access be made subject to his views and preferences.

Evidence regarding Access, Adoption and Best Interests Generally

[204] Four witnesses gave evidence at trial applicable in a general way to the question of access, openness, and adoption. As the legislative amendments are recent and reflect a significant shift in how access is to be determined, I found some of that evidence relevant to my determination of the arrangements which will be in the best interests of R., W., and B.

[205] While this case is about disposition and access, not about openness, some of the evidence is related to the link between access and eventual openness with adoption placement. Given the Society’s plan to place the children for adoption if extended Society care is granted, I found this to be informative. Of course, no determinations are made herein with respect to openness, which will be the subject of a separate determination if necessary.

Kimberly Dolff, Adoption Worker

[206] Kimberly Dolff, the Society’s Adoption Worker, gave evidence by affidavit and testimony regarding the adoption placement process through the Niagara Society where children are placed in extended Society care. Ms. Dolff testified as a worker, not as an expert. I found her to be a thoughtful, credible witness, if somewhat beleaguered by the end of cross-examination. While she acknowledged having minimal training with respect to openness under the new legislation, or with respect to the impact of indigeneity on adoption considerations, she was able to testify in a straightforward manner about the adoption process followed by her agency at present. Although the OCL opposed the admission into evidence of most of her affidavit, I found the evidence therein to be helpful in understanding the Niagara Society’s process and relevant to the Society’s proposed Plan of Care. The evidence also gave context to the evidence tendered by the OCL’s two expert witnesses, Ms. Convery and Ms. Noble, which was ultimately also admitted.

[207] Ms. Dolff gave evidence including the following:

a. Although she had reviewed some documentation related to these children, the process of matching children to prospective adoptive parents does not commence until children are placed in extended Society care by the court. Accordingly, the matching process for these children had not started. There are no prospective adoptive parents for these children and therefore no one has yet taken a position that they would not adopt if there were some access, expansive access, or eventually openness.

b. The adoption placement process can take considerable time. In her experience, the fastest adoption had taken approximately ten months but Ms. Dolff stated that it generally takes much longer.

c. While she agreed with the OCL that the benefits of openness must be considered in each case, that openness can help children maintain significant relationships, that ongoing contact with family members can lessen the impact of loss and grief on children and ease feelings of abandonment, she did not necessarily agree that openness with birth family could support children’s attachment to adoptive family.

d. Ms. Dolff testified that in her experience, arrangements made for access can impact expectations regarding openness. Her evidence was that extensive access, leading to comparable openness, often serves to limit the pool of adoptive families available to children.

e. While Ms. Dolff agreed that if a child has an identified need, such as diabetes, prospective adoptive parents should be in a position to meet that need; and while she agreed that the same would be true where ongoing family contact were identified as part of the children’s needs, it was clear from her evidence that “contact” is not yet generally seen by the Niagara Society as a “need” in that sense.

f. From Ms. Dolff’s perspective, children’s feelings of grief or mourning when being separated from birth parents “would have to be dealt with” in order to promote attachment to their new family. She stated that in her view, the level of contact under the existing access arrangement would impede attachment with an adoptive family. Asked whether she felt this would mean the children needed to be “weaned off their parents” she agreed, “in a generalized way.”

g. Surprisingly, given the current legislative provisions, Ms. Dolff had no experience using openness mediation or other forms of alternative dispute resolution to determine potential openness arrangements between birth and adoptive families.

[208] Overall, it appeared that the approach of the Niagara Society with respect to adoption, access, and openness reflected a pre-CYFSA approach, with limited focus on the benefits of openness, and limited recognition of the importance of a tailored approach when planning for the adoption of First Nations children.

Patricia Convery

[209] Following a qualification voir dire, Patricia Convery was permitted to testify as an expert in adoption. Specifically, she was permitted to testify about whether ongoing contact with birth family members impairs adoption including when child has high or special needs, and matters related to understanding her perspective on that issue. In my ruling, I noted, that the legislation directs courts to consider whether access will impair opportunities for adoption, where the court finds that to be relevant; and, that the Society had placed evidence before the court to the effect that access can affect openness, which may in turn reduce the pool of families prepared to adopt.

[210] Ms. Convery’s affidavit was made an exhibit in the trial. In addition, she testified and was cross-examined. I found Ms. Convery to be a credible witness. She gave her evidence in a measured and balanced manner, answering questions of all counsel thoughtfully and with precision. She was careful to not opine on the situation of the children in this case specifically, not having met them or worked with this family in any way.

