WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
AVIS
Il s'agit d'un cas en vertu de la Loi de 2017 sur les services à l'enfance, à la jeunesse et à la famille et sous réserve des paragraphes 87(8) et 87(9) de la Loi. Ces paragraphes et le paragraphe 142(3) de la Loi de 2017 sur l'enfance, la jeunesse et les services, qui traitent des conséquences de la non-conformité, se lisent comme suit:
87(8) Interdiction : identification d’un enfant — Nul ne doit publier, ni rendre publics des renseignements ayant pour effet d’identifier un enfant qui témoigne, qui participe à une audience ou qui fait l’objet d’une instance, ou un parent ou un parent de famille d’accueil de cet enfant ou un membre de la famille de cet enfant.
(9) Interdiction : identification d’une personne accusée — Le tribunal peut rendre une ordonnance interdisant la publication de renseignements ayant pour effet d’identifier une personne accusée d’une infraction à la présente partie.
142(3) Infraction : publication — Quiconque contrevient au paragraphe 87(8) ou 134(11) (publication de renseignements identificatoires) ou à une ordonnance de non-publication rendue en vertu de l’alinéa 87(7) c) ou du paragraphe 87(9) et l’administrateur, le dirigeant ou l’employé d’une personne morale qui autorise ou permet cette contravention ou y participe sont coupables d’une infraction et passibles, sur déclaration de culpabilité, d’une amende d’au plus 10 000 $ et d’un emprisonnement d’au plus trois ans, ou d’une seule de ces peines.
COURT FILE NO.: FC89/23
DATE: 2024/05/13
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Family and Children Services of St. Thomas and Elgin, Applicant
AND:
S.A., J.W. and Caldwell First Nations, Respondents
BEFORE: T. PRICE, J.
COUNSEL: J. Dittrich, Counsel for the Society
K. Veenstra, Duty Counsel appearing for S.A.
T. Simon, Counsel for J.W.
C. Ninham – Counsel for Caldwell First Nations
Ms. Gordon, Counsel for the Office of the Children’s Lawyer, for the children L.A., M.W. and H.W.
HEARD: April 5, 2024
ENDORSEMENT
[1] On October 23, 2023, Justice Sah made an order on a temporary care and custody motion brought by the Applicant, Family & Children’s Services of St. Thomas and Elgin (hereinafter, “the Society”) concerning the three children of the Respondents, S.A., the children’s mother, and J.W., the children’s father, who separated in 2020 and have been involved in protracted litigation ever since.
[2] At the request of the Society, which was supported of S.A., Justice Sah placed the parties’ eldest child, L.A., now 13, in the temporary care and custody of J.W., while the two younger children, M.W., now 10 (sometimes hereinafter referred to as “M.”) and H.W., now 9, (sometimes hereinafter referred to as “H.”) were placed into temporary care and custody of S.A. The Society’s request had been opposed by J.W. and the Caldwell First Nations[^1], of which he and the children are eligible to be members. Ms. Gordon, counsel appointed by the Office of the Children’s Lawyer (hereinafter, “the OCL”) to represent the children, had advocated for terms of supervision to protect the children, wherever they might be placed.
[3] The placements were subject to a number of terms and conditions which had been carefully thought-out by Justice Sah, following her review of extensive evidence presented on the motion.
[4] Included amongst the many terms imposed by Justice Sah were requirements that:
a. neither parent use physical discipline on the children;
b. both parents request that their family physician test them for illicit drug use;
c. J.W. participate in programs or counselling to address anger management, together with counselling through SOAHAC[^2] and/or Wellkin Services, as recommended by the Caldwell First Nation;
d. both parents participate in parenting programs, including Circle of Security; and
e. S.A. liaise with and maintain contact with the Caldwell First Nation at least monthly to foster, promote and maintain the children’s indigenous connection, and follow any recommendations that may be made to her by it to ensure the continuity of the children’s cultural connection.
[5] Justice Sah’s order had been preceded by an interim, interim, without prejudice order made on April 13, 2023, in which all three children had been with J.W., subject to a number of terms and conditions. S.A. had been granted access on alternate weekends and Wednesday evenings.
[6] In her endorsement[^3], Justice Sah noted that J.W. disagreed with the terms and conditions that had been imposed in the order of April 13, 2023. They had included a prohibition on the parents consuming alcohol or non-prescription drugs while in a caregiving role and requiring that J.W. ensure that M. and H. not be left unsupervised in the care of L.A. for more than one hour.
[7] J.W. resides in St. Thomas while S.A. resides in London. Thus, Justice Sah’s order meant that the children were required to change schools, from St. Anne’s in St. Thomas to St. David’s in Dorchester, which is the elementary school for children residing in the part of London where S.A. resides.
[8] In July 2023, Justice Tobin had ordered that the children be in the care of the parents on a week-about basis. That was the order that was in place when the matter came before Justice Sah.
[9] The Society has now brought a motion seeking to vary the order of Justice Sah, either by removing M. and H. from the care of S.A. and returning them to the interim care of J.W. or, in the alternative, by placing them into the temporary care of the Society, subject to any alternate placement proposed by any of the Caldwell First Nation or either of the parents. When the motion was argued, no alternate placement had been made by any of them. L.A. was not a subject of the motion.
[10] The Society is supported in its request by J.W., the Caldwell First Nation, and Ms. Gordon on behalf of M. and H. Only S.A. was opposed to request to change Justice Sah’s order.
Order
[11] For the reasons noted above as to Paragraph 1, and the reasons that follow, as to the remainder of the paragraphs, I make the following order:
As to the Respondent Caldwell First Nation
- The name of the Respondent Caldwell First Nations in the Title of Proceedings shall be changed to Calwell First Nation.
As to the children, M.W. and H.W.
The child M.W. shall remain in the temporary care and custody of his father, J.W., pursuant to s. 94(2)(b) and (c) of the CYFSA, as applicable, subject to the supervision of Family & Children's Services of St. Thomas and Elgin on the terms and conditions in Paragraph 4 hereof.
Effective May 21, 2024, the child H.W. shall be returned to the temporary care and custody of her mother, S.A. pursuant to s. 94(2)(b) and (c) of the CYFSA, as applicable, subject to the supervision of Family & Children's Services of St. Thomas and Elgin on the terms and conditions in Paragraph 4 hereof.
The terms and conditions applicable to the placements of the children M.W. and H.W., referred to in Paragraphs 2 and 3 hereof, are as follows:
a. J.W. and S.A. shall advise the Society in advance of any change in their respective addresses and/or telephone numbers and provide new contact information to the Society forthwith.
b. J.W. and S.A. shall allow the Society access to their respective homes on a scheduled and unscheduled basis and shall meet with the worker a minimum of once per month.
c. J.W. and S.A. shall attend programs and counselling as recommended by the Band Representative to address healthy relationships, cooperation with one another, and relationship development with their children.
d. J.W. and S.A. shall allow the children to use their note pad or a cellular phone to contact either parent or their dedicated safety person, who is the paternal grandmother, Cindy. The note pad or cell phone shall be left in a neutral area of each home while the children are present, so that they may access it to call or text their other parent or the paternal grandmother.
e. J.W. shall ensure that M.W. attends school every day. J.W. shall produce every report card for M.W. to the Society worker upon its receipt from the school attended by M.W.
f. S.A. shall ensure that H.W. attends school every day. S.A. shall produce every report card for S.A. to the Society worker upon its receipt from the school attended by H.W.
