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-22-CP33-1 DATE: 2023/07/31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – D.S, A.T., C.R., & A.T Respondents

Tara MacDougall, counsel for the Applicant Self-represented, Respondent Mother Self-represented, Respondent Father Vasu Naik, counsel for the Paternal Great Aunt Ezioma O. Nnorom, counsel for the child, L.T. HEARD: July 6, 2023

ENDORSEMENT

Introduction

[1] The present decision deals with a motion and a cross-motion on a status review application. The Children's Aid Society of Ottawa ("the Society") seeks to reduce the mother's access to the child based on her sporadic attendance at access visits with the child and the impact this is having on the child. The Society also seeks to remove the stepfather's access to the child and to provide the paternal great-aunt ("the aunt") with access.

[2] D.S., the child's mother ("the mother"), responded to the Society's motion by seeking the return of the child to her care and custody. Although she did not file a notice of motion, her response to the Society's motion is being treated as a cross-motion. The mother did file an affidavit and plan of care, which is being considered both as a response to the Society's motion for reduced access and in support of her motion to return the child to her care and custody.

[3] I find that while the mother has made some progress in addressing the issues that led to the child's placement into the Society's care, the changes do not meet the high threshold required by s. 113(8) of the Children, Youth and Family Services Act ("the CYFSA") to warrant returning the child to her care.

[4] I find that the Society has established that it is in the child's best interests to vary the access orders made by Fraser J. on November 21, 2022. The child is demonstrating signs of serious emotional distress that seem to be associated with the mother's inconsistent attendance at visits and her inappropriate communication with him. The Society's proposal to reduce the mother's minimum access visits from twice to once per week will minimize the child's exposure to miscommunication and disappointment if his mother fails to attend visits with him or miscommunicates with him. It will also provide the aunt, who is a stabilizing force in the child's life, with weekly access.

Background Information

[5] The child is currently six years old. He has First Nations heritage through both his mother and his father. His maternal grandfather was Blackfoot, from the Okotoks area of Alberta (Band unknown). The child's father's background is Algonquin. The father, A.T., has been offered telephone access with the child once a week, but the calls have not been consistent.

[6] The child has significant developmental needs. He demonstrates delays in multiple areas of learning and age development, symptoms consistent with Global Developmental Delays. He also demonstrates symptoms consistent with Developmental Trauma Disorder, Disinhibited Social Engagement Disorder as well as ADHD. He is on a waitlist for testing for Fetal Alcohol Syndrome and Autism Spectrum at CHEO.

[7] The child attends Steps to Success, which is an educational program at CHEO. Teachers in the Steps to Success program are reporting that they have recently seen a significant regression in the child's behaviour. He is spitting, punching, kicking and using profane language. He requires physical restraint for the safety of those around him. He has also regressed in his toileting habits and has been soiling and wetting his pants almost every day. These behavioural problems are also arising in the foster home.

[8] The mother was previously in an abusive relationship with an individual who identified as the child's stepfather. She now has an apartment of her own in the city and is working with a counsellor to improve her mental health. However, the mother does not consistently follow through on programming opportunities provided by the Society, she cancels access visits with her son, threatens to relinquish her parenting rights with him when she is frustrated and threatens self-harm and harm to others when she is upset.

Historical and Procedural Information

[9] In June 2022, the Society received a call from an anonymous person who witnessed the child being thrown onto the stepfather, who in turn, allegedly struck the child’s head five times. The home environment was found to be chaotic. It was extremely cluttered and had a heavy odor of animal food/feces. The child was subsequently brought to a place of safety.

[10] The Society brought a Protection Application in June 2022. A temporary without prejudice order was made by Justice MacKinnon on June 6, 2022, placing the child under temporary care and custody of the Society.

[11] On November 21, 2022, Justice Fraser made the following findings:

1. The child (DOB … 2017) is a First Nations child. There is no associated Band or community with which he identifies.
2. The child's parents are D.S. and A.T. The child's stepfather is C.R.
3. Immediately before the commencement of the proceedings, the child was ordinarily resident in Ottawa, Ontario.
4. The child is in need of protection pursuant to s. 72(2)(h) of the Child, Youth and Family Services Act .

