In The Matter Of A Hearing Under The Child and Family Services Act, Ss, 2021 SKQB 2

It is in the best interests of a First Nations child to stay with the current caregivers who are pursuing an adoption plan. Although it is encouraged that her First Nations paternal grandmother be in contact and included in her upbringing, the grandmother’s custody application is dismissed. The child should not have her living arrangements disrupted, as she is loved and cared for; one caregiver is a member of the First Nation; and there is cultural continuity.

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T.L., who turned nine years in 2021, was first apprehended in the fall of 2015 by the Ministry of Social Services and then subsequently transferred to the Yorkton Tribal Council Child and Family Services Inc [“YTCCFS”]. Following her apprehension, she began living with her grandfather, M.S. on White Bear First Nations. M.S. had T.L. enrolled at the local playschool and called upon his sisters from time to time to assist with her care. Nevertheless, M.S. had concerns raising her by himself, thereby D.L. and C.Y., her current caregivers, welcomed T.L. as their daughter and do not differentiate between her and their other children. M.S. continues to play an active role in T.L.’s life, and she continues to have frequent visits with her grandfather. YTCCFS now requests a permanent order pursuant to The Child and Family Services Act [“CFSA”] with respect to T.L. with the intent of pursuing an adoption plan with her current caregivers.

A.D. is T.L.’s paternal grandmother. A.D. had no knowledge that T.L. was her granddaughter until her son informed her of the DNA results in the summer of 2018. Upon learning of T.L., A.D. contacted YTCCFS. A.D. was first introduced at D.L.’s and C.Y.’s home. A.D. was aware that YTCCFS supported T.L. remaining with D.L. and C.Y., but she was opposed to that arrangement and that year applied for an order finding her to be a person of sufficient interest, custody and access to T.L. A.D. asks for custody pursuant to The Children’s Law Act, [“CLA”] or, alternatively for T.L. to be placed in her care as a person of sufficient interest pursuant to the CFSA.

As T.L. is First Nations and a member of White Bear First Nations, consideration of her best interests requires thought be given to her cultural, linguistic, religious and spiritual upbringing and heritage, among other things. Regardless of which Act is applied, T.L.’s best interests must be considered. Some of the factors to be considered under the CFSA are similar to those found in the CLA but there are additions (Saskatchewan (Minister of Social Services) v S(EK) (1996), 146 Sask R 46 (QB)). Bill C-92 sets out principles which underly the legislation, including the best interests of the child and cultural continuity. It is required to the extent possible, that these factors be construed in a manner consistent with the law of the Indigenous group. White Bear First Nations “opposes permanent wardship orders and adoption orders involving non-[A]boriginal foster parent(s) when there is a White Bear First Nations band member(s) or other First Nations individual(s) or family member(s) able and willing to care for the child(ren) in question” (White Bear First Nations, Band Council Resolution).

T.L., through her grandfather, M.S., has been exposed to her cultural and spiritual heritage. It was through M.S. that T.L. was introduced to D.L. and C.Y. D.L. and C.Y. are part of M.S.’s family. T.L. developed strong relationships with D.L. and C.Y., whom she now calls “mom and dad”, and her siblings Z.L. and G.L., who reside in the home with her. D.L. is a member of White Bear First Nations, and although his spouse, C.Y. is Caucasian, she encourages T.L. in cultural activities. Her sister, T.H., who she had never met prior to M.S. taking her on a visit in 2017, now resides in D.L.’s and C.Y.’s home with her and have grown close. Bill C-92 specifically speaks to the need for stability. T.L. has had a connection to M.S. her entire life and has maintained that connection though she now lives with D.L. and C.Y. She is settled in their home and enjoys her school and friendships.

It is unfortunate that the parties are in conflict and compelled to speak ill of the other and find fault in the other’s care of T.L. Both A.D. and M.S. are residential school survivors, and both turned to alcohol in early adulthood. Both rediscovered their cultural and spiritual heritage following their commitments to sobriety. Even if they are not up to A.D.’s standards, it is unclear why A.D. as a grandmother and Elder, particularly when she lives minutes away, could not provide additional guidance and input respecting cultural heritage without the necessity of having T.L. live with her. The current care arrangement with D.L., C.Y. and M.S. is in keeping with the tradition of family stepping up to care. A.D. is a blood relative and is also family but until two years ago, she was a stranger.

