Kawartha-Haliburton Children’s Aid Society v MW, 2019 ONCA 316

Appeal allowed. The Divisional Court erred by applying the wrong framework for access, including the special considerations for Indigenous children, and misstated the approach to summary judgement in child protection matters.

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The Applicant requests access to three of her children in extended care. Her children were apprehended in 2015 by the Respondent, Kawartha-Haliburton Children’s Aid Society, pursuant to the Child and Family Services Act, [“CFSA”]. The appropriateness of the extended care order is not disputed. The mother, however, did not agree to a no-access provision when she consented to a summary judgement motion for Crown wardship. The motion judge made the children Crown wards and denied the mother access to them. The mother appealed to the Divisional Court. By this time, the CFSA was about to be replaced with the new Child, Youth and Family Services Act, 2017 [“CYFSA”]. The major changes to the child protection legislation made pursuant to the CFYSA, such as the transition provisions of the new legislation, the new test for access to children in extended care, the special considerations for Indigenous children, and the proper approach to summary judgment in child protection matters are central to this appeal.

The transitional provisions of the CYFSA required that, at the date it came into force, all cases not “concluded” would be considered under the new Act. This court determines that the word “concluded” is to be taken in the ordinary sense of the word and a decision under reserve means the case is not concluded. Also, the children are First Nations as defined in the CYFSA. They and their family members identify as First Nation with the Curve Lake First Nation. In this matter, the transitional provisions of the CYFSA apply, so that the test for access was pursuant to the new Act that was to replace the CFSA. The criteria for access to children in extended care has been changed by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community. The record was insufficient to satisfy the new test pertaining to the children’s Indigenous heritage (Catholic Children’s Aid Society of Hamilton v GH, TV and Eastern Woodlands Metis of Nova Scotia, 2016 ONSC 6287 [“GH”]). The Act is remedial legislation and should be interpreted liberally especially for Indigenous children. By applying the transitional provisions to cases under reserve, thereby not “concluded”, these children would not be caught in a legislative void.

The CYFSA changed the considerations for access. The test for access to a Crown ward under the old Act was strict. The onus was on the person seeking access to establish that the relationship was meaningful and beneficial. There was a presumption against access and opportunities for adoption were prioritized over other considerations. Under the new Act, the court shall not make the access order unless it is satisfied that it is in the best interests of the child. It is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. The Divisional Court did not properly address the issue of the sufficiency of the record because it applied the old Act.

The Divisional Court also erred by misapplying the key principles regarding the use of summary judgment to the specific circumstances of child protection proceedings (Hryniak v Mauldin, 2014 SCC 7 [“Hryniak”]). Hryniak’s fairness principle requires that exceptional caution is needed for summary judgment in the child protection context by reviewing the Charter implications of child protection proceedings. Child protection litigation engages the Charter rights of both parents and children (New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46). The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. Women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings (G(J)). The cautious approach to summary judgment in child protection has long been recognized by lower courts and by this court (Children’s Aid Society of Halton (Region) v A (KL) (2006), 216 OAC 148).

The proper approach to summary judgment in child protection proceedings must exercise caution and apply the objectives of the CYFSA, including the expanded best interests of the child test. This court sets aside the motion judge’s order and refers this matter back to the Superior Court on an expedited basis to determine the question of access pursuant to the CYFSA.

NC v Kunuwanimano CFS and Fort Albany First Nation, 2019 CFSRB 7

The decision of the Respondent to refuse the adoption of three Indigenous children placed in the Applicant’s care is confirmed under s 192 of the Child, Youth and Family Services Act.

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The Applicant requested a review pursuant to s 192 of the Child, Youth and Family Services Act, [“Act”]. This application refers to a decision made in favour of the Respondent, Kunuwanimano Child and Family Services, [“KCFS”] who refused the Applicant’s application to adopt three children who were placed in her care for two years. The children were apprehended from the care of their parents by the North Eastern Ontario Child and Family Services and made Crown Wards without access for the purpose of adoption. The children’s mother, who is deceased, and their father have membership with the Fort Albany First Nation [“FAFN”]. The children’s files were transferred to the KCFS, an Indigenous child welfare agency and were subsequently placed in a foster home. After three years the foster home could no longer care for the children due to uncontrollable circumstances. The children were then placed in the care of the Applicant and remained in her care for almost two years until their abrupt removal.

The Child and Family Services Review Board’s [“CFSRB”] determination is made in accordance with the expanded definition of the test for the best interests of the child set out in s 179(2) of the Act. In addition to giving prominence to the child’s views and wishes, as well as the recognition of Indigenous cultures and connections to their community, the preamble of the Act also acknowledges that children are individuals with rights to be respected and voices to be heard.

SV, who is the most recent placement for the children, is a member of the Moose Cree First Nation and grew up alongside the children’s father. The evidence is clear that SV has strong connections to the children’s community and cultural heritage. Her practices are traditional in her home where the children are introduced to hunting and fishing and that this was consistent with a way of life, rather than simply an activity. She has taken significant measures to connect the children to their extended family with whom she is well acquainted.

