WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(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 publication of the report 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) Prohibition: identifying child.

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) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (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.

Court Information

Ontario Court of Justice

Date: 2016-04-21

Court File No.: Halton 456/14

Between:

Children's Aid Society, Region of Halton Applicant

— And —

M.M. (mother) R.M. (father of J.R.G.B.) J.C. (father of A.L.C.B.) D.M. (father of A.F.M. & M.D.M.) Respondents

Before: Justice Victoria Starr

Heard on: April 13, 2016

Reasons for decision on motions released on: April 21, 2016

Counsel

• Kathy Li — counsel for the applicant
• Novalea Jarvis — counsel for the respondent M.M.
• Glen Cook — counsel for the respondent R.M.
• Logan Rathbone — counsel for the respondent J.C.
• Rick Toor — counsel for respondent D.M.
• W. Todd Moore — counsel for the Office of the Children's Lawyer, legal representative for J.R.G.B.
• Maria Sirivar — counsel for the Office of the Children's Lawyer, legal representative for A.L.C.B., A.F.M. and M.D.M.

VICTORIA STARR J.

BACKGROUND

[1] This is the court's decision with respect to two motions heard on April 13, 2016. One was brought by the respondent mother by way of notice of motion dated April 7, 2016. The second by the respondent father, D.M. (hereinafter "D.M."), by way of notice of motion also dated April 7, 2016. D.M.'s motion was almost identical to the mother's, except that the relief sought was for the benefit of D.M.

[2] Neither the respondent D.M. nor his counsel attended at the hearing. The court understands that D.M. was in quarantine. No explanation was given as to why his counsel was not present and he had not arranged for one of the other counsel present to act as his agent.

[3] This is the context within which these motions were brought and this decision is made. Both parents have been incarcerated since the early fall of 2014 and are awaiting trial. The court has very little information with respect to the litigation surrounding the criminal matters. The mother had expected to be released in July 2015 but this did not happen. The trial in her criminal matter was set to start in early May 2016, but at the hearing the court was told that it may not proceed as the mother is contemplating a plea. In any event, the court has no idea when the mother may be released from custody.

[4] There are four children but only the portion of the protection application with respect to the three youngest children remains unresolved. All three children are under 6 years of age and have been languishing in the society's care since October 28, 2014 - about 18 months.

[5] The two younger boys are placed in one foster home together and their sister in another. The father of the boys is D.M. Their sister's father is the respondent J.C. She has access with her father (respondent "J.C.") and all three have access to their maternal grandparents and older brother who resides in the grandparent's home (the eldest child is the son of the third respondent, R.M.).

[6] The children have not had any physical access with either the mother or the respondent D.M. since they were apprehended. There is a possibility that access by card and letter has or will commence shortly, but the order which allows for access between the mother and children is very graduated and physical access will not occur without further order of this court.

[7] The society amended its already amended protection application to seek an order that all three children be made Crown wards with unspecified sibling access and no access with any of their biological parents.

[8] The Society has brought a motion for summary judgment returnable on May 6, 2016, which as a result of these motions will now proceed on June 13, 2016. Fixed trial dates have been set in July 2016 to deal with the issues for trial.

OVERVIEW OF THE APRIL 13, 2016 MOTIONS AND HEARING

D.M.'s Motion

[9] As no one appeared to argue this motion the court dismissed it in its entirety.

The Mother's Motion

[10] This case is becoming more contentious by the day as the parties become more entrenched in their positions. Whether willful, the result of being under resourced or simple apathy, the society's conduct has opened the door to more litigation. Every opening is seized upon by the mother. Resolving the issues that arise is time consuming and comes at considerable expense to all, as the mother seems to have endless resources with no need to prioritize. Proportionality and separating the wheat from the chaff does not seem to be part of her litigation strategy. The mother's voracious and disproportionate consumption of hearing time leaves little time for others to make submissions and hearings become chaotic as everyone else, including the court, races against the clock. As a result of the conduct of both mother and the society, the court is repeatedly faced with a situation of potential delay in moving forward with the summary judgment motion and trial. The motions heard on April 13, 2016, are a perfect example of all of this.

[11] The mother's motion is for 17 heads of relief and D.M.'s slightly less. The mother filed about 6 inches in material for use at the motion. Not surprisingly, the hearing, which began at 2:30 p.m., had to be called to a halt at 6:45. It was a chaotic hearing with the court attempting to manage so many issues without opening the door for further steps to be taken that might lead to more delay in the implementation of a permanent plan for the children. Although the court had the benefit of full or partial submissions on some issues and gave its decision and reasons with respect to the issues, there was no time to do anything more than make general orders. The court indicated that its endorsement with the details of the orders would be released later.

[12] The next court date is May 6, 2016. The court is concerned that there will not be enough time that day to deal with the issues it has adjourned to that day. If there is not and a further date is required, it may have to adjourn the summary judgment motion as it will be next to impossible to find available court time that accommodates everyone's schedules, while still leaving sufficient time for the parties to complete their preparation for the summary judgment motion. Further, if the summary judgment motion gets adjourned again, there may be no ability to reschedule it, or if there is, the trial may get adjourned as these two events must be far enough apart for the court to release its decision on the summary judgment motion so that the parties know what issues to address at trial.

