CITATION: 2016 ONSC 6750
DIVISIONAL COURT FILE NO.: 16-DC-2170
DATE: 20161028
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: The Children’s Aid Society of Ottawa v. L.F. and L.F.
BEFORE: Justices Swinton, Whitten and McCarthy
COUNSEL: Marguerite Lewis for the Children’s Aid Society of Ottawa (Respondent)
Carrie-Anne Bourassa for L.F. and L.F. (Appellants)
HEARD at Ottawa: October 27, 2016
E N D O R S E M E N T
[1] The appellants, maternal grandparents of two children who have been declared to be Crown wards, raise two issues on this appeal:
The trial judge erred in failing to find that the definitions of “Indian” and “native community” in the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA) are unconstitutional violations of the right to equality in s. 15 of the Canadian Charter of Rights and Freedoms and not saved by s.1.
When ss. 37(4) and 57(5) of the CFSA are properly applied to the facts of this case, there should be no order of Crown wardship, and the appellants should be awarded custody of the children.
[2] The standard of review with respect to the constitutional issue is correctness. The Children’s Aid Society took no position on this issue.
[3] The trial judge applied the correct two part test for finding a violation of s. 15, asking whether the law creates a distinction based on an enumerated or analogous ground and whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping. She found that the law created a distinction based on the analogous ground of Aboriginal ancestry without Indian status or membership in a native community. However, she held that the appellants had not provided an adequate evidentiary record to demonstrate that the distinction created a disadvantage, as required by the s. 15 jurisprudence. She stated,
No evidence was led that tended to show outcomes for “Indian[s]” or “native child[ren]” placed in accordance with s. 57(5) were different or better than outcomes for children with Aboriginal heritage but no status or native community membership who were placed in accordance with s. 57(4). Without knowing how those provisions impact the children to whom they are applied, it is unclear whether the definitions excluding non-status Aboriginals from their application create a disadvantage and therefore are discriminatory under s. 15(1). (at para. 58)
The need for a factual foundation on which to assess disadvantage is also provided in the testimony of Nancy Keddy. She is an experienced supervisor in the CAS First Nations unit. She testified that it remains a real challenge to find placements in the First Nations community for children in care. Does this reality mean that the clear differences between the provisions specifically applicable to Indian and native children and the general provisions applicable to other Aboriginal children do not or may not actually create a disadvantage for the latter group? (at para. 67)
[4] We see no error on the part of the trial judge when she concluded that she could not find that the distinction at issue creates a disadvantage based on the evidentiary record before her. We note that the Supreme Court of Canada stated in Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at para. 37:
Whether the s. 15 analysis focusses on perpetuating disadvantage or stereotyping, the analysis involves looking at the circumstances of members of the group and the negative impact of the law on them. The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation.
Accordingly, we would not give effect to the first ground of appeal. We make no comment on the recent case of Catholic Children’s Aid Society of Hamilton v. G.H., 2016 ONSC 6287, except to say that the decision is based on the claims of a Métis family.
[5] With respect to the merits of the order of Crown wardship, the CAS submits that the facts of this case support the order of Crown wardship under the application of either s. 57(4) or s. 57(5) of the CFSA.
[6] Those subsections provide:
(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.
(5) Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,
(a) a member of the child’s extended family;
(b) a member of the child’s band or native community; or
(c) another Indian or native family. (emphasis added)
[7] We agree with the Society. In determining whether a Crown wardship should be ordered, a judge must determine whether such an order is in the best interests of the child. Subsection 37(3) of the CFSA sets out the factors to be considered in determining a child’s best interests, including the child’s cultural background. Subsection 37(4) applies where a child is an Indian or native person as defined in the Act:
Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity.
[8] In Algonquins of Pikwakamagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646, the Court of Appeal held that s. 37(4) is not to be given “super-weight”, stating at para. 67:
Subsection 37(3) of the CFSA lists the factors that must be considered in assessing the best interests of a child. When a child is from an Aboriginal community, the CFSA further directs in s. 37(4) that the importance of the child’s cultural identity and the uniqueness of Aboriginal culture, heritage and traditions shall be taken into account. There is nothing in the CFSA that suggests that the “weight” given to one consideration must be greater than the weight given to another. All factors are considered with the over-arching goal of determining the best interests of the child. This is consistent with the paramount purpose of the Act and every section must be read in this context.
[9] The trial judge held that the best interests of the children would be supported by an order of Crown ordership with access by the mother and the appellants. She reached this conclusion after a nine day trial. Deference is owed to her findings of fact absent any palpable and overriding error in those findings of fact.
[10] The trial judge was concerned about the health and age of the appellants, which would invariably affect their ability to care for the children on a permanent basis. She was also concerned about poor judgment shown in certain circumstances, their difficulties in controlling the two children, and the relationship with the children’s mother’s partner. While the appellants have a close and loving relationship with the children, the trial judge recognized this by making an order of access. She also concluded that the access of the mother and the appellants would reasonably address the issue of preserving the children’s Aboriginal ancestry.
[11] The fresh evidence filed for this appeal by the appellants does not persuade us that the order of Crown wardship should be set aside. There are still grounds for concern about the appellants’ health that have not been adequately addressed. While there is evidence of future support from friends and family, it does not appear sufficient to address the concerns about their ability to care for these children on a full time basis until the children are adults.
[12] Even if s. 57(5) applied, there is a substantial reason not to award custody to the appellants. Given the evidence before the trial judge and having considered the new evidence, we conclude that Crown wardship with the access specified by the trial judge is in the best interests of these young children, who need permanency after being in care since February 2013.
[13] For these reasons, the appeal is dismissed.
Swinton J.
Whitten J.
McCarthy J.
DATE: October 28, 2016