WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: FC-23-CP90 DATE: 2024/11/07

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF: I.D. DOB August 2013, A.D, DOB: January 2016 and H.D. DOB: May 2018.

BETWEEN:

Children’s Aid Society of Ottawa Applicant – and – N.D. (Mother) – and – B.O’Q. (Father of A.D. and H.D.) – and – K. B. (Maternal Grandmother) – and – M. P. (Father of I.D.) – and – Tungasuvingat Inuit on behalf of ITK Respondents

Counsel: Tara MacDougall, for the Applicant Jennifer Ho for the Respondent, N.D. B.O’Q. in default Marina Tronin for K.B. Joan Rothwell for M. P. Stephen Pender, for the OCL

HEARD: September 16, 2024

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

JENSEN J.

[1] This is a decision on a motion for summary judgment, brought by the Children’s Aid Society of Ottawa (“the Society” or “the CAS”). It pertains to three children, I.G. (11 years old), A.D. (8 years old) and H.D. (6 years old). The father of I.G. is M.P. and the father of A.D. and H.D. is Mr. O’Q. The mother of all three children is ND.

[2] The Society’s Notice of Motion seeks statutory findings pursuant to s. 90(2) of the Child, Youth and Family Services Act, SO 2017, c 14, Sch 1 (“CYFSA”), as well as a finding that the children are in need of protection and an order that the children be placed with the Maternal Grandmother, K.B., subject to the supervision of the Society for a period of six months.

[3] Mr. O’Q. did not provide an Answer or Plan of Care and therefore has not participated in these proceedings.

Statutory Findings

[4] There is no dispute about the parentage findings for the children. Mr. P. is the father of I.D.. Mr. O’Q. is the father of children A.D. and H.D..

[5] Ms. D. is the mother of all three girls.

[6] There has however, been some discussion about the children’s identification as Inuit.

[7] On September 23, 2024, I issued a decision in which I found that there was a triable issue on the question of whether the children are First Nations, Inuit or Métis. My decision was based on the fact that the mother, Ms. D., and the maternal grandmother, Ms. B., had given contradictory evidence with respect to the children’s ancestral connection to an Indigenous community. The mother self-identifies as Inuk, but the maternal grandmother denied any connection to an Inuit community. At that time, I did not have any information about the children’s self-identification. Therefore, I exercised my additional powers under subrule 16(6.1) to hold a “mini-trial” on that issue only to avoid the need to go to a full trial on all issues.

[8] The “mini-trial” on the issue of the children’s First Nations, Inuit or Metis identification was held on October 16, 2024. At the outset of the mini-trial, counsel for the children, Mr. Pender, indicated that the parties had all consented to having him present information about the children’s views. The Ontario Court of Appeal has approved this practice, provided it is on the consent of all parties. Official Guardian v. Strobridge, 1994 ONCA 875

[9] Mr. Pender explained that the children strongly and consistently self-identify as Inuit. They attend the Innuqatigiit Centre and participate in activities there. They have had access visits with their mother at the Innuqatigiit Centre. The children see themselves as Inuit children.

[10] Mr. Pender argued that the children’s self-identification as Inuit is a material and significant consideration. He acknowledged that the biological connection to the children’s Inuit ancestry is somewhat uncertain. However, the legislation does not require blood quantum proof of Indigenous ancestry.

[11] The definition of a First Nations, Inuk or Métis child is contained in s. 1 of Ontario Regulation 155/18, General Matters Under the Authority of the Lieutenant Governor in Council under Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. This definition reads as follows:

Interpretation, First Nations, Inuk or Métis child

1. A child is a First Nations, Inuk or Métis child for the purposes of the Act if,

(a) the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;

(b) the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or

(c) it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,

(i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or

(ii) there is a connection between the child and a band or a First Nations, Inuit or Métis community. (emphasis added)

[12] In the present case, the children’s identification as Inuit meets the definition under s. 1(a) of the Regulation. I am mindful of the statements of Justice Bale in CCAS v. M.P. et al., 2021 ONSC 6788 wherein she joined with other justices in calling for a solid evidentiary basis before determinations of Indigenous identity are made. As Justice Bale stated:

It would be offensive to Indigenous people to permit non-Indigenous persons to appropriate the considerations and safeguards under the CYFSA that are intended to acknowledge historic injustices and redress present-day disadvantages that they do not share. Surely, something more than a simple self-declaration of identity is needed.

[13] In this case I find that the children’s self-identification as Inuit is not “simple” or “casual”. Rather, it is based on years of participation in cultural and educational activities in the Inuit community. The children’s self-identification is based on their perception that they have been included in and accepted by the Inuit community as Inuit children.

[14] Ms. D.’s evidence was that the children have been accessing services from Innuqatigiit and the Inuit community for many years. In her affidavit, Ms. D. states that the girls have traditional Inuit headdresses and a Qulliq (traditional soapstone oil lamp often used in prayer) at home. They have also learned to speak some Inuktituk at school.

