Windsor-Essex Children’s Aid Society v. E.W., 2019 ONSC 3404

COURT FILE NO.: FS-18-18919

DATE: 20190604

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WINDSOR-ESSEX CHILDREN’S AID SOCIETY Respondent in Appeal

– and –

E.W. Appellant in Appeal

David Ziriada, for the Respondent in Appeal

J.J. Avery, for the Appellant in Appeal

HEARD: November 1, 20, 2018 and December 17 & 18, 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, E.W., appeals from the judgment made by the Honourable Mr. Justice Douglas W. Phillips of the Ontario Court of Justice, dated May 29, 2018 (with oral reasons delivered on that date), pursuant to which a final order was made placing E.W.’s biological children, C.T-W., born [...], 2013, and T.J.E., born [...], 2015, in the extended care of the Windsor-Essex Children’s Aid Society (the “Society”) without access to: E.W.; V.T. (the biological father of C.T-W.); or T.E. (the biological father of T.J.E.).

[2] The judgment followed a trial conducted over seven days during May 2018, in the context of a status review application commenced by the Society pursuant to the provisions of the Child and Family Services Act, R.S.O. 1990 c. C.11 as amended (“CFSA”). Shortly before the commencement of trial, the CFSA was repealed and replaced by the provisions of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, (“CYFSA” or the “Act”).

[3] At the time of trial, the children had been in the continuous care of the Society since July 16, 2016. They were removed from the appellant’s care as a consequence of her breach of the terms of an interim order made by Ross J. of the Ontario Court of Justice on May 17, 2016 that placed the children in her care, subject to supervision. At the time of trial, C.T-W. had been in continuous Society care for approximately 40 percent of her life and T.J.E. had been in continuous Society care for approximately 65 percent of his life.

[4] The trial judge’s key findings are summarized as follows. Through their mother and their maternal grandmother (C.W.), the children have a connection to the Eastern Woodland Métis Nation Nova Scotia (“EWMNNS”). Although the trial judge remained expressly mindful of that connection throughout the trial, including when he determined the disposition that was consistent with the children’s best interests, he also concluded that the children were not Métis children within the meaning, and for the purposes, of the provisions of the CYFSA. The trial judge ultimately found the children to be in need of protection based on two of the distinct grounds enumerated in s. 74(2) of the CYFSA (the risk of emotional harm posed to the children through exposure to domestic violence while in the appellant’s care; and sexual abuse or sexual exploitation while in the appellant’s care). He found that an order of extended Society care without access was the disposition that accorded with their best interests, after considering the factors enumerated in s. 74(3) of the CYFSA.

[5] In her appeal, the appellant asserts that the trial judge erred in:

a) the manner in which he determined whether the children were Métis children within the meaning of the CYFSA;

b) his determination that the children were in continuing need of protection as a result of sexual abuse or sexual exploitation; and

c) in striking as Exhibits, certain documentary evidence that she filed at trial.

[6] The appellant does not request that this court impose a different disposition than the one arrived at by the trial judge. Instead, she submits that as a result of the trial judge’s asserted errors, a new trial before the Ontario Court of Justice is mandatory. The appellant also submits that a new trial is justified on the basis of additional evidence that both she and the Society seek to adduce on appeal.

[7] For reasons that are set out below, the appeal must fail. Although I am persuaded that the trial judge erred in finding that the children are not Métis children within the meaning of the CYFSA and its related regulations, it remains that: the protection findings made by the trial judge were reasonable and well supported by the evidence; and, the disposition that he imposed remains in the best interests of the children, particularly as he expressly found on the evidence available to him that it was the only disposition among the three options available to him that adequately protects the children.

[8] Further, I am satisfied that the evidence available to the trial judge, considered both in isolation and together with the fresh and further evidence admitted on this appeal, conclusively establishes that a viable community placement for the children did not and does not exist (the trial judge’s reasons for finding that placing the children with the appellant’s biological mother, C.W., – the only identified potential community placement at trial – would not adequately protect them from the operable risks of harm is reasonably supported by the evidence and is not challenged on appeal). Similarly, there are substantial reasons for not placing the children with another Métis family: the EWMNNS does not facilitate such placements; neither the EWMNNS nor the Metis Nation of Ontario put forth a plan of care for the children; and apart from C.W., no such placements were identified in the evidence at trial or the additional evidence on appeal. In short, a placement of the children with another Métis family is not available, on the evidence.