In contrast, the Applicant has no significant ties to the children’s First Nations community or extended family. The Applicant knows very little about the cultural practices of the children’s Indigenous community, or the Illilu people. It was clear that she cares deeply for the children and wishes to adopt all three of them. Her evidence, supported by report cards and the agency’s own documents, was that they were well-cared for in her home and had developed a bond with her and her family. The views and wishes of the children also confirmed the strong bond that the children have with the Applicant. The abrupt removal of the children from her care was traumatic for her and also for the children.

The CFSRB, however, is also mindful of the view of family and community that is expressed by the FAFN and the emphasis on customary care alternatives for Indigenous children under the Act. It is also through the current placement that the children are reconnecting with their father, albeit not as a primary caregiver. While SV is not a direct relation to the children, it is clear that she has strong historical and current connections to the children’s extended family and is committed to facilitating their relationships with family as much as possible. The Applicant simply cannot offer the same commitment and ease of connection to family as SV.

Of considerable importance to our determination is the connection between the siblings. They have always been together and expressed a wish to remain that way. The CFSRB finds that to separate the Children at this time would not be in their best interests and along with all the above factors, favours confirmation of the Respondents’ position. The CFSRB, however, is also of the view the children were not given the opportunity to properly say good-bye to the Applicant and suggested that the KCFS facilitate an acknowledgement and contact to bring some finality to these unresolved feelings.

BC (Director of Child, Family and Community Services) v Beauchamp et al, 2019 NWTSC 19

Judicial review allowed. The Director did not receive the minimum notice of the custom adoption application of a Métis child. The decision of the Commissioner must be quashed and the certificate for adoption vacated.

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The Applicant, the British Columbia Director of Child, Family and Community Services [“Director”] has applied for a judicial review of the decision of the Respondent, Custom Adoption Commissioner Mary Beauchamp [“Commissioner”]. She issued a Custom Adoption Certificate [“Certificate”] that recognizes the adoption of a Métis child by the Respondents [“Foster Parents”] in accordance with Aboriginal customary law.

In 2013, a Métis child was apprehended the day after her birth by child protection authorities in British Columbia. She was placed in foster care of the pursuant to a family care home agreement they entered into with the Director. The Director was granted legal custody of the child through a continuing care order [“CCO”] dated July 6, 2015 by the BC Provincial Court. The Director has removed the child from the former Foster Parents care and placed her in an Ontario home to be with her biological siblings.

The Foster Parents submitted a petition to the court to adopt the child which was dismissed. A second petition was submitted asking for the same relief, but it was dismissed on the grounds of res judicata. Another petition was subsequently submitted, among various relief was adoption of the child, but also a reference to Aboriginal customary adoption. Again, the petition was dismissed as an abuse of process. The Foster Parents then submitted a fourth petition [“Petition #4”] but this submission was fundamentally different than the previous petitions. It stated that the child had already went through an Aboriginal customary adoption. It was dismissed as an abuse of process, but is now under appeal at the British Columbia Court of Appeal. That court presently has its decision on hold as it awaits the decision of this judicial review.

One of the Foster Parents is Métis and is a member of the British Columbia Métis Federation. Sometime after their former foster child was removed from their care, they moved to the Northwest Territories. They then met with the Commissioner who subsequently issued the Certificate recognizing that the child was adopted in accordance with Aboriginal customary law in 2013.

The Aboriginal Custom Adoption Recognition Act [“Act”] was enacted to recognize Aboriginal custom adoptions. The Act provides a process for individuals who have adopted a child in accordance with Aboriginal customary law to apply for a certificate recognizing the adoption. The certificate does not create an adoption but recognizes that an adoption has already taken place (Bruha v Bruha, 2009 NWTSC 44 [“Bruha”]). Custom adoption commissioners are appointed by the Minister on the basis that they already have knowledge and understanding of Aboriginal customary law in the community or region in which they reside. A custom adoption commissioner is simply recognizing that a custom adoption has taken place, however, the importance of the decision and the impact from it is significant. Once a commissioner is satisfied that the information required is complete and in order, a certificate is issued that a custom Aboriginal adoption has taken place. It is then filed with the court as a court order which permits the adoptive parent(s) to obtain a new birth certificate for the child. There is no appeal process provided under the Act. The decision of the custom adoption commissioner is final, subject only to judicial review (Bruha).

While the Act is intentionally vague about the process to be followed in recognizing an Aboriginal customary adoption, it does contemplate some form of notice. Given the implications of the decision of a custom adoption commissioner and the legitimate expectations of interested parties, the duty of procedural fairness requires, at a minimum, that interested parties receive notice of the application.

Custom adoption is a concept that has evolved over time and has adjusted to changing social conditions. There has been an evolution regarding who is involved in the process, who can adopt Aboriginal children, and how this process occurs (Kalaserk v Strickland, 1999 CanLII 6799 (NWTSC)). While the position of Director is created by the Child, Family and Community Service Act, she is the sole legal guardian as the CCO is still in place. The Director was an interested person and clearly entitled to notice of the application before the Commissioner. To allow the Certificate to stand would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. If the Certificate was allowed to continue it would result in an abuse of process and therefore must be vacated.

BC (Director of Child, Family and Community Services) v LM, 2019 ONCJ 205

Restraining order granted preventing the Respondents from contact with a child they claim to have customarily adopted. Decision as to other matters on reserve.

