WARNING
THIS IS AN APPEAL UNDER THE
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.
45(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: C.M. v. Children's Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612
DATE: 20150914
DOCKET: C60343
Feldman, Simmons and Miller JJ.A.
BETWEEN
C.M. and B.J.V.
Appellants (Appellants)
and
The Children’s Aid Society of the Regional Municipality of Waterloo
Respondent (Respondent)
Gloria E. Ichim, for the appellants
Jeffrey W. Boich, for the respondent
Heard: August 24, 2015
On appeal from the order of Justice J.W. Sloan of the Ontario Superior Court of Justice, dated March 25, 2015, with reasons reported at 2015 ONSC 1942, [2015] W.D.F.L. 3233, dismissing an appeal from the order of Justice P. Hardman of the Ontario Court of Justice dated November 28, 2013.
By the Court:
A. Introduction
[1] On November 28, 2013, following a trial that began in August 2012 – and based on a protection application filed in early September 2010 – the appellants’ two children were found in need of protection. In all the circumstances, the trial judge ordered that the children be designated Crown wards without access.
[2] On March 25, 2015, a Superior Court appeal judge dismissed the appellants’ appeal from that order.
[3] On appeal to this court, the appellants ask that the Crown wardship order be varied to provide them with access to their children.
B. iSSUES AND dISCUSSION
[4] The appellants raise three issues on appeal.
ISSUE 1: Did the trial judge err in determining the Indian or native status of the children?
[5] First, the appellants argue that the trial judge erred in law in failing to identify the appellant mother as Indian or native. They submit that identifying her as such would have triggered certain special provisions of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”) relating to Indian and native children.
[6] In the alternative, the appellants argue that the trial judge erred in failing to apply the principles from R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, to the circumstances of this case.
[7] We do not accept these arguments. As a starting point, the appellants did not raise these issues at trial. In any event, neither the mother nor the children fall within the definition of Indian or native person under the CFSA. Further, in the face of the statutory definitions, Gladue principles do not assist in determining whether the children are Indian or native persons. Finally, we are not persuaded that Gladue principles affect the determination of whether an access order would be appropriate in this case.
[8] Under s. 47(2)(c) of the CFSA, the court hearing a protection application is required to determine “[a]s soon as practicable, and in any event before determining whether a child is in need of protection … whether the child is an Indian or a native person and, if so, the child’s band or native community”.
[9] “Indian” and “native person” are defined terms in the CFSA. Section 3 provides that “‘Indian’ has the same meaning as in the Indian Act (Canada)” and that “‘native person’ means a person who is a member of a native community but is not a member of a band, and ‘native child’ has a corresponding meaning”. Section 209 of the CFSA permits the Minister to “designate a community, with the consent of its representatives, as a native community for the purposes of this Act.”
[10] Although represented by counsel, at trial the appellants did not advance any argument that either the mother or the children fell within the definition of Indian or native person under the CFSA. Instead, in response to the required inquiry from the trial judge, the appellants’ counsel confirmed that the information in the Society’s application concerning status was correct. In relation to both children, the Society’s application stated “no Indian status”.[1]
[11] Further, while the mother testified at trial that she is part native, she provided no additional evidence about her aboriginal heritage or about any connection with a native community.[2]
[12] In these circumstances, the trial judge made no error in failing to identify the mother or children as Indian or as native persons.
[13] On appeal to the Superior Court, the appellant mother filed an affidavit indicating that her father is Ojibway. She does not claim to be a status Indian within the meaning of the Indian Act, R.S.C. 1985, c. I-5. Rather, she argues that the definition of Indian under the Indian Act has been extended by case law and that Gladue extends the meaning of native to include persons self-identifying as native.
[14] However, contrary to the appellants’ submissions, Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2014 FCA 101, 371 D.L.R. (4th) 725, does not stand for the proposition that non-status Indians are included as “Indians” within the meaning of s. 91(24) of the Constitution Act, 1867. Moreover, Gladue was decided under the Criminal Code and does not alter the statutory definitions set out in the CFSA. In any event, we note that the relevant inquiry under the CFSA is the children’s status, not the mother’s status. The fact that the mother may self-identify as native does not determine her children’s status.
[15] Finally, s. 59 (2.1) of the CFSA provides that “[a] court shall not make … an access order … with respect to a Crown ward unless the court is satisfied that, (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child’s future opportunities for adoption.”
[16] At the time the trial judge’s decision was delivered, the children had been in care for about three years and three months. When apprehended, the youngest child was less than two years old. The trial judge declined to make an order for access for two reasons. First, she was not satisfied that a relationship existed between the appellants and their children that was beneficial or meaningful to the children. Second, because no adoption plan had by then been put forward, she was unable to determine whether access would impair the children’s future opportunities for adoption.