[9] Finally, for reasons that will be set out further below, I am satisfied that the additional evidence that is admissible on appeal, does not change the factual matrix that was before the trial judge to such an extent that a different disposition is warranted on review.

[10] I will explain my conclusions below by first setting out, in general terms: the identity of the relevant parties and non-parties; the contextual background of the proceeding; the evidence that was before the trial judge; and the nature of the trial judge’s findings and reasons. Next, I will detail this court’s function on review together with the applicable standards of review engaged by the appellant’s stated grounds for appeal. I will then determine each of the appellant’s grounds for appeal. Finally, I will determine the admissibility of the parties’ proposed fresh and further evidence and I will explain why the admissible aspects of that evidence do not justify the new trial that the appellant seeks.

[11] For the purpose of the foregoing, I observe that apart from her stated grounds for appeal, the appellant does not expressly challenge the trial judge’s apprehension of the evidence before him (including those aspects of the evidence that he expressly reviewed in his reasons for disposition and in his reasons for his protection findings) nor the factual findings that he made.

THE PARTIES and RELEVANT NON-PARTIES

[12] The appellant, E.W., is the biological mother of both C.T-W. and T.J.E. She is a Métis woman and a member of the EWMNNS. She participated fully in the trial of the status review application.

[13] C.T-W., born [...], 2013, is the biological daughter of the appellant and V.T. She was originally apprehended from the appellant’s care in May 2016 and returned to her interim care subject to supervision on May 17, 2016. She was subsequently removed from the appellant’s care on July 16, 2016 and has remained in the continuous care of the Society since that time.

[14] T.J.E., born [...], 2015, is the biological son of the appellant and T.E. He was apprehended from the appellant’s care in May 2016 and returned to her interim care subject to supervision on May 17, 2016. He was subsequently removed from the appellant’s care on July 16, 2016 and has remained in the continuous care of the Society since that time.

[15] V.T. is the biological father of C.T-W. According to the parties’ agreed statement of facts at trial, V.T. resides in the United States of America and is prohibited from entering Canada. On July 31, 2017, Ross J. made an order dispensing with service of the Society’s amended status review application on V.T. V.T. did not participate in the proceeding.

[16] T.E. is T.J.E.’s biological father. Despite being personally served with the Society’s status review application, T.E. did not deliver responding material. Consequently, he was in default pursuant to the provisions of Rule 10 of the Family Law Rules, O. Reg. 114/99. Accompanied by duty counsel, T.E. attended a trial management conference before the trial judge on May 15, 2018. At the beginning of the trial on May 16, 2018, duty counsel appeared without T.E. and advised the court that T.E. declined to participate further in the proceeding. Neither T.E. nor duty counsel on his behalf appeared during the balance of the trial.

[17] C.W. is the appellant’s biological mother and the children’s maternal grandmother. She resides in Nova Scotia with four of the appellant’s biological siblings. C.W. is a Métis woman and a member of the EWMNNS. In the course of the status review proceeding, she put forth a plan of care proposing that the children be placed in her care, in the event that they were otherwise not returned to the appellant’s care.

[18] Both E.W. and C.W. are members of the EWMNNS. The Society learned that the appellant was a member of the EWMNNS before trial. A representative of the EWMNNS was not served with the Society’s original protection application, status review application, amended status review application, or a plan of care. However, prior to trial, the EWMNNS was made aware of the proceeding and did not put forth a plan of care. In the course of the original protection proceeding, Ross J. determined that the children did not have Native status in accordance with the provisions of the CFSA (which applied at the time the original proceeding was decided). Nonetheless, Society workers engaged in repeated efforts to maintain communication with representatives of the EWMNNS prior to the trial of the status review application, on issues concerning the children’s identification as Métis and on issues impacting disposition. In addition, at the prompting of the trial judge, the EWMNNS Grand Chief, Mary Lou Parker, gave evidence during the trial of the status review application. She testified that: the EWMNNS did not wish to be added as a party to the proceeding; it would not participate if it was added; and it does not facilitate child placements with members of its community.

[19] C.G. is C.T-W.’s foster parent. C.T-W. has been in her care since July 2016. C.G. wishes to adopt of both children provided there is no access or photograph access only.

