ONTARIO SUPERIOR COURT OF JUSTICE
Algonquins of Pikwákanagán, C.K., N.A. M.B., K.A., 2012 ONSC 4518
COURT FILE NO.: 11-1241
DATE: August 3, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
(ON APPEAL FROM HONOURABLE JUSTICE SELKIRK)
BETWEEN:
The Children’s Aid Society of the County of Renfrew
Applicant
- and –
Algonquins of Pikwákanagán, C.K., N.A. M.B., K.A.
Respondents
Richard H. Dickinson, for the Applicant
Katherine Hensel and Maria Golarz, for the Respondent, Algonquins of Pikwákanagán
Pascale Turcotte for the Respondent, N.A.
Jenny Friedland for the Respondent, M.B.
Terese Ferri, Office of the Children’s Lawyer, for the Children, S.A.T.M.K. and Z.D.C.A-K
Audra Bennett, for the Respondent C.K.
K.A., Self Represented Respondent
WARNING
This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:
45(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.
85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
REASONS FOR DECISION
Overview
[ 1 ] These reasons should be read in conjunction with my endorsement, dated May 9, 2012.
[ 2 ] The Appeal in this matter was heard May 7, 2012.
[ 3 ] At the conclusion of the Appeal, the Judgment of the Honourable Justice Robert Selkirk was set aside and a new trial was ordered before a different Judge of the Ontario Court of Justice, in Pembroke.
[ 4 ] In her Amended Notice of Appeal, the Appellant, M.B. (maternal grandmother) pleaded, inter alia, that:
(i) The trial Judge erred in refusing to grant a request for a brief adjournment to permit the parties to review disclosure provided shortly before the commencement of trial, with the result that the trial proceedings were unfair; and
(ii) The trial Judge erred in law in failing to give due weight and consideration of the children’s identity, culture and heritage as members of a First Nation, in determining the disposition in their best interests.
[ 5 ] The Appellant First Nation, Algonquins of Pikwákanagán, (the “First Nation”) joined M.B. in her contention that the trial Judge erred in refusing to grant the brief adjournment, as he did.
Issues
[ 6 ] (i) Did the trial Judge err in refusing to grant a request for a brief adjournment to permit the parties to review disclosure provided shortly before the commencement of trial, with the result that the trial proceedings were unfair?
(ii) Did the trial Judge err in law in failing to give due weight and consideration of the Children’s identity, culture and heritage as members of a First Nation, in determining the disposition in their best interests?
Standard of Review
[ 7 ] The standard of review requires that an Appellate Court should not interfere merely because it would have reached a different result and should only interfere if the trial Judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result. [^1] Moreover, the application of a legal standard to the facts of a case is a question of law and is subject to review for correctness. [^2]
Position of the Parties
[ 8 ] M.B. has aboriginal status. She is connected to the First Nation community in this case. In many respects, their mutual interests are inextricably intertwined, in terms of this litigation.
[ 9 ] The First Nation is a statutory party to these proceedings. As such, it is entitled to be provided with the same information as any other party in these proceedings, in the same timely manner.
[ 10 ] To that end, the evidence shows that the First Nation was routinely named on fax transmission sheets and correspondence sent out by the Respondent, the Children’s Aid Society of the County of Renfrew (“the Society”), as a party to be copied in the litigation. However, for reasons that were never adequately explained beyond inadvertence, the First Nation was not copied on the disclosure.
[ 11 ] As a result, a representative for the First Nation appeared on the first day of trial and was handed, for the first time, approximately 1000 pages of disclosure by the Society, which was then followed by another 500 pages.
[ 12 ] The representative for the First Nation requested an adjournment of 24 hours to consult with legal counsel and to review the voluminous disclosure.
[ 13 ] The Society opposed the adjournment and the trial Judge denied the request. The First Nation was, therefore, forced to proceed to trial without Counsel and absent an opportunity to conduct a meaningful review of the disclosure.
[ 14 ] Counsel for M.B. contends that Crown wardship with no access in child protection proceedings is the equivalent of capital punishment in the criminal context. The First Nation, as a statutory party, had the same right to receive and review disclosure in a timely manner as any other party. In the circumstances, it was incumbent upon the Society to provide more information rather than less. Accordingly, if the Society was going to err, it should have erred on the side of caution. In the circumstances, the First Nation was prejudiced as a result of the trial Judge denying what was a reasonable request for an adjournment. Moreover, the First Nation was forced on to trial in circumstances that made it impossible for the First Nation to prepare and to respond adequately, or at all, to the issues raised in the litigation.
[ 15 ] Counsel for the First Nation concurred with counsel for M.B. with respect to the effect of the prejudice created by the request for the adjournment being denied. To put it succinctly, the First Nation was, in effect, denied natural justice. Further, with the interests of the First Nation and M.B. being so closely aligned, so, too, was M.B. prejudiced by the trial Judge’s decision.
[ 16 ] Counsel for the Society contends that the request for disclosure made by the First Nation was not brought to his attention until the week before the trial. Nonetheless, he was well aware of the request in advance of the first day of trial, when the disclosure was delivered.
