Court File and Parties

COURT FILE NO.: FC952/20-03 DATE: August 11, 2023

SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

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

RE: Children's Aid Society of London and Middlesex, Applicant AND: L.M.J., K.R., B.D.E., W.R. and L.D., Respondents

BEFORE: SAH J.

COUNSEL: K. Chao, for the Society A. Rathod as agent for S. Khot, for the respondent L.M.J. No other respondents appearing

HEARD: July 14 and 20, 2023

Endorsement

Overview

[1] This temporary care and custody hearing involves two Indigenous children, R.R., born 2017, and X.E., born 2020, (collectively, the “children”). The family is registered with the Oneida Nation of the Thames (“Oneida”).

Background

[2] This temporary care and custody hearing was heard within a Status Review Application.

[3] The Status Review Application was commenced less than a month after two final orders were made (one for each child) finding the children in need of protection and placing them in the care of their mother, pursuant to supervision of the Children's Aid Society of London and Middlesex (the “Society”).

[4] The mother has four children. The eldest and the youngest are the subject of separate proceedings. The eldest child is in the care of his paternal uncle. The youngest remains in the care of the mother.

[5] The two middle children, subject to this proceeding, were placed in the care of their mother on May 18, 2023. Initial protection concerns pertaining to R.R. focused on the condition of the home and allegations of general neglect. There were also more recent concerns related to reports of violence in the home between the mother and the father of the younger children.

[6] Initially, R.R. was in the care of her paternal uncle. The child then was placed in Society care from May 2021 to May 18, 2023 when she was returned to her mother.

[7] The Society commenced a Protection Application two months after X.E.’s birth due to concerns of ongoing reports of conflict and the condition of the mother's home. X.E. remained with the mother subject to supervision. A term of the supervision order prohibited X.E.’s father from attending at the home. Despite this term, there were reports that the father had been in the home, and X.E. was removed.

[8] X.E. was placed with her paternal grandparents, then relinquished into Society care, and finally returned to her mother on May 18, 2023.

[9] Prior to the children being returned to their mother, a few concerns were raised relating to injuries sustained by X.E. and her weight.

[10] The final supervision orders made contained 21 terms and conditions.

Issues

[11] The issues to be determined are:

1. Is it in the children’s best interest to remain in Society care or be returned to their mother under strict terms of supervision?

2. In determining the issue outlined above, does the federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“Federal Act”), alter the method of analysis when applying the legal test set out in section 94 of Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”)?

Position of the Parties

The Society

[12] The Society is seeking an order that the children be placed in the temporary care and custody of the Society with access to the parents at its discretion. They ask that the mother have access at minimum twice per week for a period of 1.5 hours.

The Mother

[13] The mother opposes the Society's motion and seeks an order returning the children to her care subject to terms and conditions.

[14] In the alternative, the mother seeks to have maximum parenting time with the children, that they be removed from their current placement, and that the X.E.’s registration at her current daycare be terminated.

The Fathers

[15] The two respondent fathers did not participate in the temporary care and custody hearing.

Oneida Nation of the Thames

[16] Oneida did not participate in the hearing. The Band Representative was not present despite being a party to this proceeding. However, Mr. Chao, acting as agent for Ms. Hill-Dolson, advised that their position was aligned with the Society’s.

Legal Framework

[17] The purpose of the temporary care and custody hearing is to determine where a child is to stay until the merits of the protection case can be heard: Children's Aid Society of Hamilton v. D.(B.), 2012 ONSC 2448, para. 28.

[18] In this case, the court is required to make a temporary order for care and custody providing that the children,

(a) remain in or be returned to the care and custody of the mother, as she had charge of them immediately before intervention;

(b) remain in or be returned to the care and custody of the mother, subject to the Society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(c) remain or be placed in the care and custody of the Society.

s. 94(2) CYFSA

[19] The court shall not make an order unless satisfied that there are reasonable grounds to believe there is a risk that the children are likely to suffer harm and that they cannot be protected adequately by returning them to the mother with or without terms and conditions: s. 94(4) CYFSA.

