British Columbia (Director of Child, Family and Community Services) v. L.M., 2019 ONCJ 205

WARNING

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

The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act and has expressly prohibited the disclosure of any information about identifying the child who is the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family. This subsection and subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), read as follows:

135.—(2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Subrules 31(5) and 31(6) of the Family Law Rules state as follows:

31.—(5) Contempt orders.— If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

(6) WRIT OF TEMPORARY SEIZURE — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person’s property.

ONTARIO COURT OF JUSTICE

CITATION: British Columbia (Director of Child, Family and Community Services) v. L.M., 2019 ONCJ 205

DATE: 2019 03 01

COURT FILE No.: Halton 325/18

BETWEEN:

The British Columbia Director of Child, Family and Community Services, Ministry of the Attorney General

Applicant

— AND —

L.M. & R.B.

Respondents

Before Justice Victoria Starr

Heard on September 27, 2018 and November 29, 2018

Reasons for Judgment released on March 1, 2019

Logan Rathbone............................................................................ counsel for the applicant

Natasha Hyppolite.............................................................. counsel for the respondent(s)

VICTORIA STARR J.:

INTRODUCTION

[1] This decision deals with the applicant’s, the British Columbia Director of Child, Family and Community Services (“the Director”), request for a restraining order against the respondents , L.M. and R.B. pursuant to section 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the CLRA”). A publication ban and a sealing order are also sought but are not contested issues.

[2] The motion was initially brought before the court on September 27, 2018, without notice to the respondents. At that time the court granted a without prejudice interim restraining order, and adjourned the hearing with directions to the Director to serve the motion materials. The interim and without prejudice order restrains LM and BD from

(1) Communicating directly or indirectly with the child, SS;

(2) Coming within 1000 metres of:

(a) the child, SS;

(b) SS’s school; and,

(c) any other place where SS may reasonably be expected to be.

[3] Further procedural relief was granted, including a sealing order and a publication ban.

[4] The Director is asking that this relief continue on a temporary “with prejudice” basis. The respondents do not oppose the publication ban or sealing order. They ask that the request for a restraining order be dismissed and that the September 27, 2018 restraining order be terminated immediately.

[5] The motion was eventually heard on November 29, 2018. At that time, and for the purpose of this motion, counsel for the Director indicated that, despite what is sought in her formal notice of motion, the Director seeks an order that the temporary, without-prejudice order made by this court on September 27, 2018, be made a temporary (i.e., “with prejudice”) order.

[6] After hearing submissions the court placed its decision on reserve.

[7] The court’s decision and reasons for granting the restraining order requested by the Director are set out below.

BACKGROUND AND LITIGATION HISTORY

[8] The litigation history is important to deciding this motion. While both parties included in their evidence some recounting of that history, neither provided the level of detail I require. They did, however, provide copies of the various decisions made by the adjudicators that have presided over the other proceedings. Those decisions provide the necessary detail.

[9] In her chambers decision in S.(A.) v. British Columbia (Director of Child, Family and Community Services), 2016 CarswellBC 2740, 2016 BCSC 1788, [2016] B.C.W.L.D. 7030, [2016] W.D.F.L. 5749, 271 A.C.W.S. (3d) 545, Justice B. Fisher summarized the background circumstances and prior legal proceedings up to that point. Her summary and findings were adopted by the British Columbia Court of Appeal in its subsequent decision in the appeal from Justice Fisher’s decision, A.S. v. British Columbia (Director of Child, Family and Community Services), 2017 CarswellBC 3015, 2017 BCCA 380, [2017] B.C.W.L.D. 6782, [2017] W.D.F.L. 5628, 284 A.C.W.S. (3d) 556 (per Goepel J.A., Dickson J.A., Fitch J.A.). I also adopt and rely on the same summary. The “foster parents” referred to in the summary are one and and the same as the two respondents in these proceedings. This is that summary:

[4] The CFCSA Director, designated under s. 91 of the Child, Family and Community Service Act, RSBC 1996, c. 46 (the CFCSA), has the authority to remove a child under s. 30 if she has reasonable grounds to believe that the child needs protection and there is no other less disruptive measure available that is adequate to protect the child.

[5] S.S. was born on […], 2013, and was removed from the care of her parents the day after her birth. On […], 2013, she was placed with the petitioners L.M. and R.W.B. under a Family Home Care Agreement. There followed proceedings in the Provincial Court in which the CFCSA Director obtained various custody orders. On January 9, 2014, she obtained an interim custody order, on March 27, 2014, a temporary custody order (which was later extended), and on July 6, 2015, a continuing custody order. Throughout all of these proceedings, the birth parents were represented by counsel. The interim and temporary custody orders were made with the consent of both birth parents and the continuing custody order was made with the consent of the birth mother; the birth father’s consent was dispensed with. No appeals to any of these orders were brought by the birth parents.

[6] In June 2015, the foster parents filed a Notice of Family Claim in this Court seeking guardianship of S.S. under the Family Law Act, SBC 2011, c. 25 and an injunction prohibiting the CFCSA Director from removing S.S. from their care. However, after an application had been filed for interim relief, this claim was withdrawn on July 3, 2015.

[7] In September 2015, the foster parents brought a petition in this Court against the CFCSA Director, seeking to adopt S.S. (Petition #1). The CFCSA Director opposed this, as she wanted to place S.S. with her two biological sisters who had been adopted by a non-Métis family in Ontario. In Petition #1, the foster parents sought the following orders:

1. Interim and permanent guardianship of [S.S.]...

2. An order prohibiting the Respondents from removing [S.S.] from the Petitioners.

3. An order under s. 17 of the Adoption Act [RSBC 1996, c. 5] dispensing with the Respondent Director’s consent to the adoption of [S.S.] by the Petitioners.

4. Appropriate orders under the court’s parens patriae power dispensing with the formal placing of [S.S.] under the Adoption Act and any formal pre and post placement reports under the said Act.

5. Adoption of [S.S.] by the Petitioners.

6. In the alternative that the Petitioners are not granted an adoption forthwith or their application is dismissed, contact with [S.S.] under s. 59 of the Family Law Act and the parens patriae power of this Court.

7. In the alternative, a judicial review of the decision of the Respondent Director to have [S.S.] adopted by non-native individuals in Ontario.

[8] Petition #1 was dismissed on December 3, 2015 by Macintosh J. (L.M. v. British Columbia (Director of Child, Family and Community Services), 2015 BCSC 2261), who found no basis on which parens patriae jurisdiction could be invoked in the circumstances. An appeal was filed the following day.

[9] On January 4, 2016, the foster parents brought another petition in this Court against the CFCSA Director and the Director of Adoptions (Petition #2). They sought the following orders:

1. On an interim basis under s. 51(1)(a) of the Family Law Act (”FLA”) the ... Petitioners be appointed joint guardians of [S.S.] ...

2. On an interim basis under s. 42 and 44 of the FLA, Petitioners continue to have primary care of [S.S.].

3. On an interim basis the Respondents be enjoined and prohibited from removing [S.S.] from the Petitioners.

4. A declaration that the mandatory nature of ss. 4-12 of the Adoption Act, and the portion of s. 35 of the Adoption Act relating to reports violate the rights of all the Petitioners under ss. 7 and 15(1) of the Charter of Rights and Freedoms and prevent the best interests consideration of [S.S.], and similar children, by the Courts in determining adoptions.

5. Appropriate declarations and orders under s. 24 of the Charter of Rights and Freedoms that the Court proceed with the adoption application of the Petitioners in considering [S.S.]’s best interest only and that the impugned provisions of the Adoption Act be of no impediment in the adoption process or alternatively that the said statutory provisions be declared of no force and effect.

6. Under s. 17 of the Adoption Act dispensing with the Respondents’ consent to the adoption of [S.S.] by the Petitioners and various relief under the parens patriae power of this Court as determined necessary, to allow this Court to consider the best interests of [S.S.] in determining her adoption by the Petitioners.

7. Adoption of [S.S.] by the Petitioners, after a full trial if deemed necessary.

8. In the alternative, a judicial review of the decision of the Respondents to have [S.S.] adopted by non-native individuals in Ontario and a declaration that this is contrary to her rights under s. 70(1)(a) of the Child, Family and Community Service Act ... with appropriate relief as this Court deems appropriate.

9. In the further alternative that the Petitioners’ substantive claims herein are dismissed, continuing interim care of [S.S.] and a continuing injunction prohibiting her removal until such time as any appeals by the Petitioners from this proceeding or from their first adoption proceeding are determined.

[10] This petition was dismissed on February 22, 2016 by Choi J. (L.M. v. British Columbia (Director of Child, Family and Community Services), 2016 BCSC 275) on the grounds of res judicata. She found that the facts, issues, and the relief sought were essentially the same as those in Petition #1; that in essence, the litigation in both petitions “stem from the petitioners’ desire to continue a relationship with S.S., whether that is by way of adoption, guardianship or contact”; and allowing the petitioners to move forward with Petition #2 “would be contrary to the rule requiring parties to bring forward all their claims and causes of action at the same time, in a single proceeding with a view to avoiding litigation in a piecemeal fashion”. She would also have struck the petition as an abuse of process.

