Municipality of Waterloo v. J.U., 2024 ONSC 1550

COURT FILE NO.: FC-19-FO-168-06 DATE: 2024/03/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant – and – J.U. Respondent Mother – and – K.S. and T.S. Foster Parents

Counsel: A. Ghafoor, Counsel for the Applicant/Respondent on Cross-Motion Self-Represented (for J.U.) V. Ringuette, Agent for the Foster Parents, Moving Parties on Cross-Motion

HEARD: February 28, 2024

BREITHAUPT SMITH J.

DECISION ON MOTION

Preliminary Notes

[1] As initialization makes for difficult legibility, I am using pseudonyms for the individual family members in this matter. I will refer to the subject child as Marie and to her brother, with whom this litigation is not concerned, as Bradley. I will refer to Marie’s family members using their relationship with her (e.g., “Mother”). I will refer to Marie’s foster parents as Mr. and Mrs. Jones.

[2] The facts of this matter as I recite them are either undisputed or, having regard to conflicting narratives in the affidavit material, I have found them to be true. Where I have not relied upon information tendered by the parties, I set out here my general reasons for that determination with a view to assisting everyone in understanding my conclusion. Note that I do not intend, however, to parse the content of each affidavit or to address every argument in detail.

Scope

[3] There are two main issues to be addressed on motion: (1) whether Mr. and Mrs. Jones should be added as parties to the litigation; and (2) what placement arrangements are in Marie's best interests. In this Ontario child protection litigation, the Child, Youth and Family Services Act, 2017 (the “CYFSA”) applies.

Facts & Evidentiary Issues

Litigation Background

[4] This proceeding concerns the long-term parenting planning for Marie, age 4. Her father is deceased. It is uncontested that her mother is unable to provide care for her or for her brother Bradley (age 5). Sadly, Mother has had no contact with Marie since January 7, 2020. As no family member was able to come forward originally, Marie was placed into extended society care by Final Order dated January 20, 2022.

[5] Marie has been with the same foster parents, Mr. and Mrs. Jones, since her birth. Until recently, the Jones family resided in Waterloo Region. Bradley has lived with their maternal uncle and his partner (“Uncle” and “Aunt”) in Edmonton, Alberta for two and a half years. The children have Rwandan heritage on their maternal side. [1] Although Marie’s foster parents moved to Langdon, Alberta on September 1, 2023, the two locations are three hours’ drive apart and the children see one another infrequently.

[6] The Society points out that the plan to place both children with maternal family dates to early 2020. The Jones had clear notice of this intention from the date of the status review application in July 2021. Bradley was placed with Uncle and Aunt in June of 2021, and it is undisputed that he has been thriving in their care since that time.

[7] Originally, maternal grandmother and maternal aunt had indicated an interest in caring for Marie. Unfortunately, by December of 2022, both maternal grandmother and maternal aunt confirmed that they were unable to provide her with a permanent home.

The Jones Family

[8] Throughout this time, Marie grew up as a member of the Jones family. She calls her foster parents “Mommy” and “Daddy.” She has foster siblings in that family, who themselves are racialized. There is no doubt that she is closely and deeply bonded to her foster parents and siblings; their intact family is all that she has ever known. As a sign of her deep gratitude and respect for Mrs. Jones, maternal grandmother asked her to be Marie’s godmother. [2]

[9] On January 30, 2023, Uncle and Aunt put forward a permanency plan for Marie. They had, obviously, been previously approved to care for Bradley. Shortly thereafter, the Jones’ advised the Society that they wished to provide Marie with her forever home. The Jones put forward their plan to care for Marie permanently, and on March 23, 2023, they were told that the plan of care from Marie’s biological family took priority. The Society’s policy is “family first.” [3] From the Society’s perspective, the process for transitioning Marie into biological family’s household began in earnest with a goal of completion around Christmas 2023.

Extended Maternal Family

[10] I pause here to address the comments attributed to maternal grandmother regarding her alleged concerns that Uncle and Aunt were “overwhelmed” and not suitable caregivers for Marie. Firstly, this information is hearsay and, despite the relaxation of evidentiary limits offered by section 94(10) of the CYFSA, I do not consider this information “credible and trustworthy in the circumstances.” Simply stated, it is my view that even where tendered under section 94(10) of the CYFSA, hearsay evidence must satisfy the “principled approach” set down in R. v. Khan [4] and refined in R. v. Khelawon [5]. In the latter case, Justice Charron wrote:

When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. [6]