[12] Justice Fraser made the following orders:

1. The child is hereby placed in the Interim Society Care of the Children's Aid Society of Ottawa for a period of three months.
2. Access to the mother and stepfather shall be at the discretion of the Children’s Aid Society of Ottawa, in keeping with the best interests and wishes of the child, a minimum of twice a week with duration, level of supervision and location to be at the discretion of the Children’s Aid Society of Ottawa.
3. In the event that the mother and stepfather miss three consecutive access visits without a reasonable explanation, access will be suspended until they have met with the child protection worker to address and resolve the issue of the missed visits
4. Access to the father shall be at the discretion of the Children’s Aid Society of Ottawa, in keeping with the best interests and wishes of the child(ren), a minimum of once-a-week virtual contact, with duration, level of supervision and location to be at the discretion of the Children’s Aid Society of Ottawa, with a view to increasing to in-person visits once arrangements can be made (in-person visit duration, level of supervision and location to remain at the discretion of Children’s Aid Society of Ottawa).
5. In the event that the father misses three consecutive access visits without a reasonable explanation, access will be suspended until they have met with the child protection worker to address and resolve the issue of the missed visits.

[13] The aunt, who lives in Quebec, has communicated her wish to provide a permanent plan for the child. She is now having full weekend unsupervised access visits at her home and is being assessed as a possible foster parent through the “Directeur de la protection de la jeunesse” (“DPJ”), the Quebec child welfare authority.

[14] On February 1, 2023, the Society brought a status review application, which was subsequently amended when the mother indicated that she would not be participating in the proceedings. The mother, however, later changed her mind and was given time to file her responding materials.

The Society's Motion

[15] Although none of the parties referenced the appropriate provision of the CYFSA in their materials, the Society's motion to vary the access provisions of the November 21, 2022 final order is made under s. 104 of the CYFSA. That section provides the court with the authority to vary a person's access to the child or the child's access to a person where it is in the child's best interests.

[16] The Society seeks to reduce the mother's access from a minimum of two visits to one visit per week, and to provide the aunt with a minimum of one access visit per week plus a minimum of one virtual visit per week. According to the Society, the provision of access to the aunt will facilitate the plan for the aunt to provide foster care to the child if the mother is unable or unwilling to resume care and custody of the child. The Society also seeks to remove the stepfather's access to the child and to maintain the father's virtual access.

The Mother's Cross-Motion

[17] Although the mother did not provide a notice of motion referencing s. 113(8) of the CYFSA, that is the provision that applies to her cross-motion since she is seeking the return of the child to her care and custody. The mother states that her situation has changed since the final order was granted by Justice Fraser on November 21, 2022. She now lives in a two-bedroom apartment close to a school and recreation centre. The mother has set up a bedroom for the child in the apartment and secured a computer for his use. She plans on taking him swimming and enrolling him in activities at the nearby recreation centre.

[18] The mother further states that there are multiple supports in the community to assist her in parenting her son. She has a mental health worker, her aunt and grandmother with whom she connects by telephone, her probation officer and other workers from the programs in which she is enrolled who will be of assistance.

[19] The mother states that it is in her son's best interests to be returned to her care. She says that he cries every visit to come home to live with her. The mother has been the only constant in the child's life since birth, in her view. She believes that her son's current emotional instability is due to the number of foster homes he has lived in since being taken into the Society's care. The mother believes that the child will calm down once he is in her care because she understands his needs and is able to soothe him.

The Law

[20] Subsection 113(8) of the CYFSA applies to the care and custody of a child after a status review application has been brought with respect to that child. That subsection reads as follows:

If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

[21] In Children Aid Society of Algoma v Sandra S. (2010) ONCJ 332, Kukurn J. wrote that the use of the word "require" in subsection 113(8) means that the child must remain in the care and custody of the Society unless their best interests require a change. In the words of Kukurn J.:

Subsection 64 (8) [now ss 113 (8)] does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words ‘shall remain’ implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child require a change in that status quo. In my view, the use of the word ‘require’ in this provision is not accidental. “Require” is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the statute, the person making the determination must take a number of listed considerations into account.

[22] There is some discussion in the case law about whether it is necessary to demonstrate that there has been a material change in circumstances before analyzing the other factors in the best interests test. However, I share the view of Justice Breithaupt Smith in CAS v. A. M., 2020 ONSC 1435, wherein she stated: "a specific finding that a material change has taken place to the circumstances of the child seems redundant in the context of section 113(8), as practically speaking some circumstance must have changed to trigger a reconsideration of the child's placement" (para 11).