[11] An appeal was filed the following day, along with a motion before the Court of Appeal seeking, among other things, an interim order prohibiting the CFCSA Director from removing S.S. from the foster parents pending the hearing of the appeals from both Petition #1 and Petition #2. On March 4, 2016, Newbury J.A. granted this order on the express understanding that the appeals would be set down for hearing as soon as possible (L.M. v. British Columbia (Director of Child, Family and Community Services), 2016 BCCA 109).

[12] In all of these proceedings, the petitioners were represented by Mr. Hittrich.

[13] In May 2016, the birth parents, represented by Mr. Ganapathi, instituted two proceedings. On May 11, 2016, they sought leave in the Provincial Court to apply under s. 54 of the CFCSA to cancel the July 6, 2015 continuing custody order that was made in favour of the CFCSA Director. On May 30, 2016, now represented by both Mr. Ganapathi and Mr. Hittrich, they filed the first of the petitions before me against the CFCSA Director (Petition #3) seeking various declarations related to the CFCSA Director’s decisions to remove S.S. under s. 30 of the CFCSA and to place her for adoption with non-residents of British Columbia, orders to return S.S. to the birth parents and to allow them to directly place her for adoption with the foster parents, and an order for certiorari quashing the transfer of S.S. to Ontario for adoption.

[14] On June 13, 2016, Rogers P.C.J. denied the birth parents leave to apply to cancel the continuing custody order, determining that nothing had been presented that indicated any basis for cancelling the order. She found that the birth parents had not taken any significant steps to have the child returned to their care and that their reason for seeking the cancellation was to regain custody only for the purpose of determining where S.S. would be placed for adoption.

[15] On June 30, 2016, the birth parents amended Petition #3. The major change included reference to orders that would enable the foster parents to adopt S.S. by way of a custom adoption:

1. A declaration that the removal of [S.S.] (the “Child”) was wrongful and in violation of section 30 of the Child, Family and Community Service Act.

2. That [S.S.], who was born on […], 2013 and removed from her parents ... (the “Petitioners”) by the [CFCSA Director] on […], 2013 be immediately returned to the Petitioners to enable the direct placement of the Child with her current Métis foster parents on a custom adoption under s. 46 of the Adoption Act ... with or without the consent of the Director.

3. Further, or in the alternative, an Order that the Petitioners shall have immediate interim access to the Child under the terms of supervision as the Court may deem appropriate.

4. A declaration that the removal of the Child by the Director was in violation of ss. 2, 4, 16, 17, 20, 21 and 30 of the Child, Family and Community Service Act ...

5. An order quashing any determinations, decisions or findings by the Director that the Child is a child who needs protection from the Petitioners and a declaration that any such determinations, decisions or findings are unfounded, contrary to the Child’s best interests, and contrary to ss. 2, 4, and 16 of the Act, and further that any such determination, decisions or findings are and have been made contrary to the requirement of procedural fairness and contrary to the rules of natural justice. Further, or in the alternative, an order in the nature of certiorari quashing the continuing custody order made under s. 41(1)(d) of the Act in respect to the Child.

6. A declaration that any plan by the Director to place the Child for adoption with non-residents of British Columbia violates ss. 2, 4 and 70 of the Act and s. 5 of the Adoption Act ... Further, an order in the nature of certiorari quashing the transfer of the Child to Ontario for adoption or any other reason collateral to adoption, and an order restraining the Director from pursuing any steps towards such goal pending the final outcome of this Petition.

7. A declaration that the Petitioners have a custom adoption and direct placement rights for the adoption of the Child are entitled to counter the ill-effects and stress the Child will undergo and alienation from her Métis culture if forcibly moved at the current stage of her life from the home she has been in since her birth.

8. A declaration that the equality rights of the Petitioners and of the Child pursuant to ss. 7, 8, 15 and 24 of the Canadian Charter of Rights and Freedoms ... have been violated by the Director.

9. A declaration that a continuing relationship with the Petitioners is best for the Child.

10. An order that the Director produce all its files on the Child forthwith to the Petitioners ...

11. That the conduct of the Child’s file be transferred from the District Office and Region in which it is currently located to a new District Office and Region in British Columbia, and that staff be assigned who have no prior involvement with this file pursuant to the Court’s inherent parens patriae jurisdiction under s. 99 of the Act.

12. An order for a Writ of Habeas Corpus...

[16] On July 11, 2016, the birth parents filed an appeal to this Court of the decision of the Provincial Court denying them leave to apply to cancel the continuing custody order.

[17] On August 12, 2016, the birth parents, the foster parents, and the British Columbia Métis Federation, also represented by both Mr. Ganapathi and Mr. Hittrich, filed another petition seeking a declaration that the foster parents “have already adopted S.S. by way of a custom adoption” (Petition #4). In addition to this declaration, they seek these orders:

2. A declaration that the Director’s consent is not required for the custom adoption to take effect.

3. A recognition by this Court that an adoption of [S.S.] has been effected by Métis custom, which has the effect of an adoption under the Adoption Act ... s. 46.

4. An order for abridgement of time for service of an expert Métis elder’s report of Paul Chartrand on Métis custom adoption pursuant to Rule 11-6(3) of the Supreme Court Civil Rules.

[18] On September 13, 2016, the Court of Appeal dismissed the foster parents’ appeals of Petition #1 and Petition #2 (L.M. v. British Columbia (Director of Child, Family and Community Services), 2016 BCCA 367). Saunders J.A., writing for a five judge panel, held that parens patriae jurisdiction does not permit the court to order adoption of a child outside the statutory scheme; there was no basis for the order sought in Petition #1; and Petition #2 centered on issues that should have been advanced in Petition #1 and were res judicata.

[19] The applications before me were set for hearing on September 19, 2016 but the matter did not complete and was put over to continue on September 22, 2016. On September 20, 2016, the birth parents abandoned their appeal from the decision of Rogers P.C.J. The next day, they abandoned their claims for all of the relief sought in Petition #3 with the exception of para. 6, in which they seek a declaration regarding the plan by the CFCSA Director to place S.S. for adoption with non-residents of British Columbia and an order in the nature of certiorari quashing the transfer of S.S. to Ontario “for adoption or any other reason collateral to adoption”.

[10] As the British Columbia Court of Appeal notes at paragraph 6 of its decision in A.S. v. British Columbia (Director of Child, Family and Community Services), supra, immediately following the dismissals of the foster parents’ appeals of Petition #1 and Petition #2, the CFCSA Director removed S.S. from the foster parents’ (the respondents in these proceedings) care. Further, since September 29, 2016, S.S. has resided in Ontario in a prospective adoptive home with her biological sisters.

[11] The Court of Appeal goes on to summarize the result of Petitions #3 and #4, that is, the proceedings before Justice B. Fisher as follows:

7 The chambers judge noted that Petition #4 sought relief on a basis that was fundamentally different from and inconsistent with the prior claims and petitions advanced by either the Birth Parents or the Foster Parents. Petition #4 sought a declaration that the Foster Parents had already adopted S.S. by way of a Métis custom adoption and recognition of this adoption under s. 46 of the Adoption Act. As pointed out by the chambers judge, if an adoption had already taken place, none of the other litigation should have been brought as, in each, the parties were seeking orders that would enable the Foster Parents to adopt S.S. While the appellants acknowledged Petition #4 asserted facts and a legal position that arguably was inconsistent with the facts and legal positions taken in prior proceedings, they submitted Petition #4 was not an abuse of process because they were unaware “until very recently” that their actions “constituted a valid Aboriginal custom adoption which could be recognized by these Courts”.

8 The chambers judge did not accept the appellants’ submissions. She indicated that she found it difficult to accept that a custom adoption could take place in circumstances where the parties were unaware of its existence. She noted the authorities establish that it is not permissible to assert inconsistent factual and legal positions in different proceedings. She found the assertion of a past custom adoption could be considered a collateral attack on the continuing custody order, which has remained in force since it was granted on July 6, 2015. The chambers judge indicated she appreciated the importance of a claim for recognition of an Aboriginal custom adoption but held it could not justify the existence of Petition #4, given all that had occurred. Having considered all of the evidence within the context and circumstances of the case, she concluded Petition #4 constituted an abuse of process and should be struck. Having found Petition #4 was an abuse of process she did not find it necessary to consider whether it disclosed a reasonable claim.

[12] The foster parents next appealed Justice Fisher’s decision to the British Columbia Court of Appeal. On the appeal of Justice B. Fisher’s decision to the B.C. Court of Appeal the parties sought to adduce new evidence, the summary of which is set out by the British Columbia Court of Appeal in its decision in A.S. v. British Columbia (Director of Child, Family and Community Services), supra. That summary adds to the history of the legal proceedings in this matter. The Court of Appeal summarizes the new evidence as follows:

11 The new evidence disclosed that on November 30, 2016, a custom adoption commissioner (the “Commissioner”) in the Northwest Territories, pursuant to s. 2 of the Aboriginal Custom Adoption Recognition Act, S.N.W.T. 1994, c. 26 [ACARA], had issued a custom adoption certificate (the “Certificate”), which declared that as of […], 2013, the Foster Parents had adopted S.S. by way of Aboriginal custom adoption. The Certificate was filed in the Supreme Court of the Northwest Territories on December 7, 2016. Pursuant to s. 4 of the ACARA a certificate filed in the Supreme Court of the Northwest Territories is deemed to be an order of that court (the “NWT Order”).

