WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

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

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

87.— (8) Prohibition re identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

87.— (9) Prohibition re identifying person charged.

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

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: September 16, 2019

Court File No.: Brantford C4/19

Between:

The Children's Aid Society of Brant Applicant

— AND —

R.P., L.A., S.S., Six Nations of the Grand River Respondents

Before: Justice A.D. Hilliard

Heard on: August 8, 2019

Reasons for Judgment released on: September 16, 2019

Counsel

Birkin Culp — counsel for the applicant society

David Maltby — counsel for the respondent(s)

No appearance by or on behalf of L.A. and S.S., even though served with notice.

Beverly Maracle (band rep) — on behalf of the Six Nations of the Grand River

Judgment

Hilliard J.:

Background

[1] This child protection application regarding the subject children T.S. and L.A. was commenced in January 2019.

[2] Prior to the application being brought, the subject children had been removed from the respondent mother's care in October 2018.

[3] A temporary care and custody hearing was scheduled for argument on August 8, 2019.

[4] During the temporary care and custody hearing argument, the issue of this court's jurisdiction to hear the application was raised by Mr. Maltby, counsel for the respondent mother.

[5] After hearing argument from the parties, I adjourned the temporary care and custody hearing to deliberate and render judgment upon the jurisdictional issue as I was of the view that until that issue was decided it would be improper for the court to make any further orders.

The Evidence

[6] The child protection agency, Ogwadeni:deo, was involved with the respondent mother, R.P., from August 2018 to January 2019 when the file was transferred to The Brant Children's Aid Society.

[7] The reasons for involvement of child protection services with this family are outlined in the affidavit of Dawn Greer, Support Team Member with Ogwadeni:deo, sworn January 10, 2019, found at Tab 3 of the Continuing Record.

[8] A summary of the protection concerns of the agency are set out at paragraph 11 of Ms Greer's affidavit as follows:

(a) Ongoing domestic violence and adult conflict between Ms. P. and Mr. A. Jr.;

(b) The parent's use of inappropriate physical discipline;

(c) The parent's drug and alcohol use;

(d) The parent's history of criminal charges and police involvement;

(e) Ms. P's mental health, as she has expressed suicidal ideations and threats on numerous occasions;

(f) Ms. P's failure to provide a safe environment to the children, as she has continuously and willingly exposed the children to domestic violence, adult conflict and attempted physical assaults on other adults.

[9] The subject children T.S. and L.A. were brought to a place of safety on October 22, 2018. The child, T.S., was taken to his paternal grandfather's home and the child, L.A., was taken to his maternal grandmother's home.

[10] There is no dispute that the respondent mother was unable to provide care for the children on October 22, 2018 as she was arrested by Six Nations Police and removed from the home.

[11] The respondent mother was released from custody on October 23, 2018.

[12] Upon her release from custody, the respondent mother went to the home of the maternal grandmother and took the child, L.A. from the maternal grandmother's care and left.

[13] Six Nations Police found the respondent mother and the child, L.A. on October 24, 2018 and the child was taken to a family member's home to be cared for.

[14] A meeting was held on October 24, 2018 with the respondent mother and support team members from Ogwadeni:deo. The respondent mother was presented with 2 options: (1) voluntarily place her children in the customary care of family members and schedule a Haudenosaunee Alternative Dispute Resolution (HADR), or (2) request that the matter proceed in court on a protection application.

[15] The evidence of the Society is that the respondent mother indicated that she preferred that the matter remain out of court and then consented to the children being placed in customary care.

[16] The Consent Form signed by the respondent mother placing her children in customary care was attached to Ms Greer's affidavit as part of Exhibit A at page 20. The copy of the Consent Form attached to the affidavit is signed by the respondent mother only. The signature lines for the other parent, Band Representative, Ogwadeni:deo, and Customary Care Provider are all blank. The signature of the witness to the respondent mother's signature does not indicate the name of the witness. No evidence was presented as to who witnessed the respondent mother's signature.

[17] The Consent Form states as follows:

On a WITHOUT PREJUDICE basis Consent to my child(ren) being placed into Customary Care […] pursuant to section 80 of the Child, Youth and Family Services Act until such time as the parent(s), family, service providers, Ogwadeni:deo and community may agree or until such time as the parent(s) provide notice of termination of this agreement and elects to proceed to court if deemed necessary.