[211] Based on over 40 years working in virtually all aspects of the adoption sector – with birth families, prospective adoptive families, youth implicated in the adoption context, as a trainer, as a trainer of trainers, as a curriculum developer, as Executive Direction of the Adoption Council of Ontario for a significant period of time, and as a consultant on adoption issues and practice – Ms. Convery gave evidence including the following:

a. In the vast majority of private adoptions there are openness arrangements, and openness in this context has been the norm since the 1980’s. This, she suggested, is a context from which the child welfare sector can learn how to manage and promote openness.

b. Access and openness are not the same thing, and having a robust access Order does not necessarily hinder the ability to find a “match” for children. Access frequency does not determine what the openness plan will be.

c. Openness is not necessarily only visits – it is a connection, which can be fostered in a range of ways. Best practice would include working with prospective adoptive families to assist them in understanding that openness may look quite different from access.

d. In general, openness is beneficial for children, and should be part of the planning and transition process for children being placed for adoption.

e. While children are deserving of a “forever home” as soon as possible, they should be “matched” with the right family, not with any family. It is important to take the time required to find the right family.

f. Contact or openness with birth family should be treated as a need that children have – similar to a medical need, for example. It is about then finding the right family to meet the needs of the children, including the openness needs. At the same time, all of the children’s needs must be considered, and for some children, there are needs that could be a higher priority than openness.

g. Access does not necessarily narrow the pool of adoptive families per se, although it could, like other needs, limit or change the pool. This could also be true of other needs, such as certain cultural, medical, or special needs. Access or extensive openness might exclude some families from being a match. On the other hand, the lack of access or openness could be a concern to other families, who may worry about grief, loss, and how to manage issues related to children’s identity, for example.

h. Openness mediation and indigenous circles can be a very effective process for developing plans with birth family and prospective adoptive families regarding what openness will look like.

i. Providing support to birth family members, such as through an Adult Protective Services Worker or an indigenous support person, where applicable, can assist in the transition to adoption with openness from extended Society care with access.

Tara Noble

[212] Following a qualification voir dire, Tara Noble was permitted to testify as an expert in grief, loss, and attachment formation for children involved in the child welfare system, focusing on the effect, generally speaking, of ongoing contact between children and the birth family in the context of adoption. The reasons for that decision are set out in a detailed ruling.

[213] Ms. Noble’s affidavit was made an exhibit in the trial. In addition, she testified and was cross-examined. I found Ms. Noble to be a credible witness.

[214] A number of hypotheticals were put to Ms. Noble, which, although generally permitted to be put to expert witnesses, came perilously close to having her opine on the circumstances of the children in this case, not having met them. I give little if any weight to her responses to those questions.

[215] Based on extensive experience working in a range of therapeutic contexts on issues of grief, loss, and attachment, including in the child welfare context, Ms. Noble gave evidence including the following:

a. Inevitably, children in the child welfare system experience grief and loss, and this is an important lens through which to understand children’s experiences and behaviours.

b. Children experience loss and grief if cut off from birth family, even if the relationship with birth family was difficult, or they were neglected or abused.

c. Even where children have insecure attachment to a caregiver from whom they have been removed, or by whom they have been treated poorly, maintaining contact is generally important for children’s mental health and well-being. Cutting off contact is rarely the answer – the priority should be to keep the connection and help the parent bring the best of themselves to their child.

d. There can be a multitude of signs of grief, including but not limited to: regression, anger, meltdowns, angry outbursts, children not engaging in regular activities, soiling, and bedwetting. Children can move between emotional states quickly when grieving.

e. Grieving can also mimic symptoms of other issues, such as ADHD. Symptoms of grief can also look very similar to symptoms of underlying trauma, such as abuse or neglect, or medical/psychological issues.

f. Children’s sense of attachment is promoted by being linked to a caregiver and having the experience of having their needs met.

g. Children can have multiple attachments at the same time.

h. Children can form attachments to new caregivers even where there continues to be attachment to and contact with prior caregivers.

i. Understanding children’s experiences and potentially their behaviours requires engaging them in supportive conversations. At the same time, children’s resilience is fostered by giving them a voice, listening to their experiences, and helping them process those experiences.