[20] Before making a temporary order for care and custody that the children remain in the care of the Society, the court must consider whether it is in the children’s best interests to be placed in the care and custody of a person who is a relative of the children or a member of the children’s extended family or community: s. 94(5) CYFSA.

[21] In this case, the mother seeks the return of the children to her care. If this is ordered, s. 94(6) allows the court to impose terms and conditions as follows:

(a) reasonable terms and conditions relating to the children's care and supervision;

(b) reasonable terms and conditions on the mother, the person who will have care and custody of the children under the order, the children, and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the children; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

[22] The court must take into consideration the children's views and wishes, given due weight in accordance with their age and maturity: s. 94(11) CYFSA. As the children are six and almost three years old, their views and wishes are not a consideration in this case.

[23] The onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe there is a real possibility that, if the children are returned to the mother, it is more probable than not that they will suffer harm.

[24] Further, the onus is on the Society to establish that the children cannot adequately be protected by terms and conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., 2000 ONSC 21157, [2000] O.J. No. 2273 (Ont. Sup. Ct.).

[25] The Divisional Court has held that a society seeking an order for temporary society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe there is a protection risk for the child that justifies society intervention: L.D. v. Durham Children's Aid Society and R.L. and M.L., 2005 ONSCDC 63827, [2005] O.J. No. 5050 (Ont. Div. Ct.), para. 26. The burden on the Society at this stage does not go as high as to show that on the balance of probabilities there is an actual risk to the child in the parent's care: CCAS of Toronto v. M.L.R., 2011 ONCJ 652, para. 27.

[26] This court must choose the order that is the least disruptive placement consistent with adequate protection of the children: s. 1(2) CYFSA, Children's Aid Society of Hamilton v. D.(B.), supra, para. 29.

[27] The Federal Act applies to this case and must be considered.

[28] The Federal Act was enacted in part to ensure courts and child protection agencies follow minimum standards with respect to providing services to, or making decisions about, Indigenous children and to supplement the provisions of the CYFSA: Huron-Perth Children's Aid Society v. A.C., 2020 ONCJ 251, para. 30.

[29] The application of the CYFSA is not affected as long as it does not conflict with, or is not inconsistent with, the Federal Act: s. 4 Federal Act.

[30] When assessing the best interests of a child, the following must be considered: the principle of cultural continuity, s. 9(2); the principle of substantive equality, s. 9(3); best interests considerations of Indigenous children, s. 10; and priority of placement, s. 16: Huron-Perth Children's Aid Society v. A.C., 2020 ONCJ 251, para. 30.

[31] The Federal Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the concepts set out in s. 9(2):

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child's best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

[32] Further, the Federal Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the concepts set out in s. 9(3):

(a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child's participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs;

(b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(c) a child's family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and

(e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.

[33] In assessing the best interests of Indigenous children, primary consideration must be given to the child's physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs, and of preserving the child's connections to his or her culture: s. 10(1) and (2) Federal Act.

[34] Section 10(3) sets out factors that must be considered to determine the best interests of Indigenous children, including:

(a) the child's cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(c) the nature and strength of the child's relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child's cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) any plans for the child's care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[35] The Federal Act sets out an order of priority to be applied for the placement of Indigenous children in the context of providing child and family services, to the extent that it is consistent with the best interests of the child. The order is as follows:

(a) with one of the child's parents;

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

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

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

(e) with any other adult.

s. 16 (1) Federal Act

[36] When the order of priority is being applied, the possibility of placing the children with or near children who have the same parent, or who are otherwise members of the children’s family, must be considered in the determination of whether a placement would be consistent with their best interest: s. 16(2) Federal Act.

Analysis

[37] Having regard for the issues and law outlined above, I have considered the following evidence.