[13] The court has since reflected further on the general orders it made on April 13, 2016 and on ways to save time as well as minimize the risk of further adjournments and potential delay. For the most part, the terms of the order below reflect the orders made at the hearing. The court has, however, exercised its discretion under subrules 2(2) – 2(5) and subrules 1(7.1) and (7.2) of the Family Law Rules, O Reg. 114/99, and made refinements and some modifications to the orders made at the hearing. It has also restructured how the mother's motion to strike certain sections of the Society's affidavits will be handled. More significantly and as it has heard full submissions on the issue, it has reconsidered its decision to adjourn the issue of service on the Band, and decided the issue. These changes and the need for more detailed and refined terms of the orders made on April 13, 2016, are necessary to manage the case and its disproportionate consumption of time and expense, to ensure that it is resolved fairly and justly, while minimizing the risk of further delay.

[14] The more significant changes to the orders made on April 13, 2016 are discussed below.

SERVICE ON THE BAND OR NATIVE COMMUNITY REPRESENTATIVE AND PARTICIPATION AT THE MAY 6, 2016 HEARING

The Issues

[15] The issues that emerged during submissions made on April 13, 2016 and that the court has decided are these:

1. At what stage should a society give notice to a Band or native community?

2. Does the act of serving a Band or native community with a child protection application elevate a Band to the status of party, under subsection 39(1)4 of the Child and Family Services Act, RSO 1990, c C.11 ("CFSA" or the "Act")?

3. Should the court order that the Band be given notice in this case, and if so, how?

4. Should the Band be able to participate at the hearing on May 6, 2016, and if so, how?

Position of the Parties

[16] Counsel for the mother came to the hearing expecting the court to determine the status of the children that day and so her position that the Band be served immediately was predicated on the assumption that the court would find the children to be Indian. Of course, if that had been the case, an order for immediate service would have issued as there can be no doubt that in such instances, the representative of the Band is a party as defined in the CFSA.

[17] The hearing did not go as expected and the court adjourned the status issue. The court then raised the question of whether the Band ought to be served in the meantime and allowed to participate at the hearing where the status of the children will be determined.

[18] In response to the court's question, Counsel for the mother took the position that the Band ought to be served and allowed to participate in the hearing.

[19] The Society strongly opposed such orders and made submissions as to why. Society counsel's argument can be summarized as follows:

a. It is only required to serve a party with the protection application;

b. The CFSA defines a party as being either the applicant, the society, the parent, or where the child is an Indian or a native person, a representative chosen by the child's band or native community;

c. For the Band in this case to be a party and for the society to have an obligation to serve its representative with the protection application, the society must be of the view that the child is Indian or native;

d. For the court to order service on a Band representative, it must first find that at least one of the children is an Indian or native person as defined in section 3 of the CFSA;

e. As the court has made no such finding as of yet and the Society is of the view that the children are not Indian or native, the Band is not a party and the court ought not to order that it be served;

[20] Counsel for the society submitted that if it of its own volition or as a result of an order of the court, serves the Band representative, then by virtue of the act of serving documents, the Band will be elevated to party status. The problem with this, she submits, is that the Act makes no provision for removing parties and as such, the court would be powerless to remove the Band as a party if it later determines that the child(ren) are neither Indian nor native persons. If this happens in this case their unnecessary participation in the case could very well cause further delay in implementing a permanent plan for these children.

[21] For these reasons society counsel asks this court to determine the question of whether these children are Indian or native, first. If the court finds that they are, it will immediately serve the Band representative.

Evidence

[22] The Society has consistently and repeatedly noted the status of the children in its pleadings as "not Indian – Not Native". This is the case with respect to the initial Application dated September 23, 2014; it's Amended Application dated December 1, 2014; and its amended amended application dated October 21, 2015. The same is not true for the mother or D.M.

[23] The biological parents have not been so consistent. For example, the mother served and filed an answer and plan of care dated November 26, 2015, wherein she identified the children's native status as: "Mohawk Reservation (Nappanee, Ontario)". D.M. served and filed his answer and plan of care, dated November 28, 2015 wherein he made the exact same notation for the children as the mother regarding their native or Indian status. The father of A.L.C.B notes in his answer and plan of care under child's native status: N/A.

[24] There are also various versions of different statements of agreed facts which reflect conflicting information about the status of the children and their connection to the Mohawk tribe. For example:

a. In the statement of agreed facts filed in support of the statutory and protection findings for the children's older brother, made March 5, 2015, the word "None" appears under Indian/Native. This was signed by the OCL on February 17, 2015, the mother on February 24, 2015, and the worker on February 19, 2015. It is important to note that the mother had not yet retained counsel when this document was signed. She retained counsel later, in or about April 2, 2015;

b. In an early version of the statement of agreed facts filed in the continuing record (signed by child protection worker, Jennifer Benallick on September 28, 2015 and by the mother November 5, 2015), in relation to the older brother, the following is written with respect to the native status of the eldest child: "Mohawk Reservation (Nappanee Ontario)";

c. In the final version of the statement of agreed facts – the version filed in support of the status review order made on November 26, 2015, with respect to the eldest child, the words "Mohawk Reservation (Nappanee Ontario)" is listed under status but under the heading "Band. Community", the word "none" appears.