g. J.W. and S.A. shall not discuss court proceedings with the children or speak to their children about their discussions with the Society worker. J.W. and S.A. shall not put any pressure on their children regarding their ability to speak to Society workers.
h. J.W. and S.A. shall not yell, scream, swear or be verbally abusive towards their children or any of them.
i. J.W. and S.A. shall not use physical discipline on their children or any of them.
j. J.W. and S.A. shall not consume alcohol or non-prescribed drugs while in a caregiving role.
k. J.W. and S.A. shall not use marijuana in the presence of their children or any of them.
l. J.W. and S.A. shall ensure that none of the children are exposed to other individuals using non-prescribed drugs or under the influence of substances.
m. J.W. and S.A. shall not consume alcohol in excess while in a caregiving role.
n. J.W. and S.A. shall disclose to the Society worker each and every time that they have consumed alcohol to excess or used non-prescribed drugs while in a caregiving role.
o. J.W. and S.A. shall ensure their children are cared for by a sober caregiver.
p. J.W. and S.A. shall not consume alcohol or non-medially prescribed drugs and drive with the children in the car.
q. S.A. shall request that her family physician provide her with drug testing. She shall provide the Society worker with documented results of any such drug test.
r. J.W. shall, within 14 days of the date of this order, request that his family physician provide him with full panel drug testing. J.W. shall provide proof to the Society worker that he has made such a request. Within a further 21 days thereafter (being 35 days from the date of this order), J.W. shall provide the Society worker with documented results of the drug test. Should J.W. test positive for any drug listed within the full panel of drugs tested for, he shall continue to participate in full panel drug testing until such time as he produces three consecutive tests showing negative for any drug listed within the full panel of drugs tested for.
s. J.W. and S.A. shall sign consents to release to the Society and to counsel for the other, or to the other directly, if unrepresented, information related to their criminal records, or their participation with other service providers.
t. J.W. shall ensure that neither M.W. nor H.W. are not left unsupervised or left in the care of L.A. for longer than 1 hour.
u. S.A. shall ensure that neither M.W. nor H.W. are left unsupervised at any time while they, or either of them, are in her care.
v. S.A. shall neither permit Mr. N. to parent the children M.W. and H.W., or either of them, nor leave him in a caregiving role with either of them at any time.
w. S.A. shall ensure the children, M.W. and H.W., are always supervised while they are together with the child, J.
x. J.W. shall enrol in, participate in and complete all programs or counselling to address anger management, such as Changing Ways, Caring Dads or such other program or counselling as recommended to him by the Society and/or the Caldwell First Nation Band Representative.
y. J.W. shall participate in counselling through SOAHAC and/or Wellkin Services as recommended by the Caldwell First Nation Band Representative.
z. J.W. and S.A. shall attend all components of, participate in, and complete all recommended parenting programs, including the Circle of Security Program.
aa. S.A. shall ensure that the children are not unsupervised while with her father, D., or stepparent, L.
bb. S.A. shall attend counselling and/or other programs as recommended by the Caldwell First Nation Band Representative to repair her relationship with L.A., subject to L.A.'s willingness to participate.
cc. S.A. shall liaise with and maintain contact with the Caldwell First Nation Band Representative, or such other person designated by the Ban Representative, at least monthly, to foster, promote, and maintain the children's Indigenous connection, and she shall follow any recommendations they may make to ensure the cultural connection remains.
The Society worker, J.W., and S.A. shall use the time between the date of the release of this endorsement and May 21, 2024 to explain to H.W. why she is being returned to the care of S.A., and the particulars of the changes to the order made by Justice Sah being made herein to protect her.
At no time shall J.W. take the position that he is not required or is unable to exert his parental authority over M.W. to ensure that M.W. attends access with S.A.
At all times, both the Society worker and J.W. shall actively communicate to M.W. that it is in his best interests to have access with S.A.
The child, L.A., born 2010, shall have access with the mother, S.A., as arranged between the child and his mother, subject to the wishes of the child.
S.A. shall have access with M.W.:
a. on alternating weekends, commencing May 24, 2024, from Friday at 5:00 p.m. until Sunday at 7:30 p.m. Access shall be extended to Monday at 7:30 p.m. if the Monday is a holiday or school professional development day. Alternatively, the weekend shall begin on Thursday at 5:00 p.m., if the holiday or school professional development day is on Friday; and
b. commencing May 22, 2024, on alternating Wednesdays from 5:00 p.m. until 7:30 p.m.
- The child H.W. shall have access with J.W.:
a. on alternating weekends, commencing May 31, 2024, from Friday at 5:00 p.m. until Sunday at 7:30 p.m. Access shall be extended to Monday at 7:30 p.m. if the Monday is a holiday or school professional development day. Alternatively, the weekend shall begin on Thursday at 5:00 p.m., if the holiday or school professional development day is on Friday; and
b. commencing May 29, 2024, on alternating Wednesdays from 5:00 p.m. until 7:30 p.m.
Subject to the approval, in writing, of the Society worker, the parents may agree to adjust the children’s weekend and mid-week access hours if those set out in this order present problems due to the work schedule of S.A.
S.A. shall travel to the Joe Thornton Community Centre, St .Thomas, Ontario to pick up M.W. for his visits with her and to retrieve H.W. after her visits with J.W.
J.W. shall travel to, "Funvilla" at 1305 Commissioners Rd East, London, Ontario to pick up M.W. after his visits with S.A. and to retrieve H.W. for her visits with him.
The parent picking up the children shall try to park near the entrance of the building or if not possible, they shall stand outside the front entrance of the building at each location so that the other parent can see the children are safely transitioned to the other parent.
If at any time, either parent needs to ask a family friend or family member to take their place at the pick-up/drop off, that parent shall advise the other parent of who this person will be in advance.
The parties may use such other exchange locations as they might agree upon, but only with the consent of the Society worker, communicated to each parent in writing by the Society worker.
Caldwell First Nation shall work cooperatively with S.A. by providing her with such information and recommendations as it determines will assist S.A. to meet her obligation to foster, promote and maintain H.W.’s Indigenous connection and to ensure that her Indigenous cultural connection remains.
Nothing in this order is to be construed as prohibiting the child, H.W., from accompanying J.W. and her siblings, or any of them, to J.W.’s hunt club property north of St. Thomas during J.W.’s access weekends.
Nothing in this order prohibits the parties from agreeing on a different access schedule or parenting time arrangement during the months of July and August. Any such agreement must not change the terms of supervision, be in writing, signed by all parties, and shall not be effective until it has been approved by the court by means of an issued interim amending order.
Legal Principles
Test for Varying an Existing Interim Order
[12] While section 94(9) of the Child, Youth and Family Services Act, 2017 (hereinafter, the CYFSA”) does not provide that the moving party on a variation motion must demonstrate a material change in circumstances, in order to give effect to the statutory scheme and recognizing that stability and continuity for children is desirable, it is appropriate to impose a threshold test of material change in the circumstances.[^4]
[13] “A change will only be considered "material" if it is significant and long-lasting…Trivial, insignificant or short-lived changes will not justify a variation…Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray, J. wrote in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff'd 2014 ONCA 225 (C.A.), "[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances."”[^5]
[14] If a material change in circumstances is found to have occurred,
i. “both parties bear the evidentiary onus…of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing” parenting order;[^6] and
ii. “[t]he judge on the variation application must consider the findings of fact made by the first judge as well as the evidence of changed circumstances to decide what [parenting order] now accords with the best interests of the child.”[^7]
Best Interests: The Relationship Between the Act Respecting First Nation, Inuit and Metis Children, Youth and Families, S.C. 2019, c. 24 (the “Federal Act”) and the CYFSA
[15] Because the children are Indigenous, the Federal Act applies, s. 10(1) of which provides, in part, that “…in the case of decisions or actions related to [Indigenous] child apprehension, the best interests of the [Indigenous] child must be the paramount consideration.”