[18] Also attached to Ms Greer's affidavit is a copy of a form entitled "Referral to Justice Coordinator" which appears to be signed by the respondent mother but the boxes indicating what the referral is for, i.e. Supervision, Child in Alternate Care, Voluntary Service Agreement, Customary Care, are not checked.

[19] A copy of the Initial Election Form which is also included in the documents attached as Exhibit A to Ms Greer's affidavit, electing to participate in HADR, is signed by the respondent mother but is not witnessed.

[20] On December 17, 2018, the respondent mother called Teesha Mitchell, a support team member with Ogwadeni:deo and asked about the transfer of her file to the Brant agency. During this conversation, according to Ms Mitchell, the respondent mother "told me that everyone involved is being charged with kidnapping."

[21] Later in that same affidavit, Ms Mitchell states that during a telephone call, the date of which is not indicated, the respondent mother asked Ms Mitchell what she had to do to have her children returned. Ms Mitchell deposes that her response was that the respondent mother needed to "cooperate more with Ogwadeni:deo" and a meeting could be arranged to "discuss next steps."

[22] The respondent mother filed an Answer and Plan of Care that includes in the request for relief an Order that the protection application be dismissed for lack of jurisdiction. In the important facts supporting her claims, the respondent mother indicates that she did not consent to the children being taken from her care.

[23] In the respondent mother's affidavit filed in support of her Answer and Plan of Care, she deposes that at a meeting with a representative from Ogwadeni:deo on October 22, 2018 she did agree to participate in HADR. She was advised that the meeting about safety and permanency planning would occur in a relatively short time.

[24] The respondent mother then deposes that after weeks going by and no update being provided on the HADR process she left messages that she was revoking any consent that she had given for the children to be in care. Her evidence is that in the messages she demanded that the children be returned to her immediately.

[25] At paragraph 16 of her affidavit the respondent mother deposes:

I did not have legal advice before I signed the consent form. I signed the documents as they were placed before me without much awareness of what I was signing. I was distraught with the thought that my children were taken from my care.

[26] There is no evidence brought by the Society to dispute the respondent mother's statements regarding her calls to withdraw her consent or the lack of legal advice received by the respondent mother prior to signing the consent form.

Issues to be Determined

[27] Prior to the commencement of the application were the subject children in care pursuant to a valid customary care agreement?

[28] If there was a valid customary care agreement, did the respondent mother withdraw her consent to that agreement?

[29] If there was not a valid customary care agreement, did the court lose jurisdiction by virtue of the fact that the matter was not brought before the Court within 5 days of the children being in the care of the Society without the consent of the respondent mother?

Positions of the Parties

Society's Position

[30] The position of the Society is that at all operative times prior to the commencement of the protection application there was in place a valid customary care agreement and the respondent mother never formally or properly revoked her consent to that agreement.

[31] The Society argues that the respondent mother's consent is valid and that termination of the customary care agreement by the respondent mother had to be in writing.

[32] It is conceded by the Society that s. 80 of the CYSFA does not address the issue of how a customary care agreement is to be terminated but the Society argues that the revocation must be clear and unequivocal. The revocation in this case could have been effected by the respondent mother by checking a box on the Election Form, signing the Form, and then providing it to the worker. That could have, in the Society's view, provided clear and unequivocal notice to the agency that the respondent mother was revoking her consent but this was not done.

[33] The Society argues that the customary care agreement must be viewed by the court as a contract and therefore contract law applies. The respondent mother would thereby have to satisfy the court that there was sufficient evidence of mistake, misrepresentation, or that the contract itself was unconscionable for the contract to be set aside.

[34] The Society further submits that the parties, including the respondent mother, all acted as if there was a binding valid contract up to the commencement of this protection application. Evidence of the parties' actions supports a finding that there was a valid agreement at all relevant times.

Respondent Mother's Position

[35] The respondent mother argues that there was no valid consent to the customary care agreement in the first instance.

[36] Counsel for the respondent mother argues that even if consent was given her revocation of that consent did not have to be in writing. Her revocation of consent was clearly articulated to the agency. Upon her consent being revoked, Ogwedeni:deo was statutorily obligated to bring the matter before the court within 5 days.

[37] Her consent to the customary care agreement having been revoked, and the agency not commencing a protection application within the requisite period, respondent mother's counsel submits the court has lost jurisdiction to hear the application and therefore the application should be dismissed.