[23] In determining the child's best interests, I must not only consider the evidence and apply it to the best interests factors set out in Section 74(3) of the CYFSA, but I must also have regard to An Act respecting First Nations, Inuit and Métis children, youth and families , SC 2019, c 24 ("the Federal Act") since the child has been found to be a First Nations child.

[24] Recently, in FCS v T.W., 2023 ONSC 4050, at paras 53-56, Justice Fraser provided a helpful analysis of the interplay between the Federal Act and the CYFSA. She stated that the Federal Act creates an "augmented best interests test for First Nations, Inuit, and Métis children". In the words of Justice Fraser:

The principles outlined in An Act respecting First Nations, Inuit and Métis Children, Youth and Families S.C. 2019, c.24 ( the “Act”) must also be given due consideration given that the children are First Nations children.

Section 10 specifically speaks to the best interests of an Indigenous Child, and section 10(2) indicates that primary consideration must be given to the importance for that child to have an ongoing relationship with his or her family and with the Indigenous group, community or people to which they belong, and of preserving the child's connections to his culture.

Section 10 (3) delineates the specific factors to be considered in order to determine the best interests of an Indigenous child. Section 10’s definition of the best interests is similar to the definition set out in the CYFSA, but not identical. The interplay between the Act and the CYFSA creates an augmented best interests test for First Nations, Inuit, and Métis children.

One must also be mindful of Section 16 which identifies which placement options are to be prioritized for an Indigenous child. To the extent that it is consistent with the best interests of the child, placement with one of the child’s parents (whether Indigenous or non-Indigenous) should be prioritized.

[25] The factors that must be considered under s. 10(4) of the Federal Act are as follows:

(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.

[26] Section 74(3) of the CYFSA provides several additional factors to consider in determining the best interests of the child. The factors found in s. 74(3) of the CYFSA that are not included in the Federal Act are as follows:

➢ the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity (s. 74(3)(c)(vii);

➢ 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 (s. 74(3)(c)(viii);

➢ the effects on the child of delay in the disposition of the case (s. 74(3)(c)(ix);

➢ 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 (s. 74(3)(c)(x), and

➢ the degree of risk, if any, that justified the finding that the child is in need of protection (s. 74(3)(c)(xi).

[27] I will deal first with the mother's cross-motion for child to be returned to her custody because if the mother succeeds on her cross-motion, the Society's motion would be rendered moot.

Application of the Law to the Mother's Cross-Motion

[28] As noted above, the mother has a high threshold to meet to convince the court that the child should be returned to her care and custody. Section 113(8) of the CYFSA requires that the child remain in the care of the Society pending the outcome of the Status Review Application unless his best interests necessitate a change. I will review each of the best interests factors to determine if the mother has met that high threshold.

1. The Primacy of Family Relationships and Priority of Placement

[29] Sections 10(2) and 16(1) of the Federal Act emphasize the primacy of family relationships and the priority of family placements for an Indigenous child, subject to the best interests and well-being of the child.

[30] In this case, returning the child to his mother would fulfill the requirement to prioritize parental care and the integrity of family relationships. However, I am not convinced that the child's best interests require his return to the mother's care at this time. While the mother seems to have made progress in the past several months to improve her living situation, mental health and parenting skills, she is not yet at the point where she can provide consistent and safe care for the child.

[31] The evidence establishes that the mother has been inconsistent in attending her access visits with the child. She has also been suggesting to the child that he will be coming to live with her in her new apartment soon, which is not the case. The evidence presented in the affidavits of the Society's workers and the aunt provides a clear picture of a child who has become extremely upset and confused by his mother's inconsistent attendance at visits and her statements that he will be going to live with her.

[32] For example, Tim Dickert, the child's Child in Care worker, reported that on April 30, 2023, the mother had a video call with the child during which the mother showed the child her new apartment. As soon as he got off the call, the child told staff that he was going to stay with his mother. When the child was told that staff would not bring him to his mother's, he spent 30 minutes crying and seemed extremely sad. In addition, the people providing care to the child report that the child is fixated on his visits with his mother and when he misses visits with his mother, his behaviour is negatively affected.

