2024 ONSC 3018

BARRIE COURT FILE NO.: FC-20-545-02 DATE: 20240528

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: DNAAGDAWENMAG BINNOOJIIYAG CHILD & FAMILY SERVICES, Applicant -and- G.K., M.S. and B[...] First Nation, Respondents

BEFORE: The Honourable Madam Justice J.E. Bruhn

COUNSEL: Thomas Milne, for the Applicant G.K., Respondent, Self-Represented M.S., Respondent, Self-Represented Jeffrey Rouse, for the Respondent, B[...] First Nation Catherine Rogers, for the Office of the Children’s Lawyer

HEARD: May 23, 2024

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. 87 (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.

reasons for decision

INTRODUCTION

[1] This is a motion for summary judgment brought by Dnaagdawenmag Binnoojiiyag Child & Family Services (“the Agency”) pursuant to Rule 16 of the Family Law Rules [1] seeking the following Final Orders:

(a) The children, namely H.K., born [...], 2008 (age 15 years), Sh.K [2] ., born [...], 2011 (age 13 years), R.K., born [...], 2013 (age 10 years), and Sc.K., born [...], 2017 (aged 6 years) (“the children”), be placed in the care of their adult sibling, Sk.K., subject to the Agency’s supervision for a period of six (6) months on the terms and conditions set out in the Appendix of the Amended Protection Application dated March 18, 2024, pursuant to Sections 101(1)(1) and 101(7) of the Child, Youth and Family Services Act [3] (“the CYFSA ”);

(b) The parents, G.K. and M.S., have access with the children at dates and times to be determined as soon as possible, and otherwise at the discretion of the Agency as to dates and times, location, duration, frequency, need for and level of supervision, and supervisor, pursuant to Section 104, subject to Section 105, of the CYFSA ;

(c) Approval of the Order by any party who is self-represented is not required; and,

(d) Such further and other relief as the Agency may request and this Honourable Court may deem just.

[2] The Respondent, M.S. (“the mother”), filed an Answer and Plan of Care on March 15, 2024. The Agency then amended their pleadings on March 18, 2024. The mother did not file an Amended Answer and Plan of Care and the time to do so has passed. I infer that the mother continues to rely on her Answer and Plan of Care in response to the Agency’s amended pleading.

[3] Neither the Respondent, G.K. (“the father”), nor the Respondent, B[...] First Nation (“the Band”), have filed an Answer and Plan of Care and the time for doing so has expired. However, both have participated in these proceedings.

[4] Neither the father nor the mother filed responding materials to the Agency’s motion; however, they both attended the motion and were afforded the opportunity to provide oral evidence. The mother opted to do so, and I have considered her evidence in reaching my decision. The mother opposes the Agency’s motion and seeks to maintain the status quo and/or for the Agency to consider a plan whereby the children are placed with her. The father opted not to provide evidence; however, he advised on the record that he supported the Agency’s position on the motion.

[5] The Band filed responding materials to the Agency’s motion. The Band supports the Agency’s position on the motion.

[6] The following are the pleadings and affidavits reviewed by this Court:

(a) Amended Protection Application dated March 18, 2024;

(b) Plan of Care of the Agency dated March 15, 2024;

(c) Answer and Plan of Care of the mother dated March 15, 2024;

(d) Final Order of Justice Jain dated July 18, 2023;

(e) Notice of Motion of the Applicant dated April 12, 2024;

(f) Affidavit of Sara Batters, Child Protection Worker, sworn March 30, 2022;

(g) Affidavit of Sara Batters, Child Protection Worker, sworn May 17, 2022;

(h) Affidavit of Sara Batters, Child Protection Worker, sworn June 6, 2022;

(i) Affidavit of Melissa Rogers, Child Protection Worker, sworn June 6, 2022;

(j) Affidavit of Ken Dube, Family Service Worker and Supervisor, sworn October 30, 2023;

(k) Affidavit of Meagan Forget, Family Service Worker, sworn October 31, 2023;

(l) Affidavit of Meagan Forget, Family Service Worker, sworn February 12, 2024;

(m) Affidavit of Meagan Forget, Family Service Worker, sworn March 15, 2024;

(n) Affidavit of Meagan Forget, Family Service Worker, sworn April 12, 2024;

(o) Affidavit of Chief Joanne Sandy for the Band, sworn May 8, 2024; and,

(p) Affidavit of Meagan Forget, Family Service Worker, sworn May 21, 2024.

