WARNING

THIS IS AN APPEAL UNDER THE CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45. (7) The court may make an order,

(a) excluding a particular media representative from all or part of a hearing;

(b) excluding all media representatives from all or a part of a hearing; or

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

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.

46. (9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Algonquins of Pikwakanagan v. Children's Aid Society of the County of Renfrew, 2014 ONCA 646

DATE: 20140923

DOCKET: C58196 & C58197

Doherty, Tulloch and Benotto JJ.A.

BETWEEN

Algonquins of Pikwakanagan

Appellant

and

The Children’s Aid Society of the County of Renfrew and B.

Respondents

AND BETWEEN

The Children’s Aid Society of the County of Renfrew

Applicant (Respondent in Appeal)

and

M.B.

Respondent (Appellant in Appeal)

and

Algonquins of Pikwakanagan

Respondents (Appellant in Appeal)

Katherine Hensel and Sarah Clarke, for the appellant Algonquins of Pikwakanagan Jenny Friedland, for the appellant M.B.

Elizabeth McCarty and Terese Ferri, for the respondent Office of the Children’s Lawyer

Kimberley A. Pegg, for the respondent the Children’s Aid Society of the County of Renfrew

Heard: June 4, 2014

On appeal from the judgment of Justice Timothy D. Ray of the Superior Court of Justice dated December 6, 2013.

Benotto J.A.:

(1) INTRODUCTION

[1] Two sisters who are members of the Algonquins of Pikwakanagan were apprehended by child protection workers from the care of their maternal grandmother, M.B. The children were made Crown wards with access to M.B. For the last five years, they have been in care. For the last four and a half years, they have been living with the same non-Aboriginal foster family.

[2] The Algonquins of Pikwakanagan and M.B. appeal the judgment of Justice T.D. Ray of the Superior Court of Justice (the “appeal judge”), which in turn dismissed an appeal from the judgment of Justice D.K. Kirkland of the Ontario Court of Justice (the “trial judge”) ordering Crown wardship with access to M.B. They seek to have the children placed in the custody of M.B.

[3] The Children’s Aid Society of the County of Renfrew (the “Society”) asks that the appeals be dismissed. So too do the children, through their counsel at the Office of the Children’s Lawyer.

[4] For the following reasons, I would dismiss the appeals.

(2) BACKGROUND

[5] S. was born on June 2, 2005. Her sister Z. was born on September 3, 2008. C. is the biological mother of S. and Z. M.B. is C.’s mother. M.B. also has a son, N. Both C. and N. have a history of substance abuse, criminal convictions and incarceration.

[6] Before S. and Z. were born, the Society had already been involved with this family. M.B.’s niece was placed in her care approximately 13 years ago as a result of the Society’s protection concerns.

[7] S. began living with M.B. in 2006. In 2008, within days of Z.’s birth, an order was made under s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA)granting M.B. custody of S. Eight months later, in May 2009, Z. was placed with M.B. pursuant to an interim supervision order. The custody order with respect to S. provided that M.B. was to facilitate reasonable access between S. and her mother C. The supervision order with respect to Z. provided that access to C. be supervised. However, on June 22, 2009, a few weeks before the apprehension, a Society protection worker told M.B. that all visits between S., Z. and their mother had to be supervised. There was a concern about C.’s excessive use of alcohol.

[8] On July 3, 2009, M.B. and her spouse separated. M.B. said that she was overwhelmed. She left S. to stay with C. unsupervised because she needed time alone. The Society learned that M.B. had allowed C. unsupervised access to the children and also allowed S. (then age four) to travel in a taxi alone.

1. The apprehension

[9] The Society apprehended the girls on July 24, 2009 on the basis that M.B. was unable to protect them from unsupervised contact with C., and that M.B., who was overwhelmed, could not care for them.

[10] When protection workers apprehended S., they found her alone in a residence with C. The residence was in a state of disarray. There were soiled dishes on the counters and dirty clothes throughout. It was cluttered and chaotic. The door to the bedroom where S. was found was off its hinges and had been placed over the entrance of the doorway to serve as a barrier. S. was on a bare mattress, alone in the dark. She had her knees pulled up to her chest and was rocking back and forth, crying. C. was the only person there with S.

[11] The protection workers then went to M.B’s apartment to apprehend Z., who had been left with N.