[15] Innuqatigiit is not a recognized community for the purposes of the CYFSA or the statutory findings. However, the Inuit Tapiriit Kanatami (ITK) community, which is the sole band or community that has been established on the list of First Nations, Inuk or Métis communities as per s. 1(b) of Regulation 155/18, was given notice of these proceedings. ITK has not raised any objections or participated in this matter.

[16] I find that the children’s self-identification as Inuit children is based on their experiences of being treated as such. This is sufficient, in my view, to meet the definition of “Inuit” under the CYFSA. As noted by Justice Bale, there is no minimum blood quantum threshold for determining the legitimacy of self-identification. Therefore, the fact that there is some uncertainty with respect to the children’s ancestral connection to an Indigenous community does not rule out a determination that the children are Inuit children.

[17] It should be noted that my finding that the children are Inuit children is restricted to the definition of “Inuit” under the CYFSA and does not extend to the children’s rights beyond that legislation and An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 ("the Federal Act").

[18] On the basis of the evidence and analysis above I make the following statutory findings:

• The child, I.L.Y.G., was born in August 2013 in the City of Ottawa, in the Province of Ontario.
• The child’s parents are N.C.D. and M.P.
• The child is Inuk.
• At the time of the commencement of these proceeding, the child ordinarily resided in the city of Ottawa, in the Province of Ontario.
• The child, H.B.O’Q.D., was born in May 2018, in the City of Ottawa, in the Province of Ontario.
• The child’s parents are N.C.D. and B.O’Q.
• The child is Inuk.
• At the time of the commencement of these proceeding, the child ordinarily resided in the city of Ottawa, in the Province of Ontario.
• The child A.S.M.D. was born in January 2016 in the City of Ottawa, in the Province of Ontario.
• The child’s parents are N.C.D. and B.O’Q.
• The child is Inuk.
• At the time of the commencement of these proceeding, the child ordinarily resided in the city of Ottawa, in the Province of Ontario.

Summary Judgment Principles

[19] When making a decision on a summary judgment motion in child protection proceedings the court must be mindful of the following principles that were set out by the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W, 2019 ONCA 316:

1. The fairness principles for summary judgment, which were set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, must be applied recognizing the distinctive features of a child protection proceeding.
2. 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.
3. The burden of proof is on the party moving for summary judgment.
4. 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.
5. Judicial assistance must be provided for self-represented litigants.
6. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[20] As Justice Corthorn noted in The Children’s Aid Society v. S.P. and K.L., 2019 ONSC 5624, the Court of Appeal has directed judges on motions for summary judgment in child protection proceedings to undertake a best interests analysis (paras. 31 and 49). Above all, a cautious approach should be taken on motions for summary judgment in child protection proceedings (paras. 63 and 70-79). The Court of Appeal described the requisite approach as “highly cautionary” (para. 74).

[21] I have kept these considerations in mind as I have reviewed the evidence and made determinations in this matter.

Child Protection Concerns and Resulting Legal Proceedings

[22] In early August 2023, through investigation, the Society verified concerns that the children were being exposed to adult conflict between the Mother and the Maternal Grandmother, and that the Mother was allowing the Father unsupervised time with the Children, in breach of his criminal conditions.

[23] Mr. O’Q. was charged by Cornwall Police Service on or about February 3, 2023, with making sexually explicit material available to a person under 16 years of age, contrary to s. 171.1(1)(b) of the Criminal Code. Mr. O’Q. was subject to a number of conditions resulting from the criminal charges, including the requirement that he not be alone with a child under the age of 16 unless they are supervised by a person who is aware of his charges and conditions.

[24] On November 6, 2023, Justice Shelston made an order on a temporary and without prejudice basis, placing all three children in the care of the mother, Ms. D., subject to the supervision of the Society pending disposition of the Application, with terms and conditions on the mother, and father. The conditions required that Ms. D. ensure the children were never left unsupervised with Mr. O’Q., and that she not be the person to supervise their time with Mr. O’Q.

[25] On November 20, 2023, the Society made the decision to remove the children to a place of safety based on information it had received. The Protection Application was amended on November 22, 2023, seeking a six (6) month Supervision Order to the Maternal Grandmother, K.B.

[26] On November 24, 2023, Justice Audet, granted a temporary without prejudice order placing all three children in the care of their maternal grandmother, K.B.

[27] At present, the Society's main protection concerns relate to:

(a) the mother’s ability to care for the children, given that she has allowed Mr. O’Q. to be at home unsupervised with the Children, which was reported to be a breach of his criminal conditions; and

(b) the mother’s exposing the children to adult conflict/ emotional abuse; and

(c) the mother’s lack of engagement to address these concerns and meet the children’s emotional needs.

The Issues

[28] Ms. D. argues that there are two triable issues in this case that cannot be resolved by way of summary judgment: (1) are the children in need of protection; and, (2) is it in the children’s best interests to be placed with the maternal grandmother, K.B. subject to the Society’s supervision for six months?

[29] Ms. D. states that a trial is needed to determine these issues because there are credibility determinations that need to be made in order to properly answer those questions.

[30] Ms. D. is ultimately seeking the return of all three children to her care. She states that she loves the children very much and is prepared to work with the Society to ensure their safety and well-being.