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The British Columbia Director of Child, Family and Community Services [“Director”], requested a restraining order against the Respondents [“Foster Parents”] pursuant to s 35 of the Children’s Law Reform Act. This interim and without prejudice order restrains the Foster Parents from communicating or coming near their former foster child, her school and any other place where the child may reasonably be expected to be. Further procedural relief was granted, including a sealing order and a publication ban.

On June 22, 2018, the Foster Parents became aware of the child’s school she was attending in Ontario. They approached the child in the playground and provided the issued credentials of their status as child protection representatives for the BC Métis Federation’s child protection service. The school staff went into lockdown and called the police. The child was traumatized from the experience, but the Foster Parents insisted they were not the source of the trauma and that the school overreacted. The Director has brought this application to the Court as a result from this event, but also the prior history involving the parties, as she is afraid the Foster Parents will attempt another apprehension.

When the child was born in 2013, she was removed from the care of her birth parents the day after her birth. She was then placed with the Foster Parents under a Family Home Care Agreement. Eventually a continuing custody order [“CCO”] was established on July 6, 2015. A CCO is analogous to an order of Crown Wardship in the province of Ontario, and conferred lawful custody of the child with the Director. It is deemed to be an order of the court and is enforceable as such. The Director has the authority to remove a child under the Child, Family and Community Service Act, if she has reasonable grounds to believe that the child needs protection and there is no other measure available. Since the Director removed the child from the Foster Parent’s care, the child has resided in Ontario in a non-Métis adoptive home with her biological sisters.

The Foster Parents brought three subsequent petitions since 2015 for the adoption of the child. The first one was dismissed, the second was also dismissed on the grounds of res judicata. The third petition sought various declarations, including another order to adopt the child, but had a reference to custom adoption as well as an order for certiorari quashing the transfer of the child to Ontario for adoption. On the denial of that application, the birth parents, the Foster Parents, and the BC Métis Federation, filed a fourth petition [“Petition #4”] for a declaration that the Foster Parents have already adopted the child by way of a custom adoption.

This application was inconsistent with the prior petitions advanced by the Foster Parents, considering there is recognition of custom adoption under s 46 of the Adoption Act. The Foster Parents claimed they were unaware until very recently that their actions constituted a valid Aboriginal custom adoption which could be recognized by the courts. The court, however, did not accept these submissions and determined Petition #4 was an abuse of process and should be struck.

On the appeal of AS v BC (Director of Child, Family and Community Services), new evidence disclosed that a custom adoption commissioner [“Commissioner”] in the Northwest Territories [“NWT”], pursuant to s 2 of the Aboriginal Custom Adoption Recognition Act, had issued a custom adoption certificate. It declared that the Foster Parents adopted the child by way of Aboriginal custom adoption in 2013 which is deemed to be an order of that court. Through this, the Foster Parents obtained pursuant to the Vital Statistics Act, a British Columbia birth certificate for the child listing them as her parents. The Director had no knowledge of the proceedings in the NWT or the issuance of the BC birth certificate and filed an originating notice for judicial review in the Supreme Court of the Northwest Territories [“NWT Supreme Court”].

The British Columbia Court of Appeal [“BCCA”] stayed the appeal of S(A) v BC (Director of Child, Family and Community Services) to await the judicial review decision of the NWT Supreme Court that is on reserve. In the meantime, there is an interim, without prejudice order prohibiting the use of the NWT custom adoption certificate or its associated documents such as the BC birth certificate, by any party to gain access or custody to the child.

To decide such matters in this application at this time, while the NWT Supreme Court’s decision, the BC Court of Appeal’s decision, and the ultimate fate of Petition #4 is unknown, would be inappropriate and an abuse of process. It undermines the credibility of the courts if a judicial tribunal hears the same evidence in a different trial on the same issues, as there is potential for conflicting results (Children’s Aid Society of Ottawa (City) v M(G)).

The Foster Parents have clearly demonstrated that they are not prepared to wait for their claims to be fully adjudicated in a court of law, and will resort to self-help remedies without notification to the courts. On a balance of probabilities, the Director has reasonable grounds to fear for the safety of the child in her lawful custody and is granted the restraining order. The order made is without prejudice to the Foster Parents right to seek its termination or to vary it once the decisions of the two other courts have been released and the fate of Petition #4 becomes known.

Children’s Aid Society of Algoma v AW, 2019 ONCJ 242

Motion granted. A child in temporary custody with a Children’s Aid Society is determined to be First Nations. Although the father is not eligible for membership, the First Nation believes that the father, and therefore the child, is affiliated with that community.

The Children’s Aid Society of Algoma [“Society”] has brought a motion regarding a less than one year old child identification as a First Nations child and if the child identifies with the Batchewana First Nation [“BFN”]. Relief sought also includes an order that adds the BFN as a party respondent to this proceeding and an order that transfers the conduct of the application to the Nogdawindamin Family and Community Services [“NFCS”] as applicant. Thus, the proceeding shall continue as though commenced by NFCS in replacement of the Society, with an order transferring the interim care of the child from the Society to the NFCS. The band representative of the BFN, with consent of all parties, made submissions that they be heard given the potential ramifications of the outcome of the motion.

