2016 ONCJ 709, 2016 ONCJ 709

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows: 45.-

(7) Order excluding media representatives or prohibiting publication.- The court may make an order, (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, .. . , would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult.- 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. 85.-

(3) Idem.- A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT FILE No.: 117/14 0001 CITATION: Windsor-Essex Children’s Aid Society v. A.D ., 2016 ONCJ 709 ONTARIO COURT OF JUSTICE BETWEEN: (

a) WINDSOR-ESSEX CHILDREN’S AID SOCIETY Applicant (b) — AND —

(

c) A.D., R.G., C.B. AND F.L.F.N. Respondents AND BETWEEN: COURT FILE No.: 117/14 00A1 (

d) WINDSOR-ESSEX CHILDREN’S AID SOCIETY Applicant (e) — AND — (

f) A.D., R.G., AND F.L.F.N. Respondents David Ziriada................................................................................... Counsel for the Applicant Paul Mingay..................................................................................................... Counsel for A.D. R.G.......................................................................................................................... did not attend F.L.F.N......................................................................................................... withdrew from case Before Justice Barry M.

Tobin Heard on October 5, 6, 7, and 13, 2016 Reasons for Judgment released October 21, 2016 TOBIN J. REASONS FOR JUDGMENT 1: Introduction 1.1 The cases and the parties [ 1 ] The Society started a Status Review Application on January 28, 2015 with respect to two children. It also started and amended a Child Protection Application that was issued July 9, 2015. [ 2 ] In the Status Review Application the Respondents are:

a) A.D.: She is the mother of two children named in the application as B.A.A.B., born … 2011, (“B.B.”) and J.C.L.B., born … 2012, (“J.B.”). She filed an answer and plan of care and participated in this hearing represented by counsel.

b) R.G.: He is a party because he is a parent of the children within the meaning of the Child and Family Services Act (“ CFSA” ). He cohabitated with the mother. He did not file an answer in this Status Review Application.

c) The Respondent, C.B., is the biological father of the two children, B.B. and J.B. He did not file an answer in this Status Review Application.

d) The F.L.F.N. is a band (the “Band”). In the Child Protection Application pertaining to B.B. and J.B., a statutory finding was made that both children had native status and that their band or native community was F.L.F.N. The Band did file an answer in this Status Review Application but filed a Notice of Withdrawal, dated October 16, 2015.

As will be addressed later in these reasons, the Band came to the conclusion that the children were not entitled to be registered as members of it. [ 3 ] In the Status Review Application, the Society pleaded that the children remained in need of protection on the basis of subclause 37(2)(b)(i).

It is the Society’s allegation that there is risk that the children are likely to suffer physical harm inflicted by the person having charge of the children or caused by that person’s failure to care for, provide for, supervise or protect them. [ 4 ] The Child Protection Application started by the Society concerns the child K.D., (“K.D.”) born … 2015. [ 5 ] In this Child Protection Application the Respondents are:

a) A.D.: She is K.D.’s mother. She filed an answer and plan of care and participated in this hearing represented by counsel.

b) R.G.: He is K.D.’s biological father. He filed an answer and plan of care in this Child Protection Application but did not participate in this hearing. He did not attend, nor did he have anyone do so on his behalf.

c) F.L.F.N. did file an answer but as was the case in the Status Review Application, it filed a Notice of Withdrawal, dated October 15, 2015. [ 6 ] In this Child Protection Application, the Society seeks a finding pursuant to subclause 37(2)(b)(

i) just as is the case in the Status Review Application. [ 7 ] At the hearing, Mr. Mingay on behalf of the mother, conceded that B.B. and J.B. remain in need of protection and that K.D. is in need of protection. The issue for the mother was the basis upon which the continued finding and finding are to be made. [ 8 ] The two cases were heard at the same time. The evidence tendered applied to both. [ 9 ] Pursuant to the Order of Justice Phillips dated June 21, 2016, made at a trial management conference, the cases proceeded on a bifurcated basis.

While the Order made by Justice Phillips at the trial management conference refers only to the child protection case concerning K.D., counsel advised and agreed that the trial management conference Order applied to both cases. 2: Statutory Findings 2.1 Prior statutory findings: B.B. and J.B. [ 10 ] Subsection 47(2) of the CFSA requires the court to determine the following as soon as practicable and in any event, before determining whether a child is in need of protection: (

a) the child’s name and age; (

b) the religious faith, if any, in which the child is being raised; (

c) whether the child is an Indian or a native person and, if so, the child’s band or native community; and (

d) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed. [ 11 ] By Order of this court dated October 14, 2014, statutory findings were made for B.B. and J.B. in the Child Protection Application that pertained to them. [ 12 ] In that Order, B.B.’s surname was then determined to be “B.” On this Status Review Application, the Society filed as Exhibit Number 1 B.B.’s Delayed Statement of Birth.

It discloses that his surname is “D.” The statutory finding contained in the October 14, 2014 Order is changed accordingly. 2.2 Statutory findings: K.D. [ 13 ] I make the following statutory findings for K.D.: • K.G.D.G., born … 2015. • She has no known religious faith. • She was apprehended and brought into care in Essex County. 2.3 Indian or native status [ 14 ] The determination of Indian or native status was contested.

