WARNING

         The court hearing this matter directs that the following notice should be attached to the file:

         This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act.  These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.—(7)   Order excluding media representatives or prohibiting publication.—   Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,

.  .  .

   (c)   prohibiting the publication of a report of the hearing or a specified part of the hearing.

(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.

 

 

ONTARIO COURT OF JUSTICE

CITATION:  Linck Child, Youth and Family Supports v. P.A., 2023 ONCJ 288

DATE:  2023 07 04

COURT FILE No.:  Chatham 32/23

 

 

BETWEEN:

 

Linck Child, Youth and Family Supports

Applicant,

 

— AND —

 

P.A.

Respondent

 

C.D.

Respondent

 

T[…] Inuit on behalf of Inuit Tapiriit Kanatami

Respondent

 

 

Before Justice M. Vickerd

Heard on June 22, 2023

Reasons for Judgment released on July 4, 2023

 

Nicole Powers................................................................. counsel for the applicant society

Margaret A. Vincente.....................................................   counsel for the respondent P.A.

Jeffery Rehner................................................................  counsel for the respondent C.D.

Tauni Sheldon………………………… case manager for the Kamatsiarniq Program, representative for T[…] Inuit on behalf of Inuit Tapiriit Kanatami

Vickerd, J.:

Overview

Background

Every day she threatens to take my children from me. It hurts, especially when I do everything I can to make her and the children happy, its mentally exhausting and I shouldn’t have to be abused every day to see my children. Please make her stop hurting me. Please for the love of god. I can’t take this anymore. (February 11, 2023)

. . .

Your lack of empathy is highly disturbing. Just so you’re aware. I contacted the police when phoebe became unstable. Luckily I dodged most of her blows, though at least she had the courtesy of asking if I was alright the following day rather than posting on Facebook that I’m a pussy who can’t take a few shots to the face. Please do not contact me anymore, thank you! C.D. (February 8, 2023) 

. . .

Can I take my children to a men’s shelter if I feel unsafe? (January 22, 2023 at 6:23a.m.)

. . .

Subject heading : “A snake rots from its head”-“If I feel unsafe can I take my children to a men’s shelter?” (January 22, 2023 at 11:09am.)

. . .

Subject heading: “2+2=5”- “The physical, psychological and emotional abuses I’ve endured do not rest on Sunday, do you?” (January 22, 2023 at 12:04p.m)

. . .

Subject heading: “Silence is Violence”- “The second time phoebe punched me in the face multiple times the officer who made the arrest was so shocked when phoebe admitted she hit me with no reason other than she was angry. The officer turned to me with a look of disgust and asked me if P.A. was mentally disabled, my response was that I didn’t believe so. Do you think she is mentally disabled? Do you think it was professional of the officer to say this? Why can’t I get any answers from you? You told me you’d answer any questions I have??” (January 22, 2023 at 3:32pm.)

▪  The order does not require the parents to reside together.

▪  If the parents separate, the matter shall return to court immediately for a determination of parenting time

▪  The children are not to be removed from the Counties of Chatham-Kent, Essex or Lambton pending further court order.

Variation of Interim Order

a.            The moving party has the onus of first establishing a material change in circumstances since the making of the last order.

b.            The court should take a flexible approach in determining what constitutes a sufficiently material change in circumstances. What is sufficiently material will depend upon the circumstances of the case.

c.            Once a material change in circumstances is established, a contextual analysis should be conducted by the court to determine if the placement order should be changed. The purposes in section 1of the Act should always be at the forefront of the analysis.

Catholic Children’s Aid Society of Toronto v M. (R.) [2017] O.J. No. 6004, 2017 ONCJ 784. Huron-Perth Children's Aid Society v SLW, [2021] OJ No 1598, 2021 ONCJ 180

 

Interim Relocation of Children

Where there is legislative silence, judges must look to the common law to determine what legal principles should be applied to ensure continuity and minimize inconsistency in the application of the law. …..

Applying the legislative framework set out in the CLRA mobility provisions makes sense from a policy and equity perspective. For a different test to be applied to parents proposing to relocate the primary residence of a child in a CYFSA proceeding than a parent seeking to do so in a CLRA proceeding potentially creates inconsistent and inequitable results. For litigants in CYFSA proceedings to be subject to a test that is either more or less stringent than that which is applicable under the CLRA is likely to offend the Charter principles of equality.