The relationship most important to T.L. is her relationship with M.S. The parenting plan will secure that relationship. Both D.L. and M.S. are members of White Bear First Nations and an ongoing relationship with the community is therefore ensured. M.S., D.L. and C.Y. will also ensure cultural continuity and expose T.L. to Indigenous culture and heritage. T.L. can only benefit should A.D. choose to supplement that exposure through her own involvement with her granddaughter. YTCCFS was of the view that T.L. could only benefit from relationships with both her maternal and paternal sides of the family. The plan is also consistent with the White Bear First Nations’ band council resolution as T.L. will remain with a member of White Bear First Nations, D.L. YTCCFS should be permitted to pursue the plan as recommended as it will ensure T.L. has the stability she requires and the ongoing love of family. It is in T.L.’s best interests that she be permanently committed to the Ministry with a view to pursuing the adoption by D.L. and C.Y .

TA v Alberta (Children’s Services), 2020 ABQB 97

The Plaintiff, a Cree woman, filed a Statement of Claim against a number of parties after her children were apprehended by Children’s Services. The Application to strike the Statement of Claim and the Application for Summary Judgement were granted. 

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The Plaintiff [“TA”] is a Cree woman whose six children were apprehended pursuant to court orders under the Child, Youth and Family Enhancement Act. The Claim criticized Edmonton Children’s Services’ [“CS”] handling of the apprehension of the children and sought a broad range of remedies. The Defendants pleaded that CS owed no legal duty of care to TA as the subject parent responding to CS actions and that the child protection proceedings have been handled properly and in good faith. The psychologist who assessed TA additionally asked for summary judgment on the basis that the only evidence has shown that they met their standard of care and acted in circumstances of qualified privilege.

The Defendants applied to strike the Claim as an abusive collateral attack on child protection proceedings pursuant to Rule 3.68(2)(d) and because it disclosed no cause of action. The Court relied on the rule that it is an abuse of process to attempt to relitigate a matter already decided (Dykun v Odishaw, 2000 ABQB 548). Further, the Court found that the wrongs in which TA says were done to her do not create causes of action against the Defendants, and the remedies she asks for are mostly beyond the jurisdiction of this Court. The action is doomed to fail because the mere fact that someone has done something that you do not like, treated you unfairly, or caused you emotional distress, does not automatically create a right to sue them.

The Claim was struck in its entirety, save for the defamation claim against the psychologist. The Court looked to Rule 7.3(b) which provides that a party may apply for a summary judgment where there is no defence or merit to some or part of a claim (Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49). The plaintiff offered no factual basis to conclude the professional assessment was conducted negligently.

The Court concluded that the lawsuit is an abuse of process in the technical sense that it attempts to relitigate completed court proceedings and is based on a variety of complaints that do not give the Plaintiff a cause of action, irrespective of whether they are accurate or not. The application to strike the Claim and the application for summary judgment are granted.

R v Amaaq, 2020 NUCA 11

The Court of Appeal overturned a conditional sentence order of two years less a day and a consecutive three year suspended sentence for aggravated assault against an Inuk mother found guilty of committing these offences against her five-year-old child. The Court of Appeal varied the sentence for aggravated assault by imposing a term of imprisonment of two years less a day followed by a three year period of probation to be served consecutively to the two year conditional sentence for failure to provide the necessaries of life. At the joint request of the Crown and defence counsel, Ms. Amaaq’s obligation to serve jail time was stayed to avoid jeopardizing the future welfare of another child who would likely be placed in foster care if she were imprisoned. 

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The Crown appeals sentences imposed by the Nunavut Court of Justice on December 12, 2019 for two offences the respondent committed against her five-year-old child over an approximately ten-week period – a two-years-less-a-day conditional sentence order for failing to provide the necessaries of life and a consecutive three-year suspended sentence for aggravated assault. The Crown requests that this Court set aside the sentence for aggravated assault and impose a jail term “in the range of 2 years less a day”, as this is the second time the respondent has been convicted of assaulting this child.

The five-year old’s body was covered in bruises and bite marks. He suffered severe internal injuries – a lacerated liver and spleen, a kidney contusion, a fractured rib and an obstructed bowel. The youngster told the examining nurse he could not recall the last time he ate. The child’s height and weight was in the fifteenth percentile for his age.