[12] At the time of the apprehension, the Society planned to provide wardship for the children for three months while M.B. attempted to stabilize her life. The Society moved for a temporary care and custody hearing. The hearing was uncontested. The children were placed in the temporary care of the Society pending trial. The order was not challenged until trial.

2. The placement of the children

[13] Following the apprehension, the Society contacted the Algonquins of Pikwakanagan to determine if a placement was available in the First Nations community. None was available.

[14] The children were placed with a non-Aboriginal family. In February 2010 the foster father was required to move to accommodate his employment.

[15] Again the Society approached the Algonquins of Pikwakanagan and again no First Nations placement could be found. Another non-Aboriginal home was found and the children were placed with the D. family in March 2010. By then, S. was four years old and Z. was one. The children have been with the D. family ever since.

[16] The Society continued to have concerns about M.B.’s conduct. She appeared to be intoxicated at various times.

[17] In the summer of 2011, Mr. D.’s employment required his presence in England. The children and Mrs. D. divided their time between Ontario and England.

(3) HISTORY OF THE PROCEEDINGS

1. The first trial and appeal

[18] The matter proceeded to trial in the fall of 2011. On the first day of trial, a representative of the Algonquins of Pikwakanagan attended and asked for a brief adjournment to review disclosure that had only been provided that day, and to consult with counsel. The trial judge refused the adjournment, proceeded with the trial and ordered that the girls were to be Crown wards without access for the purposes of adoption. The children were placed with Mr. and Mrs. D. On appeal, a new trial was ordered on the basis that the trial judge should have granted the adjournment and that the trial judge failed to give “due weight and consideration” to the children’s First Nations status.

2. Events between the first and second trial

[19] M.B. was assaulted at least twice after the first trial: once in December 2011 and again in July 2012. She was left with obvious bruising.

[20] In February 2012, M.B.’s home was seriously damaged by a fire caused by N.’s smoking. When the first responders arrived, M.B. was inebriated. M.B. acknowledged that she had been drinking heavily.

[21] Also in February 2012, the Algonquins of Pikwakanagan notified the Society that an Algonquin foster home was available.

3. The second trial

[22] A retrial commenced on July 30, 2012. By this time, M.B. had access visits with the girls. Mr. and Mrs. D. accommodated the access in an effort to keep the children connected to their Aboriginal heritage. The Society amended its application to pursue Crown wardship with access to M.B.

4. Expert evidence at the second trial

[23] There was expert evidence about the children, their needs and the importance of their cultural heritage.

Dr. Paula Moncion

[24] Dr. Paula Moncion is a psychologist who is an expert in attachment issues for children. She had conducted a court-ordered assessment pursuant to s. 54 of the CFSA. Dr. Moncion testified at the first trial and updated her report for the second trial.

[25] Dr. Moncion testified about the importance of early infant attachment to a caregiver. This attachment grounds a person’s general emotional health and ability to develop and sustain healthy relationships in life. Dr. Moncion acknowledged that cultural heritage is important in the development of a healthy identity, but secure attachments are fundamental to emotional health and are a foundation of cultural development.

[26] Dr. Moncion met with the girls. Both children consider the D.’s to be their family. It was Dr. Moncion’s expert opinion that if S.’s attachment to this family were cut off, she would expect to see regression and emotional upset, which could interfere with S.’s normal healthy development. She also testified that if Z. were taken from the D. family, it would be disruptive and damaging to her. Dr. Moncion testified that S. said: “I just want to be a normal kid; I don’t want any lawyers or judges or courts; I want to live in the U.K. and visit my grandmother.”

Kenneth Richard

[27] Kenneth Richard is an eminent authority on Aboriginal issues, particularly in relation to children. He testified about the damage caused to Aboriginal people in the 1960s and continuing to the 2000s, when children were removed from their families by child welfare authorities and placed in mostly non-Aboriginal homes. The children were lost on a personal and on a community level and often became homeless.

[28] Mr. Richard did not see the children. He reviewed documents and Dr. Moncion’s report. He opined that unless S. and Z. can maintain a connection to their Aboriginal culture, “these kids will pretty much go in a similar direction that other kids have gone with respect to identity [and] confusion….” However, he acknowledged that Z.’s attachment to the D.’s in particular cannot be ignored.

