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.