Many of the temporary mobility principles set out in Boudreault [a case about interim relocations] are applicable to the assessment of a temporary mobility motion in a child protection case. The court should be cautious in making such orders when there are material facts in dispute that require testing at trial or when the proposed move involves a long distance. The temporary decision will often have a strong influence on the final outcome of the case. Courts do not like to create disruptions in the lives of children by making an order that may result in further disruption later if the order has to be reversed. Further, a move involving a long distance will severely compromise a parent's opportunity to prove that they can safely parent the child.

The purposes of this Part are,

(a)  to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;

(b)  to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c)  to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and

(d)  to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child. 

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.

3. Services to children and young persons should be provided in a manner that,

i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons,

iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. takes into account a child’s or young person’s cultural and linguistic needs,

v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and

vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.

5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

The purpose of this Act is to

(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;

(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and

(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

9(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

Best interests of Indigenous child

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

Primary consideration

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

Factors to be considered

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

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

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

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

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

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

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

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

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

Consistency

(4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.

a)   Whether the proposed move is in the context of a protection application or a status review application. The court will likely apply a stricter test during an original protection proceeding since there has not yet been a finding that the child is in need of protection, the statutory time limits are less likely to have been exceeded, the parents will be just beginning to address the risk concerns and should be given a reasonable opportunity to show that they can safely parent the child.

b)   The nature of the protection issues, including the severity of the risk concerns. This will likely dictate how long a parent might take or should be given to address these concerns. If the risk to a child is low to moderate and will likely be addressed in a timely manner, it is not a proportionate response to move a child far away from the parent to an extended family member. The parent should be given every reasonable chance to succeed. The consideration is different if the risk concerns are high and unlikely to be addressed by the parent in a timely manner.

c)   Whether the proposed move will involve a change in who is caring for the child. If the change is being proposed in a status review proceeding (as is the case here) the test in subsection 64 (8) of the Act and the law set out in paragraphs 32-34 above must be applied.

d)   Whether the child is in the care of the society at the time of the motion. It is generally advantageous to a child to be placed with a member of his or her family, rather than remain in a foster placement.

e)   Whether the child will be moving to reside with a parent, which move will generally be viewed more favourably than a move to live with an extended family member.

f)     How closely the child protection case resembles a domestic dispute. In some cases the society is only involved to monitor high conflict between parents and to protect the child from emotional harm. There may only be a supervision order in place. The closer the case resembles a domestic dispute the more appropriate it will be for the court to apply the principles reviewed in Boudreault in assessing whether to permit a proposed move on a temporary basis with one of the parents.

g)   The nature of the relationship between the child and the proposed caregiver.

h)   The proposed caregiver's ability to meet the needs of the child in the new jurisdiction, including the child's academic, medical, social, and development needs. It needs to be kept in mind that many children in child protection cases have special needs due to their exposure to substandard parenting.

i)     The proposed caregiver's ability to work cooperatively and honestly with the society and to comply with court-ordered terms of supervision.

j)     The proposed caregiver's willingness to facilitate any order for access to the left-behind parent and extended family members.

k)   The ability and willingness of a child protection agency in the new jurisdiction to monitor any supervision order. Its ability to do so needs to be assessed in the context of the degree of any risk concerns with the caregiver -- the higher the risk, the more important the ability to monitor the caregiver becomes.

l)     The nature of the relationship between the child and the left-behind parent or parents and their extended families and the possible emotional risk of harm to a child of diminishing those relationships. The court will generally be more reluctant to approve a move where the left-behind parent has been actively involved in raising a child. That parent should be given a longer opportunity, within the parameters of the statutory time limits, to demonstrate that he or she can adequately address the risk concerns.

m)  The impact of the move on the left-behind parent or parent's ability to present a positive plan for the child.

n)   The child's age, stage of development and degree of maturity.

o)   The child's views and preferences.

Children's Aid Society of Toronto v GM, [2015] OJ No 4430, 2015 ONCJ 463 adopted in DCAS v P.A., 2022 ONSC 606 and in Simcoe Muskoka Child, Youth and Family Services v HD, [2022] OJ No 4697, 2022 ONSC 5953

                                          i.   Does the proposed plan for relocation best meet the paramount purposes and other purposes set out in section 1 of the CYFSA?