12 The Foster Parents then sought and obtained pursuant to the Vital Statistics Act, R.S.B.C. 1996, c. 479 [VSA], a British Columbia birth certificate for S.S. listing them as S.S.’s parents. I note that under s. 12 of the VSA if a person born in British Columbia is adopted outside the province by order of a court of competent jurisdiction, the registrar general, on receipt of a certified copy of the order, must register the adoption and amend the original birth registration in accordance with the facts contained in the order or notice of adoption.

13 The new evidence indicates the Directors only learned about the proceedings in the Northwest Territories and the issuance of the British Columbia birth certificate on March 21, 2017. On April 20, 2017, the CFCSA Director filed an originating notice for judicial review in the Supreme Court of the Northwest Territories seeking orders quashing the decision of November 30, 2016, vacating the Certificate relating to S.S and prohibiting the Commissioner from issuing a custom adoption certificate with respect to S.S. The grounds of review include that the Commissioner did not have statutory authority to make the decision, the decision was not in accordance with procedural fairness because the CFCSA Director did not receive notice of the application and was not given the opportunity to make submissions, the decision of the Commissioner was procedurally unfair because there is a reasonable apprehension of bias and the decision of the Commissioner was an abuse of process.

14 I should note that somewhat surprisingly the appellants’ factum, which was filed on April 20, 2017, made no mention of the new evidence or the legal implications arising from the NWT Order.

15 The appellants do not oppose the admission of the new evidence. On September 21, 2017, they filed their own motion to adduce new evidence, being an affidavit of L.M., dated September 18, 2017. In that affidavit, L.M. deposed that in October 2016 she and R.B.W. moved to the Northwest Territories. On November 22, 2016, they met with the Commissioner. At that meeting they did not disclose to the Commissioner that S.S. had been removed from their care, pursuant to a continuing custody order and sent to live with a family in Ontario. Nor did they advise the Commissioner of the history of the litigation in British Columbia and their continuing attempts in British Columbia to adopt S.S. They did provide the commissioner with affidavits of the Birth Parents supporting their adoption of S.S. and a copy of an expert report of Paul Chartrand with respect to Métis custom adoptions. Mr. Chartrand’s report had been previously filed in support of Petition #4.

[13] The B.C. Court of Appeal, on its own motion, stayed the appeal from Justice Fisher’s decision to await the decision of the Supreme Court of the Northwest Territories on the judicial review.

[14] The judicial review petition in the Supreme Court of the Northwest Territories was heard in May 2018 by Justice Smallwood. Justice Smallwood placed that court’s decision on reserve.

[15] In the meantime, on July 6, 2018 Justice K.M. Shaner of the Supreme Court of the Northwest Territories made an interim, without prejudice order prohibiting the LS and RB or any other party from using or relying upon the NWT custom adoption certificate or any other document associated with it (including the birth certificate) to gain access or custody to SS. At paragraph 4 of that order Justice Shaner makes it clear that:

4 For greater certainty, this order shall not be construed as any form of pronouncement or ruling on the validity of the custom adoption order currently subject to judicial review.

[16] As of the hearing of this motion (and presumably even now as counsel have not alerted me as I requested they do), the appeal of Fisher J.’s decision before the British Columbia Court of Appeal remains stayed; and, the ultimate decision of Justice Smallwood of the NWT Supreme Court on the judicial review application remains on reserve.

THE LEGISLATIVE FRAMEWORK APPLICABLE TO THIS MOTION

[17] Restraining orders are governed by s. 35 of the CLRA. That section reads as follows:

Restraining order

35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 15.

Transition

(3) This section, as it read on October 14, 2009, continues to apply to,

(a) any prosecution or other proceeding begun under this section before October 15, 2009; and

(b) any order made under this section that was in force on October 14, 2009.

THE ISSUES TO BE DECIDED

[18] Both parties agree that this court has jurisdiction to decide this motion. As this was agreed to and I am satisfied based on both the written and oral submissions made by the applicant that it does, I will not address this issue save and except to make it clear that I find this court has jurisdiction to hear this motion and grant the relief requested.

[19] The respondents took no position with respect to the Director’s request for a publication ban and a sealing order, in the event that the Director is successful. As this request is unopposed, this is not a contested issue on this motion. It is also supported by the evidence. As such, and having ultimately found that the restraining order sought is justified and to be granted, I am satisfied that those orders should continue and have so ordered.

[20] The respondents assert that the three issues to be decided are as follows:

Issue 1: Are the respondents the legal guardians of the child by virtue of the Aboriginal custom adoption affect it in December 2014?

Issue 2: Should the temporary restraining order against the respondents, denying them any access to their child, be terminated immediately?

Issue 3: If the respondents are the legal guardians of the child, is it open to the court to restrict the legal custodial parents from accessing and gaining custody of their child without a protection concern?

[21] Although I do address the first and second issue raised by the respondents as part of my overall analysis below, generally, I reject the respondent’s characterization of the issues to be decided. The respondents are not the moving party and have brought no motion of their own. The statue is clear as to what must be established under s. 35 before a court will grant a restraining order. The onus is on the applicant to show, on a balance of probabilities, that the Director holds lawful custody of SS and to justify the need for the restraining order. Thus, I (and the Director) characterize the issues I must decide on this motion as these:

1. Does the applicant have lawful custody of the child? If she does not, then the motion must be dismissed and the interim without prejudice order terminated immediately;

2. If the applicant has lawful custody of the child, does she have reasonable grounds to fear for the safety of the child in her lawful custody?

3. Which party, if any, should pay costs of this motion?

ISSUE #1: DOES THE APPLICANT HAVE LAWFUL CUSTODY OF THE CHILD?

Positions of the Parties

[22] The Director takes the position that it is the sole personal guardian of SS, pursuant to the continuing custody order dated July 6, 2015 (“the CCO”). A CCO is analogous to an order of Crown Wardship or Extended Society Care in the province of Ontario. The CCO thus, confers lawful custody of SS upon the Director. Further and as such, pursuant to section 41(1) of the CLRA, this court is directed to recognize the CCO order such that it is deemed to be an order of the court and enforceable as such.

[23] The respondents submit that they are the legal guardians of the child by way of Aboriginal Custom Adoption which the Director has to date failed to recognize, respect, and honour. They argue that as Métis peoples of Canada, they have, since birth, been entitled to rely on Aboriginal customary law which includes the section 35 constitutionally protected right of custom adoption.

[24] They assert that, on December 19, 2014, the Métis birthparents and the Métis adoptive parents participated in a constitutionally protected Aboriginal custom adoption. Further, according to Métis custom, at that moment the respondents became the adoptive parents and legal guardians of the child. The Métis community, the BC Métis Federation, has confirmed this custom adoption, referred to as “Ka Oopkitmashook”. They submit that Ka Oopkitmashook carries with it full parental rights and legal guardianship.

[25] Furthermore, it requires no statutory declaration of the court for it to exist. This is because Ka Oopkitmashook is protected under the Constitution Act 1982 S.35 and cannot be extinguished under the statutory regime.

[26] As the adoption is created by protected Aboriginal custom, there is no requirement that the courts declare the adoption. The adoption exists under protection of the Constitution of Canada Act, S. 35. The adoption has the same force and effect of a statutory adoption including its finality under the Adoption Act.

[27] They assert that no court in Canada has the jurisdiction to create or extinguish an Aboriginal custom adoption. The court is not dealing with its own order but that of a constitutionally protected custom which is deemed by statute to be an order of the court.

[28] The status conferred by Aboriginal customary adoption is to be recognized by the courts for the purposes of application of the principles of the common law and the provisions of statute law to the person whose status is established by the customary adoption.

[29] Thus, on the strength of the constitutionally protected custom adoption that took place before the CCO was made, the respondents are the lawful guardians of the child.

[30] The Director argues that this line of argument must fail for three reasons: First, an Aboriginal custom adoption does not automatically confer any right of legal custody to the claimed custom–adoptive parents. The legal consequences of a custom adoption will be informed and governed by the particular Aboriginal customary law under which it has occurred.

[31] Second, the Director has challenged the validity of the custom adoption itself. The Director made an application on April 20, 2017 in the Supreme Court of the Northwest Territories to quash the custom adoption. The Director did so with considerable dispatch after the attempt of the respondents to take custody of the child on the strength of the ACARA certificate and the letter of Ms. Sarah Clark, and notwithstanding the CCO in favour of the Director being in place. The parties continue to await a final decision with respect to that application. However, on July 6, 2018, Justice Shaner made an interim, without prejudice order prohibiting the respondents or any other party from relying upon or using the custom adoption or any document created in reliance on the custom adoption, to assert a right of custody, access or any other incident thereof.