[38] Less than one month following the making of the final orders, the Society was contacted by X.E.’s daycare after she had not attended for two weeks. When she finally attended, there were a number of bruises on her face, abrasions on her knee, and she was limping.

[39] She was transported to hospital where the following were noted: abrasions over her left elbow, one-sided dark bruise posteriorly above her right elbow, a few abrasions centrally over the lumbar vertebrae, and distress to her left leg causing her to limp.

[40] The mother denies that the child was injured prior to attending daycare that day. She claims X.E. was ill and that is why she did not attend daycare.

[41] The mother deposes that X.E. had scraped her nose and knees while playing, but the scrapes were minor. According to her, the child was not limping and was able to walk perfectly before she was dropped off at daycare. She believes there may have been an incident at the daycare that resulted in the injuries. She was notified by the Society at approximately 2:50 p.m. that they were taking the child to the hospital and requested her consent.

[42] The Society worker deposes that she, along with the Band Representative, observed X.E. to have a number of bruises on her face, swollen eyes, and cuts on her hands and elbows.

[43] According to the Society worker, the doctor verbally expressed that the bruises were deemed non-accidental.

[44] The hospital noted that the child weighed 13.1 kilograms as of June 1, 2023. On May 14, 2023, hospital records indicate that the child weighed 13.9 kilograms. The doctor expressed concern that malnourishment was occurring at the mother's home.

[45] The mother deposes that she prepares the same home-cooked meals for all the children. She claims X.E. was already skinny when she was returned to her care and she does not believe there was weight loss as X.E. was fed properly and eating well.

[46] This matter was referred to the London Police who investigated the bruising. No criminal charges were laid.

[47] One and a half hour of access was arranged between the mother and the children after they were brought to a place of safety.

[48] On the first scheduled access visit with R.R., the mother contacted the Society to cancel as she had sprained her ankle. On the same day, the Society received an anonymous report from a community member advising that the mother wanders her complex all night long, drinking alcohol, and that the night before, she had been outside with a hammer smashing people's doors and windows and threatening to stab them.

[49] On the first scheduled visit with X.E., the mother failed to attend.

[50] A subsequently planned visit occurred, and the Society reports that the mother was on her phone most of the visit and did not spend individual time with the children.

[51] The mother also missed another planned visit with X.E.. On that day, the Society worker deposes that she and the Band Representative attended the mother’s home unannounced. They observed her front window to be smashed in and covered by cardboard.

[52] The Society worker deposes that the mother advised she had slept in and expressed concern about the children calling their foster caregiver “mama”. The mother at one point expressed that she wished to postpone visits with X.E. until X.E. no longer calls the foster caregiver “mama”.

[53] The Society worker deposes that she addressed concerns about the mother’s drinking with the mother, who admitted that she has one to two drinks after the youngest child is in bed but that she does not become intoxicated.

[54] The mother claims that since the children were placed in her care in May 2023, she has ensured their safety, security, and well-being to the best of her ability. She relies on the expansion of her access with both children, including overnight access, the year prior to the final orders being made as an indication that she is able to care for the children.

[55] The mother believes that it is not in the children's best interest to remain in the same foster home given previous concerns of physical harm, neglect, and lack of supervision. She claims there were reports from R.R. about being physically abused, and X.E. being left in her crib or high chair for long periods of time. According to the mother, these concerns persist without any evidence of them being addressed.

[56] The mother requests that X.E. not to be permitted to attend the same daycare due to her concerns that injuries occurred at the daycare.

[57] She submits there is no evidence suggesting that X.E.’s injuries were caused in her care and wishes for the court to consider the least intrusive measure. She is agreeable to strict terms and conditions of supervision.