[25] There is additional evidence that suggests the possibility that these children are Indian or native as defined in section 3 of the CFSA was drawn to the attention of the society and that it was well aware of this possibility. The evidence of Katrina Kelertas is that the first mention of the culture and heritage of the mother and her children is in the Halton Children's Aid Society records is a record made by child protection worker, Jennifer Benallick, dated May 7, 2014, regarding a face to face meeting between Jennifer Benallick and Miranda. Jennifer Benallick noted the following:

kids – native - Mohawk tribe, bio father - no status, kids – ¼ - issues over her father's status, ½ status -R.W.(bio), legally adopted by G.B.

[26] In addition, Katrina Kelertas's evidence is that:

a. The mother advised the Society as early as May of 2014, well before the initiation of the Child Protection proceedings that she and the children were Native and/or Indian;

b. Child Protection worker, Jennifer Benallick's record relating to an internal meeting held on January 15, 2015 notes: "let legal know - Mohawk";

c. On November 18, 2015 Jennifer Benallick noted: "we will have to notify the band, does she know which band".

[27] Despite the foregoing:

a. None of the versions of the protection application, including the most recent, amended amended application have been served on any Band;

b. None of the respondents, all of whom have been represented for some time, have served their various answers and plans of care on the Band; and

c. The society does not appear to have done anything to investigate this possibility until March 30, 2016;

d. When reviewing the documentation filed, all seem to have overlooked the notations in the various pleadings and statements of agreed facts that indicate conflict between the society and the parents regarding the children's status, including the court;

e. The first time that the court was actively made aware, by anyone, that there is conflict with respect to whether these children are Indian or native, was after the society brought its motion for summary judgment in March 2016.

[28] Now, on the eve of a summary judgment motion and trial, the mother seeks a declaration that she and the children are Indian or eligible for status as such. The evidence before the court with respect to this issue at the hearing held on April 13, 2016, is conflicting, and in some instances based purely on memory, hearsay, conjecture, and assumptions, and possibly based on a flawed investigation performed by the Society on March 30, 2016.

[29] First, there is the evidence of lineage given by the maternal grandmother. Her evidence is based primarily on her memory of her first (deceased) husband's family tree, what others have told her and what she believes to be the case as a result. Her evidence is essentially that on the maternal grandfather's side of the family, every parent with biological ties to these children was either Indian, Indian by marriage, or eligible for Indian status. As such, she claims, the mother and the children, are eligible for Indian status.

[30] The Society's evidence, on the other hand and based primarily upon their search efforts on March 30, 2016, is that the children are not descended from any Indian or person eligible for status. Their evidence is that there no records or listing in the Band's membership list, showing that these children are the direct descendants of an Indian or a person entitled to status by marriage. In fact, their evidence suggests that, at best: the children's great grandmother may have had a child before or outside of her marriage to the great grandfather (E.B.) from whom these children are descended, and if so, they are neither Indian nor eligible for status as Indians. It is also possible that the Indian great-grandfather had a daughter before or outside of his marriage to Ira Miracle that he did not report to the Band. These possibilities, based on the society's evidence, are remote and unlikely as the information about the various individuals conflict with information listed in the Band's database about the two alleged great-grandparents and that same data base shows no listing of the various people the grandmother claims the children are descended from as members of the band or related to members of the Band.

[31] The evidence of the grandmother and the society conflicts in at least two other ways as well. First, the grandmother's evidence conflicts with the Society's evidence that the children's great uncle told them about his brother (the children's maternal grandfather). He told the society worker that the biological parents of both he and his brother were neither Indian nor eligible for status. Further, the Society's evidence is that the maternal grandmother told the child protection worker in 2015 that the children's maternal grandfather did not have Indian or native status. The maternal grandmother denies ever having said this.

[32] Now, the mother questions whether the society searched the right lineage. In her evidence, the law clerk for the mother's counsel, Katrina Kelertas, suggests that the society has investigated the wrong lineage as it's evidence indicates the father of R.W. was C.W., when in fact, according to the maternal grandmother, it was T.G.. The society has put some evidence before the court which speculates about the lineage of T.G. and that there is T.G. listed in the Band's membership list.

[33] Finally, there is evidence before this court, that the Mohawks of the Bay of Quinte - Tyendinaga Mohawk Territory are prepared to accept service of materials in these proceedings and that they are looking for information to prove the mother's eligibility, as it appears to them that the lineage would be a positive match based on surname information. Indeed, a letter was sent to counsel for the mother dated April 11, 2016 and signed by Brandi Hildebrand, Manager of Mohawk Family Services. In that letter Ms. Hildebrand states:

"we are going to continue looking for information to prove [the mother's] eligibility, as it appears that the lineage would be a positive match based on surname information." "The Mohawks of the Bay of Quinte will accept service of information on this case. You can serve Mohawk Family Services ... Mohawk Family Services is the child and family services designate for the Mohawks of the Bay of Quinte."

