CITATION: Dilico Anishinabek Family Care v. S., 2015 ONSC 2425
COURT FILE NO.: FS-13-369
DATE: 2015-04-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DILICO ANISHINABEK FAMILY CARE
James Murray, for the Applicant
Applicant
- and -
Y. S.
Michael Cupello, for the Respondent
Respondent
H.M.-S.
Martha Petryshyn, for the Office of the Children’s Lawyer
Child
HEARD: April 9, 2015, at Thunder Bay, Ontario
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
Mr. Justice W.D. Newton
Decision on Motion
Overview
[1] This is a motion by Y. S., mother of the child H.M.-S, for an Order extending the time to perfect her appeal from the Order of the Honourable Justice Bode of the Ontario Court of Justice dated November 4, 2013.
[2] The mother is a member of K[…] (G[…] First Nation). The child, H. M.-S., is also eligible to be registered as a member of this First Nation.
[3] The ultimate question of the proposed appeal is whether it was an error to make the child a crown ward given that a customary care agreement for the placement of the child had been entered into by the agency, Dilico Anishinabek Family Care ("Dilico"), the mother, and K[…] (“G[…] First Nation”) before the conclusion of the trial. The signatories to that agreement took the position that the court did not need to make any disposition order given the agreement. The Office of the Children's Lawyer argued that the customary care agreement did not serve the child's best interest and urged the court to make a crown wardship order.
[4] It is important to note that the customary care agreement provided that the child was to be with the same foster parent and that the mother was to have the same access as under crown wardship. The only effective difference, it was argued before me by the mother and Dilico, was whether the child would be placed under the wardship of the Crown or under the joint authority of the First Nation and the agency.
[5] Counsel for Dilico advised that the agency supported the mother's motion. He also advised that the First Nation also supported the motion, although no one from the First Nation attended on the motion.
[6] Counsel for the Office of the Children's Lawyer opposed the motion to extend the time for perfection. She noted that, while the notice of appeal was served within time, no further steps were taken to perfect the appeal until August 15, 2014, approximately nine months later.
[7] In her factum at para. 23, counsel for the Office of the Children's Lawyer stated:
In considering an application for an extension of time, the Court may take into account the following factors:
i. whether the Appellant formed an intention to appeal within the relevant time period and maintained a firm intention to appeal;
ii. whether the Appellant’s failure to observe the time limits is reasonably explained;
iii. the length of the Appellant’s delay;
iv. any prejudice to the Respondents;
v. the merits of the appeal.
Frey v. MacDonald, [1989] O.J. No. 236 (O.C.A.), Tab 3, Book of Authorities on Behalf of the Child
Le Blond v. Le Blond, [1998] O.J. No. 287 (O.C.A.), at para. 33, Tab 5, Book of Authorities on Behalf of the Child
Walden v. Walden 1996 CanLII 345 (ON CA), [1996] O.J. No. 109 (O.C.A.), at paras. 14-15, Tab 6, Book of Authorities on Behalf of the Child
Kefeli v. Centennial College of Applied Arts and Technology, [2002] O.J. No. 3023 (O.C.A.), at paras. 14 and 17, Tab 7, Book of Authorities on Behalf of the Child
[8] Further, at para. 22, she states:
The test on a request for an extension of time to appeal is whether the justice of the case requires it. In child protection matters that requires a consideration of the best interests of the child.
Kenora-Patricia Child and Family Services v. S., [2004] O.J. No. 768 (O.C.A.), para. 1, Tab 1, Book of Authorities on Behalf of the Child
E.D. v. Children’s Aid Society of Oxford County, [2002] O.J. No. 3097(S.C.J.), at para. 11, Tab 2, Book of Authorities on Behalf of the Child
Frey v. MacDonald, [1989] O.J. No. 236 (O.C.A.), at para. 3, Tab 3, Book of Authorities on Behalf of the Child
Miller Manufacturing & Development Co. V. Alden [1979] O.J. No. 3109 (O.C.A.) at paras. 4-6, Tab 4, Book of Authorities on Behalf of the Child
[9] The paramount purpose of the Child and Family Services Act (“CFSA”) is "to promote the best interests, protection and well-being of children".
[10] Section 37(3) of the CFSA directs that the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity is a factor that shall be taken into consideration in determining the best interests of the child.
[11] However, the other purposes of the CFSA, as stated in s. 1(2)5, include:
To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
[12] Similarly, s. 37(4) provides:
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.
[13] It is with the above stated principles in mind that I must examine the factors to consider in deciding whether to extend the time for perfection of this appeal.
i. whether the appellant formed the intention to appeal within the relevant time period and maintained a firm intention to appeal;
ii. whether the appellant's failure to observe the time limits is reasonably explained;
[14] As found by the trial judge and as set out in paragraph 8 of the factum of the Office of the Children's Lawyer, the mother has significant neurological, psychological, and cognitive impairments.
