Windsor-Essex CAS v. J.G., 2018 ONSC 4137

COURT FILE NO.: FS-17-17497

DATE: 20180629

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Windsor-Essex Children’s Aid Society

Respondent in Appeal

– and –

J.G.G.

Appellant in Appeal

A.S.

Respondent in Appeal

Aamjiwnaang First Nation

Respondent in Appeal

Helen Trentos, for the Windsor-Essex Children’s Aid Society, Respondent in Appeal

J.J. Avery, for J.G.G., Appellant in Appeal

Rayleen Cantin, for A.S., Respondent in Appeal

Ronald C. George, for Aamjiwnaang First Nation, Respondent in Appeal

HEARD: January 18 and 19, 2018

RESTRICTION on publication

Pursuant to section 87(8) of the Child, Youth and Family Services Act no person shall publish or make public information that would identify the child who is the subject of a child protection proceeding or the child’s parent or foster parent or a member of the child’s family. This judgment complies with this restriction so that it can be published.

REASONS FOR DECISION ON APPEAL

verbeem J.:

Nature of the Appeal

[1] The appellant father, J.G., appeals from the judgment made by the Honourable Mr. Justice Douglas W. Phillips of the Ontario Court of Justice, dated February 24, 2017 (with written reasons for judgment released on that date), pursuant to which a final order of custody with respect to J.G.’s biological child, S.S.-G., born […], 2014 was made in favour of the child’s maternal grandmother, A.S. The terms of the judgment also provide for access between the appellant father and the child once per week over the internet through Skype or Facebook. The trial judge ordered that A.S. facilitate such access by ensuring that the child be available for same, and that she provide photographs and videos of the child to the appellant father one time per month.

[2] The judgment was made following an eight-day trial in February 2017 (almost immediately after the child’s third birthday) in the context of a Status Review proceeding commenced by the Windsor-Essex Children’s Aid Society (the “Society”) pursuant to the provisions of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (“CFSA”). The trial judge found the child, S.S.-G. to be in need of protection in accordance with s. 37(2)(i) of the CFSA and he determined that the custody order referred to above, accorded with the child’s best interests.

[3] At the time of trial, the child resided with and was in the care of his maternal grandmother A.S., as a result of orders made in the context of a child protection proceeding initiated by the Society, which preceded the Status Review proceeding. Specifically, the child was placed in the interim care of A.S. pursuant to an order made July 22, 2015. A protection finding was eventually made in the course of that proceeding and the disposition that followed that finding continued the child’s placement with A.S., subject to supervision, pursuant to the final order of Ross J. dated November 9, 2015. Despite receiving notice of the original child protection proceeding, the appellant father, J.G., did not participate in it, nor did he deliver proceedings or a Plan of Care. Instead, was noted in default. J.G. did participate in the Status Review proceeding, in which he ultimately sought an order placing the child in his care.

The Parties

[4] S.S.-G. is the biological child of J.G. and B.S. (the daughter of the respondent A.S.). S.S.-G. was originally apprehended by the Society from the care of his mother B.S. on July 13, 2015. Unfortunately, B.S. passed away on February 25, 2016, apparently as a result of bacterial pneumonia.

[5] The appellant, J.G. is a full status Indian and a member of the Aamjiwnaang First Nation (“the Band”). J.G. resides on Aamjiwnaang First Nation territory. The child S.S.-G. has Native status and is also a member of the Aamjiwnaang First Nation.

[6] The Band was served with both the Society’s original protection application and its subsequent Status Review application. The Band did not deliver an answer or put forth a Plan of Care for the child in either proceeding. The Band was noted in default in the Status Review proceeding. A representative of the Band appeared on the first day of trial and unsuccessfully requested an adjournment for the purpose of retaining and instructing counsel. Instead, the trial judge granted leave to the Band Representative to sit at counsel table and to remain in court throughout the trial, in which she ultimately gave evidence.

[7] Although the child was represented by the Office of the Children’s Lawyer (“OCL”) throughout the Status Review proceeding, the trial judge made an order permitting OCL counsel to withdraw from the trial after opening statements.

The Appellant’s Remedial Request

[8] The appellant father requests that this court exercise its discretion pursuant to s. 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C-43 to substitute the trial judge’s final order of custody and access with an order placing the child in his custody.

[9] Alternatively, he seeks an order that places the child in the care of the maternal grandmother, A.S. subject to Society supervision, for a period of six months and thereafter, transitions the child into his care, subject to the Society’s supervision, for a further period of six months. In the further alternative, he requests an order that a specified schedule transitioning the child to his care be implemented as “an access regime” forthwith, with custody reviewable within six months, without need for a further material change in circumstances.

The Appellant’s Grounds for Appeal

[10] Through his notice of appeal and factum, the appellant advances a multi-faceted challenge to the trial judge’s disposition and the manner in which he arrived at it. Originally, the appellant asserted that the trial judge committed errors in law and principle in the manner in which he: conducted the trial; interpreted and applied the relevant provisions of the CFSA; determined the child’s best interests; considered the child’s Native status in arriving at his custodial disposition; made findings of credibility with respect to both the appellant and the respondent maternal grandmother A.S.; and the manner in which he weighed the evidence at trial.

[11] At paragraphs 16–26 of his factum the appellant framed eleven distinct “Issues in appeal” (as he describes them) as follows:

1. Did the Honourable Trial Judge err by setting a standard (“ideal situation”) that is not the legal test for placement decisions?

2. Did the Honourable Trial Judge err by thwarting the intention of s. 57(4) and s. 57(5), especially regarding “shall” place Indian children with one of the enumerated possibilities?

3. Did the Honourable Trial Judge err by placing an unreasonably higher weight on the status quo time the child had been with the grandmother in a supervision situation and equating the grandmother with ‘the person from whom the child had been removed’?

4. Did the Honourable Trial Judge err by relying upon speculative theory by the grandmother regarding possible emotional harm to the child having contact with the father, yet ignoring accepted negative effects on Indian children of being denied the opportunity to develop positive strong cultural self-identity through being directly raised within their own Native family and community?

5. Did the Honourable Trial Judge err by ignoring the fact that despite the same criminal record outlined in the trial in Windsor, [J.G.] was found a suitable parent for his daughters ages one and three years of age by a court of competent jurisdiction in the Sarnia-Lambton Children’s Aid Society matter?

6. Did the Honourable Trial Judge err by refusing to allow more fulsome exploration through cross-examination of witnesses of the grandmother’s involvement with the deceased mother, yet allowing and relying upon speculative conclusions by the grandmother that have no demonstrable basis in fact, were based allegedly in the timeframe before the Status Review and were potentially refutable through cross-examination?

7. Did the Honourable Trial Judge make a reversible err by refusing to allow the Aamjiwnaang First Nation a short adjournment to obtain legal counsel?

8. Did the Honourable Trial Judge make a reversible error by ignoring the extensive resources of the Aamjiwnaang First Nation available to immerse the child in his culture, Ojibwae language and traditions as a full-status member in his own right of the Aamjiwnaang First Nation?

9. Did the Honourable Trial Judge make reversible errors of fact and law by misapprehending relevant, crucial and contrary evidence, denying the opportunity for fulsome cross-examination on issues relevant to the best interest of the child, and relying upon supposition or inaccurate materials?

10. Did the Honourable Trial Judge make an error of principle and law by placing inappropriate reliance upon a promise by the maternal grandmother to do better with her grandson than she had done with her own Indian daughter rather than the immersion in culture, language and community available through the father?

11. Did the Honourable Trial Judge err in principle and law by ignoring evidence that the maternal grandmother was not inclined to follow the judicial application of the terms of the Plan of Care to connect with Aamjiwnaang Band…to ensure the cultural needs of the child are met, and shall ensure the child’s cultural heritage, beliefs and practices are respected by maintaining regular contact with the Band?

[12] The appellant’s asserted grounds for appeal evolved over the course of time. This matter originally came before me on September 27, 2017, and was scheduled as a full day hearing of the appeal. However, the majority of that day was consumed with submissions on, and the disposition of, a series of motions brought by the appellant, the respondent A.S. and the respondent Society for leave to adduce fresh evidence on the appeal. The hearing of the appeal was then adjourned to November 1, 2017, at the parties’ request. Although notice of the original date for the hearing of the appeal was provided to the Band, a representative on its behalf did not appear on September 27, 2017.

[13] In her submissions on September 27, 2017 counsel for A.S. posited that the appellant was deemed to have abandoned certain grounds for appeal as set out in his notice of appeal, because he did not address them in his factum. The parties subsequently attended before Howard J. on October 16, 2017 for an appeal management conference in part, to identify the issues the appellant intended to advance on the appeal’s hearing. The parties did so, and Howard J. made a comprehensive endorsement, on the consent of all parties, which includes a term specifying that the issues on appeal are those which are contained in the factum of the appellant at paragraphs 16–26 subject to:

(a) The issues set out in paragraphs 18, 22, 24 and 21 of the Appellant’s Factum [which are reproduced below] are abandoned:

(i) Paragraph 18: Did the Honourable Trial Judge err by placing an unreasonably higher weight on the status quo time the child had been with the grandmother in a supervision situation and equating the grandmother with “the person from whom the child had been removed”?

(ii) Paragraph 22: Did the Honourable Trial Judge make a reversible error by refusing to allow the Aamjiwnaang First Nation a short adjournment to obtain legal counsel?

(iii) Paragraph 24: Did the Honourable Trial Judge make reversible errors of fact and law by misapprehending relevant, crucial and contrary evidence, denying the opportunity for fulsome cross-examination on issues relevant to the best interest of the child, and relying upon supposition or inaccurate material?

(iv) Paragraph 21: Did the Honourable Trial Judge err by refusing to allow more fulsome exploration through cross-examination of witnesses of the grandmother’s involvement with the deceased mother, yet allowing and relying upon speculative conclusions by the grandmother that have no demonstrable basis in fact, based allegedly in the timeframe before the Status Review and were potentially refutable through cross-examination?

(b) With respect to the issues referred to in paragraphs 16, 17, 19 and 23 of the Factum, the parties understand those issues to be “The Trial Judge erred in law in formulating the test to be applied (para 16) and the particulars of that error or how the Trial Judge erred [are] set out, for example in paragraphs 17, 19 and 23.”

(i) Paragraph 17 of the Factum states:

Did the trial judge err by thwarting the intention of s. 57(4) and s. 57(5), especially regarding “shall” place Indian children with one of the enumerated possibilities?

(ii) Paragraph 19 of the Factum states:

Did the Honourable Trial Judge err by relying upon speculative theory by the grandmother regarding possible emotional harm to the child having contact with the father, yet ignoring negative effects on Indian children of being denied the opportunity to develop positive strong cultural self-identity through being directly raised within their own Native family and community; and

(iii) Paragraph 23 of the Factum states:

Did the Honourable Trial Judge make a reversible error by ignoring the extensive resources of the Aamjiwnaang First Nation available to immerse the child in his culture, Ojibwae language and traditions as a full-status member in his own right of the Aamjiwnaang First Nation?

(c) With respect to paragraph 20 of the Factum the parties understand that the issue to be “The Trial Judge erred in the weight he gave to the appellant father’s criminal record, as referenced in paragraphs 100-101 of the Trial Judge’s Reason for Judgment.”

(d) With respect to paragraph 25 of the Factum, the parties understand that the issue to be “The Trial Judge erred in finding that the respondent in appeal [A.S.] “was committed to embracing the child’s heritage and ensuring that his cultural needs are met” and by placing “considerable reliance” on that finding, as set out in paragraphs 70-71 of the Trial Judge’s Reason for Judgment.

(e) With respect to paragraph 26 of the Factum, the parties understand that this is not a separate issue per se, but is an example of how the trial judge erred as per paragraph 25 of the Factum. Paragraph 26 of the Factum states:

Did the Honourable Trial Judge err in principle and law by ignoring evidence that the maternal grandmother was not inclined to follow the judicial application of the terms of the Plan of Care to connect with the Aamjiwnaang Band to ensure the child’s cultural heritage, beliefs and practices are respected by maintaining regular contact with the Band.

Justice Howard’s endorsement clarifies that the “commitment” set out in paragraph 26 of the Factum refers to paragraph 9 of the Plan of Care before Ross J., as referenced in paragraph 26, at pp. 12–15 of the Reasons of the trial judge.

(f) There were to be no issues argued other than those identified in the endorsement.

[14] Finally, the appellant asserts that the fresh evidence adduced on this appeal undermines many of the trial judge’s factual determinations that were essential to his ultimate finding that it was in the child’s best interests to grant A.S. custody. In his view, the fresh evidence considered with the evidence at trial, justifies this court substituting the trial judge’s custody order with one of the three dispositions proposed by the appellant and set out above.

The Band’s Involvement and Position on Appeal

[15] The Band was noted in default in both the original protection proceeding and the Status Review proceeding. Despite the Band receiving notice of the original date scheduled for the hearing of this appeal, a representative on its behalf did not appear. The appellant’s grounds for appeal were narrowed and delineated at the appeal management conference held before Howard J. on October 16, 2017. The Band did not participate in that conference. The appeal was rescheduled to be heard on November 1, 2017.

[16] On October 27, 2017, the Band took its first step to become involved in this proceeding by delivering a notice of motion returnable November 1, 2017 requesting leave to participate in the appeal. That motion was heard on November 1, 2017. At that time, the Band’s counsel, Ronald George, advised that the Band was not seeking to disturb the custodial order made by the trial judge. Rather, he submitted that the Band sought leave to participate in the appeal in order to provide this court with greater contextual information relevant to the child’s Native status and his cultural identity, related to his status as a member of the Aamjiwnaang First Nation (including historical information with respect to the Aamjiwnaang First Nation).

[17] During the course of submissions on the Band’s motion, Mr. George agreed that the Band would be bound by the issues/grounds for appeal as they were set out in Howard J.’s endorsement, which included a term that no issues apart from those identified in his endorsement would be advanced.

[18] Ultimately, over the objections of counsel for the respondent A.S., I allowed the Band’s motion and permitted an adjournment of the appeal to allow it to deliver contextual material consistent with the purpose to which Mr. George referred. I also permitted counsel for A.S. to deliver similar material with respect to the Magnetawan First Nation, of which S.S.-G.’s mother and his maternal grandfather were members. The appeal was then scheduled for a two-day hearing (on January 18 and 19, 2018).

[19] Despite the terms of Howard J.’s endorsement, the Band attempted to advance a further issue for appeal in the factum it eventually delivered, as follows:

What is the appropriate course of action to correct the lack of proper and fulsome consideration of the importance of recognizing the merits of Indian and Native culture, heritage and traditions, as it relates to preserving [S.S.-G.’s] cultural identity, especially as it relates to his membership in the Anishinaabe Ojibway Community of the Aamjiwnaang First Nation, as required by s. 37(4) of the Child and Family Services Act?

[20] Through its factum, the Band originally sought an order amending the trial judge’s disposition by changing the terms of access between the child and J.G. and members of his extended family, together with the addition of a further term addressing the child’s participation in activities and interaction with Elders and community members of the Aamjiwnaang First Nation as follows:

The following terms are suggested as forming in whole or in part the order sought:

1. The Order of the Honourable Mr. Justice Douglas W. Phillips, dated February 24, 2017, shall be amended as follows:

a. The Aamjiwnaang First Nation shall intervene as a party to this proceeding.

b. The Aamjiwnaang First Nation is the child’s native community within the meaning of section 39(1) of the Child and Family Services Act.

2. The child, [S.S.-G.] born […], 2014, shall have reasonable and regular contact with and participate with the community representatives and/or elders of the Aamjiwnaang First Nation through the following:

a. Attendance at and participation in at least four (4) community events within the community during each calendar year. These events include, but are not limited to, the Community Pow-Wow, New Year’s Celebration, and events for children organized by local service providers, such as Mnaasged Child & Family Services.

b. Interaction between J.G. and his extended biological family member from Aamjiwnaang First Nation from time to time, when reasonable and appropriate, as facilitated by the Aamjiwnaang First Nation Band Representative or other designated person.

[21] Despite the foregoing, at the commencement of the appeal on January 18, 2018 Mr. George advised that on the instruction of the current Band Representative V.W. (the appellant’s sister), the Band withdrew its remedial request set out in paragraph 2 above and fully supported the appellant’s position and proposed disposition on the appeal.

[22] Counsel for the respondent A.S. opposed the introduction of the new issue for appeal asserted in the Band’s factum. Her opposition in that regard is well-founded. Through Mr. George, the Band agreed to be bound by the terms of the October 16, 2017 endorsement made by Howard J., which limits the issues on the appeal to those set out therein. To the extent the issue raised by the Band is not embedded in the issues set out by Howard J., it is not properly before the court on this appeal. Accordingly, I will not determine the issue stated in the Band’s factum as a “free-standing” ground of appeal.

Position of the Respondent A.S. and the Respondent Society

[23] Both the respondent A.S. and the Society posit that the trial judge did not err in law, fact, or mixed fact and law. They submit the trial judge’s findings were amply supported by the evidence before him and the disposition he made was reasonable and correct, in the context of all the circumstances that determined S.S.-G.’s best interests.