[32] Third, the issue of whether the respondents have any right to custody, access or guardianship of the child is res judicata, and has already been answered in the negative by several extra provincial courts of competent jurisdiction.

Analysis

Decision to decline to decide the respondents claim that they have lawful custody of SS by way of custom adoption affect it in December 2014

[33] Each of the parties presented the court with a number of cases to support their various points regarding custom adoption, its constitutionally protected status, the rights that the status confers, etc.[^1] I have read and considered each of them, however, my decision here does not turn on or require me to make findings with respect to the points upon which the parties disagree. As such, with few exceptions, I have not done so and have not referred to any specific cases.

[34] Suffice it to say that at the heart of the parties’ dispute is a disagreement about:

(a) Whether Métis custom adoption automatically confers legal custody of a child to the claimed custom–adoptive parents (arguably an unsettled point of law; [See, for example: Kalaserk v. Strickland, 1999 CanLII 6799 (NWT SC), Casimel v. Insurance Corp. of British Columbia (1993), 1993 CanLII 1258 (BC CA), 106 D.L.R. (4th) 720 (B.C.C.A.), and K. (S.K.) v. S. (J.) 2002 CanLII 53332 (NU CJ), 2002 CarswellNun 2, 2002 NUCJ 2, [2002] Nu.J. No. 3, 179 A.C.W.S. (3d) 846, 72 R.F.L. (6th) 423]);

(b) Whether the claimed custom adoption of SS actually ever took place between LM and RB and the birth parents, and if it did, whether it took place when the respondents say it did (primarily a credibility issue).

[35] It is also clear from the jurisprudence provided to me that where there is a dispute between an Aboriginal claimant and a non-Aboriginal entity or person about the legal consequences of a right constitutionally protected under s. 35 of the Constitution Act (such as the Métis right to adopt a child by way of custom adoption) for the purpose of the application of the common law or statute, that the dispute may be resolved by a court of competent jurisdiction. The cases I have cited above are all examples of such instances.

[36] In my view, to decide this motion based on the issues as framed by the respondents and as they urge me to, would require me to decide the hotly disputed issue of the validity of the respondents’ claim to have adopted SS by way of custom adoption and prior to the CCO. It would also require me to determine, if they did adopt SS, what rights automatically flow from that adoption (i.e. do rights of guardianship or custody automatically flow from it), which, as I have already noted, appears to raise an unsettled point of law. It would also, according to the jurisprudence require me to weigh the evidence available as to the legal consequences of the particular Aboriginal customary law under which it occurred and to possibly interpret and apply legislation particular to other jurisdictions.

[37] To decide such matters at this time, while the NWT Supreme Court’s decision, the BC Court of Appeal’s decision, and the ultimate fate of Petition #4 is not known, when there are serious issues about credibility, and on a motion where this court does not have the benefit of conducting a full inquiry based on a full and tested evidentiary record, would be inappropriate.

[38] This is primarily because doing so in such circumstances would amount to an abuse of process. That is, it would allow this court’s procedure and process to be used in a way that could or would bring the administration of justice into disrepute. The following are the considerations that have led me to this conclusion.

[39] First, the very issues about which the parties fundamentally disagree are in one form or another and to one degree or another already and presently before two other courts – the NWT Supreme Court and the BC Court of Appeal.

[40] In A.S. v. British Columbia (Director of Child, Family and Community Services), supra, the B.C. Court of Appeal summarized its decision and reasons for staying the appeal before it from the decision of Fisher J as follows at paragraphs 20 – 24:

20 The issue on this appeal is whether Petition #4 is an abuse of process. In Petition #4 the appellants are seeking a declaration that the Foster Parents have adopted S.S. by way of custom adoption. The Foster Parents now have an order in the Northwest Territories recognizing the custom adoption. The existence of a court order recognizing the custom adoption may be of some importance in determining whether Petition #4 is an abuse of process and whether the chambers judge’s order below should be set aside on appeal. The existence of the NWT order alters the factual foundation from that which was before the chambers judge, possibly significantly. Whether she would have exercised her discretion and struck Petition #4 as an abuse of process if she was aware of the new evidence cannot of course be determined with certainty as it was not before her nor could it have been as it did not yet exist.

21 The existence of new evidence is of course not a novel situation in this Court or a bar to determining an appeal. We are often asked to consider and rule in situations where, as a result of new evidence, we have to confront different facts than those that were before the judge in the court below.

22 The difficulty in this case, however, is that we do not know whether the new evidence will survive the CFCSA Director’s challenge. Until that is known, this Court cannot properly analyze the issues raised on appeal. If the CFCSA Director succeeds and the Certificate is quashed, the appeal will presumably be determined on the record that was before the chambers judge and the submissions made to date. If, however, the Certificate survives the CFCSA Director’s challenge, the division hearing the appeal will likely be presented with very different submissions from those presently before us. A further consideration is that if the appellants are able to successfully resist in the Northwest Territories the CFCSA Director’s attempts to quash the Certificate, then they will have obtained much of the judicial recognition they seek in Petition #4. Generally speaking, a party is not entitled to seek the same relief in different forums.

23 This situation has been caused by the appellants’ decision to seek, without notice and while their appeal in this Court was pending, relief in the Northwest Territories identical in an important respect to that sought in this proceeding.

24 In the result therefore, this appeal will be stayed until the proceedings in the Northwest Territories, including any appeals thereof, are concluded or until further order of this Court. We have reached this decision with great reluctance but are satisfied that in the unusual circumstances that have arisen a stay will not compromise the best interests of S.S.

[41] Similar logic and reasoning applies here, particularly if I were to decide whether to grant the restraining order by deciding the issue the respondents ask me to decide: whether the respondents hold lawful custody of SS by way of custom adoption. This is because the claims, evidence, arguments, and no doubt much of the jurisprudence before those courts, greatly overlap and bear strong if not identical resemblance to those before me. As a result, if I were to decide the issues as framed by the respondents, at this point in time, these proceedings would be quite duplicative.

[42] Second, while the respondents may be right in claiming that the technical outcome of the NWT judicial review will only address the validity of the adoption registration/adoption recognition order, and not the validity of the custom adoption itself, based on the applicant’s submissions, this is debateable.

[43] Third, there is a good possibility that the NWT Supreme Court and possibly the BC Court of Appeal, will make findings of credibility, fact and law that may be relevant to the issues before this court, such as a determination of whether a custom adoption did in fact take place and when (the validity of the respondents’ claim to have adopted SS by way of custom adoption).

[44] Fourth and of critical importance to the administration of justice, to address whether it is the Director or the respondents who have lawful custody of SS by delving into the merits and validity of the respondents’ claim to have adopted SS when they did and by way of custom adoption, and the legal standing and rights that flow from that in the circumstances I have just described, including while the NWT Supreme Court’s decision and the BC Court of Appeal’s decision and thus, the fate of Petition #4 remains unknown, would place this court in the unfortunate position of possibly arriving at different conclusions than those courts.

[45] A court cannot and should not be put in the position of possibly coming to a different result. Wherever possible, courts are to avoid a situation where conflicting decisions may be made by two courts. Although the discussion is in relation to a completely different context, the following general statement made Justice Mayer Lerner in Children’s Aid Society of Ottawa (City) v. M. (G.) (1978), 1978 CanLII 1524 (ON SC), 20 O.R. (2d) 378, 87 D.L.R. (3d) 572, 6 C.P.C. 148, 3 R.F.L. (2d) 226, 3 Fam. L. Rev. 197 (Ont. Div. Ct.) has broad application:

It is contrary to the judicial process and undermines the credibility of the courts if a judicial tribunal hears the same evidence in a different trial on the same issues and conceivably, arrives at conflicting results.[^2]

[46] Fifth, it would also permit a collateral attack on the CCO, which has remained in force since it was granted on July 6, 2015. As the BC Court of Appeal noted when staying the appeal from Fisher J.’s order above, “generally speaking, a party is not entitled to seek the same relief in different forums”. In British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal), 2011 SCC 52 (S.C.C.), Abella J. (for the majority) stated at para. 28 that the rule against collateral attack:

[28] ...attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings. It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route...

[47] Further, as Justice Choi noted in S. (S.) (Litigation guardian of) v. British Columbia (Director of Child, Family and Community Services) 2016 CarswellBC 558, at paragraphs 81 and 82:

81 The doctrine of abuse of process engages the court’s inherent power to prevent the misuse of its procedure that brings the administration of justice into disrepute. The focus is on the integrity of the judicial decision making as a branch of the administration of justice. It is an abuse of process to take court time to deal with the same matter for a second time: Brown v. Canada (Attorney General), 2015 BCSC 1910 (B.C. S.C.) at para. 47.

82 The integrity of the adjudicative function of the courts is challenged by allowing a party to re-litigate an issue. The duplication of efforts results in inefficient use of judicial resources. This inefficiency directly impacts the ability of the courts to function. It also tends to diminish public respect for the judicial process and opens up the possibility of inconsistent findings of fact. Re-litigation of an issue diminishes the credibility and authority of judges: Petrelli, at para. 71.