[7] In addition, at the motion the Court had the benefit of hearing the children’s views and preferences from their lawyer, Catherine Rogers, Office of the Children’s Lawyer representative, and this was also considered in coming to my decision.

[8] As a procedural matter, I note that while the Agency has referred to their pleadings as a Protection Application and an Amended Protection Application, and they have checked off the findings section on their Form 8B, this is actually a Status Review Application because the Final Order of Justice Jain dated July 18, 2023 was a six month supervision order and not a deemed custody order. Therefore, I do not need to make the findings again, although I do need to address whether the children continue to be in need of protection and have done so below.

Background Facts

[9] The facts as I find them are set out below and will provide context for the analysis. Further facts will be referred to in the analysis as required. Where evidence of significance differs, it will be identified and considered.

[10] M.S. is the biological mother of the children.

[11] G.K. is the biological father of the children.

[12] A.S. is the maternal great-grandmother of the children.

[13] Sk.K. (“Sk.K.”) is the father’s adult child from a previous relationship, and a sibling to the children subject to these proceedings.

[14] K.S. (“K.S.”) is Sk.K.’s partner.

[15] The children, the mother, the father, and the maternal great-grandmother are all First Nations and members of B[...] First Nation.

[16] Sk.K. and K.S. are also First Nations. Sk.K. is a member of the Seneca First Nation – New York and the B[...] First Nation. K.S. is a member of the Gambler First Nation.

[17] The mother, father and children have historically resided in Ontario and Alberta.

[18] There have been child protection concerns with respect to this family in relation to domestic violence, the father’s alcohol misuse, and the mother’s mental health dating back at least a decade, in various jurisdictions.

[19] In 2020, the family was residing in Calgary, Alberta. The Alberta Ministry of Children’s Services (“AMCS”) became involved due to concerns regarding significant domestic violence within the home between the mother and the father (“the parents”). The parents then decided to return to Ontario but did not advise AMCS of the move. An interprovincial request was sent to the Agency to follow up because the family had left Calgary before a safety plan could be developed.

[20] The Agency investigated the concerns; however, the parents were avoidant, verbally abusive towards the Agency, and unwilling to address the protection concerns.

[21] The Agency commenced a Protection Application in July 2020. The protection concerns were domestic violence, adult conflict, and mental health concerns. The Agency sought an order placing the children in the care of the maternal great-grandmother, A.S., under a six (6) month supervision order subject to terms and conditions, and with provisions for access by the parents.

[22] Due to the progress of the parents, their cooperation in mitigating the concerns, and the Band’s support of the family, the Application was withdrawn in April 2021.

[23] In May 2021 the parents separated.

[24] Following the separation, the mother was arrested and charged with domestic assault as against the father and was subject to a no contact order.

[25] The mother was experiencing significant mental health issues and engaged in adult conflict and assaulted other community members, including with the use of weapons.

[26] On September 9, 2021, the father obtained a temporary, without prejudice Order for custody of the children. At that time, the children disclosed that they wanted to reside with their father and that their mother did not treat them nicely when they saw her in the community. The children had declined visits with the mother.

[27] Efforts to set up access for the mother were largely unsuccessful. The mother presented as struggling to self-regulate and was at times extremely heightened, screaming at the worker. She attempted to pick up the children during times she was not authorized to do so. She occasionally attended at the children’s school in an attempt to remove them and/or see them. The children reported being fearful and having concerns with respect to their mother’s actions.

[28] From September 2021 to March 2022, the Agency received numerous reports regarding the father involving allegations of drug trafficking, substance use, acts of intimidation involving weapons, and assaults on other community members, as well as poor conditions in the home.

