Payukotayno: J.K.K. & Hudson Bay Family Services v. V.W., 2016 ONCJ 868

ONTARIO COURT OF JUSTICE CITATION: Payukotayno: J.K.K. & Hudson Bay Family Services v. V.W. , 2016 ONCJ 868 DATE: November 3, 2016 Co u rt F i le No. F 0 - 11-0000013 8 - 0003 5 PAYUKOTAYNO: JAMES & HUDSON BAY FAMILY S ERVICES Appl i cant and V.W. , J.K.K. , 10 F[…] First Nation ADDED PARTY Respondents and OFFICE OF THE CHI L DREN ' S LAW Y ER 15 ****** Add e d Party Court File No . F0-11-00000138-0004

PAYUKOTAYNO: J A MES A N D HUDSON BAY FAMILY SERVICES 20 Applicant and V.W. , F.E. , F[…] First Nation Responden ts and 25 OFFICE OF T H E C H I L DREN 'S LAWYER

D E C I S I 0 N 30 BEFORE THE HONOURABLE JUSTICE M. LAMBERT on November 3 , 2 0 1 6 , at M[…], Ontario Added Party 5 INFORMATION C O NTAINE D HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SE C TION 45(7) AND 45(8) OF THE CHILD AND FAMILY SERVICES ACT 10

15 20 25 APPEARANCES: J . Ellery Counse l for the Applicant 30 L. Cay e n Counsel for the Respondent, V.W.

P. Faries Counsel for the Respondent, F.E. (

i) Table of Contents - ONTAR I O COURT OF J U STICE TABLE 0 F C 0 N T E N T S INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 45(7) AND 45(8)

OF THE CHILD AND 5 FAMILY SERVICES ACT W I T N E S S E S WITNESSES Examination i n - Chief Cross E xaminati o n R e ​ Examination 10 E X H I B I T S 1 5 EXHIBIT NUMBER ENTERED ON PAGE

2 0 25 Legend [ s i c ]- Indicates preceding word has been reproduced verbatim and is not a transcript error. (ph) - Indicates preceding word has been spelled phonetically. 30

1. PAYUKOTAYNO v. V.W., et al Decision - Lambert, J. LAMBERT, J. (Orally): Should a court stand in the way of the resolution of a child protection matter when all parties have signed minutes of settlement agreeing to a finding 5 and also agreeing to a disposition? This is the difficult question that needs to be answered in this matter. Obviously, the ultimate responsibility for

10 determining what is in the best intere s t of a child or children rests with the court and, thus, a court may clearly reject an agreement arrived at by the parties. Having said that, the court must be mindful of the consequences that follow. 15 J.W.K.1 was born on […], 2009 to V.W. and J.K.K.. She is now seven years of age. J.W.K.2 was born to the same parents on […], 2010, so 20 he will be six next month. N.E. was born to V.W. and F.E. on […], 2014 , so he will be two years of age in […] days.

Sadly, these children have spent the majority of their lives in foster care, and it was 25 only yesterday that the matter was finally set for trial and the parties came to court with minutes of settlement. J.W.K.1 has been alive 2,562 days and she has spent 30 1,770 of those days in foster care, or 69 percent of her life. J.W.K.2 has been alive 2,144 days and he has spent 1,770 of those days in foster care, or 82 percent o f h i s life .

N.E. has been alive for 720 days and he has spent 544 o f t h ose says in foster care , or 75 percent of his life . 5 J.W.K.1 and J.W.K.2 spent part of t h eir time w ith t h eir matern al grandmother , but that pla cement eventually broke down as well. By anyone ' s standards , these numbers a r e d e p l ora ble.

1 0 J.W.K.1 and J.W.K.2 w e re first apprehended on August 25th, 2011 as a result of substa n ce a b u s e a l l egati o n s , i n adequ a t e supervision , domestic viole n c e , and genera l inability to lo o k af t er the children .

