DATE: 20020424 DOCKET: C37363
COURT OF APPEAL FOR ONTARIO
LASKIN, BORINS AND GILLESE JJ.A.
B E T W E E N :
CATHOLIC CHILDREN'S AID SOCIETY
Sheilagh M. O'Connell, for the appellant, A.V.W.
Respondent
- and -
Helen Murphy, for the respondent, Catholic Children's Aid Society
A.V.W.
Appellant
Katherine Kavassalis,
- and -
Office of the Children’s Lawyer on behalf of the child, M.A.A.
D.A.A., M.A.A. and the FORT ALBANY BAND
Respondents
Herbert Stover, for the respondent, D.A.A.
Heard: April 11, 2002
On appeal from judgment of Justice Keith A. Hoilett dated November 2, 2001.
BORINS JA:
[1] This is an appeal by A.V.W., the mother of the child, M., from the decision of Hoilett J. dismissing her appeal from the decision of Main J., which denied her request for access to her child. The child, who is now 6 years of age, has been a ward of the Catholic Children's Aid Society ("CCAS") since she was 3 months of age when she was placed in the foster care of the P. family. For the reasons that follow, we would dismiss the appeal.
[2] The mother and her daughter are members of the Cree First Nations of Fort Albany. They are "Indians" pursuant to the Child and Family Services Act, R.S.O. 1990, c. C. 11 ("CFSA"). Since M.'s apprehension by the CCAS from her natural parents on May 3, 1996, she has resided in the home of her foster family, who are not persons of the First Nations ancestry. The plan of the CCAS is for M. to remain with, and to be adopted by, the P. family.
[3] The mother’s main ground of appeal is that the appeal judge erred in failing to give adequate weight to M.’s Cree culture and her identity of a Cree pursuant to s. 59(2)(d) of the CFSA. Several provisions of the CFSA emphasize the need to recognize the importance of the uniqueness of Indian culture, heritage and traditions and the preservation of the child's cultural identity in determining what is the best interests of an Indian child: ss. 1(2), 5, 37(4), 57(5), 61(2), 140 (3).
[4] The mother's application for access to her child is motivated by her desire to be able to instruct her daughter about her Cree culture and heritage. She proposed that she have access to the child for two hours, twice a year at a minimum. Section 59(2) of the CFSA provides that where a child is a Crown ward, the court shall not make an order for access by the person who was in charge of the child immediately before her apprehension except in specified situations. Section 59(2)(d) speaks to special circumstances, which includes M.’s Cree ancestry. An order granting access to the appellant would frustrate the plan of the CCAS that M. be adopted by the P. family. The CCAS opposed the mother's application for access, as did the Children’s Lawyer, on the ground that it would not be in the best interests of the child, which is the overriding consideration in respect to all decisions under the Act concerning the welfare of a child.
[5] The trial judge found that in the 6 years that the P. family has provided foster care for M., a secure and loving family unit has developed. He found that M. was dearly loved by her foster parents and would suffer significant emotional trauma to have that relationship severed or even diminished. He was properly concerned that the P. family would be unable to provide the same instruction in Cree culture and heritage that would be provided by a Cree family. However, he was satisfied that the P. family was making its best efforts to do so. He recognized, as well, that despite its efforts to do so, the CCAS was unable to locate a placement with a Cree family. Notwithstanding the mother's good intentions, the trial judge found that if access to M. were to be awarded to her mother, this would seriously disrupt the family unit and M.'s well-being, and, consequently, would not be in M.'s best interests. The appeal judge found no reason to interfere with the trial judge's findings and with his refusal to award the mother access to her daughter.
[6] We are satisfied that the court below attached adequate weight to the purpose underlying the requested access. However, it is clear to us that the annual access of four hours proposed by the mother would not provide the immersion required to enable M. to understand and appreciate her Cree culture and heritage. Unfortunately, the reality is that access by the mother will do very little in this regard, and, as the courts below have found, would likely be disruptive of a secure family unit and is therefore not in the child's best interests.
[7] The mother's aspirations for this little girl are no doubt positive, but they should not operate as a barrier to the child's stable and positive upbringing by the P. family. Considering the child's need for a stable, permanent home life, we agree with the lower court that it is contrary to her best interests to allow access by the mother.
[8] We appreciate that this does not resolve the dilemma of ensuring that M. will be provided with the opportunity to learn about her Cree culture and heritage. We accept, as did the trial judge, that the P. family understands the importance of M.'s cultural heritage and that it will make its best efforts to ensure that she is able to learn about her Cree heritage, and to foster that heritage. Unfortunately, considering the circumstances of this case, the record and the relevant legislation, it appears that no intervention is available to this court to direct that appropriate steps be taken to provide M. with instruction in her Cree heritage. The P. family has undertaken to foster in M. a sense of personal pride in her identity as an Indian person through, among other means, activities in a nearby Objibwa community and contact with her siblings. We trust that these steps will address, at least partially, the need for M. to have an awareness of her cultural identity.
[9] We would, therefore, dismiss the appeal. We accept with the parties’ submissions that this is not an appropriate case for costs.
Released: April 24, 2002
“S. Borins J.A.”
“I agree J. I. Laskin J.A.”
“I agree E. E. Gillese J.A.”