[33] Therefore, while a return of the child to the mother would prioritize family relationships and priority of placement, I find it would not be conducive to the child's well-being.

2. The Child's Indigenous Identity and Heritage

[34] Subsections 10(3)(a) and (d) of the Federal Act require the court to consider the best interests of the child from the perspective of his Indigenous upbringing, heritage and identity. The evidence in this case establishes that the child has not been exposed to much of his Indigenous heritage. He would not appear to have a strong sense of the importance of his Indigenous identity.

[35] In her plan of care and affidavit, the mother does not indicate how she would help the child to establish a connection with his Indigenous heritage and identity. Therefore, the mother has not established how a return of the child to her care would be required by this aspect of the best interests test.

[36] Although the mother has not established that a return of the child to her care would be required by this aspect of the best interests test, I find that ensuring a continuation of the child’s relationship with his mother will assist in developing this important aspect of his identity.

3. The Child's Needs

[37] Subsection 10(3)(b) of the Federal Act requires the court to consider the child's needs, given his age and stage of development, in determining whether his best interests require a change in the current access arrangement.

[38] The child has special needs, based on his developmental delays and behavioural difficulties. The Society workers and the child's teachers consistently state that the child needs stability right now. However, that need is not being met. The mother's lack of consistency in her visits and messages to the child about where he will be living are creating confusion and instability in the child's life. I note the comments of the mother's mental health worker that the child's behavioural issues may be related to other factors than the mother's conduct. While I agree that there may be other factors influencing the child's behaviour such as the behaviour of the other children in the foster home, it is apparent, based on the comments made by various caregivers in the affidavit evidence in this case, that a significant factor in the child's instability is his mother's erratic behaviour.

4. The Nature and Strength of the Child's Relationships

[39] Subsection 10(4)(c) of the Federal Act requires the court to consider 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 in determining his best interests.

[40] In the present case, the bond between mother and child is very strong; they both clearly love each other very much. However, the mother's inconsistency and emotional instability may be undermining the strength of that bond. For example, Society worker Julia Dundas provided evidence of a visit on February 3, 3023 during which the child was crying and stating that he wanted to go home to the caregiving residence. The mother raised her voice and told the child to stop that, stating "this is your home". The child continued to cry.

[41] Ms. Dundas provided other examples of occasions when the mother cancelled visits with the child because she was upset, tired or busy. However, Ms. Dundas also detailed some positive visits between mother and child. The difficulty would appear to be that there is no consistency either in the mother's attendance or her messages about whether the child will be coming to live with her. This leaves the child feeling confused and upset.

[42] Thus, although I find that the strength of the bond between mother and child in this case is a positive factor, the mother is currently not able to provide consistent care to the child.

5. The Child's Views and Preferences

[43] Subsection 10(3)(e) of the Federal Act requires the court to consider the child's views and preferences, giving due weight to the child's age and maturity. The child's lawyer in this case indicates that the child wishes to spend more time with his mother. The mother also asserts that the child very much wants to live with his mother and tells her this frequently. I do not doubt that the child has expressed a preference to live with his mother.

[44] However, I must also consider the child's age and maturity. A six-year-old child with significant developmental difficulties is unlikely to have a full appreciation of his needs and desires beyond the immediate moment. He is not able to understand how his mother's instability and inconsistency will affect his day-to-day well-being. Furthermore, there are examples provided in the affidavit evidence of the child's desire to leave his mother's home when he was feeling unhappy. Therefore, when due weight is given to the child's age and maturity, I find that his desire to live with his mother does not carry a great deal of weight in determining whether his best interests require him to be returned to his mother's care.

6. Plans for the Child's Care and Continuity of Care

[45] Subsection 10(3)(f) of the Federal Act involves a consideration of the child's care, including care in accordance with the customs and traditions of the Indigenous group to which the child belongs. Subsection 74(3)(c)(vii) of the CYFSA requires the court to consider the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

[46] The mother provided a plan of care for the child that addressed the child's school and recreational interests. She states that she is able to help the child to deal with his disabilities because she also has disabilities and understands what he needs. However, the mother has not attended any of the interdisciplinary meetings with the child's caregivers, teachers and doctors to learn about the child's needs. Therefore, her plan of care does not address how she will meet the particular needs of this child other than saying she will collaborate with the Society if he is returned to her care. The mother has not collaborated with the Society with respect to the access trajectory and did not attend a relationship building parenting course (Parent Child Interaction Therapy) with the child when it was offered to her in December 2022.