[16] Because the children reside in Ontario, the CYFSA also applies to them and its application is not affected as long as it does not conflict with, or is not inconsistent with, the Federal Act. (Federal Act, s. 4)
[17] If there were to be any conflict between the two Acts, the provisions of the Federal Act have paramountcy. However, no such conflict exists.[^8]
[18] Section 10(3) of the Federal Act sets out a list of factors that “must be considered” in determining the best interests of an Indigenous child.
[19] “Only two factors in the inclusive list set out at section 10(3) of [the Federal Act] regarding the best interests of an Indigenous child do not already exist in the more comprehensive list of factors at section 74(3) of the CYFSA. Those two factors are 10(3)(g) regarding family violence and 10(3)(h) regarding any civil or criminal proceeding, order or measure relevant to the child. Having regard to section 4 of [the Federal Act], these two factors are therefore to be added to the list of factors set out at section 74(3) of the CYFSA when analyzing the best interests of the Indigenous child in Ontario. Otherwise, the provincial legislation is not in conflict or inconsistent with the federal legislation, and the thus-augmented CYFSA best interests test governs.”[^9]
[20] Section 10(2) of the Federal Act provides that, when considering the factors set out in s. 10(3) [or, in my analysis, the augmented CYFSA/Federal Act definition of best interests], “primary consideration must be given to the child's physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connection to his or her culture.”
Events Precipitating the Society’s Motion
[21] On January 16, 2024, J.W. reported to a Society after-hours worker that he had been contacted by M., who told him that he had been thrown against a wall and grabbed by Mr. N., S.A.’s male roommate, and that this had hurt him. He was reported to be afraid for his safety. S.A. summoned police to her residence to discuss the event alleged by M.
[22] On January 19, 2024, police were again contacted by S.A., who was again seeking their assistance to control M.’s behaviour, which was said to have consisted of throwing items around the house and attempting to assault H. Before police could attend, J.W. retrieved the children. He drove them to the police station to report that S.A. had assaulted both of them. However, when told he had to remain to make a formal statement, he left with the children without doing so. S.A. denied assaulting the children, and J.W. did not follow through with his complaint to police, despite their efforts to contact him. The children made no report to the Society about being assaulted by their mother.
[23] The assigned Society worker, Ms. Keith, was tasked to investigating M.’s claim that he had been assaulted by Mr. N. on January 16, 2024.
Ms. Keith’s Investigation
[24] Ms. Keith interviewed the children, S.A., J.W. and Mr. N. about the events of the preceding days.
[25] What emerged from those interviews was clear evidence that there had been some sort of physical altercation between M. and his mother, into which Mr. N. had intervened. During his intervention, there had been physical contact between him and M.
J.W.’s Report
[26] J.W. told Ms. Keith that M. had contacted him from S.A.’s residence in a highly emotional state, claiming to be afraid for his safety. M. was said to have told his father that Mr. N. had assaulted him by throwing him against a wall and grabbing him, causing him to suffer pain. M. reportedly told J.W. that he no longer wished to stay at the home of S.A.
[27] J.W. also said that he did not feel it was safe to return the children to S.A., and that they were refusing to return. He told Ms. Keith that if the Society wished to arrange for the children’s return, he would not stand in the way, but that he would not be the one telling the children they had to go.
M.’s Report
[28] According to M., he and his mother had argued that day about him not going to school. During the argument, when she told him that she would be sending him to his father’s residence, he grabbed her by the leg, fearing that she was going to send him to J.W.’s house forever. M. pounded his head on the wall, which caused Mr. N. to enter room. He told M. to stop, then threw him across the room, after which he dragged M. down the hall, throwing M.’s leg on a vacuum. He said that Mr. N. held him down by pinning his arms. He further reported that, at some point during their interaction, Mr. N. was kicking him and pulled M. from his bed to the floor by his arm.
[29] When asked about his own behaviour that day, he said that he “throws fits,” during which he “gets really mad,” stomps, kicks walls and “bash[es his] head off things.” M. described a “fit” as a “mental breakdown” that he did not think he could control. These events occur three times per week, as he said that they also occurred at his father’s residence. He implied that he was also throwing a “fit” on January 16, 2024.
H.’s Report
[30] H., who saw none of the event, but heard it, reported that M. told her that, on the day of the alleged assault, Mr. N. had thrown him across the room. She reported being in her room at the time and having heard a bang on the wall. Her mother, Mr. N. and M. were yelling. She reported feeling “kind of scared” because she “[doesn’t] like a lot of loud yelling.”
[31] She also reported that she “doesn’t really talk to” Mr. N.
[32] H. further informed Ms. Keith that, the previous Friday, following some discord between M. and their mother, she hid behind a couch to avoid being punched by M., which he sometimes does when he is angry. She also indicated that no one else punches her.
[33] She alleged that S.A. told the police things that were not true about the interaction between M. and Mr. N. on January 16, to avoid having her and M. taken away.
S.A.’s Report
[34] S.A. reported that, when she tried to calm M. by hugging him when he was in the throes of a “fit,” he began to punch and kick her, and screamed in her face. As she retreated to her room, he punched her in the back. In the minutes before Mr. N.’s intervention, M. also entered H.’s room and struck her. He then returned to his room. When S.A. next went to check on M., she saw that he had stripped his bed bare of all coverings and had thrown them and other items on the floor. She found M. lying on the floor, covered with blankets, with a cord of some sort tied around his neck. Only his head was visible. When she got down on the floor to remove the cord, M. started to punch her and kick her, pulling her off balance. When she tried to get away from him, screaming for him to stop, he wrapped himself around her and continued to hit her.
Mr. N.’s Report
[35] Mr. N. told Ms. Keith that, on returning from work, he could hear S.A. and M. yelling at each other. He checked in with H., who told him that M. behaved in a similar manner at their father’s residence. He then went to M.’s room, where he observed M. throwing things. He left to have a shower because he did not wish to become involved. After finishing his shower, he went to check on S.A. and M. again since they continued to yell. At this time, he observed S.A. and M. intertwined. M. was hanging onto S.A. and hitting her at the same time. He said that he raised his voice and told M. to stop hitting his mother and to let her go. M. did neither, so he grabbed M.’s pant leg and tried to pull him away from S.A.. Mr. N. said that when M. continued to hold on to S.A., he pulled on both S.A. and M. to separate them. As a result, M. released his hold on S.A., whereupon Mr. N. let go of M.’s pant leg. M. then began to call Mr. N. names, such as “fucking faggot” and “queer”, accused him of raping his own daughter,[^10] and called him “a big loser, like my father said.” M. then tried to go to H.’s room to call J.W. on her computer. Mr. N. prevented him from doing so, claiming that he feared that M. would strike her.[^11] Mr. N. eventually left the room. At his suggestion, S.A. attempted to call police. M. tried repeatedly to take the phone from her before she succeeded in making contact with the police.
[36] When asked specifically if he had dropped M. on to the vacuum cleaner, causing a bruise on his knee, Mr. N. denied that he had done so, as he also denied dragging M. down the hall toward the vacuum cleaner.
[37] When police arrived and tried to speak with S.A., M. continued to interrupt, calling his mother a liar and saying she would not allow him to speak with his father.