[24] They submit that in arriving at his findings, the trial judge expressly articulated and considered: both the appellant and the child’s Native status; the appellant’s Native community; and his extended relatives. He considered the evidence before him adduced by the appellant, the then Band Representative (Laura Rogers) and the child’s paternal aunt, V.W., all of whom gave evidence with respect to Native and Indigenous culture and the teachings, traditions and practices of the Aamjiwnaang First Nation. He also considered their respective evidence concerning the community services and resources available to the child through the Aamjiwnaang First Nation. The totality of this evidence was weighed together with other factors relevant to the child’s best interests and the trial judge made specific findings which ought to be afforded deference by this court.

[25] Finally, they submit that the fresh evidence on appeal does not alter the factual matrix that was before the trial judge to an extent that warrants this court substituting its view for that of the trial judge.

Procedural History of the Protection and Status Review Proceedings and Factual Overview

[26] The Status Review proceeding before the trial judge followed a final order made by Ross J. dated November 9, 2015, in which she found S.S.-G. in need of protection pursuant to s. 37(2)(b)(ii) of the CFSA and placed the child in the continued care and custody of his maternal grandmother, A.S., subject to Society supervision on specific terms and conditions (which are set out in paragraph 28 of the trial judge’s Reasons). Ross J. also ordered that the child’s mother B.S., enjoy supervised access with the child, a minimum of one time per week. The order did not provide for access between the child and the appellant father J.G.

[27] The child’s mother B.S., the appellant J.G. and the Band respectively, failed to deliver an Answer and plan of care in the original protection proceeding. None of them (or a representative on their behalf, respectively) attended before Ross J. on November 9, 2015 and they were all noted in default.

[28] Justice Ross’s final order was made in the context of an agreed statement of facts, the relevant portions of which are fully set out at paragraph 24 of Phillips J.’s reasons and support the following narrative:

a) The child, S.S.-G. was born on […], 2014. At the time of apprehension, [in July, 2015] his biological mother B.S. resided in Windsor, Ontario, but her specific whereabouts in November 2015 was unknown. The child’s father J.G., resided in the City of Sarnia. In May 2014, J.G. was granted one hour per week of supervised access with the child but he had not exercised access since January 2015;

b) The child has Native status and is a member of the Aamjiwnaang First Nation;

c) The child was apprehended from his mother’s care within Essex County, on July 13, 2015, in the context of the following protection concerns:

1. B.S. struggles with drug addiction;

2. B.S. has engaged in criminal activity in relation to her drug addiction;

3. B.S. is unable to maintain a home which is appropriate and free of hazards to the child;

4. B.S. has been diagnosed with ADHD and bi-polar disorder with psychosis (which led to hospitalization in 2013) and she is non-compliant with medication in relation to same;

5. On July 22, 2013, when B.S. was 17 weeks pregnant with S.S.-G., she was admitted to the psychiatric ward of a Windsor hospital for 72 hours, secondary to a diagnosis of psychosis. At that time, she was homeless and tested positive for methadone and alcohol. On discharge in August 2013, she admitted herself to a supportive shelter but left that environment days later and moved to Sarnia where she resided with J.G;

d) From August 14, 2013 to February 20, 2014, B.S. received services from the Sarnia-Lambton CAS;

e) The child. S.S.-G., was born in Sarnia on […], 2014 addicted to methadone. He remained in a neonatal intensive care unit for two weeks while he was weaned off that substance;

f) In February 2014, a child protection worker from the Sarnia-Lambton CAS advised the Society that B.S. had relocated to Windsor with the child, in order to live with the child’s maternal grandmother, A.S;

g) Beginning in March 2014, B.S. worked with a Society family service worker and received education in relation to infant care and encouragement and support to access mental health services. B.S. continuously met with the Society worker on a scheduled and unscheduled basis and no concerns were noted, apart from her need to continue the foregoing services. Following the child’s birth: B.S. refrained from consuming drugs for a period of time; she attended scheduled methadone appointments; and all drug screening/testing of B.S. yielded negative results. B.S. also participated in services provided through the Healthy Babies Healthy Children program;

h) In March 2015, the child’s maternal grandmother, A.S., expressed concerns to a Society worker that B.S. had relapsed and was using drugs. B.S. admitted to consuming morphine, including at times when she was in a primary care-giving role to the child. The Society enacted a safety plan and B.S. was directed to access specified “relapse prevention counselling.”;

i) At the end of March 2015, B.S. admitted to additional drug use while caring for the child. As a result, a more stringent safety plan was enacted. In mid-April 2015, B.S. was reportedly: meeting with a relapse prevention counsellor; continuing to participate in the Healthy Babies Healthy Children program; and had engaged the services of the Canadian Mental Health Association (“CMHA”) and a psychiatrist. She attended her first recovery meeting on May 1, 2015;

j) In early May 2015, the Society worker raised concerns with respect to the condition of B.S.’s home, where a number of child safety hazards were discovered. B.S. was referred to the Society’s “family well-being program,” to assist her in developing the requisite skills to maintain her home appropriately;

k) On June 9, 2015, the child’s maternal grandmother A.S. contacted the Society and reported concerns about B.S. selling her methadone, which B.S. admitted to doing while the child was in her care. As a result, B.S. and the Society entered into a voluntary contract on June 23, 2015;

l) On June 29, 2015, a Society worker made an unannounced attendance on B.S. related to concerns with respect to alcohol consumption. B.S. disclosed that she was no longer taking her mental health medication;

m) On July 2, 2015, A.S. expressed concerns to the Society over B.S.’s parenting skills;

n) On July 14, 2015, A.S. contacted the Society with concerns that B.S. had relapsed and was using drugs. B.S. admitted that she engaged in drug use for about a week, including snorting opiates obtained from a friend and using opiates while caring for the child. The Society determined that B.S. could no longer care for the child and he would be apprehended from her care;

o) At the time of the child’s apprehension, the maternal grandmother A.S. indicated she was not in a position to present a Plan of Care for the child. However, subsequent to his apprehension, A.S. did put forth a Plan of Care. A referral was made for a kinship assessment and eventually, an ex parte order was made by Ross J. placing the child in A.S.’s temporary care, subject to the Society’s supervision;

p) Both J.G. and the Band were served on a timely basis in July 2015, with the Society’s Application in the original protection proceeding. Neither filed an Answer and/or Plan of Care. A Society family service worker spoke with a representative of the Band on September 9, 2015 and with J.G. on September 10, 2015, when she provided him with an update following a court appearance. The Band Representative advised that the Band would forward correspondence to the Society supporting the relief sought by the Society (i.e. a final order placing the children in the care of A.S.). J.G. advised the Society worker that he was no longer incarcerated and he wanted to put forth a Plan of Care for the child. He was advised to seek legal counsel. The Society was not contacted further by J.G. prior to the preparation of the agreed statement of facts that was eventually before Ross J., when she made the final order on November 9, 2015;

q) B.S. continued to use drugs after the child’s apprehension; she was non-compliant with respect to addiction treatment; she did not provide the Society with a contact number; and she did not contact the Society after August 31, 2015.

[29] Ross J. gave oral reasons for the final order made on November 9, 2015, which are reproduced in their entirety at paragraph 25 of the trial judge’s reasons. Among other things she observed:

The matter comes before the court today to resolve an outstanding protection application in the absence of both named respondent parents, both of whom were served in July, 2015. Neither has filed an answer.

Then, we put on the record earlier today that the father has only had one contact with the worker. That was a result of the worker reaching him by phone after he had been released from custody. This was sometime early September, 2015. He has not been heard from. He is noted in default.

[30] Ross J. concluded that despite the default of both parents, it was not in the best interests of the child to delay the matter. She further observed:

So having found each of the parents in default and then with respect to the First Nation, I was advised this morning that they support continued placement with grandma. Although they have not put anything in writing they, the Band does not wish to disturb that placement by advancing a different plan and this plan is also supported by the Children’s Lawyer, Ms. Labute.

The Plans of Care before the Trial Judge in the Status Review Proceeding

[31] In the context of the Status Review proceeding, the Society delivered a Plan of Care dated March 22, 2016 in which it requested that the court make a finding that the child was in need of protection and a further order placing the child in the custody of A.S. pursuant to s. 57.1 of the CFSA. In its Plan of Care, the Society asserted that the child could not be adequately protected while in the care of either of the respondent parents because B.S. passed away on February 25, 2016 and J.G.: had a very extensive criminal record; had not been in a care giving role to the child since the child’s birth; and had not exercised any access with the child in over one year. The Society detailed a number of its past efforts to protect the child while in the care of the respondent mother.

[32] The Society also advised that the child had Native status and belonged to the Aamjiwnaang First Nation. In its Plan of Care it proposed that A.S. “shall ensure the child’s cultural heritage, beliefs and practices are respected” and that A.S. “will maintain regular contact with the Band.” Society worker Rebecca Ross reviewed the content of the Society’s plan with both A.S. (on March 24, 2016) and J.G. (on March 31, 2016).

[33] J.G. opposed the Society’s proposed disposition. Instead, his Plan of Care contemplated the child being transitioned from A.S.’s care and into the care and custody of himself and his then partner JuGr, with whom he resided. Together they shared two young daughters, who resided with them. J.G. asserted among other things that the child’s best interests would be met by residing in his care since he was the child’s sole surviving biological parent. He further posited that the child’s heritage and cultural identity, as a member of the Aamjiwnaang First Nation, would best be served and developed by his proposed disposition, pursuant to which the child would reside on the Band’s territory and would receive and benefit from the various services offered by the Band.

The Evidence at Trial

[34] The evidence before the trial judge included affidavit and viva voce evidence from: Society worker Rebecca Ross; the child’s maternal grandmother A.S.; and the appellant J.G. The appellant also called viva voce evidence from Amy Vanderlinde, a social worker employed by the Sarnia-Lambton CAS; the child’s paternal aunt V.W., who at the time of trial, was employed as the Education Director for the Aamjiwnaang First Nation; and Band Representative, Laura Rogers.

[35] The trial judge also had the benefit of an extensive volume of documentation, which was received by the court as exhibits, without objection including: an adult probation order made with respect to the appellant J.G. in February 2016; a Windsor Police Service occurrence report dated September 19, 2014; the statement of agreed facts that was before Ross J. on November 9, 2015; several criminal informations upon which the appellant was charged with various criminal offences, spanning from 2011 to 2015; orders made by McFadyen J. of the Ontario Court of Justice in the context of a separate child protection proceeding commenced by the Sarnia-Lambton CAS in Sarnia, Ontario involving the appellant J.G., his then partner JuGr and their two young children; an agreed statement of facts prepared in the context of the Sarnia protection proceeding; a list of programs and services available within the Aamjiwnaang First Nation community; and an agreed statement of facts specifically related to the Status Review proceeding before him.

The Agreed Statement of Facts

[36] The agreed statement of facts made by the parties in the context of the Status Review proceeding before the trial judge indicates, among other things:

a) The child has Indian or Native status and is a member of the Aamjiwnaang First Nation;

b) The child’s biological mother B.S. is now deceased and the child’s biological father J.G. is a member of the Aamjiwnaang First Nation;

c) J.G. has an extensive criminal history and a violent past that includes both assault and manslaughter convictions. J.G. was most recently incarcerated between October 24, 2015 and February 1, 2016. J.G. was also incarcerated between August 13, 2015 and September 2, 2015 and between June 3, 2015 and June 5, 2015.

d) In 1996, J.G. was convicted of manslaughter following the stabbing death of his father’s girlfriend;

e) On February 1, 2016, J.G. was convicted of four offences committed between February 17, 2014 and October 8, 2015, including: an assault committed against the child S.S.-G.’s mother B.S. on February 17, 2014 (less than a month after the child’s birth); an assault with a weapon (liquid from a coffee cup) against his current partner JuGr on October 8, 2015; possession of a firearm while prohibited; and breach of a recognizance;

f) As part of the sentence imposed on February 1, 2016, J.G. was the subject of a three year probation order that prohibits him from communicating or contacting both B.S. and A.S.;

g) B.S. returned to the Windsor area with the child, S.S.-G., on February 17, 2014, following the assault committed against her by J.G. The child was present during the altercation between J.G. and B.S. which occurred on February 17, 2014;

h) On or about September 19, 2014, B.S. contacted Windsor Police to report that J.G. was attempting to contact her via Facebook while he was bound by a recognizance not to do so. J.G. As a result he was eventually convicted of “fail to comply with recognizance” on February 1, 2016;

i) J.G. is currently subject to a probation order expiring on January 31, 2019 which contains a non-association condition in relation to A.S. and B.S. The probation order also contains an exception permitting J.G. to communicate with B.S. and JuGr for the purpose of exercising access in accordance with a CAS order or a family court order;

j) In May 2014, J.G. obtained a court order which allowed him supervised access with S.S.-G. for one hour per week. Access between J.G. and the child commenced on September 19, 2014 and ended in January 2015. Access visits were supervised at New Beginnings Access Centre [in Windsor, Ontario]. J.G. did not have the opportunity to have access with the child during the periods of time he was incarcerated. The child had not been afforded the opportunity to have a relationship with either J.G., JuGr or with any of his half or step-siblings;

k) On July 24, 2015 J.G. was personally served with the Society’s Protection Application in relation to S.S.-G., and its motion to place the child in the Society’s temporary care and custody following the child’s apprehension. J.G. did not participate in the protection proceeding commenced in July 2015. [In his affidavit evidence at trial, J.G. deposes that he was incarcerated when the original protection proceeding was commenced.];

l) On March 2, 2016 J.G. called Society worker Rebecca Ross and requested access with the child, S.S.-G.;

m) The detailed particulars of the narrative with respect to: B.S.’s admission to the psychiatric ward of a Windsor hospital in July 2013; her active use of methadone at that time; and her move to Sarnia to live with J.G. after her discharge from hospital in August 2013;

n) The child S.S.-G. was born in Sarnia, addicted to methadone, on January 24, 2014. He remained in a neo-natal intensive care unit for a period of two weeks while he was weaned off that drug. B.S. received services from Sarnia-Lambton CAS from August 14, 2013 to February 20, 2014. In mid-February 2014 B.S. and the child moved to Windsor to stay with B.S.’s mother, A.S.;

o) J.G.’s current plan is to reside with JuGr, their two children and the child, S.S.-G;

p) JuGr is the biological mother of six children: two of which have been placed with their maternal grandmother; two of which are placed with their biological father (not J.G.); and two of which are in her care;

q) J.G. is the father of the two children that reside with JuGr who were born January 8, 2015 and May 29, 2016, respectively. Pursuant to an order dated February 12, 2016. J.G. currently has supervised access with those children;

r) JuGr tested positive for methadone at the time her youngest child was born in May 2016.

s) The probation order dated February 1, 2016 specifies J.G.’s address as [1XX T. Apt. #X] in Sarnia, Ontario and further obligates J.G. to notify the court or his probation officer in advance of any change of name or address. The probation order requiring him to reside at [1XX T. Apt. #X] has not been varied. However, on May 19, 2016, J.G. confirmed to the court that he was residing at [1XX S. Road] in Sarnia with JuGr and their children. J.G. states that: he misunderstood; he is the home owner of [1XX S. Road] and it was his intention to one day raise all of his children there.

t) The probation order made on February 1, 2016 prohibits J.G. from contacting or communicating in any way with B.S., A.S. and JuGr except with the prior written consent of JuGr. J.G. states that he has not breached the probation order dated February 1, 2016. JuGr provided a revocable consent in accordance with the terms of probation order [allowing communication between the two] but she has since revoked her consent;

u) The Sarnia-Lambton CAS is involved with J.G. and JuGr due to J.G.’s assault of JuGr and concerns about J.G.’s history of addiction. J.G. tested positive for methamphetamine in September 2015. J.G. has not been tested for drugs since September 2015. J.G. is no longer participating in a methadone program;

v) J.G. was prohibited from residing with JuGr pursuant to the terms of a safety plan between JuGr and the Sarnia-Lambton CAS;

w) J.G. is not allowed to be left unsupervised with any children, and JuGr cannot act in a supervisory role for J.G., pursuant to the safety plan entered into between JuGr and the Sarnia-Lambton CAS;

Evidence of A.S. at Trial

[37] Through her affidavit and viva voce testimony, the maternal grandmother A.S. deposed that prior to apprehension, the child and his mother B.S. principally resided in a segregated portion of her home beginning on February 18, 2014. The child was apprehended from B.S. on July 13, 2015 and placed into A.S.’s care on July 22, 2015 (when the child was approximately 18 months of age). He has remained in her care since that time.

[38] Throughout the time that S.S.-G. has resided with A.S., in her care, she alone has provided for his needs. Together they reside with A.S.’s children other than B.S. (aged 16 and 15 at the time of trial). A.S. has provided S.S.-G. with stability, a routine and a sense of family and love and the child is meeting all of his milestones in her care.

[39] The child attends a physician when required. There are no ongoing concerns over the child’s development. He displays age appropriate behaviour and development, enjoys the drums and music and is a good eater. A.S. describes the child as “happy, well-adjusted and able to express himself freely.” The child maintains very good relationships with A.S.’s children and her extended family.

[40] A.S. is employed as a “child and youth worker” and an “early childhood educator,” and works with special needs individuals. The child attends daycare while A.S. is working.

