Children’s Aid Society of London and Middlesex v. E.M.E.E., 2017 ONSC 5292

COURT FILE NO.: C327/07-07

DATE: September 8, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

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

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant

AND:

E.M.E.E., S.J.S., C.B.1, C.B.2 and KETTLE & STONY POINT FIRST NATION, respondents

BEFORE: MITROW J.

COUNSEL: Ben Leschied for the Society E.M.E.E. in person S.J.S. not appearing Michael J. Cormier for C.B.1 and C.B.2 Ronald C. George, Band Representative for Kettle & Stony Point First Nation

HEARD: May 26, 2017; further written submissions to be received by June 15, 2017

ENDORSEMENT

INTRODUCTION

[1] The applicant, Children's Aid Society of London and Middlesex (“Society”), brings this motion for directions initially returnable November 24, 2016.

[2] The subject child, T.J.E. (sometimes referred to as “the child”), age 18 months when the motion was commenced, was made a Crown ward pursuant to a final order dated January 7, 2016 (“the Crown wardship order”) which was silent as to access.

[3] The motion for directions was prompted when the Society discovered in October 2016 that it had failed to serve the Band, in this case being the Kettle & Stony Point First Nation. For convenience, Kettle & Stoney Point First Nation is referred to in these reasons as “the First Nation.”

[4] The child was placed in Society care following discharge from hospital after his birth. Initially the child was placed in a Society receiving home; in early September 2015, the child was placed in a view-to-adopt foster home, with foster parents C.B.1 and C.B.2 (“the foster parents”). In May 2016, the child was placed on adoption probation; it was during preparation of documents to finalize the adoption that the issue of lack of service on the First Nation came to light.

[5] E.M.E.E. (“the mother”) is the child’s mother. She named S.J.S. (“the father”) as the child’s father. The mother has a lengthy history with the Society as a result of protection concerns that included the mother’s developmental delays, transience, housing instability, inadequate parenting skills and domestic violence.

[6] The subject child is the mother’s seventh child; all seven children were removed permanently from the mother’s care.

[7] In relation to the six children born prior to the subject child, the mother identified the respondent S.J.S. as the father of three of the children; two of the children were placed in the custody of a paternal relative pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“the Act”), and the other child was made a Crown ward. Of the other three children, two children were made Crown wards; regarding the third child, the respondent, S.J.S., was served in respect of that child as it appeared that there was a strong possibility that he was the father, in circumstances where the mother denied he was the father while at the same time refusing to identify any other biological father. That child eventually was placed with the same paternal relative pursuant to s. 57.1.

[8] The First Nation, the mother, the father and the foster parents were served with the Society’s motion.

[9] The father did not appear on, nor participate in, the Society’s motion. The Society and the First Nation had been unable to locate the father; however, the mother did advise the court that she may be able to serve the father; however, she otherwise was not willing to provide information as to the father’s whereabouts. The mother subsequently confirmed to the court that she had served the father personally and her affidavit of service to that effect was filed. I am satisfied that the father was served with the Society’s motion.

[10] Minutes of settlement were signed by all the parties except the father. Although the mother was self-represented, she did have the assistance of duty counsel when she signed the minutes of settlement on May 26, 2017. The minutes of settlement seek an order as follows:

(a) the Crown wardship order will be declared a nullity as it relates to the Band, Kettle & Stony Point First Nation, only;

(b) amending the style of cause to make the Band, Kettle & Stony Point First Nation, a party to the proceedings;

(c) amending the statutory findings to reflect the fact that the child is native and associated with the Band, Kettle & Stony Point First Nation;

(d) providing for access (as detailed specifically in the minutes of settlement); and

(e) that the Crown wardship order “will be reinstated with the above changes.”

[11] These reasons address the following issues:

(a) What is the effect of the Crown wardship order as it relates to the First Nation?

(b) What is the proper procedure to follow where a Crown wardship order is made without notice to a statutory party?

(c) Should the minutes of settlement be implemented and, if so, what is the proper order to be made?

[12] The court has received facta from the Society and First Nation and written submissions from the foster parents.

THE EFFECT OF THE CROWN WARDSHIP ORDER AS IT RELATES TO THE FIRST NATION

[13] The father is a member of the First Nation. The Society concedes that in the protection proceedings involving four other children where the father was named as a party, that the First Nation was served.