[38] No charges were laid against either S.A. or Mr. N. arising from the events of January 16, 2024.
Efforts to Return the Children Prior to Commencing the Motion
[39] The Society attempted to facilitate the return of the children to S.A. before the motion was brought.
[40] On January 22, 2024, Ms. Keith asked J.W. to take the children to school so that they could be picked up there by S.A.. He told her that the children refused to enter his vehicle for the drive to school. He also indicated that he would not force the children into his car but that if the Society wished to have someone come to his residence to try to remove the children, they could do so.
[41] As a result, Ms. Keith made arrangements for the maternal grandmother and her to attend J.W.’s residence to retrieve the children on January 24, 2024. When told of the plan, J.W. declared that the maternal grandmother was not welcome on his property. J.W. then told Ms. Keith that he would not release the children until the court had an opportunity to hear about the incident of January 16, 2024 and make a decision about where the children should reside.
[42] This motion followed.
Interim Order of Justice MacFarlane
[43] On February 7, 2024, Justice J.R. MacFarlane made an interim order that confirmed the full force and effect of Justice Sah’s order of October 23, 2023, with some added terms. The added terms addressed some of the related issues that had occurred since October 23, 2023, including that:
a. the parents allow the children to use the phone to contact a designated person during periods of conflict in the home of either parent;
b. S.A. not permit Mr. N. to parent the children, nor be left in a caregiving role with them; and
c. J.W. return the children to school on February 8, 2024 day, with S.A. to retrieve them at the end of the day.
[44] Following the appearance before Justice McFarlane, Ms. Keith, Calwell First Nation Band Representative Ms. Hillier and Ms. Gordon met with the children at J.W.’s residence to inform them of Justice MacFarlane’s direction that they be returned to the care of their mother.
[45] A discussion ensued about who might be the “designated person” that the children could contact if exposed to conflict in the homes of their parents. J.W. suggested his mother. S.A. suggested one of her friends. The children were not comfortable with S.A.’s suggestion and asked that their paternal grandmother be designated for both residences. S.A. disagreed, claiming that the paternal grandmother had never been a support to her. She suggested her mother, instead, a proposal that the children again rejected. Consequently, the children refused to attend S.A.’s residence, saying that they did not trust her because she had refused their choice of a designated person.
Events Occurring After the Interim Order of February 7, 2024
[46] Despite Justice MacFarlane’s order that the children return to school on February 8, 2024, and to the care of S.A. at the end of the school day, neither occurred. M. refused to go to the school, while H. went, spoke with the principal, then left, saying that she was afraid to be returned to her mother’s house.
[47] In fact, the children did not return to school until March 18, 2024, having been kept out by J.W. since January 22, 2024, when they were last in the care of S.A.. J.W. claimed that he was home-schooling them. He also indicated that M. did not wish to go to St. David’s as he was bullied there. No particulars of any alleged bullying were provided on the motion.[^12]
[48] When the children were finally returned to school, instead of attending St. David’s, where they had been registered by their mother, they returned to St. Anne’s, a move aided by correspondence from Ms. Keith to the school board indicating that the parents had agreed the children would return there, an assertion strongly denied by S.A..
Other Events Occurring Since the Commencement of the Motion
[49] On February 8, 2024, Ms. Keith arranged for S.A. to meet with the children. They were transported to the meeting by J.W., who thereafter left. Both H. and S.A. indicated that they missed each other. M. refused to speak with S.A., citing Mr. N.’s continued cohabitation with her. Despite being told that Mr. N. would not be present for the evening, M. refused to accompany his mother to her residence. H., however, went and remained overnight without any problem. According to S.A., H. told her that she was happy to get a break from M., whose “fits” were getting worse at the home of his father, leading H. to steer clear of him in order to avoid getting hit, kicked, or having something thrown at her.
[50] S.A. was able to visit with the children on Family Day at a restaurant. They scheduled another visit at a local trampoline park but because it was closed at the time of the planned visit, J.W. refused to send the children, as he also rejected S.A.’s alternate suggestion of a visit at the mall.
[51] Other visits which have occurred since the motion was filed have been limited by J.W. to two or three hours in the community with the added condition that S.A. not drive the children. No order exists which contains these terms. Furthermore, the children are not being exchanged at the location designated by Justice MacFarlane in his order of February 7, 2024 because, according to S.A., J.W. refuses to meet her there.
[52] S.A. further deposed that, during their visits, H. has never said anything to her about Mr. N., while M. has indicated he does not wish to see him.
[53] S.A. commenced the Circle of Security program on February 20, 2024 but did not attend all of the appointments offered to her.
[54] J.W. deposed that, following the completion of courses that he has taken, he is much better equipped to handle “M.’s behaviour.” He claims that while M. gets angry in his care, he finds ways to calm him down and that M. has “never” escalated to the point of harming H. He described M. as having “become more stable.” He also reported that M. had been diagnosed with anxiety and depression, for which he is receiving medication and participating in talk therapy to regulate his emotions.
[55] According to S.A., she only learned that M. was receiving medication and was involved in a program through London Health Sciences Centre (LHSC) from a caller employed there. J.W. did not inform her until he included the information in his affidavit for this motion.
[56] Since remaining in the care of J.W., the children have attended the “13 Moons Land Base Learning Camp” located at the Oneida Nation of the Thames and, on a weekend in early March 2024, they attended the Caldwell Nation Cultural Camp, with their father, at Point Pelee.
[57] S.A. has provided some clean drug tests of recent origin. J.W. has continued to not comply with that term of Justice Sah’s order dated October 23, 2023.
[58] In an effort to comply with the condition regarding Mr. N. not being left in a caregiver role with the children, S.A. arranged for her cousin to stay in her home while she works in the evening, including remaining overnight with the children and not leaving the home until she returns the following morning, thus removing any further caregiving role from Mr. N. When told of this plan, the children continued to claim a fear of Mr. N. and indicated that they did not trust that he would not be present in S.A.’s home and would not harm them.
Analysis
J.W.’s Claim that the Children Could Return to S.A.’s Care at any Time
[59] J.W. has claimed repeatedly that he was prepared to have the children return to S.A.’s care, but that he would not be the one to force it. That position, alone, constitutes a failure to comply with his obligations as a parent who is subject to an order.[^13]
[60] Moreover, if J.W. honestly believed that the children ought to be removed from the care of S.A. because of events that have transpired since October 13, 2023, the law is clear as to what he should have done - comply with the order of Justice Sah and move, immediately, to vary it on evidence which would demonstrate that it is no longer in the best interests of the children or either of them due to a material change in circumstances.[^14]
[61] J.W. not only did neither, he actively undertook to thwart the effect of the order. He resisted efforts by Ms. Keith to have the children return to S.A.. Consequently, his assertion that he has been prepared to allow the children to return to the care of S.A. is unworthy of belief.
[62] His failure to comply with the orders of Justices Sah and MacFarlane has continued. Evidence provided, at my request, by the Society about its efforts to arrange access for S.A. while this decision was pending demonstrates that J.W. continues to claim that the children are not visiting with their mother because they tell him that they do not wish to do so, and that he continues to do nothing to address their refusals. That evidence also suggests that J.W. does not differentiate between the interests of M. and those of H. when it comes to the children having access to S.A.
Events Said to Constitute Material Changes in Circumstances
[63] The parties seeking to have the children return to J.W. focus on a number of events which, they assert, constitute material changes that occurred or are alleged to have occurred once M. and H. began to reside with S.A.