Kenneth Richard

[216] As noted above, Kenneth Richard’s affidavit, sworn for the summary judgment motion, was admitted into evidence in the trial and he was made available for cross-examination. Although the Society opposed the admission of the affidavit, once admitted, he was agreed to be an expert in Indigenous Child Welfare, as found by Walters J. on the motion for summary judgment.

[217] Although the bulk of Mr. Richard’s affidavit pertained to considerations in the identification of First Nations children, he provided the court with the following perspectives which I find relevant and illuminating regarding the access determination to be made in this case:

a. Indigenous children’s relationships with their parents are sacred. In general, maintaining those relationships, even in the context of extended Society care, will be central to supporting children’s mental health. However, “each case has its own story”, and what the contact should look like for any given family will depend on all of the circumstances in the case.

b. Reducing time with biological family to promote “bonding” with adoptive parents or “forever families” is a significant reason why adopted indigenous children have lost their identity in the child protection system.

c. In general, younger children should have more contact with their birth family. The greater the contact, the stronger the bond.

d. The goal should be to wrap children in a collection of adults who love them, rather than taking a mine/yours approach.

[218] Mr. Richard stated powerfully: “No access is a brutal way to treat indigenous children.”

[219] I found Mr. Richard to be a thoughtful and credible witness. He gave an important perspective on how to think about access for First Nations children in the context of an extended Society care Order, and was careful not to opine about these children specifically, whom he has never met. He did not provide a view on the specific arrangements that would be appropriate in this case.

Access Since the Removal of the Children

[220] After the children were removed in May 2019, access was established for the mother, the father, and the paternal grandmother. With very few exceptions, the evidence is that access was positive with each of them and that the children enjoyed it. Nevertheless, the parents’ respective access was never increased, and supervision requirements were not lessened. I have already commented above regarding how I see this as a failure to adequately provide services to this family.

[221] The paternal grandmother’s access was liberal and positive when she was available.

[222] Neither in written nor oral closing submissions did the Society attempt to argue that the children’s access with their parents and grandmother is not meaningful and beneficial.

The Mother’s Access

[223] Leading up to the removal of the children from the father’s care, at least until the spring of 2019, the evidence is that the mother had quite substantial parenting time with the children, sometimes as frequently as each weekend. This was in the father’s discretion and the parties worked it out between themselves. Nothing about this access came to the attention of the Hamilton Society until March of 2019 when a concern arose in relation to access at the mother’s home and access was not permitted for a time.

[224] When the children were removed in May 2019, the mother did not immediately have access due to the allegations related to alleged physical and sexual abuse of the child B. When the investigation concluded, the mother’s access with all three children started in person at the Society office. From that point the mother had access once per week for one hour on a supervised basis. It is unclear why access was set at this very low level given the quantity of time she had been spending with the children from 2016 to 2019.

[225] Initially, the mother’s access was with all three children. However, for a lengthy period after October 2019, the child B. stated that he did not want to see his mother. The Society followed B.’s wishes in this respect and there was no access with B. during this time. The worker stated that she would ask regularly whether B. wanted to see his mother and he would say that he did not.

[226] The mother’s access was in person except during periods where that was not possible due to Covid-19 restrictions. During those periods (March to August 2020 and December 2020 to approximately March 2021), access took place virtually. As at the trial, the mother was seeing all three children once per week for one hour, on a supervised basis. While there was some virtual access during the trial, in general the access was face-to-face.

[227] With the exception on one incident on August 14, 2019, during which the mother lost her temper due to an issue in the playground, the overwhelming evidence is that the children’s time with their mother has been positive, nurturing, loving, and child-focussed. She attended consistently, with few exceptions, and on time, notwithstanding that the return journey each week took 6 hours by bus. She behaved appropriately with the children during access, playing with them, doing activities with them, celebrating special occasions such as birthdays, and telling them stories about their infancy, for example. When permitted (with Covid-19 rules), the mother brought appropriate activities and snacks for the children. The children expressed affection to her and she to them. Society worker Simon Stephen testified that during her visits, the mother demonstrated that she was putting into practice learnings from the parenting courses she had taken on her own initiative. Society worker Genny Bellon, who supervised much of the mother’s access testified to observing loving parent-child bonds.

[228] None of the foster parents testified to the presence of concerns arising from the children’s access with their mother. B’s foster parent confirmed that B. enjoyed his time with his mother. While B. stated that he did not wish to see his mother for the period of time, the evidence of Society workers did not confirm that this related to any inappropriate behaviour by the mother towards B.