Chief Kirby Whiteduck

[29] Chief Kirby Whiteduck testified about the impact that mistreatment of Aboriginal people has had upon members of the Algonquins of Pikwakanagan and other First Nations throughout Canada. He testified that the removal of Aboriginal children from their communities leads to alcoholism, violence, suicide, anger and resentment. The court, he said, must look not only at the best interests of the child, but also at the best interests of the adult that the child will become.

5. The proposed plans of care

[30] M.B. proposed that the girls reside with her full-time. She would accept the Society’s supervision and protect them from C. She would provide them with access to cultural events and heritage as offered on the reserve. (She has not lived on a reserve since 2002.) She would not expose the girls to drunkenness. She would allow contact with the D. family.

[31] The D. family proposed that the children remain in their care. They provide the safety and security of their family. Z. has serious food allergies, which they carefully monitor. The children’s education would continue. The D.’s would continue to provide them with access to their Aboriginal culture and heritage.

[32] The girls expressed their desire to remain with the D.’s. They regard the D.’s as their family. They also wished to continue visiting their grandmother M.B.

6. The trial judge’s reasons

[33] The trial judge found that the girls were in need of protection in July 2009 when they were apprehended and continued to be in need of protection in August 2012 when his decision was released. He ordered that they be made Crown wards with access to M.B. He dismissed M.B.’s claim for costs.

[34] In determining that the children were in need of protection in July 2009, the trial judge relied on a series of factors, including:

• M.B.’s inability to protect the girls from C.;

• S.’s presence in a residence with C. on July 24, 2009;

• the fact that M.B. was overwhelmed with the responsibility of caring for the girls and unable to look after them;

• the departure of M.B.’s spouse, which led to M.B. needing time to herself;

• M.B.’s repeated disregard for the Society’s instructions; and

• M.B.’s depression.

[35] The trial judge also found that the children remained in need of protection at the time of the trial. He found that alcohol continued to play a part in M.B.’s life and that M.B. has a tendency to be dishonest with the Society. The trial judge said:

Questions about protecting the girls from [C.] and drinking in the future cannot be resolved with any certainty.

[36] The trial judge considered all of the proposed plans of care. In considering the best interests of the children, he referred to the 13 considerations in s. 37(3) of the CFSA. In particular, he found:

• The girls are emotionally secure and happy in the D.’s home.

• They are progressing well in school.

• The D.’s are handling Z.’s health and dietary issues well. (There was at least one incident in M.B.’s home when Z.’s diet was not adhered to and Z. suffered a reaction requiring hospitalization).

• S. is anxious and fearful in M.B.’s home.

• The girls are emotionally attached to the D.’s while retaining a desire to have a relationship with M.B.

• The loss of attachment to the D.’s will be damaging and disruptive for the girls.

• The D.’s have made efforts to foster the girls’ Aboriginal culture.

• Continuity is with the D.’s: removal from their home would be highly disruptive and damaging.

• S. is old enough to express a view and she wants to be with the D.’s. Z. is too young to express a view, but the girls must stay together.

• There is a serious risk of damage to the girls if they are taken from the family they perceive as their own.

[37] The trial judge concluded that removing the girls from their stable environment would be emotionally disruptive and damaging. The children should remain with the D.’s. Continued contact with M.B. would maintain a connection to their Aboriginal culture and heritage. He ordered access to M.B. twice a year while the D.’s are in the U.K. and expanded access when they return to live in Canada in September 2015.

[38] M.B. had sought costs against the Society. She alleged that it failed to meet its statutory obligations to seek an alternative to apprehension and to reunite the girls with M.B.’s family. The trial judge dismissed the request for costs.

7. The appeal of the trial decision

[39] The appeal judge dismissed the appeal. He found that the First Nations status of the children was a major factor but not determinative of the ultimate issue of their best interests. He found no error in the trial judge’s reasons.

(4) FRESH EVIDENCE APPLICATION

[40] All parties seek to introduce fresh evidence about the current circumstances of the parties and the children.

[41] The principles governing the admissibility of fresh evidence on appeal are outlined in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 at p. 775. The Palmer test requires the applicant to satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[42] When an appeal involves a child protection matter, a more flexible rule applies. In Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 83 (SCC), [1994] 2 S.C.R. 165, at p. 188, L’Heureux-Dubé J.invoked the child-centred focus of the CFSA to conclude that the admission of fresh evidence in child welfare matters requires a

…sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance.