[11] This element of trustworthiness as bolstered by the circumstances surrounding a hearsay statement appears consistently in the legislation and in the jurisprudence. If a statement is trustworthy because of the way in which it came about, then the opposite must be equally true. Here, having had to admit that she was unable to follow through with her own plan to care for Marie, and facing the prospect that her granddaughter would move to another province, maternal grandmother told Mrs. Jones that Uncle and Aunt would not provide a suitable home for the child. The circumstances surrounding maternal grandmother’s statement call its sincerity and utility into question. Further, maternal grandmother herself should provide this testimony – I am aware of no reason why she has not done so. Thus, her statement is neither reliable nor necessary and fails both the original requirements of Khan and the refinement in Khelawon. The same can be said of any other nay-saying maternal family member, but with the additional feature that some of these individuals live on other continents and have never met Marie. I disregard all of this evidence as being inadmissible.

Uncle and Aunt

[12] The biological family home of Uncle and Aunt is described by the kinship worker from the Society’s sister agency in the Edmonton Region in her affidavit of February 15, 2024, which attaches her Caregiver Reassessment Report dated January 5, 2024. Her observations can be summarized as follows:

a. Uncle and Aunt have shown resourcefulness and commitment in supporting Bradley's complex medical needs and developmental delays. b. Many of Aunt’s extended family members live in the Edmonton area. c. The family is financially stable; Aunt is a pediatric nurse and Uncle works for the provincial government. d. Marie and Bradley resemble their mother and one another. e. The family lives in a three-story, four-bedroom home with a backyard and fully finished basement. Marie has her own bedroom set up for her. f. Uncle and Aunt are both of Rwandan heritage. They will be able to share their family culture with the children including language, customs, celebrations and traditional foods. Both adults speak Swahili and will thus be able to teach the children their language. As two of the children in the household are nonverbal, sign language is also part of the family’s unique culture. g. The family identifies with the Roman Catholic faith and celebrates special occasions accordingly. h. When Marie was shown a photograph of herself as a baby being held by Mother, she asked about the woman depicted – it seemed to the worker that she had no knowledge of her birth parents. i. Marie’s hair has not been properly cared for causing physical discomfort and hair loss. This can be fully addressed in Marie’s biological home. j. During her observation visits, the children (including Marie’s cousins) appeared to enjoy one another's company and to get along well.

[13] The kinship worker draws conclusions and makes recommendations that, while helpful to the various adults who care sincerely for Marie, would not be properly relied upon at this temporary stage of the judicial analysis. Should this matter proceed to trial, a voir dire can be held regarding the admissibility of any such opinion evidence.

Marie

[14] Evidence regarding Marie comes from observations by others and from her own statements to her foster parents and to child protection workers.

[15] I addressed the admissibility of children's statements in child protection matters as hearsay under the “principled exception” in CAS v. C.N. and H.C. [7], and I adopt the same reasoning in this matter. At that time, I wrote [citations omitted, emphasis in original]:

[1] It is a long-held tenet that children’s evidence is to be taken with great care with a view to minimizing any negative impact of the litigation process upon them. This regularly requires the presentation of evidence that would otherwise be excluded as inadmissible hearsay. In R. v. Khan, the Supreme Court of Canada provided clear direction in the admission of hearsay evidence to provide a child’s statements to the Court via an adult witness. For the unanimous Court, Madam Justice McLachlin wrote:

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (…) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances and are best left to the trial judge.

[2] The Court went on to caution us that the remaining safeguards to a party’s interests must be respected and maintained where hearsay evidence is being admitted, particularly in the case of child witnesses where cross-examination of the child him- or herself is not available.

[3] It is my view that the consideration of a child’s ascertainable views and wishes in determining best interests, as mandated by Section 74(3)(a) of the CYFSA, has the practical result of creating a statutory necessity for the presentation of children’s evidence in child protection matters in Ontario. If the legislature had intended a child’s views and wishes to be considered only at the discretion of the litigating parties in deciding what evidence to place before the Court, the language of Section 74(3)(a) would have been softer. It is not discretionary, it is mandatory [emphasis added]:

74(3) 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;

[4] Taken together with the generally-accepted view that active participation in litigation involving their parents (by means of viva voce testimony and being subjected to cross-examination by a parent or his or her lawyer) is contrary to the best interests of most children, it may be that the first branch of the Khan principled approach test – that the hearsay evidence is necessary – is always met in Ontario child protection matters. Perhaps modern child protection litigation in Ontario is now one of McLachlin, J’s “other examples of circumstances which could establish the requirement of necessity.”

