This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.-(8) 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.

85.-(3) A person who contravenes subsection 45(8) (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.

CITATION: CCAS v. G.H. and T.V., 2017 ONSC 742

COURT FILE NO.: C1167-12

DATE: 2017-02-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Lashell Eaton, for the Applicant

Applicant

• and -

G.H. (Mother)

And

T.V. (Father)

Melinda Graham, for the Respondent Mother

Norman F. Williams, for the Respondent Father

Respondents

HEARD: January 12, 2017

The Honourable Mr. Justice R. J. Harper

Issues

[1] The Catholic Children’s Aid Society of Hamilton seeks an order for Crown wardship no access regarding the child E.D.V., born […], 2015.

Family Constellation

[2] Two children of relationship with the Respondent mother G.H. and M. M. as follows:

a) I.J.M., […], 1998; and

b) P.M., born […], 2001.

[3] Three children from the relationship with the respondent mother G. H. and the respondent father T.V. as follows:

a) A.V., born, […], 2007

b) T.J.V., born […], 2008; and

c) E.D.V., born […], 2015.

[4] The child E.D.V. is the only child who is the subject of these proceedings.

Litigation Chronology

[5] Justice Chappel made a ruling on October 12, 2016 that impacts my considerations at the trial of this matter. The ruling of Chappel J. is cited at Catholic Children’s Aid Society of Hamilton v. G.H., T.V. and Eastern Woodlands Métis of Nova Scotia, 2016 ONSC 6287. Commencing at paragraph 1:

[1] This case is about a seventeen month old boy, E.D.V., born […], 2015. E.D.V. was apprehended at birth by the Applicant Catholic Children’s Aid Society of Hamilton (“the Society”) and has remained in foster care on a consistent basis since that time. The Respondents G.H. and T.V. are the mother and father of E.D.V. This case is also about the equality rights of Métis children and their families in the child protection context in Ontario, and whether the provincial government is respecting those rights. It is an important opportunity for this province to demonstrate its commitment to act upon the Calls to Action that the Truth and Reconciliation Commission of Canada issued in 2015.

[2] The Society commenced a Protection Application regarding E.D.V. on May 5, 2015, requesting an order for Crown wardship without access to the Respondents. It decided to pursue a Summary Judgment Motion in relation to that application in February 2016. In the context of the Summary Judgment Motion, the Respondent father T.V. argued that E.D.V. is a Métis child, and that as such, he should be treated in the same manner as children who fall within the definitions of Indian, Native person and Native child under the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the “CFSA”). All parties concede that Métis children do not fall within the scope of those definitions as they now stand, and that E.D.V. therefore does not have Indian or Native status within the meaning of the CFSA. However, T.V. alleges that the definitions of Indian, Native person and Native child in the CFSA violate section 15(1) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) on the basis that they do not extend to Métis children. T.V. served and filed a Notice of Constitutional Question outlining the specifics of his constitutional challenge dated May 19, 2016. He later filed an amended Notice of Constitutional Question dated June 6, 2016. He seeks an order pursuant to section 52(1) of the Constitution Act, 1982 declaring the definitions of Indian, Native person and Native child invalid and suspending the declaration of invalidity for a period of time, as well as an individual remedy pursuant to section 24(1) of the Charter directing that E.D.V. be treated as if he were an Indian, Native person or Native child for the purposes of these child protection proceedings.

[3] The Society advised that it was not taking a formal position on whether the definitions of Indian, Native person and Native child violate section 15(1) of the Charter. However, it opposed the relief sought on two grounds. First, it argued that it is unnecessary to deal with the constitutional issues, since the Society has in all material respects treated E.D.V. as if he were Indian or Native. In addition, it submitted that the only two Métis organizations that have had a connection with this family have chosen not to participate in this proceeding and have not advanced an alternative, culturally appropriate plan for E.D.V. Accordingly, the argument is that finding E.D.V. to have Indian or Native status would not have any impact whatsoever on the outcome of the case. The Society’s second argument is that T.V. has not adduced the necessary evidence to support a finding that Métis children are suffering discriminatory disadvantage as a result of the definitions of Indian, Native person and Native child under the CFSA.

[4] Unfortunately, as detailed below, the Summary Judgment Motion had to be adjourned many times in order to deal with various issues. At the court appearance on June 3, 2016, I scheduled a hearing to address the constitutional issues raised in T.V.’s Notice of Constitutional Question, whether E.D.V. is an Indian, Native person or Native child within the meaning of the CFSA, and if so, which organization or person should be served with the documents filed in relation to the Protection Application as the representative of the child’s community.

[6] Justice Chappel made the following findings in the above ruling, commencing at paragraph 7:

[7] As noted above, G.H. is the mother of E.D.V. and T.V. is the child’s father. G.H. has two older children from a previous relationship, I.M., born […], 1998, and P.M., born […], 2001. The Respondents G.H. and T.V. are the biological parents of two other children, namely A.V., born […], 2007, and T.V., born […], 2008. The Society has a longstanding history of involvement with this family dating from 2008. It eventually commenced a Protection Application respecting E.D.V.’s siblings on June 29, 2012. In the context of that application, McLaren, J. made a final order on February 11, 2013 providing for E.D.V.’s four older siblings to remain in care until March 15, 2013, and to then return to the care of G.H. and T.V. subject to Society supervision. On that date, McLaren, J. also made a finding that those four children were not Indian or Native children within the meaning of the CFSA.

[8] The Society has remained involved with this family through court intervention on a consistent basis since June 2012. The four older children were apprehended from the care of G.H. and T.V. in July 2014. I.M. was returned to the care of G.H. and T.V. on a temporary basis on February 2, 2015, and on April 27, 2015, Gordon, J. granted a final order providing for him to remain in their care subject to Society supervision for six months. That order was extended for a further period of six months on March 21, 2016. The other three children, P.M., A.V. and T.V., were made Crown wards by order of Brown, J. dated September 3, 2015. Subsequently, on October 15, 2015, I made a final order addressing the issue of access to those children.

[9] As previously noted, E.D.V. was apprehended on […], 2015 based on the history of concerns respecting the Respondents in relation to their four older children. The Society commenced the Protection Application herein respecting E.D.V. on May 5, 2015, requesting an order for Crown wardship without access. On that date, Brown, J. granted a temporary order providing for the child to remain in care, with access to the parents in the discretion of the Society and supervised in the Society’s discretion.