[47] Furthermore, the mother has not indicated how she would assist the child to obtain care in accordance with the customs and traditions of his Indigenous background. In her affidavit, Society worker Victoria Georgaras states that she and another Society worker met with Jennifer Kohoko from Odawa Native Friendship Centre to discuss culturally appropriate services for the family. The mother was invited to attend the meeting but did not do so.

[48] For these reasons, I am not convinced that the mother's care plan is in the best interests of the child.

Family Violence

[49] Subsection 10(4)(g) of the Federal Act requires the court to examine 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.

[50] The child has been exposed to family violence in the past. The mother and stepfather physically disciplined the child in the past, and the mother reported experiencing intimate partner violence. On March 31, 2023, the mother was charged with criminal offences relating to an altercation with her previous partner. In December 2022, she threatened violence against one of the Society workers. In February 2023, the mother threatened suicide and self-harm.

[51] Although the mother now has her own apartment and therefore, is not exposed to the threat of intimate partner violence daily, she has not completed the programming that would provide the court with reasonable assurance that she is able to curb her own tendency to use physical discipline on the child and/or to engage in self-harm. For example, the mother has enrolled in the next session of Wellness Recovery Action Plan (WRAP) but has not yet been completed the program. Therefore, I find that the mother's plan to have the child return to her care does not meet this aspect of the best interests test under the Federal Act.

10. The Effects on the Child of Delay in the Disposition of the Case

[52] Subsection 74(c)(ix) of the CYFSA requires a consideration of the effects on the child of delays in the disposition of the case. The OCL stated that the child is anxious to return to his mother's care as soon as possible. The mother echoed that sentiment.

[53] As noted above, the child's wish to immediately return to his mother's care must be tempered with a consideration of his age and maturity as well as the other best interests factors that have been reviewed in these reasons. Taking these factors into account, I find that the delay in finally disposing of the status review application is less detrimental to the child's well-being than the alternative, which would be to return him immediately to his mother's care.

11. The Risk of Harm if the Child is Kept Out of His Mother's Care

[54] Subsection 74(3)(c)(x) of the CYFSA mandates a consideration of the risk that the child may suffer harm by being removed from, kept away from, returned to or allowed to remain in the care of a parent. In this case, the risk of harm from keeping the child out of his mother's care is that his relationship with his mother may deteriorate. However, I find that this risk is outweighed by the risk of harm in returning him to her care before she is ready to provide safe, stable and consistent care. In February 2023, the mother reported to her worker that she was hospitalized for a day after attempting to take her own life. The risk that this might happen while the child is in her care is significant given the recency of the event and the evidence that she has not completed the programming needed to stabilize her mental health. Thus, this factor militates against returning the child to the mother's care.

12. The Degree of Risk that Justified the Finding that the Child is in Need of Protection

[55] Finally, subsection 74(3)(c)(xi) of the CYFSA requires the court to consider whether the degree of risk that justified the finding that the child was in need of protection has changed such that it would be in the child's best interests to vary the final order. In the present case, I find that the degree of risk to the child has been reduced somewhat by the mother's actions. The mother has secured her own apartment and is participating in some programming to improve her mental health. She has had some successful visits with the child. However, the child is reacting negatively to the mother's inconsistent attendance and messaging around his long-term care. He is in critical need of stability and consistency. This factor does not lend significant support to the mother's position that the child's best interests require him to be returned to her care.

Conclusion Regarding the Mother's Motion

[56] For the reasons set out above, the mother has not met the burden of establishing, on the balance of probabilities, that the best interests of the child require a change in his care and custody, pending the resolution of the Society’s Status Review application.

The Society's Motion to Vary the Access Provisions

[57] The Society's motion is made pursuant to section 104 of the CYFSA. The Society requests to vary the November 21, 2022 order to reduce the mother's access to the child from a minimum of twice per week to a minimum of once per week. The Society also seeks to provide the aunt with access to the child, and to remove the stepfather's access.