The Society brought a protection application before the Court and an interim without prejudice order was made that placed the child in its temporary care and custody. The parents have access to the child that is subject to a mandatory minimum number of hours along with multiple terms and conditions applicable to the parents during the exercise of any access. Initially the parents did not claim to be Indigenous to the Society upon its involvement. The Society, at that time, understood that the child was not eligible for registration or identified with any First Nations, Métis or Inuit band or community. The mother filed an addendum to the plan of care that stated the father found out he has some family with Indigenous connections, including an association with the BFN. The mother indicated that she herself practices various traditional Indigenous teachings and self-identifies with the BFN on that basis. The BFN Representative for Child Welfare [“Band Rep.”], however, did not find a community connection for the father and he is not eligible for membership with the BFN. However, that does not exclude the possibility of affiliation as the BFN believes that the father is affiliated with that First Nation.

The preamble of the Child and Youth Family Services Act [“CYFSA”] is intended to be inclusive and to facilitate broad interpretations in order to recognize cultural, hereditary and traditional connections. The intent of the legislation, as read by this Court, is to avoid creating rigid barriers that would discourage persons from self-identifying. It is to promote self-identification and pride in being a First Nations person, even if this did not occur for one or more generations in the past. Under the CYFSA, it is possible for a child to identify as First Nations and not be a member of an Indigenous band or community (Children’s Aid Society of Ottawa v NP). A child’s identification as First Nations, regardless of membership, is important as there are many considerations under the CYFSA for Indigenous children.

As well, s 21 of the Ontario Regulations 156/18 [“O Reg 156/18”] directs the Court to accept hearsay evidence on this issue (Children’s Aid Society of Algoma v CA; CP and the Batchewana First Nation). This does not mean that all rules of evidence and some standard of proof does not apply. There must be evidence in relation to the child as to whether access is beneficial and meaningful to the child (Children’s Aid Society of the Regional Municipality of Waterloo v CT). Subsection 2(3) Article 1 of the CYFSA indicates that the person who has an ethnic, cultural or creedal ties in common with the child or the parent or relative of the child, is a member of the child’s community. Article 2 speaks of a person who has a beneficial and meaningful relationship with the child. The words “beneficial and meaningful” are used nine times in the CYFSA, however, those words are not defined by the CYFSA. While this proceeding is regarding the quality of the care being provided by the parents for the child, the interim without prejudice order provides the parents and the child with access to each other. In its protection application, the Society sought an order that each parent have access with the child. There has been no motion to terminate that access for either parent or that this access has been detrimental to the child. This indicates that there is some beneficial and meaningful relationship between each parent and the child. Accordingly, while it may seem intuitive, this supports a finding that each parent is a member of the child’s community.

Each parent has provided evidence of self-identification as an Indigenous person. The mother has provided evidence that she practices traditional Indigenous teachings and has an “association” with the BFN. There is no evidence, however, that the mother has any link beyond her personal choice and the evidence does not assist in creating an identification link between the child and the BFN (Children’s Aid Society of the Regional Municipality of Waterloo v CT). There is evidence that the father identifies as a First Nations person.

The O Reg 156/18 promotes the acceptance of hearsay evidence. The Court accepts the father’s evidence regarding his maternal grandfather and his own identification as an Indigenous person. Other evidence before this Court does not contradict that evidence and it is proof that meets the standard of being on a balance of probabilities. This is a recent awakening by the father, but it is not contradicted by any other evidence. The BFN intends to be inviting of the father and, in turn, the child. The BFN seeks to be involved in this proceeding and the level of involvement will be determined by the First Nation. It is appropriate that the BFN be added as a responding party in this proceeding and that the NFCS be substituted, in place of the Society, as the applicant. The Court finds the child is a First Nation’s child and the Society’s motion is granted. An order is made that the BFN is made a party to and respondent in this proceeding.

Catholic Children’s Aid Society of Toronto v ST and BF, 2019 ONCJ 207

The inability to name a child’s bands and First Nations, Inuit or Métis communities does not negate the initial determination that a child is a First Nations, Inuk or Métis child.

Wiyasiwewin Mikiwahp Native Law Centre

The Catholic Children’s Aid Society of Toronto [“Society”] has brought a protection application for SF, an 8-month-old child. The child is in need of protection pursuant to the Child, Youth and Family Services Act, 2017 [“the Act”]. At first the child was described as not a First Nations, Inuk or Métis child but the Court was not satisfied that it had sufficient evidence and adjourned the case for the Society to further explore the issue. After the matter returned to court, it was held that the child should be identified as a First Nations, Inuk or Métis child. The court is not precluded from finding that a child is a First Nations, Inuk or Métis child just because the child does not have any bands or First Nations, Inuit or Métis communities.

The child was brought to a place of safety due to concerns surrounding the parent’s mental health and capacity. The court endorsed that the Society must immediately investigate whether the child is a First Nations, Inuk or Métis child, based on information received from the mother. She stated that her mother had told her that she is of Métis background, but also that her mother had lied to her about many things, so she does not know if she is being truthful or not. The Society had not been able to connect with the grandmother, despite multiple efforts. Neither Indigenous Services Canada or any of the Métis organizations that were contacted had been able to confirm the family’s identity. The society did contact the great-grandmother, who confirmed that the family is Métis and that her mother was Indigenous, but that was all the information they had.