The Legislative and Regulatory Framework

[34] The court has considered the following sections of the Act and legal principles most relevant to its determination of the question of whether the Band ought to be served.

[35] The CFSA makes it clear that Indian and native children are entitled to special consideration regarding such things as: provision of services, temporary and permanent placements, change in placements, best interest's determinations, and adoptions. Some of the most relevant sections of the Act include subsections: 1(2.5), 213.1, 37(4), 57(5), 58(2), and 61(2)(d).

[36] The Act also makes it clear that, even if a child is not an Indian or native person as defined in the Act, an important consideration at many stages is the child's ethnic and cultural ties to their community and to persons who share their ethnic cultural background and both at the interim and final stages, placement with such individuals or in the child's community is preferred over foster care if appropriate [see subsections 1(2)4, 2(3) 57(4), 37(3)3, 51(3.1)].

[37] Section 3 of the CFSA 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."

[38] The Act defines who are parties, as of right, to proceedings under Part III of the Act and this definition includes a Band representative:

Parties

39. (1) The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child's parent.

4. Where the child is an Indian or a native person, a representative chosen by the child's band or native community.

[39] Subrules 8(5) and 8(6) of the Family Law Rules, supra, clearly direct that a protection application is to be served immediately, upon every party, including a representative of a band or native community.

SERVICE OF APPLICATION

8(5) The application shall be served immediately on every other party, and special service shall be used unless the party is listed in subrule (6).

SERVICE ON OFFICIALS, AGENCIES, ETC.

8(6) The application may be served,

(b) on a representative of a band or native community, by serving the chief or other person who appears to be in charge of its management;

[40] Pursuant to subsection 47(1) and 47(2)(c), to determine if a child is Indian or native "as soon as is practicable".

47. (1) Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

47. (2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(c) whether the child is an Indian or a native person and, if so, the child's band or native community;

Analysis

Issue #1: At what stage should a society give notice to a Band or native community?

[41] As noted, the CFSA clearly singles out Indian and native children for special consideration. These special considerations are sprinkled all throughout the Act and apply to such things as: the delivery of services and supports, placement and access at the interim care and custody stage, permanency planning, and to determinations of best interests with respect to final placement and access at the disposition stage.

[42] There are safeguards to ensure that all, including the Indian and native communities across the province who have a communal interest in the outcomes of its children, can participate in the proceedings to protect those interests and to ensure that the objectives and special provisions of the Act are fulfilled. One safeguard is the inclusion within the definition of party, a representative chosen by the child's band or native community as a party to a proceeding under Part III [see subsection 39(1)4]. A second safeguard is found in the Family Law Rules. Subrules 8(5) and (6) of the Family Law Rules require that the child's Band or native community be served with the application at first instance, when the application is made.

[43] A third safeguard is the direction to the court found in section 47(2)(c) of the CFSA. That direction is 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".

[44] To interpret the constellation of sections 3, 39(1)4, and 47(2)(c) of the Act and subrules 8(5) and (6) of the Family Law Rules, as precluding a society from giving notice to a Band, until after the society concludes, or a court finds that, a child is Indian or native is inconsistent with the underlying purpose of the special objectives and provisions of the Act and impractical, and leaves children who may be Indian or native vulnerable. This is because such determinations would depend, solely on the parents and the society.

[45] Depending on the parents is often unhelpful. All too often they are unrepresented, disenfranchised individuals coping with the loss of their child as well as such issues as addiction, mental health, intellectual challenges, and criminal charges. They often do not know of the special considerations and treatment of Indian or native children. They may also generally experience difficulty advocating for themselves or their children with society representatives such as when they hold negative perceptions of those representatives. It is a tall order to expect them to effectively advocate with such representatives for the special considerations afforded to them and their children. Further, many are unable able to marshal evidence to support their position, generally, let alone the kind of evidence required to prove that their children are Indian or native. Even rarer is a parent who has the ability to come forward and make the complicated legal argument required at a hearing to determine whether a child is Indian or native.

[46] No notice to the Band before such determinations are made means that in those cases where the parents are unable to advocate effectively and early, the fate of these children will largely depend on the efforts of the society. As the circumstantial evidence in this case demonstrates very clearly, the court cannot and ought not to assume that the society has conducted an early and fulsome investigation.

[47] There is also the potential for unfairness of this "wait and see" approach to the Band or native community, in terms of having input at hearings to determine the status of their children. Where the Band or native community has not had any notice that a child it may have an interest in is before the court, it would have no opportunity to petition the court for party status or for standing at the hearing to determine whether the child is or is not a member of the Band or its native community.