[48] Sixth, this court has the inherent discretion and should act on that discretion to deal with matters as may be required to prevent an abuse of process. Courts in Toronto (City) v. C.U.P.E., Local 79 (2003), 2003 SCC 63, 2003 CarswellOnt 4328, 2003 CarswellOnt 4329, 2003 C.L.L.C. 220-071, 232 D.L.R. (4th) 385, 311 N.R. 201, 120 L.A.C. (4th) 225, 179 O.A.C. 291, 17 C.R. (6th) 276, [2003] 3 S.C.R. 77, 9 Admin. L.R. (4th) 161, 31 C.C.E.L. (3d) 216 (S.C.C.), the Supreme Court of Canada found that the inherent discretion of courts could be used to prevent an abuse of process to prevent re-litigation of an issue. The Supreme Court of Canada adopted the following from Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (Ont. C.A.) at para. 55:

[55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite and Others, [1990] 3 W.L.R. 347 (C.A.) at 358.

[49] For all these reasons and to avoid the real possibility of bringing the administration of justice into disrepute, I exercise this court’s inherent jurisdiction and decline to decide the validity of the respondents’ claimed custom adoption of SS, the legal rights such an adoption conferred on them if it did in fact occur, and thus, whether they have lawful custody of her, and, by extension whether the CCO in favour of the Director remains valid. Specifically, I decline to do so prior to the disposition of the NWT judicial review application and prior to the disposition of the appeal from the decision of Fisher J., and if Fisher J.’s order is set aside, prior to the final disposition of Petition #4. The respondents shall, however, have the right to have the order I make on this motion reviewed once those proceedings have been concluded and the findings and decisions of those courts known.

Does the Director have lawful custody of SS for the purposes of this motion?

[50] At this time, for the limited purposes of this motion, and on the evidence before me, I find the Director has met its onus to demonstrate, on a balance of probabilities, that she holds lawful custody of S.S. My reasons are as set out below.

[51] First, on July 6, 2015, a continuing custody order was made giving the Director lawful custody of S.S. Throughout all of those proceedings, the birth parents were represented by counsel. The interim and temporary custody orders were made with the consent of both birth parents and the continuing custody order was made with the consent of the birth mother; the birth father’s consent was dispensed with. No appeals to any of these orders were brought by the birth parents.

[52] Second, since the CCO order was made there have been many legal challenges by the respondents and birth parents. What all of those legal proceedings have in common is that they address custody, guardianship, or the adoption of SS, and LM and RB’s adoption of her. None of them have been successful. The CCO continues unmodified.

[53] Third, in Petition #4, the proceeding where the respondents’ claims most resemble their claims on this motion, the respondents sought, for the first time, a declaration that they have already adopted SS by way of a custom adoption and recognition by the British Columbia Court that an adoption of SS has been effected by Métis custom, which has the effect of an adoption under the Adoption Act s. 46. At first instance that relief was denied. That decision is under appeal but the CCO has not been stayed and continues in full force and effect.

[54] Fourth, it remains to be seen if the order dismissing the petition will be set aside and if so, whether the respondents will be successful in securing the relief they seek in Petition #4, including a declaration that they have already adopted SS. Unless or until that happens, the CCO will likely remain in effect.

[55] Fifth, sections 19 and 41 of the CLRA provide unequivocal direction to Ontario courts with respect to how our court is to handle situations where an order has been made with respect to guardianship and custody by a court of another province in Canada. Section 19 sets out the purposes of Part III, which is where s. 35 is located. It reads as follows [my emphasis added]:

Purposes, Part III

19 The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario. R.S.O. 1990, c. C.12, s. 19. [My emphasis added]

[56] Section 41(1) and (2) read as follows:

41 (1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario. R.S.O. 1990, c. C.12, s. 41 (1).

Effect of recognition of order

(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such. R.S.O. 1990, c. C.12, s. 41 (2).

Conflicting orders

(3) A court presented with conflicting orders made by extra-provincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child. R.S.O. 1990, c. C.12, s. 41 (3).

Further orders

(4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order. R.S.O. 1990, c. C.12, s. 41 (4).

[57] The respondents have not satisfied me that any of the circumstances set out in subsection 41(1)(a) to (e) exist. As a result this court is required to recognize and give effect to the CCO made by the British Columbia Supreme Court.

[58] For all these reasons, I recognize the CCO and find that the applicant Director, for the purposes of this motion and for now, has lawful custody of S.S.

ISSUE #2: DOES THE APPLICANT HAVE REASONABLE GROUNDS TO FEAR FOR THE SAFETY OF THE CHILD IN ITS LAWFUL CUSTODY?

Evidentiary Issue

[59] There is some conflict in the evidence as to what occurred on June 22, 2018. The respondents urge this court to resolve the conflict in favour of the respondents as the Director’s evidence, they submit, is neither reliable nor credible in some instances.

[60] Although I do not accept all of the respondents’ arguments in this regard, I do agree that the respondents’ evidence is more reliable. Their evidence is an eyewitness account as they were there. The Director’s evidence about the events that unfolded that day at the school, at the police station, and during the interactions between the respondents and the police officers who attended the school, is based solely on hearsay, double hearsay, and unidentified hearsay. I am thus, persuaded by the respondents’ argument and so, where the evidence conflicts and one or both of the respondents were present, I have preferred that of the respondents over the applicant.

Additional Background

[61] Over the course of the nine months preceding the events of June 22, 2018, the BC Métis Federation notified the Director that it was exercising its right to self-govern and protect its children from forced assimilation.

[62] The respondents and the BC Métis Federation also repeatedly invited the Director to work with them so that a transition plan could be put in place for SS to come into the respondents’ care. The Director did not engage with them on this account.

[63] At some point, most likely in early June 2018, the respondents learned of the school SS was attending. Up to that point they did not know anything more about SS’s whereabouts other than that she was somewhere in Ontario living with her siblings and their adoptive parents,

[64] At some point prior to June 22, 2018, the respondents obtained the status of child protection representatives for the BC Métis Federation’s child protection service (akin to a child protection worker here in Ontario). They were issued credentials to that effect.

[65] On the morning of June 22, 2018, the respondents were given final authorization from the BC Métis Federation to visit, assess and possibly apprehend SS.

[66] RB’s evidence is that he and his wife followed the very set protocols put in place by the BC Métis Federation to ensure that all actions were within the law and fully disclosed to law enforcement. To that end, on June 22, 2018, prior to attending at SS’s school, RB visited the Halton Regional Police Service (HRPS). RB hand-delivered notification of the planned action (the apprehension of SS) to the HRPS. He presented a letter prepared by the BC Métis Federation explaining the respondents’ purpose of attending the school and their intended action. He claims he showed proper identification and answered all questions truthfully. It is clear that the respondents were represented to the police as child protection workers for, and acting on instructions from, the BC Métis Federation.

[67] Thereafter, with additional letters in hand (one intended for the school administration and the other for SS’s current foster parents), and with one of SS’s favourite stuffed toys, he and LM attended SS’s elementary school.

[68] The respondents’ evidence is that they purposefully waited to attend the elementary school until after school hours so as not to disrupt the school day and to allow SS the opportunity to have as normal a day as possible.

[69] When they arrived they saw children and staff inside a fenced in area beside the school. Apparently there were no signs anywhere indicating that entry through the gate was prohibited; and no indicators anywhere to instruct visitors not to enter. They entered the gate to the fenced in area and claim they had no idea they were doing anything wrong when they did so.

[70] Upon entering the area LM saw SS. She immediately went over to her and sat down beside her. She did not touch SS; she sat down beside her, said, hi, and asked SS if she remembered them. SS answered with a single word. Yes.

[71] When LM sat down and started to talk to SS, RB calmly approached one of the staff members and proceeded to explain that they were representatives of the BC Métis Federation Child Protection Services and the reason for their visit. He handed one of the workers the letter intended for school administration and encouraged her to read it. He calmly stated he had already approached the HRPS and that he was available to answer any questions they may have.

[72] Within approximately 30 seconds of LM sitting down beside SS to talk to her, two staff members grabbed SS by the hand and quickly escorted her inside. According to RB, it was at that time that RB and LM were informed that the procedure was to enter through the front office. They both claim the staff were abrupt with SS and with them.

[73] After learning that the expectation was to visit the principal, they asked where the door was and the workers hurriedly pointed to the back of the school. They began walking to the back and as they did another door quickly opened and the same staff who took SS inside was calling to an outside staff. The staff looked distressed and called to someone named Sherry. The staff was motioning to Sherry with her arms and frantically telling her to hurry. Sherry was outside with a group of older children.

[74] RB asked the staff if this was the door to enter and she said no so RB and LM continued around to the front of the school.

[75] RB and LM entered the front of the school and found the administration office. LM asked to speak with the principal as the staff had instructed. Just as she posed the question, a woman stormed past and physically pushed LM aside. She forced herself in front of LM and said that she needed to speak to the principal first. LM and RB were asked to wait around the corner which they did.