[229] Notwithstanding the successful and consistent access, the mother’s contemporaneous progress in addressing mental health issues, and her voluntary completion of parenting courses, the Society never expanded her time with the children. This appears to have been related to the fact that between the removal of the children and the trial, she did not separate from J.B. From time to time, the mother asked to have J.B. attend her access, and the Society did not agree. The requests were seen to reflect the mother’s failure to understand that J.B. was a child protection concern.

[230] It is unfortunate that the Society did not consider expanding time with the children, at least at the Society on a supervised basis, while working with the mother to help her understand the protection issues with respect to J.B. Had that been successful, a further expansion to access at her home with a requirement that J.B. not be present could have been considered as well. In my view, this would have been appropriate given the steps the mother took in terms of her mental health and recognizing her consistent pattern of positive access with the children. It would also have given the court better evidence of the mother’s parenting strengths overall. Instead, the mother’s requests to expand access were repeatedly denied, and in July 2021, even after she had separated from J.B. and moved to a shelter, she was told that access would not be expanded due to the Society’s position seeking extended Society care.

[231] This is problematic – the effect is to deny the court necessary evidence in a context where there was reason to believe that additional access would have been positive for the children.

[232] Further, the Society seemed unattuned to the additional consideration that these are First nations children, and their connection to that identity is through their mother. Fostering and supporting additional time with her would have fostered their indigenous identity, in addition to the other benefits meaningful access delivers for children.

[233] In my view the Society acted as if the extended Society care Order had already been granted when that was a matter for this court to decide.

The Father’s Access

[234] Initially, the father had access twice per week with W. and R., for two hours per visit. It took a little longer for access to B., who was initially placed at the group home, to be established. From September 2019 to March 12, 2020, the father spent time with all three children at an afterschool program supervised by the Society, once per week for one and a half hours. This was explained to the court to be group access, with a lower level of supervision. There was a gap in this access for a few weeks in December 2019/January 2020 due to the father’s hospitalization.

[235] On March 12, 2020 there was an incident at access during which B. had a “meltdown.” There were different perspectives on whether the father did or did not conduct himself appropriately. Family Enrichment Worker Debbie Bahry testified that the father was yelling and swearing, and that at one point she threatened to call the police (although ultimately she did not do so). It was, in any event, the only incident of that nature.

[236] Immediately thereafter, access to all three children became virtual due to the pandemic, and remained so until August 2020, as it also was for a period between December 2020 and approximately March 2021 due to provincial restrictions related to Covid-19.

[237] With respect to the child B., there was a break between October and December 2020, with one face-to face visit in December 2020. For reasons which were not altogether clear in the evidence, access with B. has remained virtual since then, being suspended altogether during the trial when B. stated that he did not want access with his father at that time. The father’s access with W. and R. was in person from March 2021 until the trial commenced, when it also became virtual.

[238] There was significant evidence in the trial that in general, the father’s access with all three children was positive. The father attended on time and consistently, with very few missed visits. Genny Bellon, who supervised many in-person visits, testified that his visits went well. He was engaged with the children, and he brought activities and snacks for the children. During the access through the afterschool program there were no concerns until the March 12, 2020 “meltdown”, which was a one-off occurrence. Society worker Nattalie Linger, who also supervised a number of visits stated that they were generally positive, as did Julie Anderson.

[239] W. and R.’s foster mother testified that the children love both their parents and love seeing them. While she stated that she sometimes saw behaviours after access, she said that she was never sure if the behaviours were linked to access or just to their routine being disrupted. At one point she told Ms. Dale, the worker for W. and R., that meltdowns can happen any time and can’t be correlated to any pattern. The foster mother also pointed out that there were many things potentially affecting the children contemporaneously, including: changes in mediations, COVID-19 related restrictions and changes in access; difficulties with on-line learning; and other children moving in and out of the home.

[240] B.’s first foster mother testified that B. spoke highly of his father and looked forward to visits with him. B.’s second and current foster mother similarly testified that in general, access with the father has gone well, that family is important to B. She stated that he has looked forward to access with both parents. It is only since the trial that B. began to state – at a time when there were numerous changes and stresses – that he does not currently wish to see his father. The reasons are not clear and B. has had no mental health support to help understand his current perspective.