[31] There is no genuine issue requiring a trial if I can reach a fair and just determination on the merits based on the evidence before me. The summary judgment process is appropriate where the evidence provided allows the judge to adjudicate the dispute fairly and justly in a timely, affordable, and proportionate manner. (Hryniak v. Mauldin, 2014 SCC 7 at paras 66-67).

[32] In this case, I find that the evidence provided on the motion allows me to adjudicate the dispute fairly and justly. The Society provided nine affidavits in support of the motion. In addition, M.P., I.D.’s father, and K.B. both provided affidavits in support of the motion. The children’s lawyer, Mr. Pender, provided the children’s views and preferences, which generally supported the Society’s motion, with the exception of requesting only one visit per week with Ms. D., instead of the two visits provided for in the Society’s motion. Ms. D. provided an extensive affidavit in which she detailed her disagreements with the evidence provided in the other affidavits supporting the motion.

[33] The affidavits in support of the motion for summary judgment contain a number of child statements. These are out of court statements which, if tendered for the proof of their contents, are hearsay and therefore prima facie inadmissible. However, I agree with the Society’s argument that some of the children’s statements are admissible as expressions of the children’s “state of mind,” which is an exception to the hearsay rule. I have been careful however, to consider only those statements made by the children in the moment of the experience.

[34] I have also taken into account the children’s lawyer’s statements about the children’s wishes and preferences. Indeed, s. 74(3) of the CYFSA requires the court to consider the views and preferences of the children. I have therefore, considered the preferences of the children, as expressed by their counsel.

[35] In her affidavit, Ms. D. states that K.B. has alienated the children from her by speaking negatively about her to the children. She states that a trial is needed to determine the truth of the matter. She does not disagree with all the evidence in the affidavits in support of the motion, but states that on the key issues of whether the children are in need of protection and whether it is in their best interests to be with K.B., credibility will be determinative.

[36] The fact that Ms. D. disagrees with the evidence in the affidavits in support of the motion does not prevent me from arriving at a just determination on the merits of this case. There is a significant amount of evidence in support of the motion, and it is consistent, thorough, and detailed. The weight of this evidence very strongly supports the findings of fact that I make in the next section of these reasons. Based on those facts, I have arrived at the conclusion that the three children are in need of protection and that it is in their best interests to be in their maternal grandmother’s care for six months under the Society’s supervision. I further conclude that a minimum of two visits per week between the mother and the children is in their best interests.

Findings of Fact

Mr. O’Q.’s Criminal Charges and Contact with the Children

[37] There is no dispute that Mr. O’Q. was charged with sexual offences involving minor children.

[38] Mr. O’Q. was court-ordered not to attend Ms. D.’s residence and not to be unsupervised with the children. Access to the father was to be supervised by the Society or a third party pre-approved by the Society, at the discretion of the Society in terms of location, duration, frequency and level of supervision, in keeping with the children’s wishes and best interests.

[39] Ms. D. states in her affidavit that Mr. O’Q. was never left alone with the children while in her care. I do not accept this statement. Ms. D.’s mother, K.B., states in her affidavit that she personally saw Mr. O’Q. alone with the children on numerous occasions. K.B. lives close to Ms. D.’s apartment and has seen Mr. O’Q. in the neighbourhood frequently in the past nine months. On the basis of what she saw, K.B. also believed that Mr. O’Q. stayed at Ms. D.’s home when the children were there, which he was not permitted to do. Supervision of his parenting time was to happen with someone other than Ms. D.

[40] K.B. provided a police report from August 26, 2024, in which the police reported that Mr. O’Q. told the police that he often stays with Ms. D. Mr. O’Q. was taken into custody at that time for uttering threats and breaching the conditions not to be in contact with Ms. D. and around the children.

[41] Ms. D. states that her mother, K.B., is not truthful about Mr. O’Q.’s actions. I do not accept this statement. K.B.’s evidence about Mr. O’Q. was corroborated by other evidence that was presented on the motion.

[42] In October 2023, K.B. and Ms. D. informed Child Protection Worker Priska Speck that A.D. had allegedly seen Mr. O’Q. masturbating (“playing with himself”) in the bathroom and that he had not told her to leave or close the door. There were also additional concerns that Mr. O’Q. had allegedly been “grooming” A.D. from previous Society involvement. The Society contacted the Ottawa Police Services (OPS) Sexual Assault and Child Abuse (“SACA”) Unit with the above concerns on October 27, 2023.

[43] Ms. D. did not deny this event in her affidavit but stated that it occurred prior to the charges being laid against Mr. O’Q. She also suggested that A.D. may have misunderstood Mr. O’Q. She stated that she did everything she could to get information about what happened.

[44] H.D. and A.D. were each individually interviewed by OPS Detective Hull on November 1, 2023. Child Protection Worker Portia Gadd was present during the interviews with the two girls. Both children made statements in Ms. Gadd’s presence that supported the claim that they were sometimes alone with Mr. O’Q.