After many app e ara n ces before the c o urt 1 5 where the parents rarely attended , a first final order was made on Ma r c h sth , 2012 w h e n t h e mother consented to a finding , t h e f a t her taking no p o s it i o n , a nd the c h i l dren remained society wards for six month s. 2 0 At a status review hea r i ng on October 4th , 201 2 , after much the same pat t ern of irr e g u lar attendances and m u lti p le a d journments , a second final order wa s mad e mak i ng J.W.K.1 and J.W.K.2 25 society wa r ds for a fur t h er period of six months.

A fre s h sta t us r e view application was brought the r eafter whe r e the Society sou g ht Crown w ard s h ip wit h out access . But , aga i n, after m a ny 30 adjour n m e nts and d elays , on February 5th, 2 0 15 a third final order was made placing J.W.K.1 and J.W.K.2 in t h e care a n d custody of t heir mother V.W.

for a period of six months as it was felt at that t i me that she had made suff i c ie n t progress . By that time N.E. was born but he d id n ot form part of the F ebrua r y 15th order as h e had not b een 5 apprehend e d . J.W.K.2 a nd J.W.K.1 were r e - appre h e n d ed on J u n e 1 1 th , 2015 as a result of substance abuse issue s , dom e stic v i olence between Ms. V.W. and new 10 partner , Mr. F.E. , and a lack of super v i sion of the children . N.E. , the son o f V.W. and F.E., was a l s o a pprehended f o r t he fir s t t im e , at that time . All three c h i ldren have remained in care s i n ce and they have now been p l aced w ith a

15 f oster fa m ily in G[…], Onta r i o w h ere they are r eported ly doing well . I h ave had the benefit of reading the affidavit of H o lly Pontello , the clinical assistant for the 20 OC L , and the clinical consultant assessment of Am a n d a R o h n-A l ton (ph) for both J.W.K.1 and J.W.K.2 . G[…] is ob v i o usly a significant distance from M[…] wi t h t he r e s u l t that o n g oing contact 25 between the parents and the fam i ly has been next to non-existent s i n ce the placement is in G[…] . l The ch i l d ren last saw Ms. V.W. and Mr. F.E. l ast we e k for sever a l days, and t hough th e r e is n o 3 0 ac t ual evidence before me, I am told that the v i sit went w e ll.

The p r evious v isit to that goes back to March of 2016. So, one has to question how a bond can be maintained, or should I say develop, when access is so irregular. 5 The first problem in this file is, therefore, the placement of these children in a foreign environment, far away from their roots . It seems that the children have attached to the foster 10 parents, calling them mom and dad, and calling other children in the home brothers and sisters. I They are living in a more structured environment and they may be progressing well because of that , I but they are not with family or members of their 15 community .

l It seems that the foster parents are doing all that they can to expose the children to their First Nation culture, but no doubt that is 20 limited . I don't wish to be over-critical of the Society for placing the children in such an environment because I am m i ndful of the dearth of appropriate 25 First Nation foster homes in this area but , clearly, more needs to be done to find First Nat i on foster homes, not necessarily in M[…] only but elsewhere in Northern Ontario . Indeed, a non-native foster home in Timmins or Kapuskasing 30 would be much better than one in Southern Ontario. The migration of First Nations children in foster

care to faraway places must be examined, sooner rather than later. Often, the longer the children stay in such places, as in the present case, they wish to stay there because of greater amenities, 5 more activities, and a more affluent lifestyle. It makes their return very difficult. On the flip side, this attachment between the foster parents and the children has been allowed 10 to develop because of the unwillingness or an inability of Ms. V.W. and Mr. F.E. to start dealing with their difficulties until very recently. 15 Ms.