[43] Likewise, this court has said that it is important to have the most current information possible when determining the child’s best interests “[g]iven the inevitable fluidity in a child’s development”: Children’s Aid Society of Owen Sound v. R.D. (2003), 2003 21746 (ON CA), 44 R.F.L. (5th) 43, at para. 21, per Abella J.A.

[44] Nowhere is this approach more necessary than where this court is called upon – as it is here – to consider the current best interests of the children. The new evidence is admissible.

(5) ISSUES

[45] This court must address the following issues:

1. Was the apprehension justified and were the children in need of protection at the date of the second trial?

2. Did the trial judge err in his consideration of the children’s Aboriginal heritage?

3. What is in the best interests of the children today?

4. Should M.B. be awarded costs?

(6) ANALYSIS

Standard of review

[46] This is an appeal from a decision of the Superior Court that in turn upheld an order of the Ontario Court of Justice made pursuant to the CFSA. In these circumstances, the Court of Appeal “should only intervene if the Superior Court appeal judge erred in principle by failing to identify a material error in the decision below”: Children’s Aid Society of Toronto v. G.S., 2012 ONCA 783, 24 R.F.L. (7th) 12, at para. 20.

[47] For the reasons that follow, I conclude that the trial judge did not make a material error and there was no error for the appeal judge to identify.

1. Was the apprehension justified and were the children in need of protection at the date of the second trial?

[48] The appellants submit that the children’s apprehension was not justified. The Society could have adopted less intrusive supervisory functions. In addition, by the time of trial, the children were no longer in need of protection and could have been returned to M.B.

[49] Subsection 37(2) of the CFSA provides:

(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child[.]

[50] There was ample evidence that, at the time of the apprehension, M.B. was unable to care for or protect the children. She was overwhelmed. She had allowed S. to be alone with C. on several occasions despite instructions to the contrary from the Society. M.B.’s behaviour placed the children at risk. The apprehension was justified.

[51] It is noteworthy that the apprehension was not challenged until this matter proceeded to trial. If a caregiver wishes to challenge the apprehension, he or she should respond to the Society’s motion for temporary care and custody. The temporary care and custody order made on July 29, 2009 was not challenged and remained in place until trial. By that time, secure attachments with the foster family had formed.

[52] The trial judge found that the children continued to be in need of protection at the date of trial. M.B. was not capable of looking after them. There were ongoing concerns about her alcohol use and her ability to protect them from C. There were also concerns that M.B. was not respecting Z.’s dietary restrictions.

[53] The trial judge carefully considered the plans of care put forward, directed himself in accordance with the considerations in the CFSA and concluded that the physical and emotional health and well-being of the children and their best interests required that they remain with the D.’s.

[54] The findings made by the trial judge were supported by the evidence and the conclusions were open to him.

2. Did the trial judge err in his consideration of the children’s Aboriginal heritage?

[55] The apprehension of an Aboriginal child and her placement in a non-Aboriginal home causes great distress to the Aboriginal community. It is characterized by a significant lack of trust that can only be understood in the context of the historical mistreatment of Aboriginal children.

[56] Justice Pardu commented on this issue in a paper entitled “Aboriginal Issues in Family Litigation” (2009) [unpublished, archived at the National Judicial Institute]. She said that decisions about child welfare for Aboriginal children are informed by “decades of widespread removal of Aboriginal children from their home communities” (p.39). Thus, the placement of a child with a non-Aboriginal family creates serious concern for the community.

[57] Against this historical backdrop, changes were made to the CFSA. There are now extensive provisions in relation to the welfare of Aboriginal children. For instance, the CFSA’s declaration of principles requires that all services to “Indian and native children and families” recognize their culture, heritage, traditions and their concept of the extended family.

[58] Subsection 37(4) of the CFSA requires the court to “take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity” when determining the best interests of an “Indian or native” child.

[59] Subsection 57(5) provides that, “unless there is a substantial reason for placing the child elsewhere”, Aboriginal children shall be placed with a member of the child’s extended family, a member of the child’s “band or native community”, or “another Indian or native family.”

[60] Section 213 provides that the Society shall regularly consult with Aboriginal communities about the apprehension and placement of, and plans of care for, Aboriginal children.