[48] The next problem is a very practical one. Determinations of whether a child is Indian or native are rarely made early on in a case. In reality "as soon as practicable" is most often, at the final stage of a case, such as when parties present a statement of agreed facts in support of a final order, motions for summary judgment or at trial because the issue of status is rarely a contested one in this jurisdiction. Alternatively, such determinations are made only when, as in this case, someone finally comes forward and takes issue with the society's investigation and conclusion and demands a determination of the children's Indian or native status.

[49] To suggest that a society can wait until after a determination is made as to the status of a child to give notice to a Band or native community makes no sense given this reality. If this was the practice adopted by societies with respect to notice, motions for summary judgment and trials would routinely collapse or have to be adjourned. There would be constant delay in cases where the court finds, contrary to the expectations of the society, that the child is Indian or native. Again, this case is a perfect example of the risk of delay associated with the "wait and see" approach the society has taken and wants this court to take with respect to notice.

[50] Finally, there are the substantive risks involved with a lack of notice to consider. As noted, when notice is delayed, the Band or native community has no opportunity to put its position on the status of children before the society or the courts. As a result, in those cases where the parents do not advocate otherwise, the society takes a "wait and see" approach, and the determination of the child's status is not made before or at the temporary care and custody stage, this will impede the court's access to a fulsome evidentiary record which could, in turn, preclude it from making orders that ensure:

a. The provision of meaningful ethnic and culturally appropriate services and supports for these children and their families at an early stage;

b. That the children are placed in available culturally appropriate interim homes.

[51] The risks and problems identified above as being associated with a lack of notice to a Band or native community are to be avoided or minimized. The best way to do so is for a Band or native community to be given notice. There is nothing in the Act that precludes such notice from being given, either voluntarily by a society or by order of the court and indeed requiring notice is consistent with furthering the objectives of the legislation.

[52] Thus, where there is disagreement about a child's status between the parents or the society, or, where there is some evidence to suggest that a child may have some connection to a Band or native community and the particular Band or community can be identified, that Band or community ought to be given notice of the proceedings and claims at the first opportunity. In this way, the Band or native community can examine its own records and determine for itself if, in its view, it has an interest in the proceedings. This will also afford it the opportunity, early in the case to connect with the society in an effort to advance its position and have meaningful input, or, to petition the court for standing.

Issue #2: Does the act of serving a Band or native community with a child protection application elevate a Band to the status of party, under subsection 39(1)4 of the Act?

[53] It is not the act of giving notice or service that gives a representative of a child's Band or native community party status under the CFSA. The representative becomes a party to a protection application by operation of s.39(1). Accordingly, requiring the society to give notice to the representative immediately will not, in and of itself, result in the representative attaining automatic party status in this case thus, entitling him or her to defend the proceedings by serving an answer and plan of care, or to even participate in the proceeding.

[54] The only other ways that a non-party can become a party to a child protection proceeding is if the court makes an order under subrule 7(5) of the Family Law Rules.

[55] The court notes as well that there are other provisions within the Rules that provide the court with discretion to involve a person and which would require that they receive notice without having to make the person a party to the case. For example, there is 14(3) which declares that "a person who is affected by a motion is also a party, for purposes of the motion; and subrule 14(11) which requires that the party making the motion give notice to all other parties.

[56] There is also rule 2 to consider. The court has authority pursuant to subrules 2(2) to (5) in all cases to control its process and to make procedural orders that will promote the primary objective to deal with cases justly and fairly. The court's discretion is broad and can easily extend to making orders that a party give notice of a claim by serving documents to a third party. Such Rule 2 orders do not elevate a non-party to party status and thus, if the court exercises its discretion under this rule to direct service of certain materials, this would neither offend the legislative nor regulatory provisions governing party status.

Issue 3: Should the court order the Band be given notice in this case, and if so, how?

[57] In this case the court has not determined whether the children are Indian or native and it will not do so until May 6, 2016 – some 19 months since the children came into care, less than 6 weeks before the hearing of the summary judgement motion, and about three months before the trial.

[58] There is sufficient evidence to suggest the possibility that the children are Indian or native. The evidence is clear: the society has, for over 2 years, known of the possibility. The mother brought the connection of the children to this specific Band to the attention of the Society several months before the children were apprehended. The fact that she did not demand an early determination of the issue or went along with the society's dismissal of the information she gave to them is of no consequence. This did not relieve the society of its duty to thoroughly explore this possibility early on and as more information became available.

[59] The evidence is also clear that the society did not, until March 30, 2016, fully investigate the possibility. It also suggests the possibility that its most recent investigation may be flawed.

[60] More importantly, the evidence is that the Band is investigating the status of the mother, and has said that it appears to them that the lineage would be a positive match based on surname information. It has also indicated an interest in being served and given directions for service.

[61] While the society may be willing to take a continued "wait and see" approach, this court is not prepared to do so. It is also not prepared to leave such matters solely up to parents and a society who have both done so little in the two years that have gone by since this possibility was first raised to ensure that the potential rights of these children are protected or to at least bring the conflict over their special status to the active attention of the court.