                                       ii.   If the child has been identified a First Nation, Inuit or Metis child:

a.   Does the proposed plan for relocation accord with the purposes of the CYFSA and  an Act respecting First Nations, Inuit and Métis Children, Youth and Families?

More specifically, does it assist in maintaining a child’s connection to his/her culture?

Does the plan account for the well-being of a child, his/her family, Indigenous group, community, or people?

Does the plan facilitate the  transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples  integral to cultural continuity?

Does the plan best promote the child residing with members of his or her family and is the culture of the Indigenous group, community or people to which he or she belongs?

Does the plan allow for child and family services to be provided in relation to an Indigenous child in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people?

                                       iii.   Does the proposed plan insulate the children from direct or indirect exposure to family violence, as well as minimize the potential for physical, emotional, and psychological harm or risk of harm to the child?

                                       iv.   Is there any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child?

Analysis

a.   A move of this magnitude will have the result of a cessation of the in person visits presently exercised by the respondent after and the children. At the present age of the children (all under the age of three years), care exchanges will be difficult as the children will need to travel by air with caregivers.

b.   The type of access required to build a relationship between father and children, at their young ages, is frequent and consistent. As Justice Spence notes in Heuss v. Surkos, 2004 CarswellOnt 3517 (C.J.):

I have referred to these cases in order to provide a sense of what direction the courts have taken in recent years in dealing with young, preschool children. What I glean from these cases are the following principles: First, it is important to maximize the contact between access parents and young children. Second, it is important that this contact be meaningful such that the relationship between them is allowed to flourish. Third, unless specific circumstances exist which point in a different direction, that contact should include regular overnight visits. And fourth, the overnights should be of sufficient duration and frequency to permit the relationship to flourish.

Such access cannot occur with the distance between communities. The ages of the children will not facilitate contact by electronic means such as telephone contact and video-call visits.

c.   Neither parent has the financial resources to facilitate frequent or infrequent access in person visits between the father and children. The mother receives income from socials support programs. The father works at a restaurant two days each week. The parties have not identified any other funding source to assist with transportation of the children for parenting time.

d.   The father is exercising his access visits with the children as provided for in the interim interim order, being three times per week.

e.   The father has deposed that he visited the mother’s community during their relationship. He deposes that he was threatened and physically assaulted. He suggests that for him to visit the children in Northern Québec is not feasible and that he would lose the ability to visit with the children in person if they are permitted to move.

f.     The request for relocation is made on an interim basis, pending the resolution of this child protection proceeding.

g.   At this point, no finding has been made that the children are in need of protection.

h.   Neither parents’ criminal court charges have been resolved. Each have serious charges relating to violence perpetrated against the other parent.

i.      The father asserts that he is defending the current criminal  charges laid against him. He disputes that he has been abusive to the mother. He alleges that it is the mother who was the aggressor in their relationship. He states that he is entitled to the “presumption of innocence” regarding the mother’s claims of abuse and the criminal charges he faces;

j.      The father asserts that there are deficits in the mother’s care of the children which places them at risk. The father asserts that during the parties’ cohabitation he was the primary caregiver for the children. Although the Society has confirmed that it does not have concerns about the mother’s care, the evidence of the father and the society has not yet been tested.

k.   The father has been accessing services in efforts to mitigate the child protection concerns. He is attending for counselling bi-weekly and is registering for the “Changing Ways” Program.

l.      The children are presently in the primary care of their mother, with regular contact with their father. This scenario is distinguishable from the facts in Children’s Aid Society of Toronto v G.M., J.A., T.C., and A.D. 2015 ONCJ 463 as an order for relocation of the children would not result in their extraction from foster care into the care of kin.

a.   The mother and children are Inuit people. Presently, they are separated from their home community located on T[...] Inuit Reservation.

b.   The mother’s plan encompasses a repatriation of the mother and children to their community in Northern Quebec. The plan would facilitate the children having meaningful connections to the language and territory of the Indigenous group, community and people to which they belong. The plan would also facilitate the third child’s birth in the Inuit community. If maintained in Ontario, although receiving supports from local agencies, the children will not have the same opportunities to engage in their cultural practices, traditions and learn their language. There is no evidence of any Inuit community in the Chatham-Kent region in which the children could receive such benefits.