[241] There is evidence that on occasion, the father may not have conducted himself perfectly on access. During the March 12, 2020 “meltdown” referred to above, the child B. screamed for a period of time, and the supervising worker Debbie Bahry testified that the father was angry, swearing, and upset. The father testified that B. was upset because he had been told that he would not be returning to his father’s care. In any event, the incident lasted about 45 minutes, and the visit was ended. There was also evidence that occasionally the father would make statements to the children that were of concern, such as telling B. on a virtual visit that his soiling was the reason they could not see each other. Overall, however, the evidence about the father’s access with the children was positive.

[242] Notwithstanding the generally favourable evidence about the father’s access with all three children, there was significant emphasis in the trial about the alleged impact of the father’s access to B., in particular, and whether that access caused him to become dysregulated or caused behavioural issues seen in the foster settings. It was unclear whether the Society’s argument was that historical trauma remembered by B. caused dysregulation after access, or inappropriate behaviour by the father during access. However, the Society’s position at the outset of the trial was that access with the father was – somehow – causing the dysregulation. This was certainly suggested by Dr. Baird, who did not explore other hypotheses regarding the source of B.’s behaviours.

[243] The evidence about B.’s behaviours and any connection to access with the father was not consistent. B.’s first foster mother, with whom B. lived after discharge from the group home, testified that B. would have meltdowns after access with the father, most notably after phone and virtual access started (and, consequently, when in-person access stopped). B’s second foster mother, however testified that, until the recent refusal to see his father, B. is “generally ok” after access with both parents, but that sometimes he will be sad in the evening afterwards. While she described a range of significant behavioural issues, including meltdowns, intermittent soiling, and negative statements about himself, she did not link these with B.’s experience of seeing his father, or either parent, for that matter.

[244] I am unable, on the evidence, to find on a balance or probabilities that the father’s access is or has been “the cause” of B.’s behavioural issues. Indeed, in closing submissions (and after 7 weeks of evidence), the Society itself acknowledged that many factors could be causing behaviours, and seemed to have backed away from placing responsibility for the behaviours at the father’s feet alone. While behavioural issues were at times temporally linked with access, there are a range of additional possible explanations that were not considered by the Society when making decisions about access by B. to his father, such as the following:

a. B. does not cope well with change;

b. Some of B.’s behaviours coincided with a reduction of access with the father, and a change to it being virtual;

c. B. does best with predictability and routine and has experienced many disruptions;

d. B. has issues making friends at school and this has caused behaviours and upset;

e. B. has wanted face-to-face time with his father and has had none for over a year;

f. B. wants to be with his siblings and has been separated from them for two and a half years;

g. B is very attached to his current foster mother and knows he can’t stay with her long term;

h. Society workers have rarely engaged B. directly about his perspectives or wishes;

i. B. experienced trauma in the care of his father;

j. B. was repeatedly restrained in the group home for a period of six months;

k. B.’s much-loved paternal grandmother moved to New Brunswick; and,

l. B. has learning challenges as identified by Dr. Williams, as well as ADHD.

[245] I accept the evidence of Ms. Noble that issues related to attachment, loss, and grief can shape behaviour. While she did not (and could not) opine on B. specifically, I accept that being presented with behaviours such as B.’s, with all that he has experienced, it would be narrow in the extreme to assume that access with the father is “the cause” of dysregulation without at least investigating alternative explanations. Those explanations should include a consideration of issues related to attachment, loss, and grief arising from his many experiences.

[246] I acknowledge the evidence of Dr. Baird, who was involved with all three children, and prepared a series of clinical notes over the course of his involvement. Dr. Baird drew a connection between what he was told, including by the father, about how the children were parented in his care, and B.’s behaviours, and concluded that B. needed positive parenting in order to be more emotionally stable and to behave acceptably. At an appointment in March 2019, Dr. Baird observed the father to grab B. angrily and force him into a chair. Dr. Baird was of the view that when B. would display behaviours, this was a stress and fear response in relation to his father. On that basis he suggested changes to access to determine whether this might be the cause.

a. I place little weight on Dr. Baird’s evidence in this regard. First, it appears to conflict with that of B.’s first foster mother, who testified that B.’s behaviours deteriorated when access moved from in-person to virtual, and was shortened. Dr. Baird seemed to have understood the opposite - that the behaviours got worse when access was “liberalized.”