[41] A.S. acknowledges that in the past, she has experienced emotional distress and, as a result, she has been prescribed medication for anxiety by her physician. She has also accessed various services through the Society, including respite care. She is confident that if those services were no longer available to her (as would be the case if a custody order was made), she would remain capable of providing for all of the child’s needs.

[42] A.S. is aware of the child’s Indigenous status and his registration as a full member of the Aamjiwnaang First Nation. The child’s mother and paternal grandfather were members of the Magnetawan First Nation which, like Aamjiwnaang is an Ojibwae First Nation. A.S. testified that she is committed to embracing the child’s heritage and ensuring that his cultural needs are met. She will continue to do so, in order to ensure that the child grows up with knowledge of his culture. She brought the child to his first Pow Wow in the summer of 2016 and she arranged for a Naming Ceremony to be performed by Richard Assinawei, an Elder and recognized healer from the Wikwemikong First Nation.

[43] A.S. proposed that the appellant father J.G. receive severely restricted access with the child, (specifically, on the terms that the trial judge ultimately ordered). A.S. expressed concern for the child’s emotional safety, if he were to be in J.G.’s care. Her concerns arose from: J.G.’s criminal record including his assault against B.S.; his periods of incarceration; and J.G.’s lack of consistent contact with S.S.-G. during the child’s life. A.S. testified that: J.G. had not participated in access with S.S.-G. since December 2014 (over two years before the trial); she, herself, was terrified of J.G.; and she feared for the child’s emotional well-being should he be in J.G.’s care.

Evidence of Society Worker Rebecca Ross

[44] In her evidence Ms. Ross confirmed that: S.S.-G. has remained in A.S.’s exclusive care since July 22, 2015; all of the child’s needs have consistently been met by A.S.; and A.S. has complied with each of the terms of Ross J.’s final order dated November 9, 2015 and the Society’s Plan of Care. A.S.’s home is appropriate, clean and safe and has all of the amenities that are necessary to properly care for S.S.-G. The Society has never been concerned with A.S.’s care of the child. The Society received independent confirmation that the child has displayed age-appropriate behaviour and development during the time he has been in the care of A.S.

[45] The Society opposed J.G.’s plan to have the child reside with his half-siblings and J.G. and JuGr (or for access with the child to be exercised in that environment). J.G. had last exercised access with the child in December 2014. The Society held additional concerns about J.G.’s plan because: the relationship between J.G. and JuGr was unstable; J.G. had a history of domestic violence; and there was evidence to suggest that both J.G. and JuGr had a history of substance abuse. Given those concerns, together with the child’s age and the lack of consistent contact between J.G. and the child, Ms. Ross posited that any access between the two should be infrequent and supervised.

[46] In cross-examination, Ms. Ross confirmed that she had not personally conducted any direct investigation with respect to J.G.’s home circumstances. Her contact with J.G. was limited to infrequent phone communication and face-to-face contact during various court appearances in the course of the Status Review proceeding. She did not make direct inquiries of J.G., or alternative caregivers, with respect to S.S.-G. Ms. Ross did make inquiries to the Sarnia-Lambton CAS (which was involved in an ongoing protection proceeding in Sarnia involving J.G. and JuGr) about J.G. but she did not request documentary disclosure from that source including drug test results. Ms. Ross did not identify any services that the father ought to access, reasoning that J.G. was actively engaged with the Sarnia-Lambton CAS with respect to his other children, and Society protocol mandated that Society workers avoid directing further services, when another CAS was engaged in offering direction and instruction to a parent.

[47] Ms. Ross also contacted the Band on a number of occasions with respect to S.S.-G., but her efforts did not result in any proposals or a written response from the Band.

[48] Ms. Ross was aware that pursuant to a final order of the Ontario Court of Justice made in Sarnia on November 16, 2016 in the context of the protection proceedings commenced by the Sarnia-Lambton CAS, J.G. and JuGr’s two daughters, aged three and one, were placed into their joint custody, subject to CAS supervision. Ms. Ross did not view that order as altering the circumstances informing the determination of S.S.-G.’s best interests. She explained that the Society was not satisfied that the issues identified by Ross J., in arriving at her original protection order (including history of domestic violence, substance abuse; and J.G.’s criminal record) had been adequately addressed to an extent that would trigger a re-assessment of the Plan of Care for S.S.-G., or at all.

Evidence of the Appellant, J.G.

[49] J.G. was born on January 21, 1967 and was 50 years-old at the time of trial.

[50] J.G. has a lengthy criminal record that is comprised of several violence-related offences including, among other things, a manslaughter conviction in 1996, and assaults against B.S. and JuGr, in a domestic context, in 2014 and 2015, respectively.

[51] In his trial affidavit sworn February 5, 2017, J.G. explains the circumstances of his manslaughter conviction and expresses his ongoing remorse over the incident. He pled guilty to the offence and was sentenced to 14 years imprisonment. While in custody he: participated in alcohol abuse preventative counselling, interacted with Elders; and fully embraced his Native roots. He was released from custody in 2000, after serving four years in custody.

[52] More recently, the appellant was convicted of the following offences, following his guilty plea to each of them:

(a) On February 1, 2016 he was convicted of:

(i) assault, contrary to s. 266 of the Code with respect to the child’s mother B.S., committed on February 17, 2014;

(ii) possession of a firearm while prohibited from doing so, contrary to s. 100(1) of the Code, committed on February 18, 2014;

(iii) assault with a weapon (liquid from a coffee cup) contrary to s. 267(a) of the Code with respect to JuGr, committed on October 8, 2015;

(iv) breach of the term of a recognizance that prohibited him from communicating with B.S. and JuGr, committed on September 18, 2015;

b) a conviction of assault, contrary to s. 266 with respect to JuGr, committed on June 1, 2015;

c) On August 31, 2015 he was convicted of two counts of breaching a recognizance that prohibited him from being within 100 metres of B.S. or JuGr; and

d) On March 31, 2015, he was convicted of theft with a value of less than $5,000, committed on December 20, 2014.

[53] Despite his guilty plea on February 1, 2016 and the content of the agreed facts before the trial judge, in his trial affidavit, J.G. denies that he assaulted B.S. in February 2014. Instead, he describes a mid-February, 2014 incident in which B.S. was holding S.S.-G. (who was less than a month old at the time) in their residence. B.S. was non-responsive when J.G. asked her if she had fed or changed S.S.-G. As a result, he gently leaned into B.S. and took the child from her. He then feed and changed S.S.-G. and settled him into a bassinette. When he asked B.S. if she had taken her medication, she did so in front of him, and they watched television for an hour. Later, the police arrived and arrested J.G. for assault. After his arrest, B.S. brought the child from their home in Lambton County to Windsor, Ontario. When J.G. was released from custody two days later, he attempted to gain access to S.S.-G.

[54] J.G. also asserts that he thought he was pleading guilty to another offence when he entered his February 1, 2016 guilty plea to assaulting B.S. in February, 2014. He did not explain why he agreed that he assaulted B.S. on February 17, 2014, for the purpose of the agreed statement of facts, filed at trial.

[55] Although the Society has expressed concerns with respect to J.G.’s substance use, he states that he remained alcohol-free after his release from prison in 2000, until 2013. He acknowledges that he tested positive for methamphetamine in September 2015 (and that he used that drug until October 2015). He explains that he first “tried crystal meth” in 2013, when it was offered to him by a friend. The drug is addictive and he continued to use it for almost two years. Eventually, he received help and he is now a recovering addict. Prior to B.S.’s pregnancy, both B.S. and J.G. used “crystal meth” together. Once they learned she was pregnant they decided to “get clean.” Ultimately, he quit using crystal methamphetamine, “cold turkey.” He is committed to maintaining sobriety for life. Although he has experienced several short relapses, he has also established various “supports” to maintain his sobriety, including counsel from Elders and support from his father. He now takes Suboxone and he is subject to weekly drug tests.

[56] In his evidence, J.G. detailed his involvement with B.S. at the time of S.S.-G.’s birth and recounted his daily care of S.S.-G., while B.S. resided with him in Sarnia. J.G. was the “safety person” when S.S.-G. was discharged home after his birth because the Sarnia-Lambton CAS was concerned about B.S.’s drug abuse and mental health. J.G. was responsible for supervising B.S. at all times, when she was in the presence of S.S.-G. In his trial affidavit, J.G. states that he provided daily care for the child including all “normal baby care” such as: changing the child; feeding him; preparing his bottles; bathing him; holding him for bonding and comfort; and talking to him in Ojibwae and English. The trial judge concluded that any such period of care was “quite brief,” as J.G. confirmed during his cross-examination, that the child was not discharged from hospital, post-birth, until mid-February 2014 and that B.S. subsequently left with the child for Windsor on February 17 or 18, 2014.

[57] In his trial affidavit, J.G. deposed to maintaining “a relatively good relationship with” A.S., in the past. He states that he arranged a reconciliation between B.S. and A.S. and other members of her family, and thereafter, he attended many “family dinners” with B.S. and her extended family (including A.S.). He claims that neither B.S. nor her family members expressed any concerns about him before S.S.-G. was born. At that point, A.S. “turned on him” and counselled B.S. to move to her residence in Windsor with S.S.-G. The foregoing aspects of J.G.’s evidence conflict with A.S.’s evidence concerning the nature of her historical relationship with J.G., which she deposes was minimal.

[58] J.G. confirms that as of the date of trial, he had last exercised access with S.S.-G. in December 2014. He attributes the infrequent nature of his participation in pre-trial access to logistical difficulties in attending for supervised access appointments in Windsor and periods of time during which he was incarcerated. Once he was released from custody, he immediately attempted to reinstate access by contacting the Society and the Supervised Access Centre, but he did not receive a response. After B.S. passed, J.G. contacted Society worker Rebecca Ross, with whom he had had prior telephone contact. In his trial affidavit, he deposes that despite his access request, Ms. Ross did not: arrange a meeting; offer any services to J.G.; or assist in the resumption of his access with S.S.-G. Instead, she advised him that “a Status Review was upcoming” and recommended that he contact a lawyer.

[59] At trial, J.G. presented a Plan of Care pursuant to which S.S.-G. would reside with J.G., JuGr and their two young daughters at their home on the Aamjiwnaang First Nation territory. J.G. also provided detailed evidence with respect to the child’s Indigenous status and his membership in the Aamjiwnaang First Nation, where he had a home and a community that included a number of S.S.-G.’s extended family members.

[60] According to J.G.: JuGr supported S.S.-G. becoming part of their family; they had a home suitable for S.S.-G.; and the Sarnia-Lambton CAS was already involved with their family and attended at the home in accordance with terms of the joint placement order made by the Ontario Court of Justice in Sarnia (with respect to J.G.’s daughters).

[61] J.G. and JuGr were committed to raising their children together and they shared their current childcare responsibilities. J.G. also had supportive counselling in place. The Sarnia-Lambton CAS allowed them to demonstrate their parenting abilities, including allowing J.G. to care for one of their young children on his own, while JuGr cared for the other, who was in hospital in London. J.G. believes he has complied with both the terms of his probation and the terms of a safety plan implemented by the Sarnia-Lambton CAS, without any concerns.

[62] J.G. believes that S.S.-G. would benefit most from “full immersion” in his Native culture and language and the traditions of his First Nation by being raised in a Native family unit with his half-siblings, J.G. and JuGr. J.G. detailed the Indigenous ceremonies and cultural activities in which he and JuGr engage. In his trial affidavit, J.G. asserted that he spoke the Ojibwae language fluently. Conversely, during cross-examination at trial he conceded that that was not an accurate statement.

[63] J.G. also described the resources that would be available to S.S.-G., in the event that he resided with J.G. Specifically, the Aamjiwnaang First Nation offers services such as: daycare; social workers to address health and welfare needs; and educational support through school programs and community activities. J.G.’s sister V.W., who was employed as the Band’s Education Director, offered to assist in S.S.-G.’s transition to J.G.’s care and to support J.G. in caring for S.S.-G.

[64] J.G. detailed the home routines that he and JuGr have implemented for their daughters, including bathing, night time routines, meals, play time, and outdoor and social activities. He felt those routines could also be applied to S.S.-G.

[65] J.G. was in receipt of payments from Ontario Works at the time of trial, and he stated that S.S.-G. could be added to that program. In addition, he observed that there would also be “child tax money” available for S.S.-G.’s support and care.

[66] Finally, J.G. observed that under his plan, S.S.-G. would have two full time caregivers available to him (he and JuGr), who were supported by their extended family, the Sarnia-Lambton CAS and the native-based service providers already involved with J.G.’s family unit.

Evidence of JuGr

[67] Although JuGr was an integral part of J.G.’s proposed Plan of Care for S.S.-G., she did not testify at trial nor did she deliver affidavit evidence in respect of same.

Evidence of Sarnia-Lambton CAS Worker Amy Vanderlinde

[68] J.G. called evidence from Amy Vanderlinde, who has been employed as a Family Services Worker by the Sarnia-Lambton CAS since December 2014, prior to which she worked as a student for that organization. At the time of trial, Ms. Vanderlinde was the CAS worker principally involved in the Sarnia-Lambton child protection proceeding involving J.R. and JuGr and their daughters. In her evidence, Ms. Vanderlinde described the circumstances underwriting that proceeding and the orders that have resulted from it.

[69] The Sarnia-Lambton CAS’s involvement with JuGr dates back to 2009. Apart from the two children involved in the most recent Sarnia protection proceeding (born in January 2015 and May 2016, respectively), JuGr is the biological mother of four other children – two of whom reside with their maternal grandmother and two of whom reside with their biological father (not J.G.). JuGr access with two of those children must be supervised.

[70] Owing to ongoing protection concerns, the Sarnia-Lambton CAS has been involved, on a continuous basis, with J.G., JuGr and their two young daughters, since the oldest child was born in January, 2015. After her birth, J.G. and JuGr resided with J.G.’s sister V.W. for a brief period of time. V.W. advised them that they could not do so “long term.” The protection concerns historically held by the Sarnia-Lambton CAS with respect to J.G. and JuGr include: a history of substance abuse by both parents; J.G.’s criminal record; “relationship conflict” between J.G. and JuGr; the state of their home; and verified concerns over domestic violence by J.G. towards JuGr.

[71] Ms. Vanderlinde confirmed that the Sarnia-Lambton CAS was also involved with J.G. and (S.S.-G.’s mother) B.S. in 2014, owing to child protection concerns that included: B.S.’s mental health status; substance abuse by both J.G. and B.S.; and verified concerns of domestic violence by J.G. against B.S.

[72] Pursuant to a temporary order made by McFadyen J. of the Ontario Court of Justice on September 2, 2015, J.G. and JuGr’s two infant children were placed in JuGr’s temporary care and custody, subject to supervision by the Sarnia-Lambton CAS. The order also required JuGr to allow access between the children and J.G., as directed by the CAS. The terms of J.G.’s access were modified by a temporary order made by McFadyen J. on February 12, 2016, which required J.G.’s access to be supervised. That order followed J.G.’s guilty plea to, among other things, assaulting JuGr, and his subsequent release from incarceration on February 1, 2016.

[73] Pursuant to a final order made by McFadyen J. on November 1, 2016, J.G. and JuGr’s two young daughters were found to be in need of protection and they were placed in the joint care of J.G. and JuGr for a period of six months, subject to Society’s supervision. The order was made, approximately two months prior to the trial in this proceeding on an agreed statement of facts that included, among other things, the following:

a) JuGr is the mother of six children, four of whom did not reside with her;

b) J.G. is the father of one other child who did not reside with him (and was not the subject of the Sarnia application);

c) JuGr appeared affectionate with the two children that remained in her care; their physical appearance was positive; and they appeared well-fed and clothed;

d) The Society was involved with J.G. and JuGr primarily owing to: conflict in their relationship; suspected drug use; and the state of their home;

e) J.G. was participating in the Partner Assault Response Service program (“PARS”); he was also encouraged to pursue support through the CMHA, together with services available through Aamjiwnaang First Nation community;

f) On July 13, 2016, J.G. and JuGr were involved in a reported incident of “domestic disturbance” that led to police intervention. JuGr did not cooperate in the police investigation, and she denied that a domestic incident occurred. However, she attended a woman’s interval home that evening;

g) Both J.G. and JuGr were forthcoming about their past drug use and their desire to “remain clean.” They both demonstrated insight regarding the manner in which drug use has impacted their ability to think clearly and the conflict that drug use has caused between them. However, on August 23, 2016, the Society received information from JuGr’s mother that JuGr had used drugs again. JuGr denied the allegation;

h) A Sarnia-Lambton Society CAS worker has periodically met with JuGr and J.G. since September 2016 and no new concerns arose during those home visits. The level of care being provided by both parents to the children was noted to be without concern.

i) JuGr and J.G. expressed their intention to live together and to parent their children together. The Society planned to work with them to ensure the safety of the children in the home, when J.G. returned to the home and accordingly, terms of continued supervision were required;

j) Based on the foregoing, the parties agreed to a finding that the children were in need of protection pursuant to s. 37(2)(b)(i) of the CFSA.