[10] The Society commenced the Summary Judgment Motion respecting E.D.V. in February, 2016, requesting an order for Crown wardship without access. On February 12, 2016, the motion was scheduled for a hearing on the Long Motions sittings commencing March 21, 2016. Subsequently, on March 11, 2016, T.V.’s counsel obtained an order removing herself as counsel of record for T.V. The Summary Judgment Motion was called in for a hearing before me on March 30, 2016. At that time, T.V. indicated that he was experiencing difficulties retaining counsel. In addition, he argued that the hearing could not proceed because he had received a notice from the Motherisk review committee that the child protection proceedings respecting his children were under review. Finally, T.V. submitted that he was a card holding member of the Eastern Woodlands Métis of Nova Scotia, and that as such, E.D.V. was also Métis. He stated that he had advised the Society of E.D.V.’s Métis status many times, and submitted that in his view, E.D.V. should be treated as an Indian or Native child within the meaning of the CFSA. T.V. requested an adjournment of the Summary Judgment Motion to allow him further time to obtain legal representation and for the Society to address the other issues that he had identified. [emphasis added]

[7] Justice Chappel directed that the statutory findings with respect to Native status would be addressed on April 27, 2016 when the matter was returned before her. With respect to the April 27 hearing, she stated in her ruling on October 12, 2016, at paragraphs 14-19:

[14] At the hearing on April 27, 2016, I concluded that T.V. was actively attempting to address his legal representation dilemma, and that it was important that he have legal representation to advance his constitutional claim and present his defense on the Summary Judgment motion. Furthermore, although the Métis organizations had not up until that point demonstrated an interest in participating in the proceedings, I noted that the deadline of April 13, 2016 that I had previously set for them to give notice of their intention to participate pre-dated the release of the Daniels decision. Given the importance of the constitutional issue that T.V. was raising for Métis children and their families, and in particular members of the Eastern Woodlands Métis of Nova Scotia, I made an order adding that community as a party to the Summary Judgment Motion with respect to the finding of Indian or Native status, and directing the Society to serve the community with all of the materials relating to the Summary Judgment Motion. In addition, I ordered that a representative of the community could participate in the hearing via Skype, provided that they advised the Trial Coordinator in writing of their request to do so by May 5, 2016. My hope was that these measures would encourage and facilitate the participation of the Métis community in the hearing. I also directed that the Society send a copy of my endorsement to the Attorney General of Canada and the Attorney General of Ontario, so that they would have advance notice of T.V.’s intention to serve and file a Notice of Constitutional Question and the nature of the issues to be determined. The Society complied with all of the directions that I made on April 27, 2016 regarding service of materials.

[15] On May 5, 2016, counsel for the Society, Mr. Kamal, spoke with Ms. Mary Lou Parker, who identified herself as the Grand Chief of the Eastern Woodlands Métis of Nova Scotia. During that conversation, Ms. Parker indicated that the community would not be seeking to intervene in the hearing, that it did not have any Métis foster homes or placements for E.D.V., and that it was supporting the Society’s plan for adoption for the child. Ms. Parker reiterated these points during a subsequent conversation with Mr. Kamal on June 1, 2016.

[16] This matter returned before me on May 9, 2016 to be spoken to. T.V. had finally been able to secure legal counsel, Mr. Williams, who appeared on May 9, 2016. Mr. Williams had just been retained and had not had an opportunity to prepare materials on behalf of T.V. The Eastern Woodlands Métis of Nova Scotia did not send a representative to participate on that date and did not request the right to participate by Skype. Ms. Parker sent correspondence to the court on that date confirming that the Eastern Woodlands Métis of Nova Scotia would not be participating in the hearing. I noted in court on May 9, 2016 that the issue of whether E.D.V. was a Native or Indian child under the CFSA must be determined before proceeding to the disposition issues in the case, given that there are special considerations that apply with respect to disposition in cases involving Indian and Native children. I set a deadline of May 20, 2016 for T.V. to serve and file his Notice of Constitutional Question and his responding materials for the Summary Judgment Motion. The matter was adjourned to June 3, 2016 to allow the Attorney Generals of Canada and Ontario to determine whether they wished to participate. An adjournment was required because the Society had only served some of the Summary Judgment Motion materials on the Eastern Woodlands Métis of Nova Scotia. On this date, I made a finding on consent of all parties finding that E.D.V. is a Métis child, and I gave written reasons for this finding on May 13, 2016.

[17] When the matter returned before me on June 3, 2016, T.V. had served and filed his Notice of Constitutional Question on all parties, including the Eastern Woodland Métis of Nova Scotia. Again, nobody appeared on behalf of the Eastern Woodlands Métis of Nova Scotia, despite the fact that the community had again been given notice of the return date. Nobody appeared on behalf of the Métis Nation of Ontario, despite the fact that notice had been given to that organization on March 31, 2016 that the issue of E.D.V.’s Native or Indian status under the CFSA was to be determined. Similarly, nobody appeared on behalf of the Attorney Generals of Canada or Ontario. However, I did not have proof of service on the Attorney Generals and I therefore ordered counsel for T.V. to file the relevant affidavits of service. I also granted T.V. leave to serve and file an amended Notice of Constitutional Question, which he subsequently filed on June 6, 2016. I scheduled a hearing for June 27, 2016 to determine the constitutional issues, whether E.D.V. is an Indian, a Native person or a Native child within the meaning of the CFSA, and if so, which organization or person, if any, should be served with the documents relating to the Protection Application. I directed the Society to serve the Eastern Woodlands Métis of Nova Scotia with a copy of my endorsement so that it would be aware of the return date. The Society complied with this direction. Finally, I encouraged counsel for the Respondent T.V. to explore whether there were any other Métis organizations that wished to participate in the hearing of the constitutional issues.

[18] Following the court appearance on June 3, 2016, an articling student with Mr. Williams’ office made numerous efforts to determine whether any Métis organizations or groups would be interested in participating in the hearing of the constitutional issues to be determined in this case or in providing assistance and support to T.V. in addressing the issues. Those efforts are outlined in detail in his affidavit sworn June 13, 2016. The efforts were extensive, and included two emails to the Director of the Métis Nation of Ontario, emailing the President of a Hamilton Métis organization, emailing and calling legal counsel with the Legal Aid Ontario Aboriginal and Legal Services Department, connecting with the Indigenous Bar Association, contacting the Métis National Council, and calling Indian and Northern Affairs Canada to obtain information about potential Métis contacts. On June 8, 2016, Mr. Williams’ articling student provided legal counsel for the Métis Nation of Ontario with materials to review, and on June 13, 2016, he sent correspondence and materials to the newly elected president of the Métis Nation of Ontario so that she could decide if that organization would consider intervening.