[14] In the present case, the Crown wardship order was made at an undefended hearing. Evidence at that hearing consisted of an affidavit from the Society worker. That affidavit disclosed the child’s Indian or native status as “unknown”; further, no reference was made to the father’s native status or that he was a member of the First Nation. The plan of care filed by the Society failed to disclose any information about the child’s connection to the First Nation. This failure by the Society ignored s. 56(f) of the Act, which deals with the contents of the Society’s plan of care and requires the Society to provide “a description of the arrangements made or being made to recognize the importance of the child’s culture and to preserve the child’s heritage, traditions and cultural identity” (s. 56(f)). That portion of the plan of care that relates to s. 56(f) was stroked out and left blank.

[15] Although the Society has acknowledged its error in failing to serve the First Nation, there is no evidence from the Society explaining what led to the error and how the Society could have overlooked to serve the First Nation given the court record involving the other four children where the respondent, S.J.S., was a party.

[16] In all child protection cases, the Society has a substantial obligation to ensure, and make appropriate inquiries, as to whether a child is an Indian or native person within the meaning of the Act. It is incumbent upon the Society to establish appropriate administrative protocols and safeguards to ensure that in all cases the Band is served where required by the Act.

[17] The jurisprudence establishes that the failure to give notice to a parent, or other person entitled to notice, in a protection proceeding is a fatal defect rendering the Crown wardship order a nullity and void as to that parent or other person.

[18] This was the conclusion in Children's Aid Society of Metropolitan Toronto v. Lyttle, 1973 CanLII 13 (SCC), [1973] S.C.R. 568, 1973 CarswellOnt 222 (S.C.C.), under the predecessor Child Welfare Act, 1965. In that case, a Crown wardship order was obtained without notice being given to the father. At para. 12, the Supreme Court of Canada stated, in part:

12 … The Child Welfare Act itself speaks clearly enough to me in its s. 24(4) to make the want of notice here a fatal defect and hence to make the Crown wardship order a nullity so far as the father is concerned. Alternatively, a requirement of notice arose in the circumstances of this case, and the failure to give it or to make reasonable efforts to that end brings the same result; the Crown wardship order is void as to the father.

[19] The principle enunciated in Lyttle has been followed in a number of cases relieving a party from the consequences of an order made without notice to that party: see for example Kawartha Haliburton Children’s Aid Society v. T.G., 2012 CarswellOnt 9921 (S.C.J.), where a Crown wardship order was declared a nullity as against the father due to lack of notice; Children’s Aid Society of London and Middlesex v. M.L.W., [2005] O.J. No. 3498 (S.C.J.), a case where the court found a Crown wardship order to be a nullity as against the father due to lack of service, resulting in an order requiring the father to be served and permitting a specified timeframe for the father to commence a proceeding to set aside the Crown wardship order; Children's Aid Society, Region of Halton v. S.N.S., 2011 ONCJ 635 (Ont. C.J.), finding a Crown wardship order to be a nullity as against the father due to lack of notice and permitting the father a specified timeframe to commence a proceeding to set aside the Crown wardship order; Children's Aid Society of Halton Region v. C.J.R., 2005 CarswellOnt 9010 (Ont. C.J.), a case where a Crown wardship order was set aside because of the Society’s failure to give notice to the maternal aunt and uncle; and in Bruce Grey Child and Family Services v. R.G., 2015 ONCJ 412 (Ont. C.J.), the court went as far as to set aside an adoption order, on a temporary basis, to permit an opportunity for openness applications to be made pursuant to sections 145.1.1 and 145.1.2 of the Act, after having found that the Society had placed the child for adoption but had failed to forward the requisite notices to persons entitled to access contained in the Crown wardship order.

[20] There is no dispute that the child is an Indian or native person. The First Nation submits that the father is a registered member of the First Nation and an Indian within the meaning of the Indian Act – that submission is not challenged.

[21] The Society concedes that the First Nation should have been afforded an opportunity to participate in the protection application that led to the Crown wardship order. The Act stipulates that a representative chosen by the child’s Band or native community is a party: s. 39(1), at paragraph 4.

[22] The right of the First Nation to participate in protection proceedings involving the child is fundamental. As discussed in more detail later in these reasons, the Act imposes on the Society, and the court, a number of considerations and obligations in relation to a child who is an Indian or native person within the meaning of the Act.

[23] I find that the Society’s failure to give notice to the First Nation renders the Crown wardship order a nullity as against the First Nation.

WHAT IS THE PROPER PROCEDURE TO FOLLOW WHERE A CROWN WARDSHIP ORDER IS MADE WITHOUT NOTICE TO A STATUTORY PARTY?