[45] On November 20, 2023, Child Protection Workers, Ryley Freeman and Priska Speck visited Ms. D.’s home. Ryley Freeman observed Mr. O’Q. leaving Ms. D.’s apartment. The children were present. It was contrary to the temporary order of Justice Shelston for Mr. O’Q. to be in the home with the children under Ms. D.’s supervision. The Society had received multiple reports from various sources including Ottawa Community Housing and Ottawa Police Services that Mr. O’Q. was with the children alone.

[46] As a result, the Society initiated the removal of the three children to a place of safety, placing them with their maternal grandmother, K.B.

[47] I find as a fact that Ms. D. did leave the children alone with Mr. O’Q., contrary to the criminal conditions, and she also permitted them to be with her while Mr. O’Q. was present, contrary to the order of Justice Shelston dated November 6, 2023.

[48] Ms. D. states that she is no longer with Mr. O’Q. and therefore, there should not be any concerns that he will be with the children. However, as recently as two months ago, on August 25, 2024, Ms. D. was out with Mr. O’Q. She ended up passed out on a sidewalk and had to attend the hospital. Mr. O’Q. was charged that night with uttering threats against K.B. Ms. D. has very little recollection of the event.

Access Visits Between Ms. D. and the Children

[49] In her order of November 24, 2023, Justice Audet stipulated that the children were to have access to Ms. D. at the discretion of the Society in keeping with the best interests and wishes of the children, a minimum of three times a week with the level of supervision and the location to be determined by the Society.

[50] Some of the access visits between Ms. D. and the three children have gone well, according to the affidavits of the Society workers. Ms. D. has, at times, been very attentive to the children’s needs during the visits. However, other visits, particularly those done on short notice, have not gone well, according to the workers. Ms. D. blames the Society for those visits, stating that the rooms were not equipped with toys, that there were miscommunications about the times or that she wanted the visits to take place in a home.

[51] In January 2024, there were a high number of cancellations of the access visits by Ms. D. The children reported to K.B. and Society workers that they wondered and worried about whether the visits would happen each day.

[52] Ms. D. states in her affidavit that if she has missed visits, it has been due to health issues, namely seizures and liver problems leading to hospitalizations. She states that she is seeing her doctor regularly to treat her seizures. Ms. D. feels that she is being penalized for missing visits due to her health problems. However, those health problems are affecting her ability to attend access visits and ultimately to meet her parenting obligations. Unfortunately, Ms. D. has not provided any information about her medical conditions that would allay the concerns about her ability to safely parent the children.

[53] The Society attempted to move the access visits into the home in early February 2024. However, the Society received feedback from the school, K.B., the girls, and their lawyer that the girls were not comfortable with home visits.

[54] Ms. D. had difficulty following through on her visits with the children and as a result, did not have any access between mid-April and June 2024.

[55] During the month of June, several more access visits were scheduled. The girls sometimes refused to go, and other times went, and visits were positive with affectionate exchanges between the mother and children, according to the Society workers who were present.

[56] I find that K.B. and the Child Protection Workers have consistently encouraged the girls to visit their mother, even when the girls have expressed an unwillingness to attend the visits.

Work with Ms. D.

[57] The Society has attempted to work with Ms. D. to address her relationship with the girls and their fears about visiting her and returning home. She seems to focus a lot of the blame for the situation on other people and feels she is being treated unfairly. Ms. D.’s own affidavit speaks to her belief that others are at fault for the situation in which she presently finds herself.

[58] In her affidavit, Ms. D. states that her mother coaches the children to lie about her and tells them that their mother hates them. Ms. D. also states that K.B. is in an unstable relationship with a man who has criminal convictions; he is unsafe around the children. Ms. D. states that her brother helps care for the children. She states that her brother has a history of addictions, including overdosing on painkillers. Ms. D. contends that her brother has needles lying around in his place and he is not a safe individual for the children to be around.

[59] The Society has investigated Ms. D.’s concerns and does not have any worries with respect to K.B. or her son, who is not living with her. The Society meets frequently with the children in private to determine if there are any concerns about the way they have been treated by K.B., M.P. and K.B.’s son. There have been no substantiated concerns.

[60] Lately, the children have been consistently stating to their lawyer that they do not want to go back to their mother’s care. In the past, they have become very emotionally upset at school when faced with a visit to their mother’s. K.B. has been asked to come and take them home because they were so upset.

[61] Ms. D. has trouble regulating her emotions. She is sometimes able to control her emotions when she is around the children, but not consistently. At times, during her visits with the children, Ms. D. has had prolonged yelling exchanges with I.D. in the other two girls’ presence. She seems unable to control her emotions and the girls became very upset.

[62] Ms. D. has had and continues to have particular difficulty parenting I.D., whose behaviour can be challenging. Ms. D. has asked K.B. to care for I.D. for periods of time in the past when she has not felt up to the task I.D. has been diagnosed with ADHD, a processing delay and anxiety.

[63] A series of videos were produced that date back several years. They were taken by Ms. D. Ms. D. sent the videos to K.B. apparently to show how difficult I.D.’s behaviour is. In one of the videos, I.D. is seen begging her mother to stop video-recording her. Ms. D. refuses to do so and tells I.D. to wait until the police get there. Mr. O’Q. also tells her the police are coming.