[16] Being that, generally-speaking, hearsay evidence of children’s statements is necessary to protect their best interests, in this matter I further presume that the recitation of Marie’s statements is reliable. Unlike litigation about child support, for example, here there is no ulterior motivation that can be ascribed to a witness who hears and reports a child’s statement; it is reasonable to presume that Mr. and Mrs. Jones and the child protection workers are motivated solely by Marie’s best interests. I therefore find that hearsay evidence reporting Marie’s comments to Mr. and Mrs. Jones and to child protection workers is admissible. I will address the weight to be ascribed to this evidence in my analysis of Marie's best interests.

[17] Marie is four years old. She continues to reside with the Jones family, and they moved together to Langdon, Alberta on September 1, 2023 as a result of an employment opportunity for Mr. Jones. Mr. and Mrs. Jones hoped that the move would allow for Marie and Bradley to develop their relationship.

[18] In her affidavit, Mrs. Jones attests that Marie started to reject the idea of moving to her brother’s home in the Fall of 2023. Although Mrs. Jones had previously expressed concerns about Marie’s anxiety in the context of supporting the transition, the idea that Marie was reacting negatively to the move is not apparent until October 20, 2023. On that date, Mrs. Jones advised the Society that Marie had said: “you’re not listening to me,” that Uncle and Aunt are “taking her" and that she wanted “it to be our family only, and not those people.” At a subsequent meeting with trauma specialist Dr. Kristen McLeod, Mr. and Mrs. Jones again expressed concern for Marie, who was unwilling to attend further visits with Bradley’s family and was making comments like: “why do I have to leave?” and “I want to stay with you forever.”

[19] At the meeting on October 20th, Mrs. Jones told the primary child protection worker that Marie was sad when attending Sunday school and preschool and that Marie is angry with her for departing (presumably when dropping her off at these activities). Despite these challenges, Mr. and Mrs. Jones are to be commended for making their best efforts to maximize the contact between Marie and Bradley through November of 2023. Unfortunately, no opportunity was arranged for Marie to spend time alone with Uncle and Aunt before the first overnight visit was planned. Mrs. Jones attests that, as of December 9, 2023, Marie “had had a few short visits with [biological] family and I had always been present for those visits.” It is therefore not surprising that, quoting Mrs. Jones, “[Marie] was visibly upset and crying when she left with [Aunt] for her overnight [visit].” Mrs. Jones reports that Marie had only negative comments to make about the visit and that she “woke up frequently in the night crying and asking for her mommy.” I presume that the source of this latter information was four-year-old Marie herself, it does not appear elsewhere in the materials.

[20] By late January of 2024, while this motion was awaiting a hearing date, Mrs. Jones (in her own words):

… shared with [the primary child protection worker] that [Marie] has developed what seems to be anxiety related sickness where anytime she is away from me from a few minutes, she will start to complain her stomach hurts and it has resulted in her being sick on multiple occasions. She also gets very anxious about calling her brother … at night and has expressed to [Mr. Jones] and I that she does not want to call him.

[21] An Alberta child protection worker who engaged with the family as a courtesy to the Society attended an annual medical check-up appointment with Mrs. Jones and Marie on February 1, 2024. At that appointment, Marie said that “her tummy gets sick and that maybe she needed to eat more apples without peels to make it feel better.” Marie did not independently complain about recent overnight parenting time with her biological family. Mrs. Jones associated recent overnight visits with Marie’s restless nights and stomach problems, which she attests have culminated in vomiting.

[22] The same Alberta child protection worker met privately with Marie in mid-February. Her observations can be summarized as follows:

a. Marie could talk about fun things she does with Mrs. Jones but was not responsive to questions about Mr. Jones and was vague about interactions with her foster siblings. b. Marie said she did not like visiting Bradley but provided no additional information and did not respond to a question about video calls with him. c. Marie thinks that more sleep would help her sick tummy. d. Marie talked about her surprise in seeing a room at Auntie's house painted pink and white, as pink is her favorite colour. She did not know why the room would be painted that way. e. Marie said that she gets scared sometimes when sleeping at home but has not been scared when at sleepovers at her brother’s home. She said that she gets angry when her Mom [8] does her hair but then laughed when talking about playing with one another's straight and curly hair. She said that she is sad when she leaves her Mom to go to her brother’s house.

Kristen McLeod – Attachment and Trauma Specialist

[23] Society workers attest that, throughout 2023, the agency provided support to Marie and to Mr. and Mrs. Jones to assist them with their natural emotional response to the transition. A significant part of that support took the form of multiple consultations with Dr. Kristen McLeod (Registered Psychologist).