[19] The hearing finally commenced before me on June 27, 2016. The Attorney Generals of Canada and Ontario chose not to participate in the hearing on the constitutional issues, and nobody appeared on behalf of the Eastern Woodlands Métis of Nova Scotia. Furthermore, no representatives from any Métis group appeared, despite the numerous efforts on the part of counsel for T.V. to seek assistance and support from various Métis groups and representatives. On consent, a letter from legal counsel for the Métis Nation of Ontario, dated June 27, 2016 was marked as an Exhibit for the sole purpose of confirming that that organization had decided not to seek intervenor status at the hearing. In that correspondence, counsel indicated that the Métis Nation of Ontario could change its position regarding intervention if it were in receipt of evidence indicating that T.V. or E.D.V are citizens of either an Ontario Métis community or citizens of the broader Métis Nation. This letter was written and sent on the morning of the actual court hearing. The matter proceeded notwithstanding the Métis Nation of Ontario’s indication of a possible interest in becoming involved, since that organization had been on notice since March 31, 2016 that the issue of E.D.V.’s Native or Indian status was to be addressed in this proceeding. Furthermore, by that point, the Summary Judgment Motion had been on adjournment since February 12, 2016.

[20] At the hearing on June 27, 2016, the Society adduced evidence that it had consulted with both the Eastern Woodlands Métis of Nova Scotia and the Métis Nation of Ontario about whether either was aware of any potential placements for E.D.V. with Métis families. Both organizations advised the Society that they did not have any placements to propose for the child.

[8] In her reasons released October 12, 2016, Chappel J. went on to consider the definition of “Native person,” at paragraphs 22 and 25:

[22] The phrase “Native person” is defined in section 3(1) of the CFSA as a person who is a member of a Native community but is not a member of a band. “Native child” is defined as having a corresponding meaning. It is important to note that the various provisions in the CFSA relating to children who qualify as Native under the Act use the phrases “Native child,” “Native children” or a child who is a “Native person.” Section 3(1) further defines “Native community” as meaning a community designated by the Minister of Children and Youth Services (“the Minister”) under section 209 of Part X (Indian and Native Child and Family Services) of the Act. Section 209 stipulates that the Minister may designate a community, with the consent of its representatives, as a Native community for the purposes of the Act.

[25] The implications of finding a child to be Indian or Native within the meaning of the CFSA are broad and very significant for the child and their family members. Starr, J. sets out an excellent summary of these implications in M.M. As she noted in that case, the CFSA identifies the cultural background and ethnicity of all children as an important factor in child protection proceedings. This is apparent from numerous provisions in the Act, including the following:

1. Section 1(2) of the Act provides that one of the objectives of the Act is to recognize that wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

2. Section 37(3) stipulates that the criteria that the court is required to consider in determining the “best interests of the child” include the child’s cultural background, their relationships and emotional ties to members of the child’s extended family or community.

3. Section 51(3.1), relating to orders for temporary placement, provides that before making a temporary order placing a child in the care of the Society, the court shall consider whether it is in the best interests of the child to make an order placing the child with a relative or a member of the child’s extended family or community. Section 3(3) states that for the purposes of the Act, members of a child’s community include persons who have ethnic, cultural or religious ties in common with the child or with a parent, sibling, or relative of the child.

4. Section 56 provides that the Plan of Care that the Society must file in support of a final order must include 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.

5. Section 57(4), relating to final disposition orders, provides that there the court decides that it is necessary to remove the child from the care of the person who had charge of them immediately before intervention, the court shall, before making an order for Society or Crown wardship, consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family.

6. Section 61(2) states that a Society having care of a child shall choose a residential placement for the child that, where possible, respects the child’s linguistic and cultural heritage.

[9] When issuing her order on October 12, 2016, Chappel J. ordered the following, at paragraph 114:

On the basis of the foregoing, a final order shall issue as follows:

1. The definitions of “Indian” “Native person” and “Native child” in section 3(1) of the Child and Family Services Act are declared invalid on the basis that they infringe section 15(1) of the Charter of Rights and Freedoms.

2. The declaration of invalidity is suspended for a period of ten months, until August 11, 2017. The Attorney General of Ontario may apply by way of motion in this proceeding for an extension of this deadline no earlier than June 15, 2017 on at least 7 days’ notice to the parties. Any such motion must include detailed affidavit evidence outlining the steps that the Ontario government has taken to resolve the constitutional issue raised in this case, further steps that are required and an estimate of the time required to complete each outstanding step.

3. The child E.D.V. shall for all purposes relating to the Protection Application herein and any subsequent child protection proceedings be treated as if he were an Indian, Native person or Native child within the meaning of section 3(1) of the Child and Family Services Act.

[10] I replicated in detail the above excerpts from the reasons of Chappel J. because they are necessary to understand T.V.’s submissions before me at the trial. He asserted that his child E.D.V. and his other children who had already been made Crown wards and adopted were the subject of major breaches of their constitutional rights as Aboriginal people.

[11] T.V. argued that the legislative scheme of the CFSA had not been followed by the Society and as a result his child could not and should not be made a Crown ward. He stated that this case was “huge” and would have an impact on all people and children of Métis and other Native communities. He went on to state in his evidence that regardless of what this court did, he would never stop fighting and he would take the matter all the way to the Supreme Court of Canada if that is what it would take.

The Native Status Issue

[12] G.H. and T.V. moved to Hamilton in or about 2008. They have lived together since then. They had two children of their relationship prior to the birth of E.D.V., A.V. and T.J.V. The CCAS brought a protection application in 2012 with respect to all of the children living with G.H. and T.V. As detailed later, the children were found in need of protection and there were multiple Status Reviews between 2012 and September 3, 2015. The children were made Crown wards on September 3, 2015, pursuant to minutes of settlement signed by the parties.

[13] At no time during the three years the matter was before the court relative to these children was there any evidence given as to their Native status. There was a finding by McLaren J. on February 11, 2012 that all four of the children, including the two whose father is T.V., were “non-Native”.

[14] The child protection application brought by CCAS with respect to the child E.D.V. was issued on May 5, 2015. The first time the father T.V. raised the issue of his being a “card carrying member of the Eastern Woodlands Métis of Nova Scotia” was in his submissions to Chappel J. when the summary judgment motion brought by CCAS for Crown wardship no access was going to be adjourned for him to retain new counsel on March 30, 2016. At that time, Chappel J. indicated that the issue of Native status would be dealt with when the matter returned to court with his counsel.