[64] In another recording made by Ms. D. of an interaction between I.D., Ms. D. and Mr. O’Q., Mr. O’Q. states “yeah it’s (the video) for proof to the other people that it’s not us.” I.D. later says, “yeah but it is you guys, you both hit me” Ms. D. then states: “nobody’s hitting you today.” Ms. D. later says, “wait until the police get here.” In yet another video clip, Ms. D. tells I.D., who is trying to get her to stop recording her, “If you fuckin’ touch my phone, I’ll smack you.”

[65] I find Ms. D.’s behaviour in the videos involving I.D. to be very concerning. I.D. was clearly in a high state of emotional distress, yet Ms. D. was doing nothing to calm her down. In fact, Ms. D. escalated I.D.’s distress by threatening to smack her, claiming that the police were coming, calling her rude and refusing to stop recording I.D. when it was clearly upsetting her.

[66] Ms. D. responded to the video evidence by stating in her affidavit that she has never hit I.D. except for spanking her on the bum over her clothes. She acknowledged that there were better ways for her to behave but blamed the situation on the lack of resources that were provided to her at the time to cope with I.D.’s behaviour. I acknowledge that the video evidence dates back several years. However, the evidence presented on this motion for summary judgment convinces me that the difficult relationship between Ms. D. and I.D. continues to this day.

[67] Ms. D. has stated that she is willing to go to counselling with I.D. to improve that relationship. But she has not committed to getting help for her own emotional dysregulation. She continues to believe that her difficulties regulating her emotions are caused by other people’s behaviour. She states that the other people in the children’s lives must also get counselling and that it will not help if she is the only one forced to get counselling.

Are the Children In Need of Protection?

[68] The court determines whether a child is “in need of protection” by applying the criteria in s. 74(2) of the CYFSA. In this case, the Society’s application alleged that the children are in need of protection for the following reasons:

• There is a risk that the children are likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child (s. 74(2)(b));

• There is a risk that the children, A.D. and H.D., are likely to be sexually abused or sexually exploited, by the person having charge of the children or by another person where the person having charge knows of should know of the possibility of sexual abuse or sexual exploitation and fails to protect the children (s. 74(2)(d)).

• there is a risk that the children are likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the children’s parent or the person having charge of the children (s. 74(2)(h).

Risk of Physical Harm

[69] Under Section 74(2)(b) of the CYFSA, the Society has the onus to prove, on balance of probabilities, that there is a risk of physical harm. To prove a risk of physical harm, the Society must prove that the risk is real and likely, not speculative. It is not necessary for the Society to prove that the parent intended to cause harm – physical harm can be caused by neglect or error in judgment. However, the risk must be more than trifling physical harm. (Children’s Aid Society of Toronto v. E.B., 2018 ONCJ 333 at para 33)

[70] In the present case, I conclude that there is a real risk of physical harm to the children if left in the care of Ms. D. My conclusion is based on the fact that Ms. D.’s mental and physical health issues are not sufficiently resolved at this time to ensure that she would not neglect the children when she is not well. There is a real risk, in my view, that the children would experience physical harm if Ms. D. were unable to attend to properly attend to their needs and to protect them from danger.

Risk of Sexual Abuse

[71] With respect to section 74(2)(d) of the CYFSA, the Society must prove, on a balance of probabilities that:

a. There is a risk that the child is likely to sexually abused or sexually exploited;

b. That the person having charge of the child knows or should know about the possibility of sexual abuse or sexual exploitation; and

c. The person having charge of the child will fail to protect the child. (Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251 at para 27).

[72] In the present case, I find, on a balance of probabilities, that there is a risk of sexual abuse of the children by Mr. O’Q.

[73] In January 2023, the Society received an anonymous call from C.P. School reporting that Ms. D. had told the school administrator that Mr. O’Q. had raped her. The Child Protection Worker spoke with Ms. D. who confirmed that there was an incident where Mr. O’Q. had sexually assaulted her while she was having a seizure, and the children were in the apartment. Ms. D. called the police and reported the sexual assault and other abuse. Ms. D. did not deny that this happened in her affidavit.

[74] During a subsequent home visit by Child Protection Worker Priska Speck with K.B. and Ms. D. on January 26, 2023, both K.B. and Ms. D. expressed concern that Mr. O’Q. may have exposed himself to A.D. They told Ms. Speck that A.D. had described seeing him naked in the bathroom and wanting to leave. They expressed concerns that he would spend a lot of time with A.D. and be very nice to her, but not to H.D. The women discussed and agreed to a safety plan with Child Protection Worker Priska Speck, which included calling police if Mr. O’Q. attended the home. Ms. D. did not deny this event.

[75] Ms. D. acknowledged in her affidavit that Mr. O’Q. may have exposed himself to A.D. and may have allowed her to watch him masturbate. She stated that A.D. may have misunderstood what Mr. O’Q. was saying when she saw him masturbating in the bathroom, but I am concerned that Ms. D. was making excuses for Mr. O’Q.