THE NATURE OF THE EVIDENCE BEFORE THE TRIAL JUDGE

[20] The record at trial consisted of a blend of affidavit and viva voce evidence from witnesses, together with a limited agreed statement of facts relating to the history of the protection proceeding (the content of which is consistent with the evidence adduced at trial), various documentary exhibits and the trial judge’s express notice of the evolving nature of the relationship between Canada and Métis people and the content of the Report of the Truth and Reconciliation Commission.

[21] Without objection, the Society adduced affidavit evidence that was not subject to cross-examination from Society family workers: Lacey Praill, sworn May 4, 2016; Sara Geary, sworn December 1, 2016; and Rebecca Rusenstrom, sworn April 5, 2018. The Society also adduced affidavit and viva voce evidence from Society worker, Rebecca Schofield, who was cross-examined at trial. At the trial judge’s direction, the Society facilitated evidence at trial (via telephone) from EWMNNS Grand Chief Mary Lou Parker, who was questioned by counsel for the Society and the appellant. The appellant provided affidavit and viva voce evidence at trial on issues of: the children’s Métis status; protection; and disposition. C.W. also provided affidavit evidence at trial on issues of the children’s Métis status and disposition.

[22] Ms. Praill’s affidavit evidence was sworn in the context of the Society’s original protection application commenced in May 2016. It was filed as at the trial of the status review application without objection or cross-examination. In July 2015, Ms. Praill became the family services worker assigned to work with the appellant and her children. She deposes that the Society opened a file with respect to the appellant on July 29, 2013, following a referral from child protection authorities in Nova Scotia, after the appellant relocated to Windsor, Ontario from that jurisdiction. In her affidavit, she also deposed to: the family’s background; the circumstances leading to the children coming into Society care in May 2016 (as a result of exposure to domestic violence between T.E. and the appellant); and the history of domestic violence between the appellant and others, including T.E. and C.T-W.’s biological father, V.T.

[23] Ms. Geary is a Society worker that eventually assumed carriage of the case involving the appellant. Her affidavit was sworn in the context of the Society’s summary judgment motion in the original protection application. The Society filed her affidavit as evidence at the trial of the status review application without objection. She was not cross-examined. Generally, she deposed to: the appellant’s historic involvement in incidents of domestic violence; the appellant’s historic failure to protect the children from exposure to domestic violence; the terms of an interim order made in the original protection proceeding that placed the children in the appellant’s care subject to supervision with terms that included a prohibition against association or contact between the appellant and T.E.; the appellant’s subsequent assurances to the Society that she was complying with the terms of that order; a Society worker’s observations of the appellant in the presence of T.E. contrary to the terms of the interim order; the children’s removal from the appellant’s care on July 16, 2016 as a consequence of that breach; the circumstances of the appellant’s arrest on July 22, 2016 and subsequent charges against her including sexual assault, sexual interference, invitation to sexual touching and possession of child pornography arising from a short video recording found on the appellant’s cellphone, in which, among other things, the young child T.J.E., is seen to touch the naked erect penis of T.E., while the appellant recorded the incident; the reduction of the appellant’s access time with the children in the wake of those charges; and the inability to return the children to either the care of the appellant or T.E. as a result of the then outstanding criminal charges.