Once the court determines that a child is a First Nations, Inuk or Métis child, the second part of the statutory finding that must be made is to identify the child’s Indigenous bands or communities. There may be more than one band or community (Children’s Aid Society of Algoma v CA, 2018 ONCJ 592 [“CAS of Algoma v CA”]). The Act sets out that its paramount purpose is to promote the best interests, protection and well-being of children. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to such eligible individuals should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

The court must apply the definition of First Nations, Inuit or Métis child set out in the Ontario Regulation 155/18 for the purpose of identification under the Act and the criteria is exhaustive. The court should take a broad view in interpreting if the child has a connection to an Indigenous band or community under the regulation. This seems to be in accordance with the spirit of the Act which tends to be more inclusive when it deals with Indigenous peoples. Subparagraph 1(c) of the Ontario Regulation 155/18 uses the words “there is information that demonstrates that”, which sounds like a clear invitation to the person making the s 90(2)(b) determination of identity to rely on information that is not necessarily “evidence”. It says nothing about the standard of such information (CAS of Algoma v CA).

However, to just say that anyone can put forth a claim and have it accepted without question would be an open invitation to abuse the administration of justice. It could cause considerable harm to children by delaying decisions affecting them and would be disrespectful to the First Nations, Inuit and Métis persons the Act is intended to include. While the inability of a person to name specific Indigenous bands or communities might be a factor in assessing the identification issue, it should not be determinative. The reality is that due to the Sixties Scoop, many Indigenous persons now have fractured memories of their Indigenous connections and it is likely that many will not be able to name specific bands or communities. Evidence or information will often come from memories of discussions with relatives and will often lack detail. Many will not be registered with any First Nations band or belong to any First Nations, Inuit or Métis organization. In many cases, neither will their parents. This does not necessarily preclude the court from making a finding that the child is a First Nations, Inuk or Métis child. The new legislative provisions are an opportunity for these children to reignite lost connections with their culture and heritage.

The court should take a broad view in interpreting if a child is a First Nations, Inuk or Métis child (CAS of Algoma v CA). This is an approach that is consistent with the statements made in both the preamble and purposes section of the Act. It is this court’s view that only a low threshold of reliable and credible evidence or information should be sufficient to make a finding that a child is a First Nations, Inuk or Métis child. The Act and regulations set out considerable rights and additional considerations for these children that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. It would be contrary to the purposes of the Act to disenfranchise these children. If a child’s Indigenous bands or communities cannot be identified, it is the rights that are set out in the Act that are not activated. However, many other additional considerations still apply to First Nations, Inuit and Métis children in the Act and its regulations that should not be extinguished just because the child’s Indigenous bands or communities cannot be named. The same best interests test applies on an adoption application.

The court received information from the great-grandmother that she identifies as a First Nations, Inuk or Métis person. However, a great-grandmother is not a relative as defined in the Act. The legislature put a limit on how far back the investigation about a child’s family’s First Nations, Inuit or Métis connections would go to two generations before the child. However, the grandmother is a relative, and despite her lack of cooperation with the Society, she provided specific information to the mother that she identified as Métis. The problem the court initially faced was that the mother claimed that the grandmother was not truthful. This is where the subsequent information provided by the great-grandmother became important. Essentially, the great-grandmother corroborated the information provided by the grandmother to the mother, by stating to the Society that the family is Métis and that her mother was Indigenous. The court finds that this evidence and information is sufficient to meet the low threshold required to find that the child is a First Nations, Inuk or Métis child.

The Children’s Aid Society of Algoma v CA, 2018 ONCJ 592

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Relief granted for an amendment to the identification findings of a First Nation child and his band.

The Children’s Aid Society of Algoma (“the Society”) brought a motion seeking a determination under s.90(2)(b) and s.2(4) of the recent Child, Youth and Family Services Act (“CYFSA”) of whether L.A., who is one years old, is a First Nation child, and if so, that the Batchewana First Nation be added as a party Respondent in this child protection proceeding. Also sought in the relief was a determination that the Batchewana band is the child’s band. Although unusual to make such determinations through a formal motion claim, there is merit to this becoming common practice. The original identification motion did not identify L.A. as a First Nation, Inuit or Métis child based on the evidence in the file at the time. In this re-opened motion, there was additional evidence filed by the Society that included an affidavit of a band representative of Batchewana First Nation that was sworn almost 25 years ago. It was for a protection proceeding in which C.P., the biological father of L.A. in this present case, was the subject child. She stated that “[t]he child C.P. is eligible for registration with [the] Batchewana First Nation”. The Society served the band representative with its motion seeking identification findings. No evidence was filed by the band representative, nor were any submissions made by her on the issue of the identification of the child.

Identification findings under the previous Child and Family Services Act (“CFSA”) were rarely, if ever, done by way of a motion. Often, the findings, especially on Status were done summarily, with no sworn, or very thin, evidence. If no band representative was named as a party in the application, the band representative would have no standing to make any comment. Such a finding, if done by motion, would at least have some standards of evidence and might afford any band an opportunity to be heard prior to a finding being made. While there are now many possible ways by which a child protection court can determine whether a child is a First Nation child, under s.1 of O. Reg. 155/18 this is not the end of the Court’s duty. If the Court determines the child to be a First Nation child, it must then move on to determine the child’s “bands”. The plural is used because it is possible that the child may have more than one band with different membership criterion. To end the determination process once only one band has been identified may be a mistake as there might be benefits from having several bands, including more options in the child protection proceeding with several band representatives.