[74] McFadyen J.’s November 1, 2016 final order required, among other things, that J.G. and JuGr: attend couples counselling; access the Healthy Babies Healthy Children program on a regular basis in the Aamjiwnaang First Nation community; refrain from consuming non-prescribed drugs and from being under the influence of drugs or alcohol while in a caregiver role; attend Narcotics Anonymous meetings on a weekly basis in the Aamjiwnaang First Nation community; participate in the Circle of Security program; and cooperate with the Sarnia-Lambton CAS by permitting its workers to attend their home to see the children. Further, J.G. was required to “work with the Canadian Mental Health Association as a support” and JuGr was obligated to continue her participation in a methadone program, as required.

[75] Both J.G. and JuGr have a history of drug abuse that included the use of crystal methamphetamine. The Sarnia-Lambton CAS remained concerned that JuGr may relapse into drug addiction. Ms. Vanderlinde disclosed that she also had observed JuGr experiencing emotional difficulty and paranoia, at times.

[76] Ms. Vanderlinde testified that she was unable to verify whether J.G. and/or JuGr attended NA meetings after the November 1, 2016 order was made. She had maintained regular monthly contact with J.G. since July 2016. Prior to that their contact was sporadic, even after J.G.’s release from prison in February 2016. Drug testing is employed on a very limited basis in Lambton County. As a result, Ms. Vanderlinde did not have the means to verify whether J.G. and JuGr had used any substances after the November 1, 2016 order. However, she had continued to meet with J.G. once a month, and had no concerns that he was “using.” Similarly, from the time she first became involved in the matter in 2015, she had never had a concern that J.G. would relapse (despite having no regular contact with J.G. until July 2016). JG. did not advise her that he was using Suboxone.

[77] J.G. completed the PARS program as a term of his February 1, 2016 probation order but he attended very few, if any, other programs. J.G. and JuGr had not yet attended family counselling, as required by the November 1, 2016 order, at the time of the trial in this proceeding.

[78] With the caveat that her impression of J.G. was limited to her observations of him in the context of the two children that were the subject of the Sarnia protection proceeding (not S.S.-G.), Ms. Vanderlinde observed J.G. to be very affectionate with those children. J.G. was more observant of the children’s basic needs than JuGr. J.G. was patient. He provided sufficient re-direction to his children at appropriate times. He “picked up” on his children’s cues. It was also clear to Ms. Vanderlinde that J.G. and JuGr wanted to participate in the culture of their First Nation.

[79] Based on her own observations, Ms. Vanderlinde was of the view that J.G. was able to provide basic skills necessary to parent the two young children in his care and he was cooperative in working with the Sarnia-Lambton CAS. Nonetheless, she continued to have protection concerns and the Sarnia-Lambton CAS remained involved with the family, in order to address those concerns.

[80] Ms. Vanderlinde is generally aware of J.G.’s criminal record including his periods of incarceration in 2015 relating to a domestic assault committed against JuGr. She has received multiple referrals regarding domestic conflict between J.G. and JuGr, both before and after the November 1, 2016 final order in the Sarnia protection proceeding, including as recently as one week prior to the trial in this proceeding.

[81] Ms. Vanderlinde declined to answer questions with respect to whether she held any concerns over J.G.’s ability to care for S.S.-G. She consistently stated that she did not possess any knowledge about the child S.S.-G., or his needs, and therefore she could not provide any meaningful response to inquiries in that regard.

Evidence of V.W.

[82] V.W. holds a Master’s Degree in social work and for the past 17 years she has been employed with the Aamjiwnaang First Nation. Since 2012, she has served as the Band’s Education Director, overseeing the educational needs and resources available to the residents of the Aamjiwnaang First Nation community, as well as the Band’s childcare centre and the kindergarten program on the Reserve.

[83] V.W. and her four siblings, including J.G., are 50 percent blood quantum, with their father a full blood Aamjiwnaang First Nation member, and their mother a non-Native. They did not grow up on the Reserve. Instead, they were raised by their mother in the State of Michigan. However, they maintained close ties to the Aamjiwnaang First Nation community through their father, who brought them there on weekends. V.W.’s ability to identify with her Native heritage and First Nation community was not hindered as a result of being raised by her non-Native mother. Eventually, V.W. moved to the Reserve in 2000, where she currently raises her own family.

[84] In detailing the educational services available through the Aamjiwnaang First Nation, V.W. advises that students in the Band’s daycare program, for which S.S.-G. is on “the waitlist,” and its junior kindergarten program are consistently and heavily immersed in Native culture and language. Students in the junior and senior kindergarten program engage in daily cultural and language instruction. Once children complete senior kindergarten they attend one of four local public schools, where Native language and cultural programs are available, together with Native education workers that support students, as issues arise. Approximately 25 percent of the residents on the Reserve are fluent in Ojibwae including two of the 11 teachers and early childhood educators that work at the Reserve’s childcare centre. In the context of the Band’s childcare program, at least two Pow Wows take place on an annual basis.

[85] Concerning issues directly related to her brother, J.G., V.W. felt that, historically, B.S. and J.G. had a good relationship. V.W. began to spend more time with B.S. when she learned she was pregnant with S.S.-G. Although she is aware that J.G. was charged with assaulting B.S. in February 2014 (to which he subsequently pled guilty) she was never aware of allegations that J.G. was physically abusive towards B.S.

[86] In 2014, V.W. accompanied J.G. on three of his supervised access visits with S.S.-G., in Windsor. She observed J.G. to be well-bonded with the child, with whom he shared a loving and caring relationship. V.W. last saw S.S.-G. in 2014. She did not determine if she could continue to visit S.S.-G. on her own, when J.G. stopped doing so in December 2014.

[87] She believes that it is critical to S.S.-G.’s identity as an Anishinaabe child that he has knowledge of his cultural roots and develops a strong connection to his family and community.

[88] When V.W. learned that B.S. passed away in 2016, she encouraged J.G. to contact the Supervised Access Centre where he had formerly attended with S.S.-G., to obtain information on S.S.-G.’s current status. She did not do so herself because she felt it was appropriate for J.G., as the parent, to do so. Despite her positive relationship with B.S., V.W. did not send condolences to B.S.’s mother after she passed, nor did she attempt to “reach out” to her nephew, S.S.-G. at that time.

[89] V.W. has historically supported J.G. in dealing with his addiction issues. She is uncertain about the specific substances to which J.G. has been addicted, apart from his addiction to crystal methamphetamine, which started in 2013. She has also supported his past attempts to access supportive services. At the time of trial he was accessing support through traditional Native healer Richard Assinawei (the same Elder that performed S.S.-G.’s Naming Ceremony).

[90] V.W. confirmed that J.G. is the biological father of four children. He has no relationship with his oldest son, who is 19 or 20 years old. His other children include S.S.-G. and the two children that he shares with JuGr. V.W. is aware of the child protection proceeding involving the latter two children “to some extent.” J.G.’s oldest daughter resided with V.W. for four months after she was born in January 2015 because of protection concerns. However, V.W. does not know the specific reasons or concerns that prevented that child from remaining in the care of J.G. and JuGr, at that time.

[91] V.W. is aware that J.G. pleaded guilty to assaulting JuGr in August of 2015. She does not know the specifics of the sentence imposed on J.G. on February 1, 2016 nor is she aware of the terms of the final order made on November 1, 2016 in the context of the Sarnia child protection proceeding.

Evidence of Laura Rogers

[92] Ms. Rogers testified at trial in her capacity as Band Representative, a position she assumed on December 6, 2016 (approximately two months prior to trial).

[93] Although she did not have any personal involvement with the Society in relation to S.S.-G., she confirmed that the Band’s records reflect that it was contacted by Society worker Rebecca Ross with respect to S.S.-G. on July 20, 2015, February 29, 2016 and other unspecified dates and that the Band was notified of S.S.-G.’s apprehension in July 2015. The Band did not take any steps in response to those contacts and the Band’s file evidences that it did not forward any correspondence to the Society with respect to S.S.-G., at any time.

[94] Ms. Rogers provided the court with a lengthy list of services and programs available to members of the Band including: the Healthy Babies Healthy Children program and the Drop-in-Head Start Program.

[95] Ms. Rogers grew up in Sarnia, Ontario and moved to the Reserve as an adult. She confirmed that it is possible to develop a strong sense of belonging within the Indigenous culture without living on the Reserve. She believes it is important for Native children to know their community and to know where they belong.

[96] Ms. Rogers does not know J.G. personally. She does know JuGr, as she is the mother of two of her cousin’s children. She has observed J.G. and JuGr in the community with their young daughters and she feels that they are both affectionate and attentive to the children’s needs.

The Trial Judge’s Reasons for Judgment

[97] On February 24, 2017, following detailed oral submissions on behalf of the Society, A.S. and J.G. and extensive written submissions from the appellant J.G., the trial judge released comprehensive reasons for judgment, which span 71 pages and include 157 footnotes, together with an appendix summarizing the events that occurred on each day of trial. The body of his reasons includes: a detailed review of the evidence adduced by the parties; findings of credibility and reliability with respect to key witnesses; a thorough review of the statutory provisions of the CFSA and the decided cases applicable to the issues before him; his reasons for concluding that the child was in need of protection; and his reasons for determining that the custodial order that he ultimately made accorded with the child’s best interests, after considering all of the relevant factors, including the child’s Native status.

[98] The appellant (now fully supported by the Band) suggests that the trial judge erred in the manner in which he: accepted certain evidence; weighed certain evidence; and the manner in which he determined the child’s best interests and disposition. In considering those assertions, I will first review the trial judge’s key findings. Thereafter, I will set out the applicable standard of review on this appeal. Finally, I will determine the appellant’s specific grounds for appeal, as recast at the appeal management conference on October 16, 2017.

[99] In arriving at his factual findings, the trial judge engaged in a detailed review of the evidence including: the parties’ statement of agreed facts; the various exhibits filed; the affidavit evidence of A.S., J.G. and Society worker Rebecca Ross, and the viva voce evidence of all witnesses at trial (see: paras. 31–172 and associated footnote of the Reasons). The appellant does not expressly assert that any aspect of the trial judge’s comprehensive review of the evidence, as set out in his reasons, is inaccurate. In arriving at his disposition, the trial judge also considered the content of the Final Report of the Truth and Reconciliation Commission of Canada (see footnote 125 at para. 116 of the Reasons).

[100] In making findings of credibility and reliability, the trial judge first expressly considered the evidence of the maternal grandmother A.S. in the context of the evidence as a whole, and found that despite vigorous cross-examination by J.G.’s counsel, A.S. “gave her evidence in a truthful, forthright, candid fashion.” He further found her to be “credible and trustworthy” and noted that he placed considerable reliance on her evidence (see: paras. 71 and 81–82 of the Reasons).

[101] With respect to J.G.’s credibility, the trial judge found, at paragraph 195 of his reasons:

In the course of cross-examination of the respondent father, he was confronted with assertions made within his Answer and his affidavit. In at least two material respects, what was said in the Answer and affidavit was inaccurate and gives rise to the conclusion that the respondent father was misleading the court. This results in an overall diminishing of the extent to which the court would rely upon the evidence of the respondent.

[102] He further explained his finding in that regard, which was supported by the evidence before him. First, the trial judge identified a contradiction in the evidence surrounding J.G.’s compliance with the residency term of the probation order made on February 1, 2016. J.G. deposed in his trial affidavit that he complied with all of the terms of that order. Pursuant to the agreed facts at trial, the terms of the probation order required J.G. to reside at a specific address on [T] Street in Sarnia, Ontario. The parties agreed that that requirement was not varied prior to the trial in this proceeding. However, the content of various exhibits and J.G.’s own admission, during cross-examination, revealed that he was in fact residing at a different address on [S] Street for a prolonged period of time prior to trial. The trial judge found this evidence to be “at odds” with the assertions J.G. made in his Answer and Plan of Care (see footnote 51, at para. 23 of the Reasons) and the content of his affidavit sworn February 5, 2017.

[103] Second, the trial judge found a “discrepancy” between J.G.’s affidavit, sworn February 5, 2017, in which he deposes that he spoke the Ojibwae language fluently and his concession during cross-examination that he did not (see footnote 124 of the Reasons and the Transcript of Proceeding at Trial, Volume II, at pp. 623–24, at line 28 – line 14).

[104] Similarly, when considering J.G.’s evidence concerning an aspect of what the trial judge described as J.G.’s “extensive criminal record,” he found at paragraph 101 of his reasons:

As it had to do with criminal convictions related to the respondent mother, the late [B.S.], the evidence clearly demonstrated the objective of the respondent father to minimize the implications of assault convictions registered as against him. In this respect the court would have wished for the filing of a certificate copy of the transcript reflecting both the facts to which [J.G.] entered his guilty pleas and the transcript of the sentencing. None of this was furnished by the respondent father in his case.

[105] This finding is supported by the record before the trial judge. The parties’ statement of agreed facts establishes, among other things, that on February 1, 2016 J.G. pled guilty to assaulting B.S. on February 17, 2014. Conversely, in his evidence at trial, J.G. testified that he did not assault B.S. as alleged, or at all. He further testified that at the time he pled guilty to the foregoing assault charge he believed that he was pleading guilty to another offence (see Transcript of Proceedings at Trial, Volume II, pp. 643–644, line 27–line 4). Similarly, in his affidavit sworn February 5, 2017, J.G. denies that he assaulted B.S. on February 17, 2014. Instead, he deposes to the innocuous nature of his interactions with B.S. on that date, which ended with his arrest for an assault that he did not commit (see footnote 60 at para. 38, p. 26 of Reasons and paras. 31–39 of the affidavit of J.G. sworn February 5, 2017).

[106] The trial judge also resolved certain discrepancies between the evidence of A.S. and J.G., respectively, particularly as it relates to their historical relationship by finding that “on the issue of the respondent father’s relationship with the maternal grandmother A.S. the court prefers, where there are differences, the evidence of the maternal grandmother, [A.S.]” (see footnote 109 at para. 99 of the Reasons).

[107] Despite making adverse findings arising out of certain aspects of J.G.’s evidence, the trial judge also expressly accepted portions of it, particularly with respect to: Native and Indigenous culture; the traditions and practices of the Aamjiwnaang First Nation; the fulsome exposure to Native traditions, language and culture that S.S.-G. would gain in J.G.’s care; and the social and family support available to assist J.G. in the care of S.S.-G., in his First Nation community, all of which he reviews in exquisite detail in the footnotes to paragraphs 114–118 of his reasons. The trial judge also favourably commented on the evidence of both V.W. and the Band Representative Laura Rogers on the foregoing subjects (see: paras. 115 and 117 of the Reasons).

[108] The trial judge engaged in a detailed review of Amy Vanderlinde’s evidence at paragraphs 150–170 of his reasons, including those aspects of her evidence that: were favourable to J.G.; and expressed Sarnia-Lambton CAS’s ongoing protection concerns.

[109] Finally, the trial judge reviewed the appellant J.G.’s proposed plan to transition S.S.-G into his own care, gradually over the course of time. The trial judge concluded that had he otherwise determined that placing S.S.-G. with the appellant J.G. was in the child’s best interests, (which he did not) the transition plan proposed by J.G. “would have been highly appropriate for implementation” (see: paras. 171–172 of the Reasons).

[110] In addition to the evidence adduced at trial, the trial judge expressly considered the absence of any evidence at trial from JuGr, in circumstances in which JuGr would assume an active and important role in “parenting” S.S.-G. pursuant to J.G.’s proposed plan (see: paras. 106–108 of the Reasons). In the foregoing context, the trial judge drew the following adverse at paragraph 198 of his reasons:

There is absolutely no doubt that [JuGr] would have had knowledge of facts pertinent to the determination that this court has to make about the suitability of placement of the child in the father’s home. Frankly, it would be assumed that [JuGr] would be a witness willing to assist the respondent father. Accordingly, the absence of calling this individual, permits the court to draw an adverse inference against the respondent father by reason of his failure to call a material witness over whom he has exclusive control and about which he does not explain the absence of that witness giving evidence in court. The result is an implied admission that the evidence of the absent witness would be contrary to the respondent father’s case or at least would not support it.

[111] On the evidence before him, the trial judge found that S.S.-G. was “in need of protection” pursuant to s. 37(2)(i) of the CFSA, on the basis that the child’s parent, B.S., had died. He then went on to determine disposition. In doing so, the trial judge sets out (at paras. 173–177 of the Reasons):

a) the disposition options available pursuant to s. 57 and s. 57.1 of the CFSA;

b) The court’s duty to make inquiries of the parties with respect to the efforts the Society made to assist S.S.-G. before intervention under Part III of the CFSA;

c) The court’s obligation pursuant to s. 57(3) of the CFSA, to be satisfied that less disruptive alternatives than removing a child from the care of the person who had charge of the child immediately before intervention under Part III of the CFSA would be inadequate to protect the child, before making an order removing the child from the care of that person;

d) The court’s obligation pursuant to paras. 2 and 5 of subsection 1(2) of the CFSA to consider the secondary purposes of: recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child; and recognizing 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 provided that it is consistent with the best interests, protection and well-being of the child;

e) The court’s obligation to consider community placements including family members before making an order for society or Crown wardship, pursuant to s. 57(4) of the CFSA; and

f) Where the child referred to in s. 57(4) is an Indian or Native person, the court’s obligation, absent a substantial reason for placing the child elsewhere, is to place the child with: a member of the child’s extended family; a member of the child’s Band or Native community; or another Indian or Native family pursuant to s. 57(5) of the CFSA;

[112] At paragraphs 178–179 of the reasons, the trial judge correctly articulates the criteria that he was required to consider in determining the appropriate disposition as informed by the child’s best interests, pursuant to ss. 37(3), 37(4) and 1 of the CFSA.