[24] Dr. McLeod’s Consultation Summary is provided as an exhibit to the primary child protection worker’s affidavit. Dr. McLeod is a “participant expert” under Rule 20.2; she is “a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.” Rule 20.2(15) addresses the use of expert evidence on motion, requiring expert witness reports to be served and filed as evidence on the motion in accordance with the applicable motion rules. Rule 33(9) specifically addresses this issue in the child protection context. It reads: “The court shall consider whether a preliminary examination of expert opinion evidence intended to be given on a motion in a child protection case is required in order to determine its admissibility.”

[25] Dr. McLeod’s report summarizes the consultations that she has provided in this matter. She describes her typical involvement as providing recommendations to help caregivers understand and support common trauma and attachment-based behaviours in children in order to reduce the risk of system trauma concerns. She emphasizes:

My role does not involve decision-making related to placement, custody, or access. It is common, however, for consults to involve concerns related to access and suggestions on how to minimize possible negative impacts related to transitions and placement changes. This was the situation with consultations [in this matter].

[26] As Dr. McLeod is a participant expert, her summary report has been properly tendered as an exhibit on motion. She is providing guidance and insight as to behaviours that Marie may experience but is not proclaiming any opinion regarding the ultimate issue before the Court, namely Marie’s residency arrangements pending trial. I therefore admit her report in its entirety, noting that I have not assigned any weight to double- or triple-hearsay statements where they appear.

[27] Although Dr. McLeod reports on the first consult in which she was involved, which was held in the context of maternal grandmother’s original plan to care for Marie, that content is not relevant to this analysis. The focus is therefore on the four consults which took place on June 22, 2023, August 24, 2023, November 23, 2023 and an unknown date in December 2023. The primary child protection worker, at least one foster parent and both Uncle and Aunt were present at all four of these meetings.

[28] At the June consult, Dr. McLeod was told by the Jones that Marie was aware of their role, of her birth family, and of the possibility that she would leave their household in the future. The discussions were around supporting Marie’s separation anxiety through the transition from the Jones’ home to the biological home.

[29] In August, the family group “spent the entirety of the consult discussing how the transition could occur now that [Marie’s] foster family was moving to Alberta; what supports may be needed for [Marie] following the transition to [Uncle and Aunt’s]; how to increase access to help with this transition; and how having a predictable structure and routine for [Marie] would be helpful in trying to minimize as much as possible the stress the move would cause for [her].” The November consult was along the same general lines.

[30] Thereafter, the discussions shifted considerably. The Society had given written notice of the intended placement change date (January 7, 2024) and the Jones were resistant and had retained a lawyer to contest the move. Much of the content of Dr. McLeod’s commentary regarding this meeting is double- or triple-hearsay. It is truly surprising that the Society would allow some of this important information to come through only via Dr. McLeod's report. I assign no weight to Dr. McLeod’s report of Aunt’s description of her observations of Marie and Mrs. Jones (double hearsay). I have disregarded as inadmissible the comments attributed to Marie herself as stated by Aunt to Dr. McLeod (triple hearsay). This information is important and suggests concerns about Mrs. Jones’ approach in managing her own emotional state around Marie’s expected move. It is astonishing that it would not have been included in an affidavit authored by Aunt. Despite its possible probative value, however, the potential prejudice to the Jones in my determination of which placement is in Marie’s best interests is too great for this evidence to be admitted.

[31] Dr. McLeod describes the following three themes as emerging from the conversations:

1. Marie experienced significant separation distress when leaving Mrs. Jones for any reason. The COVID-19 situation has caused a general increase in separation anxiety behaviors in young children “as they had fewer opportunities to leave and return to the primary caregiver - a key developmental process in moving through typical separation distress.” Mr. and Mrs. Jones understood this and recognized its potential impact upon visits with Marie’s biological family. The absence of certainty for Marie may well have exacerbated her anxiety as a clear path forward “is often critical for managing anxiety in the moment.” Having regard to her developmental stage as a preschooler, it is possible that Marie may believe that she is the cause of distress she observes in others. Overall, a child needs a clear narrative of “who people are in her life, and, ideally, as little time spent in a period of uncertainty and instability as possible.”

2. The loss of primary attachment figures, especially early in life, is an adverse experience for a child and represents a significant enough event that it can have an ongoing, lifelong impact. However, this potentially traumatic loss can be managed through predictable routine and the ability of subsequent caregivers to provide an attuned and secured connection. The “gift of secure attachment” that has been given by the Jones family to Marie can be psychologically translated by her to her biological family. Importantly, it is not only secure attachment to the primary caregiver but also secure cultural attachment which predicts better adjustment and ongoing resilience as children grow into adulthood.