[15] In her ruling of October 12, 2016 Chappel J. ordered that the child E.D.V. be considered “Native” for the purposes of this and any other child protection application.

[16] The evidence before me with respect to the issue of membership in any Métis nation was from Ms. Appel, the coordinator of the Métis Healthy Babies Healthy Children program of Métis Ontario. She stated that T.V. contacted her for the first time on March 3, 2015. He was a “self-reported Métis”. She stated that based on his self-report they started to provide services to his family for household management and assistance with navigating CCAS concerns and parenting issues. She provided services to them on a client-driven basis. She was involved until April 2016. She had not had contact with the family since April 2016 and had had no communication from T.V. since June 2015. On that basis, she closed her file. The next contact she had with T.V. was when she saw him in court when she came to testify. She told him at the time that she would be prepared to restart her assistance if he wanted it.

[17] T.V. testified that he always told the CCAS that he and his children were Métis. The CCAS conceded that T.V. did tell them that he was Métis; however, no one pursued the issue until the matter came up for summary judgment before Chappel J. The only evidence before me was that T.V. contacted Métis Ontario, Healthy Babies Healthy Children, in March of 2012 and told them that he was Métis and wanted help dealing with the Children’s Aid Society. It was the Métis Ontario coordinator of their Healthy Babies Healthy Children Program, Ms. Appel, who contacted the Catholic Children’s Aid Society and told them that T.V. had self-reported that he was a member of the Métis Eastern Woodlands of Nova Scotia and that as a result of that self-report, she was working with this family.

[18] When the matter was before Chappel J., the parties consented to a finding that the child was Métis. There were extensive efforts to serve and seek out the involvement of the Eastern Woodlands Métis of Nova Scotia. However, the response from the Eastern Woodlands Métis of Nova Scotia was that they were not going to participate, they did not have any placement options and that they were supporting the plan of the CCAS to have the child E.D.V. adopted.

[19] By the time this trial started, E.D.V. had been in care for a period of 21 months.

[20] T.V. gave evidence that his and his children’s constitutional rights had been breached. He testified that the Society never followed the requirements of the CFSA with respect to providing services for Native children and considering options in accordance with the statutory framework. I disagree with this testimony and his submissions.

[21] Despite the fact that there had been no designation by a court that the child E.D.V. was a Native child for the purpose of the CFSA prior to October 27, 2016, the CCAS did make efforts to promote the child’s Métis heritage. The Society instructed the foster parents to involve E.D.V. in educational programs that would expose him to his Métis heritage in manner that would be age- and stage of development-appropriate. The evidence before me was that the foster parents were committed to ensuring that this was done and that they had already started to do this.

[22] As Pazaratz J. stated in Children’s Aid Society of Hamilton v K.C., N.B. and A.A., 2016 ONSC 2751, at paragraph 257:

More broadly, while I am aware of the prevalence of K.C.’s issues within the native community, it is of little assistance to the court – and of no assistance to the children – to wait until the end of a Crown wardship trial and then raise the native issue with no evidentiary foundation.

a. Parenting issues are complex.

b. Child protection issues are complex.

c. An overlay of native or aboriginal issues only serves to add to the complexity.

d. The Child & Family Services Act specifically mandates certain requirements, approaches and considerations in relation to native children and native families.

e. As a judicial system we try our best to be attuned to all of this.

f. But ultimately judges have to decide each case based upon evidence. And – native or not – the evidence against this mother was overwhelming. The evidence presented by the mother amounted to little more than a promise to get control of her life in the future.

g. K.C. had every opportunity to immerse herself in native community services to address her many problems, to try to get her children back. She chose not to do so.

h. K.C. could have presented evidence at trial addressing the relevance of her self-identified native status with respect to her past. And with respect to her future plans or proposals for these children. She elected not to do so.

i. K.C. could have presented people from the native community to identify real proposals to care for and protect these children. She was apparently unable to do so.

j. Our compassion toward and recognition of the importance of native heritage and families remains unwavering. But special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children.

[23] I agree with all of the considerations that are set out by Pazaratz J. in the above-quoted paragraph. In addition, I do not feel that the legislative scheme put in place to recognize the importance of Native heritage and culture for children who have been designated as Native can be meaningfully applied in the abstract. There must be evidence of the nature of the involvement of the child’s family in the Native community. The mere claim that someone is Native does not allow the court to consider the relevant factors within the legislative scheme, without some evidence of what is important to this family, this child, and the Aboriginal community the child is said to be a member of.

[24] In this case, once the designation of Native status was made by Chappel J., the Society made every effort to see if any members of the Métis community would participate in the litigation or provide the family with a placement option. No one came forward. The Society sought the assistance of the Native and Family Services in Toronto in order to access other resources, to no avail.

[25] When T.V. expressed to the family services worker at the Society that he was anxious, sad and stressed, the worker suggested that he contact his family doctor and the Native Centre in Hamilton. There is no evidence that he followed through with any of these suggestions.

[26] The Society asked the parents if they had any family members who were willing to assist them or put forward a kinship plan. The maternal grandmother offered. After investigation, she was deemed inappropriate as a placement. No other kinship plan was put forward.

[27] Other than telling the court the name of his mother and his siblings, the father did not give any evidence about the extent of any relationship he may have or had with members of his family. He stated that he did not know his father. He stated that he has contact with some of his family members by social media such as Facebook and at times by telephone. He did not describe his family background at all. The only reference to his youth was when he stated that he was an alcoholic at an early age and that got him in trouble with the law. He had a criminal conviction when he was approximately 21. He also had a criminal conviction for assault on G.H. when he was 27. T.V. testified that he obtained a high school equivalency certificate. He went back to school in Ontario to become a welder. He has taken courses given by Toastmasters for public speaking.

[28] What I have outlined above is the totality of the evidence this court was given relative to T.V.’s background. He did not give any testimony about his Aboriginal background or any connections that he had or has in that community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program.

[29] The Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA), sets out its “paramount” and other purposes in section 1 as follows:

Paramount purpose

1. (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children’s services should be provided in a manner that,

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

[30] In the Children’s Aid Society of Ottawa v. L.F. and L.F., 2016 ONSC 6750, the Divisional Court made the following comment with respect to the consideration of the best interest of the child, at paragraphs 7-8:

[7] … 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.