The first determination is whether a court can ascertain the views of the child on which band(s) the child identifies itself. If the child’s views cannot be ascertained, it is still a matter of whatever band(s) a parent of the child indicates the child identifies with. This information from a parent would likely be ‘hearsay’ that the court is directed by s.21 of O. Reg. 156/18 to accept without question. However, in any child protection case, a child may have multiple ‘statutory’ parents, including some not related by blood, and each of them is entitled to indicate one or more bands with which the child identifies. This rule of interpreting the child’s band does not seem to require a parent to justify his or her indication with any evidence or information. All that is required is that person’s indication of the band(s) with which the child identifies. On the other hand, a parent may fail to make any indication at all, which is not uncommon, as in the present case. Courts normally act on evidence but none seems to be required on this issue.

Another significant provision that is relevant to this motion is s.79(1) of the CYFSA which deals with who are statutory parties in a proceeding. This is important because it adds the child’s bands as formal respondent parties in the child protection, or Status review, application before the court, where an identification finding is made that a child is a First Nation child. From a band point of view, it provides all of the rights that any party has in the application and it permits the child’s band(s) to make an important contribution. It also enables the band representative to advocate its own interests in the proceeding which may or may not coincide with those of the child or another party. The band representative, however, is a party from the outset only if named as a party by the applicant in the application, which is usually a society. This requires a society to anticipate which band(s) should be named as parties. The recent CYFSA has introduced a much more complex process for identifying a First Nation child and its band(s). In this case, the Society has brought a motion seeking judicial identification of the child not only as a First Nation child, but also a determination of the child’s band if so identified. No band representative is named as a party in this child protection case. If this is going to become the status quo procedurally, then a band will have no say in whether a child is a First Nation child, or which is the child’s band. In the Court’s view, it would be better by far to have a band or bands involved in the identification determination under s.90(2) CYFSA. This is easily done by a motion.

As for the determination of whether L.A. is a First Nation child, the Court has to look for any information that a relative of L.A. identifies as a First Nation person. There is such information. The Society affidavit provides the information that the father’s father, that is the child L.A.’s paternal grandfather, was not only a Status Indian and had an Indian Status card, but was also a member of the Batchewana band. Indian Status and Batchewana band membership of the child’s relative is sufficient to find under O. Reg 155/18 s.1(c)(i) that L.A. is a First Nation child and his band is the Batchewana First Nation band. A band representative shall be added as a party Respondent in the child protection application. In the event that this finding is incorrect, the Court has recourse to subclause (ii) of O. Reg 155/18 s.1. which directs the Court to look for any information that demonstrates a “connection” between a child and a band. The characteristics of the connection are not described, therefore the Court has chosen a broader approach that seems to be more in accordance with the spirit of the recent CYFSA. The band or the First Nation still has the option of not participating actively in the case or with the child.

 

 

The Children’s Aid Society of Brant v SG

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Applicant’s motion for summary judgement denied. A Children’s Aid Society did not meet its onus for evidence in the pursuit of an order to place a child in extended care with no access.

The Applicant, the Children’s Aid Society of Brant (“The Society”), was seeking preliminary findings, protection findings and an order of disposition placing the child, M. G-D. (“M.”) born in 2017 and aged one year a the time of this application, in extended care with no access. The motion for summary judgment has been denied. There is ample evidence that M. is a medically fragile child. He has been diagnosed with a serious congenital heart condition known as ventricular septal defect as well as double outlet right ventricular transposition of the arteries, pulmonary stenosis and pulmonary atresia. He required the administration of oxygen at birth, has had heart surgery in June 2018 and will require further surgery in the future. M. must attend Sick Children’s Hospital in Toronto on a regular basis for cardiac follow-up, checks of his oxygen and saturation levels as well as close monitoring of his weight. There was additional evidence that demonstrated that when M. becomes ill he can become very ill very quickly and thereby requires timely medical attention.

The respondent father indicated that he identifies as Ojibway but does not have a “status card” and that the child does not have status as First Nations. The Society did not, despite court instruction to do so, clearly assess whether the child was First Nation, and if so whether there was an Indigenous community that was a party. It was apparent during numerous discussions and stand-downs that occurred, that no one understood precisely what questions needed to be asked or what the test was, let alone how to apply the information obtained to the legal test. In a child protection proceeding it is a vital question and a determination that the Court is statutorily obligated to make. M. is a young child who has been the subject of an application seeking extended care without access and has been in the Society’s care his entire life. His right to an orderly and expeditious hearing of the pertinent issues should never have been compromised by the lack of follow through on legislatively prescribed requirements. Section 90(2) of the Child Youth and Family Services Act reads as follows: “As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine, (a) the child’s name and age; (b) whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis communities; and (c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.”