[113] Relying on Children’s Aid Society of Nipissing and Parry Sound v. S.F., 2016 ONCJ 737, at para. 83 and Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646, 57 R.F.L. (7th) 272, the trial judge proceeded to determine the best interests of the child by considering all of the relevant factors in ss. 37(3) and 37(4) of the CFSA and in accordance with the principles that: “[b]est interests is the only test on disposition and the test includes a consideration of First Nations’ issues”; although the maintenance of the child’s Native heritage and culture is an important factor, it is not the only factor in determining the child’s best interest; and an unreasonably higher weight should not be placed on which party can best foster the child’s Native cultural upbringing (see paras. 184–5 of the Reasons).

[114] The court also observes that the length of time that a child is in care is, at all times, a relevant consideration in determining placement when a child is found to be in need of protection. He found that “time is considered from a child’s needs and perspectives” and time considerations “should be child-focused” (see: para. 183 of the Reasons).

[115] In paragraphs 115–117 and paragraphs 186–196 of his reasons, the trial judge relates the evidence to the factors that he identified as relevant to the determination of the child’s best interests and makes the following findings:

a) In relation to the importance of a Native or Indian child’s connection to his cultural and Indigenous history the ideal is the Native child living with his Native parent (see paras. 116 and 188 of the Reasons);

b) The period of time during which the child lived with A.S. created a pronounced status quo (see para. 189 of the Reasons);

c) While in the care of A.S., S.S.-G.’s “needs including mental, emotional, physical and otherwise have been met in a secure, nurturing, home environment. The child’s future prospects (in that setting), based on all of the evidence, are quite positive” (see para. 189 of the Reasons);

d) The appellant J.G. has not seen the child since December 2014 [as of the time of trial in February 2017]. Between September and December 2014, J.G. had the opportunity to visit the child on a weekly basis and he only made six visits. Although J.G. and JuGr had developed a relationship by the fall of 2014, JuGr has never made an effort to acquaint herself with S.S.-G., through attending access with J.G. (see paras. 190–191 of the Reasons);

e) J.G. was the subject of an outstanding protection finding and supervision order made by the Ontario Court of Justice in Sarnia in November 2016, involving two young children whose care J.G. shared with JuGr. J.G.’s plan was to add a third young child, S.S.-G. to the household under the care of both J.G. and JuGr. The plan, as offered, was untenable as a result of JuGr’s failure to provide evidence to the court (see para. 192 of the Reasons);

f) The evidence raised serious questions regarding JuGr’s parenting skill and ability, which could not be set aside in consequence of evidence from other sources such as Ms. Vanderlinde. In turn, those questions were relevant to the issue of the placement of S.S.-G., and appropriate parenting of S.S.-G. by JuGr and J.G., together with the two children in their care (see para. 193 of the Reasons);

g) In her evidence, the Sarnia-Lambton CAS worker expressed reservations with respect to JuGr including: a potential for drug relapse; the state of her mental health; displayed paranoia; circumstances with respect to historic domestic violence; and her efforts to comply or implement the supervisory terms ordered by the Ontario Court of Justice in Sarnia in November 2016 (see para. 194 of the Reasons);

h) The material inconsistences between the content of J.G.’s Answer and affidavit sworn February 5, 2017 and his viva voce evidence at trial in at least two material respects, led to the conclusion that J.G. was misleading the court and diminished the extent to which the court relied on his evidence (see para. 195 of the Reasons);

i) When comparing the foregoing circumstances surrounding J.G.’s plan with the circumstances of S.S.-G.’s status quo (living with A.S.) the result and conclusion were clear: the child had done well, indeed thrived in A.S.’s care. Disruption of that placement would be adverse to S.S.-G’s best interests. S.S.-G.’s placement with A.S. served his best interests in every respect. The trial judge expressly made that finding expressly despite the child’s Native status and the father’s plan in regards to preserving the child’s Native heritage and culture (see para. 196 of the Reasons);

j) Changing S.S.-G’s current placement with A.S., even through a transition, would ultimately not advance his best interests and more than likely would cause disruption of a proven, safe, stable and secure home (see para. 196 of the Reasons).

[116] In arriving at his disposition, the trial judge expressly relied on A.S.’s evidence acknowledging the importance of S.S.-G’s cultural connection to his Indigenous community (see para. 197 of the Reasons). The trial judge observed that A.S. would be “charged with the duty and obligation to ensure that the connection is maintained as best as can be done under the circumstances, so that the child’s identity with his community and his indigenous roots takes hold” (see para. 197 of the Reasons).

[117] As a result of the foregoing, the trial judge concluded that a disposition pursuant to s. 57.1 of the CFSA granting custody of S.S.-G. in favour of A.S. was consistent with the child’s best interests (see para. 199 of the Reasons). Although the access order was made under the CFSA, it is deemed to be a final order made under s. 28 of the Children’s Law Reform Act R.S.O. 1990, c. C.12.

[118] Finally, the trial judge found that the terms of access between J.G. and S.S.-G. that were proposed by A.S. were appropriate because the probation order prohibiting contact between J.G. and A.S. remained operative until February, 2019 and J.G. had not seen the child since December 2014. As a result, he ordered that A.S. facilitate access between J.G. and S.S.-G. via Skype or Facebook one time per week and that she provide photographs and videos of the child to the father, J.G., once a month. The trial judge observed that if such access was “implemented and took hold” there was every reason to believe it could be enlarged in the future (see: paras. 198–200 of the Reasons).

[119] I will now consider the appellant’s stated ground for appeal. In doing so, it is helpful to recall this court’s function on appellate review, together with the standard of review applicable to the errors that the appellant asserts were committed by the trial judge, which I will set out below.

This Court’s Function on Review

[120] In T.S. v. Children’s Aid Society of Toronto, 2016 ONSC 884, Chiappetta J. succinctly described this court’s function when sitting as an appeal court in a child protection proceeding, at para. 2:

The function of this court, sitting as an appeal court, is not to conduct an independent review of the trial evidence and determine whether the trial judge’s individual findings are properly weighed and reasonable. Rather, the function of this court is to consider the totality of the evidentiary record at trial and determine whether the trial judge correctly stated the law and applied it to the facts absent palpable and overriding error.

The Standard of Review

[121] The appellant’s stated grounds for appeal are embedded with assertions that the trial judge erred in law (in identifying the legal principles applicable to the disposition that was consistent with the child’s best interests); and fact and mixed law and fact (in his application of the provisions of the CFSA; the manner in which he weighed aspects of the evidence before him; and the manner in which he made certain credibility findings).

[122] The standard of review for factual determinations made by a trial judge is one of “palpable and overriding error”: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 9 and 25. Where the challenged findings involve mixed fact and law or drawing conclusions and inferences, they should not be overturned absent a palpable and overriding error: see Children’s Aid Society of Toronto v. D.J. et al., 2013 ONSC 2776 at para. 27.

[123] A palpable error is one that is obvious, plain to see, or clear. Examples of such an error include: findings made in the complete absence of evidence; findings made in conflict with accepted evidence; findings based on a misapprehension of the evidence; and findings of fact drawn from primary evidence that are the result of speculation rather than inference: see Housen, at paras. 6 and 23; and Waxman v. Waxman, 2004 CanLII 39040 at para. 296, 186 O.A.C. 201.

[124] An error is overriding when it carries with it sufficient significance so as to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a palpable error does not automatically render the error an “overriding” one. To be “overriding”, the error must go to the root of the challenged finding of fact, such that the fact cannot safely stand in the face of that error: see Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at p. 281, Waxman at para. 297 (emphasis added).

[125] The degree of deference traditionally afforded to the factual determinations of a trial judge is particularly compelling in child protection cases. An appellant court ought not to intervene simply because it would have made a different decision or balanced the relevant factors differently than the trial judge did: see D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903, at para. 28; Children’s Aid Society of Ottawa v. S.N.-D., 2012 ONCA 590, at para. 19, 26 R.F.L. (7th) 46; Children’s Aid Society of Toronto v. V.L., 2012 ONCA 890, 249 O.A.C. 388, at para. 16.

[126] The standard of review in the context of an asserted error of law is correctness. Questions of fact or mixed fact and law are reviewed on a standard of “palpable an overriding error,” unless they involve an extricable question of law. The identification of the legal principles applicable to the determination of an issue is an extricable question of law. However, the application of the law to the facts as found is a question of mixed fact and law: see Housen at paras. 27 and 31.

The Review

[127] The issues arising from errors asserted by the appellant can be generally stated as:

1. Did the trial judge err in law in formulating the test to be applied in determining disposition?

2. Did the trial judge err in the weight he gave to the appellant father’s criminal record, as referenced in paragraphs 100–101 of the trial judge’s reasons for judgment?

3. Did the trial judge err in finding that the respondent maternal grandmother, A.S., “was committed to embracing the child’s heritage and ensuring that his cultural needs are met” and by placing “considerable reliance” on that finding as set out in paragraphs 70–71 of the trial judge’s reasons for judgment?

Issue 1: Did the trial judge err in law in formulating the test to be applied in determining disposition?

[128] Within this ground of appeal the appellant groups four asserted errors by the trial judge, which he says combine to demonstrate that the manner in which he arrived at his disposition was legally flawed and patently inconsistent with the provisions of the CFSA, as set out below.

[129] First, the appellant asserts that the trial judge conflated his obligation to determine the disposition that was consistent with the child’s best interests (including considerations related to the child’s Native status), with the imposition of an erroneous standard that required the existence of “ideal circumstances,” before an order could be made placing S.S.-G. in the care of his Native parent J.G.

[130] Second, the appellant asserts that the trial judge’s disposition is inconsistent with the statutory requirements of ss. 57(4) and (5) of the CFSA, which mandate the court to place an Indian or Native child with one of the persons enumerated therein, absent a substantial reason to place the child elsewhere.

[131] Third, the appellant submits that the trial judge’s application of the best interests test was flawed because he relied on a “speculative theory” offered by A.S., in her evidence, regarding the possible emotional harm that might result if S.S.-G. had contact with J.G., while simultaneously ignoring “accepted negative effects of Indian children being deprived of the opportunity to develop strong, cultural self-identity through being raised directly within their own Native family and community.”

[132] Fourth, the manner in which the trial judge determined disposition amounted to a reversible error because he ignored evidence with respect to the extensive resources that are available through the Aamjiwnaag First Nation, to immerse the child in his culture and traditions and the Ojibwae language.

[133] After reviewing the record and the trial judge’s reasons for judgment I am not persuaded that he engaged in any of the errors identified by the appellant in this aspect of his appeal. I will explain.

[134] I turn first to the assertion that the trial judge erred by applying a standard of “ideal circumstances” when evaluating the merit of J.G.’s Plan of Care. It appears that the genesis of this asserted ground of appeal is found at paragraph 188 of the trial judge’s reasons, in which he states:

To repeat what has been said before, when dealing with a native child, the ideal would have the court place the child with the child’s native parent. However, where ideal circumstances are not present, the court must ascertain, having regard to all of the facts presented, what result is genuinely in the child’s best interest. [Emphasis added.]

[135] Based on the foregoing, together with the result of the trial, the appellant submits that the trial judge proceeded on the basis that placing S.S.-G. in the care of his Native father had to be found to be “an ideal situation” before a disposition in that regard could be made. The provisions of the CFSA do not support the imposition of such a standard.

[136] The difficulty I have with this aspect of the appellant’s submissions is twofold. First, on a plain reading of the foregoing passage, I am not persuaded that it demonstrates that the trial judge determined disposition through the application of an “ideal situation standard”, as J.G. asserts.

[137] Instead, the trial judge correctly states the manner in which his disposition was to be determined in paragraph 188 as follows: “[the] court must ascertain, having regard to all of the facts presented, what result is genuinely in the child’s best interests.” In the balance of his reasons, he engages in the best interests analysis to which he averted.

[138] Second, to the extent that the trial judge’s comments, in paragraph 188 of his reasons, create any ambiguity with respect to whether the trial judge applied the correct legal principles in arriving at his disposition (and I do not find that they do), that portion of his reasons must be read in the context of his reasons as a whole to give it proper effect, a proposition which finds support in R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759, at para. 103. There, Lamer C.J.C. cites with approval the following passage from the reasons of the majority of the Newfoundland Court of Appeal in the same proceeding:

It is not sufficient to “cherry pick” certain infelicitous phrases or sentences without enquiring as to whether the literal meaning was effectively neutralized by other passages. This is especially true in the case of a judge sitting alone where other comments made by him or her may make it perfectly clear that he or she did not misapprehend the import of the legal principles involved. As McLachlin J. said in [R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 737]: “[t]he fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence.”

[139] Similarly, in R. v. Morrissey, 1995 CanLII 3498, 22 O.R. (3d) 514 (C.A.), Doherty J.A. instructs, at p. 524 [cited to O.R.]:

[I]t is wrong to analyze a trial judge’s reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole: R. v. C.(R.) (1993), 1993 CanLII 142 (SCC), 81 C.C.C. (3d) 417 at p. 418 (Que. C.A.), per Rothman J.A. in dissent at p. 419; dissenting reasons adopted by the Supreme Court of Canada [1993] 2 S.C.R. 226, 81 C.C.C. (3d) 417; R. v. Telmosse (1945), 1944 CanLII 401 (SCC), 83 C.C.C. 133 at p. 138, [1945] 1 D.L.R. 779 (S.C.C.). Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.

[140] Finally, at p. 524 of Morrissey, Doherty J.A. states:

Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over the one which suggests an erroneous application of the law. [Citation omitted.]

[141] In applying the foregoing principles, it is clear that the structure and content of the trial judge’s reasons as whole, confirm that he applied the correct “best interests of the child” test in determining disposition. His finding that “when dealing with a native child the deal would have the court place the child with the child’s native parent” is entirely consistent with the evidence he accepted from the appellant J.G., V.W. and Laura Rogers, respectively, about the benefits that accrue to a Native child when that child is raised by his or her Native parent as part of the First Nation community to which the child belongs. My view in that regard is further solidified by the trial judge’s finding, at paragraph 115 of his reasons, in which he states:

Furthermore, the court concludes that the teaching and learning by infants and children of those precious elements of the child’s Indigenous culture is best served living within the community where there is application daily within which a child may share with family, extended family and friends within the community, the traditions and practices including among many, daily prayers, songs, smudging, dancing and the learning and speaking of the Native language.

[142] In addition, the totality of the trial judge’s reasons, clearly demonstrates that his dispository determination was exclusively focused on, and guided by, a comprehensive and multi-factored consideration of S.S.-G.’s best interests in accordance with the statutory provisions of the CFSA, see: paras. 173, 175, 178, 179–181, 184 and 189–196 of the Reasons.

[143] Through the course of his reasons: the trial judge carefully reviewed the evidence informing the child’s best interests in a fulsome and accurate manner; he appropriately identified and resolved conflicts within that evidence including reasoned findings with respect to credibility and reliability; he correctly instructed himself on the law applicable to the determination of the child’s best interests; and he applied that law to the facts as found, in determining disposition. As a result of the foregoing I do not give effect to this aspect of the appeal.

[144] Similarly, I find no basis to conclude that the trial judge erred by failing to consider and apply the provisions of ss. 57(4) and (5) of the CFSA, or as the appellant specifically asserts, that the trial judge thwarted the intention of those sections through his disposition.

[145] Section 57(4) of the CFSA obliges the court to consider whether it is possible to place a child with a relative, neighbour or other member of the child’s community or extended family before making an order for society or Crown wardship under paragraphs 2 or 3 of s. 57(1) of the CFSA, in circumstances where the court determines that it is necessary to remove the child from the care of the person who had charge of him immediately before intervention under Part III of the CFSA (which was not J.G., in this case). Where the child referred to in s. 57(4) is an Indian or a Native person and in the absence of a substantial reason for placing the child elsewhere, s. 57(5) obligates the court to place the child with a member of the child’s extended family, a member of the child’s Band or Native community; or another Indian or Native family.

[146] The appellant posits that the trial judge’s disposition (a custody order pursuant to s. 57.1(1) of the CFSA in favour of the child’s non-native maternal grandmother) is indicative of the trial judge’s failure to discharge the court’s statutory obligation to place the child with one of the persons enumerated in s. 57(5) of the Act. For the reasons that follow, I disagree.

[147] First, the trial judge expressly referred to the provisions of ss. 57(4) and (5) of the CFSA prior to arriving at his disposition: see paras. 173–177 of the Reasons.

[148] Second, the trial judge did not make an order for society or Crown wardship under s. 57(1) of the CFSA which, in accordance with the provisions of s. 57(4) of the CFSA, are the potential dispositions that trigger the court’s obligations pursuant to ss. 57(4) and (5) of the CFSA. The combined effect of ss. 57(4) and (5) mandates that before a court can make an order of society or Crown wardship with respect to an Indian or Native child, it must be satisfied that there is a substantial reason for doing so instead of placing the child with a person falling within the scope of s. 57(5)(a)–(c). In this instance, the trial judge did not make (nor did the Society seek) an order of society or Crown wardship pursuant to s. 57(1) of the CFSA. Therefore, the statutory pre-condition required to render ss. 57(4) and (5) operable was absent.