[76] As they were waiting LM and RB saw all of the children being rushed inside the school. They heard the voice of, and saw SS’s sister, who recognized them.

[77] The police were called, attended the school, and an investigation ensued. At some point LM and RB were asked to wait outside, which they did. There was some difficulty on the part of the police reaching someone satisfactory to them who could advise of the validity of the CCO. After they confirmed its validity they suggested that there had been some miscommunication or misunderstanding and RB and LM were asked to leave, which they did.

[78] On July 25, 2018 the police informed the Director that the criminal investigation was concluded and would not be resulting in charges against the respondents. There is some dispute between the parties as to whether the respondents were issued a warning by the police and if so, the content of that warning.

[79] In September 2018 the respondents sent a letter to the Director stating their intention to have SS come into their care (preferably through a thoughtful transition plan) and that they had set aside the month of October (2018) to devote to SS. The letter invites the Director to be part of that process and in the process of transition planning. The response they got from the Director was to serve them with the ex parte restraining order.

[80] In October 2018, the Director sent a letter to the BC Métis Federation (the “BCMF”) with the explanation that new legislation was going to be enacted in BC in the spring of 2019, which would allow for Indigenous child protection services to assume care of children. The letter goes on to essentially advise that the Director is not going to wait for the legislation to pass and offers the BCMF the option of early and immediate implementation of the anticipated changes. The respondents claim they understood this new stance would apply to SS. Mr. Keith Henry, the President of the BCMF wrote to the Director to accept her offer on behalf of SS.

[81] The Director’s evidence, based on conversations she has had with SS’s current caregivers, is that they have informed her that SS and her sisters have been traumatized by the June 22, 2018 school incident. The Ministry has put a variety of supports in place to assist the family.

Positions

[82] The respondents take the position that the Director brings no evidence that the respondents pose a threat to SS’s safety and they state that, in fact, they pose no threat to her. The Director, they claim has misappropriated the facts of June 22, 2018, and her evidence of threat is based solely on the hearsay of others.

[83] The Director asserts that as a result of the respondents’ actions before, during and after the events of June 22, 2018, she is fearful that the respondents will make another attempt to remove SS from her care and that if this happens SS will be at risk to suffer emotional harm. This would likely for SS’s emotional and psychological wellbeing.

LEGAL CONSIDERATIONS

[84] In his decision in K. (F.) v. C. (M.), 2017 CarswellOnt 4174, 2017 ONCJ 181, [2017] W.D.F.L. 2210, [2017] W.D.F.L. 2218, 277 A.C.W.S. (3d) 549, Justice Stanley B. Sherr, summarizes the legal considerations that the court is to apply when deciding requests for a restraining order under s. 35 of the CLRA. I adopt those legal principles and have applied them in reaching my decision on this motion. They are set out at paragraph 100 of Justice Sherr’s decision, where he writes:

100 The legal principles for the court to apply are as follows:

a) Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Nieweglowski, 2007 ONCJ 469 (Ont. C.J.).

b) It is not sufficient to argue that there would be no harm in granting the order. See: Purewal v. Prewal, 2004 ONCJ 195 (Ont. C.J.).

c) Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child. See: McCall v. Res, 2013 ONCJ 254 (Ont. C.J.).

d) The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. S.C.J.); McCall v. Res, supra.

e) A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.).

f) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

g) A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Prewal, 2004 ONCJ 195 (Ont. C.J.).

h) A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.

i) Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: C. (D.) v. C. (M.T.), 2015 ONCJ 242 (Ont. C.J.).

j) In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: C. (D.) v. C. (M.T.), supra.

k) It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: C. (D.) v. C. (M.T.), supra.

[85] The respondents rely on the decision of Justice Pugsley in Stave v. Chartrand, supra, for the proposition (found at paragraph 24) that: The question on such motions is not whether the events described were seen subjectively by the applicant as threatening. Rather, the court must look at those events objectively to determine whether they form the basis for a restraining order. In that case the restraining order was not granted. I agree with and have applied this principle and approach in reaching my decision.

[86] I would add to the forgoing principles that the applicant, as the person seeking the order, bears the onus of showing that the order is necessary on a balance of probabilities. See: Stave v. Chartrand, supra.

Analysis

[87] I find that the applicant has reasonable grounds to fear for the emotional and psychological safety of SS for the reasons set out below.

[88] First, the applicant’s fear that the respondents will again act to remove SS from her care despite the CCO, without notice, and without her consent or a court order authorizing this, is closely tied to the events that took place before, on June 22nd, and later, in September and October 2018. Looking at those events objectively, I find that her fear is both legitimate and understandable.

[89] For example, on a balance of probabilities, I find that the respondents’ intent and purpose in attending SS’s school on June 22, 2018, was to take SS into their care right from her school. This is evident from their evidence, their actions on June 22, 2018, and from the three letters RB had in his possession on June 22, 2018. I will begin with the letters, all of which are dated “June 2018” and authored by Keith Henry, President of the BCMF.

[90] The first letter is the letter shown to the police when RB attended the police station. It is addressed, “To whom it may concern”. Its contents include the following:

The BC Métis Federation recognizes the custom adoption of our member SS...

As per BC Métis Federation’s Child Protection Services protocol, this notification is being sent to the Halton Regional Police Service in the unlikely event that any party contacts law enforcement alleging any illegal action regarding the adopted child. The adoptive parents are in possession of an adoption certificate issued by the Northwest Territories Supreme Court which is recognized by all jurisdictions in Canada.

All parties involved in this matter have been regularly updated since October 2017 regarding the plans of the BC Métis Federation’s Child Protection services to take care and custody of our member number 201600766, returning her to her legally adoptive parents. [My emphasis added]

[91] The second letter was written for the school administration. It is addressed, “Dear Sir or Madam” and its contents include:

This letter is to inform you that a child in your care, SS, has been adopted and is being apprehended for the sole purpose of facilitating her move to her adoptive parents as supported by the Constitution Act 1982 section 35, the British Columbia Child, Family and Community Services Act section 53, and the BC Métis Federation Child Protection Legislation section 11.

The Ontario Provincial Police and the British Columbia Ministry of Child and Family Development are aware of this matter as it pertains to the adoption of this child. [My emphasis added]

[92] The third letter was intended for SS’s current caregivers. Its contents include: assurances that they will try to maintain the relationship with their family so that the bonds that the child has made will not be lost forever. The letter states:

Please know that SS will be loved and cared for and will be given every opportunity to develop to her fullest potential. She will grow up with the full knowledge of her Métis heritage, her birth parents, and if you allow her sisters as well. We will be happy to refer to you as Auntie Dana and Uncle Bill and will pass along any notes, pictures, and gifts that you might like to send her. [My emphasis added]

[93] These letters and the fact that two of them were delivered to their intended readers, make it very clear, the respondents were not there to visit and assess. They were there to take (apprehend) SS.

[94] I have also placed weight on the following two statements made by the respondents, both of which signal their intent on June 22nd:

(1) RB: My wife and I were acting both in an official capacity for the BC Métis Federation, and as the legally adoptive parents of our daughter.

(2) LM: our mandate as BCMF Child Protection workers was to assess our daughter and, if deemed appropriate, to return her to our community.

[95] It is also my finding that the respondents intended to remove SS on June 22nd without explicit advance notice to the Director, and thus, without the Director’s knowledge. Here, I have placed significant weight on the fact that: there is no mention in the letter to the police or the school of the CCO and RB does not depose that he told the police of the CCO. From this I draw the adverse inference that the police were not apprised of the existence of the CCO and thus, important information was withheld from them. Further, I place weight on the fact that the respondents had obtained status as official agents for the BCMF child protection service with authority to apprehend SS and had in their possession on June 22nd credentials to that effect. They then used those credentials and the letters in an attempt to satisfy and thus lull the police and the school administration into believing that there was nothing wrong with what they were attempting to do. The purpose was to ensure that they were not obstructed in fulfilling their mission.

[96] I have also placed weight on the failure of the respondents or the BCMF to provide explicit and advanced notice to the Director of their planned action for June 22nd. This is important because it has led me to conclude that if they make another attempt, it will likely be without notice and thus, without providing the Director with a means of stopping them. At arriving at these findings I have considered and placed weight on the respondents’ actions before the events on June 22nd and on the manner in which they went about things on June 22nd.

[97] The respondents argue that they gave the Director lots of advance notice of their intention to take SS into their care, and thus did not act without notice to her. RB specifically deposes that a copy of a decision of the BCMF made on October 1, 2017, which he claims makes clear the plan to retrieve SS, was sent to the Director in advance of June 22, 2018. LM’s evidence is that the Director herself told LM of the name of the elementary school SS was attending.

[98] I am not in the least bit persuaded by this argument. First, the document that RB attaches to his affidavit as exhibit B and which he deposes is “a copy of the decision sent to the Director wherein the BCMF decides to “retrieve the child who had been adopted by custom and who was being held unlawfully by the Director”, shows no such decision. What was provided was the minutes from the AGM held on that date. There is no mention of SS or of any decision as he describes. There is no evidence to corroborate his representation that the decision was sent to the Director.