[17] As of the date of the appeal to the Superior Court, the children had not had access with the appellants for more than a year and there was evidence that neither child had asked for contact with the appellants since the last visit. Moreover, following an inquiry directed by the court, the proposed adoptive parents (the children’s foster parents since being taken into care) wrote a letter to the Society’s counsel indicating they were unwilling to meet with counsel or the appellants and that “any court ordered openness or access would jeopardize the stability of the placement.”
[18] Under these circumstances, an access order was not available under the CFSA – and Gladue principles did not in any way assist in making that determination.
ISSUE 2: Did the trial judge err by drawing negative inferences based on the appellant mother’s “flat affect”?
[19] The second issue raised by the appellants on appeal is that the trial judge erred in failing to recognize the mother’s “flat affect” as an immutable feature of the mother’s cultural identity as an Ojibway. The appellants argue that the trial judge erred in drawing negative inferences about the mother and her ability to connect with her children based on an undiagnosed “flat affect” and monotone voice, both of which the appellants claim are immutable features of the mother’s cultural identity that do not affect her parenting abilities.
[20] We do not accept this argument. This issue was fully canvassed before the Superior Court appeal judge. The Superior Court appeal judge placed little weight on fresh evidence the appellants sought to introduce on appeal from “a self-described expert on many, if not all aboriginal issues” concerning flat affect as it pertains to aboriginal peoples. He did so in part because no effort had been made to adduce such evidence at trial, or to demonstrate on appeal the witness’s credentials.
[21] The Superior Court appeal judge noted that the issue of the mother’s flat affect and her ability to connect with her children had been raised in a Parental Capacity Assessment prior to trial. Despite that, the only evidence the appellants led at trial in response was a brief statement by the mother that she is part native and that natives tend to speak in a monotone voice. As noted by the Superior Court appeal judge, this evidence was insufficient to allay the trial judge’s concerns arising from the assessor’s evidence that the mother was unable to connect emotionally with her children and gain their attention.
[22] Further, while the issue of the mother’s flat affect was mentioned in the Parental Capacity Assessment, many other concerns were also raised. In his reasons dismissing the parents’ appeal, the Superior Court appeal judge fully addressed the issue of whether the trial judge failed to consider the best interests of the children in making an order for Crown wardship.
[23] We see no basis on which to interfere with the Superior Court appeal judge’s conclusions.
Issue 3: Did the trial judge err in failing to consider the best interests of the children in relation to access?
[24] The final issue raised by the appellants is that the trial judge erred in failing to consider the best interests of the children in relation to access. The appellants argue that the trial judge erred in failing to consider the best interests of the children in the context of their aboriginal heritage and in failing to consider that ongoing contact with their birth parents would assist in preserving their sense of historical and cultural uniqueness.
[25] We do not agree. The trial judge was aware of the children’s cultural heritage. She noted in her reasons that “[w]hile the children are not ‘Indian or native’ as defined by the CFSA, they do have a link to that heritage through their mother. Family connections are an important consideration in assessing the best interests of the children.”
[26] Despite that observation, the trial judge concluded that, considering all the circumstances of the case, an order for Crown wardship was necessary and in the best interests of the children. That finding is supported by the evidence and the appellants have not sought to set aside the order for Crown wardship on appeal.
[27] As we have said, once the trial judge determined that an order for Crown wardship was necessary, in the face of s. 59 (2.1) of the CFSA and in the light of her other findings, an access order was not available. On appeal to the Superior Court, the trial judge’s findings and conclusions were upheld – and supplemented. As we have said, the Superior Court appeal judge directed that an inquiry be made concerning whether the proposed adoptive parents (the children’s foster parents since apprehension) would proceed with the adoption if an order were made for Crown wardship with access. The proposed adoptive parents responded in a letter to the Society’s counsel that “any court ordered openness or access would jeopardize the stability of the placement.” Further, the Superior Court appeal judge stated that the court had been advised that the proposed adoptive parents were not prepared to proceed with the adoption on that basis. He concluded that making an order for Crown wardship would impair the children’s prospects for adoption. We see no basis on which to interfere with his determination or that of the trial judge.
C. Delay
[28] Before disposing of this appeal, like the Superior Court appeal judge, we must comment on the issue of delay.
[29] In his reasons, the Superior Court appeal judge set out a brief chronology of the salient events in this case. We have included that chronology in Appendix ‘A’. In short, the children went into care with their current foster parents more than five years ago on September 2, 2010. They were then 1.8 and 3.8 years old. They are now six and eight and are still in legal limbo. Such delay is unacceptable in the lives of these children.