The sentencing judge tried to produce a sentence faithful to Gladue factors. However, a noncustodial sentence for the aggravated assault conviction fails to take into account Parliament’s direction in section 718.01 of the Criminal Code to “give primary consideration to the objectives of denunciation and deterrence” if the offender abused a person under eighteen years of age. The Court grants leave to appeal and varies the sentence for the aggravated assault conviction by imposing a term of imprisonment of two years less a day followed by a three-year probation period to be served consecutively to the two-year-conditional sentence for the failure to provide the necessaries of life.

The Crown and the respondent asked to stay any custodial sentence that may be imposed to allow the offender to discharge her parental obligations to her four-year-old daughter. The offender has shown no signs that she is a danger to this child or the community. The offender’s daughter would most likely be placed in foster care if the offender was incarcerated. Foster care, would be a poor second choice in these circumstances and would jeopardize the future welfare of yet another of the offender’s children. Had only the respondent’s counsel made this request, the Court most likely would not have granted it, as the Court would be extremely reluctant to dilute, in any way, the message that those who imperil the physical and mental welfare of their offspring are guilty of a grievous breach of trust and merit a term of imprisonment. The youngster’s grandmother has adopted the young boy and assumed the duties and responsibilities of parenthood late in life.

SL (Re), 2020 ABPC 194

The Court rejected a mother’s application for a hearing on the alleged non-compliance of the Director of Children’s Services with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 in context to an application for a Temporary Guardianship Order over her five children. She alleged the Director failed to provide notice of the apprehension to her and the Indigenous governing body of her children. The Court found it impossible to ascertain who or what comprises an Indigenous governing body and held there was no factual basis or statutory authority for the application.

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The Director of Children’s Services [“Director”] has applied for a Temporary Guardianship Order [“TGO”] with respect to five siblings. There has been a long-standing history between the family and Children’s Services dating back to 2008. Concerns centered around substance abuse and domestic violence.

In 2020, police responded to the family’s home after being alerted to domestic issues between the parents who had engaged in a night of drinking. Ten days after a safety plan was put in place requiring the parents to remain sober, the police once more attended the home. The parents and one of the adult sons were found to be intoxicated and displayed aggressive behaviour towards the officers who responded to complaints. At the time, all five children were present in the home and were apprehended as there was no sober adult who was able to care for them.

Four days after the apprehension took place, the Director served the Dene Tha band designate with formal notice of its application for an Initial Custody Order, as well as a TGO. To date, no one has appeared on behalf of the band designate. The parents consented to an Order for Initial Custody. Both were represented by counsel at the time. The substantive application for a TGO remains outstanding.

The mother has now asked the Court for a hearing to rule on the Director’s alleged non- compliance with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 [“Act”]. Her concern relates to the alleged failure of the Director to provide notice prior to the emergency apprehension of the children.

The Child, Youth and Family Enhancement Act [“CYFEA”] is provincial legislation enacted by the Government of Alberta. While large swaths of the legislation confer power to the Provincial Court in granting certain orders, the Provincial Court does not have exclusive jurisdiction over every aspect of the CYFEA. In the case at bar, the Director’s substantive application seeks temporary guardianship of the children, thereby the Court has jurisdiction over this matter.

The Act is federal legislation which applies to Indigenous children in the care of the Director. The federal legislation does not articulate what remedies, if any, are available when a party is non-compliant with or in breach of the statute. Similarly, the CYFEA does not set out what consequences may arise if the Director fails to provide notification of a child’s apprehension. The CYFEA does permit an individual who is affected by a decision of a director to request a review. If the guardian is dissatisfied with the Director’s review, they may appeal to the Appeal Panel and thereafter to the Court of Queen’s Bench (RP v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 306).

It would appear that the mother did, in fact, have notice that the children were to be apprehended as she was present at the time that the police made its decision. The federal legislation does not specify how or in what form the notice should be given. As such, oral notice is sufficient given the circumstances of this case. Any requirement of notice pursuant to s 12 of the Act must always consider the best interests of the children. In instances where law enforcement is required to respond in the middle of the night and finds that children are in harm’s way due to the condition of the parents, the primary principal step taken by peace officers must always be to protect the said children. Such a step is consistent with the children’s best interests.