[58] I find the Society has, on credible and trustworthy evidence, met the onus of establishing that it is more probable than not that if returned to the mother, X.E. would suffer harm because:

• She lost approximately 1.8 pounds and did not attend daycare in the short time that she was with her mother.
• She is not yet three years old and requires that her needs be consistently met, particularly as it related to nourishment and attendance at daycare.
• There is a pattern of unexplained bruising on X.E. that is not coincidental or accidental in nature. The pattern began prior to the making of a final order and continued very shortly after.
• The mother has been inconsistent in her commitment to access, focusing less on the need to maintain their connection and more on the comments made by a two-year-old in relation to the foster parent.
• There are ongoing concerns about the mother’s alcohol consumption and the extent that it has affected her ability to adequately parent the children and prioritize access visits.
• There are concerns of maltreatment and neglect and the child abuse unit was consulted.

[59] I note that concerns outlined in the motion material do not relate to R.R.; however, at age six, R.R. also requires consistency of care, and risk of neglect and malnourishment is more probably than not to ensue given the evidence before the court.

[60] The court must also consider whether the evidence demonstrates if terms of supervision will adequately protect the children by shielding them from maltreatment, neglect, and malnourishment.

[61] Based on the facts of this case, I am unable to conclude that the children can be adequately protected by terms of supervision or that it is in the children's best interest to be placed in the care of their mother, subject to strict terms of supervision.

[62] I come to this conclusion having regard for the final orders made by the court two weeks prior to the children being brought to a place of safety.

[63] The terms of the final order, inter alia, required that the children continue to attend daycare on a regular basis, be adequately supervised by a responsible adult, that the mother refrain from being under the influence of alcohol while in a caretaking role or in the presence of the children and that she maintain a residence free from safety hazards at all times.

[64] I do not accept the mother’s submission that the injuries sustained by X.E. were the result of incidents that occurred at a daycare that she had not attended. There is no evidence to support a conclusion that the injuries were recent or that they occurred on the day she attended the hospital.

[65] The mother admitted to the Society that she had been consuming alcohol while in a caregiving role. She failed to ensure that X.E. attended daycare regularly and did not produce any cogent or compelling evidence to support why.

[66] The cause of the injuries is unknown and remain unexplained; however, I accept that they occurred while X.E. was in the care of her mother, which leads me to conclude that she was not complying with the terms of the final order. If they were not caused by the mother, the injuries were sustained due to her failure to adequately supervise or maintain the home from safety hazards.

[67] The mother’s proposed terms largely mirror the terms of the final supervision orders. The mother included additional terms requiring her to cooperate with public health services based on the family’s needs in consultation with the Society and public health services, and for her to participate in counseling/services/programs as recommended by the Society.

[68] No submissions were made as to how these proposed additional terms would adequately protect the children.

[69] The Society has met the onus of establishing that the children cannot adequately be protected by terms and conditions of an interim supervision order.

[70] The hierarchy of placement in the CYFSA and the Federal Act do not conflict as the children were in the care of their mother immediately before Society intervention.

[71] While R.R. was placed with an uncle, this could not continue, and she was placed in Society care.

[72] There are no other family members or members of the Indigenous community available to care for the children.

[73] The foster family is associated with Eagle’s Nest, a First Nations agency which provides foster homes and related support services for Indigenous children and youth.

[74] Oneida is in agreement with the current placement and supports the Society’s position that the children should not be returned to their mother.

[75] X.E. is enrolled in Nshwaasnangong Child Care and Family Centre, a daycare that aims to honour and express the diverse identities of Indigenous people.

[76] The daycare and the foster family’s association with Eagle’s Nest promote cultural continuity and the transmission of practices, customs, tradition and culture.

[77] The mother submits that the Society has not exhausted other options under ss. 16(2) and (2.1) of the Federal Act, and that it would be detrimental to the children’s best interests if they lost their culture because they were not returned to her care.

[78] I have considered the mother’s views and preferences; however I respectfully disagree. The court must balance the primary objective of the children's best interests with the value of maintaining the family unit together.

[79] There is no other adult member of the children’s family or same Indigenous group or community available to care for the children.