[64] When considering these events, the circumstances that exist for each child must be examined individually. However, some apply to both M. and H.
Mr. N.’s physical intervention with M and the effect it has had on him and H.
[65] There is no doubt, based on the evidence, that Mr. N. physically intervened with M. when he became involved in the physical conflict that had occurred between him and his mother on January 16, 2024.
[66] The intervention raises two questions. The first is whether Mr. N. ought to have become physically involved at all in the altercation between S.A. and M. The second is, having done so and having been physically involved with M., did Mr. N. apply more force than was necessary to simply break up the physical dispute.
[67] Whether Mr. N. ought to have become involved in the altercation depends on his reason for doing so. Had there been evidence that S.A. requested his assistance because she was involved in a struggle with M. that was potentially harmful to her, he might have been justified to assist her to avoid harm befalling her. However, there is no evidence that S.A. sought his assistance. Accordingly, his intervention was, objectively observed, gratuitous, however well-intended it may have been.
[68] It is clear from the reports of S.A. and M. that he was clearly lacking self-control in the minutes prior to Mr. N.’s intervention, to the point that he and his mother were involved in a physical struggle. In fact, in the minutes before the intervention of Mr. N., M. was engaging in self-harming behaviour by repeatedly striking his head against the wall.
[69] These actions were consistent with M. engaging in what he and H. called a “fit.” According to H., when having a ‘fit,” M. was prone to directing his anger at S.A., although she was also the occasional victim of his uncontrolled violent behaviour.
[70] By his own report, M. was the first to become physical with his mother when he feared that she was permanently returning him to the home of his father. It is clear that M. was substantially out of control when Mr. N. intervened. Consequently, I cannot be satisfied on the evidence that Mr. N. exerted more force than was necessary to separate M. from his mother nor that he purposely harmed M. in any way in attempting to do so.
[71] I am supported in my conclusions in this regard by the fact that the police, apprised of all of the facts by the involved parties, and having observed M.’s behaviours and attitude when they attended the residence, failed to charge either S.A. or Mr. N. with assaulting M.
[72] Notwithstanding these conclusions, however, it is equally clear that, in ordering that M. and H. be placed into the care of their mother, Justice Sah did not intend that either of them would become engaged in physical altercations with either S.A. or Mr. N.
[73] While there is little doubt in my mind that M. precipitated the events of January 16, 2024 by his behaviour and attitude, I must bear in mind that he is a child while S.A. and Mr. N. are adults. While M. appears incapable of controlling his behaviour to the point that he becomes physically aggressive, the adults with whom he is involved are obliged to refrain as much as possible from reacting to his actions by subjecting him to physical force.
[74] While Mr. N. was not criminally culpable for his intervention with M., the events of January 16, 2024 have led M. to profess a fear of him. While I am suspicious that there may be other factors leading M. to express a desire to avoid Mr. N., such as the embarrassment of having engaged in a fit of uncontrolled temper which led to him being physically extricated from his struggle with his mother, the simple fact is that he continues to assert that he does not wish to return to reside with his mother because of the presence of Mr. N.
[75] Similarly, S.A.’s summoning of police on both January 16 and January 19, 2024 suggests that a dynamic had developed in her household which was manifested by her inability to manage M.’s behaviours without assistance.
[76] Consequently, I am satisfied that the events involving M. and his mother during the week of January 15, 2024 and involving M. and Mr. N. which occurred on January 16, 2024, constituted a material change in circumstances for M.
[77] I cannot, however, draw the same conclusion with respect to H. It is clear from a review of the notes generated during her interview with Ms. Keith that she did not see what occurred between M. and Mr. N. It is also clear that H. believed what M. told her about being thrown against the wall by Mr. N. when, by his own admission, he had been banging his head against the wall. That is likely what she heard in her room.
[78] Even H.’s expressed desire to have no further contact with Mr. N. seems contrived in furtherance of a plan to remain with M. as a sibling unit. J.W. admitted as much in his evidence, indicating that H. was refusing to return to the home of S.A. because she does not want to be without her siblings.
[79] H. told Ms. Keith that she rarely interacted with Mr. N. while she was residing with her mother. She did not tell Ms. Keith that she feared Mr. N. on January 16, 2024. What H. said that she feared that day was the loud noise that was generated during the conflict between the two adults and M. Apart from Mr. N. asking H. on January 16, 2024, while standing at the door to her room, if she was okay while her brother was out of control in an adjoining room, there is no evidence of any interaction between Mr. N. and H. on January 16, 2024 or, for that matter, any other date.
[80] Moreover, the evidence suggests strongly that Mr. N. blocked M. from entering H.’s room to remove her tablet in order to contact their father, a move which led to H. hiding under the bed to prevent M. from taking the tablet.
[81] In my view, there is no objective evidence which supports H. reasonably fearing Mr. N., just as there is no evidence to support Mr. N. being physically inappropriate with H.
[82] Therefore, I conclude that the events of January 16, 2024 between M., S.A. and Mr. N., while unpleasant at the time for H., were not such as to constitute a material change in circumstances for her.
Other Issues Raised by the Society
[83] In its materials, the Society raised other concerns arising from the placement of M. and H. with S.A. which were said to have arisen since October 23, 2023. These were also relied on by the other parties aligned with the Society on the motion. Those concerns included:
a. S.A.’s alleged inability to manage M.’s behaviours and threats to harm herself if the children did not comply with her requests;
b. the children’s failure to attend school on a regular basis
c. the children occasionally being left alone for periods of indeterminate duration, including in the early morning between 5:00 a.m. and 7:30 a.m.; and
d. S.A.’s failure to support the children’s Indigenous culture and heritage.
S.A.’s inability to manage M.’s behaviours and threats to harm herself if the children did not comply with her requests
[84] This concern was first articulated by M., who alleged that S.A. repeatedly threatened to physically harm herself with a knife if the children did not follow her directions or listen to her. H. was said to have confirmed her mother’s actions. S.A. denied the allegation.
[85] J.W. made similar complaints to Ms. Keith about S.A. threatening self-harm. He also reported this to the principal of the children’s school and asked her to speak with the children about it. She declined to do so. M. also reportedly informed a worker from SOAHAC during a Christmas event about his mother’s alleged threats to herself. These reports to third parties caused Ms. Keith to question whether J.W. was orchestrating these complaints, while acknowledging having difficulty assessing the credibility of the children’s statements relating to this issue.
[86] In my view, this allegation lacks sufficient credibility so as to underpin a finding that, after the children were placed into S.A.’s care, there had been a material change in circumstances resulting from it.
The children’s failure to attend school on a regular basis
[87] This is an issue that, for M., is closely tied to the events of January 16, 2024.
[88] Justice Sah noted in her endorsement of October, 2023 that, at the time of the previous motion, both M. and H. wished to continue to attend their then-current school in St. Thomas. In fact, after Justice Sah made her order, S.A. continued to send M. and H. to that school. She did so to minimize their transitions. However, she did not reside in that school’s attendance area. As a result, on November 22, 2023, the children began to attend the Catholic elementary school for the attendance area in which S.A. resides.
[89] Justice Sah specifically considered the impact that moving the children to reside with S.A. might have on their school attendance. She recognized that it would be challenging for the children to change schools 2 months into a new school year but concluded that those challenges would be less than the ongoing challenges they would face in their father’s care. Justice Sah had also noted an inconsistency in M.’s views and preferences in October 2023 with respect to his living arrangements, of which she reasoned that the start of the school year, friends, and the entrenchment of a school routine were likely significant underlying factors.