As well, the Court finds it impossible to ascertain who or what comprises an Indigenous governing body. The children belong to the following Indigenous governing bodies: Dene Tha First Nation in Alberta; Frog Lake First Nation in Alberta; Witchewan Lake First Nation in Saskatchewan; and Onion Lake first Nation in Saskatchewan. The term Indigenous governing body is defined in s 1 of the federal legislation as a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Neither legislation provides any guidance on how determination of a child’s band affiliation is made, which is integral to the Director’s ability to identify which Indigenous governing body or bodies should be contacted. The Act does not address instances where a child has hereditary connections to several bands, nor on the required strength of any hereditary connection. In this case, the Dene Tha band designate has not appeared in Court, nor made any representation despite the provision of notice to it. The mother has not provided any additional information, including which children belong to which bands; the manner of the connection; or whether any of the children belong to more than one band. Jurisprudence on this topic provides limited guidance to the case at bar. If the Indigenous governing body wishes to participate, it would need to satisfy the Court that it is in fact authorized to act on behalf of the group, community or people. The mother has failed to establish any nexus between her rights and those of an Indigenous governing body.

JEO v MD, 2020 ONSC 6106

The Court dismissed an appeal from a customary care provider seeking sole custody of a child with access to her natural parents at the care provider’s discretion. Under the Child, Youth and Family Services Act, 2017, Customary Care Agreements are to be preferred even to child protection proceedings in the case of Indigenous children. It would be inconsistent with this regime to allow an individual to bring a custody application that could result in a court order collapsing such an agreement, thereby disregarding the voluntary parental participation and Indigenous community input that defines it.

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 This appeal concerns the intersection between a Customary Care Agreement [“CCA”], and the application by an individual for custody of a child under the Children’s Law Reform Act [“CLRA”]The Appellant seeks to lift the stay imposed by the motion judge on her application under the CLRA for sole custody of an Indigenous child, with access to the child’s natural parents at the Appellant’s discretion. The errors that the Appellant alleges mainly focus on the motion judge’s use of s 103 of the Child, Youth and Family Services Act, 2017 [“CYFSA”] as the authority for the stay that was imposed.

Kina Gbezhgomi Child and Family Services [“KGCFS”] had been involved with the child’s parents since 2000 because of issues relating to domestic violence and substance abuse. Older children of the parents were being cared for by a relative in the community. Two other children were made Crown wards in 2009. In 2013, the mother’s file was reopened when KGCFS was advised that she was pregnant again.

Once born, the child was apprehended by KGCFS, which brought a protection application and placed her in the Appellant’s home for fostering. The Appellant is married to the child’s paternal great uncle. In 2014, a Wikwemikong Band Council Resolution was passed, resolving that the child would be in the care of the Appellant. This was done by Wikwemikong Unceded Indian Reserve [“Wikwemikong”], the child’s First Nation, in “exercising its inherent authority and responsibility for the care of children of their community” and so that KGCFS could grant the Appellant a subsidy for care according to the custom of the Band/First Nation.

 A CCA was made and came into force in 2015. As a result, the protection proceeding that had been initiated was withdrawn. Parties to the CCA are the mother, the father, Wikwemikong, the Appellant, KGCFS, and the Children’s Aid Society. The CCA was described as a “Long-Term” CCA which could be in effect until the child reached the age of 18 years. The CCA states that the Appellant, who is a Wikwemikong resident, is to be the “customary care provider.” She is given authority to consent to medical, surgical, dental, educational, psychological or diagnostic treatment and anesthetic care that a qualified medical or dental practitioner might recommend.

In 2018, the Appellant brought an application for full custody of the child under the CLRA, stating concerns with the parents. KGCFS may have had some concerns relating to the Appellant, but she had been working with them on a voluntary basis and that she wanted to terminate the CCA. The motion judge considered various sections of the CYFSA relating to the protection of First Nations, Inuit and Metis children. He reasoned that if a CCA was entered into, then it would be by agreement, and should be accorded deference as “a complete code for the resolution of child protection cases in appropriate circumstances.” The motion judge read CCAs into s 103 of the CYFSA as a valid reason for a stay of a custody application under the CLRA, as to conclude otherwise would be to diminish the importance of CCAs. To permit the custody application to continue would also invite the court to disregard the intent of the parties in setting up the CCA, which constituted a voluntary meeting of minds.