The early determination of whether a child is First Nation and the appropriate Indigenous community is a particular priority for a number of reasons. First, it triggers an obligation by the Society to meet the child’s cultural needs. Second, if there is an identifiable Indigenous community, that community is a party to the proceeding and service is required. Child protection proceedings are conducted in the adversarial, not the inquisitorial style. The Court thus must rely on the parties to provide the requisite evidence in order to determine the issues. In the Court’s view, the Society’s assertion that its worker was only “informed” of the father’s status through service of his affidavit on November 1, 2018, does not assist it. Parents caught up in child protection proceedings are often stressed and vulnerable. It is not reasonable to assume that the parents will understand the need to self-identify at an early stage. Even where the parents have counsel, counsel’s primary obligation is to his or her client.  When a child is in Society care, the Society is that child’s guardian. The Society, therefore, has an obligation to that child to ensure these inquiries are made early and proactively.

These events have also been a “wake-up call” to this Court. Although the Court is dependent on parties providing evidence, the Court should be extremely mindful of its supervisory role to ensure that findings are, indeed, addressed “as soon as practicable”. In 2015, the Truth and Reconciliation Commission released a Call to Action under the heading Child Protection. It called upon the federal, provincial, territorial and Aboriginal government to commit to reducing the number of Aboriginal children in care. To that end, it asks the governments inter alia to “[e]nsure that social workers and others who conduct child welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.” It also implored governments to establish as an important priority a requirement that placements of Aboriginal children in temporary and permanent care be culturally appropriate. Neither of these steps can be effected if the Society is not diligent in ensuring early identification of First Nation children and their bands or Indigenous communities.

CCAS v GH and TV, 2017 ONSC 742

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A mere claim that someone is “Native” is not enough for a court to consider that an Aboriginal child will be at a “disadvantage” when weighing legislative factors in child protection matters. There needs to be more evidence of what is important to the family, the child, and the Aboriginal community the child is said to be a member of.

The Catholic Children’s Aid Society of Hamilton (the Society) sought an order for Crown wardship with no access regarding the child EDV, born […], 2015, who was apprehended at birth. The mother, GH, and the father, TV, were known to the Society since 2012 regarding protection issues with the couple’s older children. After the Society commenced a protection application regarding EDV on May 5, 2015, it decided to pursue a summary judgment motion in relation to that application in February 2016. It is then that the Respondent father, TV, argued that EDV is a Métis child, and that as such, he should be treated in the same manner as children who fall within the definitions of “Indian”, “Native person” and “Native child” under Ontario’s former Child and Family Services Act (CFSA) [the CFSA has since been replaced by the Child, Youth and Family Services Act (CYFSA) as of April 30, 2018]. All parties conceded that Métis children did not fall within the scope of those definitions as they stood at the time of the hearing, and that EDV therefore did not have “Indian” or “Native” status within the meaning of the CFSA.

TV alleged that the definitions of Indigenous identity in the CFSA violated s 15(1) of the Charter of Rights and Freedoms on the basis that they did not extend to Métis children. He sought an order pursuant to section 52(1) of the Constitution Act, 1982 declaring these invalid and a remedy pursuant to section 24(1) of the Charter directing that EDV be treated as if he were an “Indian”, “Native person” or “Native child” for the purposes of these child protection proceedings. The Society did not take a formal position on the CFSA’s identity definitions, and it stated that it had in all material respects treated EDV as if he were “Indian” or “Native”. As well, the CFSA identified the cultural background and ethnicity of all children as an important factor in child protection proceedings, which was apparent from numerous provisions in the Act.

After considering many factors, including Gladue principles, the Court concluded it should not deal with abstract questions, especially in the context of a constitutional question. Absent a more complete record, the s 15 claim could not succeed. This may not have been the result if there were a fuller evidentiary record, but the issue in this case was too theoretical. When considering Gladue principles in sentencing matters, they do not on their own justify a different sentence for Aboriginal offenders, but provide the necessary context for understanding and evaluating the case-specific information presented by counsel. It is difficult to apply the context referred to in R v Gladue and R v Ipeelee to the disposition stage of a child protection hearing. The child protection court is directed to order in the best interests of a child. Taking judicial notice of the historical reasons that may have contributed to an Aboriginal parent’s current circumstances is less likely to be helpful to the child protection judge faced with the decision of whether to return a young child to the parent than it may be to a sentencing judge grappling with whether to order a custodial sentence and, if so, its duration.

As for the issue of EDV’s “Native” status, it was noted that the Métis Ontario coordinator of their Healthy Babies Healthy Children Program contacted the Catholic Children’s Aid Society in 2012. The representative told them that TV had self-reported that he was a member of the Métis Eastern Woodlands of Nova Scotia, and as a result of that self-report, she was working with this family. However, no one pursued the issue until 2016 when the matter came up for summary judgment before Justice Chappel, where the parties consented to a finding that the child was Métis. There were extensive efforts to serve and seek out the involvement of the Eastern Woodlands Métis of Nova Scotia. However, the response was that they were not going to participate, they did not have any placement options, and that they were supporting the plan of the Catholic Children’s Aid Society to have the child EDV adopted. Justice Chappel ordered that the child EDV be considered “Native” for the purposes of this and any other child protection application.