[31] Justice Sloan had to consider an appeal of a child protection matter from the Ontario Court of Justice in M. (C.M.E.) v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONSC 1942. In that case, the appellant asserted that the trial judge did not consider the Aboriginal heritage and culture of a child whose mother was Native. He stated, at paragraphs 19-21:

[19] It does not appear however, that much evidence was adduced at the trial, relating to the Appellant mother’s native heritage, which the Appellants now submit, should have been an extremely important consideration in the trial Judge’s decision.

[20] Since the parties were represented at trial by a lawyer and this issue was not raised, I would not overturn the trial judgment based on the arguments that I have heard on this issue.

[21] Even if the trial judge had been directed to Section 37(4) and Part X of the Child and Family Services Act, I find on the facts of this case that those sections of the Act have very little, if any, application.

[32] I find that the case before me is similar with respect to the court’s lack of evidence in order to meaningfully attach the Aboriginal heritage protections to this family and this child.

Legislative Scheme in the Context of Native Status

[33] Justice Mackinnon dealt with balancing the preservation of Aboriginal culture and the legislative scheme in the CFSA in Children’s Aid Society of Ottawa v. F. (K.), 2013 ONSC 7207. The case before her lingered in the courts for an extended period of time. The children, in that case, came into care on February 4, 2013. Justice Mackinnon heard a status review application in September and October of 2013. She made an order for Crown wardship with supervised access to the maternal grandmother. She dismissed the maternal grandparents’ cross-application seeking placement of the children with them. She also dismissed the mother’s cross-application seeking placement of the children with her or, if Crown wardship was ordered, access in her favor.

[34] Justice Mackinnon’s order was appealed to the Divisional Court. That appeal was heard on October 31, 2014. The Appeal was allowed and the Crown wardship order was set aside. The Divisional Court returned the matter to the trial judge for a reconsideration of her order in view of the application of s. 37(4) of the CFSA. The Divisional Court also ordered that for the purposes of the reconsideration the parties were entitled to adduce further evidence and make further submissions relevant to s. 37(4) in accordance with the directions to be given by the trial judge. Section 37(4) states:

Where a person is directed in this Part to make an order or determination in the best interest 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, persevering the child’s cultural identity.

[35] At the reconsideration hearing (judgment reported at 2015 ONSC 7580), the parties did submit new evidence that was not presented at the original hearing, that is, evidence with respect to the Aboriginal ancestry and Algonquin descent. The hearing also dealt with a constitutional question that was raised by the maternal grandparents and supported by the mother, whether the definitions of “Indian” and “native person” contained in the CFSA were unconstitutional in that they:

a) Were inconsistent with the definition of “Aboriginal Peoples of Canada” contained in s. 35(2) of the Constitution Act, 1982; and

b) Contravened s. 15(1) of the Charter in that they discriminate on the basis of Indian status and native community of origin (and this is a violation of s. 15(1) cannot be “saved” under s.1).

[36] In assessing the children’s Aboriginal ancestry and culture, Mackinnon J. was faced with evidence that the maternal grandfather was Aboriginal, of Algonquin descent. His evidence was that both his paternal grandmother and great-grandmother were “pure Indian”. He was not raised with his heritage. He did involve his own children in some cultural events, but primarily before his daughter was born. He felt that he owed it to the grandchildren to get back into the Native way of life. Representatives of that community attended court and testified in support and testified in support of the grandfather.

[37] In examining how courts consider a person’s Aboriginal ancestry, Mackinnon J. referred to a number of seminal Supreme Court of Canada decisions, beginning at paragraph 59 of her reasons:

[59] The moving parties rely on the Supreme Court of Canada’s sentencing decisions in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 [Gladue], and R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13 [Ipeelee], which directed courts to take judicial notice of systemic and background factors affecting Aboriginal people. At para. 60 of Ipeelee the Supreme Court of Canada said:

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.

[60] I do not agree that the direction to take judicial notice of these systemic and background factors enables me to infer that a significant disadvantage is caused to those Aboriginals who do not come within the definitions of “Indian” or “native person” in the CFSA.

[61] Further, it is difficult to apply the context referred to in the above passage from Ipeelee to the disposition stage of a child protection hearing. The child protection court is directed to order an available disposition in the best interests of a child. Taking judicial notice of the historical reasons that may have contributed to an Aboriginal parent’s current circumstances is less likely to be helpful to the child protection judge faced with the decision of whether to return a young child to the parent than it may be to a sentencing judge grappling with whether to order a custodial sentence and, if so, its duration.

[62] This was noted by the Ontario Court of Appeal in C.M. v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, at para. 7. The Court decided that Gladue principles did not affect the determination of whether an access order would or would not be appropriate.

[63] It seems to me that a child protection court may benefit more were it able to take judicial notice of the systemic and background factors contributing to the over-representation of Aboriginal children in care and the experiences of native communities with child welfare authorities. Pardu J., as she then was, addressed this context in S.B. and B.R.M v. Children’s Aid Society of Algoma and Mississauga First Nation, [2002] O.J. No. 101 (S.C.). This was an appeal from an order for Crown wardship without access to the parents. The position of the Band was that access should continue so as to maintain the child’s connection to her Aboriginal community and to avoid the long-term consequences of cultural dislocation and estrangement from her roots, including from her siblings who resided on the reserve.

[38] Justice Mackinnon also commented, commencing at paragraph 65 of that decision:

[65] Taking judicial notice of these systemic and background factors would provide the necessary context for understanding why the provincial legislature has included the special additional purposes and provisions applicable to “Indian” and “native” children. It would not displace the need for a factual foundation on which to assess the issue of whether the impact of the differential treatment caused by sections 3 and 209 of the CFSA is to create “disadvantage”.

[66] In part this is on account of the comparative provisions of general applicability in the CFSA, namely ss. 37(3) and 57(4), which direct the court to consider a child’s cultural background and emotional and other ties to family and community, and, before making an order for society or Crown wardship, to consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family. Judicial notice of the historical context helps to understand why the legislature included the additional, special considerations for Indians and native children, but it does not to speak whether, having regard to the applicability of the general provisions, the non-applicability of the special provisions does create a disadvantage to other Aboriginal children.

[39] After considering many factors, including the above, Justice Mackinnon stated at paragraph 69:

Moysa v. Alberta (Labour Relations Board), 1989 55 (SCC), [1989] 1 S.C.R. 1572, at p. 1580, stands for the principle that a court should not deal with abstract questions, especially in the context of a constitutional question. Absent a more complete record I conclude the s. 15 claim should not succeed. This is not to say that this would be the result on a fuller evidentiary record, but merely that the issue, on this record, is too theoretical.