[24] The cases cited earlier in these reasons adopt a process where the aggrieved party is permitted an opportunity, in essence, to “set aside” a challenged order.

[25] Rule 25(19) of the Family Law Rules, O. Reg. 114/99 is relevant:

CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE

25(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[26] In the present case, r. 25(19)(d) would apply because of the lack of notice. This is the analysis used, for example, in Bruce Grey Child and Family Services v. R.G., supra.

[27] Rule 25(19) provides that the court may, on motion, “change” an order where any of the listed circumstances apply. “Change” is defined in r. 2(1):

“Change”, when used to refer to an order or agreement, means to vary, suspend or discharge, or a variation, suspension or discharge (depending on whether the word is used as a verb or as a noun).

[28] The definition of “change,” while referring to the court’s ability to “vary, suspend or discharge” an order, does not explicitly refer to an order being “set aside.”

[29] In my view, the words “vary, suspend or discharge” are sufficiently broad to allow for an order to be “set aside” where necessary. However, in other cases, the courts have utilized r. 1(7) of the Family Law Rules to “import” r. 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which allows a party to bring a motion to “set aside or vary” an order in certain circumstances that include an order obtained on motion without notice: see for example Children's Aid Society, Region of Halton v. S.N.S., supra, at para. 21 and Bruce Grey Child and Family Services v. R.G., supra, at paras. 67-70.

[30] Accordingly, on the Society’s motion for directions, the court may utilize r. 25(19) to “vary, suspend or discharge” the Crown wardship order as required.

SHOULD THE MINUTES OF SETTLEMENT BE IMPLEMENTED AND, IF SO, WHAT IS THE PROPER ORDER TO BE MADE?

[31] On being served with the Society’s motion for directions, the First Nation promptly served and filed an answer that included a plan of care for the child to be placed in the care of a family that resides on First Nation territory, if one is available.

[32] In deciding the extent, if any, to which the minutes of settlement should be implemented, it is important to understand and appreciate the perspective of the First Nation in relation to its children.

[33] Ronald C. George (“Mr. George”) is the First Nation’s Band representative. He is also a lawyer. Mr. George, in his affidavit, detailed his impressive academic credentials and work experience and, in a very thoughtful way, Mr. George shared valuable information as to the history of the Kettle & Stony Point First Nation and provided a helpful insight as to the cultural practices and spiritual belief of the First Nation people. In relation to First Nation children, Mr. George states at para. 31:

It is critical to the future of our community and the best interests of our children that they stay intricately connected to the KSPFN community so when they are in a position to assess who they are or ask related questions they will feel comfortable and secure in embracing and sharing that they are Anishinabek and that they always belong in their home community.

[34] The importance of having the Band participate in proceedings where a child is an Indian or native person is evident by the numerous provisions in the Act that are triggered as a result. Starr J., in a comprehensive judgment in Children’s Aid Society, Region of Halton v. M.M., 2016 CarswellOnt 8701 (Ont. C.J.), discussed the importance of a finding that a child is an Indian or native person at paras. 24-27.

[35] In Catholic Children’s Aid Society of Hamilton v. H.(G.), 2016 ONSC 6287 (S.C.J.), Chappel J. referred to M.M., supra, and provided the following summary of special and significant provisions in the Act that come into play where a child is an Indian or native person. At para. 26, Chappel J. states, in part:

26 … The special protections for Indian and Native children are very significant and come into play at every stage of a child protection intervention, from the provision of voluntary services to the process of adoption planning once a child is made a Crown ward. The special benefits and protections that apply to children who are Indian or Native include the following:

1. Section 1 of the Act sets out the purposes of the Act, which inform the courts in interpreting and applying the provisions of the legislation. Section 1(5) of the Act stipulates that one of the purposes of the Act is 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.

2. The phrase "extended family" is defined in section 3(1) to mean persons to whom a child is related by blood, through a spousal relationship or through adoption. However, in the case of a child who is an Indian or Native person, the phrase is more expansive and includes any member of the child's band or Native community.

