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.

Law Society of British Columbia v Coutlee, 2018 LSBC 33

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A law society hearing panel agreed to adjourn a hearing and recommend that it be reconstituted with an Indigenous member on the basis that its lack of Indigenous representation raised an apprehension of institutional bias.

A Hearing Panel of the Law Society of British Columbia (the Panel) granted an application to adjourn the hearing of a disciplinary citation against the Respondent, that concerned a failure to abide by practice restrictions. The decision to adjourn the hearing was in reaction to the second of two applications made by the Respondent at the outset of the hearing of the citation. The Respondent’s first application was dismissed. It asked that the citation be withdrawn or stayed as being baseless and in breach of natural justice and procedural fairness. The Respondent’s second application was for a determination that the Hearing Panel should include a person who is either an Indigenous lawyer or Elder. The Respondent did not assert any actual bias in the members of the Panel. Yet he argued that he would be more confident in the decision of the Panel, if reconstituted as requested, as being non-discriminatory and having weighed the evidence fairly. Counsel for the Law Society took no position on this application except to oppose any decision by the Panel that would result in an adjournment of the hearing of the citation.

The Respondent referred to the analysis of the Supreme Court of Canada’s decision in R v Kokopenace as a basis for his right to be treated differently, at least to the extent of ensuring that he is “tried” or heard by a panel that includes an Elder. The Respondent argued that this give him more confidence that the Panel was not biased against him as an Indigenous person. Counsel for the Law Society distinguished Kokopenace as dealing with an accused’s right to a fair trial under Section 11 of the Charter of Rights and Freedoms, submitting that this does not apply to the proceedings before a Law Society hearing panel because they do not attract true penalty consequences.

In reaching its decision, the Panel did not rely on Kokopenace, but they were guided by challenges identified in the Truth and Reconciliation Commission’s Final Report. The Panel also concluded that specifically addressing cultural competencies on the Panel is warranted in this case.

The Panel granted the Respondent’s application by adjourning the hearing and making a recommendation to the President’s Designate that the Panel be reconstituted to include an Indigenous person. The Panel found that a failure to reconstitute the Panel with an Indigenous member would be inconsistent with the values and objectives of the Law Society that are made evident in its commitment to its Truth and Reconciliation Advisory Committee Report.

Alberta (Child, Youth and Family Enhancement Act, Director) v JR, 2018 ABPC 258

United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission Calls to Action, and Gladue principles inapplicable to child protection matter.

JR and AL are the parents of seven children ranging in age from nine months to nine years. Both parents have been diagnosed with cognitive and intellectual disabilities. Throughout their time spent together and apart, JR and AL suffered from multiple addictions, which aggravated domestic violence issues between them. All seven children have spent considerable time in state care due to the domestic violence and addictions suffered by their parents. The youngest children even tested positive for methamphetamines post-birth. The oldest children display severe behavioural issues and are likely to struggle in future years, thereby needing a stable and safe environment.

The applicant, Kasohkowew Child Wellness Society (KCWS), exists pursuant to a tripartite agreement between the Province of Alberta, the Government of Canada and the Samson Cree Nation. KCWS brought an application under the Child Youth and Family Enhancement Act RSA 2000 c C-12 (CYFEA), for a permanent guardianship order for all seven children and this was ultimately granted by the Court. Counsel for AL opposed the application, making submissions in favour of less invasive action based on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Truth and Reconciliation Commission (TRC) Calls to Action, and the principles set out in R v Gladue, [1999] 1 SCR 688.

With respect to UNDRIP, counsel for AL pointed to Article 7.2, which states “Indigenous individuals have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence including forcibly removing children of the group to another group (emphasis added)”. In response, the Court pointed out that KCWS is a delegated First Nations authority established under a tripartite agreement to provide child, youth and family services to Samson Cree Nation. The Court found it difficult to assume that such an authority would be at all involved in discriminating against its own people. Instead, the Court assumed that the director would only remove children and place them with non-Aboriginal foster parents as a last resort, and that the director found it in the best interests of the children to do so. The Court held that UNDRIP is aspirational and does not trump the best interests or physical and mental safety of the child.