[76] One of the conditions of Mr. O’Q.’s criminal charges was that he was not to be left alone with children under the age of 16. Justice Shelston ordered that Ms. D. not be permitted to supervise Mr. O’Q.’s time with the children. Nevertheless, I find that Ms. D. has permitted Mr. O’Q. to be in the home with her and the children and she has left the children alone with Mr. O’Q. She denies this and states that it will not happen in the future because she is no longer with Mr. O’Q. However, as noted above, Ms. D. has very recently been with Mr. O’Q. and was found unconscious on the sidewalk. Therefore, I think there is a high risk that Ms. D. will continue to associate with Mr. O’Q. and will not protect the children from the risk of sexual abuse by him.

[77] My concern about the risk of sexual abuse by Mr. O’Q. is all the greater, given Ms. D.’s poor state of health. She suffers from seizures that render her unconscious and unable to respond. It takes her some time to recover from a seizure. She alleged that Mr. O’Q. sexually assaulted her during one of her seizures. The children were apparently present when that happened. I find there is a serious risk that Ms. D. will not be able to protect the children from Mr. O’Q. in the event of a seizure.

Risk of Emotional Harm

[78] Regarding section 74(2)(h) of the CYFSA, evidence that the child is merely sad or experiencing some minor emotional unhappiness in the care of a parent is not sufficient for the Society to meet its burden of proof that the child is at risk of emotional harm. The evidence must show on a balance of probabilities that the harm to the child is “serious.” (Children’s Aid Society of Toronto v. E.B., 2018 ONCJ 333 at para 4)

[79] In the present case, the evidence convinces me that there is a real risk of emotional harm to the children if they return to Ms. D.’s care at this time. Ms. D. has, at times, demonstrated that she has the skills to be an attentive and caring mother. However, she has also demonstrated poor control over her emotions, a tendency to blame others, including her children, for her problems and unwillingness to engage with the supports needed to help her parent better. She has not attended all access visits as required and as a result, lost her visits for a period of time. She blames her health conditions for her poor attendance at some of the visits, but there too, Ms. D. has not provided any reassurances that the children are safe with her in spite of her seizure and liver problems. Given Ms. D.’s emotional and physical health problems, I find she is not able to ensure a safe home environment for the children at this time. There is a risk that she will not be able to care for the children and they will suffer from emotional neglect.

[80] Based on these findings, it would not be in the children’s best interests to return to Ms. D.’s care at the present time.

The Children’s Best Interests

[81] I turn now to a consideration of whether the Society’s proposed Plan of placing the children with K.B. for six months under the Society’s supervision is in the children’s best interests.

[82] The paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children, and accordingly, the focus of any case must be on the needs and interests of the children.

[83] An additional purpose of the Act is to consider the least disruptive course of action that is available and appropriate in a particular case to help a child, but only to the extent that they are consistent with the best interests, protection and well-being of the child.

[84] In determining the child's best interests, I must not only consider the evidence and apply it to the best interests factors set out in section 74(3) of the CYFSA, but I must also have regard to the Federal Act since the children have been found to be Inuit children.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent (s. 74(3)(c)(viii);

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

• the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent (s. 74(3)(c)(x), and

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

[88] For the following reasons, I find it is in the children’s best interests to be placed in the care of their maternal grandmother, K.B., for a period of six months, under the supervision of the Society and subject to the conditions set out in the draft order:

1. The primacy of family relationships and priority of placement.

[89] As noted above, the Federal Act prioritizes placement with the children’s parents, if it is in the children’s best interests to do so. If not, the next in order of priority would be a member of the children’s family.

[90] K.B. is Ms. D.’s mother. It is not in the children’s best interests to return to their mother’s care and this time and therefore, the next best option is the placement of the children with K.B.. This fulfills the prioritization of family placements under the Federal Act.

2. The children's Inuit identity and heritage.

[91] Although K.B. and Ms. D. disagree on whether the children’s Inuit heritage can be traced through the maternal grandmother, K.B. has consented to a finding that the children are Inuit. She has demonstrated a willingness to respect the children’s involvement with the Innuqatigiit Centre. She is committed to continuing research on the children’s heritage and to helping them to learn more about their heritage.

[92] In addition, K.B. is supportive of the relationship between the children and their mother, Ms. D., who identifies as Inuk. As noted above, Ms. D. does not agree that her mother is supportive of her. However, I find that the evidence establishes that K.B. has encouraged the children to visit their mother, even when they are reluctant. I accept K.B.’s statement that she wants the children to be able to return to their mother’s care, when she is able to provide safe, stable care. I believe that K.B. will work with the Society towards getting the children back into their mother’s care when it is safe to do so.

3. The children’s needs.

[93] Subsection 10(3)(b) of the Federal Act requires the court to consider the children's needs, given their age and stage of development, in determining whether their best interests will be met by placement in K.B.’s temporary care, subject to the Society’s supervision.