3. Although grieving the loss of the attachment made with a foster child is part of the foster parent’s experience, this does not mitigate the grief itself. Dr. McLeod observed: “In fact, the lack of recognition of foster parents’ own emotions during transitional processes often leads to individuals feeling that they're not being heard, are not being validated and, in my opinion, contributes to some of the difficulties that can arise during situations such as this.”

Current Litigation Status

[32] In December of 2023, Mr. and Mrs. Jones filed a complaint with the Child and Family Services Review Board which suspended permanency planning for Marie. [9] Marie’s situation thus awaits my decision.

Issue #1 – Party Status

Law

[33] In the Ontario Court of Appeal case of Children’s Aid Society of London and Middlesex v. T.E., J.G. and L.D. [10], Justice Benotto succinctly summarized party status:

Party status in child protection proceedings can arise in one of two ways: (i) pursuant to Rule 7(5) of the family law rules; or (ii) by way of provincial or federal statutes, which both define party status. The family law rules provide a discretionary approach. The statutes are not discretionary: if a person is a “parent”, as defined by either statute, the court has no jurisdiction to find otherwise.

[34] I will address the two options, being party status either through the application of statute or through the exercise of the court’s discretion, sequentially. [11]

[35] Section 79(1) of the CYFSA lists parties to any child protection proceeding. When read with the definition of “parent” under section 74(1), that list specifically excludes foster parents but includes “an individual who has lawful custody of the child.” Under section 79(3) of the CYFSA, foster parents are entitled to notice of the proceeding; may attend court dates; and may make submissions either personally or with the assistance of a lawyer. However, any additional participation can only be granted by leave of the court. In London CAS v. T.E., the Court of Appeal held that a person who had originally been a foster parent and with whom a child had subsequently been placed pursuant to a court order was a “parent” within the definition of the CYFSA and therefore entitled to party status.

[36] Turning to the “discretionary” option available under the Family Law Rules [12], the following content under Rule 7 is applicable:

(3) A person starting a case shall name,

(b) as a respondent,

(ii) every other person who should be a party to enable the court to decide all the issues in the case.

(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the CYFSA, shall be named as a party, unless the court orders otherwise:

1. A case about decision making responsibility, parenting time or contact with respect to a child.
2. A child protection case.

(5) The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.

Parties’ Positions

[37] Mr. and Mrs. Jones seek to be added as parties to this litigation. The Society agrees.

Discussion: Should the Jones be added either as Statutory or as Discretionary Parties?

[38] Pausing for a moment to consider the possibility that Mr. and Mrs. Jones could be considered a sort of kin family due to the passage of time, it is significant that they do not have “lawful custody” of the child. In order to qualify as statutory parties, they must have “lawful custody” of Marie. Lawful custody is demonstrated by an Order specifically placing a child in an individual’s care. When Marie was placed in Extended Society Care, the Society became her institutional parent and exercised its discretion in choosing to house her with the Jones family. Thus, the Jones’ situation differs from that in London CAS v. T.E., where an individual who had originally been a foster parent was subsequently named as a kin placement and granted lawful custody by means of a supervision order. Here, Mr. and Mrs. Jones have always been foster parents in whose care Marie was placed in the Society's discretion. For this reason, the Review Board provided them with the only legal avenue in contesting the Society’s plan to remove Marie from their home back in December of 2023.

[39] There was some focus in argument on the possibility that the Society failed in exercising a duty allegedly owed to Mr. and Mrs. Jones. The focus narrowed to suggest that this was a duty to inform foster parents of their entitlements under the legislation and to encourage them to seek independent legal advice. In the recent case of Fowler v. Family and Children’s Services of the Waterloo Region [13], the Ontario Court of Appeal unanimously confirmed that child protection agencies owe their duties exclusively to the children whose needs they are addressing. Referring to the leading Supreme Court of Canada authority on the point, the court wrote:

It is plain and obvious that children's aid societies do not owe a duty of care in negligence to any third party, because the existence of such a duty could conflict with their transcendent, statutory duty to act only in the best interests of the children under their care.

[AND]

Given the clear potential for the child and the foster family’s interests to conflict, the [agency’s] fiduciary duty must only be to the children in its care.

[40] Finally, in listing potential parties in cases involving children, Rule 7(4) specifically excludes foster parents “unless the court orders otherwise.”

[41] Based on the foregoing, I find that Mr. and Mrs. Jones cannot be considered statutory parties and further that there is no duty, either in negligence (duty of care) or on a fiduciary basis, owed to them by the Society.