V.W. has recently completed some programming and counselling and she intends to attend a substance abuse program in January of 2017. The father is now set to attend a detox centre in S[…] Falls from November 10th to

20 20th after which he will attend the R[…] Lodge in W[…]. He is to be discharged from that program on December 19th of 2016. In anticipation of that programming, the parties have come to an agreement that the children be returned to their 25 care on December 20th, 2016 subject to a six-month supervision order in favour of the Society. They have obviously agreed that the children are in need of protection. Having agreed to that, 30 because of the statute ceilings in the Act for children in care, the only two options are the return of the children to their parents or to make

t h e m Crown w a r ds . All t h ree children , ob v i ou s l y , have greatly exceeded the statutory ceilings. T h e issue here is whether it is in the best 5 interest of these childre n that they be returned to the care a n d custody of Ms. V.W. and Mr. F.E. w i th or without a supervision order. I am uncertain that they have made s u ff i c i ent 10 p rogress to r eturn t h e c h ildren to th e i r care , but w h at is the alternative: to make the children Crown wards where the plan is that they be cared for long term by a no n - native family , far away f rom their roots?

The court must be m i n dful of 1 5 that re a l possibility . I s that in t h eir best i nterest? Only time would tell . The devastation of t h e ' 60s scoop is now wel l - known . In determining the best i n terest of the c h ildren , 20 I must be m i n dful of all of the factors set out in subsection 37(3) o f the Child and Family Services Act .

In addition to th a t, I must be mindful of subs e c tion 37(4) which reads as follows : "Where a person is d i rected in t h is Part to 25 make an order or determination in the best interests of a child and the child is an Indian o r native person , the person shall take into con s i deration t h e importance , in recognition of the uniq u e ness of Indian and 30 native c u l tur e , heritage and traditions , of preserving the c hild ' s cultur a l identity . "

Finally, I must be mindful of the paramount purpose of the Act which is set out subsection 1(1) which reads as follows: "The paramount purpose of this Act is to 5 promote the best interests, protection and wel l -b e ing of c h ild r en." Subsection 1(2) lists other purposes and it's worth noting paragraph 5 of that subsection which 10 reads as follows: "To recognize that Indian and native people I should be entitled to provide , wherever possib l e , their own child and family ser v i ce s , I and that all services to Indian and native

15 children and families should be provided in a l manner that recognizes their culture, heritage and traditions and the concept of the extended family ." 20 It is because of those provisions that the balance tilts in favour of returning these children to their parents in their community, notwithstanding the reservations which I have that the parents are not going to be ready to have them in their care. 25 I am mindful that the parents have fina l ly taken some concrete steps to attend some residential treatment program for substance abuse. 30 I am also advised by way of submissions, not evidence , that the parents have maintained their sobriety for some time. I take comf o r t in that

submission. If the children are, in fact, returned to the parents on December 20th as anticipated , it is 5 imperative that the Society spend as many resources to support this family unit, as it is required to do so by law, as it has expended in keeping these children in care at such great distance. In other words, the parents and the 10 Society have a shared obligat i on to make this placement work because they share the blame for where things stand now.

The children cannot simply be returned with the 15 expectation that the parents will do it on their own . Much concrete help must come from the Society . It cannot be a situation where the Society only has sporadic contact with the parents. More needs to be done. 20 If this placement breaks down, for whatever reason, the children will have been failed again.

I expect all to do their share to make this work. 25 It is, therefore , with great trepidation that I will accede to the agreement arrived at by the parties, and an order shall, therefore, go in both files in accordance with the minutes of settlement filed yesterday. 30 FORM2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I , we Ly n _ l.::_ ! ! _ l l!linen ! .C. . _ (Please print name o f a uthorized person(s)) ----------------- certify that this document is a true and accurate transcript of the recording of Payukotayn " - : W. et al (Case name) in the Ontario Court of Justice (Name o f Court) (Court address)

0534_M[…]_20161103_083654 6_LA taken from Recording No. MBERMA , which has been certified in Form 1. * T his certification does not apply to the Ruling which was judicially edited.

Certificate of Transcript (rev. 03/04)