[29] On February 17, 2022, the Anishinabek Police Service reported concerns regarding the state of the father’s home as well as a report that the father had choked his ex-girlfriend in the presence of the children and that the father had barricaded himself in the house with the children. The Agency attended on February 22, 2022. There were no concerns reported by the children regarding the domestic dispute or the father, although it appeared that they had been coached for their private interviews.

[30] On March 28, 2022, the father was arrested and charged with possession for the purpose of trafficking and a firearms offence. When the police attended at the father’s home, he was observed to be under the influence of illegal drugs, drug paraphernalia in relation to the manufacturing of illicit drugs was in plain view, and there was sewage backed up in the residence.

[31] By March 2022, the mother’s mental health had deteriorated. Her therapist, Sara Durant, reported that it was her observation that the mother had regressed in relation to her mental health and that she was experiencing induced psychosis potentially due to the previous trauma she experienced in her relationship with the father.

[32] The children were brought to a place of safety and a second Protection Application was commenced at that time. The protection concerns in relation to the father included substance use, drug trafficking, violence with weapons, assaults, and domestic violence. The protection concerns in relation to the mother included assaults, threats of assaults, including towards community members, Leadership, and Agency workers, and significant mental health concerns. In addition, there was a concern that both parents lacked insight into the protection concerns and the impacts of their behaviour on the children. The Agency sought an order placing the children in the care of the maternal great-grandmother, A.S., under a six (6) month supervision order subject to terms and conditions, and with provisions for access by the parents.

[33] On the same day, the Band passed a resolution containing a Trespass Notice against the father advising him that he was not permitted to enter upon or near the community of B[...] First Nation. This was done to ensure the safety of the children in their placement in the alternative care home on the First Nation. This Trespass Notice remains in effect.

[34] On April 13, 2022, the Band passed a resolution containing a Trespass Notice against the mother advising her that she was not permitted to enter upon or near the community of B[...] First Nation. This was also done to ensure the safety of the children in their placement in the alternative care home on the First Nation. This Trespass Notice remains in effect.

[35] The children remained in the temporary care of the Agency until July 2023.

[36] On July 18, 2023, a Final Order was made by Justice Jain with the following findings and orders:

(a) the statutory findings under s. 90(2) of the CYFSA are made as follows:

(i) the children are H.K., born [...], 2008, Sh.K., born [...], 2011, R.K., born [...], 2013, and Sc.K., born [...], 2017 (“the children”);

(ii) the children are First Nations and members of B[...] First Nation;

(iii) the children were brought to a place of safety on March 28, 2022 from E[…], Christian Island, Ontario located on B[...] First Nation and remained in the temporary care of the Agency for the duration of this proceeding;

(b) the child are in need of protection pursuant to Section 74(2)(a), 74(2)(b), 74(2)(f) and 74(2)(h) of the CYFSA;

(c) the children are placed in the care of the maternal great-grandmother, A.S., for a period of six (6) months subject to the supervision of the Agency and terms and conditions;

(d) the children shall have supervised, virtual access with the mother with the need for supervision and/or expansion to in-person visits to be assessed going forward;

(e) the children shall have supervised, in-person access with the father on a weekly basis; and,

(f) there shall be no visits or any contact with the children by either parent without Agency approval.

[37] On about October 20, 2023, A.S. passed away. The children were voluntarily placed with extended family on B[...] First Nation.

[38] On October 25, 2023, the children were brought to a place of safety and remain in the temporary care of the Agency.

[39] A third Protection Applicant was commenced in October 2023 and amended in March 2014. The protection concerns in relation to the father include substance use, drug trafficking, violence with weapons, assaults, and domestic violence. The protection concerns in relation to the mother include assaults, threats of assaults including towards community members, Leadership, and Agency workers, and significant mental health concerns. In addition, there are concerns that both parents lack insight into the protection concerns and the impacts of their behaviour on the children. There are also concerns that the parents are unaware of the emotional harm that the children are experiencing by being witness to the violence and aggression as perpetrated by the parents, along with the impacts of the mental health and substance abuse issues. The Agency is seeking an order placing the children in the care of their adult sibling, Sk.K., under a six (6) month supervision order subject to terms and conditions, and with provisions for access by the parents.