[61] The Society is therefore required to involve the Aboriginal community throughout child protection proceedings, but the First Nation is not required to participate. Campbell J. commented on the different obligations of Children’s Aid Societies and First Nations communities in Children’s Aid Society of London and Middlesex v. M.O. (1997), 29 O.T.C. 265 (Ont. C.J. (Gen. Div.)), at para. 47:

An Indian Band is not required by statute actively to participate in any proceeding under the [CFSA]. Notice to and inclusion of Indian Bands is entirely an obligation of children’s aid societies…. While this differing level of statutory responsibility may appear unfair, the legislators may have intended this to address a long-standing concern of the [A]boriginal and Indian population that non-Indian institutions, agencies and families had been inappropriately placing Indian children in non[-]Indian homes to the detriment of the Bands, the Indian communities and the Indian children themselves.

[62] The appellants submit that the appeal judge erred in failing to identify the fundamental error made by the trial judge in connection with the First Nations status of the children. The trial judge found that the development of an Aboriginal child’s culture is subordinate to the child’s best interests. He said:

Rooted in every case is the principle that where the Court must balance the best interests of a child with the need to ensure the essential development of a child’s culture, heritage and background, the latter is always subordinate to the former. First and foremost the Court must ensure the safety, security and protection of a child.

[63] The appeal judge held that this was not an incorrect test but was rather “consistent with the tests adopted in the jurisprudence in Ontario.”

[64] The appellants submit that this approach constitutes a fundamental error of law for two related reasons. First, the appellants submit that sufficient weight was not given to the children’s First Nations status. Second, they submit that the trial judge was balancing the issue of the children’s First Nations status against the issue of their best interests and in so doing essentially created two separate tests: First Nations heritage issues and best interests.

[65] In connection with the appellants’ first point, it was submitted that in determining an Aboriginal child’s best interests, First Nations status must be given more weight than the other factors: in a sense, it should be “super-weighted.” This phrase was used by the Nova Scotia Court of Appeal in T.G. v. Nova Scotia (Minister of Community Services), 2012 NSCA 43, 316 N.S.R. (2d) 202, at para. 122. There, the court held that the compatibility of a child’s cultural, racial and linguistic heritage is a “super-weighted” factor in the assessment of where a child should be placed. The appellants submit that this test should apply here.

[66] However, T.G. was an appeal about the procedural fairness of an adoption proceeding. The considerations differ greatly when, as here, the matter involves a Crown wardship with access, particularly when the access is in favour of a member of the First Nations community. The access provisions made by the trial judge acknowledged the importance of the children’s cultural identity, and that their status as Aboriginal children is a consideration in assessing best interests.

[67] Subsection 37(3) of the CFSA lists the factors that must be considered in assessing the best interests of a child. When a child is from an Aboriginal community, the CFSA further directs in s. 37(4) that the importance of the child’s cultural identity and the uniqueness of Aboriginal culture, heritage and traditions shall be taken into account. There is nothing in the CFSA that suggests that the “weight” given to one consideration must be greater than the weight given to another. All factors are considered with the over-arching goal of determining the best interests of the child. This is consistent with the paramount purpose of the Act and every section must be read in this context.

[68] Similarly, s. 57(5) requires the court to place an Aboriginal child with a member of the child’s extended family, a member of the child’s band or native community or another “Indian family”, unless there is a substantial reason not to. Given the CFSA’s paramount purpose, s. 57(5) cannot be read as usurping the best interests of the child.

[69] The paramount purpose of the CFSA is to promote the best interests of the child. The plain wording of ss. 1 (1) and 1(2) make this clear. Subsection 1(1) provides that “[t]he paramount purpose of this Act is to promote the best interests, protection and wellbeing of children.” Subsection 1(2) lists several “additional” purposes of the CFSA. These additional purposes include the recognition that services to Aboriginal children and families should be provided in a manner that recognizes their culture. However, all of the additional purposes of the CFSA are subject to the express proviso: “so long as they are consistent with the best interests, protection, and well being of children.” (Emphasis added).

[70] In connection with the appellants’ second point, the trial judge did not create separate tests for Aboriginal heritage and best interests. His reasons read as a whole reflect that he considered Aboriginal heritage in coming to a determination of the children’s best interests – as the CFSA requires him to do.