This was the case for all three children. [ 15 ] In the Order of October 14, 2014, both B.B. and J.B. were found to have Indian status with their band being F.L.F.N. [ 16 ] As stated above, the Band was named as a Respondent in both the Status Review Application for B.B. and J.B. and the Child Protection Application for K.D. In both cases the Band filed an answer but both were withdrawn by a Notice of Withdrawal, dated October 16, 2015. [ 17 ] These are the facts as it pertains to the statutory finding:

a) The mother has status as an Indian.

b) She is a member of F.L.F.N.

c) The mother’s father did not have Indian or native status.

d) The mother’s mother was a member of the Band.

e) The father of B.B. and J.B. does not have Indian or native status. He is not entitled to be registered under the Indian Act .

f) The father of K.D. does not have Indian or native status. He is not entitled to be registered under the Indian Act .

g) None of the children have lived at F.L.F.N.

h) The F.L.F.N. provided a letter dated October 29, 2015 under the signature of its Membership Clerk, M.S. This letter was admitted in evidence under the principled exception to the hearsay rule. The letter states as follows: “October 29, 2015 To Whom It May Concern; RE: [A.D.] This letter is to confirm that [A.D.] is a member of [F.L.F.N.] She is registered under section 6(2). Persons born to a parent who is registered or entitled to be registered under section 6(2) are not eligible for registration unless their other parent is also someone who is registered or entitled to be registered under the Indian Act .

Therefore [A.D.’s] children do not qualify to be registered unless the other parent is of treaty status. If you require further information, please do not hesitate to contact me at (XXX) XXX-XXXX. Thank you. Sincerely, F.L.F.N.s Membership Department”. [ 18 ] Counsel consented, at my request, to a member of the Band attending the hearing by telephone to give evidence. Subsequent to giving this consent, counsel advised that neither of them could arrange for the telephone attendance to take place. 2.3.1 Statutory provisions – Indian and native status [ 19 ] The CFSA contains the following

definitions at ss. 2(1): “Indian” has the same meaning as in the Indian Act (Canada). “Native community” means a community designated by the Minister under

section 209 of

Part X (Indian and Native Child and Family Services). “Native person” means a person who is a member of a native community but is not a member of a band, and “native child” has a corresponding meaning. “Band” has the same meaning as in the Indian Act (Canada). [ 20 ] The Indian Act , R.S.C. 1985, c.I-5 contains the following definition: “Indian" means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian. [ 21 ] Registration or entitlement to registration as an Indian is dealt with at sections 6 and 7 of the Indian Act . 6. 6(1) Persons entitled to be registered Subject to

section 7 , a person is entitled to be registered if (

a) that person was registered or entitled to be registered immediately prior to April 17, 1985; (

b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act; (

c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(

b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (c.1) that person (

i) is a person whose mother's name was, as a result of the mother's marriage, omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under paragraph 12(1)(

b) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions, (ii) is a person whose other parent is not entitled to be registered or, if no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred prior to September 4, 1951, (iii) was born on or after the day on which the marriage referred to in subparagraph (

i) occurred and, unless the person's parents married

each other prior to April 17, 1985, was born prior to that date, and (iv) had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted; (

d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (

e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, (

i) under

section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or (ii) under

section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject- matter as that section; or (

f) that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section. 6(2) Idem Subject to

section 7 , a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1). 6(3) Deeming provision For the purposes of paragraph (1)(

f) and subsection (2), (

a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a); (

b) a person described in paragraph (1)(c), (d), (e), or (

f) or subsection (2) who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that provision; and (

c) a person described in paragraph (1)(c.1) and who was no longer living on the day on which that paragraph comes into force is deemed to be entitled to be registered under that paragraph. 7. 7(1) Persons not entitled to be registered The following persons are not entitled to be registered: (

a) a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or (

b) a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered. 7(2) Exception Paragraph (1)(

a) does not apply in respect of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act. 7(3) Idem Paragraph (1)(

b) does not apply in respect of the child of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act. 2.3.2 Position of the parties [ 22 ] The position of the Society is that of the Band. Because the mother is registered under ss. 6(2) of the Indian Act , her children may not be registered unless their father is entitled to be registered. The Society also submits that the children do not meet the definition of a native person under the Act .

They are not members of a community designated by the Minister under s. 209 of the CFSA . [ 23 ] The mother’s position is that the children are Indian or native persons because she is, as was her mother. Her position seems to be rooted in her ethnicity. Her counsel offered no helpful authority for her position. 2.3.3 Guiding principles [ 24 ] In Children’s Aid Society, Region of Halton v. M.(M) 2016 ONCJ 323 , Justice Starr addressed in a comprehensive manner the determination of whether three children were Indian or native persons for the purposes of the CFSA .

The court articulated the following “guiding principles from the jurisprudence on the legislative

definitions.” The following are those applicable in this case: 1. Classification of Indigenous people of Canada has little to do with legal

definitions or legal analysis. 2. The definition of Indian and native person within the CFSA are very restrictive.

3. The CFSA defines Indian not by ethnicity, but by status or entitlement to status. 4. Native person and native community are strictly defined in the CFSA and it is not rooted in ethnicity or ethnic origins. 5. There is no list of native communities that has been published pursuant to s. 209 of the CFSA . 6. The definition of Indian and native persons within the CFSA have not been expanded. The

definitions do not include non-status Indians. 2.3.4 Analysis [ 25 ] In this case I find that the three children are not Indian as that term is defined in the CFSA . The evidence from the Band is unequivocal and not contradicted. The children are not registered, nor are they entitled to be registered. The mother was unable to demonstrate otherwise. These facts, when considered with the very restrictive definition provided for in the CFSA , compel this finding. [ 26 ] I also find that the three children do not meet the CFSA definition of native persons.