[94] As noted above, I.D. has special needs. She has been diagnosed with ADHD, a processing delay and anxiety. She needs stability and predictability. The other two children also have emotional issues relating to the upheaval in their young lives. They are seeing a counsellor at Crossroads Children’s Mental Health Centre. K.B. has brought the girls to every appointment. She has also made sure that their dental care was updated, something that had been lacking in Ms. D.’s care.

[95] K.B. has a consistent and stable routine with the girls. Their needs are being met with her. Her apartment is small, but the girls each have their own bed. K.B.’s plan of care is in the children’s best interests, in my view. Therefore, I find that this factor weighs in favour of the children remaining in K.B.’s temporary care.

4. The Nature and Strength of the Children’s Relationships

[96] Subsection 10(4)(c) of the Federal Act requires the court to consider the nature and strength of the children’s relationships with their parents, their care providers and any members of their family who play an important role in their lives in determining their best interests.

[97] I find that Ms. D. undermines the relationships between the children and their grandmother, K.B., and I.D.’s father, M.P.. This is not in the children’s best interests. The evidence does not support Ms. D.’s belief that K.B. and M.P. are harming the children and alienating them from her. M.P. was candid with the Society about an incident where he pulled I.D.’s sleeve when she was not listening to him. The Society has not verified any of the other concerns raised by Ms. D. about K.B. and M.P..

[98] The relationship between I.D. and her father is important. M.P. fears that if the children return to Ms. D.’s care now, she will prevent I.D. from seeing her father. K.B. also fears that Ms. D. would cut off her contact with the children. Based on Ms. D.’s statements in her affidavit that her mother is alienating the children from her, I think it is unlikely that she would support their relationship with their grandmother. And given Ms. D.’s negative statements about M.P., I think his fears of losing contact with I.D. if Ms. D. has full-time care of the children right now are well-founded. Thus, I find that the analysis of this factor also leads to the conclusion that the children’s best interests will be better met in K.B.’s care for the time being. Ms. D. has the power to turn this situation around, should she choose to do so.

5. The children’s views and preferences.

[99] Subsection 10(3)(e) of the Federal Act requires the court to consider the children's views and preferences, giving due weight to the children's age and maturity. The children’s lawyer states that the children consistently say that they do not wish to live with their mother at this time; they want to live with K.B. Although the two youngest children are still quite young (6 and 8 years of age), I.D. is 11 years of age and is able to state her concerns. I.D. does have special needs that may make it more difficult for her to have a clear understanding of the situation. However, none of the children have expressed any uncertainty about wishing to stay with K.B.

[100] The children have also stated that they wish to have only one visit per week with their mother. My understanding is that they have been disappointed when Ms. D. does not attend the visits. They also experience anxiety before the visits with their mother and this is hard on them.

[101] However, I note that the access visits with Ms. D. have generally been going better of late. According to the child protection workers who have been supervising the visits, Ms. D. has been attentive to the children’s needs, has been able to redirect them when they are fighting and has been calm around the children. The children have been expressing affection towards Ms. D., holding her hand and sitting closely with her. I find that it is important to keep this momentum going. While she may not be ready yet to assume full-time care of the children for the reasons set out in this decision, I find that the children are building a better rapport with their mother and need to continue doing so. Having a minimum of two visits per week with her will help to do that. Those visits can increase if Ms. D. is able to demonstrate consistency in attendance and in meeting the children’s needs during her visits.

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

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

[103] Ms. D. has shown a commitment to raising the children in accordance with Inuit customs and traditions. Although K.B. supports the children’s identification as Inuit, she states that she herself does not identify as Inuk. As the children’s grandmother, K.B. is providing continuity of care within the family circle. However, it is in the children’s best interests to have a strong sense of cultural belonging and continuity of care within the Inuit community. K.B. has shown a sensitivity to that in accepting the children’s self-identification.

7. Family Violence and Legal Proceedings

[104] Subsections 10(4)(g) of the Federal Act requires the court to examine any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child. Subsection 10(4)(g) of the Federal Act requires the court to consider any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[105] The children have been exposed to the threat of physical violence by Ms. D. In the videos, which are dated, Ms. D. threatened to smack I.D. In addition, the children have been exposed to extreme emotional conflict between Ms. D. and her mother. A.D. may also have been exposed to sexual harm by Mr. O’Q.

[106] There may be a risk that remaining in K.B.’s care for six months will further damage the relationship between K.B. and Ms. D., thereby putting the children at risk of further exposure to conflict. However, the alternative of being returned to Ms. D.’s care at this time is not acceptable, given my findings of the children’s need for protection. I am satisfied that K.B. is committed to ensuring that the children are protected from all forms of violence, including emotional conflict between her and Ms. D.

[107] Mr. O’Q. is facing criminal prosecution for charges of sexual offences against a minor. He has shown a tendency to disregard the conditions arising from those charges and has had unsupervised or improperly supervised contact with the children. This increases the need for them to be in a protective environment where the chances are low that they will be in contact with Mr. O’Q. K.B. is more likely to provide that protective environment at this time.