c.   The repatriation of the children to their Inuit community best meets the secondary purposes of the CYFSA but also the principles confirmed in the federal legislation. Specifically, the plan supports cultural continuity: essential to these children, their family, and their community. It will allow for the meaningful transmission of the languages, cultures, practices, customs, traditions, ceremonies, and knowledge of  the Inuit people to the three children connected to their community. Services will be provided to the children and family in a manner that does not contribute to the assimilation of the Inuit community to which the children belongs or to the destruction of the culture of that Indigenous group, community, or people. To have three children returned to the mother’s community is significant for the Inuit, where there is a population estimated at 400 people.

d.   The evidence supports a finding that the children were exposed to an ongoing cycle of domestic violence and conflict in the care of their parents. The parties’ evidence confirms that there was a lot of fighting, as well as physical, mental, verbal, and sexual abuse between the parents. Both parents been charged criminally resulting in conditions of no-contact with the with the other parent.

e.   The mother is vulnerable as a new member to this community. She struggles with the English language and in accessing resources. This vulnerability puts her at greater risk for future abuse and manipulation by the father or others in this community.

f.     The mother does not have family, friends, or established community in Chatham-Kent - and the supports that come with such relationships. As a single parent, caring for three children, she will be at a grave disadvantage not having people close that she can rely upon for parenting advice, respite care and/or general assistance in meeting the needs of three children under the age of two years. This creates further risk for the children.

g.   The mother has expressed feeling isolated in Chatham-Kent.

h.   The mother has presented a detailed plan in her Affidavit sworn June 8, 2023 regarding where she and the children will live, and where the child will attend daycare and school. She has identified their supports in her home community. The mother confirms that she will have access to ongoing psychiatric services. She also commits to find other counselling services comparable to that which she receives at present from Chatham Kent Family Services.

i.      The mother and children are presently residing at a women’s shelter in this jurisdiction. This arrangement cannot be a permanent arrangement. There is no identification in the evidence of alternative housing options for the mother and children in Chatham-Kent. In contrast, the mother confirms that she has an apartment waiting for her in her community, a residence that she has maintained for the last six years.

j.      The mother confirms that she has the necessary financial supports to facilitate her return transportation with the children to her home community.

k.   The mother has worked cooperatively with society workers since their interventions in her family. She remains willing to work with them into the future.

l.      The mother confirms a commitment to abide any order for access between the father and children which may be made.

m.  The mother is presently receiving support from Kamatsiarniq Program at T[…] Inuit. By letter dated February 15, 2023, submitted as an Exhibit in Society’s pleadings, it is confirmed that the mother has been connected to these services since May 2021. It is a service provider that assist Inuit families involved with child protection agencies.

n.   The Society and other service providers confirm no concerns with the mother’s care of the children. The most important piece of evidence comes from the shelters where the mother resided with the children. Staff at these centres had no concerns with mother’s care of the children. This stands in contrast to the father’s allegations that the mother neglects care of the children.

 

For all of these reasons, I find that the plan proposed by the Society, the mother and the Inuit community to be the strongest plan for interim care of the children. It best accords with the purposes of the legislation. It will provide the children with an opportunity to have meaningful connections with their Inuit community and will facilitate cultural continuity. Although this plan will impact the father’s ability to exercise parenting time, the larger concerns of community connection and stability in care outweigh his plan for the children.

Order

a.            Paragraph 1 of the interim order of Justice Vickerd dated March 1, 2023 is varied such that the children M.A. born […], 2021 and N.A. born […], 2022 shall be placed into the temporary care of the mother P.A. subject to supervision of Linck, Child and Family Supports on terms and conditions found in paragraph 2 of the Society’s Notice of Motion dated May 29, 2023;

b.            The father C.D. shall have parenting time with the children, supervised by the Society or its designate and shall occur a minimum of three times per week as arranged by the Society. Such contact may occur in person, virtually or as otherwise arranged.

c.            Paragraph 4 of the interim order of Justice Vickerd dated March 1, 2023, is vacated and the mother shall be permitted to relocate with the children to T[...] Inuit Reservation. Should she do so, she shall ensure that the Society has her current contact information and address at all times.

 

Released:  July 4, 2023

 

                                                                                               

 

Justice M. Vickerd