[15] The affidavit material filed on behalf of the mother notes her significant difficulties involving her physical and mental health and her indecisiveness regarding choice of counsel. In the circumstances, I am satisfied that there was a firm intention to appeal throughout. The mother served her notice of appeal within the prescribed time. The failure to observe the subsequent time limits is reasonably explained.
iii. the length of the appellant's delay
[16] I do not find the delay so long as to deprive the applicant of her right to appeal.
iv. prejudice to the respondent
[17] The customary care agreement proposed that the child would be placed with the same foster parent and that the mother would have the same access as provided for by the Crown wardship. The trial judge quite legitimately expressed concern over the enforceability of the "no right to terminate" provision of the agreement against the mother especially in light of her neurological, psychological, and cognitive issues. Counsel for the Office of the Children's Lawyer argued that the possibility of the termination of the customary care agreement prejudiced the child in that this created the possibility of disruption of continuity in the child's care. It becomes a question of real or potential prejudice. The prejudice is potential. In saying so, I am mindful of the fact that delay and disruption can lead to consequences that do not serve the best interests of the child as cautioned by the Supreme Court in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165.
v. the merits of the appeal
[18] In her factum, the mother states:
- It is submitted that the Customary Care Agreement that all parties consented to (with the exception of the OCL) was rejected in part by the Honourable Justice Bode on the basis that it would lead to further litigation. This finding is not supported by the evidence.
Reasons for Judgment of the Honourable Justice Bode dated November 4, 2013, at para 41-42
- It is further submitted that the Trial Judge erred in law by finding that the provisions of a statutory mandated Customary Care Agreement provided less protections and rights for the child.
Reasons for Judgment of the Honourable Justice Bode dated November 4, 2013, at para 37-44
It is further submitted that the issues raised in Ms. S.’s Appeal have implications for all children that are of Aboriginal descent who wish to settle a Court Application in a manner consistent with their culture and heritage by way of Customary Care Agreement.
It is further submitted that the issues raised in this Appeal will also have wide implications on the applicability of Customary Care Agreements generally. The issue of their impact on the best interest of the child has not been extensively dealt with by the courts, especially in circumstances where Dilico, the Band and the Mother of the Child all believe that a Customary Care Agreement should be preferred over crown wardship.
It is submitted that an alternative to crown wardship was proposed that was consented to by all parties with the exception of the OCL and that the Court should not deviate from the opinion of both the Band and Dilico, that have considerable experience and expertise in Aboriginal child care except in the most serious circumstances.
[19] Counsel for the Office of the Children's Lawyer asserts this at para. 48 of their factum:
The trial Judge properly re-framed this issue as “does the creation of this particular customary care agreement satisfy the court that the crown wardship order that was, but for the creation of the agreement, necessary, is no longer necessary?” In other words, although customary care is a viable and culturally appropriate option for many Aboriginal children and the importance of providing services to Aboriginal children and families in a manner that recognizes their culture heritage and traditions cannot be underestimated and is specifically recognized in various sections of the Act, the trial Judge properly noted that “… it is necessary to do more than broadly comment on the overall value of customary care agreements. I need to look at this particular customary care agreement and ask the questions “does it serve the best interests of this particular child?”
Reasons for Judgment of the Honourable Justice Bode dated November 4, 2013, at para. 34
Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, ss. 1(2)(5), 37(4), 57(5), 61(2)
[20] The disposition made by the trial judge may be correct. On the material before me, I am not able to determine that. However, as argued by the mother and Dilico, this appeal raises important and significant issues regarding customary care agreements.
[21] In the circumstances, I conclude that leave to perfect the appeal should be granted.
[22] Counsel for the mother submitted that transcripts would not be required. Counsel for the Office of the Children's Lawyer did not agree. Transcripts have not been ordered. But for the need for transcripts, counsel for the mother stated that the appeal could be perfected within seven days.
[23] Since transcripts have not yet been ordered, I order that the mother shall have 90 days to perfect her appeal. If an order is required to expedite the production of transcripts to allow perfection within 90 days then I order that the production of transcripts be expedited.
[24] There will be no order as to costs.
________”original signed by”
The Hon. Mr. Justice W.D. Newton
Released: April 14, 2015
CITATION: Dilico Anishinabek Family Care v. S., 2015 ONSC 2425
COURT FILE NO.: FS-13-369
DATE: 2015-04-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DILICO ANISHINABEK FAMILY CARE
Applicant
- and -
Y. S.
Respondent(s)
-and-
H.M.-S.
Child
Decision on Motion
Newton J.
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
Released: April 14, 2015
/cs