[40] The Divisional Court in Children’s Aid Society of Ottawa v L.F., 2016 ONSC 2487, dismissed the appeal of Justice Mackinnon’s decision. Justice Ray stated, at paragraphs 8-10:

[8] The children are now 4 and 5. The legal limbo continues.

[9] I am satisfied that the constitutional challenge raised by the appellants is irrelevant to the issues in this case. All other matters had been thoroughly canvassed by the Divisional Court. The appellants are not entitled to an appeal based on issues beyond the s 37(4) issue; and that was disposed by the trial judge. It appears that at the time counsel were all in agreement at the trial that s 37(4) CFSA had no application.

[10] The respondent’s motion is granted and the appellants’ motion is dismissed. The appeal is dismissed for delay.

[41] In the case before me, Chappel J. came to a different conclusion than Mackinnon J. did in the case of K.F. However, it is my view that I do not need to weigh in on the constitutional issue. I am also of the view that the declaration of Chappel J. that E.D.V. has Native status for the purposes of this Child Protection proceeding has little impact on my ultimate determination.

[42] I find that there is no evidentiary record in this case on the basis of which I can assess and balance the importance of the preservation of the Aboriginal heritage of the child when considering all other factors set out in the CFSA. My reasons for that conclusion are:

a) There is a lack of evidence from anyone from the Métis Community with respect to any foundational history.

b) There is no evidence of what the court could or should take judicial notice of.

c) The Eastern Woodlands of Nova Scotia Métis community specifically declined to participate in this matter after being served on more than one occasion with notice of the constitutional question before Chappel J. and her decision.

d) The Eastern Woodlands of Nova Scotia Métis community stated clearly that it did not have anyone to put forward as potential placement options for the child.

e) The Eastern Woodlands of Nova Scotia Métis community stated that it supported the plan of the CCAS to adopt the child E.D.V.

f) The CCAS was aware of the involvement of the Métis Ontario Healthy Babies Healthy Children program with this family and supported this involvement;

g) The CCAS attempted to mobilize other Native resources to assist this family by contacting the Native Child and Family Services in Toronto with that specific request.

[43] The CCAS encouraged, and the foster parents committed to, exposing the child to and educating the child on an age-appropriate basis about the child’s Aboriginal heritage and culture. On the evidence before me, there was nothing else that could have been done having regard to the events that unfolded. The matter of Native status did not even come up in this litigation until the commencement of the summary judgment motion originally spoken to on March 30, 2016, approximately 11 months after the birth of the child. The child protection hearing was then further delayed for six months until the constitutional question was determined. The trial commenced before me approximately three months later. At that time, little to no case-specific evidence was presented by the father T.V. relative to his, and by extension his child’s, Aboriginal heritage.

[44] In the case before me there is no evidence relating to the uniqueness of the child’s particular Aboriginal culture, heritage or traditions for me to take into account. As far back as May 5, 2016, the Métis communities contacted made it clear to the court that they were not going to participate in the determination of the constitutionality of peoples of Métis background not being included in the CFSA definition of “native”. They also made it clear that they had no foster homes or any other placement for consideration.

[45] The complexities of integrating Aboriginal issues in the child protection context are many. The need for such integration is essential. The legislature has recognized the need to include many safeguards in the CFSA relative to protecting children who are designated as Native children. In the very recent case of Brown v. Canada (Attorney General), 2017 ONSC 251, Belobaba J. highlighted both the complicities and the needs for both legislative and court consideration of these issues. He was dealing with a civil class action proceeding. The proceeding deals with, as its foundational facts, events that occurred between 1965 and 1984. During that period thousands of Aboriginal children were apprehended and removed from their families and placed in non-Aboriginal foster homes or adopted by non-Aboriginal parents.

[46] In the course of the case, this group of children were referred to as “scooped,” being children who had lost contact with their families and their Aboriginal cultural heritage. Justice Belobaba stated, at paragraphs 6-7:

[6] … Neither the children nor their foster or adoptive parents were given information about the children’s aboriginal heritage or about the various educational and other benefits that they were entitled to receive. The removed children vanished with “scarcely a trace.” As a former Chief of the Chippewa’s Nawash put it: “[i]t was a tragedy. They just disappeared.”

[7] The impact on the removed aboriginal children has been described as “horrendous, destructive, devastating and tragic.” The uncontroverted evidence of the plaintiff’s experts is that the loss of their aboriginal identity left the children fundamentally disoriented with a reduced ability to lead healthy and fulfilling lives. The loss of aboriginal identity resulted in psychiatric disorders, substance abuse, unemployment, violence and numerous suicides. Some researchers argue that the Sixties Scoop was “more harmful that the residential schools” … [citations omitted]

[47] Commencing at paragraph 47, the court further stated:

[47] The uncontradicted evidence of Mr. Najiwon and Mr. Jones was that if they had been consulted they would have suggested that some contact be maintained with the removed children during the post-placement period so that they would know that they were loved and “could come home”; and that the “white care-givers” be provided with information about the removed child’s Indian Band, culture and traditions and the various federal educational and financial benefits that were available to the Indian children.

[49] If these ideas and the suggestions had been implemented as part of the extension of the provincial child welfare regime – that is, if the foster or adoptive parents had been provided with information about the aboriginal child’s heritage and the federal benefits and payments that were available when the child became of age, and if the foster or adoptive parents had shared this information with the aboriginal child that was under their care, it follows in my view that it would have been far less likely that the children of the Sixties Scoop would have suffered a complete loss of their aboriginal identity. [citations omitted]

[48] The struggle for courts to do the right thing by always keeping in mind the paramount purpose of the CFSA, considering all of the factors set out in the legislative definition of the child’s best interest and following the legislative scheme when dealing with Native children, is made much more difficult when the evidence is lacking relative to the Native and Aboriginal issues. Nevertheless, I will include some direction in my order that requires the Society and any foster home and future placement to educate the child on his Aboriginal heritage and expose him to his Aboriginal culture. In addition, information relative to any government benefits must be explored and passed on to the foster and or adoptive parents in order to ensure the child may have access to such benefits.

[49] My determination is whether the child is in need of protection and if so, what is the appropriate disposition having regard to the best interest of the child. No one factor that I must consider takes precedence over any other, nor is any one factor weightier than any other factor. The balancing I must do is evidence-based and unique to the evidence properly admitted before me.