[42] The second option is to exercise the discretion under Rule 7 of the Family Law Rules and include Mr. and Mrs. Jones as discretionary parties. As noted above, Rule 7(4) authorizes the court to order the inclusion of a foster parent as a party to a child protection matter. Rule 7(5) leaves the issue entirely in judicial discretion, with the judge to determine whether each specific individual should be a party. In the leading case of A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell [14], the Court of Appeal posed five questions as guidance, not all of which need to be answered affirmatively in favour of the person seeking party status:

1. Is the addition of the party in the best interests of the child?
2. Will the addition of the party delay or prolong the proceedings?
3. Is adding the party necessary to determine the issues?
4. Can the party put forward a plan in the child's best interests?
5. Can an order be made in favour of or against a potential party?

[43] Alternatively, section 79(3) of the CYFSA allows the court to grant leave for expanded participatory rights which nonetheless fall short of party status. [15] As always, the over-arching consideration is the best interests of the child.

[44] I am not convinced that granting party status to Mr. and Mrs. Jones is necessary for a determination of the issues. Instead, they could be granted expanded participatory rights inclusive of the right to call witnesses and to cross-examine those called by the Society. However, adding them as parties is nonetheless in Marie’s best interests because:

a. they have witnessed every aspect of her young life; b. they are able to put forward a plan to care for her; c. an order providing for ongoing parenting involvement between Marie and her foster family would require the Jones to be parties; and d. there is no reason to believe that any undue delay will occur.

[45] I further find that the addition of Mr. and Mrs. Jones as parties acknowledges their role in caring for Marie since her birth and respects their grief at her potential departure from their household. The addition of foster parents as parties must only be undertaken in the clearest of cases based on the specific facts affecting the child. This is one such case and adding Mr. and Mrs. Jones as parties is in Marie’s best interests.

Issue #2 - Placement of Marie

Law

[46] In all child protection matters in Ontario, the best interests of the child involved is the paramount consideration. Section 74(3) of the CYFSA sets out the criteria in determining a child’s best interests. It is reproduced as Schedule “A” attached to these Reasons.

[47] Section 109(5)(b) confirms the Society’s obligation to take the wishes of foster parents with whom the child has lived continuously for more than two years into account in its decision-making process. Any changes of placement are to be made only in the child’s best interests (section 109(6)). Foster parents are given notice of a proposed removal of a child from their care (section 109(7)) and may apply to the Child and Family Services Review Board for an assessment of the Society’s decision (sections 109(8) – (19)).

[48] This is an interim proceeding, and therefore sections 90 – 94 apply. Sections 94(2); (5); (6) and (10) are the most significant for today’s purposes, and they read:

94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; (b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; (c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or (d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision; (b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child 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 child; 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.

(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[49] Section 112 describes the Society’s obligation to promote long-term family plans for children in care:

112. Where a child is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c), The society shall make all reasonable efforts to assist the child to develop a positive, secure and in during relationship within a family through one of the following:

113. An adoption.

114. A custody order under subsection 116(1).

115. In case of a First Nations, Inuk or Métis child, i. A plan for customary care, ii. An adoption, or iii. A custody order under subsection 116(1).

[50] Marie is in extended society care, and thus the review of her status in that regard is undertaken through section 115 of the CYFSA. Subsection 115(1) confirms that scope; subsection 115(10) applies to requests for interim changes, such as we have here:

115(10) 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.

Parties’ Positions

[51] Simply stated, the Society seeks to place Marie with her biological family. Having regard to the guidance provided by Dr. McLeod, the Society wants to move quickly so as to minimize the negative impact that prolonged uncertainty will have upon Marie’s anxiety.

[52] In direct contrast, the Jones’ resist any change. They wish to keep Marie, ideally forever. They see that she is bonded with their family and are understandably moved by her worries. They ask me to place considerable weight on her expressed views.

Discussion: Part 1: The Threshold for Changing a Placement

[53] I must first address the threshold for varying an existing placement. I favour the line of jurisprudence that requires only a “sufficient change” in the circumstances of the child to support a placement change. I note here that I do not see that “material” ought necessarily to be more onerous than “sufficient” – “material” simply means a change that goes to the heart of the child’s lived experience, just as “relevant and material” disclosure pertains to the issues raised in litigation and a “material witness” is one who has direct personal knowledge of the facts at issue. Most changes that are sufficient will also be material, but the flexible approach gives space for child protection matters to be addressed distinctly from other family litigation. I agree with and adopt the comments by Justice Nicholson on point: [16]

With all due respect, I disagree that the moving party … must, first, establish that there has been a material change in circumstances relating to the child's best interest. Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child.