 The motion judge stayed the appellant’s CLRA application for custody pursuant to s 103 of the CYFSA, and is subject to a correctness standard on appeal (Housen v Nikolaisen, 2002 SCC 33). To assess the order made by the motion judge, the terms of s 103 of the CYFSA must be considered, its purpose, and legislative intent in child welfare legislation. Section 103 of the CYFSA dictates the pre-eminence of child welfare legislation, where child welfare proceedings have begun or an order has been made in those proceedings, and a person seeks custody under the CLRA. This section underscores the well-established principle that child protection legislation will take precedence over the jurisdiction granted to courts by other provincial legislation dealing with matters of custody (Fortowsky v Roman Catholic Children’s Aid Society of Essex (County), [1960] OJ No 600 (CA)). Section 103 protects the integrity of the child welfare placement by ensuring that no other court can substitute its decision for that of the child protection court (Children’s Aid Society of St. Thomas and Elgin County v CZ and JH, [2003] OJ No 4177 (CA)).

CCAs act as an alternative to child protection proceedings and serve as an expression of Indigenous community values in the sphere of child protection. In the circumstances of the CCA in this case, it would have been appropriate to exercise the court’s discretion to stay the CLRA application. That is not to say that any and all CCAs will equally merit the protection of the court against CLRA applications. The motion judge, however, committed no error in imposing a stay of proceedings on the Appellant’s CLRA application.

AM v Ministry of Social Services, 2020 SKCA 114

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.

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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).

CAS v KC and Constance Lake First Nation, 2020 ONSC 5513

The Court issued a temporary order for twin children to be returned to the care of their mother on terms of supervision. Among other things, the Court interpreted the interplay between the federal Bill C-92 and Ontario’s Child, Youth and Family Services Act as establishing an augmented best interests test that overrides the hierarchy of placement for Indigenous children in Bill C-92.

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An Indigenous mother [the “Mother”] does not deny that her twins were in need of protection but that it is in the children’s best interests to be returned to her care on terms of supervision. The Court interprets the interplay between Bill C-92 and the Child, Youth and Family Services Act as establishing an augmented best interests test as the paramount consideration that overrides the hierarchy of placement for Indigenous children set out at section 16(1) of Bill C-92. A rote application would be to the detriment of the best interests of the Indigenous child, which detracts from the legislation’s overall goal of promoting substantive equality between Indigenous and non-Indigenous children.

The Mother is a member of Constance Lake First Nation and has extended family residing there. The Mother does not know the identity of the twins’ biological father, as she was homeless and had relapsed with drug addiction when they were conceived. Although she is addicted to opiates, she has been on a methadone program for three years. She has not used opiates since discovering she was pregnant. The Mother came to the Society’s attention following her voluntary participation in the Healthy Babies, Healthy Children prenatal program in the month prior to the twins’ birth, when a call was made by an employee of that program.

The Mother’s post-traumatic stress disorder stems in large part from unrelated events that stink of racism. In 2017, a man was stalking and harassing the Mother. No charges were laid and, instead, Mother was told by police that they would warn the man to stay away from her. Police neither warned off the man, nor was any report filed about the Mother’s complaint. Police failed to advise Mother of the man’s 56 prior convictions including sex offences and an assault on his own 18-month-old child. When the man later attempted to rape the Mother, who fought him off and fled, he called Sudbury Regional Police who charged her with Break and Enter and Assault.

Although she initially intended to take the matter to trial, the Mother found the situation overwhelming and pleaded guilty to the reduced charge of unlawfully entering a dwelling house. Two subsequent instances of questioning by separate police agencies about the same violent assault from which Sudbury Region Police failed to protect the Mother from, triggered her post-traumatic stress disorder such that she found herself suffering from hallucinations and fears that she was being stalked and watched.

The Society appears to rely upon these events to suggest that the Mother has a history of domestic violence. The Society also allege that the Mother has been disengaged with them and with the medical officials, and that her partner has been “overbearing” and aggressive in his demeanour. Their approach appears high-handed rather than collaborative, despite the assertion that there is cultural sensitivity.