[62] These children have been in care for 18 months. They are all under six and they are all awaiting a permanent outcome. They have been in care well beyond the regulatory and statutory timelines. It is time for a permanent plan to be put in place for them and that cannot happen unless the society is successful on the summary judgment motion or until a trial is concluded and decision released. Time is of the essence and it is critical in this case that any further delay be avoided.

[63] By giving notice to the Band now, the court hopes to avoid further delay. If the Band representative is served with the protection application it will be on notice and the proverbial clock for serving and filing an answer will start clicking. The court imagines that the band will be able to determine, on its own and in short order, whether any of these children are members of their band or native community. By giving notice now they will be well situated if the court makes such a finding in the sense of having sufficient time to prepare, serve and file an answer and plan of care within the regulated timelines.

[64] The court also wants them to have as much time to prepare for and participate in the summary judgment motion and trial. The more notice they have, the more time they will have to investigate placement and whatever other options or input they wish to present to the court. The more time they have the less likely their late arrival to the scene, should a finding be made, will result in either the motion for summary judgment or the trial being adjourned. This is really important in this case given the length of time these children have been in care and overriding statutory imperative to move forward with permanency planning.

[65] To achieve these objectives the Band must be given formal notice. The material in the continuing record is voluminous and it will be time consuming and expensive for a complete copy of everything in it to be served on the Band in short order. The court also doubts that the Band representative or its counsel would be able to review all of it prior to the hearing on May 6, 2016.

[66] Given the situation, the best way to ensure formal notice is given is to serve the Band with the formal pleadings. The best way to ensure that the Band has what it needs to begin preparing for the May 6, 2016 hearing and for the summary judgment motion to be heard on June 13, 2016, is to direct that it receive all materials filed to date and onwards for use at the May 6 motion to determine whether the children are Indian or native and for use on the summary judgment motion. This is what the court has ordered below.

[67] If the children are found to be Indian or native on May 6, 2016, the court will give directions at that time as to the service of the balance of materials.

Issue #4: Should the Band be able to participate at the hearing on May 6, 2016, and if so, how?

[68] The court also wants the representative to have an opportunity to participate in the hearing on May 6, 2016, so that the court can have the benefit of any expertise it can offer the court. There are several reasons for this. First, the court is concerned that there is disagreement between counsel on what is essentially a question of law. The court also wants to have the best evidence available and to have the benefit of submissions from an agency which it hopes has expertise in this area of law. This need arises because, based on the material filed, and submissions made at the hearing, it seemed that neither counsel had particular expertise in this area of law. For example, the mother intended to take me through proposed amendments to the legislation to extend the same special considerations afforded to Indian and native children in the Act to aboriginal children. It is not clear to the court why this is relevant. Also, the court questioned society counsel, briefly, about whether she could tell the court if the Mohawks of Quinte Bay have been designated as a "native community" by the Minister under section 209 of Part X (Indian and Native Child and Family Services). It was not satisfied with her answer as it lacked definitiveness. It may be that counsel for the Band or its representative will be able to help the court with this decision both through submissions and by adducing further evidence.

Conclusion

[69] For all of the foregoing reasons, the court finds that this is a case where ordering that the Band be given notice, served with certain materials in this case, and permitted to participate at the May 6, 2016 hearing, falls squarely within what is required for the court to exercise its discretion under Rule 2 to make such an order. This is exactly what is required to save time and expense, avoid delay, ensure a fair and just process and hearing, and ensure that the best and possibly special interests of the children are served.

[70] The parties have filed voluminous materials to date, the mother more so than any other party. The Halton Children's Aid Society is not a large society and does not have deep pockets. It handles many cases before the court. It has three lawyers and two legal assistants that are responsible for preparing files before the court. It would be unfair to require the society to absorb the costs associated with copying and service that would have been borne by each of the parties had the Band been a party at the outset. For this reason the court has ordered that each party who has served a pleading, material for use at the May 6, 2016 hearing and for use at the summary judgment motion is to serve a copy of its own material on the Band. The court has also set a deadline for this to be done to ensure that the Band receives everything very shortly.

ADDITIONAL ORDERS, DIRECTIONS AND TERMS

Facta for Hearing to Determine Whether the Children are Indian or Native Persons

[71] The court has ordered the Society to serve and file a factum on this issue and set a deadline for this. If the Children's Lawyer (or anyone else) wishes to serve and file a factum on this issue, it is to do so by the same deadline.

Request to Strike Portions of Affidavits

[72] The court heard extensively from the mother's counsel on the issue of whether to strike certain portions of the society's affidavits. The court dealt with this issue by putting a process in place whereby Ms. Li would notify Ms. Jarvis of her position by a specified date and the court would pick up with Ms. Li's argument on May 6, 2016, if an agreement had not been reached on this issue before then. To save time on May 6, 2016, the court has decided to receive Ms. Li's submissions in advance and in writing, with a deadline set for Ms. Jarvis' to submit reply submissions. This way, the court will either give its decision on this issue either in writing prior to, or orally at the hearing.

Questioning and Timetable for Exchange of Materials for use on Summary Judgment Motion

[73] An order for cross-examination / questioning of three child protection workers has been made. The court reminds counsel that this is to occur in accordance with the provisions of Rule 20. This includes complying with the preconditions set out in rule 20(8).