[40] The Agency was unable to find a placement that would accommodate all four children. As a result, the children have been separated, for the first time in their lives, for the last seven months. H.K. is in a home in Midland, Ontario, and Sh.K., R.K. and Sc.K. are in a home on B[...] First Nation.

[41] The mother is currently residing in Mattawa, Ontario, in a home with the maternal grandmother, C.S., and the maternal aunt, J.S., and J.S.’s daughter.

[42] Recently, the mother was successfully having virtual access with the children, although there was also some in-person access at the Agency office.

[43] The father is currently residing in Calgary, Alberta.

[44] Most recently, the father was successfully having virtual access with the children.

[45] The children are also having ongoing, in-person sibling visits every Tuesday at the Agency’s Cedar Point office from 4:30 p.m. to 6:00 p.m.

Decision

[46] Almost four years have passed since the Agency most recently became involved with this family. Although each of the parents have made some gains, for example, cooperating to some extent with the Agency for periods of time and/or maintaining consistent and child focussed access for periods of time, those gains have been inconsistent and/or temporary, and significant protection concerns remain. Those protection concerns have not been adequately addressed by either parent and there is no realistic plan to address them within a reasonable time frame. The parents have failed to provide the Court with any evidence or sufficient evidence that they have addressed and/or mitigated the child protection concerns such that a less intrusive order than that proposed by the Agency would be appropriate.

[47] The children have experienced significant instability, trauma and loss in their young lives. Neither parent is in a position to care for these children at this time, nor have they provided any evidence or sufficient evidence that they are likely to be able to do so within a reasonable time frame. It is in the children’s best interests to bring an end to the litigation and provide some stability to their care arrangements.

[48] I find that the children would continue to be at risk of harm pursuant to s. 74(2)(a), 74(2)(b), 74(2)(f), and 74(2)(h) of the CYFSA if they were to be placed in the care of either parent.

[49] Given these considerations, this Court finds that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious, it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.

[50] I find that there is no genuine issue requiring a trial.

[51] I find that the relief sought by the Agency is in the children’s best interest and grant an order accordingly, as set out below.

The Law

[52] A Summary Judgment motion can fulfill two very important objectives in child protection proceedings. It enables the court to make an expeditious, less expensive and a proportionate disposition of a case and provides closure and direction to the children involved and their parents.

[53] The procedure governing a motion for summary judgment is set out in FLR 16, the relevant provisions of which provide as follows:

Rule 16: Summary Judgment

When Available

16. (l) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (l).

Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

Evidence of Responding Party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

Evidence Not from Personal Knowledge

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

No Genuine Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

Powers

(6. l) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[54] As stated by the Supreme Court of Canada in Hyrniak v. Maudlin [4]:

To succeed on a summary judgment motion, an applicant must prove that there is no genuine issue for trial on a balance of probabilities. “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”.

[55] In Kawartha-Haliburton Children’s Aid Society and M.W., Curve Lake First Nation and Office of the Children’s Lawyer [5], the Ontario Court of Appeal affirmed the longstanding cautious approach to summary judgment in child protection proceedings and summarized its guiding principles,

80. To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

81. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

82. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

83. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

84. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

85. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[56] A two-step analysis is required. The judge must first determine if there is a genuine issue requiring a trial on the evidence without using the additional fact-finding powers set out in FLR 16(6.1). If, after this initial determination, there remains a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary.

[57] Overarching the court’s assessment of the evidence is the matter of the children’s best interests. Section 74(3) of the CYFSA requires the court to prioritize those interests and provides as follows:

Best Interests of Child

(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.

[58] In the case of an Indigenous child, s. 10 of An Act Respecting First Nations, Inuit and Metis Children, Youth and Families [6] provides as follows:

Best interests of Indigenous child

10(1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

Factors to be considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including

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

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

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

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

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

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

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

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

[59] The children’s best interests must also be considered in the context of the relief claimed by the Agency.