[99] Second, in the letters provided by the respondents as evidence of notice to the Director, there are repeated expressions that: they adopted SS by way of custom adoption; that as a result, s. 35 of the Constitution applies and they are thus the legal guardians / parents of SS; that the Director is required by her legislation to step aside as guardian when an adoption occurs and that adoptions are final and irrevocable; they want SS returned to the respondents’ care and to her Métis community; and, and they (LM) do not accede to the notion (or court order) that the Director has lawful custody of, and is the sole guardian of, SS. In these letters they also invite the Director to work with them to transition SS.

[100] What is not in these letters is a word about the respondents’ planned action for June 22nd. They do not say that they will be attending at SS’s school that day, that they have been appointed by the BCMF as child protection workers, or that they will be relying on those credentials to gain access to and to remove SS.

[101] Third, none of what is in the letters is new. The respondents have been saying these things for years. There is a vast difference between telling someone, for the 100th time that you are going to retrieve a child in circumstances where the person is unaware that you know where the child is, and telling someone who is aware you now know where to find the child. Furthermore, while by June 22nd, the Director had learned of the fact that the respondents had registered the custom adoption in BC, and had a new birth certificate for the child showing them as the child’s parents. It was completely reasonable of her to assume (given she had taken such swift legal action to stop them from being able to rely on these documents, a hearing to decide the issue had been held on that application, and, the parties were awaiting Justice Smallwood’s decision), that the respondents would not take matters into their own hands by attempting to use the documents to gain access to and remove SS from her care. Also, it must be remembered that the Director was unaware that the respondents had been issued credentials as child protection workers for the BCMF, and thus, now had a way to gain access to her.

[102] Fourth, even if it was the Director who disclosed the school SS was attending (something the Director denies, and about which LM gives conflicting evidence about),[^3] this does not mean the Director was aware of their plans.

[103] In such circumstances, to argue that they gave the Director any meaningful notice, let alone nine months of advance notice of their intention to act to remove SS is completely disingenuous.

[104] The respondents’ continuing intention to remove SS from the Director’s care and to have her returned to them and her Métis community, is another factor upon which I have placed weight in reaching my decision. This continuing intention is evident from their evidence filed for use on this motion. It is also evident from the letter they sent in September 2018, the details of which are set out above, and, from the communications exchanged between Mr. Henry and the Director in October 2018.

[105] It is reasonable, given the contents of the September letter and given the prior actions of the respondents, to conclude, as the Director did, that the respondents planned to make another attempt to take SS into their care. Given the history, the invitation to work jointly with the Director to effect cannot be taken to mean that they will not once again act unilaterally if she refused to engage. The Director, quite reasonably, formed a legitimate and immediate fear that the respondents would act to take SS into their care before or in October.

[106] Next, there is the October 2018 letters exchanged between Mr. Henry and the Director. The Director’s letter is a generalized statement of affairs moving forward. There is nothing in it about SS and nothing in it to suggest that the Director’s offer applies to SS. Further, the Director’s position on SS is well known, clear and has remained steadfast – that SS is to remain in her care. If it were otherwise she would not have continued with this motion. She would have released SS to the BCMF.

[107] Nonetheless, as a result of these letters the respondents seem to me to be asserting that they, as agents of the BCMF’s Child Protection Service, now have the Director’s explicit and implicit consent to the removal of SS and return to their care and her community. To suggest as they do in their evidence, and as their counsel did in her submissions that this amounts to the Director’s consent to SS’s removal suggests to me that they will again act to remove SS and then rely on their misunderstanding to justify their action. The respondents’ misperception and misunderstanding of the application of the Director’s communication as implied authorization for them to act, further legitimizes the Director’s fear that they will act again to remove SS.

[108] Finally, the events of June 22nd are not the first time the respondents have acted surreptitiously and without notice to the Director in circumstances where notice ought to have been given. RB and LM’s actions in the months leading up to June 22nd, to register their custom adoption in the NWT and to obtain a new birth certificate listing them as the parents of SS, without notice to the Director, are perfect examples of this[^4].

[109] There are a few other factors upon which I have placed weight in my assessment of the Director’s fear. First, the respondents have proven to be single-minded, dogged and persistent in their pursuit of their objective to secure the return of SS to their care. I do not intend for these words to signal that I fault them for this. They believe SS is their daughter by way of a custom adoption that took place before the CCO was made and thus, that the CCO is invalid and should be set aside. If they are right, it is completely understandable that they would relentlessly pursue her return to their care.

[110] Second, they have proven to be very resourceful, have the support of the BCMF, and have proven most recently, to be quite ingenious in devising a way to remove SS from the Director’s care and to take her into their care.

[111] Third, they have now clearly demonstrated that they are not prepared to wait for their claims to be fully and finally adjudicated in a court of law, and are prepared to resort to self-help remedies, without notice to the Director or waiting for the approval of the court. These self-help remedies have been resorted to with some secrecy, at least with respect to the Director.

[112] Fourth, they are strongly of the view that SS has suffered trauma as a result of her removal from their care and separation from her Métis community, and as a result of forced assimilation.

[113] Fifth, it is more likely than not, that the respondents are becoming quite desperate. In support of both these findings I have given considerable weight to this evidence given by RB:

In our attempt to protect our adoptive daughter from trauma and forced assimilation, we have been forced into protracted litigation with the Director. We have spent approximately $800,000 in legal fees in that effort. We have, over the last two years, had no choice but to become selective as to the petitions and appeals we could undertake. More recently, my wife and I have, out of necessity, had to represent ourselves in court proceedings.

His evidence also includes a statement to the effect that he and LM would have appealed Justice Shaner’s decision but decided not to in order to save expense.

[114] Given all of this, there is simply no way to foresee what new way they will come up with next to accomplish their objective, or how or when they will implement any devised plan to fulfill it.

[115] To summarize my findings thus far; they are:

(1) The respondents intended and planned prior to June 22nd to remove SS from the Director’s care;

(2) On June 22nd they intended to and acted to remove SS from her school and to take her into their care;

(3) The respondents acted without the Director’s knowledge and without notice to her when explicit notice was called for;

(4) The respondents have, and will likely in future act without advance notice to the Director, so as to prevent her stopping them;

(5) The respondents’ intention to remove SS and to take her into their care remains steadfast;

(6) The respondents have since June 22nd sent a clear message to the Director that they intend to act again to take SS into their care and that they believe they are entitled to do so by virtue of their perception of explicit or implied consent on the part of the Director;

(7) The respondents seem no longer prepared to wait for the justice system to resolve matters and are willing to resort to self-help remedies;

(8) As BCMF child protection agents and armed with the knowledge of where SS goes to school, the respondents have both means and opportunity to gain access to SS for the purposes of taking her into their care; and,

(9) There is simply no way to foresee when or how the respondents will act to achieve their desired goal.

All of this supports my ultimate finding that the Director’s fear that the respondents will act again to remove SS from her care is legitimate and objectively speaking, completely understandable.

[116] I turn next to my analysis of the possible harm the Director asserts the restraining order is required to protect SS from. In that regard, after considering and weighing the evidence before me, I, like the Director, come to the conclusion that there is clear risk to SS’s emotional and psychological safety and well-being. Below I set out the factors that lead me to this conclusion.

[117] First, SS has likely experienced considerable trauma in her life and is thus particularly vulnerable. She has had her ties to family and community severed as a result of her removal from the care of others three times so far in her very young life. She has also been in a stable home with her siblings for quite some time now. A fourth removal (which may be followed by a fifth if it is found she has been wrongfully retained by the respondents) would be highly disruptive and destabilizing, and would likely add to the likely trauma she has already experienced. Further, if there is police involvement as a result of the actions of the respondents this too could be quite traumatizing for her. I have little doubt that should such scenarios materialize this would likely compromise SS’s emotional wellbeing.

[118] Second, SS was traumatized as a result of what happened on June 22nd. This is the Director’s unchallenged evidence and the evidence of LM tends to corroborate it. However, the Director and LM do not agree on the cause of this trauma.

[119] The respondents see themselves as completely blameless in causing the trauma to SS. Both go to great lengths to describe how peaceful and calm they were while at the school. LM specifically blames the trauma the child and her siblings suffered is the result of the reactions of those in authority at the school. In other words, it was caused by the reaction of the staff, which she clearly views as unjustifiably panicked and an overreaction.

[120] In my view the reaction of school staff was completely justified. Child protection workers in this province know to check in with school administration first, to go through the front doors of a school to locate the office, and not to directly approach children, let alone to do so by entering a fenced in area and then sitting down beside them and talking to them. Any reasonable person who reads the news could have predicted that when the respondents acted as they did, peaceful and calm as they may have been, that the school would likely go into lock down with the children herded indoors with haste and alarm on the part of the staff.

[121] In any event, it was the respondents’ behaviour that provoked this response. Had they acted as any other child protection worker would be expected to, none of what occurred would have and SS would not have been traumatized. In fact, SS would likely never have even known something was wrong.