3. There are numerous provisions in the Act which require that notice of important matters relating to children who are Indian or Native persons be given to the relevant Indian band or Native community. For example:

   i. Section 20(4) provides that notice must be given to the relevant Indian band or Native community where alternative dispute resolution is being proposed for a child who is an Indian or Native person.

   ii. Section 36(4) states that if a recommendation of the Residential Placement Advisory Committee is reviewed by the Child and Family Services Review Board, and the child in question is an Indian or Native person, a representative of the child's band or Native community is entitled to party status.

   iii. Section 39(1)(4) provides that in child protection proceedings under Part III of the Act involving a child who is an Indian or Native person, a representative of the child's band or Native community is a party to the proceedings.

   iv. Sections 64(5), 65.1(4) and 65.1(6) provide that an Indian band or Native community representative must be given notice of any Status Review proceedings relating to a child who is an Indian or Native person.

   v. Section 58(4)(d) stipulates that notice of any access application respecting a child who is an Indian or Native person must be given to the band or Native community representative.

   vi. Pursuant to section 61(7), a proposed removal of a Crown ward who is an Indian or Native person from a foster parent who the child has have lived with for at least two years requires at least 10 days advance written notice to the relevant band or native community representative. Furthermore, pursuant to sections 61(8.1) and (8.4), the band or Native community representative must be given notice of an application for review of a proposed removal of the child's placement, and is a party to such a hearing.

4. In addition, there are a number of provisions in the CFSA that grant Indian band and Native community representatives the right to initiate court proceedings respecting children who are Indian or Native persons. For example:

   i. A representative chosen by an Indian child's band, or by a member of a child's Native community, is entitled to make an application for access under section 58 of the Act.

   ii. Section 64(4) provides that a representative of an Indian child's band or a Native child's community may bring a Status Review application respecting the child.

   iii. Section 69(1) stipulates that an appeal from a child protection order respecting a child who is an Indian or Native person may be made by a band representative or member of the Native community.

5. The Act also imposes a duty upon child protection agencies to consult regularly with Indian band and Native community representatives about the needs of Indian and Native children. Section 213 stipulates that a society that provides services or exercises child protection powers with respect to Indian and Native children must regularly consult with the child's band or Native community about the provision of the services or the exercise of the powers, and about matters affecting the children.

6. The Act includes provisions that require the court to specifically address its attention to a child's Aboriginal culture and heritage in cases involving Indian and Native children. For instance:

   i. Section 34(10) of the Act provides that in reviewing a residential placement of a child, the Residential Placement Advisory Committee must in cases involving children who are Indian or Native persons "consider the importance, in recognition of the uniqueness of Indian and Native culture, heritage and traditions, of preserving the child's cultural identity."

   ii. Section 37(4) of the Act provides that in a child protection hearing involving a child who is an Indian or Native person, the best interests analysis must include consideration of the importance, in recognition of the uniqueness of Indian and Native culture, heritage and traditions, of preserving the child's cultural heritage.

7. The Act also includes special protections for Indian and Native children aimed at ensuring that they remain within their community or that they are placed in a culturally appropriate home. For instance:

   i. Section 37(5) indicates that in a case involving a child who is an Indian or Native person, a place of safety for the child includes the home of any member of the child's band or Native community, provided that the Society involved approves it as a safe home environment.

   ii. Pursuant to section 51(3.1) relating to temporary orders, the court is required in cases involving Indian or Native children to consider whether it is in the child's best interests to place the child with "extended family" which, as indicated above, includes members of the child's band or Native community.

   iii. Section 57(5) establishes that in a Protection Application involving a child who is an Indian or Native person, the court shall place the child with a member of the child's extended family, a member of their band or Native community or another Indian or Native family, "unless there is a substantial reason for placing the child elsewhere." In Algonquins of Pikwakanagan v. Children's Aid Society of the County of Renfrew, 2014 ONCA 646 (Ont. C.A.), the Ontario Court of Appeal held that this provision and section 37(4) do not require that an Indian or Native child's culture, heritage and traditions be given "super weighted" consideration in child protection proceedings in comparison to other factors that are relevant to the best interests analysis. However, this decision does not detract from the fact that these matters must be specifically considered by the judge in carrying out the best interests analysis.

   iv. Section 61(2), relating to residential placement of children, provides that in cases involving children who are Indian or Native persons, the Society must choose a placement that is with a member of the child's extended family, band or Native community or another Indian or Native family, if possible.

   v. Pursuant to Part X of the CFSA, the band of an Indian child or the Native community of a Native child can place the child with a person who is not the child's parent, according to the custom of the child's band or Native community, and declare that the child is "being cared for under customary care" (s. 212). When such a declaration of customary care is made, a Society or agency may grant a subsidy to the person caring for the child.

   vi. Section 63.1(3) stipulates that where a child is made a Crown ward, the Society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through either adoption or a custody order. However, in the case of a child who is an Indian or Native person, this obligation includes a plan for customary care as defined in Part X as one of the permanency options that the Society is specifically required to explore.