[71] The Act makes clear the Legislature’s intention that First Nations’ issues be seriously considered. However, all considerations, including First Nations’ issues, are subject to the ultimate issue: what is in the best interests of the child? Nothing displaces the best interests of the child and no section of the Act overrides the child’s best interests.

[72] This is the test that the trial judge applied. He considered the heritage and cultural issues in the context of the children’s best interests. He referred to Mr. Richard’s expert evidence regarding the struggles of Aboriginal youth placed with non-Aboriginal families and the confusion and identity crisis that can occur. He referred to Chief Whiteduck’s testimony about the historical mistreatment of Aboriginal people and the need to consider the girls’ future. He was aware of the need to consider the least disruptive placement having regard to these considerations.

[73] The trial judge also considered the children’s attachment to the D. family. The Supreme Court of Canada confirmed the importance of this consideration in Catholic Children’s Aid Society of Metropolitan Toronto, at p. 203:

Among the factors in evaluating the best interests of a child, the emotional well-being of a child is of the utmost importance, particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents. The focus of maintaining family units is only commensurate as long as it is in the best interests of the child, otherwise it would be at cross-purposes with the plain objectives of the Act…

[74] There was evidence before the trial judge of the children’s attachment to their foster family and the upset and turmoil they would suffer if removed from their care. The trial judge found that “all the statutory and case law directions favour the children remaining” with the D.’s. This plan offered safety, security, continuity and was consistent with S.’s wishes. The trial judge considered these factors along with the children’s Aboriginal heritage. It was open to him to conclude, as he did, that contact with their Aboriginal culture through access visits with their grandmother is more responsive to their needs than removal from their psychological family.

[75] The trial judge did not err in his approach to the determination of the children’s best interests. There was no material error to be identified on appeal.

3. What is in the best interests of the children today?

[76] The fresh evidence provides an update about the circumstances of the parties and the children.

[77] M.B. stated she is no longer drinking. In February 2014, she completed a programme in this regard. If she is not granted custody, she wishes to have more communication with the children between visits and she would like more visits. She promises there will be no unsupervised visits to C., who is in jail again.

[78] The children are doing well in school and are happy and comfortable with the D.’s. By all accounts, they are thriving.

[79] There appear to be some issues surrounding the relationship between M.B. and the D.’s. M.B. referred to difficulty communicating with the D.’s directly. The D.’s view the children’s visits with M.B. as disruptive and a source of negativity. Mrs. D. had tried to contact Chief Whiteduck to learn more and he did not return her calls.

[80] It is not surprising that there would be difficulties with access. At the best of times, children are required to move between two households with different rhythms and rules. In this situation, those factors are accentuated. In addition, there has been enormous stress on all the parties. The effects of the ongoing litigation cannot be underestimated. The parties have been before the courts for years – through two trials and three appeals. It would be impossible for tensions not to filter down to the children. S. told Dr. Moncion that she does not want court or lawyers; she just wants to be an ordinary kid. This comment is at once heart-wrenching and entirely understandable.

[81] That the children are thriving confirms the wisdom of the trial judge’s decision. The access regime, while challenging, is working. The children are doing well with the D.’s and want to continue a relationship with their grandmother. The Society is currently facilitating access and should continue to do so. Adoption is not contemplated, so access is always subject to status review.

4. Should M.B. be awarded costs?

[82] M.B. submitted that she is entitled to costs because the Society acted unfairly in these proceedings. In particular, the appellants submitted that the Society failed to consult with the Algonquins of Pikwakanagan in contravention of s. 213(a) of the CFSA.

[83] The Society gave notice of the apprehension within two days and attempted throughout the proceedings to consult with the Algonquins of Pikwakanagan. The children could not be placed within the First Nations community because a placement could not be found until after the children had established a two year relationship with the D.’s. The Society did not breach the statutory rights of M.B. On the contrary, the evidence discloses a genuine attempt to consult, assist and seek assistance from both M.B. and the Algonquins of Pikwakanagan.

[84] The trial judge did not err in the exercise of his discretion to refuse costs to M.B.

(7) DISPOSITION

[85] I would dismiss the appeals of M.B. and the Algonquins of Pikwakanagan. I would make no order as to costs.

Released: September 23, 2014 (“D.D.”)

“M.L. Benotto J.A.”

“I agree Doherty J.A.”

“I agree, M. Tulloch J.A.”