Appeal to vary or terminate a permanent committal order under The Child and Family Services Act dismissed. Among other issues, the variation judge appropriately weighed the importance of the children’s Indigenous heritage in assessing their best interests, it was not an error to rely on hearsay evidence in a Opikinawasowin report prepared through Saskatoon Tribal Council, and there was insufficient evidence to find any breach of section 7 of the Charter due to delay in delivery of judgment.
Indigenous Law Centre – CaseWatch Blog
This appeal concerned a proceeding under The Child and Family Services Act [“Act”], where two of the Appellants’ children were apprehended by the Ministry of Social Services [“Ministry”]. At the time, the Appellants were struggling with addictions. Violence was also a problem in the home.
In June 2013, it was determined that the children were in need of protection within the meaning of the Act and ordered that they be committed permanently to the care of the Ministry. In 2016, the Appellants applied to vary or terminate the permanent committal order. Nearly two years passed before the judge who heard the application rendered a decision dismissing it. The variation judge relied in part on the recommendation of the Elders who participated in an Opikinawasowin (a Cree word that translates to “the child rearing way” in English), and concluded that the Appellants had failed to demonstrate either that there had been a material change in circumstances, or that the best interests of the children would be served by varying or terminating the permanent committal order.
The Appellants now appeal from the Variation Decision. They also argue that, by taking nearly two years to render a decision, the variation judge caused delay that violated their rights under section 7 of the Charter.
The variation judge acknowledged that the Appellants had made significant progress in their individual battles with addiction but he remained concerned that they had not addressed the issue of violence within their home. He determined the best interests would be served by remaining in a stable home where they had lived for most of their young lives and maintaining the familial bonds that they had developed with their younger sister and foster family. This decision was made after careful reflection, notwithstanding the fact it meant they would be adopted by a non-Indigenous person.
The variation judge did not underemphasize the importance of the children’s cultural heritage in reaching this conclusion. His reasons indicate that he considered a multitude of factors, including those set out in the Act. Given the discretionary nature of a judge’s task in deciding what weight to assign to each of those factors in the ultimate balancing exercise, and the governing standard of review, this Court is not persuaded that there is any basis to interfere with his conclusion.
As well in this case, there is simply not an adequate evidentiary basis upon which to properly assess the question of whether the judicial deliberation delay violated the Appellants’ rights under section 7 of the Charter. There is no evidence that the Appellants ever expressed concern about delay prior to the variation judge issuing his decision. Nor is there any evidence as to what impact the delay had on the Appellants, the children, or on any of the issues the variation judge was required to consider in disposing of the variation application. The Appellants have not persuaded that all the facts necessary to address the section 7 issue are before the Court (Canada (Attorney General) v Bedford, 2013 SCC 72).