[24] In her affidavit, sworn March 6, 2018, Ms. Schofield, who became the family services worker responsible for management of the appellant’s case on March 20, 2017, deposed to, among other things: the basis of the finding of protection and disposition made by Ross J. on February 1, 2017 in the context of the Society’s summary judgment motion; the circumstances in which the children originally came into Society care in May 2016; the details of the disclosure made to her by the appellant concerning incidents of domestic violence between the appellant and T.E. and the appellant and other persons; the appellant’s minimization of the significance of past incidents of domestic violence; the circumstances of the appellant’s breach of Ross J.’s interim order made in May 2016; the circumstances of the appellant’s arrest on July 22, 2016, and the content of the cell phone video that resulted in her arrest; the initiation of the status review application on April 27, 2017; the results of the appellant’s criminal charges, which included findings of guilt, on June 8, 2017, in relation to charges of possession of child pornography and sexual interference, for which she was sentenced to, among other things, six months imprisonment on the child pornography count and a further 90 days consecutive imprisonment on the sexual interference count; the appellant’s appeal against conviction and sentence (which remain outstanding); the merits of the maternal grandmother C.W.’s plan to serve as a placement for the children; C.W.’s past criminal convictions and the unfavourable results of a kinship assessment conducted by the Nova Scotia Department of Community Services; the length of time the children have been in Society care; the requirements of the terms of a four month plan of care endorsed by Ross J. on February 1, 2017 and the terms of a plan of care developed by the Society in May 2017 (both of which required the appellant to access certain services and complete plan of care objectives within specified time periods); the particulars of the appellant’s failure to achieve all of the objectives of either plan of care within the time periods specified; the objectives of the plans of care that T.E. was required to meet; T.E.’s failure to meet all of those objectives; repeated disclosures made by the appellant to her that she intended to resume cohabitation with T.E. once the non-association order imposed by the criminal court (as a condition of their respective bail pending appeal) was removed; the failure of both the appellant and T.E. to adequately “deal with” issues of domestic violence and inappropriate sexual conduct in the presence of the children, by way of counselling or otherwise; the failure of the appellant and T.E. to identify alternative kin, for placement, despite discussing that issue with Ms. Schofield; and the failure of the EWMNNS and the Métis Nation of Ontario to present a plan with respect to the children despite being advised of the proceeding by the Society.

[25] Ms. Rusenstrom, who is a Society Children’s Service Worker that began working with both children when they came into Society care on July 16, 2016, swore an affidavit on April 5, 2018, in which she deposes to: the significant developmental delays with which each child presented, when they came into Society care on July 16, 2016; the medical, professional, and other services provided to the children in that respect, since they have been in Society care; the substantial developmental gains the children have made since they have been in Society care; and the children’s remaining developmental issues and the associated care required as a result. Ms. Rusenstrom’s evidence was not the subject of cross-examination.

[26] In her trial affidavit, the appellant deposed to: her “disagreement” with those aspects of Ms. Schofield’s affidavit describing the appellant’s failure to comply with plan of care objectives related to participation in sexual offender counselling because, from her perspective, her pending criminal appeal prohibited her from making admissions that may “imperil her defence” and she was presumed innocent; her objection to the Society’s plan of securing a permanent home for the children through adoption; her belief that a lesser intrusive alternative that would ensure the children’s Métis cultural connection would be to place them with her or with C.W.; her belief that the children would not be at risk, if they were placed in her care; her status as a Métis woman; her effort to “try to figure out” a school and day care in which to enrol the children; her unemployed status; her access to support from her mother, (C.W.), her father, (Ce.W.), and the Aboriginal Child Resource Centre and Can-Am Indian Friendship Centre of Windsor; her plan to engage supportive services for the children; her then current counselling with the Canadian Mental Health Association (which she had recently commenced) and her past counselling, in 2017, through the John Howard Society; her intent to obtain food and clothes for the children through the Aboriginal Child Resource Centre and “Can-Am”; her intent to have the children interact with other children, and to assist them in learning shapes, numbers and the alphabet; her participation in a Healthy Relationships program through the Métis Nation of Ontario in April-May, 2016; her participation in counselling, domestic violence courses, anger management courses and parenting classes; her belief that placing the children in her care would be in their best interests because she loves them, she “take[s] good care of them” and she would feel better with them back in her care; she wants to raise the children “in Métis cultural traditions”; and, finally, the ability of the following persons to provide information to support her plan of care – personnel from the John Howard Society, her counsellor at the CMHA, her mother, her father, respective personnel from the Aboriginal Child Resource Centre and the Can-Am Indian Friendship Centre of Windsor, her psychiatrist, Dr. Taliga, her family doctor, Dr. Deepak, and her work friends – “S.C.”, “S.R.” and “K.W.” However, apart from her mother the appellant did not adduce affidavit or viva voce evidence from any of the “supportive” sources she enumerated in her affidavit.

[27] The appellant did not depose to: her own history of participating in Métis culture and traditions; her efforts to expose the children to their Métis culture and traditions either before or after apprehension; or a plan to connect the children with the EWMNNS community in Nova Scotia.