[ 17 ] Counsel for the Society further contends that the representative for the First Nation is in Court on a regular basis and is familiar with process of requesting disclosure. As he said: “They need to bring it to my attention so that I can get it out”, or words to that effect. That being said, there was no explanation given as to why the First Nation, while listed on correspondence as a party to be copied by the Society, never received the disclosure when the other parties did.
Analysis
[ 18 ] The First Nation was entitled to the same information as every other statutory party, within a reasonable period of time in advance of the trial. To be presented with approximately 1500 pages of disclosure on the morning of the first day of trial was unreasonable and prejudicial. Moreover, the prejudice was exacerbated by the trial Judge’s decision to deny what was a reasonable request for an adjournment, a mere 24 hours. During that 24 hour period, had the adjournment been granted, the First Nation may have been able to consult and retain legal counsel. In the circumstances, counsel may have been able to prepare and proceed with the trial, or in the alternative may have mounted a more compelling argument for a longer adjournment. As it turned out, the representative for the First Nation, who is not a lawyer, was forced to proceed with the trial, in the worst possible circumstances:
(1) Without legal counsel; and
(2) Without an opportunity to conduct a meaningful review and analysis of the voluminous disclosure.
[ 19 ] In summary, if the legislation requires, as it does, that First Nations communities must be named as statutory parties in child protection proceedings involving aboriginal children, then it is axiomatic that they be treated no differently than any other statutory party. To have been handed 1500 pages of disclosure and to be denied an adjournment for 24 hours to retain counsel and to review the disclosure constituted a denial of natural justice. Accordingly, the trial Judge’s decision to force the First Nation amounted to an error of law.
Position of the Parties – Consideration of Identify, Culture and heritage as members of a First Nation
[ 20 ] In the Amended Notice of Appeal the address provided for the foster parents is: Brassmill Hooks Lane, Malswick Newent, Gloucestershire, United Kingdom. At the time of the trial the foster parents had already relocated, with the children, to the United Kingdom.
[ 21 ] There is no quarrel regarding the importance of the children maintaining a connection with their First Nation community and their aboriginal culture. Rather, the question is: How is that connection to be reasonably maintained in the particular circumstances of this case.
[ 22 ] The Appellants contend that it is both naïve and inappropriate for the Society to assert that the children’s cultural identity can be reasonably maintained by the foster parents taking the children to a “pow-wow” or by reading them aboriginal stories, to cite two examples provided by the foster mother in her evidence. Accordingly, the conclusion that the children will know they are native by going to a “pow-wow” is unreasonable, and not supported by the evidence. Moreover, the situation is made worse by virtue of the fact that the children will be residing in the United Kingdom, for reasons that should be obvious.
[ 23 ] Counsel for the Office of the Children’s Lawyer (“OCL”) pointed out that the children had been living with the foster parents for a year by the time that the OCL became involved. As a result, while native culture was an important factor to be considered by the trial Judge, when compared to the issue of attachment, the latter must be given priority. That being said, counsel for the OCL agreed that the children’s aboriginal heritage and culture is still very important.
[ 24 ] Against this backdrop the Court posed the following question: In the face of an Order for Crown wardship with no access, what evidence, if any, was there to demonstrate how the Children would be able to maintain contact with their First Nation community? Put another way, as Crown Wards with no access, and particularly while residing in the United Kingston, how could the Court be assured that the children would not be cut off from their First Nation community? In answer to the question counsel for the OCL conceded: We all recognize that this is a “huge problem” given the facts of this case. In effect, there was no reasonable answer.
Analysis
[ 25 ] While it may be true, as a general proposition, that attachment is given priority to issues of culture and heritage, query whether the former ought reasonably to be allowed to entirely negate the latter? In the circumstances of this case there appears to be a dearth of evidence that maintenance of the children’s culture and heritage as members of a First Nation was given any weight. That is to say, if, as counsel for the OCL conceded, there is a “huge problem” with no reasonable answer, how could the trial Judge have given due weight and consideration to the children’s identity, culture heritage as members of a First Nation, in determining the disposition in their best interest? To put it another way, if the lawyer for the children could not answer the question as it was put to her at the Appeal, the answer could not have been readily apparent at the trial. By virtue of this Court’s inherent parens patriae jurisdiction, a new trial is necessary so that this question is properly addressed.
Conclusion
[ 26 ] For the reasons articulated above:
(1) The trial Judge erred in refusing to grant a request for a brief adjournment to permit the parties to review disclosure provided shortly before the commencement of the trial, with the result that the trial proceedings were unfair; and
(2) The trial Judge erred in law in failing to give due weight and consideration of the children’s identity, culture and heritage as members of a First Nation, in determining the disposition in their best interests.
[ 27 ] Having answered the two questions in the affirmative and ordering a new trial before a different Judge of the Ontario Court of Justice, in Pembroke, I find it is unnecessary to address the remaining issues raised by the Appellants.
August 3, 2012
Abrams, J.
Algonquins of Pikwákanagán, C.K., N.A. M.B., K.A., 2012 ONSC 4518
COURT FILE NO.:11-1241
DATE: August 3, 2012
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: The Children’s Aid Society of the County of Renfrew Applicant - and – Algonquins of Pikwákanagán, C.K., N.A. M.B., K.A. Respondents BEFORE: JUSTICE BRIAN W. ABRAMS HEARD: May 7, 2012 REASONS FOR DECISION Abrams J.
Released: August 3, 2012