[90] Both parties agree that H. enjoys attending school and does well academically. She was said to have adjusted well to the change in schools after moving to S.A.’s, but M. did not, to the point that his behavioural outbursts worsened. While H. told Ms. Keith that she went to school daily, both she and S.A. told Ms. Keith that M. repeatedly refused to comply with S.A.’s requests that he go to school. In fact, it appears that M.’s refusal to attend the new school played a significant role in the conflicts that developed between him and S.A., including that which occurred on January 16, 2024.
[91] While J.W. claimed that there was “a stark absence” in the children’s school attendance between October, 2023 and January 2024, neither he nor any of the parties supporting him provided any particulars to substantiate his allegation that the children, especially H., were not going to school in that period.
[92] On the other hand, as S.A. noted in her evidence, M.’s school attendance has been problematic for a substantial period. She claimed that, while in the care of J.W., the children were missing between 20 and 30 school days per year. In fact, as was noted by Ms. Keith in her evidence, once they remained in the care of their father as of January 19, 2024, the children did not return to school until after March break, which represented a further period of 8 weeks of non-attendance at school for each of them.
[93] The potential for difficulties with school attendance were anticipated by Justice Sah. Despite those potential difficulties, she ordered that the children be moved to reside with their mother.
[94] Given Justice Sah’s anticipation of difficulties with the change in school, I cannot conclude that for either M. or H. the effects on either of them, particularly M., of a change in schools, constituted a material change in their circumstances.
The children occasionally being left alone for periods of indeterminate duration, including in the early morning for up to 2 or 3 hours
[95] While some of S.A.’s absences were alleged to be the result of meetings with friends or running errands, the major concern alleged was that the children were being left alone in the morning between 5:00 a.m., when Mr. N. leaves for work, and 7:30 a.m. or 8:00 a.m., when S.A. arrives home from her overnight employment.
[96] M. is 10 years old while H. is 9. They are too young to be left on their own.
[97] One of the issues noted by Justice Sah in her endorsement explaining why the children were moved into the care of S.A. was a concern that, “According to [H]., who kept track of time using the oven clock, [J.W.] leaves at 7:00 p.m. and comes home at 4:00 a.m.”
[98] During his absences, M. and H. were left in the care of their 13-year-old brother L.A. who, according to Justice Sah, had “bestowed” on him by J.W. “considerable responsibility,” which included “performing adult responsibilities such as overseeing” the care of M. and H. However, while caring for M. and H., the older brother was said to have his chores done by H. while also failing to prepare dinner for M. and H.
[99] While leaving young children in the care of an older sibling for short periods of time may be acceptable, whether it is depends on the maturity of the older sibling. L.A. seems to be a somewhat inadequate caregiver for his siblings. Clearly, he ought not to be left caring for his siblings for long periods. That would be as inappropriate as leaving the children cared for by no one, an admitted fault of S.A.’s, who conceded that her cousin, who did provide the early morning care of the children, occasionally left the children “briefly” unattended “for personal reasons” in the period between the departure of Mr. N. and S.A.’s return from work.
[100] However, the evidence as to the frequency at which S.A.’s cousin, or S.A., were leaving the children unattended is sparse. Unfortunately, the precision utilized by H. in timing her father’s absences appears to not have been applied in timing the absences of her mother. That may be a function of when the absences were occurring.
[101] While I do not regard S.A. leaving the children unattended for even brief periods to be acceptable, it does not, in my view, constitute a material change in the circumstances of M. and H. from those experienced by them while in the care of their father. Furthermore, S.A. has now arranged with her cousin that these brief periods during which the children were left unattended will no longer occur.
[102] In an effort to ensure that this new arrangement occurs, I have included a term in my order which requires that S.A. implement it as a condition of either child being in her care.
S.A.’s failure to support the children’s Indigenous culture and heritage
[103] Some of those advocating for the return of M. and H. to the care of J.W. argued that S.A. has failed to support the children’s indigenous culture and heritage after they were placed into her care. While J.W. stated it directly, Ms. Hillier claimed “no knowledge” of S.A. supporting the children’s cultural needs. She pointed to S.A. not consenting to the children attending one specific program.
[104] In raising this issue, the parties are clearly implying that S.A. was failing to comply with the condition in Justice Sah’s order that she “liase with and maintain contact with Caldwell First Nation, at least monthly, to foster, promote, and maintain the children’s Indigenous connection and… follow any recommendations they may make to ensure the cultural connection remains.”
[105] S.A.’s response was two-fold. Firstly, she acknowledged that Ms. Hillier had recommended certain Indigenous programs to her. She claimed, however, that the recommended programs were either not age-appropriate or were scheduled on weekends when the children were with J.W. According to S.A., Ms. Hillier offered to have a co-worker reach out with other options, but no one did. Ms. Hillier, through counsel for the First Nation, indicated that she was unaware that no one had contacted S.A.
[106] Secondly, S.A. has developed an unwillingness to work with Ms. Hillier, seeing her as biased in favour of J.W. S.A.’s position is predicated on an email written by Ms. Hillier, while Ms. Keith’s investigation was ongoing and before the Society had brought its motion. In it, Ms. Hillier opined that S.A. had “failed miserably to protect the children in any circumstance, preferring to stand with her partner against the children,” while urging that the children be placed with their father “where they will be safe and can begin to receive the care they need to begin healing from the ordeal they have been through.”
[107] By expressing herself as she did, it is not difficult to see how S.A. would have formed the view that Ms. Hillier was disinclined to assist her in connecting the children to their cultural heritage.
[108] Ms. Hillier’s response, articulated in her affidavit, is that S.A. “does not get to choose who the Nation Representative is” and that there “is an expectation that she will comply with the order also.”
[109] While Ms. Hillier’s comment about S.A.’s lack of authority to choose the Nation Representative is accurate, it is beside the point. By the admission of her counsel, Ms. Hillier was unaware that S.A. was not being contacted by those persons that Ms. Hillier indicated would do so to assist S.A. in her efforts to connect the children with their First Nation’s culture. Coupling that unfortunate oversight with what S.A. saw as an attack on her parenting of the children in Ms. Hillier’s email could only lead to S.A. not trusting Ms. Hillier. That mistrust would likely have been exacerbated when Ms. Hillier wrote in her affidavit for this motion that she had “serious concerns about the effect of [Justice Sah’s] order and about the dynamics of how [it] would affect the children’s physical, emotional, cultural and educational needs.”
[110] Additionally, it must be noted that the children were only in the care of S.A. from October 13, 2023 to January 19, 2024, a period of three months which, in my view, is hardly enough time to draw the conclusion that S.A. was not committed to supporting the children’s Indigenous culture and heritage, especially when she was left waiting for information to help her address that issue – information that never came before the children refused to return to reside with her.
[111] In the result, I conclude that this issue was not such as to constitute a material change in circumstances, especially given the short period that the children were in the care of S.A. and the failure of Caldwell First Nation to assist S.A. in her desire, and obligation, to support the children’s indigenous culture and heritage.
The Children’s Views and Preferences
[112] H. told Ms. Keith that she wanted to move back with her father because he takes her and M. up north in the summer and because living at her mother’s residence is not as much fun as living at that of her father. As to the former, no one indicated that would stop. As to the latter, placement decisions cannot be based on where children perceive they are likely to have more fun.
[113] According to Ms. Gordon, the OCL counsel, H. reported being afraid to return to her mother’s and to return to school. H. also told Ms. Keith that she prefers to attend St. Anne’s over St. David’s because the children at St. David’s are “rich and bratty” and “always brag about what they got.” S.A. deposed that H. spoke positively of attending St. David’s, and did not complain about the other students.