[60] Parents must put their best foot forward on a motion for summary judgment. A parent’s case must rest on more than mere denials or a heartfelt desire to resume care of a child. There must be clear evidence that a parent faces better prospects than what existed at the time of apprehension and that the parent has developed some new ability as a parent. A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. [7]

[61] As stated by Spence J. in P.F. v. A.W. [8]:

Absent evidence of a change in attitude, or therapy to address past bad behaviour, the best way to predict how a person will behave in the future is to examine past conduct. As Justice W.L. MacPherson stated in CAS v. C.T., 2015 ONSC 32: The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents.

Discussion and Analysis

[62] The court should always exercise exceptional caution before proceeding on a summary judgment motion in a child protection case. The court has considered this caution and found that it is in the interest of justice for the court to determine this case summarily. The summary judgment process allows the court to make the necessary findings of fact and to apply the law to the facts, and to fairly and justly adjudicate this dispute. The Court is able to do so based on the evidence before it, including the oral evidence of the mother provided on May 23, 2024. This court finds that the evidentiary record, summarized in part below, is sufficiently comprehensive on all aspects of the case for the court to make a fair and just determination of the issues on the merits without the need for a trial based on the following.

Issue #1 - Has the Agency established, on the balance of probabilities, that there is no genuine issue requiring a trial with respect to whether the children continue to be in need of protection?

[63] Based on the background facts set out above and for the reasons that follow, this Court finds that the evidence overwhelmingly supports a finding that the children continue to be in need of protection such that there is no genuine issue for trial.

[64] Neither party has provided any evidence, or any persuasive evidence, that they have addressed or mitigated the protection concerns that existed when the Final Order was made. This is despite the fact that the Agency has attempted to work with the parents to address these concerns and has repeatedly advised them of the importance of doing so, as well as encouraging them to participate in these proceedings and file material.

[65] The father has not responded to the current Application and has not provided any evidence on this motion.

[66] The evidence the Court has from the Agency indicates that the father has denied ever having a substance abuse problem. In about November 2023 he consented to complete blood and hair drug screens as requested by a Band representative, however, he did not provide the Court with any blood/hair tests showing he is free from substance use. Nor has he provided any evidence of his engagement in services to address addiction issues or anger management/domestic violence issues.

[67] The mother responded to the Application and provided some evidence at the hearing of the motion. She previously advised the Agency that she was looking to attend a treatment centre (mid-February 2024) and that she was in detox (April 2024), however, she has not provided any corroborating evidence of this for the motion nor any evidence of her engagement in services to address mental health issues or domestic violence issues.

[68] Although both parents appear to be aware of the steps they should be taking to address or mitigate the child protection concerns, there is no evidence or no persuasive evidence, that they have successfully taken those steps.

[69] While both parents have made some progress since the Final Order was made in terms of being somewhat more open to working with the Agency and maintaining more consistency with access, the underlying protection concerns have not been resolved or mitigated.

[70] Neither parent’s present circumstances show any lesser risk to the children than those that existed at the time of the Final Order.

[71] This Court finds that the Agency has met its obligation of showing, on a balance of probabilities, that there is no genuine issue requiring a trial with respect to whether the children continue to be in need of protection.

Issue #2 – Has the Agency established, on the balance of probabilities, that there no genuine issue requiring a trial with respect to the dispositions requested by the Society?

[72] Considering the factors listed in s. 74(3) of the CYFSA and s. 10 of An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, this Court finds that the evidence overwhelmingly supports the dispositions requested by the Agency, such that there is no genuine issue requiring a trial.

[73] The Agency has requested that children be placed in the care of Sk.K. for a period of six (6) months subject to Agency supervision and terms and conditions and that the parents have access at the discretion of the Agency.

[74] This Court finds that it is in the children’s best interests to be placed in the care of Sk.K. for a period of six (6) month subject to the supervision of the Agency and on the terms and conditions proposed for the following reasons:

(a) Neither parent is in a position to have care of the children because of the ongoing, unaddressed protection concerns described above.