[54] While Justice Nicholson opined that “crown wardship” [now “extended society care”] orders finalize child protection proceedings and thus presumably require a higher threshold of change to warrant review, I note that the CYFSA authorizes the Society to apply for status review “at any time” for a child in care on an interim basis (section 113(2)(a)) or on an extended basis, provided that the child has not been placed for adoption (sections 115(2)(a) and 115(9)). In both cases, the order under review is final; I see no reason supported by the statutory language to adjust the threshold of change on the basis of the content of the Final Order under review. Admittedly, this is a very fine point, however, in light of my view that a “material change” is one that goes to the heart of the child’s lived experience whilst “sufficient” means more than fleeting or frivolous. The two are not, in my view, mutually exclusive.

[55] There is no question that the availability of Marie’s Uncle and Aunt – caregivers to her brother – is a material change to her lived experience and to her options for the future when contrasted with her situation when the Final Order for extended society care was made.

Part 2: Which Placement is in Marie’s Best Interests?

[56] If Marie were Indigenous, we would have the benefit of the federal legislation [17] which would guide us in addressing her placement. Section 16 of the federal legislation creates a prioritized list of placements for Indigenous children. If a parent of a child in care is unavailable, the child is to be placed with another adult member of his or her family. If there is no such adult family member, the child is to be placed “with an adult who belongs to the same Indigenous group, community or people as the child.” Fourthly, an Indigenous child is to be placed with an adult from another Indigenous group. Finally, an Indigenous child would be placed “with any other adult.”

[57] That Marie is Black, of Rwandan heritage, means that she does not have access to this finely-tuned placement hierarchy. I am not suggesting that the federal legislation is flawless, nor am I suggesting that governments should create disparate child protection regimes which are to be applied based on physical and cultural characteristics of the many people groups who populate our beautiful country. It is essential that my comments are not misunderstood on this point: stratification is not consistent with reconciliation. However, it is not woke-ism to state that Black Canadians have been disproportionately affected by the child protection system, it is simply fact. In its report, Interrupted childhoods: Over-representation of Indigenous and Black children in Ontario child welfare (2018), the Ontario Human Rights Commission writes:

Data from two Toronto-based [child welfare agencies] is notable. The Catholic Children's Aid Society of Toronto found disparities that suggest racial differences in its agency’s decision-making in the rate of admissions into care. Black children investigated were 28% more likely to be placed in care than White children investigated, although the reasons for these disparities were not explored. Data collected by the CAS of Toronto also indicates that children in Black-led families are in care longer than children with parents from other racial groups.

[58] It is imperative to understand that the purpose of reconciliation is not to even out some kind of grand socio-economic ledger but rather to bring all peoples together, to promote unity through understanding. We live in a time that presents unique opportunities to bring this beautiful goal to fruition. However, at no point should anyone think that reconciliation will be a painless process. As we engage with the many challenges in addressing this essential reconciliation work, there will be heartache and exhaustion; resources of every kind will be depleted. And yet, the work of bringing all people together in unity is too important to withhold even one ounce of effort.

[59] There is not really any question that both families would provide excellent, loving homes for Marie. Although there has been friction between the households, this cannot be called “high conflict” litigation. Both families want the very best for Marie and both are able to provide for her. Using this baseline, my analysis of the factors under section 74(3) of the CYFSA leads me to the following conclusions:

a. Marie’s Views: Marie’s views and actions are inconsistent; although she tells Mrs. Jones that she does not want to spend time with her biological family, independent observers note that she is happy and comfortable with them. Marie does not associate her stomach aches with seeing her brother’s family; that is a conclusion that is overlaid upon her by Mrs. Jones which Marie does not maintain in private conversation. Marie’s interest in, but ignorance of, her mother’s photograph suggests that she is not fully processing information about her family, which is understandable having regard to her young age and the impact of anxiety upon comprehension. [18] Further, Marie’s reaction to her bedroom at Uncle and Aunt’s home provides an example of the confused nature of her comments: if it is correct that she did not understand that the bedroom was hers, and that it was therefore painted in her favourite colours, then again her comprehension is in question. Consequently, I find that Marie’s views, if they can be ascertained (about which I am skeptical, as noted herein), ought to be given minimal weight. b. Marie’s Ancestry, Culture and Language: There is no question that Uncle and Aunt can provide cultural security and understanding in a wraparound way. The Jones, however well-meaning, cannot possibly hope to provide Marie with a comparable experience. c. Marie’s Emotional Ties: The legislation does not list foster-siblings, however for the sake of this analysis I am including the Jones children that Marie has come to know as her siblings within the context of “extended family.” Marie’s bonds with her brother and cousins are just starting to develop, in part because of the stunted transition caused by this litigation. If the legislation sets out criteria in order of importance in prioritizing the views and wishes of children as the foremost criterion, then the same must be said of the list of familial relations in section 74(3)(c)(vi). Marie’s biological family – her brother, Uncle and cousins – come before “extended family.” While I respect the bond between Marie and her foster siblings, it should always have been clearly communicated by the Jones that Marie’s time in their household was temporary. Such is the pain of fostering. d. Continuity of Care: Disruption to Marie’s care is a real consideration; as Mr. and Mrs. Jones argued, bouncing her between households would undoubtedly be harmful. However, I note that Marie has already experienced a cross-country move and that she will soon attend school, both of which are significant disruptions in a young child’s life. She will continue to have the benefit of the Jones family which will provide continuity in her life: it is for this reason that Dr. McLeod expressed the view that Marie will not actually experience the loss of family. e. Delay: At this point, considering Marie’s increasing anxiety arising from the uncertainty of this litigation, the delay in disposition creates a real risk of emotional harm. A trial of this matter before September 2024 is unlikely, at which point the question of Marie’s school enrolment would add a further layer of instability.