[114] M. indicated to OCL counsel that he did not feel safe at S.A.’s residence, whether or not Mr. N. was present. He also claimed that his father does more with him than his mother, and that his dogs, which are kept at J.W.’s home, comfort him.
[115] M. did not speak much with Ms. Keith. However, when asked by his mother why he would not attend her residence for a visit, he indicated the cause was the continued presence of Mr. N. I do note, however, that his views of Mr. N. also appear to be shaped by things that he claims to have been told about Mr. N. by his father.[^15]
[116] At the time of the motion in October 2023, Ms. Gordon, OCL counsel, told Justice Sah that “the children's evidence, in its totality, shows [they] are being directly subjected to, or are witnessing, physical, verbal and emotional abuse inflicted on them by their father, that they are fearful of reporting abuse, that it is questionable whether the father can change his behaviour and, at one point, both [children] wanted to spend more time with their mother.”
[117] On this motion, Ms. Gordon advocated for the return of both children to the care of J.W., a view diametrically opposite to that which she advocated mere months ago. While this was a reflection of the children’s changed views, I must note that their vacillating views have not been of much assistance to the court on this motion.
Conclusions Regarding a Material Change in Circumstances
H.W.
[118] Having regard to all of the above, I find that a material change in circumstances did not occur with respect to H. after she went to live with her mother under the terms of Justice Sah’s order. Consequently, the order that I have made with respect to H. largely mirrors that of Justice Sah, augmented by Justice MacFarlane, with additional changes reflective of events that occurred between the time of Justice MacFarlane’s order and the argument of the motion.
[119] I am also aware that one effect of my order will be for H. to return to St. David’s school. However, had J.W. insisted on her return to the care of S.A. in January , 2024, she would have had an additional 4 months of attendance there by now. Any difficulty my order causes her in that regard is the direct result of J.W.’s failure to meet his obligation to comply with the order of Justice Sah.
M.W.
[120] As I have noted, the conflict that occurred between S.A. and M. over his attendance at school, which culminated in the events of January 16, 2024, when added to a further incident on January 19, 2024, both of which led to S.A. summoning police, constituted a material change in circumstances for M.
[121] Surely, Justice Sah could not have contemplated the conflict that would develop between S.A. and M. when she ordered M. to be placed with his mother.
Change of Placement Following a Finding of a Material Change in Circumstances
[122] Once a material change in circumstances is established, a contextual analysis should be conducted…to determine if the placement order should be changed. The purposes in section 1 of the Act should always be at the forefront of the analysis. Amongst the factors to be considered are the following:
The nature and extent of the variation sought and the proportionality of the requested change to the change in circumstances since the making of the last order. In particular, the court should examine the extent to which the passage of time has yielded a fuller picture to the court about the child, the parent or any family and community member involved with the family.
The degree to which the change in circumstances reduces or increases the risk of harm to the child.
The extent to which the proposed change meets the objectives set out in section 1 of the Act and the expanded objectives set out in section 1 of the Child, Youth and Family Services Act, 2017 (CYFSA).
The [augmented CYFSA/Federal Act] best interests factors, while giving primary consideration to the matters specifically enumerated in s. 10(2) of the Federal Act.[^16]
[123] Having concluded that there was a material change in circumstances with respect to M., I must determine what order to make in his best interests.
[124] The Society asks that I return M. to the care of J.W., failing which, that he be placed in Society care. The secondary request is opposed by all other parties. S.A. wants M. returned to her care.
[125] The real question for me to decide is whether it is in M.’s best interests to return to the care of his father, or to remain in the care of his mother under the terms of Justice Sah’s order, as modified by Justice MacFarlane.
[126] Justice Sah conducted a “best interests” analysis as to the placement of M. In doing so, she made multiple findings of risk to M. if he were to remain in the care of his father. These included risks of “physical discipline, spanking, hitting, continued yelling and use of profanity, and neglect.”
[127] She also expressed concern about his, and his sister’s, mental well-being, given J.W.’s demonstrated escalatory anger. On the evidence, Justice Sah was “persuaded” that M. “is the one who bears the brunt of his father's anger.” She cited statements by M. that his father had hit him on different occasions, although J.W. denied doing so.
[128] Concerns were also cited by Justice Sah about reports from the children that J.W. was using non-prescription drugs and drinking alcohol to excess. While J.W. denied that he did, he has thus far refused to comply with the term in Justice Sah’s order that he request that his family physician provide him with drug testing.
[129] In making my decision with respect to M., I am required to give primary consideration to:
a. his physical, emotional and psychological safety, security and well-being, and
b. the importance of
i. having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs, and
ii. preserving his connection to his culture.
[130] Whether placed with his mother or his father, M. will maintain a relationship with the other parent, although at this point he claims to not want to spend time with his mother. However, evidence shows that, after the events precipitating this motion, he has attended for dinners and gone to activities in the community with her.
[131] There is no doubt that, in the initial period after this motion was brought, J.W. sought to control what S.A. could do with the children and where she could do it. That has been addressed by a term in my order.
[132] Additionally, M. will maintain a relationship with his Indigenous community, whether through his father or his mother, so long as S.A. receives genuine, meaningful assistance from Caldwell First Nation, rather than recrimination.
[133] The key question to be answered is where, if anywhere, at this time, will M.’s physical, emotional and psychological safety, security and well-being be best addressed.
[134] Justice Sah previously concluded that it would not occur at the home of J.W. Events in January, 2024, and M.’s reactions since, strongly point to them not being adequately addressed at the residence of S.A..
[135] So, where is M. to be placed? He refuses to return to S.A.. He claims a fear of Mr. N., with whom S.A. resides for financial reasons. He claims that he wants to stay with his father.
[136] There is evidence, although it is hardly overwhelming, that J.W. has taken steps to address some of the issues cited by Justice Sah as reasons for moving M. to the care of S.A.
[137] According to a letter dated January 29, 2024 from a Registered Mental Health Counsellor employed by or associated with SOAHAC, J.W. has, since July 2023, attended 14 counselling sessions where he received “mental health support focusing on anger management and cognitive behaviour therapy.” The writer gave no indication of how many of the 14 sessions took place after October 2023.
[138] She further reported that he was meeting his therapy goals and was working to complete a “formal anger management program,” with a view to developing long-term positive behavioural changes.”
[139] J.W. deposed that his counselling has “better equipped” him to handle M.’s behaviour, and that M. is now listening to him and is more peaceful and stable in his residence. While one might hope that would be the case, I am somewhat skeptical that a mere 14 counselling sessions would have led to such a transformation in J.W. However, even if his evidence is only partly true, it does suggest some progress on his part, progress which is validated by his counsellor.
[140] As to those “best interests” factors set out in ss. 10(3)(g) and (h) of the Federal Act, I find that, for the post-October 2023 period, neither is applicable. I note, however, that there is alleged to be a history of domestic violence between J.W. and S.A. to which M., as well as H., were certainly exposed.
[141] Having regard to the “best interests” factors set out in s. 74(3) of the CYFSA, in making my decision on this motion to vary the interim order of Justice Sah only, I find that the most applicable are those set out in subsections 74(3)(c)(i), (ii), (v), (vi), (vii) and (x).
[142] M. is a child with obvious and severe emotional and behavioural issues. According to J.W., M. has been diagnosed with anxiety and depression, for which he is reportedly receiving medication and engaging in “talk therapy,” although S.A. did depose to M. having recently told her that J.W. has not consistently provided him with his medication.