The Court has to start with the premise that a biological parent is entitled to parent his or her child. All parents start as first-timers; no inference should be drawn that a new parent cannot adequately care for his or her child. Three factors clearly do impact the Mother’s ability to care for the children: 1) her anxiety and attendant issues; 2) the significant burden of caring for twins in general; and 3) the additional therapeutic needs of these children (Baby A needing physiotherapy to address the congenital club feet and Baby B needing physiotherapy to address the muscles in her neck).

The best interests of the Indigenous child, however, are the paramount consideration in determining the placement of that child. The hierarchy of placements is to be followed where it is consistent with the Indigenous child’s best interests in the context of promoting substantive equality between the Indigenous child and other children.

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. 

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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.

Alberta (CYFEA, Director) v NL, 2020 ABPC 118

This is a decision with respect to ordering costs against the Director of child and family services in Alberta, which is relatively unusual and difficult to obtain. While it is not per se an “Aboriginal law” case, the Court considered the overrepresentation of Indigenous children in protection as a factor in favour of issuing an order for costs under s. 24(1) of the Charter

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A Permanent Guardianship Order was determined as not warranted for a child apprehended by the Director of child and family services in Alberta. The Court orders the child to be returned to the mother [“NL”] over a period of three months pursuant to a Supervision Order. This was necessary because the child had been in the custody of the Director for a period of almost 2 years, and not because of any concern about the mother’s ability to care for the child. Counsel for the mother asks the Court for costs against the Director.

As background, concerns were enough for the Director to properly apply for an apprehension order in 2017 due to numerous medical difficulties that caused concern for health and medical professionals. As well, NL at the time did not seem to be taking the appropriate measures that were suggested. Although there had been previous concerns with respect to NL’s care of her other children in the past, none of the children had been apprehended and issues with respect to drinking, partnership issues and so on, always seem to be resolved and did not appear to be an insurmountable situation. Another issue regarding NL’s care for the child was that medical appointments were located in Red Deer, approximately one hour away from her residence by car. NL does not have a car or driver’s license.

There does not appear to have been any investigation into whether NL was suffering from postpartum depression or at least the anxiety brought on by having the child’s medical problems added on to the fact that she was caring for another child, age three, who had her own medical difficulties. It appears that the medical and psychological experts assumed that what they termed as NL’s passivity or lack of affect, was a personality defect rather than a situational reaction to the stressful situation she found herself in.

The foster mother gave evidence to the child’s present circumstances. She has been the foster parent for the child since he was apprehended at approximately four months of age. The child is a typical energetic, curious, active two-year-old and does not appear to have any difficulty eating, sleeping or anything else out of the ordinary. She is regularly in contact with NL and they share information on the child’s progress and any changes that are necessary with respect to his sleeping eating or activity patterns. This evidence exposes the Director’s evidence as being out of date, yet still having been used to pursue a permanent guardianship order. There was also no evidence before the Court of the child having FASD, nor did the Director provide any evidence that this concern was pursued at all since apprehension.

Effectively nothing was done with respect to re-uniting this family during the whole time the chlid was in care. This is in direct conflict with the Director’s mandated obligations under the CYFEA. Medical information should have been updated to show the child was still in need or the child should have been returned to the mother.

The difficulty in dealing with the question of costs in child protection matters is that there are a number of cases both in Provincial Court and The Court of Queen’s Bench which take differing views with respect to the Provincial Court’s jurisdiction to award costs against the Director in a child protection matter. One may assume that costs is not an issue for child protection litigants because through Legal Aid they get “free” lawyers. This is not actually the case in Alberta as new clients are required to sign documentation acknowledging that they will repay any amounts billed by counsel, prior to counsel taking on their matter. This Court can see no reason why child protection litigants, a significantly large proportion of whom are Indigenous women and men, should be denied court costs in instances of the Director’s failure to carry out its mandate under the CYFEA.

Having found that there is conflicting case law; and having found that the CYFEA remains silent with respect to this issue and thereby creating an apparent conflict; the Court finds that the Respondent’s rights ensured by the Charter pursuant to section 7 and 15 have been infringed or denied. This in turn leads to the Court to considering an appropriate remedy. Section 24 of the Charter states “(1) Anyone whose rights or freedom’s, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. The Court finds that the appropriate remedy for the respondent in this case is an award of damages against the Director in an amount equal to the legal fees the Respondent is required to repay to Legal Aid Alberta.