(b) In addition, the father has not put forward a plan of care.

(c) Although the mother has put forward a plan of care, and a home assessment and records check have been completed, the home assessment needs to be reviewed as it appears to indicate the firearms and alcohol are accessible to the children, that there are no precautions to protect the children against second hand smoke, and that swimming pools on the property are not fenced and secured. Even had there been no questions with the home assessment, the mother has not provided sufficient evidence to satisfy the Court that she has addressed or mitigated the protection concerns. Although the mother stated at the motion that she now has a loving home, residing with the maternal grandmother and the maternal aunt, according to the OCL, the children have made concerning reports of incidents of substance abuse and verbal and emotional abuse involving the children and the maternal grandmother and/or maternal aunt when the children were briefly cared for by the maternal grandmother and maternal aunt last year.

(d) The mother’s proposal to simply maintain the status quo is also not in the children’s best interests. They are currently in separate homes because the Agency was unable to find a home that would accommodate all four of them. In addition, the home the three youngest children are in has been advised that they are over capacity and the children will need to be moved, creating further instability and uncertainty for them.

(e) The children’s adult sibling, Sk.K., has stated that he would like to have the children come and reside with him. Sk.K. resides in Calgary, Alberta with his partner, K.S., their one-year-old daughter, Azalea, and their one-month-old daughter.

(f) Sk.K. initially expressed a desire to care for the children in about April 2022; however, it was eventually decided that the children would be placed with their maternal great-grandmother who had cared for the children in the past and who had the support of the Band.

(g) Sk.K. has appropriate housing, a stable job, and an extensive support network of family and friends to support him and K.S. in caring for the children.

(h) Sk.K. and K.S. are well attuned to the needs of the children, not just in terms of basic needs such as getting them enrolled in school and getting them registered with a family doctor, but also their need for counselling, possible educational supports, and recreational opportunities.

(i) Sk.K. and K.S. are also well able to maintain the children’s cultural and spiritual heritage and connection. Both Sk.K. and K.S. are First Nations and practice some cultural activities and Sk.K. is also a member of B[...] First Nation.

(j) Sk.K. and K.S. have a close bond with the children and the children respect and follow directions from them.

(k) The children and Azalea have a good bond, with the children showing care and kindness towards Azalea.

(l) According to the OCL, the children have been expressing a desire to reside with Sk.K. for about the last two years. Their wishes have been strong, consistent, and unanimous.

(m) The children visited with Sk.K. and K.S. for about two weeks over the Christmas school vacation in each of the past two years. Sk.K. and K.S. reported that the visits went very well, the children were happy, they responded well to Sk.K. and K.S.’s directions and boundaries, and it was very enjoyable. According to the OCL, the children similarly reported that these visits went very well, they could not say enough good things about them, they were very sad to leave, and they are eager to return.

(n) According to the OCL, the children have been clear, consistent and unanimous in their wishes to be placed together in one household. The children are exceptionally close. They thrive when they are together, building memories, and supporting one another. I note that through all of the chaos in their lives, the children have always had each other. They are a source of comfort and support to one another, and it is a priority that they be placed together for their mental and emotional health.

(o) The children previously resided in Calgary, prior to 2020, and according to the OCL, they regard Calgary as their home. Although the mother stated at the motion that the children regard Calgary as their home because she made it their home as she was their primary caregiver while the father was gone for half of the time over the last eleven years, the fact remains that the children feel comfortable and connected to that community and wish to return to it.

(p) Sk.K. and K.S. are aware that having four children placed in their home will come with some challenges, but they appear to be prepared for this emotionally and mentally and have prepared their home for the placement and plan to put other arrangements in place as needed (for example, having access to or obtaining another vehicle).

(q) Sk.K. and K.S. have discussed permanency for the children and are open to this plan should that be what is decided in the future (if the parents are not working towards reunification).