[58] Section 104 provides that the court may vary an access order if it is in the child's best interests. As set out above, the Federal Act must be taken into account in determining the best interests of an Indigenous child, as in the present case. The court must also take into account any residual factors in s. 74(3) of the CYFSA that have not been covered by s. 10(4) of the Federal Act .

1. The Primacy of Family Relationships and Priority of Placement

[59] The Society's proposed changes do not meet the priority of placement provisions of the Federal Act, which prioritize family placements over non-family placements. However, the Society is hoping the aunt can become a kin placement, should that be necessary. This would be consistent with s. 16(1)(b) of the Federal Act, which provides for the placement of the child with another member of the child's family if they cannot be with the parents. Although the aunt's out-of-province residence is making it more difficult to have the kin assessment completed, the child has had regular unsupervised weekend access visits with his aunt. She has never missed any of those visits. The Society's proposed variations will support the aunt's relationship with the child, which is in keeping with sections 10(2) , 10(3) (a), 10(3)(d), and 16(1) of the Federal Act .

2. The Child's Indigenous Identity and Heritage

[60] The Society has looked into culturally appropriate services that could be provided to the family through the Odawa Native Friendship Centre. Although the mother did not attend the meeting to discuss these services, the Centre remains willing to facilitate the provision of services that reflect the child's Indigenous background.

3. The Child's Needs

[61] Given the child's special needs and the turmoil he has recently experienced, he needs stability and consistency. I find that the proposed minimum access provisions in the Society's motion will ensure that the child maintains a connection with his mother but will not be as frequently exposed to disappointment if she does not follow through on her commitments.

4. The Nature and Strength of the Child's Relationships

[62] The evidence establishes that the child has developed a close bond with the aunt. For example, when the child is upset at the foster home, the foster parents call the aunt because she is able to calm him down. The aunt attends all medical and inter-disciplinary team meetings regarding the child. As noted, that relationship appears to be a stabilizing force in the child's life. The Society's proposal will allow for the strengthening of the relationship between the child and the aunt.

[63] Although the Society is seeking a reduction in access time with the mother, this does not mean that the mother will be prevented from increasing her time with the child or from having the child returned to her care in the future. The once-a-week access proposal is a minimum. It can be increased at any time, provided the mother demonstrates that she is focused on the child's needs.

[64] Consequently, I find that the Society's proposal is consistent with the nature and strength of the child's family relationships.

5. The Child's Views and Preferences

[65] As noted above, although the child's preference seems to be to return to his mother's care and therefore, the Society's proposed changes are not consistent with his wishes, the child has not been consistent about his preferences. He has also stated that he wants to have five sleeps with his mother and five sleeps with his aunt which, according to the child's lawyer, means he would like half his time to be with his mother and half his time to be with his aunt. Taking into consideration the child's age and maturity as well as the stability of the mother, I find that the child's preference to increase his access time with his mother does not weigh heavily against the Society's proposed changes. The Society has indicated that they are looking to increase the time spent with the aunt, which will certainly meet part of the child's recently stated wishes. If the mother is able to commit to the access trajectory and follow through, she too may see her time with the child increased.

6. Plans for the Child's Care and Continuity of Care

[66] Subsection 10(3)(f) of the Federal Act involves a consideration of the child's care, including care in accordance with the customs and traditions of the Indigenous group to which the child belongs. Subsection 74(3)(c)(vii) of the CYFSA requires the court to consider the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

[67] As previously noted, the Society is working towards greater involvement of the aunt in the child's life. The Society is also hoping that the mother will work with the Society on the access trajectory so that she can safely resume care of the child, once she meets the milestones. The proposed variations will promote both of these goals. They will also be least disruptive to the child's current care plan. Therefore, I find that this best interest factor supports the Society's proposed variations.

7. Family Violence

[68] The Society's proposed changes reduce the risk of the child being exposed to family violence as the stepfather will not have access to the child, the father's access will be virtual and at the Society's discretion and the mother's time will be reduced. For those reasons, I find that the Society's proposed access variations meet this part of the best interests test under both the Federal Act and the CYFSA.

8. The Merits of the Plan for the Child's Care

[69] Subsection 74(3)(c)(viii) of the CYFSA provides that the court must consider the merits of a plan for the child’s care proposed by the 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. I am satisfied that the Society's plan to work with the mother to improve her parenting skills, increase her access and if possible, return the child to her care while simultaneously working with the aunt as a possible kin placement will meet the best interests of the child.