The evidence is that the Band is not a native community within the meaning of the CFSA . [ 27 ] For the purposes of making the required statutory findings, I find that none of the children are Indian or native persons. The October 14, 2014 Order in respect of B.B. and J.B. shall be varied accordingly. [ 28 ] I wish to add that it is of concern that this issue – whether the children had Indian or native status – was left to be addressed at the hearing of these cases. The CFSA requires at ss. 47(2) that this issue be determined as soon as practicable.

A good reason for this requirement is to ensure that the Society can comply with the purposes of the Act which include providing appropriate services and engaging with supportive family, bands and community. The Society was aware that the Indian and native status of these children was an issue for almost a year.

It would have caused significant prejudice to the children had they been determined to be Indian or native persons and the Society was not in a position to address its obligations to them under the CFSA . [ 29 ] As Justice Starr pointed out in the Halton case at paragraph 3: “The determination is an important one.

Those children who fit within the definitional criteria gain automatic access to the benefits, special treatment, and special considerations the Act affords to Indian and native children.” [ 30 ] The Society must do better in the future. 3: Children in Need of Protection [ 31 ] On what basis are the three children to be found in need of protection? That is the issue raised in this hearing. 3.1 Facts [ 32 ] The children, B.B. and J.B., were found to be in need of protection by me on October 14, 2014 following a consent hearing. [ 33 ] The statutory basis for the finding was subclause 37(2)(b)(i).

The reasons for the finding were as follows: • Mother left the children with the father for an extended period. She did not return when expected. • She did not have a stable residence. • Her home, when she had one, was unsanitary. • She did not abide by a safety plan. • She left the children outside in the winter without proper clothing – twice. • She failed to exercise access on a regular basis. [ 34 ] Following the finding, a four month Society Wardship Order was made. The mother was granted access to the children.

Subsequently, a s. 54 endorsement was made directing a parenting capacity assessment be conducted by Dr. J. McGrory. [ 35 ] The Society’s Plan of Care at the time the October 14, 2014 Order was made was dated May 27, 2014. [ 36 ] The Society’s expectations of the Respondents were set out at paragraph 5 of this Plan of Care.

The Respondents complied with a number of expectations namely: • They kept the Society notified of their up-to-date addresses and telephone numbers. • They allowed Society workers scheduled and unscheduled access to their home. • They signed all releases requested. • They provided the names and dates of birth for all persons who resided in their home for any period of time. • The mother participated in a parenting program.

• She participated in a parenting capacity assessment. 3.1.1 Mother’s “on and off” relationship with R.G. [ 37 ] Subsequent to finding B.B. and J.B. in need of protection, the mother and R.G. remained in a relationship. They continued to cohabit on an “on and off” basis. [ 38 ] During the time the parenting capacity assessment was being conducted (November 2014 to March 2015) the mother and R.G. cohabited and were presenting a plan together. At some point during the conduct of the parenting capacity assessment, the mother advised Dr.

McGrory that R.G. was no longer a part of her plan. [ 39 ] In September 2015 the mother was staying at Hiatus House, a women’s shelter in Windsor. [ 40 ] On October 23, 2015, police officers from the Windsor Police Service were dispatched in regards to a domestic complaint at the mother’s apartment. The mother told an officer: 1. R.G. came to her apartment at 11:25 a.m. 2. She told R.G. she was going to confess to the CAS that they were seeing the child, K.D., at the child’s paternal great grandmother’s home. 3. R.G. became inflamed and he began destroying her apartment.

He threatened to break her neck if she told. [ 41 ] It was not clear to the officers if R.G. lived there – he still had clothes and mail at the premises. [ 42 ] On May 11, 2016 at 5:30 a.m. police attended at the mother’s residence. The mother answered the door. She was crying. The officer saw a one inch cut to the top-left side of her forehead. The mother told the police office that R.G. had thrown something at her and struck her in the forehead. They had had an argument. She said she terminated their relationship. She would not cooperate further with the police.

She did not want him charged, nor would she allow photos of her injuries to be taken. She would not provide a statement, nor would she provide identification. She only wanted R.G. to be sober. [ 43 ] On July 4, 2016, the worker Rebecca Schofield met with both the mother and R.G. They confirmed to the worker that they were living together. [ 44 ] By early September 2016 the mother’s plan was to move on October 1, 2016 to Our Lady of Guadeloupe Home. This is a home where women who are about to or who have given birth may reside for a period of time safely.

It was again her intention to sever her relationship with R.G. According to the mother, he had outstanding issues he needed to address. [ 45 ] On September 11, 2016 while the mother was at church, R.G. got inside her apartment in a manner unknown to her. He had been beaten up. She found him in her bed and she cared for him until the next day when she and some of his family members took him to the hospital. In her evidence that was confusing, the mother told the worker that she was going to reinstate or put into place a “no contact order between them”.

However, she was going to stay at the apartment with R.G. until she left for Our Lady of Guadalupe on October 1, 2016. [ 46 ] At the time of the hearing of this motion, the mother was residing at W[…] Street East, Windsor. Her evidence was, she is no longer in a relationship with R.G. However, R.G.’s name was on the lease, at least for a short period of time. 3.1.2 Services not engaged in by the mother [ 47 ] During the term of the existing order, the mother was expected to complete certain services and take certain steps.