[149] The trial judge’s order of custody was made pursuant to s. 57.1 of the CFSA and therefore deemed to be an order made under s. 28 of the Children’s Law Reform Act. Section 57.1 of the CFSA does not contain provisions similar in effect, to those set out to ss. 57(4) and (5) of the CFSA, despite other provisions that apply specific subsections of s. 57 to s. 57.1 of the CFSA. For example, s. 57(2) requires the court to inquire what efforts the Society or another agency or person has made to assist the child before intervention under Part III of the CFSA, when the court determines which order to make under s. 57 or 57.1 of the CFSA. Similarly, by virtue of s. 57.1(7) of the CFSA, s. 57(3) applies for the purposes of s. 57.1 of the CFSA.

[150] This court was not directed to any authority, statutory or otherwise, that extends the application of ss. 57(4) and (5) of the CFSA to s. 57.1 custody orders. That does not diminish the importance of the child’s Native heritage, culture and identity in the determination of whether a proposed custody order accords with the child’s best interests (and para. 2 of s. 1(2) of the CFSA recognizes as much). However, it remains that the “placement” mandate prescribed by ss. 57(4) and 57(5) of the CFSA does not expressly apply to a custodial disposition under s. 57.1 (which is not a wardship order under paras. 1 or 2 of s. 57(1) of the CFSA). In the context of the foregoing, it is difficult to envision how the trial judge’s custodial order operated to thwart the “intention of ss. 57(4) and (5)” in this instance, as the appellant asserts.

[151] Third, although s. 57(5) of the CFSA recognizes the importance of protecting and encouraging the ongoing connection and placement of an Indian or Native child within his or her Native community, it does not usurp the court’s mandate to determine disposition solely in accordance with the child’s best interests, as informed by all relevant evidence and factors including the child’s Native heritage (if applicable) and the importance of preserving the child’s cultural identity. In this case, the trial judge clearly, and with great detail, articulated his reasons for concluding that the child’s best interests were served by a custodial order in favour of A.S.

[152] Recall, that the court was presented with Plans of Care and evidence supporting two dispositions: a custody order in favour of A.S.; or placing the child in J.G.’s care subject to supervision, with three variations to achieve that result. Despite ongoing efforts by the Society to communicate with the Band and to seek its involvement with respect to S.S.-G., the Band did not actively participate in the original protection proceeding or the Status Review proceeding. The Band Representative was afforded leave to attend and remain in the courtroom throughout the trial and ultimately, she gave evidence. Apart from a placement with J.G., there were no other potential placement options identified to the court that were consistent with the provisions of s. 57(5)(a)–(c) of the CFSA, nor was there any evidence of a Plan of Care associated with such a placement (apart from the one put forward by J.G.).

[153] I have previously reviewed the factors that lead the trial judge to conclude that, notwithstanding J.G.’s Plan of Care, the custody order that he ultimately made was in S.S.-G’s best interests, which I will not repeat. In my view, the findings made by the trial judge in that regard are capable of being supported by the evidence before him. As a result, I do not give effect to this aspect of the appeal.

[154] Turning to the appellant’s third asserted error, I find no basis to conclude that the trial judge relied on a “speculative theory” offered by A.S. regarding the possibility that the child would suffer emotional harm if he had contact with his father while also ignoring the negative effects accruing to Indian children who are denied the opportunity to develop strong, cultural self-identity by being raised directly within their own Native family and community. I will explain.

[155] First, I am not persuaded that the trial judge made factual findings based on speculative evidence from A.S. In her evidence, A.S. expressed safety concerns with respect to J.G. based on the nature of his criminal record and her own experience with him. Her concerns included her own subjective fear of J.G. as well as concerns for S.S.-G., who had not been in the physical presence of J.G. since December, 2014. However, a careful reading of the trial judge’s reasons as a whole and paragraphs 186–197, in particular, fails to demonstrate that A.S.’s evidence with respect to her concerns about J.G. as they related to S.S.-G., was an essential or operative element of his findings with respect to child’s best interests and the custody disposition that followed.

[156] Second, I am not persuaded that, in the absence of expert evidence on the point, the court erred in finding that disrupting S.S.-G.’s placement with A.S. would be adverse to his best interests, as the appellant asserts. The evidence before the trial judge disclosed that in the entirety of his life, the then three-year-old S.S.-G. had only been in the joint direct care of J.G. and B.S. for an approximate total of three days, which occurred when he was less than one month old. Since that time he had only been in the presence of J.G. six times, during supervised access visits, the last of which occurred in December 2014 when S.S.-G. was less than one year old. Conversely, the child resided with A.S. for virtually all of his life and he had been in her direct and primary care, in which he thrived, for approximately one and one-half years prior to trial.

[157] In those circumstances, I do not accept that it was an act of impermissible speculation for the trial judge to find, in all the circumstances before him, that it would be adverse to the child’s best interests to disrupt that placement. Rather, in my view, that finding was the product of a reasonable and logical inference arising from the evidence before him.

[158] Indeed, at paragraphs 189 and 196 of his reasons, the trial judge concludes on the evidence, that the child’s status quo (in the care of A.S.) resulted in an environment where the child thrived and it provided him with a secure, nurturing home environment, where his needs, including mental, emotional, physical and otherwise, were met. He found the child’s future prospects in that setting, were quite positive. Based on those findings he concluded, as he was capable of doing on the evidence before him, that the disruption of that placement would adversely impact the child’s best interests, particularly because he found that the child’s placement with A.S. served the child’s best interests in every respect, notwithstanding his Native status and the father’s plan (the weaknesses of which, as found by the trial judge, are set out at paras. 190–195 of his Reasons).

[159] Third, I am not persuaded that, as the appellant suggests, the trial judge ignored the potential deleterious impact that may befall the cultural identity and development of a Native child who is not raised by a Native parent in the First Nation community of which he or she is a member.

[160] In arriving at that conclusion, I am mindful of the respondent A.S.’s submission that no expert evidence was adduced on this point. However, it is appropriate for courts to take judicial notice of matters such as the history of colonialism, displacement and residential schools in order to provide the necessary context for understanding and evaluating case-specific information presented by counsel: see R. v. Ipeellee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 60, Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, at para. 54. In my view, the trial judge remained cognizant of the appropriate contextual background as it relates to the child’s Native heritage, culture and self-identity when he evaluated the case-specific information presented at trial and he considered it when determining the child’s best interests and disposition.

[161] In that regard, the trial judge received evidence with respect to: the importance of a Native child’s daily immersion in cultural teachings, ceremonies and activities; the resources available to S.S.-G. in that regard through his Native parent, J.G., and his First Nation and its community; the individual experiences of J.G., V.W. and Laura Rogers as Native persons who were not primarily raised on their First Nation territory, but took up residence there in their adult life; and the experiences of members of V.W. and J.G.’s extended family who were impacted by residential school issues (as set out in V.W.’s evidence). In addition, the trial judge reviewed, referenced and considered the content of the Final Report of the Truth and Reconciliation Committee of Canada.

[162] As a result, I am satisfied that in arriving at his disposition, the trial judge was mindful of, and averted to, the negative impact to the preservation of S.S.-G.’s cultural identity that may accrue, if the child resides outside of the Aamjiwnaang First Nation territory, in the custody of his non-Native grandmother. The trial judge’s reasons also demonstrate that his findings and disposition were made in accordance with the child’s best interests as he determined them, after careful consideration of all of the evidence, including the child’s Native status and the contextual considerations that his status in that regard mandates.

[163] Finally, the trial judge’s reasons as a whole, conclusively answer the appellant’s assertion that he erred by ignoring the resources of the Aamjiwnaang First Nation that are available to immerse the child in his culture, teachings and the Ojibwae language. His reasons make clear that the trial judge did not ignore the evidence about those services. To the contrary, his reasons demonstrate that in determining disposition he fully apprehended and had careful regard for the evidence of J.G., V.W., Laura Rogers, and Amy Vanderlinde in that regard (see e.g. paras. 110–113, 115, 117, 118, 154, 166, and footnotes 119–123 and 126–129, together with the Appendix to the Reasons) and he ultimately found at paragraph 115 of his reasons, “[that] the teaching and learning by infants and children of those precious elements of the child’s indigenous culture is best served living within the community”. However, the trial judge’s task did not end with that finding. Although First Nation issues had to seriously inform the trial judge’s determination of S.S.-G.’s best interests, he was required to consider his findings in that regard, together with all of the other relevant evidence and factors informing the child’s best interests to arrive at a disposition. He did so.

[164] In this instance the trial judge’s reasons demonstrate that he had serious regard for the evidence with respect to the nature and availability of services to S.S.-G. through the Aamjiwnaang First Nation, as he weighed and considered the various relevant factors in determining the disposition that was consistent with S.S.-G.’s best interests. As a result of the foregoing, this aspect of the appeal fails.

Issue #2: Did the trial judge err in the weight he gave to the appellant father’s criminal record, as referenced in paragraphs 100-101 of the Trial Judge’s Reasons for Judgment?

[165] The appellant asserts that the trial judge erred in the weight he afforded to the evidence of J.G.’s criminal record, as referenced in paragraphs 100–101 of his reasons for judgment. The body of evidence before the trial judge about J.G.’s criminal record was relatively robust. The parties put the particulars of J.G.’s entire criminal record before the court in the form of an agreed statement of fact. Further, without objection from J.G.’s counsel, the Society filed as exhibits various criminal informations relating to several of J.G.’s criminal convictions. Finally, in his trial affidavit and viva voce evidence, J.G. deposed to the circumstances surrounding certain of his criminal convictions.

[166] The reasons do not disclose a basis for concluding that the trial judge misapprehended the above referred evidence, and therefore, the weight to be afforded to that evidence was a matter within the trial judge’s discretion and is, in the absence of a palpable and overriding error, the subject to deference on appeal. In my view, the trial judge did not commit such an error. I will explain.

[167] Paragraph 100 of the reasons, is limited to the court’s observation that details of the appellant’s “extensive criminal record” were provided by way of admitted facts and exhibits. That statement is accurate. In my view, given the totality of the appellant’s criminal record, the trial judge’s description of it as “extensive” is a reasonable one.

[168] In paragraph 101, the trial judge finds that in his evidence, J.G. attempted to minimize his involvement in criminality, as it relates to the child’s mother B.S. That finding is reasonably capable of being supported by the evidence. Specifically, the exhibits filed at trial, together with the agreed statement of facts evidence that the appellant pled guilty to assaulting B.S. in an incident that occurred in February, 2014. Conversely, in his affidavit and viva voce evidence at trial, the appellant denied that he assaulted B.S. In cross-examination, he explained that he thought he was pleading guilty to a different offence, at the time he pled guilty to assaulting B.S. Based on those stark inconsistencies in the evidence, it was open for the trial judge to conclude that J.G.’s innocent explanation of the events surrounding his assault against B.S., were an attempt to minimize his involvement in that criminal conduct.

[169] The balance of paragraph 101 consists of the trial judge’s observation that J.G. did not adduce a transcript of the facts upon which he entered his guilty plea in relation to the assault involving B.S. or a transcript of the sentencing that followed. Presumptively, those transcripts would have been of assistance when evaluating J.G.’s evidence that he thought he was pleading guilty to an offence other than the February 2014 assault against B.S.

[170] In short, the content of paragraphs 100 and 101 of the reasons, does not support the appellant’s assertion that the trial judge placed inappropriate weight on J.G.’s criminal record. Those paragraphs do not speak to the weight, if any, that the trial judge placed on J.G.’s criminal record when determining disposition. Further, the trial judge does not expressly advert to J.G.’s record, at all, in paragraphs 186–197 of his reasons, in which he makes findings with respect to the child’s best interests and determines disposition. He does refer to historic domestic violence in paragraph 194 of his reasons, but does so in the context of reviewing concerns held by the Sarnia-Lambton CAS. Similarly, the effect of the probation order made with respect to J.G. is referenced in paragraph 198 of the reasons, in the context of determining appropriate terms of J.G.’s access. Neither of these references evidence that the trial judge placed unreasonable weight on J.G.’s criminal record or otherwise engaged in a palpable and overriding error in that regard.

[171] Finally, the weight to be afforded to individual pieces of accepted evidence is a matter that fell within the discretion of the trial judge. In the context of the foregoing, a determination by this court that it would have afforded less weight to the evidence concerning the appellant’s criminal record than the trial judge did, would not serve as adequate justification for this court to intervene, on review.

[172] For the reasons above, I do not give effect to this ground of the appeal.

Issue #3: Did the trial judge err in finding that the respondent A.S. “was committed to embracing the child’s heritage and ensuring that his cultural needs are met” and by placing “considerable reliance” on that finding, as set out in paragraphs 70–71 of the trial judge’s reasons for judgment?

[173] The appellant asserts that the trial judge erred in the manner in which he assessed and weighed A.S.’s evidence concerning her willingness and ability to recognize and support the development of the child’s cultural identity through involvement in Indigenous cultural activities and teachings. As framed, this aspect of the appeal is primarily founded in paragraphs 70 and 71 of the trial judge’s reasons.

[174] In paragraph 70 of his reasons, the trial judge accurately recounts A.S.’s evidence that “she was committed to embracing the child’s heritage and ensuring that his cultural needs are met.” In paragraph 71 of his reasons, the trial judge finds that A.S. “gave her evidence in a truthful, forthright and candid fashion.” He found her to be “credible and trustworthy” and he placed “considerable reliance” on her evidence. The appellant asserts that in reaching those findings, the trial judge erred. In evaluating the merit of that assertion, it is helpful to review A.S.’s evidence on the issue.

[175] In her affidavit filed at trial, A.S. deposed to her commitment to meet the Indigenous cultural needs of the child. She also testified about her historical and ongoing connection with the Magnetawan First Nation, of which both B.S. and the child’s paternal grandfather were members.

[176] A.S. was cross-examined with respect to her efforts to recognize and support B.S.’s native heritage and culture needs when she was a child. In that regard, she testified that: B.S. took Ojibwae classes on an annual basis in school; she and B.S. consistently socialized and interacted with A.S.’s Native friends and family; and she brought B.S. to approximately a dozen Pow Wows. A.S. concedes that B.S. never received an Indian name, nor did she involve B.S. in other cultural activities, because B.S. never expressed an interest in them. Had she done so, A.S. would have facilitated B.S.’s involvement in such activities.

[177] A.S. was also vigorously cross-examined by J.G.’s counsel about her efforts to preserve and develop S.S.-G.’s cultural identity through participation in Native activities and teachings. A.S. described, in detail, the nature of the naming ceremony performed by Wikwemikong Elder Richard Assinawei (an Elder with whom the appellant father has interacted) and S.S.-G.’s involvement in smudging and drumming with an Elder. She believed he was an appropriate individual to conduct S.S.-G.’s naming ceremony because he regularly visited the Aamjiwnaang First Nation. She also brought S.S.-G. to a Pow Wow (sponsored by the Can Am Aboriginal Centre), which was held in Windsor, Ontario.

[178] A.S. acknowledged that her original Plan of Care for S.S.-G., which was made in the context of the original protection proceeding, contemplated involving the child attending at and participating in activities and teachings at the Aamjiwnaang First Nation territory. However, as A.S. explained in cross-examination, the terms of the probation order imposed on J.G. following criminal convictions on February 1, 2016, prohibited direct or indirect contact between A.S. and J.G. A.S. repeatedly testified that, in essence, her ability to bring S.S.-G. to the Aamjiwnaang First Nation community where J.G. resides was frustrated as a result of that term. She testified that after the probation order was made, she did not view the Reserve as “a safe place for her to be” and until that changed, she was committed to involving S.S.-G. in Native activities at other places. Nonetheless, she remained willing to bring S.S.-G. to the Aamjiwnaang First Nation territory if “things changed.” She testified that the terms of the probation order made it impossible for her to develop a relationship with the appellant father as at the time of trial.

[179] Paragraphs 63–70 of the trial judge’s reasons demonstrate his appreciation of the foregoing aspects of A.S.’s evidence.

[180] In the appellant’s view, based on the content of A.S.’s cross-examination, the trial judge erred in accepting her evidence concerning her commitment to embrace S.S.-G.’s Native heritage and to ensure that his cultural needs are met. He further submits that to the extent that evidence was accepted it should have been given little weight (see: para. 57 of the Appellant’s Factum). Finally, the appellant asserts that the trial judge engaged in an unreasonable exercise of discretion by determining that A.S.’s “promise” with respect to S.S.-G.’s heritage and culture, was a sufficient basis for overriding his right as the child’s surviving Native parent, to determine how the child’s cultural needs are best met.

[181] For the reasons that follow, I do not give effect to this aspect of the appeal.

[182] First, the appellant’s suggestion that the trial judge erred by believing and accepting A.S.’s evidence with respect to her “commitment” to meet S.S.-G.’s cultural needs, despite her evidence in cross-examination, is a challenge to the trial judge’s credibility finding with respect to A.S. A credibility determination is a question of fact and ultimately, it is a matter that must be left to the common sense of the trier of fact. A trier of fact’s assessment of a witness’ credibility attracts great deference on appellate review, given the advantage the trier of fact has in seeing and hearing the witness’ evidence see: R. v. W.(R.) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 131.