b. Second, it was clear from the evidence that Dr. Baird approached his analysis of what might be the source of the behaviours with essentially one lens – that of maltreatment. Indeed he acknowledged that he did not consider a range of other factors which could have contributed to some extent to B.’s behaviours, including: issues arising from grief, loss, and mourning related to prior periods in care; separation from parents and siblings; the move of the paternal grandmother; COVID-19 restrictions; and changes in caregivers; genetic or developmental issues; and/or the mental health history of the parents, for example. On the one occasion where there was a missed visit with the father and good behaviour for several days thereafter, Dr. Baird made a broad determination that access was the culprit that could explain behaviour. As was clear in the trial, the source of behaviours was and is almost certainly much more complicated than that. I note Dr. William’s evidence and that of Tara Noble that grief and loss could result in similar behavioural issues as maltreatment.

c. Dr. Baird also acknowledged that at no point did he actually engage the children as he was reaching conclusions about them. He did not ask them what they had experienced, what they felt, what they thought, or what they wanted. He stated that W. and R. were difficult to communicate with but did not engage a skilled professional to assist him how best to do that. Despite making recommendations about B.’s access, at no point did he actually ask B. whether he wanted changes, or how B. himself felt seeing his father impacted him.

[247] If it is the case that some part of the behaviours demonstrated by B. have as their genesis treatment while in the father’s care – and that may certainly be the case – Ms. Noble’s evidence would suggest that this does not mean that the answer is necessarily to cut off contact or reduce contact. Rather, I accept Ms. Noble’s evidence the child should be given support to talk about and process those experiences. The child should be listened to. The child should be asked about his or her perspective. With the limited exception of a brief effort at counselling for B. with Ms. Mudie, that did not happen in this case. As Ns. Noble stated, the parent should be assisted to bring his best self to their child and the connection should be nurtured.

[248] As with access to the mother, I have difficulty understanding why, in the face of generally positive access with the father - testified to by a number of workers involved in supervising access over a lengthy period - access to all three children was not expanded over time.

[249] With the child B., specifically, it is not clear why, for so long, the access has remained virtual. In my view, it is at least equally probable that the behaviours of B., observed by the first foster mother after access with the father when the access moved to the virtual setting and was shortened, were related to the reduction and change in access, for a child who clearly stated, loudly and repeatedly, that he wanted to see his father, as to any negative effect of access per se. In the face of consistent evidence of workers that the father generally behaved appropriately and lovingly during access (as worker Genny Bellon said: he was engaged, attentive, focussed on the children, did not lose his temper, comforted the children when they said they wanted to live with him), it is difficult to understand how B.’s behaviours were laid almost entirely at the father’s feet throughout the course of the Society’s involvement.

[250] Again, the Society seemed to assume that an extended Society care Order had already been made, rather than ensuring that the court would have a full picture when it came to trial. As with the mother, part of the effect, in addition to denying the children meaningful relationships with parents who love them, is to deny the court the fulsome evidence it requires.

The Paternal Grandmother’s Access

[251] The paternal grandmother has been extensively involved with the children over time, and all parties agreed that she is a positive and loving presence in the children’s lives. Early on in the Society’s involvement, she was approved to have access with the children on weekends, and regularly did so – often with one or two children at a time.

[252] During the involvement, to the great loss of the children, the paternal grandmother moved to New Brunswick where she currently resides. However, she maintains contact with them virtually and through gifts and letters, and visits Ontario when she can, for substantial periods of time. When she comes to Ontario, the Society has routinely approved her to have overnight access with the children. This serves the dual purpose of maintaining the children’s connection with her, and, when all three children see her together, with one another. The evidence as seen in the trial is that the children value and derive great benefit from their relationship with their paternal grandmother.

[253] While the Society seeks less access for the paternal grandmother in connection with the extended Society care Order than do the parents or the OCL, all agree that the relationship with her is meaningful and beneficial and should be maintained.