[36] In the present case, the First Nation, in its supplementary factum, referring to the “significant infusion of First Nation provisions in the current version of the Child and Family Services Act,” submits in part at paragraph 13:

… While the provisions are not perfect, they are generally viewed by First Nations as a significant form of protection against past abuses, recognition for the special circumstances and expertise of First Nations and that preservation of a child’s Indigenous identity and culture is in the Indigenous child’s best interests.

[37] Significantly, the First Nation also recognizes, as deposed to in paragraph 26 of Mr. George’s affidavit, that there are “… cases where the First Nation would choose to support children being with non-members …”

[38] The process in the present case involved a number of adjournments to permit the parties to explore resolution, which they ultimately achieved. The process included meetings between the foster parents and representatives of the First Nation.

[39] Through this dialogue, and enlightened approach, the First Nation did not seek to disturb the child’s bonding with the foster parents. In the circumstances, the First Nation elected not to present a different plan to the court, with that decision, in part, being influenced by the foster parents’ cooperation and desire to ensure that the child is exposed to his home community and First Nation culture.

[40] In relation to the access order requested in the minutes of settlement, I must consider the statutory presumption against access to a Crown ward contained in s. 59(2.1) of the Act. On the basis of the evidentiary record, including the agreement of the parties contained in the minutes of settlement, I am satisfied that the relationship sought to be preserved is both beneficial and meaningful to the child, and that the access order will not impair the child’s future opportunities for adoption. In the present case, the proposed adoption is by the foster parents, who are signatories to the minutes of settlement.

[41] A case of this nature had a real potential of becoming divisive. All parties who participated in the minutes of settlement are to be commended for their efforts in achieving a negotiated solution in the child’s best interests.

[42] I find that it is not necessary for the formal order to contain a specific declaration that the Crown wardship is a nullity as against the First Nation. It is sufficient for that finding to have been made in the reasons.

[43] Also, this is not a case where the Crown wardship order needs to be set aside. The First Nation has participated fully in the Society’s motion and the ultimate resolution of this case. As a result, the First Nation does not seek to set aside the Crown wardship order, rather the effect of the minutes of settlement is to require a variation of the order.

[44] The material filed by the First Nation described the Band as the “Kettle & Stony Point First Nation” and at other times the “Chippewas of Kettle and Stony Point First Nation.” The order below uses the former name as it is more consistent with the minutes of settlement. If it is the First Nation’s position that the terms of the order made below require an amendment as to the name of the First Nation, then I may be spoken to at a time to be arranged by the parties with the trial coordinator.

ORDER

[45] For the foregoing reasons, I make the following order:

1. The style of cause on the Crown wardship order made by Henderson J. (“the Crown wardship order”) dated January 7, 2016 is varied to include, as a respondent, the Kettle & Stony Point First Nation.

2. The statutory finding made pursuant to s. 47(2)(c) of the Child and Family Services Act is varied to provide that the child, T.J.E., born in 2015, is an Indian or native person and that the child is associated with the Band, Kettle & Stony Point First Nation.

3. The Crown wardship order is varied to include the following access provision:

The child, T.J.E., born in 2015 (“the child”), shall have reasonable and regular contact with and participate with the community representatives and/or elders of the Kettle & Stony Point First Nation through the following:

(a) attendance at and participation in at least four community events within the community during each calendar year; these events include, but are not limited to, the Community Pow-wow, New Years’ celebration, the Kettle & Stony Point National Aboriginal Day celebration on June 21, and events for children organized by local service providers such as Mnaasged Child and Family Services and Kettle & Stony Point Mental Health, Addiction and Violence Support Services;

(b) interaction between the child and his extended biological family members from Kettle & Stony Point First Nation from time to time, when reasonable and appropriate, as facilitated by the Kettle & Stony Point First Nation Band Representative;

(c) interaction between the child and his siblings from time to time when reasonable and appropriate, taking into consideration the wishes of the children and their schedules; and

(d) the Kettle & Stony Point First Nation Chief will provide a letter addressed to the child which explains where he is from and the position of the First Nation, to be opened or read to the child when the child is an appropriate age to understand such letter or when he has questions regarding his identity.

“Justice V. Mitrow”

Justice V. Mitrow

Date: September 8, 2017