The evidence of the Society, which I accept, is that the following services and steps were not taken: 1. The mother was to participate in a parenting skills course that would include budgeting, and learning age-appropriate expectations and scheduled routines. 2. Acquire and maintain appropriate housing. 3. Address issues of domestic violence. [ 48 ] The evidence discloses and I find that even though she attended at a Triple P Parenting Program, the mother has not yet met these expectations.

Based on observations at access the mother has not yet been able to demonstrate a transfer of learning, or that she has integrated the skills taught at the parenting program into her parenting skills. [ 49 ] The mother acknowledged having had a substance abuse problem during the term of the Order. [ 50 ] The mother has not yet addressed in a comprehensive way the steps that are to be taken so that she may maintain sobriety, including attending for treatment and arranging for after-care planning.

The mother attended at House of Sophrosyne, a residential treatment facility, twice in the past year but did not complete the program either time. [ 51 ] R.G. did not participate in a parenting capacity assessment. [ 52 ] One of the recommendations of Dr. McGrory made in his parenting capacity assessment was that the mother “might benefit from a psychiatric consultation to determine if psychotropic medications might address symptoms of previously diagnosed ADHD and post-traumatic stress disorder.” She has not done so. She has not been able to secure a referral.

I also take into account that the Society has not helped the mother secure this referral. They left it to her and she has been unable to do so.

3.1.3 Services engaged in by the mother [53] To the mother’s credit, she has engaged in additional services through Metis Nation of Ontario but none of the serviceshave been completed, and with the Can-Am Friendship Centre. She was also engaged with Aboriginal Children’s Resource Centre inApril 2015 for a pre-natal program. 3.2 Children’s time in care [54] K.D. was apprehended on … 2015, the day after her birth.

She has been in the continuous care of the Society since thatdate. [55] B.B. and J.B. have been in Society care since February 26, 2014. 3.3 Legal Considerations – finding in need of protection [56] Where the Society alleges risk of physical harm as the basis for a finding or continued finding that a child is in need ofprotection, it must prove causation by act, omission or pattern: Jewish Child and Family Services v. K. 2008 ONCJ 774 affirmed at 2009ONCA 903. [57] The risk of harm must be real and likely, not speculative: Children’s Aid Society of Rainy River v.

B. 2006 ONCJ 458. [58] A child may be at risk even if the conduct is not directed specifically toward that child: Catholic Children’s Aid Societyof Metropolitan Toronto v. O. . [59] Where a parent abuses drugs or alcohol the child is at risk. [60] Child protection proceedings are unlike ordinary civil proceedings.

The court can choose a flexible approach that wouldadmit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all. [61] Finally, and specifically with reference to K.D., CFSA s. 50(1) allows a consideration of past conduct towards any child. In this case, the past parenting relates to B.B. and J.B. 3.4 Analysis [62] I find that the past conduct described in these reasons with respect to B.B. and K.D. inform the basis upon which K.D. canbe found in need of protection. [63] I find that:

a) B.B. and J.B. remain in need of protection; and

b) K.D. is in need of protection. 3.4.1 Domestic violence [64] R.G. has not addressed his propensity toward domestic violence. [65] The mother continues to have an on and off relationship with R.G. that remained troubled and included incidents ofdomestic violence. The mother is pregnant with her fourth child. R.G. is the father. [66] The mother has not been able to demonstrate that she has or can protect herself and the children from exposure todomestic violence. 3.4.2 Parenting skills [67] The mother has not engaged in a significant or successful manner with services to enhance her parenting skills.

This isevident from the observations made by Society workers at access visits. Visits are described as disorganized. 3.4.3 Substance abuse [68] The mother has not yet been able to successfully complete a substance abuse program. 3.4.4 Mental health [69] The mother has not addressed with a psychiatrist whether further treatment for her ADHD and post-traumatic stressdisorder would be of assistance to her. 3.4.5 Stable residence [70] It is not clear that the mother has a stable and secure residence. She moved twice during the term of the Order andintends to move again.

One of her recent plans was to move to Our Lady of Guadalupe and the other was to move to F.L.F.N. in Alberta. 3.4.6 Sustain services [71] While the mother does want to demonstrate to the Society that she can be protective, she has not been able to sustain theservices that are needed or to integrate what she has been taught into her skillset as a parent.

[72] It is for these reasons that I find that B.B. and J.B. remain in need of protection and J.B. is in need of protection, pursuantto subclause 37(2)(b)(

i) of the Child and Family Services Act. 4: Disposition [73] Having found that the children are/remain in need of protection, I turn to the issue of disposition. [74] The Act provides a statutory pathway that is to be followed in a child protection application: See L.(R.) v. Children's AidSociety of Metropolitan Toronto, (ON SC), [1995] O.J. No. 119 and Children’s Aid Society of Toronto v. T.L. 2010ONSC 1376 , [2010] O.J.

No. 942 (SCJ). [75] If the children remain in need of protection the Court must then determine if a Court Order is necessary to protect thechild in the future: See CFSA ss. 57(1) and (9). [76] For the reasons that follow, I am satisfied that an Order is necessary to protect the children in the future. [77] The next step is to consider which one of the Orders under ss. 57(1), ¶ 1, 2, 3 or 4 or s. 57.1[1] should be made in thebest interests of the child. The options in subsection 57(1) are: 57.