The Law

[38] Section 80 of the CYSFA reads as follows:

CUSTOMARY CARE – A society shall make all reasonable efforts to pursue a plan for customary care for a First Nations, Inuk or Métis child if the child,

(a) is in need of protection;

(b) cannot remain in or be returned to the care and custody of the person who had care of the child immediately before intervention under this Part or, where there is an order for the child's custody that is enforceable in Ontario, of the person entitled to custody under the order; and

(c) is a member of or identifies with a band, or is a member of or identifies with a First Nations, Inuit or Métis community.

[39] Customary care is a defined term under section 2 of the CYSFA:

"customary care" means the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child's parent, according to the custom of the child's band or First Nations, Inuit or Métis community

[40] Section 80 falls under Part V of the Act – CHILD PROTECTION.

[41] Section 21(2) sets out the requirements for the provision of valid consent or agreement under the Act:

ELEMENTS OF VALID CONSENT OR AGREEMENT, ETC. – a person's consent or withdrawal of a consent or participation in or termination of an agreement under this Act is valid if, at the time the consent is given or withdrawn or the agreement is made or terminated, the person,

(a) has capacity;

(b) is reasonably informed as to the nature and consequences of the consent or agreement, and of alternatives to it;

(c) gives or withdraws the consent or executes the agreement or notice of termination voluntarily, without coercion or undue influence; and

(d) has had a reasonable opportunity to obtain independent advice.

[42] Section 88 of the CYSFA sets out the timeline within which a matter must be brought before the Court after a child or children are brought to a place of safety:

TIME IN PLACE OF SAFETY LIMITED – as soon as practicable, but in any event within five days after a child is brought to a place of safety under section 81, subclause 83(1)(a)(ii) or subsection 136(5),

(a) The matter shall be brought before a court for a hearing under subsection 90(1) (child protection hearing);

(b) The child shall be returned to the person who last had charge of the child or, where there is an order for the child's custody that is enforceable in Ontario, to the person entitled to custody under the order;

(c) If the child is the subject of an extra-provincial child protection order, the child shall be returned to the child welfare authority or other person named in the order;

(d) A temporary care agreement shall be made under subsection 75(1); or

(e) An agreement shall be made under section 77 (agreements with 16 and 17 year olds).

[43] The Ontario Court of Appeal in the recent decision Kawartha-Haliburton Children's Aid Society v. M.W. set out the considerations courts must be mindful of when making determinations about litigants in child protection matters:

Reality of the child protection litigant

68 The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. As Justice L'Heureux-Dubé noted in her concurring reasons in G. (J.), at para. 113, "women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings". She continued at para. 114:

o As well as affecting women in particular, issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, Aboriginal people, and the disabled. As noted by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745 (1982), at p. 763:

▪ Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups ... such proceedings are often vulnerable to judgments based on cultural or class bias.

o Similarly, Professors Cossman and Rogerson note that "The parents in child protection cases are typically the most disadvantaged and vulnerable within the family law system . . . .": "Case Study in the Provision of Legal Aid: Family Law", in Report of the Ontario Legal Aid Review: A Blueprint of Publicly Funded Legal Services (1997), 773, at p. 787.

69 Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms. The miscarriages of justice outlined in the Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) speak, by way of example, to the significant imbalance between parents and Children's Aid Societies, noting that parents, even when represented by counsel, were "simply overpowered" (at p. 121). Fairness in the child protection context demands recognition of these dynamics.

[44] In a decision of this court in this jurisdiction in 2017, Justice K.A. Baker commented upon the issue of a parent's consent as follows:

It seems to me that the onus is on the Society to demonstrate consent, not on the mother to prove she did not consent. […] The most basic tenet of consent, particularly when given to a person in authority, is that it must be free and voluntary.

[45] In considering the issue of consent raised on the issue of costs after a child protection trial, Justice S. Sherr cited with approval the above quoted decision of Justice Baker and found:

Capitulation is not consent. This was capitulation. The mother should either have had the opportunity to obtain independent legal advice or the matter should have been brought before the court within five days so that there would have been court oversight of the matter.

Analysis

[46] When a customary care agreement is used as an alternative mechanism to the court process it falls within the purview of s. 21 of the CYSFA.

[47] In order for the court to find that there was a valid customary care agreement in this case, all of the elements of a valid consent or agreement set out in s. 21(2) must be met.