The Need for Protection

[50] The child E.D.V. was born […], 2015. He was apprehended from the hospital at birth and has been in the care of the Society since then. The mother G.H. and the father T.V. have had supervised access to the child at the discretion of the Society.

[51] One of the Society’s significant areas of concern with the mother G.H. has been, and still is, her struggles with drug addiction. G.H. admitted in her evidence at this trial that one of the main reasons she decided to support T.V.’s plan to care for E.D.V. on his own is that she continues to struggle with drug issues.

[52] When the child E.D.V. was born, he had both methamphetamines and methadone in his system. The mother G.H. had taken methamphetamines, ecstasy and methadone during her pregnancy. E.D.V. was placed in the pediatric special care nursery in order to deal with respiratory distress. He was hospitalized from his date of birth until June 11, 2015 in the Neonatal Intensive Care Unit at McMaster Children’s Hospital. Since the child’s discharge in June 2015, he has been with the same foster home and has been followed up medically with outpatient care.

[53] E.D.V. is now 19.5 months old and is meeting all of his milestones with the exception of some speech deficits. With assistance this should be resolved in a relatively short period of time.

Society’s Position

[54] The Society seeks a finding that the child is in need of protection pursuant to section 37(b)(i) and (ii) of the CFSA. It seeks an order for Crown wardship without access.

Parents’ Position

[55] Until May 2016 the parents sought an order that the child be returned to both of them. They planned to continue to reside together and parent E.D.V. jointly.

[56] However, in May 2016 the father set out a new plan of care in an affidavit sworn May * 2016. The affidavit stated that he now planned to parent the child alone.

[57] The Society has the following concerns related to the parents:

Mother:

a) Chronic substance abuse and addiction to opiates and methamphetamines;

b) Chronic criminal involvement resulting in multiple incarcerations;

c) Inability to keep a safe, clean and stable home that is not frequented by persons of concern who could cause and have caused harm to the children; and

d) Lack of follow-through on suggested services and programs recommended: addiction counselling, couples and relationship counselling, parenting programs and home management assistance.

Father:

a) Inability to sever his relationship with the mother;

b) Mental health issues of anxiety and bouts of depression that he has not followed through with treatment;

c) Inability to keep and safe, clean and stable home that is not frequented by persons of concern who could cause and have caused harm to the children; and

d) Lack of follow-through on suggested services and programs recommended: addiction counselling, couples and relationship counselling, parenting programs and home management assistance.

[58] The history that is set out “Past Parenting Brief” is demonstrative of chronic drug use by the mother and neglect by the parents. Their home has been characterized as unclean, cluttered, unsafe and chaotic. The brief is replete with references to frequent visitors to the parents’ home creating a chaotic lifestyle and unsafe environment in the home. On one occasion, what has been referred to as “a date rape drug” was left in the open in the home by one of the frequent visitors of the parents; the child T.J.V. ingested the drug and had to be hospitalized as a result.

[59] An individual named M.M., who is the father of G.H.’s oldest child I.M, has serious drug and mental health issues. He has also been convicted of very serious crimes, including robbery and assault. He has a significant struggle with drug addictions. Despite this background, M.M. has been a frequent visitor to the parents’ home. Even when the parents were made aware that the City of Hamilton had issued a “no trespass order” against M.M., both G.H. and T.V. stated that his son I.M. was residing with them and they could not keep M.M. him away from his son.

[60] M.M. attempted to commit suicide in the home of the parents. This is a serious concern as the children were sleeping in the home. The parents did not appreciate the significance of this issue. They commented that the children did not wake up and see anything and therefore were not affected. This issue is that the parents lack insight into the impact and potential harm to their children of having someone frequent their home with such severe mental health, anger management and drug issues.

[61] The mother’s drug addiction has been chronic. Her criminal involvement has led to periods of incarceration. The home that G.H. and T.V. maintained has been characterized by everyone working with this family, from time to time, as being unsafe, cluttered, chaotic and unclean.

[62] The parents have consistently had difficulties with time management. Their older children had extremely poor attendance at school. The oldest child, who will be 18 soon, does not have his high school credits.

[63] The parents stated that they were too loving toward their children and would give in to them when they said they did not want to go to school. That evidence only demonstrates their lack of insight into proper parenting, which includes a measure of discipline. They were often late for visits with the child. This was in spite of the City of Hamilton home manager, Karen Morgan, going to what I consider extreme lengths to either call them when they had access to a phone or actually attend at their residence to wake them up.

[64] Although they have made some gains in their management of their household with the extensive assistance of a home manager and the Healthy Babies Healthy Children coordinator (when they chose to engage her), the gains have been sporadic and regression has been a constant theme since 2012.

[65] The Society’s evidence relative to the state of the home was clearly given by the family service worker. I found her evidence to be straightforward and it had the ring of truth about the level of concerns with respect to the unsafe and unhealthy state of the home.

[66] Ms. Carmazan described the home as most consistently untidy, cluttered, dirty, and unsafe. She described seeing wires hanging from the ceiling in the basement. There was a work order issued to correct this problem. However, there was a letter from the City that was filed in evidence that indicated that the worker who attended the home to fix this problem could not do so due to the state of clutter and uncleanliness. That unsafe situation continued for many months.

[67] There was a leak coming from one of the bathrooms. Once again, this work needed to be corrected but could not be corrected as result of the state of the home. The city’s Low Rental Property manager testified that the parents needed to vacate the home in order for all of the necessary work to be completed. The city offered both the mother and the father alternate residences. They both insisted, until the trial started, that they did not want to live in the downtown area as they did not want not be subjected to people who might be “triggers” to their addictions. T.V. sated that meant his historical alcoholism and G.H. indicated that meant her drug addiction.

[68] T.V. constantly minimized the issues. He agreed that there were wires hanging the basement. He stated they were cable wires. This is not supported by the evidence relating to the work order to fix the wiring problem. He stated that that the clutter was not a significant problem and it was due to him trying to get the home ready for his child to return and not due to his inability to manage the household. This is not consistent with the many years of noted concerns by the CCAS, both when dealing with the protection concerns related to the parties’ older children and E.D.V.

[69] The parties’ relationship has been a significant concern historically. They have been together for approximately 11 years. Except for periods of time when G.H. has been incarcerated, they never separated. Even after T.V. filed his plan of care seeking to parent E.D.V. alone, the parties did not separate. T.V. submits that it is very hard for him to separate. Both T.V. and G.H. still love each other. He asserts that although it will be hard, he is prepared to separate for the good of his child. I do not have any confidence that the parties can live separate and apart. When G.H. was incarcerated from approximately January to July 28, 2016, E.T.V. admitted to the Society worker that he found it very difficult. He missed G.H. and her assistance in managing the household.