Determination regarding Access

[254] Applying the law to the facts regarding access, I make the following findings:

a. There is in my view no question that ongoing access by the children to both of their parents and the paternal grandmother is in their best interests, having regard to both the Federal Act and the CYFSA.

b. The children’s access with their mother, in particular, is their main link to their indigenous identity and connections to an indigenous community. Access with the mother will help ground them in their culture and fortify their connection to their heritage. This is of critical importance and must be fostered. As Kenneth Richard stated, a family with indigenous children is an indigenous family. The father, though non-indigenous, supports the children’s continued connection with their culture and identity.

c. The overwhelming evidence is that both parents’ access with the children has been positive, and I find that it is meaningful and beneficial to the children. The children love their parents and their parents love them. The access has largely taken place without incident.

d. The children have consistently stated that they wish to live with their father. In a context where that is not possible, virtually cutting off access where the access has been positive, does not make sense. While the children have not expressed a view on specific access arrangements (as argued by the Society), I am quite prepared to infer that if they cannot live with him, W. and R. wish the maximum access that the court is prepared to Order.

e. With respect to B., given the vast majority of his expressions about wanting to live with his father and see his father over the life of this proceeding, I would take the same approach as with W. and R., notwithstanding his decision during the trial to take a break from seeing his father. Any access for B. should be subject to his views and preferences.

f. I accept, based on the evidence of Ms. Dolff and Ms. Convery, that children’s needs – such as medical needs, or needs for access – can have an impact on the identification of a “match” for the purpose of adoption. The evidence is not, however, that access always shrinks the pool – in fact Ms. Convery stated that some adoptive parents want contact in order to assist with children’s identity issues as they grow up.

g. However, I also find, based on the evidence in this case, that access is not a “frill” or an “extra” for these children – it is in fact a need. And in identifying an adoptive family, it is a need analogous to other important needs and should not be dismissed. The balance might be different in another family with other circumstances, but here, where the access has been as positive as it has, and the children are First Nations, their ongoing and meaningful connection to their family is essential.

h. In other words, while it is possible that access may impair adoption in this case, as set out in section 105(6) of the CYFSA, I find it to be not relevant, because the relationships are meaningful and beneficial, and ongoing access is, in consideration of all of the factors set out in the CYFSA (s 74(3) and the Federal Act (s 10(1), in the children’s best interests. I also note that there is no evidence in this case of a prospective adoptive family that has taken any position on access or ultimately openness.

i. Further, on balance, I do not find that these parents have the attributes, listed above, that would suggest they would act in a manner that would impair adoption. While there are mental health and other issues, and while protection issues remain, neither has actively worked at cross purposes with the Society or deliberately tried to thwart the Society’s efforts. That the father did not consent to ADHD medication and a motion needed to be brought does not convince me that he is “overly litigious.” Had the Society shared more information, brought him to meet the physician, and involved him in medical decisions for the children, that motion might not have been necessary.

j. That there continue to be protection concerns with respect to the father and the mother does not mean that the access in this case is not meaningful and beneficial.

k. I accept Ms. Noble’s evidence that in general, children are capable of forming multiple attachments and that ongoing access with birth family could indeed support attachment to adoptive parents. This resonates with Mr. Richard’s statement that the goal should be to wrap children in a collection of adults who love them, rather than taking a mine/yours approach.

l. I also accept Ms. Noble’s evidence that where children exhibit behaviours that could appear to be related to access, therapeutic work should be done from a grief and loss perspective. Children’s worries and concerns should be heard. They should be asked about their views and thoughts and heard when they articulate them.

m. In this case, it is appropriate that the children and the parents should all be access holders. The evidence does not suggest that the parents will unreasonably litigate openness. Indeed, so far, the evidence would suggest that it is the Society, not the parents, which is “overly litigious”, not once having pursued any form of alternative dispute resolution, indigenous circle, or other non-litigated approach to resolution of the case.

n. I do not accept the Society’s closing argument that access should be minimal because “the change is coming” and the children need to be “prepared in every way.” I am surprised that the Society would query the purpose of access post-extended Society care “if the legal bond has been severed.” This reveals a failure to understand and assimilate the amendments in the CYFSA with respect to access, the subsequent caselaw applying the new provisions, and the policy shift towards allowing children to continue relationships with biological family where in their best interests to do so.

o. I do not accept the Society’s argument that it should simply be accorded the discretion to provide more access than stipulated. The Society’s actions to date have not provided a basis for confidence that it would offer more access than technically required. Recall that access has never been expanded in two and a half years notwithstanding consistent positive reports by multiple workers. Further, the closing submission to the effect that “change is coming” and therefore “the transition should start now” (even though no adoptive family is yet being considered), belies any suggestion that more than the minimum set out would be granted. Finally, in my view, the minimal access sought is tantamount to an Order that access simply be in the discretion of the Society, an approach which is proscribed by the Divisional Court decision in J.S.R. v Children’s Aid Society of Ottawa, 2021 ONSC 630.