The Society made every effort to see if other Métis communities would participate in the litigation or provide the family with a placement option. No one came forward. TV never followed up on any suggestions given for obtaining assistance for his many issues. He did not describe his family background at all, or give any testimony about his Aboriginal background or any connections that he had or has in a Métis community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program. The Court stated that it had compassion toward and recognition of the importance of “Native” heritage and families but this special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children. The paramount purpose of the CFSA is to promote the best interests, protection, and well-being of children. Where a person is directed in the Act to make an order or determination in the best interest of a child and the child is an “Indian” or “Native person”, the person shall take into consideration the importance, in recognition of the uniqueness of “Indian” and “Native” culture, heritage and traditions, presevering the child’s cultural identity.

In SB and BRM v Children’s Aid Society of Algoma and Mississauga First Nation, the Court addressed an appeal from an order for Crown wardship without access to the parents. The position of the Band was that access should continue so as to maintain the child’s connection to her Aboriginal community and to avoid the long-term consequences of cultural dislocation and estrangement from her roots, including from her siblings who resided on the reserve. However, there must be evidence of the nature of the involvement of the child’s family in the “Native” community which is lacking in this case. The mere claim that someone is “Native” does not allow the Court to consider the relevant factors within the legislative scheme, without some evidence of what is important to the family, the child, and the Aboriginal community the child is said to be a member of.

The Court decided that it was in the best interest of EDV to be made a Crown ward with no access, the Society was directed to make every effort to ensure that any foster parent and/or adoptive placement was willing to educate the child on his Aboriginal heritage and culture, to expose the child to this culture on an age-appropriate basis and provide the child with knowledge of any governmental benefits available to the child as a result of his “Native” status.

Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931

Self-identification of Indigenous ancestry submitted at the appeal level of court, does not alone constitute as fresh evidence to overturn a trial decision when there has been no error of law. Trial decision of no access for a Crown ward restored.

This is the second appeal from a trial decision involving a 10-year-old girl that was made a Crown ward with no access for the purpose of adoption. The biological parents appealed the no access order. The first appeal judge concluded that, although the trial judge did not err, the parents should have access. He outlined what he considered to be: a miscarriage of justice; the trial judge’s interference, bias and abuse of the trial process; procedural delay; and the incompetence of trial counsel. He invited costs submissions personally against trial counsel for the parents. This appeal restores the trial judge’s order of no access; dismisses the parents’ cross-appeal; and allows the cross-appeal of counsel on ineffective assistance and the consequent costs order.

After the initial trial, the parents filed affidavits that declared for the first time that the father was Cree and the mother was Mi’kmaq. The reasons from the first appeal judge are a scathing review of Ontario’s child welfare system and an apology to the parents for the manner in which they were “treated, ignored, demeaned and disbelieved.” He considered fresh evidence, including an affidavit which indicated that the child loves her parents, wanted to see her parents, but also wanted to be adopted by the proposed adoptive parent. By this time, the child had been with the proposed adoptive parent for almost two years and was flourishing.

The test for fresh evidence in a child protection matter is more flexible than in other types of cases. Statutory requirements for access to a Crown ward according to the Child and Family Services Act (the Act), however, puts the onus on the parents who seek access to present evidence that satisfies the test in CAS Hamilton v CG. First, the relationship between the person and the child must be beneficial and meaningful to the child, as opposed to the person seeking access. Second, the access must not impair the child’s opportunities for adoption. There was uncontroverted evidence that the adoptive mother would not adopt if there was contact with the parents, which would then make the access order statutorily impossible. The first appeal judge nonetheless ordered access and erred in doing so. Simply put, when a Crown wardship order is granted with access, the parental relationship with the child is preserved. When a Crown ward is sought to be placed for adoption, the goal is permanency and the success of the adoption.

The parents submitted on the first appeal, and before this court, that a child’s Indigenous heritage introduces different considerations into the access analysis. There is potential harm to Indigenous children if adopted by non-Indigenous families, as they often experience challenges, risks, and vulnerabilities that other children adopted across cultural and racial boundaries do not have. The parents argued that if they do not have access to the child, she is likely to suffer from a lack of connection to her Indigenous culture, heritage and community. Courts recognize the pervasive effects of the historical and continuing harms to First Nations families. This does not, however, automatically exempt Indigenous children from the access provisions for Crown wards under the Act.

A parallel can be drawn with the court’s approach to the sentencing of Indigenous offenders. In R v Ipeelee, the Supreme Court describes the proper approach where courts must take judicial notice of such matters as the history of colonialism, displacement, residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders but provide the necessary context for understanding and evaluating the case-specific information presented by counsel. While Gladue principles do not directly apply to access to a Crown ward, the Supreme Court’s comments about context and the need for case-specific evidence are instructive.

The first appeal judge made no mention that the parents or the child were in any way involved in an Indigenous community or its culture. There is no evidence that the parents had any connection to their culture, that the child was ever exposed to the Indigenous culture, or that anyone from the Indigenous community had ever been involved with the parents or the child. Because of this, the second appeal judge found that there was no evidentiary record in this case to balance the importance of the uniqueness or preservation of the Aboriginal heritage of the child when considering the other factors set out in the CFSA.

Although the second appeal judge recognized that Indigenous membership has expanded to include self- identification, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The first appeal judge erred by ordering access based on nothing but the parents’ self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child.