WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: FC-21-CP39
DATE: 2022/02/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
H.Q. and R.O.
Respondents
Tara MacDougall for the Applicant
Cedric Nahum for the Respondents
HEARD: February 10, 2022.
decision
Audet J.
[1] This is a temporary care and custody motion that was scheduled as a result of the mother’s expressed wish to present a plan of care for her one-year old baby, H.O., and to resume care of him on a temporary basis.
BACKGROUND
[2] This family is from Arctic Bay in Nunavut. The respondents, Ms. Q. (“the mother”) and Mr. O. (“the father”) are the parents of seven children, aged between 14 and 1 years old. This family identifies as Inuit. All children, except for the eldest (who apparently is presently in Alberta), and the baby, H.O., are in the care of their father in Nunavut.
[3] H.O. was first removed from his mother’s care on December 26, 2020, while the mother was in Ottawa with baby H.O. (then three months old) who had been placed in a treatment program at Bayfield with the Children’s Aid Society of Highland Shores. At the time H.O. was brought to a place of safety, the mother was under the influence of alcohol, and the baby was found underneath a duvet cover on the bed. The mother was unable to safety plan with the Society that night and the next day, she signed a first Temporary Care Agreement, with the consent of the father, placing the child in the Society’s care.
[4] H.O. was returned to his mother’s care after a safety plan was developed, on January 14, 2021, but he came into care voluntarily again on February 28, 2021, after the mother required emergency surgery on her leg (the mother said she was the victim of an attack) and had no one to care for him in Ottawa. A third Temporary Care Agreement was signed on April 28, 2021, and days before it expired on July 28, 2021, the Society initiated this Protection Application in which it sought to place the child in the care of his father in Nunavut, under a Supervision Order, for a period of six months. H.O. has remained in the Society’s care since, pursuant to various temporary without prejudice orders.
[5] The Society's main protection concern relates to the mother's misuse of alcohol and its impact on her capability to care for H.O. There are also concerns about the mother’s current state of mental health. Since this protection application was commenced, the mother’s engagement with the Society has unfortunately only wavered; she has not engaged in services, she has had difficulty maintaining stable housing, and her access to the child has been infrequent and inconsistent, although she has maintained contact with the foster mother. The Society was sensitive to all the traumas the mother had experienced in her life and believed that she could heal herself with the support of her community. Unfortunately, despite being connected with various community supports including Inuuqatigiit and Ontario Native Women’s Association, both of whom were willing to assist her, the mother has not reached out to these supports.
[6] From July 2021 on, the mother’s access with H.O. continued to diminish, and the Society was of the view that she continued to struggle with her sobriety and mental health. As a result, on September 21, 2021, the Society obtained a temporary, without prejudice order to return H.O. to his father’s care in Nunavut. The plan was for the father to meet H.O. and his worker in Iqualuit the next day. Unfortunately, and for reasons which only become known weeks later, the father missed his flight and H.O. had to be returned to the foster home. Another temporary without prejudice order was made placing the child in the Society’s care.
[7] The Society continued to communicate with the Nunavut Department of Family Wellness to develop a more robust safety plan for the return of H.O. to his father. The Nunavut Department has provided the Society with a written ‘Service Agreement’ setting out its service plan to father and child and stood by their position that they supported the child’s return to his father’s care in Nunavut.
[8] A plan was developed for Ms. O., the child’s paternal aunt, to come to Ottawa to collect H.O. on December 9. However, on that date, the mother attended court for the first time (she had still not filed an Answer and Plan of Care) and voiced her opposition to the Society’s plan. As a result, the matter was adjourned. Neither parent attended court on the return date of December 23, and a temporary without prejudice order was made, to take effect on January 7, 2022, placing H.O. in his father’s care. However, a final court date of January 6, 2022 was scheduled, to give the mother one last opportunity to retain counsel and place her position before the court.
[9] The mother has since retained counsel, served and filed an Answer and Plan of Care seeking the child’s return to her care, and ask that a temporary care and custody motion be set. The motion was originally scheduled to be heard by myself on February 2, 2022. However, on that date, the mother had failed to file any motion materials in response to the Society’s motion. Her counsel appeared before me and confirmed that this was due to an error by his office and he sought a further adjournment to allow him to prepare, serve and file motion materials on behalf of his client.
[10] I agreed to a very brief adjournment to allow the mother to provide her response to the Society’s motion, and gave her until February 7th, at 4 p.m., to do so. The mother’s sworn affidavit was filed over the bench on the day of the hearing, with the consent of the Society.
Orders sought
[11] The Society seeks a temporary order placing H.O. in the father’s temporary care subject to a supervision order pending the disposition of the application. The father supports the Society’s plan and consents to the order being sought.
[12] The mother seeks an order granting her access to the child three times per week, for a few weeks, after which the child would be placed in her care on a temporary basis, under a supervision order if necessary.
ANALYSIS
[13] The burden of proof is on the Society to establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his mother, it is more probable than not that he will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order (Children 's Aid Society of Ottawa-Carleton v. T, 2000 CanLII 21157 (ON SC), [2000] OJ No 2273 at para 10).