[30] After setting out his chronology, the Superior Court appeal judge noted that none of the legislated time limits under the CFSA “were even remotely adhered to” in this case. He expressed concern about the failure to follow the statutory requirements as well as the overall delay. He also expressed the hope that counsel would bring his concerns to the attention of those who can affect meaningful change.
[31] We echo the Superior Court appeal judge’s concerns. We go further and state that it is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines.
[32] We summarize below the most significant delays that occurred in this case:
• More than a year passed from the date of apprehension on September 2, 2010 until the date when the Parental Capacity Assessment was completed on October 27, 2011.
• The Society amended its protection application to instead request Crown Wardship on February 3, 2012. This was almost a year-and-a-half after the date of apprehension and already past the 12-month statutory limit for Society custody and care. More than six months passed between this date and the first hearing date at the Ontario Court of Justice on August 23, 2012.
• Almost six months passed between the first and last days of the Crown wardship hearing at the Ontario Court of Justice (from August 23, 2012 until February 4, 2013) with no more than a few days of hearings each month.
• More than nine months passed from the conclusion of the hearing to the release of the Ontario Court of Justice Reasons.
• More than a year passed from the filing of the Notice of Appeal with the Superior Court of Justice on December 16, 2013 to the first Superior Court of Justice hearing date on February 12, 2015.
[33] Where a statute requires that events occur within a specified time frame, it is simply unacceptable that justice system participants fail to adhere to those time frames. As Justice L’Heureux-Dubé commented on behalf of the majority of the Supreme Court in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519, at para. 136, “[t]he six-month delay prior to the hearing to determine whether John was in need of protection appears, on its face, to be highly unreasonable, particularly in the case of a newborn child.” This court spoke about the importance of timeliness in child welfare cases in Children’s Aid Society of Oxford County v. W.T.C., 2013 ONCA 491, [2013] O.J. No. 3438.
[34] That requires, among other things, that assessment reports be prepared with dispatch; that Children’s Aid Societies make decisions in accordance with statutory timelines about how to proceed in a particular case; that meaningful case management occur in which timetables are set and witness lists are fully canvassed; that trials be scheduled so that trial days are not stretched over months; and that trial judges receive adequate time to prepare reasons in a timely fashion.
[35] We acknowledge that additional factors may contribute to delay in particular cases. It is our hope, however, that all those involved in the child welfare system will do their part to minimize delay and promote finality for children. The children involved in this system deserve better.
D. disposition
[36] Based on the foregoing reasons, this appeal is dismissed. We make no order as to costs.
Released:
“KF” “K. Feldman J.A.”
“SEP 14 2015” “Janet Simmons J.A.”
“B.W. Miller J.A.”
Appendix ‘A’
The following are some of the salient chronological/time facts involved in this case:
A. When the children went into care with their current foster parents on September 2, 2010, CMV was 1.8 years old and LMV was 3.8 years old.
B. The trial to determine the children's future, which heard evidence over 12 days commenced August 23, 2012 and was completed on February 4, 2013. This is approximately 165 days from the first day of evidence to the last day of evidence.
C. The trial judgment was delivered on November 28, 2013, which is approximately 300 days after the completion of the trial. On November 28, 2013, it was also three years two months and 26 days from the date the children began living with and bonding with their foster parents. CMV was then five years old and LMV was 7.1 years old.
D. The last access between the Appellants and the children was on November 27, 2013, which is about 480 days before this appeal Judgment was rendered.
E. The trial in this matter commenced almost 2 years after the children were taken into care and the judgment was released more than 3 years after the children were taken into care.
F. The hearing of this appeal commenced on February 13, 2015; in summary, approximately 4 1/2 years after the children were taken into care.
G. Rule 33(1) of the Family Law Rules indicates that a hearing in a child protection case should take place no more than 120 days after the child is taken into care. In this case approximately 720 days elapsed. This is five times what the legislation says is allowable.
H. Section 70 of the Child and Family Services Act indicates that the court shall not make an order for Society Wardship that results in a child under the age of six being a society ward for the period exceeding 12 months or a child being over six being a society ward for a period exceeding 24 months.
[1] In response to the Society’s application and amended application, the appellants filed an Answer and Plan of Care and an Amended Answer and Plan of Care. In both documents, the appellants stated “n/a” in the box entitled “Child’s Native Status” in relation to both children.
[2] The only evidence given at trial concerning the appellant mother’s aboriginal heritage occurred during the following exchange:
Q. You heard a number of witnesses describe what they observed during your visits, how do you feel about their description of your behaviour during the visits?
A. Like when they said I had a flat effect ….
A. Well, there’s a reason behind the flat effect. I am part native and if you listen to other natives, they have that same flatness in their voice – monotone.