[80] The Society has measures to preserve the children's cultural identity and connection through Eagle’s Nest.

[81] I also find, having considered s. 16(2) of the Federal Act, that it is in the children best interest to remain together as long as possible.

[82] In this case, even after considering the more expansive best interest considerations set out in the CYFSA and after taking into account the principle of cultural continuity, the children's safety, security, and well-being are met if they remain in Society care.

[83] The Federal Act does not affect the application of a provision of the CYFSA to the extent that the provision conflicts with, or is not inconsistent with, the provisions of the Federal Act.

[84] The children are very young, and the court must consider their developmental needs. While it would be ideal for the children to be returned to the mother in an environment where their cultural heritage could be supported and enhanced, this cannot take precedence over the degree of risk.

[85] I find that an order that the children remain in Society care satisfies the best interests test in the Federal Act and also the provisions of ss. 94(2)(c), (4) and (5) of the CYFSA.

[86] Other than the mother’s allegations that X.E.’s injuries occurred at the daycare, there is no compelling reason to suggest that the child should be removed from a daycare that supports cultural continuity. As a result, paragraph 4 of the mother's notice of motion shall be dismissed.

[87] Similarly, there is no evidence to support that it is in the children’s best interest to be removed from the current placement and be placed in alternative placement. As a result, paragraph 3 of the mother's notice of motion shall be dismissed.

[88] Finally, the mother seeks to have maximum parenting time with the children. No submissions were made as to what “maximum parenting time” entails.

[89] Nevertheless, the evidence before leads me to conclude she has failed to demonstrate a commitment to the access terms previously ordered, being a minimum of twice per week for 1.5 hours.

[90] In the face of this lack of commitment, and on the evidence before me, there is no reason for this court to order “maximum parenting time”. As a result, paragraph 2 of the mother’s notice of motion shall be dismissed.

Order

[91] Based on the foregoing, a temporary order shall issue as follows:

1. The mother’s Notice of Motion dated July 6, 2023 shall be dismissed.
2. The children, R.R., born 2017, and X.E., born 2020, shall be placed in the temporary care and custody of the Children's Aid Society of London and Middlesex, without prejudice to the rights of any party with respect to evidence or onus, until final disposition of these proceedings or further Order of the Court.
3. The Society shall have the right to consent to emergency and/or urgent medical treatment for the children, until further order of the Court. In the event the children require emergency or urgent medical treatment; the parents will be notified as soon as possible.
4. The mother, L.M.J., shall have reasonable interim access to the children, R.R., born 2017, and X.E., born 2020, such access to be supervised by the Children’s Aid Society of London and Middlesex or its agent. Such access shall occur at a minimum of twice per week for a period of 1.5 hours. Access may exceed this frequency and duration as agreed upon between the parties. If access is occurring on Society premises, photographs and videos shall not be taken by anyone other than Society staff. Society staff shall not take photographs or videos except at the specific request of the persons attending the access visit. This clause does not apply to the Society’s security cameras.
5. The father, K.R., shall have reasonable interim access to the child, R.R., born 2017, such access to be at the discretion of the Children’s Aid Society of London and Middlesex with respect to the level of supervision by it or its agent. If access is occurring on Society premises, photographs and videos shall not be taken by anyone other than Society staff. Society staff shall not take photographs or videos except at the specific request of the persons attending the access visit. This clause does not apply to the Society’s security cameras.
6. The father, B.D.E., shall have reasonable interim access to the child, X.E., born 2020, such access to be at the discretion of the Children’s Aid Society of London and Middlesex with respect to the level of supervision by it or its agent. If access is occurring on Society premises, photographs and videos shall not be taken by anyone other than Society staff. Society staff shall not take photographs or videos except at the specific request of the persons attending the access visit. This clause does not apply to the Society’s security cameras.
7. This is not an appropriate case for costs.

“Justice Kiran Sah” Justice Kiran Sah

Date: August 11, 2023