(r) Sk.K. has worked cooperatively and openly with the Agency. Although there was an issue last year when Sk.K. did not promptly disclose that the father was residing with him while Sk.K. was expressing a desire for the children to reside with him, Sk.K. and K.S. have confirmed that they understand that the children cannot have access with either of their parents without the approval of the Agency. They have advised that they will not allow access without approval. Sk.K. has also advised that if the father comes to their home in Calgary, he will call the police and the CAS and CFS. However, Sk.K. and K.S. have also indicated that they will cooperate with the parents’ access as determined by the Agency. I note that there is a provision consistent with this in the terms and conditions to the proposed supervision order. The children’s relationship with their parents will be maintained and supported through ongoing access as arranged by the Agency.

(s) No concerns were noted with respect to a placement with Sk.K. and K.S.

(t) A Kinship Home Study Report was completed by Alberta CAS in January 2024 which recommended that Sk.K. and K.S. be approved for kinship care.

(u) Whether the children remain in Ontario or are placed in Calgary, Alberta, there will be a travel barrier for one of the parents as the mother is currently in Ontario and the father is currently in Calgary, Alberta. However, there is no available family placement in Ontario, whereas there is a family placement in Calgary, Alberta. Considering the inconsistency in the mother’s access since these proceedings commenced, the uncertainty as to whether she will be able to address or mitigate the protection concerns, the fact that she is already residing some distance from the children, and the benefits to the children of the day-to-day security, stability and support available to them from a placement with Sk.K., I find that it is in the children’s best interests to pursue the placement. I would add that even if both parents were residing in Ontario, I would find that the benefits to the children of the placement with Sk.K. outweigh the negative impact on the parental access for the same reasons as stated above.

[75] This Court finds that it is in the children’s best interests to have access with the mother and father as arranged by the parents with the Agency and that the Agency have discretion as to the dates/times, location, duration, frequency, need/level of supervision and supervisor for access, for the following reasons:

(a) It is in the children’s best interests to have a positive relationship with both of their parents. To support and enhance that relationship, the children should have as much access with each of their parents as is in their best interests. That access may be in-person or virtual, and it may be supervised or unsupervised, depending on the circumstances at the relevant time.

(b) Although both parents have, at times, had challenges arranging or maintaining consistent access, recently both parents have been relatively consistent and the access appears to have been positive. It will be important to build on those experiences to maintain the children’s connections with their parents.

(c) All of the children have stated that they would like to have access with both of their parents, although some of the children have stated that they would like the access with the mother to be supervised.

(d) Because neither parent has, as of yet, addressed or mitigated the protection concerns, it will be necessary for the Agency to have flexibility in arranging access, including with respect to frequency, duration, and level of supervision, to ensure that it is in the children’s best interests.

(e) The Agency has a plan to support the parents with ongoing virtual visits. The parties will receive two supervised virtual visits for a period of 40 minutes. If the visits are consistent, meaningful, and going well they will transition to unsupervised with check-ins to ensure everything is going smoothly. The Agency also states that it is committed to providing an in-person visit between the children and their parents and that they will review the possibility of financial coverage for plane tickets.

[76] Based on all the above, this Court finds that it is plain and obvious that there is no other reasonable outcome other than the disposition sought by the Agency.

[77] This Court finds that the Agency has met its obligation of showing, on a balance of probabilities, that there is no genuine issue requiring a trial with respect to the disposition.

[78] The disposition sought by the Agency is in the children’s best interests.

[79] The order placing the children in Sk.K.’s care subject to supervision and terms and conditions will provide the children with the safe, stable and supportive home that they require.

[80] The order for access will allow the children to benefit from an ongoing relationship with each of their parents.

[81] While I appreciate that the parents may view this decision as a defeat or as a criticism of themselves, that is not the intention. I recognize that the issues the parents are struggling with (including substance use, domestic violence and mental health) are long-standing and deep-seated and that they will take a great deal of time and effort to address or mitigate. The parents are strongly encouraged to renew their efforts to address these issues for the benefit of their children, and for the benefit of themselves.