[70] I do not have any confidence that T.V. can parent a child safely even with guidance on meeting the child’s needs. He claimed that he has close friends who are willing to assist him. He specifically mentioned his neighbours A.M. and her husband. He stated that they would be there for him to help him with his child. Ms. A.M has eight children of her own. Regardless, T.V. did not call anyone to support this claim. I find that since T.V. put great emphasis on the fact that he had supports in the community who could assist him to parent alone, he could have and should have called at least one of them. I draw an adverse inference that any evidence they might have been able to give would not assist T.V. as he claimed it would.

[71] Since the birth of E.D.V., the Society has made multiple recommendations that the parents engage services offered in the community and take a number of programs. The services and programs either recommended or otherwise were involved with the parents for differing lengths of time include:

a) Addiction services (G.H.)

There was no evidence presented by the parents that G.H. engaged in such services.

b) Attend a parenting course (both parents)

Both parents testified that they completed the course despite not getting a certificate of completion. Nevertheless, the most significant evidence is missing and that is that they benefited from any program of parenting that they may have taken.

c) Attend individual counseling at Catholic Family Services (both parents)

Neither parent gave evidence that they engaged in private counselling to deal with their emotional issues: for the mother, her history of trauma and for the father, possible impact of fetal alcohol syndrome.

d) Household management and time management

The parents did engage the services of the Métis Nation Healthy Babies Healthy Children to work on time management, organization of their home and navigating demands of the child protection litigation.

Until this trial, the father has not had any contact with Ms. Appel, the coordinator of Métis Ontario Healthy Babies Healthy Children program since June 2016. It was only when Ms. Appel came to testify that T.V. told her that he wanted to re-establish his involvement with her.

e) The City of Hamilton home management services of Karen Morgan

Aside from the Society family service worker, Ms. Carmazan, Karen Morgan worked with G.H. and T.V. over an extended period of time. I find that Ms. Morgan made an effort to minimize the challenges of the parents during her direct examination. She stated that the parents’ home as characterized as being dirty, cluttered and at times unsafe. She agreed that the parents made gains and then regressions in their ability to manage their household. It was most significant to me that after her helping this family for approximately ten months, in April 2016 she noted again that the home was cluttered and dirty, there were bike parts in the family room that blocked an egress to the home. T.V. attempted to excuse the state of the home by stating that he had been painting the child’s room in preparation for his return. Ms. Morgan stated that she told him that if he did not keep the home clean and uncluttered he would not get his child. She told him that what he was doing was “putting lipstick on a pig”.

[72] The challenges affecting T.V. and G.H. have been chronic. The mother G. H. has significant challenge related to addiction to serious mind-altering, illicit drugs. She has had a lengthy addiction to opiates and now methamphetamines. She has simply not been able to place herself in a position to parent given her addiction issues. In my view there is no reasonable prospect that she will be able to parent a child within any acceptable horizon.

[73] With respect to T.V., until very recently he was presenting a joint plan with G.H. He did not submit a separate plan until sometime in October 2016. At that time he simply indicated that he wanted to solely parent the child. There was no mention in his plan of the extent to which his relationship with G.H. would continue. His evidence at trial with respect to any insight he might have relative to the addiction issues of G.H. was vague and unrealistic.

[74] Neither G.H. nor T.V. cooperated with the Society to a degree that would satisfy me that they have dealt with the issues that place E.D.V. at risk of physical harm and emotional neglect. They did not follow through with couples counselling. They did not follow through with taking parenting courses as recommended by the Society. Although they have had extensive assistance from the Métis Healthy Babies Healthy Children program and the City of Hamilton, the Children’s Aid Society and the Catholic Children’s Aid Society, they have not been able to achieve a level of organizational skills and the knowledge of parenting in order to demonstrate that they could provide a safe and healthy home environment. I find that E.D.V. is a child in need of protection pursuant to the CFSA, s. 37(b)(i) and (ii).

Disposition

[75] E.D.V. cannot afford wait until G.H. and T.V. are in a position to parent. The father has not demonstrated sufficient gains in his ability to parent, despite having services available to him since at least 2012. These parents love this child. However, love alone is sometimes an insufficient force to bring a parent into a position to parent in a manner that serves the child’s best interests.

[76] This child has been in the care of the same foster home since his release from hospital in June 2015. These are the only parents this child has known and he is thriving despite having a very difficult start to his life.

[77] It is in the best interest of E.D.V. to be made a Crown ward.

Access

[78] Once a child is made a Crown ward there is a presumption that there should be no access. The onus is on the parents to rebut that presumption. s. 59(2.1) of the CFSA provides for the following:

A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s future opportunities for adoption.

[79] In this case, the parents did not provide any evidence that access to E.D.V. would be meaningful and beneficial. The only evidence presented was that the parents attended access twice per week for 1.5 hours per access session. For the most part access went well. The parents demonstrated love and affection for the child. On the other hand, the access supervisor and the family service worker were somewhat critical of the lack of meaningful engagement by the father or the mother. The father played with the child; however, he did not stimulate the child in an age-appropriate manner. This is a child who has speech delays. The father often played with the child and only made noises and sounds instead of making an effort to use words and assist the child in overcoming the deficit the child has. The father demonstrated a lack of insight into this issue.

[80] As I stated earlier, there is no question the parents love the child. However, they have had many years to demonstrate that they have made sufficient gains with the challenges they have to parent E.D.V. I am satisfied on a balance of probabilities that the parents have not demonstrated that they can parent this child without serious risk of harm to him, and there is no evidence any access would be beneficial and meaningful to him.

[81] More than anything else this child needs permanency. Given the father’s testimony that he will never stop fighting for the child it is very clear that access to the father will also impair the adoption of this child.

[82] Accordingly my order is:

1. The child is made a Crown ward with no access;

2. The Society is directed to make every effort to ensure that any foster parent and/or adoptive placement is be willing to educate the child on his Aboriginal heritage and culture and to expose the child to this culture on an age-appropriate basis; and

3. The Society is further directed to make every effort to ensure that any foster parent and/or adoptive parent provides the child with knowledge of any governmental benefits available to the child as a result of his Native status.

Harper, J.

Released: February 24, 2017