This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
CITATION: Y. (J.-L.) v. Children’s Aid Society of the County of Simcoe, 2016 ONSC 3887
DIVISIONAL COURT FILE NO.: DC-16-207-00
DATE: 20160624
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, STEWART and PARAYESKI JJ.
B E T W E E N:
J.-L. Y.
Debora Lyons-Batstone, for the Appellant
Respondent (Appellant on Appeal)
- and -
Children’s Aid Society of the County of Simcoe
Julia Wallace, for the Respondent
Applicant (Respondent on Appeal)
HEARD at Toronto: June 2, 2016
Parayeski J.
[1] This is an appeal from a judgment whereby the appellant mother’s three children were made Crown wards without access. The judgment was rendered by Eberhard J. following a trial that lasted just over 30 days, spaced over several months. The reasons were delivered on January 30, 2014.
Family Description
[2] The mother is J.-L. Y. The children are twins A.Y. and L.Y., who were born on […], 2008. Their biological father is M.M. The third child is J.L., who was born on […], 2008. His biological father is M.L. The maternal grandparents are B.Y. and J.Y., Jr.
[3] This appeal is limited to the rulings that relate to the twins only.
Child Issues
[4] The twins were found to be in need of protection on April 7, 2009, pursuant to ss. 37 (2)(b)(i), (ii) and (g.1) of the Child and Family Services Act (“CFSA”). On that same date, they were declared on consent to be non-Native, non-Indian and non-Catholic. They have been with foster parents for some considerable time. The foster parents wish to adopt them.
[5] The twins have high needs, and receive occupational and physiotherapy, as well as speech and language assistance. L.Y. suffers from severe asthma. Both have been diagnosed with a learning disability.
The Judgment Appealed
[6] Eberhard J. considered plans whereby the twins would either be returned to their mother or placed in the care of the maternal grandmother. In her decision, the trial judge articulated at length and in detail why neither plan was in the best interests of the children. These rulings are well supported by the evidence. There is no palpable and overriding error, and thus no reason to interfere on this point.
[7] What was not expressly addressed in the decision, however, is the possible impact of section 57 (5) of the CFSA in light of trial evidence that the twins have Metis heritage.
[8] That evidence is based upon self-identification by the mother and maternal grandparents. Despite efforts, the Society could not identify the Native connection. Nonetheless, the family was referred to the First Nations Metis Inuit Department within the CAS for assistance.
Issues
Did the trial judge make a reversible error in not addressing the potential impact of section 57 (5) of the CFSA on placement of the twins?; and
Was there a “substantial reason” to place the twins outside of extended family or elsewhere within the Aboriginal community?
Analysis
[9] The relevant portion of section 57 (5) of the CFSA reads as follows:
Where the child... is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the Court shall place the child with,
a) a member of the child’s extended family;
b) a member of the child’s band or native community; or
c) another Indian or native family. R.S.O. 1990, c. C.11, s. 57 (5).
[10] The subsection is plainly mandatory when considering the Crown wardship of an “Indian” child or of a child who is a “native person”. According to the CFSA, “Indian” has the same meaning as in the Indian Act (Canada). That Act refers to an “Indian” as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”. The CFSA defines a native child as a child who “is a member of a native community but is not a member of a band”. A “native community” under Part X of the CFSA is a community designated by the minister as a native community “with the consent of its representatives”.
[11] The twins are neither “Indian” nor “native” according to the consent declaration referred to above. There was no argument at trial that addressed any of the issues raised by the CFSA definitions. Nonetheless, the appellant urges us to interpret section 57 (5) expansively, such that the twins would come within its scope of application. This, it was argued, would be in keeping with the spirit of the section, which is to preserve where possible an Aboriginal child’s connection to his or her culture.
[12] The appeal before us is not a constitutional challenge to the CFSA, which, of course, would have to be made on notice to the Attorneys General in accordance with section 109 of the Courts of Justice Act. Absent such a challenge, it is not open to us to rewrite the plain words of the section.
[13] The scope of section 57 (5) of the CFSA has already been judicially considered to some extent. In Children’s Aid Society of Ottawa v. F. (K.), 2015 ONSC 7580 a distinction was made between a person of Aboriginal heritage and a person who meets the statutory definition of being either an Indian or a native person. Persons with only Aboriginal heritage were ruled not to be entitled to access section 57 (5). The constitutionality of the relevant definition sections under the CFSA was also considered in that case and those sections were found to be valid.
[14] Similarly, in M. (C.) v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, the Ontario Court of Appeal ruled that a person who merely self-identifies as being native cannot access the provisions of section 57 (5).
[15] There is no statement of general application to be found in the recent decision of the Supreme Court of Canada in Daniels v. Canada, 2016 SCC 12. That case holds that a Metis person is entitled to be treated as an Indian person under the provisions of the Constitution Act. Accordingly, a constitutional challenge to the CFSA is still required to achieve that which the appellant seeks in the case before us.
[16] We find no reversible error was committed when Eberhard J. did not expressly address section 57 (5) of the CFSA or its potential application to the facts in this case. It must also be remembered that she had before her the declaration, which was not challenged during the trial. Moreover, section 57 (5) was not argued at trial.
[17] While it might have been helpful had the trial judge nonetheless dealt with the issues in her reasons given the trial evidence of possible Metis heritage, it was not an error for her not to have done so.
[18] On the second issue set out above, the appellant argues that the trial judge erred in rejecting the maternal grandmother, by definition an extended family member. The appellant says that the alleged error flows from too much reliance upon the maternal grandmother’s history as a parent herself and from the use of speculative language in expressing concerns regarding caregiving in the future. We reject these assertions, firstly because section 50 of the CFSA expressly permits consideration of past conduct, and secondly because all prognostication about future caregiving is speculative in nature.
[19] Moreover, the ultimate issue in this case is the best interests of the child or children. Neither of the plans proposed was satisfactory in that regard. The laudable goal of culture preservation does not mean that Indian or native children are entitled to less protection by the state. The Society cannot legitimately be criticized for not having searched for other potential caregivers given the fact that section 57 (5) does not apply to the twins.
Conclusion
[20] The appeal is dismissed. The successful Society indicated that it was not seeking its costs, and so none are ordered to be paid.
Dambrot J.
Stewart J.
Parayeski J.
Released: June 24, 2016
CITATION: Y. (J.-L.) v. Children’s Aid Society of the County of Simcoe, 2016 ONSC 3887
DIVISIONAL COURT FILE NO.: DC-16-207-00
DATE: 20160624
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, STEWART and PARAYESKI JJ.
B E T W E E N:
J.-L. Y.
Respondent (Appellant on Appeal)
- and -
Children’s Aid Society of the County of Simcoe
Applicant (Respondent on Appeal)
REASONS FOR JUDGMENT
PARAYESKI J.
Released: June 24, 2016