ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-1819
DATE: 20151203

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF L.L. and J.L.

BETWEEN:

Children’s Aid Society of Ottawa
Applicant/Respondent

– and –

K.F. (Mother)
L.F. and L.E.F. (Maternal Grandparents)
Respondents/Moving Parties

Marguerite Lewis, for the Applicant

Karen Leef, for K.F.
Kristen Robins, for L.F. and L.E.F.

HEARD: October 1,2,5,6,7,8,9,13 and 14, 2015 at Ottawa

REASONS FOR JUDGMENT

J. Mackinnon J.

[1] The two children who are the subject of this case, L.L. and J.L., came into care on February 4, 2013. They are now five and three years of age. In September and October 2013 I heard a status review application pertaining to them and made an order for Crown wardship with supervised access to the maternal grandparents on a once weekly basis. In so doing I dismissed the maternal grandparents’ cross application seeking placement of the children with them. I also dismissed the mother’s cross application seeking placement of the children with her, or if Crown wardship was ordered, an access order in her favour.

[2] My reasons for judgment in the 2013 trial are available at [2013] O.J. No. 5306.

[3] The maternal grandparents appealed from my order. Their appeal was heard in Divisional Court on October 30, 2014. That day, Matlow J. endorsed the record for the panel, allowing the appeal and setting aside the Crown wardship order on the following terms:

• the proceedings are returned to the trial judge for reconsideration of her order in view of the application of s. 37(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [CFSA];

• for such purpose the parties are entitled to adduce further evidence and make further submissions relevant to s. 37(4) in accordance with directions to be given by the trial judge; and

• counsel shall contact the trial judge for directions so that the reconsideration can proceed as expeditiously as reasonably possible.

[4] Section 37(4) of the CFSA provides as follows:

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. R.S.O. 1990, c. C.11, s. 37 (4).

[5] “Indian” and “Native Person” are also defined terms in the CFSA:

In this Act,

“Indian” has the same meaning as in the Indian Act (Canada); (“Indien”)

“native person” means a person who is a member of a native community but is not a member of a band, and “native child” has a corresponding meaning; (“autochtone”, “enfant autochtone”)

[6] The CFSA definition of “native person” incorporates the terms “band” and “native community”, which also have specific meanings in the CFSA:

“band” has the same meaning as in the Indian Act (Canada); (“bande”)

“native community” means a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services); (“communauté autochtone”)

[7] I received the Divisional Court endorsement and contacted counsel on November 11, 2014. I directed them to contact the Trial Office to schedule an early date for the reconsideration.

[8] Before doing so counsel requested an appearance before me for directions. The Children’s Aid Society [CAS] submitted that as part of the reconsideration I should determine whether s. 37(4) had any application to these children. The maternal grandparents submitted that the Divisional Court had already determined that it did apply to the children.

[9] My endorsement dated January 9, 2015 reads in part as follows:

[3] In its reasons the Divisional Court stated that it had not been sufficiently brought to the attention of the trial judge that the children were of “Canadian Indian ancestry” and were entitled to the “protection” of s. 37(4). The proceedings were returned to the trial judge for “reconsideration in view of the application of s. 37(4).” Divisional Court also ruled the parties shall be entitled to “adduce further evidence and make further submissions relevant to s. 37(4) in accordance with directions to be given by the trial judge.”

[4] There was no evidence at the trial capable of bringing these children within the meaning of “Indian or native person” as defined in the CFSA. The grandparents did bring a motion to introduce fresh evidence on appeal. The motion was allowed. The fresh evidence included an affidavit deposed by the grandfather describing his non status aboriginal ancestry. In his affidavit he also deposed that his [previous] lawyer advised him that non status Indians are “Indians” within s. 91 (24) of the Constitution Act, 1867. That section enumerates the distribution of powers to the federal parliament, including “Indians and lands reserved for the Indians”. It does not assist in knowing whether the children in the case at hand come within the definition of “Indian or native person” as contained in the CFSA. The fresh evidence before the Divisional Court did not address whether these children were or were entitled to be registered under the Indian Act, or whether they were part of a native community designated by the Minister under the applicable provincial statute. These are the relevant criteria to the application of s. 37(4).

[5] I note that the grandparents’ counsel did not submit that the evidentiary record available to Divisional Court did address the requisite criteria or was capable of supporting a finding that the children are Indians or native persons as defined. The submission was simply that the finding had been made and that the CAS could have appealed from it to the Court of Appeal.

[6] In that neither the evidentiary record at trial or on appeal actually addressed the facts necessary to be proven to support a finding that these children fall within the scope of s. 37(4) of the CFSA, I am of the view that this inquiry must be included as part of the reconsideration ordered by Divisional Court. Rather than conclude that the Divisional Court made an unsupported finding and that I should proceed to conduct a reconsideration of my previous order in any event, it makes sense that I should hear evidence and receive submissions on both issues. In this way, if I am wrong in my ruling on the import of the Divisional Court order, any further appeal will take place on a complete evidentiary record. This is in keeping with the policies of the law favouring both judicial economy and a timely conclusion to child protection litigation.

(continued verbatim in the original judgment…)

J. Mackinnon J.

Released: December 3, 2015