[122] In any event, if SS were to be removed from the Director’s care and placed in the care of LM and RB, the best way to shield her from further trauma would be by implementing a unified, carefully thought out, and jointly implemented and supported transition plan. I realize that the respondents are open to this and have offered it many times. However, the Director is not expected by the court to engage in such planning until and unless directed to by order of a court of competent jurisdiction. The respondents do not want to wait. They are clearly prepared to act unilaterally, in whatever way they see fit, and using whatever means they see as lawfully at their disposal.

[123] The Director’s fear for SS’s emotional and psychological safety is reasonable given this and SS’s circumstances, including likely past traumas.

[124] Finally, I turn to my assessment of whether the very serious remedy of a restraining order is necessary to adequately protect SS. There are two potential “safeguards” already in place, however, I am not persuaded that either singularly or collectively these afford adequate protection.

[125] One of these is the verbal warning the respondents may have been given by the police. As I noted earlier in these reasons there is disagreement about what, if any, warning the police gave. Based on the respondents’ evidence, and as they were there, I have preferred their evidence, there was no meaningful warning and in fact, the police told them they viewed the whole thing as a “misunderstanding”. In such circumstances I have no faith that whatever the police said to the respondents will serve to deter them and protect SS.

[126] The other safeguard is the July 6, 2018 interim and without prejudice order of Justice K.M. Shaner of the Supreme Court of the Northwest Territories prohibiting LM and RB or any other party from using or relying upon the NWT custom adoption certificate or any other document associated with it (including the birth certificate) to gain access or custody to SS. The existence of this order provides some protection but not enough. It is temporary and could be of no effect at any time. Second, it is not enough given my findings with respect to the likelihood that the respondents will act again without waiting for the justice system and by resorting to self-help remedies, both in secrecy and without judicial oversight and direction.

[127] Added to all of this is the respondents’ failure to give the court any assurances that they will not act as they have again, and their refusal to provide the address where they would be residing with SS. There is also the fact that they are not residents of Ontario and have homes in three out-of-province locations. The risk that SS would be removed from the jurisdiction, might not be located easily by law enforcement, and the likely delay in enforcement even if she could be found due to interprovincial jurisdictional issues, is simply too high. A formal restraining order is necessary and proportional.

[128] This is not a borderline case such as was the situation in Stave, supra (see paragraphs 26 and 27 for Justice Pugsley’s summary of his reasons, which showcase the differences between that and this case). For example, unlike that case, the instant case is not one where the temporal or causal connection between the Director’s fear and the events which ground her fear, are weak. Further, unlike in that case, the facts that favour the granting of a restraining order in this case are compelling. Here a clear case for a restraining order is made out.

[129] Given these findings it is not necessary for me to balance any hardship that would result from a restraining order. However, even if I were to do so, the hardship the respondents’ primarily rely on is that such an order separates them from their daughter by impeding their ability to remove SS from the Director’s care and to take her into their own care, and, that it impedes their ability to exercise access to SS. My intention in granting the restraining order is not to prevent SS from returning to the respondents’ care or to prevent access between them and SS, should either result be ordered by a court of competent jurisdiction. It is to prevent them from doing so in the absence of such orders. Should such orders be obtained, it would be open to them to move before this court to have the restraining order varied or terminated.

[130] In any event, the order I make is without prejudice to their right to seek its termination or to vary it once the decisions of the two other courts has been released and the ultimate fate of Petition #4 known.

ISSUE #3: WHO, IF ANYONE, SHOULD PAY COSTS OF THIS MOTION?

[131] The issue of costs remains outstanding. I have given directions below as to how that issue is to proceed to adjudication.

CONCLUSION

[132] For all of these reasons and to summarize the aggregate of my findings above, I find, on a balance of probabilities and on the evidence before me on this motion that the applicant Director has reasonable grounds to fear for the safety of SS, a child in her lawful custody. The applicant having met her onus, is thus, granted the restraining order she seeks as requested by her counsel during his oral submissions, and as set out below.

TEMPORARY ORDER

(1) The temporary and without prejudice order dated September 27, 2018 (including the sealing order, publication ban, and restraining order) shall continue, on a with prejudice basis;

(2) The restraining order ordered herein is without prejudice to the respondents’ right to seek a review of it once the Supreme Court of the Northwest Territories and the British Columbia Court of Appeal have both released their decisions on the matters before them, and the ultimate fate of Petition #4 is known;

(3) Should either party still wish to seek costs of this motion, the party seeking costs shall notify the other by email, with a copy of that email sent to the Judicial Secretary, by no later than 4:00 PM on March 15, 2019. Failure to give notice by this deadline, shall be deemed to be a withdrawal by that party of their claim for costs of the motion;

(4) In the event that costs are sought, written cost submissions and any bill of costs to be relied on shall be exchanged as follows and on these terms:

(a) The applicant shall serve and file her bill of costs, written cost submissions (not to exceed 5 pages, 12 point font, normal margins), and in addition, any offers to settle made and any legal authorities to be relied on by 4:00 PM on March 22, 2019;

(b) The respondents shall serve and file their bill of costs, written cost submissions (not to exceed 5 pages, 12 point font, normal margins), and in addition, copies of any offers to settle made and any legal authorities to be relied on by 4:00 PM on March 29, 2019; and,

(c) Any written submissions in reply by the applicant (not to exceed 2 pages, 12 point font, normal margins), and any additional legal authorities the applicant wishes the court to consider, shall be served and filed by 4:00 PM on April 5, 2019.

(5) The respondents shall file the following affidavits (currently loose in the court file with a yellow deficiency notice on all three collectively), in the continuing record by 4:00 PM on March 22, 2019:

(a) The affidavit of RB (#1) sworn November 22, 2018;

(b) The affidavit of RB (#2), sworn November 22, 2018; and,

(c) The affidavit of LM, sworn November 22, 2018.

(6) No proof of service of the forgoing affidavits is required to permit filing as directed above, as service was admitted on the record on November 29, 2018, by counsel for the applicant;

(7) Counsel are directed to confer jointly with the Judicial Secretary to select and schedule a mutually agreed upon date for a case conference to be held in this matter. The process for selecting a date shall be completed within 15 days of the date of this order;

(8) The Judicial Secretary is requested to send a copy of these reasons to counsel.

Released: March 1, 2019

Signed: Justice Victoria Starr

[^1]: See for example, R. v. Sparrow, 1990 CanLII 104 (SCC), 1990 CarswellBC 105, 1990 CarswellBC 756, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, [1990] 4 W.W.R. 410, [1990] B.C.W.L.D. 1567, [1990] S.C.J. No. 49, 10 W.C.B. (2d) 194, 111 N.R. 241, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, 70 D.L.R. (4th) 385, J.E. 90-851, EYB 1990-68598, and, R. v. Van der Peet, 1996 CanLII 216 (SCC), 1996 CarswellBC 2309, 1996 CarswellBC 2310, [1996] 2 S.C.R. 507, [1996] 4 C.N.L.R. 177, [1996] 9 W.W.R. 1, [1996] B.C.W.L.D. 2398, [1996] S.C.J. No. 77, 109 C.C.C. (3d) 1, 130 W.A.C. 81, 137 D.L.R. (4th) 289, 200 N.R. 1, 23 B.C.L.R. (3d) 1, 31 W.C.B. (2d) 518, 50 C.R. (4th) 1, 80 B.C.A.C. 81, EYB 1996-67132,

[^2]: See also Catholic Children’s Aid Society of Metropolitan Toronto v. A. (C.), 2001 CanLII 28092 (ON CJ), 2001 CarswellOnt 1895, [2001] O.J. No. 2226, 105 A.C.W.S. (3d), 684, 20 R.F.L. (5th) 307, paragraphs 7 and 8]:

[^3]: LM deposes that she learned from the Director herself of the name of the school SS was attending. However, in a letter dated June 2018 that she authored and which is addressed to Superintendent Pennyfather (attached to Ms. Jakubowska sworn September 20, 2018) she wrote: “This provides a little background for you as to why we were at the school. We had been instructed by a social worker in BC that this was where our daughter went to school.” The Director denies it was she who told the respondents of the elementary school SS was attending. Given the discrepancy, lack of explanation for it by LM, and the Director’s evidence, I have preferred the Director’s evidence on this point. The result is that I find the Director did not disclose the elementary school SS was attending.

[^4]: I acknowledge that the decision of Justice Smallwood was outstanding and that Justice Shaner’s temporary order prohibiting them from relying on the birth certificate etc. had not yet been made by June 22nd; and thus, on June 22nd the respondents and BCMF did not violate any law or orders in relying on the new birth certificate etc. at that time. I also acknowledge that: the respondents acted with the authority of the BCMF; the BCMF has the jurisdiction to appoint whomever it likes as a child protection service agent; there may be no technical legal requirement for notice to be given to the Director of the registration of the custom adoption and application for a new birth registration and birth certificate; and, it may very well be found ultimately that the respondents are the parents of SS by way of custom adoption and thus, the CCO ultimately found to be invalid and set aside. None of this, however, changes the fact that the respondents acted secretively in circumstances, where in my view on the evidence before me and at this time, there existed a reasonable expectation that all such actions would be taken on explicit and clear notice to the Director.