[60] Having regard to the factors set out in the CYFSA, I must find that Marie’s interests are best supported by an immediate move to Uncle and Aunt’s home.

Order

[61] Temporary Order to issue accordingly.

J. Breithaupt Smith J.

DATE: March 18, 2024

Schedule “A”

74 (3) 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.

Municipality of Waterloo v. J.U., 2024 ONSC 1550

COURT FILE NO.: FC-19-FO-168-06 DATE: 2024/03/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant – and – J.U. Respondent Mother – and – K.S. and T.S. Foster Parents

REASONS FOR JUDGMENT

J. Breithaupt Smith J.

Released: March 18, 2024

[1] No information regarding any paternal cultural connections is provided in the materials.

[2] It is important to note here that Mr. and Mrs. Jones asked this Court to take some sort of notice of the alleged additional significance of a godparent role in “African culture.” No expert cultural evidence was tendered regarding the nature or importance of a godparent role and it would be inappropriate to conclude that the many disparate people groups in Africa have the same culture.

[3] It was submitted that the Society has a statutory obligation to prioritize family pursuant to section 112 of the CYFSA. Section 112 speaks to the Society’s obligation to actively pursue a family-style permanency plan for children in care so that they do not languish with an institutional parent unnecessarily. Although I am not disagreeing with the merits of the Society’s “family first” policy, it is not mandated by section 112. Section 94(5) obligates the court to prioritize temporary placements with family before foster care wherever possible during litigation adjournments but no similar language binding the Society was evident in my review of the CYFSA. Section 3(1) of O. Reg. 156/18 obligates the Society to take into account a child’s “identity characteristics” (which term includes “race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity” amongst other attributes) when making a decision “likely to materially affect the child’s interests.” Arguably this supports a family-first or community-first approach.

[4] [1990] 2 S.C.R. 531, .

[5] [2006] 2 S.C.R. 787, 2006 SCC 57, at paragraph 35.

[6] R. v. Khelawon, supra note 1 at paragraph 2.

[7] CAS v. C.N. and H.C., 2019 ONSC 5915 at paragraphs 55 – 58.

[8] Marie is, of course, referring to Mrs. Jones as “Mom”.

[9] See paragraph 47, below, regarding this review procedure.

[10] 2023 ONCA 149, hereinafter “London CAS v. T.E.”, at paragraph 28.

[11] Although Justice Benotto listed these two avenues to party status in the opposite order, logically one ought to firstly apply the statute and then look to discretion under the rules of practice.

[12] O. Reg. 114/99, as amended.

[13] 2024 ONCA 41 at paragraphs 38 and 39.

[14] 2017 ONCA 601 at paragraphs 22 through 24.

[15] See, for example, Justice Czutrin’s analysis in Catholic Children’s Aid Society of Toronto v. S.(R.D.), at paragraphs 20 and 21.

[16] DCAS v. J. L., P. L. (F) and P. L. (GF), 2016 ONSC 5925 at paragraph 26.

[17] An act respecting First Nations, Inuit and Métis children, youth and families, R.S.C. 2019, c. 24. Ontario Human Rights Commission, February 2018, Interrupted childhoods: Over-representation of Indigenous and Black children In Ontario child welfare (ohrc.on.ca), retrieved on 14 March 2024.

[18] I presume, of course, that Mr. and Mrs. Jones are being truthful in attesting that they have always told Marie about her mother and about her extended biological family. I note, however, that Marie has not yet been able to view her “words and pictures” narrative of her birth story, as this litigation has prevented the use of that stabilizing tool.