(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary toprotect the child in the future, the court shall make one of the following orders or an order under

section 57.1, in the child’s bestinterests: 1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of thesociety, for a specified period of at least three months and not more than 12 months. 2. That the child be made a ward of the society and be placed in its care and custody for a specified period notexceeding twelve months. 3. That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires undersubsection 71 (1), and be placed in the care of the society. 4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to aparent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. [78] It is necessary to consider the circumstances enumerated in ss. 37(3) of the Act when determining the child's bestinterests: See CFSA ss. 57(1). Subsection 37(3) provides as follows: 37

(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 take intoconsideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member ofthe child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8.

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. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care ofa parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant circumstance. [79] In determining the best interests of the child, the Court must assess the degree to which the risk concerns that existed atthe time of the apprehension still exist today. This must be examined from the child's perspective. See Catholic Children's Aid Society ofMetropolitan Toronto v. M.(C.) (SCC), [1994] 2 S.C.R. 165 (S.C.C.)

[80] The Court must consider what efforts the society or another society or person has made to assist the child before theintervention under

Part III of the Act: See CFSA ss. 57(2). [81] Before making an Order removing the child from a parent, the court must enquire into the least disruptive alternativesthat would adequately protect the child: See CFSA ss. 57(3). [82] If the child is to be removed from a parent's care, the court is to consider whether there are family or communityplacements before making a society or Crown wardship order: See CFSA ss. 57(4). [83] Subsection 57(1) of the Act is limited by

section 70 of the Act, which provides that the court shall not make an Order forsociety wardship that results in a child being a society ward for a period exceeding 12 months, if the child is less than six years old onthe day the order is made, or a period exceeding 24 months, if the child is six years old or older on the day the order is made, unless thetime is extended as provided in subsection 70(4).

This subsection of the Act gives the Court discretion to extend the time periods aboveby six months, if it is in the child's best interests to do so. [84] There is no order that is more profound than a Crown wardship order that permanently removes a child from the care of aparent. A court must exercise such a power only with the highest degree of caution and only on the basis of the most compellingevidence and only after a careful review of all other possible remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. G.(J.), [1996] O.J. No. 1394 (Ont.

Div.Ct.). [85] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal processnot be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of anissue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child.

There must be anarguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society'sremoval of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. H. (R.), (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.). [86] I have also considered the primary and additional purposes set out in

Section 1 of the Act. The paramount purpose is topromote the best interests, protection and wellbeing of the child. The additional purposes include recognizing the autonomy of thefamily unit and providing help for them, exercising the least disruptive course of action that is available, providing services for the childthat respects their need for care and continuity. 4.2 Services Provided [87] The services provided with respect to the children include the following:

a) The Society maintained an open file for the mother as caregiver since September 2012.

b) The mother allowed Society workers into her home for a brief period when she decided to no longer work voluntarily with theSociety.

c) The Society provided information on programs available in the community, such as the Family Wellbeing Program, Children First,and Health Babies Health Children Program offered through the Health Unit.

d) The Society worker addressed with the mother the issue of the children not having up-to-date medical care on an ongoing basis. Referrals or advice regarding family services available at Hiatus House, John Howard Society, Can-Am Indian Friendship Centre, MateNation of Ontario, medical professionals, Aboriginal Children’s Resource Centre, House of Sophrosyne and Brentwood were had.

e) Society provided transportation to service providers.

f) A safety plan was implemented requiring the mother to maintain adequate supervision of the children. 5: Community or Family Plans [88] The Society placed K.D. in the care of her paternal great-grandmother.

K.D. has been in her care since she was two daysold. [89] The Society has explored placing B.B. and J.B. with relatives of the mother who reside at F.L.F.N. [90] I am satisfied the Society has met its statutory mandate to explore alternate community and family plans for the children. [91] The only plans presented at this hearing were those of the Society and the mother. 6: The Children 6.1 B.B. [92] B.B. is now five years old and attends senior kindergarten.

He is healthy and has reached his age-appropriatedevelopmental milestones. [93] B.B.’s children’s services worker, Jennifer Lister, describes B.B. as a “very sweet, engaging young man. [He] hasmatured over the time I have worked with him. He is a very affectionate child who thrives in a stable and structured situation.” [94] The worker and the foster parents have observed that B.B. has a hard time adjusting to the inconsistent exercise of accessby his mother and to the recent change in his foster home.

[ 95 ] Coincident with not having access visits or after some access visits that took place, B.B. has exhibited aggressive behaviour at school and in foster care. With his most recent change in foster home he has experienced toileting accidents at school. [ 96 ] The Society worker has observed that when there has been extended periods of missed access, B.B.’s troubling behaviour is not evident. [ 97 ] B.B. does enjoy access with his mother. He calls her by her first name. 6.2 J.B. [ 98 ] J.B. is four years of age and attends junior kindergarten.

She is healthy and meeting her age-appropriate developmental milestones. [ 99 ] J.B. has struggled with inconsistent exercise of access with her mother and with the change in her foster home. [ 100 ] She does not have any special needs at this time. According to the Society worker, J.B. enjoys playing, reading, singing and dancing, and likes to laugh and have fun. [ 101 ] When access does take place, J.B. does enjoy it. She refers to her mother as “mom”. 6.3 K.D. [ 102 ] K.D. is described by the Society worker as a very loving and affectionate little girl. She likes to smile and laugh.