Counsel for AL quotes several TRC Calls to Action that relate to reducing the number of Aboriginal children in care. She pointed out that some of the child welfare workers directly involved with the family were not Cree or even Aboriginal. However, the TRC Calls to Action she quoted only calls for child welfare workers to be properly educated and trained in the history and subsequent impacts of the residential school system, and about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing. The TRC did not say that all child welfare workers must be Aboriginal.

As for the potential applicability of R v Gladue, submissions of this type are usually in the context of criminal law cases, not child protection matters. The Court noted that the purpose of the CYFEA is not to punish parents, but to protect children and achieve what is in their best interests. In this case that would be stable, permanent and nurturing relationships and continuity of care for all seven children. As far as the negative impacts regarding the transmission of Cree culture, steps had been taken to keep the children together as much as possible. It was necessary to have the two youngest children placed in a group home, but the older five children are all together in one foster home. In terms of the preservation of the uniqueness of the children’s Aboriginal culture, heritage, spirituality and traditions, the Court was convinced that all appropriate steps were taken by KCWS to ensure these needs are met for the children.

National Aboriginal Day Celebrations

 BY CHRISTINA GRAY

Photo Credit: Lynda Gray, Ts'msyen Author of First Nations 101.

Photo Credit: Lynda Gray, Ts’msyen author of First Nations 101.

This June 21st, 2016 is significant as it marks 20 years since National Aboriginal Day was instituted as a national holiday in Canada. This is the one day specifically for Aboriginal people (and non-Aboriginal) across Canada to come together and celebrate, share meals, stories, music, and partake in cultural activities ranging from salmon feasts, canoeing to listening to throat singing.

Aside from being National Aboriginal Day, June 21st is also the summer solstice. It’s the longest day of the year and the shortest night of the year. This year we were fortunate enough to see the Strawberry Moon where the moon shone bright pink. It’s naturally a day to spend time in the warmth of the sunshine and celebrate the earth’s rotation in bringing us a renewed wealth of life.

People from all walks of life on June 21st come together to recognize our diverse cultures. In cities it can often feel stifling or invisible to be an Aboriginal person with distinct legal traditions, culture, history, and a distinct past. One that includes a lot of cultural and legal strengths, but that is often fraught with continued difficulties.

This last year the Truth and Reconciliation Commission formally closed in Ottawa with the release of their Final Report and Calls to Action. The closing of the TRC ended their 5-year mandate as part of the “truth telling and reconciliation process” in response to the Indian Residential School legacy.

At the TRC closing there was a lot of good energy shared between people. There was a walk for reconciliation, workshops, musical performances, art exhibits, and informal drumming and dancing that happened in the streets and hotel foyers. That energy will never be forgotten and neither will the residential schools’ dark legacy. This day is part of recognizing the truth-telling that happened through the TRC.

On my way home, I had a conversation with my mom about the good energy that I felt from attending the closing ceremonies. I left Ottawa with a renewed sense of who I am as an Aboriginal person living in a big city. I had time to reflect and find strength from being with survivors and allies. Attending the TRC was truly an internal and external reconciliation with Canada’s residential school legacy.

On June 22nd, there will another opportunity to build relationships, reconcile, and celebrate who we are as Aboriginal people in Canada. Over 300 school children, Aboriginal people, and community members will be doing just that at the Walk for Reconciliation at Saskatoon’s Victoria Park at 10am. This walk is to commemorate the one year that has passed since the TRC’s closing and for people to “rock your roots”. Let’s continue that good energy that was felt at the TRC’s closing and be proud of our distinct heritage, be it Mayan from Oaxaca, Dene, or Cree!

About the Author: Christina Gray is legally trained and works in Publications at the University of Saskatchewan’s College of Law, Native Law Centre of Canada. A first people of the Ts’msyen of Lax Kw’alaams, Dene from Lutsel K’e, and Red River Metis.