QUESTIONING OR DISCLOSURE — PRECONDITIONS

20(8) A party who wants to question a person or obtain information by affidavit or by another method may do so only if the party,

(a) has served and filed any answer, financial statement or net family property statement that these rules require; and

(b) promises in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained.

[74] Accordingly, before conducting questioning in writing, or by attendance for oral questioning, of the three affiants, counsel for the mother must ensure that all responding affidavits the mother intends to rely upon have been served and filed. She is also to produce to all other parties, a written promise not to serve or file any further affidavits for the summary judgment motion, except in reply to the answers or information obtained during questioning.

Adjustment to Timetable and Terms to Govern Summary Judgment Motion

[75] In order to make sure that additional time is provided to the respondents for service and filing of their responding material and to factor in the fact that the parties will be attending at a motion on May 6, 2016 which will require additional materials to be filed and additional preparation work, the court has modified the timetable it set previously for exchange of materials for use on the summary judgment motion.

[76] While the mother may conduct questioning before this deadline, that is only to occur if she has served and filed all of her responding materials to the motion for summary judgment and otherwise complied with the rules, such as rule 20(8)(b).

ORDER

[77] For oral reasons given at the hearing and these additional reasons, this court makes the following order:

D.M.'s Motion

1. The motion brought by D.M. by way of notice of motion dated April 7, 2016, is dismissed in its entirety;

Declaration that Children Indian or Native, submission guidelines and Participation of the Band

2. The mother's request for the following relief is adjourned to be heard on May 6, 2016 at 9:00 a.m.;

   a. A Declaration that the mother is a Native and/or eligible for status as an Indian as defined by the Child and Family Services Act;

   b. A Declaration that the three youngest children of the mother set out below are Native and/or eligible for status as an Indian as defined by the Child and Family Services Act;

   i. The child, A.L.C.B., born […], 2009;

   ii. The child, A.F.M., born […], 2010; and

   iii. The child, M.D.M., born […], 2013.

3. The Society shall serve and file a factum for use at the hearing on May 6, 2016 by no later than 4:00 p.m. on May 2, 2016;

4. The representative of the Mohawks of the Bay of Quinte - Tyendinaga Mohawk Territory, shall be entitled to participate in the hearing to be held on May 6, 2016 to determine if any of these children are Indian or Native. The representative may make submissions at the hearing and may serve and file evidence and material such as a factum for use at the hearing. Should it elect to do so, it is to serve and file its material by no later than May 2, 2016 at 4:00 p.m. The court would very much appreciate a factum from the representative but this is not required. If serving one, this is to be done by no later than 4:00 p.m. on May 3, 2016;

5. Should any party, other than the mother, the Band, and the Society, wish to file a factum for use at the May 6, 2016 hearing with respect to the issue of whether the children are Indian or Native, he or she shall serve and file same by no later than 4:00 p.m. on May 2, 2016;

6. The mother and Society shall each be permitted 45 minutes for submissions and 10 minutes each for any reply; the Band shall have 20 minutes for submissions with 10 minutes for reply. All other respondents and Children's Lawyers will be given 15 minutes for their submissions which shall be given following the mother's, society's and the Band's initial submissions.

7. A party or Children's Lawyer, or representative of the Band, who does not wish to make submissions, or who does not use all of his or her time for submissions may not transfer the time to another party.

Notice and Service on the Band

8. Each party who has served a pleading in this case (application, answer and plan of care), material for use at the May 6, 2016 hearing or for use at the summary judgment motion, is to serve a copy of its own material in this regard on the Band, Mohawks of the Bay of Quinte - Tyendinaga Mohawk Territory, in the manner they have directed – by serving Mohawk Family services. Each party is to do this by no later than 4:00 p.m. on April 26, 2016. This applies to any additional material the party files on for use at the May 6, 2016 or June 13, 2016 hearings.

9. The Society shall include with its materials served on the Band representative, a copy of this endorsement and in its cover letter direct the representative to the endorsement.

Striking Portions of Society Affidavits

10. To enable the court to deliver a decision prior to or orally on May 6, 2016, with respect to the mother's motion to strike certain portions of the three affidavits of society workers referred to in her notice of motion, the mother and the society are directed to do as follows:

    a. The Society is to serve and file written submissions responding to the mother's oral submissions to strike certain paragraphs of the affidavits of its workers. These are to be served and filed by no later than 4 p.m. on April 27, 2016;

    b. The mother may file reply submissions, if absolutely necessary; however, she is cautioned to abide by the strict rules governing reply submissions. This is not to be used as an opportunity to reargue her case or to fill gaps in her argument. Reply submissions These are to be served and filed by no later than 4 p.m. on April 29, 2016;

Adjournment of Summary Judgment Motion and Trial Management Conference and Related Terms

11. The trial management conference to be held on June 13, 2016, is adjourned to a date to be set by the court on the hearing date set for the summary judgment motion;