ORDER

1. Pursuant to Rule 16 of the Family Law Rules, order to go as follows:

(a) the children, namely H.K., born [...], 2008 (age 15 years), Sh.K., born [...], 2011 (age 13 years), R.K., born [...], 2013 (age 10 years), and Sc.K., born [...], 2017 (aged 6 years), (“the children”) shall be placed in the care of their adult sibling, Sk.K., subject to the Agency’s supervision for a period of six (6) months on the terms and conditions set out in the Appendix of the Amended Protection Application dated March 18, 2024, pursuant to Sections 101(1)(1) and 101(7) of the Child, Youth and Family Services Act [9] (“the CYFSA ”);

(b) the parents, G.K. and M.S., shall have access with the children as arranged with the Agency. The Agency shall arrange dates and times for access as soon as possible and otherwise at the discretion of the Agency as to dates and times, location, duration, frequency, need for and level of supervision, and supervisor, pursuant to Section 104, subject to Section 105, of the CYFSA ; and,

(c) approval of this Order by any party who is self-represented is not required.

Bruhn J.

Released: May 28, 2024

APPENDIX

The terms and conditions proposed for the child(ren)’s supervision are as follows:

(a) The older sibling, Sk.K., shall provide ongoing stable care and supervision to the children and a home environment that is safe, adequate, and suitable.

(b) The older sibling, Sk.K., shall allow access by Agency Workers tb his home and to the children in the home or at the school on an announced and unannounced basis, to allow for private and independent contact with the children by the Agency as deemed necessary the Agency.

(c) The older sibling, Sk.K., shall not allow either parent to attend or reside at his home without the prior approval of the Agency, and make his best efforts to ensure the children attend for regularly scheduled access with the parents' subject and pursuant to any applicable court orders that may be in place, however he shall not arrange any visits as between the parents and children outside such regularly scheduled access times as established through and by the Agency.

(d) The older sibling, Sk.K., shall ensure the children attend school on a regular basis.

(e) The older sibling, Sk.K., shall ensure the children receive appropriate medical, dental, psychological, developmental, and educational services as required. Further he shall follow through on any recommendations which may be made by any medical professionals with whom the children are involved and will provide consents to the Agency to speak to the children's professionals.

(f) The older sibling, Sk.K., shall request assistance from the Agency should he be facing any challenges or barriers in having the children attend for any appointments or opportunities pertinent to their health and well-being.

(g) The older sibling, Sk.K., shall provide the Agency with relevant information pertaining to the care and welfare of the children in a timely fashion.

(h) The older sibling, Sk.K., shall ensure that they do not use any form of physical discipline when dealing with the behaviours of the children and shall ensure that no other person does so.

(i) The older sibling, Sk.K., shall notify the Agency of any other potential caregivers of the children to allow for additional follow-up with such individuals to ensure they are appropriate.

(j) The older sibling, Sk.K., shall notify the Agency immediately of any changes in address, telephone number, or household composition, and provide the Agency with current contact information.

(k) The older sibling, Sk.K., shall engage in the process of a kinship service assessment which will be initiated by the Agency.

(l) The older sibling, Sk.K., shall ensure that the children are not exposed to adult conflict or negative talk about their parents.

(m) The older sibling, Sk.K., shall ensure that the children's cultural needs are being met and ensure they remain connected to their heritage.

(n) The older sibling, Sk.K., shall report any concerns related to the children's parents to the police and/or the Agency in a timely fashion.

[1] All references to Rules are to the Family Law Rules, O. Reg. 114/99 (“ FLR ”). [2] Because some of the children’s first names start with the first letter and no middle names were provided, we have used the first and second letters of their first names and the first letter of their last names to initialize. [3] 2017, S.O. 2017, c. 14, Sched. 1. [4] 2014 SCC 7, [2014] 1 S.C.R. 87, para. 43. [5] 2019 ONCA 316, 2019 CarswellOnt 5927, [2014] O.J. No. 2029, 24 R.F.L. (8 th ) 32, 432 D.L.R. (4 th ) 497. [6] S.C. 2019, c.24 s.10 [7] Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.). [8] [2016] O.J. No. 6321, at para. 148. [9] 2017, S.O. 2017, c. 14, Sched. 1.