She is easy to manage in her everyday routine. [ 103 ] K.D. is attached to her great grandmother, C.W. and her Aunt J. K.D. has a loving and affectionate relationship with each of them. [ 104 ] C.W. describes K. D. as her own little person who knows what she wants. She describes her as happy. She is in good health and sees her doctor regularly. She is meeting her developmental milestones. [ 105 ] Based on observations made at access visits, it is not evident that K.D. has bonded with the mother. 7: Mother’s Evidence [ 106 ] The mother is 25 years of age.

She was born in Edmonton and moved to Windsor when she was 18 months old. She was raised by her father. The mother has completed grade 10. She has participated in a parenting course and engaged in services with Metis Nation and the Can-Am Friendship Centre. [ 107 ] It is her intention to return to F.L.F.N. and to have the child she is now expecting on November 30, 2016 at that location. It is her plan to stay with her Aunt and Uncle D.W. and A.W. while at F.L. While there, she will enter a drug and alcohol treatment program and connect with the Band’s Wellness Centre.

She knows about these programs because she searched this on Google after one of the first days of this hearing. [ 108 ] It is important to her that the children be taught their native culture. [ 109 ] It is her evidence that she is not in a relationship with R.G. As stated earlier in these reasons, I find that she remains in an off and on relationship with him.

They still have contact. [ 110 ] Once in Alberta she expects to be able to receive social assistance. [ 111 ] It is the mother’s evidence that it will take her about a year-and-a-half to two years to get structure in her life. 8: Plans of Care 8.1 The Society’s plan [ 112 ] The Society’s plan of care is that all three children be made Crown wards and then seek adoptive homes. [ 113 ] The Society will have the F.L.F.N. child welfare authorities conduct an adoption assessment of the mother’s aunt and uncle. [ 114 ] C.W. K.D.’s paternal grandmother, is prepared to adopt her.

The Society supports this plan. [ 115 ] The Society asks that the mother not be granted access to the children. 8.2 The Mother’s plan [ 116 ] The mother wants to have all three children placed in her care under terms of supervision. It is her intention to move with all three children to F.L.F.N. and participate in services that she needs there. She expects to have the support of family members there. In particular, A.W. and D.W. will allow her to live in their home until a home is available for her.

The mother’s evidence was not clear as to when such a home might be available. 8.2.1 Positive aspect of mother’s plan

[ 117 ] I make the following positive findings regarding the mother’s plan:

a) The children would have the opportunity to reside with a biological parent and with each other.

b) The children would have the opportunity to have contact with extended family in F.L.F.N. The children would be exposed to their native heritage and culture.

c) The mother clearly loves her children and is sincere in wanting to have them in her care.

d) B.B. and J.B. appear to enjoy the time they spend with their mother at supervised access.

e) While at F.L., there is the possibility of the mother participating in drug and alcohol treatment and participating in the Wellness Centre located in that community. 8.2.2 Limitations in mother’s plan of care [ 118 ] The children remain in need of protection because of the mother’s inability to address the risk factors identified earlier in these reasons. She has not yet been able to put in place the supports she needs to adequately help herself and to care for the children.

Even though she loves these children, her inability to achieve stability in life militates against her ability to provide the children with a safe, secure and stable home. While she engaged in some services it is not evident that the strategies taught have been integrated in a consistent manner into her parenting skills.

She was not able to organize herself such that she could attend access on a regular and consistent basis. [ 119 ] I find that terms of supervision would not be adequate to protect the children. [ 120 ] I also find that it is in the children’s best interests to be made wards of the Crown for the reasons that follow. [ 121 ] The mother continues in her on and off relationship with R.G. She is unable to protect herself from him. When he recently came to her home after being assaulted she looked after him.

She was so concerned about the people coming to her home because of him she set up barricades in her apartment. [ 122 ] The relationship between the mother and R.G. is a violent one. Police had to be called twice. The mother is aware of the need for her to engage in domestic violence counselling. A service provider was identified: Hiatus House.

Yet, all the while the children have been in care, the mother has not been able to do more than attend at intake. [ 123 ] The nature of the mother’s relationship with R.G., including her expecting a child with him at the end of November 2016, and his and her inability or unwillingness to address domestic violence would, I find, on the balance of probabilities see the children exposed to domestic violence if returned to her care.

I am not satisfied that the mother can protect the children from exposure to domestic violence even with a term of supervision not to allow her contact. [ 124 ] The mother has sought support through some service providers such as Can-Am Friendship Centre, Aboriginal Child Resource Centre and Mate Nation. Despite giving evidence of her working with these organizations, the mother did not provide evidence detailing how these services were helping her to be able to adequately care for herself and the children. [ 125 ] The mother completed a parenting course in February 2015.

Despite this, the mother, when she does attend at access, struggles with caring for all three children. [ 126 ] The mother has had a drug problem. She has tried twice to complete substance abuse counselling through House of Sophrosyne. She intends to enter drug and alcohol treatment and connect with the Wellness Centre in F.L. She was unable to provide details as to when she could start such a program. Her research consisted of a Google search. [ 127 ] The mother’s plan for care of the children has changed from including R.G. to not.

Her current plan is to move to F.L. and secure the support of the band and relatives. She also plans to move to Our Lady of Guadalupe, a safe home for expectant and new mothers. [ 128 ] The mother’s current plan at F.L. is a speculative one. The mother is not sure when she will obtain her own home. She was not able to provide details of the arrangements made should she arrive with the children, other than she intends to stay with her aunt and uncle. [ 129 ] The mother left F.L. when she was 18 months of age and did not return until last summer for a two day visit. She is a stranger to that community.