[183] In reaching his findings with respect to A.S.’s credibility, the trial judge carefully considered all of the evidence, including A.S.’s evidence in cross-examination. His finding that A.S. was credible and his concordant acceptance of her evidence with respect to her commitment to the child’s heritage and cultural needs, is entitled to deference. It is also a finding that is reasonably supported by the available evidence and the appellant has failed to demonstrate that it resulted from any error, let alone a palpable and overriding one.

[184] Instead, the appellant’s submissions focus on advocating a credibility finding with respect to A.S. that he submits the trial judge “ought to have made.” Had he done so, J.G. reasons that the trial judge would have or should have rejected A.S.’s evidence about her commitment to ensuring that S.S.-G.’s cultural needs are met. It remains, however, that based on the evidence before him, the trial judge was capable of finding A.S. to be credible and trustworthy and accepting her evidence as he did. Those were matters within his discretion and on the available record, I am unable to conclude that he erred in exercising his discretion in that regard.

[185] Second, to the extent that this aspect of the appellant’s appeal is founded in the weight that the trial judge afforded to A.S.’s evidence, it must fail. The weight afforded to A.S.’s evidence was a matter within the trial judge’s discretion, and I am unable to conclude on the record before me that he exercised that discretion in an erroneous or unreasonable manner. Further, the appellant fails to identify the specific basis upon which he asserts the trial judge erred in affording weight to A.S.’s evidence. Instead, his submissions are directed at identifying the weight he says the trial judge ought to have afforded to the evidence (i.e. to the extent A.S.’s evidence was accepted it should be given little weight). That is not a justification for appellate intervention.

[186] Third, the appellant misconstrues the trial judge’s acceptance of A.S.’s evidence concerning her commitment to the child’s heritage and culture as a “promise” by A.S. that, in turn, prompted the trial judge to embark on a “speculative experiment” through the terms of his disposition, one that risked the child’s cultural identity (see the Appellant’s Factum, at para. 81).

[187] A thorough review of A.S.’s evidence at trial, together with the trial judge’s reasons discloses that A.S. did not offer such a promise and the court did not seek one. Instead, A.S. gave evidence with respect to her commitment to maintaining the child’s heritage and culture and the efforts that she had engaged in to do so, prior to trial. The trial judge was well-positioned to accept that evidence.

[188] I am mindful of the trial judge’s indication at paragraph 197 of his reasons, that he relied upon A.S.’s evidence acknowledging the importance of the child’s cultural connection to his Indigenous community, in arriving at the disposition ordered. Further, although it was not part of the court’s dispositive order, the trial judge also observed at paragraph 197 of his reasons, that A.S. would be charged with a duty and an obligation to ensure that the connection between the child and his Indigenous community is maintained “as best as can be done under the circumstances” so that the child’s identity with his community and his Indigenous roots takes hold. However, it remains that the trial judge did not make a factual finding that A.S. made “the promises” that the appellant repeatedly asserts in both his factum and submissions (including a promise to do better meeting the cultural needs of S.S.-G. than she did with her own daughter B.S.) nor did he find that A.S. breached any promises concerning S.S.-G.’s heritage and culture, as the appellant asserts. On the evidence before him he was not compelled to do so. Therefore, to the extent that this ground of the appellant’s appeal is founded on “the promises” that the appellant asserts A.S. made in the course of her evidence and her asserted breach of those promises, it is misguided.

[189] Fourth, in my view, a reasonable reading of the trial judge’s reasons as a whole, fails to demonstrate that he “erroneously” engaged in an “experiment” with respect to the child’s cultural identity that was rooted in speculation concerning A.S.’s willingness and ability to meet the child’s cultural needs.

[190] To the contrary, throughout his reasons, the trial judge remained mindful of the importance of maintaining the child’s connection to his Indigenous heritage and culture. He accepted A.S.’s evidence the she was committed to doing so. He went on to determine the disposition that was consistent with the child’s best interests by considering the evidence as a whole and the factors set out in s. 37 of the CFSA that he felt were relevant in the circumstances before him. He found that on issues related to the child’s Native heritage and ongoing cultural needs, placement with a Native parent was ideal. As I have previously set out, that finding was not the only consideration that was relevant to the determination of the child’s best interests and the trial judge, quite correctly, did not limit his determination of “best interests” to that single factor. His disposition was the result of the totality of his reasoned consideration and determination of S.S.-G.’s best interests, which was conducted in the absence of any error and most definitely was not the product of a speculative experiment, as the appellant urges.

[191] For the foregoing reasons, I do not give effect to this ground of the appeal.

Conclusion

[192] In summary, the trial judge’s reasons as a whole, reflect that he: made findings of credibility, reliability and ultimately fact through a reasonable exercise of his discretion; arrived at findings of fact that are capable of being supported by the evidence; correctly identified and considered the applicable law; and correctly applied the law in arriving at his disposition. A reasonable reading of the trial judge’s reasons demonstrates that in determining disposition, he was consistently mindful of: the child’s Native status; J.G.’s Native status; the great benefit derived by placing a Native child with his Native parent; the nature and extent of services offered by the Band and the importance of preserving the child’s cultural identity (in accordance with s. 37(4) of the CFSA).

[193] Therefore, for all of the reasons stated above, I do not give effect to any of J.G.’s grounds for appeal. I will now consider the fresh evidence and its impact on the result of this appeal.

Fresh Evidence

[194] With leave, each of the Society, J.G. and A.S. adduced fresh evidence on the appeal and the Band provided additional information about the fundamental cultural beliefs of the Aamjiwnaang First Nation. Below, I will summarize that evidence and information and determine its impact on the result of this appeal.

Fresh Evidence of the Appellant J.G.

[195] J.G. delivered fresh evidence in the form of two affidavits sworn by him on July 22, 2017 and September 16, 2017, respectively, together with updated information concerning developments in the protection proceedings commenced by the Sarnia-Lambton CAS. Portions of J.G.’s affidavits were struck and other portions of his affidavits were admitted only as proof of J.G.’s belief about certain positions that he attributes to the Sarnia-Lambton CAS.

[196] In his affidavit sworn July 22, 2017, J.G. adopts the contents of a document entitled “Contents of Affidavit [J.G.] sworn July 22, 2017.” The portions of that document that were not struck generally indicate:

a) Sometime after the trial in this proceeding, J.G. terminated his relationship with JuGr. However, JuGr refused to leave the residence that they shared. J.G. was in the process of obtaining a restraining order against her;

b) J.G. was now providing direct care to his two young daughters on a daily basis pending their return to his sole care at his residence [as detailed later below, the children involved in the Sarnia protection proceeding were apprehended from JuGr’s care in May 2017. At that time, J.G. was incarcerated, as a result of criminal allegations made against him by JuGr sometime after the trial in this proceeding.];

c) A criminal proceeding was initiated against J.G., post-trial, by JuGr and was eventually withdrawn by the Crown on July 11, 2017;

d) J.G. believed that the Sarnia-Lambton CAS supported a plan whereby he would parent his two young daughters, on his own, under terms of supervision. He also believed that the Sarnia-Lambton CAS did not have concerns about his ability to protect those children or about his parenting skills;

e) J.G. characterized his extended family as “good supports,” who welcomed the addition of S.S.-G. to his household;

f) J.G. regularly attended NA meetings until a week prior to swearing his July affidavit, when JuGr attended the same meeting. In an effort to avoid contact with her, J.G. opted to pursue alternative support from an informal sponsor and he planned to attend an alternative meeting site.

g) J.G. participates in a welding program on a daily basis from 7:30 a.m. to 12 p.m., after which he attends at his sister’s house and cares for his daughters until their bed-time;

h) Post-trial J.G. engaged in access with S.S.-G. by Skype contact, through which he introduced S.S.-G. to his half-sisters. The Skype sessions lasted approximately 20 minutes, on a weekly basis, as “often as practically can be arranged.” In order to facilitate this form of access, A.S. removed certain “non-contact restrictions” through J.G.’s probation officer;

i) J.G. continued to participate in Native traditions and culture and he continued to immerse his daughters in their Aamjiwnaang First Nation heritage and culture, on a daily basis.

[197] In his affidavit sworn September 16, 2017, J.G. generally deposes that:

1. On September 12, 2017, a temporary order was made by the Ontario Court of Justice, placing his daughters in his exclusive care, subject to supervision. He had established a regular home routine with his daughters that includes Native teaching and traditions. He believed that the Sarnia-Lambton CAS found his home to be suitable for children;

2. He used the Ojibwae language in daily Native ceremonies and when speaking with Elders and his daughters. His daughters attended daycare, where Ojibwae was spoken on a daily basis;

3. The Aamjiwnaang First Nation is now a signatory to “an education agreement with outside governments” that empowers it to set its own education courses for Native students from kindergarten to grade 12. J.G. opined that S.S.-G. would benefit from these changes if he resided with him;

4. J.G. continued to work with a family services worker through the Sarnia-Lambton CAS;

5. J.G. has not had any further involvement with JuGr. Although he wanted to raise a family with her, he has concluded that it is not possible;

6. J.G. attests that he: completed the Native Father’s course; is successfully maintaining sobriety; and is continuing to attend welding courses, which are scheduled until January 2018. His daughters attend daycare while he is in class;

7. J.G. believes that the addition of S.S.-G. to his household would benefit all of his children. S.S.-G was “familiar” with his sisters through Skype contact. However, there were logistical barriers to implementing Skype access because he had to attend at someone else’s home to use it. He felt Skype was a “poor replacement” for actual physical contact with S.S.-G. Nonetheless, S.S.-G. appeared receptive to him on Skype and knew J.G. as his father;

8. There are service providers both on and off the Aamjiwnaang First Nation who are able to assist in smoothly transitioning S.S.-G. into J.G.’s care.

[198] A letter from Amy Vanderlinde (Indigenous worker, Sarnia-Lambton CAS) and Lisa Morris (Indigenous manager, Sarnia-Lambton CAS) dated July 18, 2017 is appended as an exhibit to J.G.’s affidavit sworn September 16, 2017. The letter indicates, among other things, that:

a) On May 26, 2017 the two children that were the subject of the Sarnia protection proceeding were apprehended from the care of their mother [JuGr] and placed with an extended family member. At the time J.G. was incarcerated on charges brought forward by JuGr. Those charges were formally withdrawn on July 11, 2017;

b) Since his release from jail in early June 2017, J.G. has remained an active part of his daughters’ lives and he engaged in near daily contact with them. J.G. was cooperating with the Society and advanced a plan to resume care of the children in the near future;

c) J.G. was now enrolled in a welding course and planned to maintain the children in daycare upon their return to his care. He enrolled in the Circle of Security Parenting Program and the Native Fathers Learning course. He attended Narcotics Anonymous on a daily basis and was able to maintain sobriety since a relapse in March 2017 [J.G. did not depose to his post-trial relapse in either of his affidavits filed on this appeal];

d) The primary obstacle that J.G. faced in resuming care of his children was regaining sole occupation of his home.;

e) The children were observed to be affectionate with J.G. and his interactions with them are positive.

[199] J.G.’s counsel advises that a final order has been made in the context of the Sarnia Status Review proceeding, placing J.G.’s daughters in his care subject to supervision.

The Society’s Fresh Evidence

[200] In her affidavit sworn August 24, 2017, Society worker Rebecca Ross deposes that she has had carriage of the Society’s involvement with S.S.-G. since April 13, 2015. The Society’s file was originally opened when S.S.-G. was residing with his mother, B.S. Ms. Ross observes that there have never been any concerns with A.S.’s care of S.S.-G.

[201] The fresh evidence adduced by the Society follows updated file disclosure from the Sarnia-Lambton CAS, which was shared with both the Society and J.G.’s counsel, the details of which are set out below.

[202] The Sarnia-Lambton CAS commenced a Status Review application in that proceeding in May 2017, following the final order of McFadyen J. made November 1, 2016 in the Sarnia protection proceeding placing the two children involved in that proceeding in the joint care of J.G. and JuGr, subject to CAS supervision. The application indicates, among other things, that:

a) J.G. was charged with assaulting JuGr on or about May 21, 2017;

b) J.G. tested positive for crystal methamphetamine on or about March 9, 2017;

c) The children were apprehended from the care of JuGr on May 26, 2017, secondary to concerns that JuGr and another male person were using methamphetamine while JuGr was in a caregiving role to the children;

d) In April and May 2017, JuGr reported concerns that J.G. might be sexually abusing one of their daughters. There were additional concerns that J.G. and JuGr were using drugs and that they had been fighting at a Ronald McDonald house, where they stayed in April 2017, while one of their daughters was hospitalized in London. Both parents denied drug use;

e) On May 14, 2017 the Sarnia-Lambton CAS received a police report outlining a verbal dispute between J.G. and JuGr. JuGr alleged that J.G. had been smoking crystal methamphetamine.

f) J.G. was arrested on May 21, 2017 as a result of an alleged assault against JuGr;

g) The Sarnia-Lambton CAS sought an order placing the children in the care of V.W., subject to CAS supervision for a period of six months, together with supervised access in favour of J.G. and JuGr;

[203] Eventually, the Sarnia-Lambton CAS delivered an amended Status Review application asserting:

a) A without prejudice order was made on May 31, 2017 placing the two children in the care of V.W. with access to each parent at the discretion of the Society;

b) JuGr recanted her allegation that J.G. assaulted her. Thereafter, J.G. was released from custody on June 6, 2017;

c) The Sarnia-Lambton CAS was concerned that J.G. was aware of protection concerns in the family’s home and took no action to address the issues or to report them;

d) The Sarnia-Lambton CAS held concerns with respect to both J.G. and JuGr.

[204] On August 21, 2017 Ms. Ross spoke with Ms. Vanderlinde who advised:

a) A new Sarnia-Lambton CAS worker had been assigned to the Sarnia protection matter;

b) JuGr was actively using drugs;

c) J.G. was doing much better than JuGr. He was in a welding course. He attended V.W.’s home on a daily basis when the children were in her care. The children were in J.G.’s direct care for extended periods of time;

d) The Sarnia-Lambton CAS plan was to return the two children to J.G.’s care in September 2017;

e) The assault charge was withdrawn against J.G. after JuGr recanted her allegations. JuGr had made attempts to reconcile with J.G. and to return to their home. In response, J.G. would either call the police or go to his father’s house;

f) J.G. appeared to be “doing well” with relapse prevention counselling.

Fresh Evidence of the respondent maternal grandmother, A.S.

[205] A.S. was granted leave to file fresh evidence in the form of an affidavit sworn by her on August 9, 2017, in which she reiterates the terms of Phillip J.’s order requiring her to facilitate weekly Skype access and to provide J.G. with photographs and videos on a monthly basis, together with a narrative history concerning the implementation of such access.

[206] A.S. deposes that she contacted J.G.’s probation officer on March 13, 2017 to make arrangements for contact, which could have occurred as early as March 18, 2017. However, J.G. did not contact her with respect to access until March 29, 2017.

[207] During a discussion between A.S. and J.G. on March 30, 2017, J.G. expressed his preference to receive pictures and videos of S.S.-G. via Facebook. A.S. provided her Facebook name to J.G. and requested that he send her a “Facebook request” so she could accept it and send the pictures and videos. As of August 9, 2017, J.G. had still not sent her that form of request. A.S. has continued “to post” videos and pictures for J.G. in accordance with the order of Phillips J.

[208] A.S. set up a Skype account on March 1, 2017. On March 14, 2017 she spoke with J.G.’s probation officer who confirmed that the probation order was varied to permit communication between A.S. and J.G. and the probation officer forwarded S.S.-G.’s e-mail address to J.G. that day.

[209] As of March 20, 2017 A.S. had not heard from J.G. She contacted his probation officer again at that time. By March 27, 2017, A.S. still had not heard from J.G. Again, she followed up with J.G.’s probation officer. On March 29, 2017, J.G. sent an email to her asking “what access would look like.” On March 30, 2017, A.S. responded to J.G. and suggested that access take place on Saturdays at 1:00 p.m.

[210] A.S. indicates that she was prepared to start access contact on April 1, 2017 at 1:00 p.m. However, J.G. did not add S.S.-G. to his Skype contacts until April 2, 2017. On that day, J.G. confirmed Skype access would take place on Saturdays at 1:00 p.m. with first contact to take place on April 8, 2017.