8. The Effects on the Children of Delay in the Disposition of the Case

[108] Subsection 74(c)(ix) of the CYFSA requires a consideration of the effects on the children of delays in the disposition of the case. The Society’s order for the children to remain in K.B.’s care is only for another six months. Although the children have already been out of their mother’s care for a year, I find that another six months will not significantly contribute to a deterioration in their relationship with their mother, provided she is diligent in attending her visits with them and in working with the Society to increase those visits.

9. The Risk of Harm if the Children are Kept out of their Mother’s Care

[109] Subsection 74(3)(c)(x) of the CYFSA mandates a consideration of the risk that the child may suffer harm by being removed from, kept away from, returned to or allowed to remain in the care of a parent. In this case, the risk of harm from returning the children to their mother’s care is greater than the risk of keeping them in K.B.’s care for another six months.

10. The Degree of Risk that Justified the Finding that the Children are in Need of Protection

[110] Finally, subsection 74(3)(c)(xi) of the CYFSA requires the court to consider whether the degree of risk that justified the finding that the children were in need of protection has changed such that it would be in the children's best interests to vary the final order. In the present case, I find that the degree of risk to the children has not changed substantially. Ms. D. continues to have significant health difficulties. She has not provided evidence of the treatment she is receiving nor committed to ongoing psychotherapy to deal with her emotional volatility.

[111] Ms. D. states that she is no longer in a relationship with Mr. O’Q. and therefore, the children will not be exposed to potential sexual interference. However, for the reasons set out above, I am not convinced that Ms. D. has ended her relationship with Mr. O’Q.

[112] Therefore, I find that while her access visits with the children have been going better, Ms. D. has still not addressed the issues that created the risks of having the children in her care.

Conclusion and Orders

[113] The children are in need of protection. It is not in their best interests to return to Ms. D.’s care at this time. Ms. D. needs to demonstrate that her mental and physical health are sufficiently stable that she can consistently meet the children’s needs and that she can protect them from danger.

[114] The Society’s motion for summary judgment is granted. I make the following Order, pursuant to Rule 16 of the Family Law Rules, O.Reg. 114/99 as am:

(a) There is no genuine issue for trial in this matter and this Protection Application can be adjudicated by means of a Summary Judgment Motion.

[115] I make the following findings pursuant to s. 74(2)(b)(i); 74(2)(b)(ii); 74(2)(d); 74(2)(h) of the CYFSA.

a. A finding that the children the children I.G., A.D. and H.D. are children in need of protection.

[116] I make the following orders, pursuant to s. 101(1)(1) of the CYFSA:

Placement of the children I.G.; A.D. and H.D. in the care of K.B., subject to the supervision of the Children’s Aid Society of Ottawa, for a period of six months, under the following terms and conditions:

Conditions for the grandmother, K.B.:

a. K.B. shall allow Society worker regular and private access to the children; and, upon consultation with counsel if desired, sign consent forms, allowing the Society and various professionals and workers involved with the family to share information about their involvement and observations.

b. K.B. shall participate in any safety network meetings as requested by the Society and/or the parents.

c. K.B. shall support, encourage and make the children available to attend any planned access visits with their parents or extended family members.

d. K.B. shall ensure any communication with or about the parents is positive.

e. K.B. shall ensure that the children are not exposed to any adults who are intoxicated or under the influence of any substance.

f. K.B. shall ensure the children are not exposed to adult conflict.

Conditions for the Mother, N.D.:

a. The Mother shall work cooperatively with the Society by: Meeting regularly; notifying the Society in advance of any change of contact information or living arrangements; allowing the Child Protection Workers regular access to the Children in the home and community; and, upon consultation with Counsel, signing consent forms, to allow the Society and involved professionals to share information about their involvement with the family;

b. The Mother shall work with the Society to strengthen her support network and develop a plan to ensure that she has supports and respite care;

c. The Mother shall ensure that the Children are never left unsupervised with the Father;

d. The Mother shall ensure that the Children are never exposed to adult conflict; and

e. The Mother shall not supervise the Father’s access with the Children.

Conditions for the Father, B. O’Q.:

a. The Father shall not attend the Mother’s residence; and

b. The Father shall not be unsupervised with the Children.

I. I order that access to Mr. O’Q. shall be supervised by the Society or a third party pre-approved by the Society, at the discretion of the Society in terms of location, duration, frequency and level of supervision, in keeping with the Children’s wishes and best interests, pursuant to s.104 of the CYFSA.

II. I order that access between M.P. and I.D. shall occur as arranged between him and K.B., at minimum, weekends from Friday after school until Sunday evenings, and in accordance with I.D.’s wishes and best interests, pursuant to s.104 of the CYFSA.

III. I order that access to the Mother shall occur at the discretion of the Children’s Aid Society of Ottawa, a minimum of twice per week, keeping with the best interests and wishes of the children, with duration, level of supervision and location to be at the discretion of the Children’s Aid Society of Ottawa, pursuant to s.104 of the CYFSA.

IV. I further order that in the event that the Mother misses three (3) consecutive access visits without a reasonable explanation, access shall be suspended until they have met with the child protection worker to address and resolve the issue of the missed visits.

Jensen J. Released: November 7, 2024