Kina Gbezhgomi Child and Family Services v MA, 2020 ONJC 414

The Court ordered that four children be placed in the care and custody of their mother on terms of supervision. Among other things, the Court accepted that evidence of Indigenous kinship traditions, cultural norms, and laws is relevant, and that grandparents play an important role in Anishinaabe families, but was satisfied the mother could resume her own responsibilities under Anishinaabe traditions. 

Indigenous Law Centre CaseWatch Blog

The Applicant, Kina Gbezhgomi Child and Family Services [“Society”], brought a motion for an order to place four children of various ages into the care of the paternal grandparents, subject to the supervision of the Society. The mother has opposed the Society’s motion under the Child, Youth and Family Services Act [“CYFSA”] and asked the Court for an order placing the children in her care.

The Society’s propose placement with the paternal grandparents because they continue to have protection concerns regarding the mother, such as health issues, specifically addictions, and her lack of cooperation with the Society. Concern of perceived lack of cooperation from the mother stems from her not having signed updated consents to verify certain information about her treatment efforts. The Society was not satisfied to have that information verified by her First Nation, with whom the Society has a protocol for service provision, and who was the service provider for at least some of the mother’s ongoing counselling.

The mother filed a sworn affidavit wherein she indicated that she is disappointed to the see the Society continue to resist a return of the children to her, even with supervision. The mother indicated that she has continued to access the support of Wiikwemkoong Unceded Territory as well as other services. Her lawyer conceded that the mother needs support, including financial assistance, but that the mother was prepared to accept that help, and that with the support of Wiikwemkoong Unceded Territory, the relationship between the mother and the Society could be repaired.

The Band Representative for Wiikwemkoong Unceded Territory, verified that the mother has completed treatment and continues to work towards pro-social and culturally-informed ways of managing her addictions. Wiikwemkoong supported the return of the children to the mother. While the grandparents could ensure access to the mother, Wiikwemkoong Unceded Territory and the mother submitted it should be the other way around. They argued that given the undisputed evidence that the mother and the grandparents work well together, the Court can be satisfied that the mother would ensure this transition is as easy on the children as possible by making sure they are seeing their grandparents frequently and regularly.

At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondent, it is more probable than not that they will suffer harm. Further, the Society needs to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order (Children’s Aid Society of Ottawa-Carleton v T, [2000] OJ No 2273 (Ont Sup Ct)). Only after this burden is satisfied as against the party who had charge of the child before the intervention, can the Court look to other options, such as the placement of the children in another home, using a best interests test (Catholic Children’s Aid Society of Toronto v KS, 2020 ONCJ 268).

It is trite to say that as a result of a history that requires such remedial legislation, Indigenous families sometimes find it difficult to work with child welfare agencies. The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned. Courts need to consider evidence of the traditions, cultural norms and laws of the Indigenous community it is serving. It may be in some cases that where a child cannot be returned to their parent(s), courts will need to hear evidence about Indigenous kinship structures and the roles of grandparents in the communities they serve in order to make proper determinations on best interests.

The mother has been proactive in addressing the addiction issues that were the original basis for the Society’s intervention a year ago. The Court accepts evidence of Wiikwemkoong Unceded Territory that she is meaningfully engaged in services to address these concerns. The path to sobriety is often challenging and non-linear but she understands her wellness is linked to her ability to parent. She has satisfied the Court that she is committed to this, and to working towards a culturally-grounded understanding of her sacred role as a mother.

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