[211] The history of J.G.’s access with S.S.-G. follows:

a) April 8, 2017 – A.S. accepted J.G.’s request for Skype contact at 11:35 a.m. She placed a picture of J.G. next to S.S.-G. so he could see it during contact. J.G.’s status showed him as “online” at 1:04 p.m. but he could not be seen. Several attempts were made to correct the issue, including A.S. messaging and attempting to call J.G. on a number of occasions. Eventually, one of A.S.’s calls was answered by JuGr’s mother who advised A.S. that she did not know where J.G. was;

b) April 15, 2017 – J.G. was on time and Skype access occurred for 15 minutes;

c) April 22, 2017 – S.S.-G. was ready for Skype access at 1:00 p.m. J.G., JuGr and their children were all involved in access on this occasion. A.S. reminded J.G. that S.S.-G. would not be available on April 28, 2017 and offered make up access on Tuesday and Thursday. J.G. responded on May 5, 2017 and make up access was arranged for Sunday, May 7, 2017 at 1 p.m. On May 7, 2017, S.S.-G. was ready for Skype access at 1 p.m. A.S. and S.S.-G. waited until 1:10 p.m. without a call from J.G. Apparently J.G. placed the call at 1:13 p.m. No access occurred. J.G. sought additional make up time. A.S. indicated that S.S.-G. would be available May 13, 2017 at 1 p.m.;

d) May 13, 2017 – access occurred as scheduled;

e) May 20, 2017 – access occurred as scheduled;

f) From May 20, 2017 to June 17, 2017, no access occurred. [A portion of this time period appears to coincide with J.G.’s period of incarceration as other evidence suggests he was released from custody on June 6, 2017];

g) June 13, 2017 – A.S. received correspondence from the Society’s counsel advising that: J.G. had been arrested for domestic violence; his children in Sarnia had been apprehended because JuGr was “under the influence”; and J.G. had tested positive for crystal methamphetamine on March 15, 2017;

h) June 17, 2017 – J.G. attempted to initiate access at 1:05 p.m. A.S. did not make S.S.-G. available for access on that date because she believed that J.G. was still incarcerated. She advised J.G. that S.S.-G. would be available for access on June 24, 2017 at 1 p.m.

i) June 24, 2017 – J.G. did not initiate contact for access with S.S.-G. A.S. waited until 1:20 p.m. for his Skype call. Subsequently, she sent a text message to J.G. indicating that S.S.-G. would not be available for access on Saturdays during the summer and proposed that access occur on a weekday between the hours of 5 p.m. and 8 p.m. J.G. and A.S. arranged for access to occur every Friday at 6:30 p.m., beginning July 7, 2017;

j) July 7, 2017 – J.G. did not initiate Skype access. A.S. attempted to contact J.G. by phone several times during a 35-minute period but he did not answer. She electronically confirmed that the next access session was on July 14, 2017;

k) July 14, 2017 – J.G. did not call in for Skype access;

l) July 21, 2017 - J.G. called for Skype access at 6:35 p.m. After six minutes, J.G. indicated that he had to go and the call ended. A.S. subsequently advised J.G. that S.S.-G. would not be available on July 28, 2017 and proposed that J.G. contact her to arrange make up access between July 31 and August 3, 2017 (with the next scheduled contact being August 4, 2017). J.G. did not contact A.S. to arrange make up access;

m) August 4, 2017 – J.G. did not call in for Skype access and did not advise A.S. that he would not be making contact. S.S.-G. was available and ready for access.

[212] A.S. also deposes that since the final order was made by Phillips J., S.S.-G has continued to thrive in her care. He continues to meet his milestones and he is healthy. The Society continues to have no concerns with respect to her ability to meet S.S.-G.’s needs.

[213] Finally, A.S. observes that J.G. commenced this appeal five days after he tested positive for crystal methamphetamine on March 15, 2017.

Information Provided by Counsel for the Aamjiwnaang First Nation

[214] Through its factum and its counsel’s submissions, the Band provided additional unsworn information to this court concerning:

a) The relative inexperience of the Band Representative who appeared at trial (and her lack of knowledge and training in legal matters);

b) The fundamental cultural belief of the Aamjiwnaang First Nation that children should be with their parents whenever possible and when not, they should be placed with a member of their First Nation family or a member of the Aamjiwnaang First Nation. The connection that the spirit of an Anishinaabe child has to his or her family, community, ancestors and environment is a core foundation of that child’s healthy identity. Separating an Anishinaabe child from his/her community fails to recognize the child’s inherent spiritual connection to his or her family and First Nation community and territory. Removing Anishinaabe children from their culture and community results in negative emotional and psychological impacts because they are not only separated from their biological parent, but from their culture, values and beliefs;

c) Anishinaabe children raised by their First Nation parent tend to: maintain control of their lives; understand their origin; and internalize the beliefs of the Anishinaabe community. In the experience of the Aamjiwnaang First Nation, children that are taken from their families and community tend to lose their path and their sense of self and often become “lost.” They frequently struggle in life, until they return to their community and begin their healing journey;

d) The negative impact resulting from the removal of Anishinaabe children from their families and communities is founded in the teachings of the Anishinaabeg people. The Anishinaabeg Creation Story teaches that individuals enter the world as spirits and remain inside a physical vessel until the vessel expires and the spirit returns to the spirit world. Prior to entering this world, individuals choose their parents (and correspondingly their grandparents and community). The Blood Memory that runs through one’s physical vessel is a critically important piece of the individual’s experience in this world. The Blood Memory contains what has been passed to the individual by their ancestors and makes them “Enjibaajig” or “those who belong.” Without this understanding of one’s self, it is difficult for Anishinaabeg to make sense of their life experience in this world. As a result, the Band submits that without the involvement of the Anishinaabeg community in child protection proceedings involving an Anishinaabe child, the child’s spirit is not nurtured in the requisite manner, as the Society does not know the importance that nurturing one’s spirit has to ensure that an Anishinaabe child is healthy and grows to become an Anishinaabe adult;

e) The Aamjiwnaang First Nation, as an Anishinaabe community, is obligated to nurture the spirits of its members through its support to its community members and the children of its members as much as possible through, among other things: providing services; monitoring progress; and ensuring children interact with their community.

[215] A.S. submits that the court should not consider the foregoing information in determining the appeal because it is not presented as sworn evidence.

[216] In my view, excepting the information about the Band Representative’s level of experience, knowledge and training, the information provided by the Band’s counsel assists the court in appreciating the cultural context in which the determination of the issues on this appeal must be made. I have no hesitation accepting the accuracy of the fundamental cultural beliefs of the Aamjiwnaang First Nation, as described by its counsel and I am grateful for his efforts in that regard.

[217] I also remain mindful of A.S.’s submission that despite continuing notice and several opportunities to become involved in the protection issues (and eventually proceedings) concerning S.S.-G., the Band did not do so prior to the hearing of this appeal. The uncontradicted evidence of Rebecca Ross indicates that her first contact with the Aamjiwnaang First Nation in relation to S.S.-G. was in mid-2015. She advised the Band that the Society was involved with S.S.-G., and she asked the Band to present a plan. It did not. Thereafter, she sought the Band’s involvement in matters related to S.S.-G. on numerous occasions, without success. The Band was served with the original protection application and the subsequent Status Review application. It did not deliver an Answer in either proceeding nor did it put forward a Plan of Care. Had the Band actively participated in the proceeding, counsel for A.S. reasons it could have placed this information before the trial judge . It did not. As a result, she submits this court ought not to place weight on it now.

Impact of the Fresh Evidence

[218] Although I have relied on the information provided by the Band’s counsel to gain a greater appreciation and understanding of the cultural beliefs of the Aamjiwnaang First Nation, I am not persuaded that that information, considered with the balance of the fresh evidence, warrants this court interfering with the trial judge’s disposition. I will explain.

[219] Apart from the absence of JuGr in the appellant’s residence, the circumstances disclosed by the fresh evidence and the information provided by the Band’s counsel are generally consistent with the prevailing circumstances and factual matrix that were operable at the time of trial.

[220] On appeal, the Band’s counsel has provided information concerning the fundamental cultural beliefs of the Aamjiwnaang First Nation related to the critical importance and significance of an Anishinaabe child being raised in his or her Anishinaabe community, preferably by a Native parent. This information is consistent with the evidence that was given at trial by the appellant father J.G., the child’s paternal aunt, V.W., and the Band Representative, Ms. Rogers. That evidence and the new information provided by the Band are both consistent with the trial judge’s findings at paragraphs 116 and 188 of his reasons, specifically that when considering the importance of the child’s connection to his cultural and Indigenous history, as a feature of determining the child’s best interests, “there can be little doubt that the ideal is the native child living with the native parent.”

[221] Similarly, the fresh evidence with respect to the expanded role of the Band in setting the kindergarten through grade 12 curriculum available to Native children attending local public schools is generally consistent with the evidence given at trial by J.G., V.W. and L.R., at trial concerning the programs, services and resources available to Native children (and their parents) through the Band to support their cultural needs and development. The fresh evidence speaks to the Band’s expansive role in the continuing education of Native students, and the corresponding cultural benefits that those students will receive, but it remains that the trial judge considered evidence adduced at trial that demonstrated the superior level of programs, services and education (from a cultural identity perspective) that would be available to S.S.-G. in J.G.’s care, when he arrived at his findings with respect to best interests.

[222] J.G.’s fresh evidence with respect to his ongoing efforts to maintain sobriety and to immerse himself and his children in daily Native activities, traditions and teachings is consistent with the evidence that he gave in that regard at trial.

[223] The fresh evidence with respect to the details of J.G.’s participation in available Skype access with S.S.-G., post-trial, is generally consistent with the evidence at trial concerning his participation in “in person” supervised access prior to January 2015. Specifically, in both circumstances, J.G. did not participate fully in the access available to him because he missed several scheduled access visits. In both circumstances, J.G. offers logistical explanations for his failure to attend or participate in all available access opportunities with S.S.-G.

[224] The post-trial developments in the Sarnia-Lambton CAS protection proceeding (with respect to children other than S.S.G.) are generally consistent with Ms. Vanderlinde’s evidence at trial concerning:

i) The child protection concerns held by the Sarnia-Lambton CAS over JuGr are greater than those held with respect to J.G.;

ii) Ms. Vanderlinde’s view that J.G. is able to provide basic skills necessary to parent the two young children in his care, but protection issues remain, and the CAS will remain involved because of those issues; and

iii) The Sarnia-Lambton CAS supports those children remaining in J.G.’s care, subject to Society’s supervision.

[225] The disposition of the Sarnia-Lambton CAS proceeding is consistent with the foregoing. However, as Ms. Vanderlinde observed at the trial in this proceeding, she has never had contact with the child S.S.-G. and her observations and evidence are generally restricted to the two children that were the subject of the Sarnia protection proceedings. There is no evidence indicating those circumstances have changed since trial. It remains, however, that this proceeding is focused exclusively on the disposition that accords with the best interests of S.S.-G and the individual circumstances of that child, which must be considered in arriving at that determination. In my view, that is the precise nature of the analysis that was undertaken by the trial judge in this proceeding, when he ordered custody of S.S.-G. to A.S. (despite the November 1, 2016 final order of the Ontario Court of Justice placing two of J.G.’s children in his joint care, subject to supervision, some two months prior to the trial in this proceeding).

[226] The fresh evidence confirming the absence of JuGr from the appellant’s residence does alter the circumstances that were before the trial judge, although, in my view, not to an extent that warrants this court interfering with his disposition.

[227] In his reasons the trial judge expressed concern over: JuGr’s parenting skills; various protection issues related to JuGr that were raised in Ms. Vanderlinde’s evidence; JuGr’s failure to attend with J.G. during his pre-trial access visits with S.S.-G. in 2014; and JuGr’s failure to testify at trial. JuGr is no longer part of J.G.’s Plan of Care for S.S.-G., thereby alleviating many of those concerns.

[228] However, it remains that the majority of circumstances that informed the trial judge’s disposition and his determination of J.G.’s best interests remain largely intact post-trial. Specifically, the trial judge determined: that a pronounced status of quo has been created over the period of time that the child has resided with A.S.; while in A.S.’s care the child’s needs were being met in a secure, nurturing home environment and his future prospects in that setting were quite positive; the child has thrived in A.S.’s care; changing the child’s placement, even through a gradual transition, would not advance the child’s best interests; and the child’s placement with A.S. secured his best interests in every respect. In addition, the Society has never held any protection concerns with respect to A.S. and the Society supported the custodial disposition ordered by the trial judge.

[229] The fresh evidence on appeal confirms that: the child continues to thrive in the material grandmother A.S.’s care post-trial; the maternal grandmother has continually taken steps to facilitate Skype access between J.G. and the child, which has, at times, been frustrated by J.G.’s lack of participation; the Society continues to have no protection concerns with respect to A.S.; and the Society continues to support the custodial order made by the trial judge.

[230] Further, the fresh evidence does not serve to displace the evidence before the trial judge that: the child was last in the appellant’s care when he was one month old and he was last in the personal presence of the appellant in December 2014; the appellant has an extensive criminal record that includes a crime of violence committed against S.S.-G.’s mother while the child was in their joint care and crimes of violence against his subsequent domestic partner; and the appellant has a history of substance abuse.

[231] In the context of the foregoing, I find the fresh evidence with respect to the appellant’s post-trial drug relapse involving crystal methamphetamine to be particularly troubling. The relapse occurred: approximately one month after the appellant testified at trial to his commitment to sobriety and his ongoing attendance at NA meetings; within one month of Sarnia-Lambton CAS worker, Ms. Vanderlinde, giving evidence at trial that she held “no concerns” over the prospect of J.G. relapsing; and after the two children that were the subject of the Sarnia-Lambton protection proceeding were placed in the care of J.G. and JuGr (subject to Society’s supervision). J.G.’s relapse was one of the reasons that the Sarnia-Lambton CAS removed those children from the care of J.G. and JuGr (after the trial in this proceeding) and placed them, temporarily, with V.W.

[232] That aspect of the fresh evidence demonstrates that despite: the supportive network available through his extended family and community; his sincere commitment to sobriety; and his attendance at regular supportive meetings for substance abuse, J.G. is capable of relapsing and using an illicit narcotic even after young children have been placed in his care.

[233] J.G.’s fresh evidence does not set out any change to the pre-relapse plan that is designed to further guard against a future relapse. The current circumstances in that regard appear to be nearly the same as the circumstances that existed at the time of the March 2017 relapse (family and community support, regular attendance at NA meetings and a subjective commitment to sobriety). This observation is not designed to demean the efforts J.G. has made and is making to remain sober and drug free. This court commends J.G. for those efforts. However, this aspect of the fresh evidence raises a concern about the potential for a further relapse by J.G. and more fundamentally, the risks that such a relapse would pose to the safety of S.S.-G. should he be in J.G.’s care at that time, particularly since an explanation of the March 2017 relapse and the specific circumstances surrounding it, have not been adduced in any of the fresh evidence.

[234] Finally, the trial judge’s findings and disposition were made after a careful and reasoned determination of the credibility of J.G., the credibility of A.S. and the reliability of their respective evidence, which resulted in a stated diminishment of the extent to which the trial judge could rely upon the evidence of J.G. In my view, when considered in its totality, the fresh evidence and information does not operate to disturb the basis of those findings nor the basis for the factual findings upon which the trial judge determined the child’s best interest and disposition, to an extent that would justify this court substituting a different disposition for that of the trial judge.

Conclusion

[235] For the foregoing reasons I do not give effect to any of the argued grounds for appeal. In arriving at his disposition, the trial judge did not commit a palpable and overriding error of fact or mixed fact and law, nor did he err in law. In determining the best interests of S.S.-G., he discharged his statutory obligation to contemplate and take into account the relevant factors enumerated in s. 37(3) of the CFSA, together with the importance of preserving the child’s cultural identity as mandated by s. 37(4) of the CFSA. The trial judge made factual findings with the benefit of hearing the witnesses’ viva voce evidence. His reasons demonstrate that he held a full appreciation of the evidence before him (both affidavit and viva voce). The trial judge was best positioned to make the findings and disposition that he did, and those findings attract great deference from this court. Finally, the fresh evidence presented on this appeal does not change the underlying factual matrix presented by the evidence at trial to such an extent that it warrants substituting a different disposition for that of the trial judge.

[236] Apart from the custody order made by the trial judge, I am not persuaded that the access order he made should be disturbed in the context of this appeal for the following reasons.

[237] First, the appellant J.G. did not challenge the trial judge’s access order in his notice of appeal, his factum, or his submissions. In its factum, the Band proposed alternative access terms as its requested form of relief, which it then abandoned at the hearing of the appeal and instead, fully supported the relief claimed by the appellant J.G.

[238] Second, after a careful consideration of all of the evidence before him, including the terms of J.G.’s probation order and the length of time that had passed since J.G. had last seen the child (over two years) the trial judge concluded that the access terms as ordered, were appropriate. None of the parties to this appeal expressly submitted that he erred in doing so.

[239] I am mindful that the additional information provided by the Band confirms the importance of maintaining S.S.-G.’s connection to the Aamjiwnaang First Nation. However, given the lack of submissions on the issue of access and the absence of an identified error by the trial judge on the issue of access, a change in access is not warranted in the context of this appeal.

[240] As a result of the foregoing, the appeal is dismissed. My preliminary view is that costs are not appropriate in this case. If any party wishes to submit otherwise they may indicate their intent in that regard through correspondence directed to me, through the trial co-ordinator in Windsor and copied to all other counsel, within 21 days of these reasons and I will set out a schedule for the exchange of written submissions accordingly.

Original signed by “Verbeem J.”

Gregory J. Verbeem

Justice

Released: June 29, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Windsor-Essex Children’s Aid Society

Respondent in Appeal

– and –

J.G.G.

Appellant in Appeal

A.S.

Respondent in Appeal

Aamjiwnaang First Nation

Respondent in Appeal

REASONS FOR DECISION ON APPEAL

Verbeem J.

Released: June 29, 2018