[48] There is no suggestion in this case of a lack of capacity on the part of the respondent mother to consent. I find that the respondent mother did have capacity to consent to a customary care agreement.

[49] On the issue of whether the respondent mother was reasonably informed as to the nature and consequences of the consent or agreement and the possible alternatives, I find that although the information provided to the respondent mother could have been more fulsome, there was sufficient information provided on the evidence before me. The alternatives presented to the respondent mother were to agree to the customary care agreement or have the matter proceed to court. I find that it was made clear to the respondent mother that by consenting to the customary care agreement her children would not be returned to her care and would remain in their community placement.

[50] In my view, the validity of the customary care agreement upon which the Society seeks to rely in this case turns on the requirements set out in 21(2)(c) and 21(2)(d) of the Act.

[51] The Society's position is premised upon the assumption that the respondent mother and the agency are on an equal footing in contract negotiations. To accept the Society's position that mother's consent was valid, I would have to find that her consent was given without coercion or undue influence.

[52] On October 24, 2018 when the agency's representative met with the respondent mother the subject children had already been removed from the respondent mother's care and placed in the community. The respondent mother had been arrested 2 days before the meeting and was released from police custody the day before the meeting.

[53] On the Society's own evidence, the respondent mother was a victim of domestic violence and possibly using illicit substances in and around the time of intervention.

[54] In the context of the respondent mother's personal circumstances on October 24, 2018 and the events leading up to that date, and bearing in mind the comments of the Court of Appeal in Kawartha-Haliburton noted at paragraph 42 above, I find that mother's consent was not provided voluntarily, without coercion of undue influence. I echo the comments of my colleagues noted above. The choice presented to the respondent mother in these circumstances was really no choice at all.

[55] The respondent mother was also not provided any opportunity to obtain independent legal advice prior to signing the consent. There is no evidence that the respondent mother was even advised of the availability of services through Legal Aid Ontario. The Justice Referral Form attached as an Exhibit to the affidavit material and referred to above is evidence only that the respondent mother was provided an opportunity to receive advice at an unspecified date after deciding whether or not to provide her consent. It is not clear to me on the evidence that the justice referral would even have provided the respondent mother an opportunity to speak with a lawyer.

[56] The enactment of prerequisites to valid consent in the legislation demonstrates a recognition of the power imbalance between child protection agencies and parents.

[57] The impact of state intrusion into the lives of families cannot be overstated, particularly when the state action involves the removal of children from the care of a parent.

[58] Capitulation to the circumstances of children being out of one's care cannot be equated to ongoing consent to and agreement with children remaining in care. In this case, the respondent mother's uncontradicted evidence is that she articulated to representatives from Ogwedeni:deo on more than one occasion that she was not consenting to her children remaining in care. There is no evidence to the contrary on the record before me.

[59] There is nothing in the legislation that requires the withdrawal of consent to a customary care agreement to be in writing. To read in such a requirement in my view would be an error. I do not find that the revocation of a parent's consent to a customary care agreement needs to be in writing.

[60] I find that even if the respondent mother had validly provided her consent to the customary care agreement on October 24, 2018, it was or should have been clear to the agency by the middle of December 2018 at the latest that the respondent mother was no longer consenting to the customary care agreement.

[61] On the Society's own evidence, the respondent mother on December 17, 2018 advised Ms Greer that it was her position that her children was not lawfully out of her custody. During another conversation the respondent mother asked the worker about how she can get her children back.

[62] I find that by December 17, 2018 at the latest, Ogwedeni:deo knew or ought to have known that the respondent mother was no longer consenting to voluntarily leaving her children in customary care.

[63] Given my findings on the issue of the validity of the respondent mother's consent to the customary care agreement, I find that there was no valid agreement and therefore the matter should have been brought before the Court within 5 days of the children being brought to a place of safety.

Conclusion

[64] The children were brought to a place of safety on October 22, 2018 and then remained out of the care of the respondent mother without her consent.

[65] Ogwedeni:deo was required under the legislation to bring the matter before the Court within 5 days of the removal of the children from the care of the respondent mother unless there was a valid agreement for the children to remain in care.

[66] There was no valid customary care agreement and therefore a child protection application should have been commenced.

[67] The failure of Ogwedeni:deo to commence an application within the requisite time has resulted in the court losing jurisdiction to hear the matter.

[68] The protection application is therefore dismissed.

Released: September 16, 2019

Signed: Justice A.D. Hilliard