p. I do accept the Society’s argument that framing access in terms of “minimums” rather than specified on a weekly or monthly basis may be easier to manage, and less likely to put a party on the wrong side of the Order if there are logistical difficulties. The Order below is framed in that manner.

q. The evidence was that the matching process can take a significant period of time. Even Ms. Dolff indicated that it is not a quick process. That may be doubly so in a case such as this where the children are high need, and the Society will also be searching for an indigenous family. The children should not be deprived of the love and meaningful connection their parents and paternal grandmother have for them while that process takes place.

r. I do accept the evidence that access is not the same as openness and that openness can look quite different. I also accept the evidence that once an adoptive family is identified, a period of transition may be required. The Order herein recognizes that transition reality.

[255] Based on the foregoing findings, there shall be fulsome access for these children to one another and to their parents and paternal grandmother. That shall include robust access to each parent, as well as meaningful access to their paternal grandmother. The children and the parents shall be access holders. The details are set out in the Order below.

Access to Openness: Process Considerations

[256] As stated above, access is not openness. While this court can make an access Order it is not in a position to make an openness Order.

[257] The evidence of Ms. Convery is, and I accept, that the best way to approach openness is as a planning process with prospective adoptive parents and biological parents. The more adoptive parents know about the benefits of openness, and the more biological family members understand about how it might look different than access, the greater the value of those discussions.

[258] I cannot order but strongly encourage the Society to make a referral to openness mediation, once a prospective adoptive family has been identified. It is a valuable process that assists in surrounding children with more, rather than less, love, and can help biological and adoptive family members make child focused plans together. I reiterate the statement of Mr. Richard that:

The goal should be to wrap children in a collection of adults who love them, rather than taking a mine/yours approach.

E. CONCLUSION AND ORDER

[259] For all of the reasons set out above, this court makes the following Order:

1. The children, B., born _____; W., born ____; and R., born ___, are hereby placed in the extended care of the Children’s Aid Society of the Niagara Region.

[Identification of children and their birthdates have been redacted for publication purposes]

2. The children shall be access holders and, in the event that they are not placed together, shall have access to one another as arranged by the Society and supervised in its discretion a minimum of four times per month.

3. The children shall be access holders and shall have access to their paternal grandmother K.S. as access recipient as arranged by the Society in its discretion, as follows:

a. Given that K.S. resides out of province, there shall be a minimum of 12 contacts per year (subject to the wishes of K.S. to have less), which may include written contact, virtual visits, and face-to-face contact in Ontario. To the extent that K.S. is available and travels to Ontario for access, a minimum of three of the contacts shall be in person. In the event that K.S. is in Ontario for several days at a time, the children shall be entitled to spend time with her on successive days during any one visit to Ontario.

4. The children and their mother shall all be access holders in relation to access with one another and shall be entitled to a minimum of four times per month, for a minimum of one hour, supervised in the discretion of the Society. If the mother consents, access may be virtual as required by her having regard to logistical concerns.

5. The children and their father shall all be access holders in relation to access with one another and shall be entitled to a minimum four times per month, for a minimum of one hour, supervised in the discretion of the Society. If the father consents, access may be virtual as required by him having regard to logistical concerns.

6. The child, B.’s access to each parent and his grandmother shall be subject to his views and preferences.

7. If and when an adoptive placement for the children is identified (and subject to any determination by the judge hearing the openness application if that becomes necessary), and openness arrangements have been agreed to or determined, the access set out above may be gradually adapted, in the discretion of the Society, over a period of up to 12 weeks, to mirror those openness arrangements.

8. The Society shall give due consideration to utilizing an alternative dispute resolution approach in the determination of openness arrangements as and when a prospective adoptive family is identified for the children and before a Notice of Intention to Place is served on the parents.

[260] I recognize that the decision herein may be very difficult for the mother and the father to accept. I know that they both love the children very much. I know that both parents have strengths and want to offer all they can to their children. I encourage both parents to make good use of the access arrangements set out above to maintain the connection to the children. Those relationships have great value and the children will continue to benefit from their love and care through access as they grow and develop.

L. Madsen, J.

Date: February 10, 2022

Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744

COURT FILE NO.: 307/19 (St. Catharines)

DATE: 2022/02/10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Children’s Aid Society of the Niagara Region

Applicant

and –

S.S., Respondent Father

T.F., Respondent Mother

REASONS FOR JUDGMENT

L. Madsen, J.

Released: February 10, 2022