9. The Effects on the Child of Delay in the Disposition of the Case

[70] The Society's plan of care requires the mother to participate cooperatively in the access trajectory and the kin assessment to be completed for the aunt. This will take time some time, as will the disposition of the Status Review Application. However, it is in the child's best interests that time is taken to complete the necessary work to ensure his safety. Therefore, I find that the effects on the child of delay in the disposition of the case are outweighed by the benefits of providing time for the parties to fulfill their roles in the child's plan of care.

10. The Risk of Harm if the Child is Kept Out of the Mother's Care

[71] As noted above, the risk of harm from keeping the child out of his mother's care is outweighed by the risk of harm in returning him to her care before she is ready to provide safe, stable and consistent care. The Society's proposed changes will ensure that this risk is minimized.

11. The Degree of Risk that Justified the Finding that the Child is in Need of Protection

[72] The Society's proposed variation to reduce the mother's minimum access visits will address the risk that the mother's inconsistency may further exacerbate the child's deteriorating mental health. But it will also leave open the opportunity and supports for the mother to improve her parenting skills and regain custody of the child.

[73] The proposed variations will also exclude the stepfather from having access to the child. His violence toward the child was one of the reasons the child was found to be in need of protection.

[74] For these reasons, I find that this factor also militates in favour of the Society's motion to vary Justice Fraser's final order regarding access.

[75] For all of the above-noted reasons, I find that the Society has established that it is in the child's best interests to vary the access provisions of the November 21, 2022 order of Fraser J.

Conclusion

[76] The child is experiencing considerable emotional distress, which appears to be at least in part, related to the mother's erratic attendance and communication with him at access visits.

[77] The mother has made progress in addressing the concerns that led to the removal of the child from her care. However, she has not convinced me that the child's best interests require that he be returned to her care prior to the disposition of the status review application.

[78] In contrast, the Society has met the burden of proving that it is in the child's best interests to grant the requested changes to the access provisions of Justice Fraser's final order of November 21, 2022.

[79] The Society's proposed changes are in keeping with the best interests of the child as defined by the Federal Act and the CYFSA. They provide access to the child's paternal great-aunt, who is Algonquin, and who may be able to offer the child a kin placement instead of the current fostering arrangement with non-family members.

[80] The Society's proposed changes to reduce the mother's minimum access time to once a week will minimize the child's disappointment if his mother cancels her visits. At the same time, the proposed plan leaves open the option to increase the mother's access time and reduce or eliminate supervision as the mother's parenting skills and emotional stability improve. The access trajectory provides a pathway for the child to be returned to the mother's care.

[81] Therefore, the Society's motion is granted, and the mother's cross-motion is denied.

Orders

[82] The following orders are granted:

1. A temporary Order that the access provisions of the November 21, 2022, Final Order of the Honourable Justice Fraser shall be amended as follows: I. An Order that access to D.S shall be at the discretion of the Children’s Aid Society of Ottawa, in keeping with the best interests and wishes of the child, a minimum of once a week with duration, level of supervision and location to be at the discretion of the Children’s Aid Society of Ottawa. II. An Order that in the event that D.S. misses two consecutive access visits without a reasonable explanation, the frequency of access will revert to being at the discretion of the Society. III. An Order that access to the father shall be at the discretion of the Children’s Aid Society of Ottawa, in keeping with the best interests and wishes of the child, a minimum of once a week virtual contact, with duration, level of supervision and location to be at the discretion of the Children’s Aid Society of Ottawa. IV. An Order that access to the aunt A.T. shall be at the discretion of the Children’s Aid Society of Ottawa, in keeping with the best interests and wishes of the child, a minimum of once a week, with duration, level of supervision and location to be at the discretion of the Children’s Aid Society of Ottawa.

The Honourable Justice K. A. Jensen Date: July 31, 2023

COURT FILE NO.: FC-22-CP33-1 DATE: 2023/07/31 ONTARIO SUPERIOR COURT OF JUSTICE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – D.S, A.T., C.R., & A.T Respondents ENDORSEMENT Justice K. A. Jensen Released: July 31, 2023