[14] The evidence before me makes it clear that the child cannot, at this time, be returned to his mother’s care safely, not even under a supervision order. There are real concerns about the mother’s misuse of alcohol and mental health challenges, which impact her ability to care for this child safely. The Society’s evidence in that regard is compelling and supported by a detailed account, by three different workers, of all their interactions with the mother as well as with health professionals, staff at shelters, the foster mother, and professionals at the various community centers where the Society sought support for the mother.
[15] In the face of this compelling evidence, the mother in her affidavit essentially denies that the events took place as stated by the Society, provides a different, less damaging version of those events, attempts to justify her actions, or states that she does not recall the events in question.
[16] The mother, in her affidavit, also indicates that she has made significant progress over the past months. She says that she has been sober since May 2021, that she has secured housing in December 2021, and that she is now represented by counsel and receiving Ontario Works benefits since December 2021.
[17] The most significant concern with regards to the mother is her alcohol misuse and lack of a support network upon which a safety plan could be built. The mother’s statement that she has been sober since May 2021, without more, is not sufficient to convince this court that the child would be safe if returned to her care. The mother’s assertion that she has been sober since May 2021 is not supported by any objective evidence; there is no evidence that she has engaged in services in that regard, that she is currently receiving support in remaining sober, and there is no evidence from a doctor, counsellor or health practitioner who could attest to the efforts made by the mother to become and remain sober.
[18] Further, despite having allegedly been sober since May 2021, it is undisputed that the mother has not exercised in-person access to H.O. since October 2021. The Society has been unable to engage her since at least the summer of 2021 and for most of the months that followed, the Society had very limited contact with her and did not know her whereabouts. The mother has not remained in touch with the Society either. Despite the Society’s efforts to assist the mother in locating and developing a safety network, the mother does not appear to have any supports here in Ottawa, and she has not taken advantage of the community supports offered to her.
[19] The mother’s assertion that she has been sober since May 2021 is almost impossible to reconcile with the above.
[20] In essence, the mother is asking for her child to remain in foster care while she is given more time to prove that she is ready to present a viable plan. As required by the CYFSA, the court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448. Pursuant to s. 74(3) of the CYFSA, when considering the best interest of a First Nation, Inuk or Métis child, the court must keep in mind the importance of preserving the child’s cultural identity and connection to community.
[21] Under the Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019, c 24, the Court must consider a hierarchy of placements for children who are First Nations, Inuk, or Métis. More specifically, s. 16(1) states:
16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:
(a) with one of the child’s parents;
(b) with another adult member of the child’s family;
(c) with an adult who belongs to the same Indigenous group, community or people as the child;
(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or
(e) with any other adult.
[22] This child has an entire family, including his father, five older siblings, his maternal aunt (Ms. O.), and a community in Nunavut willing and able to care for him. Ms. O., the child’s paternal aunt, is a strong support for the father and the five children that are still in his care, and she is prepared to support the father in caring for H.O. as well. Although there are some concerns with regards to the father’s ability to care for H.O. safely (due to concerns around his alcohol consumption and potential family violence and/or adult conflict between him and the mother), those concerns are alleviated by two main factors; the strong supports he has available to him, and; the fact that the father and Ms. O. have signed a detailed Service Agreement with the Director of Child and Family Services of Arctic Bay which provides for a robust safety plan for the child, and which will be supervised and supported by the Child and Family Services of Arctic Bay workers for the next six months.
[23] According to the Society’s proposed plan, H.O. will live with his father and siblings, and will be in contact with other extended family such as his paternal aunt and cousins. He will be living in his family’s community in Nunavut and be exposed to his family’s culture, language, food, and way of life.
[24] I am mindful of the mother’s allegations in relation to her having been the victim of family violence at the hands of the father. I am also well aware of the fact that if H.O. is placed in the care of his father, the mother’s ability to have meaningful contact with him will be extremely limited due to the father’s lack of access to technology in his home. Unfortunately, the mother has not taken advantage of the access that was offered to her in Ottawa for the past four months. In those circumstances, it would not be in H.O.’s best interest to wait in foster care when there is a family and community waiting for him in Nunavut.
[25] I find that it is in the best interest of this child to be placed in the care of his father on a temporary basis, under a supervision order, and I find that this is the least intrusive order that I can make to ensure the child’s safety pending the disposition of this Protection Application.
ORDER
[26] As a result, a temporary order shall issue as follows:
- The child H.O. shall be placed in the temporary care and custody of the father, R.O., subject to Society supervision, under the following conditions:
a. The father shall meet with a worker at least once every 30 days, in his home, via announced or unannounced visits.
b. The father shall notify the Society in advance of any change of address, telephone number or family constellation.
c. The father shall sign consents, upon consultation with counsel, permitting the Society to share information with involved professionals.
d. The father shall develop a support network with extended family and community supports with whom he will build a safety plan that will be shared with the Social Services in Arctic Bay.
e. The father shall make H.O. available for scheduled access with his mother.
f. The mother will not live with the father until a safety plan has been developed involving their supports and Social Services in Arctic Bay.
g. The parents will develop a safety plan to ensure H.O. is always cared for by a sober caregiver.
- The mother shall have access to the child at the discretion of the Society.
[27] This matter is adjourned to February 28, 2022, to be spoken to.
Madam Justice Julie Audet
Released: February 11, 2022
COURT FILE NO.: FC-21-CP39
DATE: 2022/02/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
H.Q. and R.O.
Respondents
decision
Audet J.
Released: February 11, 2022