[143] M. is clearly voicing a preference to remain in the care of his father and refuses to return to the home of his mother. At this time, he claims a closer emotional connection to his father than his mother.
[144] For these children, there has been no continuity in their care. Justice Sah moved them for good reasons, not the least of which was that they were asking to be moved from their father’s home to their mother’s. Now, they voice a contrary view. However, in my view, only M. has any legitimate claim to having a basis in fact for his change of opinion, that being the conflict that he had with his mother while residing with her. I am not blaming her for that, as those opposed to her, especially J.W. and the Caldwell First Nation, seem too ready to do. It is simply the fact that there was conflict between M. and his mother.
[145] In her affidavit, S.A. argued strongly for M.’s return to her care, noting that the Society has failed to enforce the existing orders in her favour, and that neither the OCL nor Caldwell First Nation had suggested any approach to the matter which would have facilitated the return of either child to her care in accordance with the existing orders.
[146] Despite S.A.’s plea for the return of M. to her care, and her assertion that he has not had an “outburst” during their visits, the evidence strongly suggests that, if M. is returned to reside with her at this time, the situation will again deteriorate and further conflict is likely to occur.
[147] I have concluded that the only realistic choices for M. at this times are to leave him with J.W., under strengthened terms of supervision, or to place him in Society care, which the Society suggested as an alternative should I not return the children to S.A.
[148] At this time, I am not prepared to order M. into Society care. While I acknowledge that many Indigenous children placed into Society care have poor outcomes, in many cases, Society care is the only viable option available. I am of the view that this case has not yet reached that point.
[149] In the result, I have reluctantly determined that M. might suffer greater emotional harm and be at a greater risk of physical harm - albeit inadvertent, arising from physical conflict with his mother that he initiates – if he were to be returned to the care of his mother at this time than he would if he was to remain in the care of his father.
[150] Whether M. again changes his mind in a few months about the safety he says that he feels in the residence of his father remains to be seen.
[151] Consequently, I am prepared, at this time, to give J.W. one last chance to parent M.
[152] However, J.W. also needs to understand that, if he does not rise to the challenges of parenting M., and he continues to fail to comply with all of the terms of the order under which M. is being returned to his care, should the issue of M.’s care again be placed before the court prior to a trial due to his actions, and M. continues to claim a fear of returning to the care of S.A., the only choice that may remain for the presiding judge at that time could be an order that places him into care.
[153] That noted, there is an option that may be available to the next judge that was not available to me on this motion. The Society sought, in the alterative, that M. be placed into the care of an Indigenous family proposed by Calwell First Nation. No such placement was offered by it. Give these children’s care histories, especially that of M., perhaps the First Nation should set about seeking a potential placement for him now, in the event that the question of M.’s placement returns to court again in the future.
[154] J.W. is also placed on notice that, under the orders being made today, he remains legally obliged to provide evidence to the Society to support his claim that he is not using illicit drugs. His continued failure to comply with this term of the order made now, as it was not complied with by him previously, will likely result in the court drawing an adverse inference against him on this issue. That, and other failures to comply with other terms of the orders, will most likely have a negative impact, for him, on the ultimate outcome of this case.
Effect of the Differences in Findings Regarding M. and H.
[155] Different findings with respect to whether the children, or either of them, have experienced a material change in circumstances since Justice Sah made her order on October 13, 2023, leads to the question of whether the resulting order creates a hardship if it separates the children.
[156] In my view, it does not. Justice Sah considered this question in her decision, although in the context of separating M. and H. from their older brother, L.A. She concluded that, on the facts as they existed at that time, it was “reasonable to order different placement decisions for the children, taking into consideration their different needs for safety, security, and well-being.”
[157] In my view, that logic remains as unassailable today as it was in October 2023 despite the focus now being only on M. and H.
[158] The evidence is clear that M. will physically attack and try to harm or remove property from. H. when he is having one of his uncontrolled “fits.”
[159] Since remaining in her father’s care, H. has told her mother that M. continues to experience fits, and that she tries to avoid M. when they are occurring in order to avoid becoming a victim of his anger. H.. has also related to her mother that she was “happy to” visit with her apart from M. because it afforded her a break from him. However, and contradictorily, H. has also told Ms. Keith recently that she does not want to visit her mother’s home without M. accompanying her.
[160] While I do understand her sense of loyalty to her brother, H.’s insistence on having M. always being present with her at her mother’s home is one that will eventually, and inevitably, place her at risk of physical harm from him.
[161] S.A. acknowledged this risk through Duty Counsel, Ms. Veenstra, who conceded that a separation of H. and M. at this time may be the only viable solution to the problems presented by the events since the order of October 13 2023.
Other Options Available to the Society
[162] Lastly, I remind the Society that it cannot shirk its responsibility to enforce a court order that was granted at its request because it wishes to avoid the unpleasantness that may result from seeking to compel a parent to comply with that order.
[163] In both the endorsement of Justice Sah and the evidence of S.A. on this motion, there are allegations that third parties who could provide evidence detrimental to J.W. refused to do so because they fear him. While I make no such finding with respect to the Society or its worker, Ms. Keith, I am left with the feeling that, at some level, a fear of confronting J.W. over his blatant disregard of a court order factored into the rationale for the Society bringing this motion as opposed to an enforcement motion.
Justice T. Price
Date: May 14, 2024
[^1]: This Respondent is incorrectly named in the Title of Proceeding. It appears that its correct name is Caldwell First Nation. An order correcting the error is included as part of this endorsement. The correct name is hereafter used throughout. [^2]: An acronym for Southwest Ontario Aboriginal Health Access Centre [^3]: Family & Children's Services of St. Thomas and Elgin v. S.A., [2023] O.J. No. 5522 [^4]: Children's Aid Society v. E.L., [2003] O.J. No. 3281 at para. 42 (S.C.J.) [^5]: Roloson v. Clyde, 2017 ONSC 3642 at para. 49 [^6]: Bubis v. Jones 2000 22571 (ON SC), [2000] O.J. No. 1310 (S.C.J.) [^7]: Gordon v. Goertz, 1996 191 (SCC), [1996] S.C.J. No. 52 at para. 17 [^8]: Simcoe Muskoka Child, Youth and Family Services v. S.H. et al., 2022 ONSC 1868 [^9]: Children’s Aid Society of the Region of Waterloo v. K. C., 2020 ONSC 5513, at para. 41 [^10]: This allegation was addressed, and rejected, by Justice Sah at paragraphs 135-141 in her endorsement: Family & Children's Services of St. Thomas and Elgin v. S.A., [2023] O.J. No. 5522 [^11]: H. told Ms. Keith that she had hidden under her bed with her computer so that M. could not take it. [^12]: S.A. noted that J.W. had previously made a similar claim about M. being bullied at St. Anne’s. S.A. also expressed doubt that H. refused to go to school between January and March 2024, instead blaming J.W. for not taking her to St. David’s because he did not support her attending school there. [^13]: See, for example: Godard v. Godard, 2015 ONCA 568, [2015] O.J. No. 4073 (C.A.); Stuyt v. Stuyt, [2009] O.J. No. 2475 (S.C.J.); B.K. v. A.P., [2005] O.J. No. 3334 (S.C.J.) [^14]: Hamid v. Hamid, 2023 OJ No. 2386 at para.42 (O.C.J.) [^15]: Paragraph [35], supra [^16]: Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784. Factor #4 has been re-worded to reflect the inclusion of the Federal Act in the analysis.