Even though she spent two days there last summer she does not know to any great extent what services await her there. [ 130 ] The mother did not provide evidence as to the range of services available to her and the children and when or whether they would be available. [ 131 ] The mother has not provided evidence from the relatives she expects to stay with that they are aware of and are able to meet the challenge of taking in the mother, her three children, and the fourth due at the end of November. [ 132 ] The mother has not yet been able to manage organizing her attendance at access on a consistent basis.

Her failure to do so has caused considerable upset for B.B. and J.B. [ 133 ] All of these factors demonstrate that the mother has not yet been able to achieve the stability needed to adequately care for the children. In her evidence she acknowledges that it will take about “one-and-a-half to two years” for her to get structure in her life. This is too much time in the lives of these children. B.B. and J.B. have been in care for 32 months. K.D. has been in care for 15 months.

All three have been in care beyond the time limits provided for at s. 70 of the CFSA . The mother has had many opportunities to address the risk factors identified. Though she was able to articulate the risk and the steps that need to be taken, she has not been able to implement a plan. I am concerned that even her attempts at addressing risk were motivated by her wish to “show the Society” and not on a sincere belief that the problem existed. She took almost no responsibility for the challenges she faced. [ 134 ] The court does not have the jurisdiction to extend the time for B.B. and J.B.

The court could extend the time in respect of K.D. for another three months. I find that it is not in the child’s best interests to do so given that the mother’s evidence that she needs another year-and-a-half to two years to achieve stability. 9: Parenting Capacity Assessment Report [ 135 ] Dr. Jay McGrory, a psychologist, prepared a parenting capacity assessment pursuant to a s. 54 endorsement. He was acknowledged by mother’s counsel as an expert able to give opinion evidence related to parenting capacity. [ 136 ] Mr. Mingay did not challenge the methodology employed by Dr.

McGrory, or in any material way the facts relied upon by him in preparing his report. [ 137 ] The report is somewhat dated in that it was released April 2015. Dr. McGrory has not seen the mother or children since completing the report. However, the conclusions are entitled to weight as Dr. McGrory’s observations are consistent with the evidence presented at this hearing. [ 138 ] Dr. McGrory described the mother as being disorganized and tangential in her interactional style. This is consistent with her not being able to arrange to attend at access on a regular basis or to follow through with service providers.

It is his opinion that this may be as a result of her learning difficulties. [ 139 ] With respect to her emotional functioning, Dr. McGrory found the mother to be quickly changing moods during the assessment. She vacillated between being friendly and cooperative to becoming combative and argumentative. He was concerned that the mother’s emotions may not remain stable. He described individuals with attention-deficit/hyperactivity disorder as being impulsive and disorganized. This is consistent with her changing plans of care and inability to achieve a measure of stability. [ 140 ] On a home visit, Dr.

McGrory observed that the mother was not able to provide structure, stability and activities for the children. It was not clear to him that she could keep the children focused on anything that needed to be done. This is consistent with the evidence of the access supervisors. [ 141 ] When the assessment was undertaken the mother was pregnant with K.D. Dr. McGrory was concerned at that time about the stability of the relationship between the mother and R.G. [ 142 ] Dr.

McGrory concluded that the mother did not appear to have the “requisite parenting sophistication, cognitive ability and emotional stability to care for three young children on her own. She appears to lead a disorganized approach to life (which reflects adaptive weakness) and there is an ongoing concern that the children in her care would be exposed to a lack of structure and supervision. A.D.s’ insight regarding her weakness is poor which reduces the prognosis for significant change.” [ 143 ] Dr. McGrory is of the view that the mother does not recognize her emotional or cognitive difficulties.

According to him, she lacks insight. Because she does not think about the problems she faces, it will be hard for her to fix them. [ 144 ] I accept his opinion as still being valid. The facts and circumstances upon which he reached his opinion remain substantially the same now. 10: Best Interests Considerations [ 145 ] Subsection 37(3) of the Act sets forth the best interests considerations. I find that:

a) The children’s physical, mental and emotional needs will be better met by the Society’s plan of care.

b) The mother’s plan would better meet the children’s needs for connection to their native culture and heritage. This would be achieved by the three of them being in the mother’s care at F.L.F.N. The Society’s plan does address this in a substantial way in that it intends to pursue an adoption placement for B.B. and J.B. with their relatives at F.L. The mother’s plan would better meet the children’s need to maintain sibling contact.

c) The Society’s plan will better meet the children’s needs for continuity and a stable place in a family through adoption.

d) Because of the mother’s inability to provide stability, the risk of placing the three children with her is too high.

e) This case should not be delayed any further so that the children can have a permanent home as soon as possible. [ 146 ] The least disruptive disposition, consistent with the children’s best interests is that they be made wards of the Crown. 11: Access 11.1 Legal Considerations [ 147 ] Where a court makes an order for Crown wardship, the legislation creates a presumption against access. Access to a Crown ward is not to be ordered unless the relationship between the person and the child is beneficial and meaningful to the child and the ordered access will not impair the child's future opportunity for adoption: See clause 59(2)(

i) of the Act .

[148] If access is ordered, it must also be in the best interests of the child: See s. 58 of the Act. [149] The evidentiary onus is on the person seeking access. [150] A beneficial relationship is one that is advantageous. A meaningful relationship is one that is significant. It is not enoughthat there are some positive aspects to the access - access must be significantly advantageous to the child. It speaks of an existingrelationship, not the possibility of a future relationship.