RF v Kina Gbezhgomi Child and Family Services, 2020 ONCJ 366

Counsel for a foster parent in a child protection matter was removed from the record based on his prior representation of the child protection agency respondent. The Court took into account the overall negative relationship between Indigenous peoples and the justice system in relation to the need to respect an Indigenous person’s choice of counsel, but held that intervention is necessary in clear cases of conflict in order to mitigate this crisis of confidence. 

Indigenous Law Centre – CaseWatch Blog

An Anishinaabe child [“NLJ”], a registered band member of Wiikwemkoong Unceded Territory [“Wiikwemkoong”], was removed at birth from the care of her parents by the Children’s Aid Society of Oxford County [“CAS”] and a protection application commenced. The child has significant physical needs that require specialized care both at home and at school. NLJ was placed with the applicant [“RF”] on this protection application proceeding, and who was, at that time, a recognized foster home and the placement was monitored by the CAS. The file was ultimately transferred to Kina Gbezhgomi Child and Family Services [“KGCFS”] and the applicant continued to provide a foster placement for NLJ.

NLJ was made a crown ward under the Child and Family Services Act and remained in RF’s care. Wiikwemkoong passed a Band Council Resolution which provided that NLJ remain in the home of RF pursuant to a Customary Care Agreement. Wiikwemkoong and KGCFS have a “Joint Protocol” [“Protocol”] with respect to the provision of child protection services, which includes Customary Care. The Protocol outlines the relationship between Wiikwemkoong and KGCFS and their inherent right to be involved in decision making on child protection issues.

Mr. Parisé was the primary lawyer retained by the respondent society, KGCFS, for child protection matters when the Customary Care Agreement was finalized. Because of the Protocol, KGCFS is necessarily a party to that agreement. In 2016, the Crown Wardship Order was terminated following a status review application commenced by KGCFS. The existence of the Customary Care Agreement was the basis for the application. Of note, Mr. Parisé was counsel for KGCFS at the time and counsel of record in that proceeding.

The child remained in the home of RF under this Agreement until 2019 when NLJ was removed by KGCFS and placed in another customary care home. The Customary Care Agreement between KF, Wiikwemkoong, KGCFS, and the biological parents of NLJ was terminated sometime thereafter. It was at this time that Mr. Parisé started acting as counsel of record for RF. Mr. Parisé represented RF who filed a status review which was ultimately dismissed without prejudice to the applicant bringing an application under s 81(4) of the Child, Youth and Family Services Act [“CYFSA”]. RF then filed a protection application. KGCFS brought a motion to remove Mr. Parisé as counsel of record a month later, which was the first time the issue of potential conflict was raised with the Court.

On March 16, 2020, the Office of the Chief Justice released a Notice to the Public ordering the suspension of normal court operations in light of the COVID-19 pandemic. As a result, RF’s application was adjourned, and with it, KGCFS’s motion. Subsequently, the Customary Care placement was revoked when the respondent mother withdrew her consent but did not seek custody at that time. NLJ no longer had a customary care placement and KGCFS commenced their own protection application without naming RF as a party. After dealing with the initial removal to a place of safety, the court remanded both matters to the same date to be spoken to in order to deal with jurisdictional issues arising out of the fact that there are now two separate child protection applications dealing with the same child, and which do not have all the same parties. The parties on both applications agreed that this motion would need to be heard first before other substantive issues could be addressed.

The jurisdiction to remove counsel is found in the inherent right of the court to determine “to whom it will give an audience” and that the threshold for court intervention should be high (Windsor-Essex Children’s Aid Society v BD, 2013 ONCJ 43). The test that the courts have developed for determining if counsel should be removed is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur (MacDonald Estate v Martin, [1990] 3 SCR 1235 [“MacDonald”]).

Counsel of choice is a foundational principle in the Canadian justice system. It is well established that a litigant should not be deprived of their counsel of choice without good cause. However, this principle is not absolute. The issue in this motion is whether a lawyer who acted on behalf of a society on a child protection file can now represent one of the other parties in a subsequent protection application. The Court determines in this case, that the conflict is one which should disqualify the lawyer from continuing to act on the matter and the lawyer be removed from the record. The courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.