12. The summary judgment motion initially returnable on May 6, 2016 is adjourned to be heard on June 13, 2016 at 10:00 a.m.;

13. The terms governing the conduct of the summary judgment motion as set out in this court's order dated March 31, 2016, are varied and shall be as set out in Schedule A hereto;

14. Unless the court orders otherwise, the summary judgment motion will be heard regardless of whether questioning has been completed and the transcripts made available;

15. The parties are to file a joint statement setting out the undisputed material facts for use by the court at the summary judgment motion. The society shall prepare the draft of this document and give it to the mother by May 20, 2016. Thereafter it shall be circulated to the balance of the parties beginning with D.M. then J.C. then Ms. Sirivar, then Mr. Moore. Each party shall have 3 days from the date it is given to them to review it and indicate which facts he or she agrees are undisputed by initialing the facts agreed upon. At the end of the 3 days, he or she will give the document to the next person in line as indicated above with the last of the persons, Mr. Moore, returning it to the Society by June 9, 2016 so that it may be filed by the Society with the court by no later than 3 p.m. on June 11, 2016.

Leave to Cross-examine Affiants and Medical Professionals

16. The Respondent mother is granted leave to question the following individuals:

    a. Jennifer Benallick;

    b. Linda Cummins; and

    c. Amanda Jamieson;

17. These affiants may be questioned with respect the statements made by them in any of their affidavits filed in this matter, the records made by them and retained by the applicant and with respect to any of the relevant issues in this matter.

18. The applicant is to cooperate fully so as to ensure that these witnesses are made available at the first opportunity so as to avoid any further request for an adjournment of the summary judgment motion.

19. The Society is to, by no later than 4:00 p.m. on April 25, 2016, advise the respondent mother, in writing, if it will make the foster parents of each child available for questioning, if the Applicant is prepared to produce these individuals for questioning then the Applicant is to cooperate fully so as to ensure that these witnesses are made available at the first opportunity to avoid any further request for an adjournment of the summary judgment motion;

20. So as to avoid any further request for an adjournment of the summary it is the responsibility of the mother to ensure that she has competed her questioning of in time for written response or transcripts to be available for use at the hearing and for her to serve and file any reply material.

21. If the mother or any other party intends to rely upon any portion of the transcript of the questioning of a witness, the party is to, at his or her or its own expense, serve a full copy of the transcript with sections relied upon highlighted, upon all parties by 4:30 p.m. on June 1, 2016, and file same with the court by noon by no later than June 10, 2016 at noon.

22. Before conducting any cross-examination / questioning in writing, or by attendance for oral questioning, of any of the affiants or foster parents, counsel for the mother must ensure that all responding affidavits her client intends to rely upon have been served and filed and produced to all other parties, a written promise not to serve or file any further affidavits for the summary judgment motion, except in reply to the answers or information obtained during cross-examination/questioning;

Third Party Questioning

23. The mother is granted to leave to bring a motion returnable on May 6, 2016 at 11:00 a.m., for third party questioning, provided that this motion is brought on proper notice to the third parties. The third parties, that mother may bring a motion for an order for questioning are limited to the following individuals:

    a. The foster parents of any of the children, if the society has not agreed to produce these individuals;

    b. Ms. M., sister of the respondent father, D.M.

    c. Mr. D., partner of the Ms. M., sister of D.M.;

    d. Those of the children's medical and health care practitioners upon whose statements, reports, or records the society has relied upon in its affidavit material submitted in support of its summary judgment motion.

Record Production

24. The Applicant shall provide to the mother (and all other parties) with a copy of the records made or maintained by the foster mother or foster father of each child from November 2014 to the present, if any; and; a copy of all written communications between the foster parent(s) and the Applicant or any of its workers, the foster parent(s) and any of the parties or caregivers of the children, if any. These records are to be provided by April 22, 2016. If there are none, the applicant is to advise the respondent mother of this by April 22, 2016;

25. The Applicant shall provide the parties with a copy of all police records in its possession relating to the mother, any of the parties and/or any of the children.

26. Costs of this motion are reserved to be decided following the hearing on May 6, 2016 and on a date set by the court.

27. A separate order for the mother, the prisoner, to be brought to Court on May 6, 2016 to issue.

28. A separate order for the father, the prisoner, to be brought to Court on May 6, 2016 to issue.

29. The Judicial Secretary is requested to send a copy of this endorsement to all counsel.

Released: April 21, 2016

Signed: "Justice Victoria Starr"

Footnote

[1] Here the court is referring to such behaviours as: failure to comply with an undertaking to circulate a statement of agreed facts; failure to meet deadlines in an agreement and subsequent court order with respect to delivery of disclosure; providing 3,000 pages in disclosure all at once about 6 weeks before the summary judgment hearing date; putting in evidence for use at the summary judgement motion that has opened the door for a motion to strike; and failure to investigate the children's possible Indian or native status in a timely fashion as discussed in this decision below. At the hearing the court referred to some of this conduct as "breaches". Such references should not be interpreted as findings of fact as the society has not had an opportunity to make submissions these allegations yet and the court has not, in fact, made such findings.