Even if the relationship is beneficial and meaningful, there still must be somequalitative weighing of the benefits of access or no access: See Children's Aid Society of Niagara Region v. M.J., (ONSC), [2004] O.J. No. 2872 (S.C.J.). [151] The person seeking access must show more than the child has a good time during visits: See Children's Aid Society of Peel(Region) v. S.(M.), 2006 ONCJ 523 , [2006] O.J. No. 5344 (O.C.J.). More is required than just a display of love between theperson and the child.

The Divisional Court has held that a person seeking access must prove the relationship with the child "brings asignificant positive advantage to the child." See Children's Aid Society of Niagara Region v. J.C., (ON SCDC),[2007] O.J. No. 1058 (Div. Ct.). [152] The words "will not impair" contained within ss. 59(2.1)(

b) places an onus on the person seeking access to satisfy the courtthat access to a Crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption: SeeCatholic Children's Aid Society of Hamilton-Wentworth v. L.S. and W.D., [2011] ONSC 5850 (Ont. S.C.J.). 11.2 Analysis [153] K.D. was apprehended very shortly after her birth. The temporary care and custody order provided that the mother andR.G. have access seven times per week. From the apprehension in … 2015 until September 22, 2015, the mother attended 30 out of apossible 75 visits.

The father attended 8. [154] On September 23, 2015, the mother’s access was reduced to two times per week and the father’s access to one time permonth. [155] From September 23, 2015 until March 29, 2016, the mother attended 12 of 54 possible visits. R.G. has not exercised anyaccess since the September 23, 2015 Order was made. [156] The mother’s evidence with respect to access to all three children is that the visits she has attended have gone well. Shestates as a conclusion “the children are bonded to me and I to them”.

This is not borne out by the evidence of access observers and C.W.with respect to K.D., which evidence I accept. [157] With all of the missed visits, K.D. does not appear to be affected by long absences from her mother. The child at 15months does not talk about the mother. C.W. describes the child as happy until she gets to the Children’s Aid Society when she sees theworker approach and then she cries hysterically. The child is happy when she sees C.W. at the door at the end of access. [158] With respect to B.B. and J.B., both are disappointed by the missed visits.

When a visit is scheduled and missed it causesemotional upset to the children. B.B. calls his mother by her first name and J.B. calls her mom. When access did occur, it did notproceed as well as the mother suggests. The evidence of Rebecca Schofield, which I accept, is that when access does occur the motheroften requires redirection about discussions she has with the children about them returning to her care. She would often question thechildren about their current placement and discuss with them details she obtained through disclosure of the Society file.

It was alsonecessary to redirect the children during access with the mother as she fails to control or redirect inappropriate behaviour by the children. [159] I find that the mother’s inability to maintain regular access with the children has diminished their relationship to the pointwhere it is not beneficial and meaningful as these terms have been defined. [160] The mother has not met her onus in proving that the relationship with each child brings “a significant positive advantage”to the children. [161] For these reasons, there shall be no order for access. 12: Family Group Decision-Making Conference [162] A family group conference was held on September 25, 2016.

A report of this conference was submitted in evidence by themother. The Society objected. [163] O/Reg. 496/06 under the CFSA addresses methods and procedures regarding alternative dispute resolution.

Subsection2(1)¶2(iv) provides as follows: “The terms of an agreement, memorandum of understanding or a plan arising from the alternative dispute resolution may be disclosed toa court and all counsel for the participants in the alternative dispute resolution, including counsel for the child where applicable.” [164] Counsel for the Society argues that the report provided is not one referred to in this subsection and therefore it is notadmissible as constituting settlement discussions. [165] With respect, I disagree.

The family group conference memorandum is a document referred to in this subsection. [166] Though admitted in evidence, Mr. Mingay did not make submissions as to how it should be considered in this case. Iattach no weight to the contents of the plan. It was not explained. It was simply disclosed to the court. The memorandum contains aplan from F.L. I would not rely upon this evidence as family members from F.L. were not subject to cross-examination at trial. Whiletheir intentions to assist are laudable, it is not clear whether the challenges presented by the mother and the needs of the children were

understood or taken into account. 13: Final Order [ 167 ] Final orders in respect of the Status Review Application and Child Protection Application shall issue on the following terms:

a) The statutory finding as contained in this court’s Order of October 14, 2014 shall be varied as follows: 1. The surname of the child B.B. shall be changed to “D” from “B”. 2. Neither child has Indian or native status.

b) The statutory findings for K.D. are as follows: • K.G.D.G., born … 2015. • She has no known religious faith. • She has no Indian or native status. • She was apprehended and brought into care in Essex County.

c) B.B. and J.B. are found to remain in need of protection pursuant to subclause 37(2)(b)(

i) of the CFSA .

d) The child K.D. is found to be in need of protection under subclause 37(2)(b)(

i) of the CFSA .

e) The children are made wards of the Crown.

f) There shall be no access to the children by any of the Respondents. [ 168 ] Even though the order requested by the Society for Crown wardship without access was granted, it is not precluded from allowing the mother to visit with the children before they are placed for adoption. Nor, does it preclude the Society and proposed adoptive parents from discussing and implementing some form of openness. [ 169 ] Finally, the court wishes to commend the mother for her desire to seek family and community support at F.L.F.N.. I hope that this helps her attain the stability that has so far been difficult to achieve. Released: October 21, 2016 Original signed and released Justice Barry M. Tobin