[28] C.W. swore an affidavit on April 23, 2018 in which she deposed to: her proposal that the children be placed with her in Nova Scotia, in the event they were not placed with the appellant; her unemployed status; her close relationship with her own extended family; her love for her grandchildren; her Skype visits with the children before they came into Society care; her past practice of sending gifts to the children; the particulars of four of her own children, who reside in her care; her own status and the appellant’s status as Métis; a general statement that she and the appellant attended Native programs together, in the past; the importance of the children having their Métis heritage in their lives; her ability to provide a loving stable home for the children in her three bedroom residence; her willingness to make suitable educational arrangements for the children; and her willingness to abide by the conditions of a supervision order if the children were placed in her care.

[29] Generally, the affidavit evidence of Ms. Schofield, the appellant and C.W. was amplified at trial through viva voce evidence in limited direct examination and fulsome cross-examination. I will review the content of that evidence below. First, however, I will outline the context and background of the proceeding before the trial judge, which is principally derived from the parties’ agreed statement of facts and the unchallenged aspects of the affidavit evidence from Society workers Praill, Geary and Schofield. Owing to the primacy, on appeal, of the manner in which the trial judge determined whether the children were Métis children within the meaning of the CYFSA, I will review the evidence in that regard later in these reasons when determining the appellant’s first asserted ground for appeal.

PROCEDURAL HISTORY OF THE PROTECTION AND STATUS REVIEW PROCEEDINGS AND FACTUAL OVERVIEW

[30] The status review proceeding before the trial judge followed a final order made by Ross J. on February 1, 2017, with the consent of the appellant and not opposed by T.E., in the context of a motion for summary judgment brought by the Society. Ross J. found the children in need of protection pursuant to s. 37(2)(g) of the CFSA (a risk that the children are likely to suffer emotional harm demonstrated by serious depression, withdrawal, self-destructive or aggressive behaviour or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the children’s parent). She made an order for Society wardship for a term of four months, during which the appellant was granted supervised access to the children and T.E. was denied any access. The evidence adduced before Ross J. (which was also adduced without objection at the trial of the status review application) and the findings of fact that were made on the hearing of the summary judgment motion established the following factual narrative.

Events Leading to the Children Originally Coming into Society Care

[31] The Society has been involved with the appellant since July 29, 2013, following a referral from child protection authorities in Nova Scotia, made when the appellant relocated to Windsor, Ontario from that jurisdiction. The children originally came into Society care on May 1, 2016 following the attendance of members of the Windsor Police Service (“WPS”) at a residence (the upper unit of an apartment building) then shared by the appellant, T.E. and the children. Police were called to the home by a neighbour who reportedly heard sounds from the residence that were consistent with a woman being physically assaulted. On arrival, police officers also heard sounds from the apartment that were consistent with: the sound of a woman crying; children crying loudly; a male voice and a female voice engaged in a loud violent argument; and a heavy glass object being smashed.

[32] Eventually, police officers gained entry to the apartment and noticed broken glass on the floor just inside the entrance. They received information that the appellant had thrown a glass jar at T.E. Police officers also observed the subject children crawling from a bedroom area, towards the broken glass. Both children were crying. Police officers observed signs of violence in the form of broken objects that appeared to have been thrown during an altercation. They also observed a hole in one of the apartment wall surfaces, consistent with someone punching the wall.

[33] The appellant was contemporaneously interviewed by police and confirmed that in the course of an argument with T.E., he pinned her to the ground and choked her. She admitted that in response, she stabbed him with a fork. The appellant was ultimately arrested and charged with two counts of assault with a weapon – the glass jar and the fork. T.E. was also contemporaneously interviewed by police. He confirmed that E.W. had stabbed him in the shoulder with a fork. He was ultimately charged with assaulting the appellant. The relevant police occurrence report regarding the incident was adduced as evidence without objection, at the trial of the status review application.

[34] The evidence placed before Ross J. on the summary judgment motion in the original protection application, and again without objection, before the trial judge, confirmed that according to her own self-reports to police and Society workers, the appellant has historically been repeatedly victimized through domestic violence, committed not only by T.E. but by V.T. (the biological father of C.T-W.) and others. In that regard, the evidence disclosed that the appellant advised Society workers that during the time that she was in a relationship with V.T., he would often became violent after consuming alcohol. He would yell and throw things at her. She was afraid of him. On April 14, 2013, she contacted police in an effort to protect herself from him. The appellant told Society workers that on June 2, 2014, V.T. threatened that he was going to “come for the baby” and “burn down her house.”

[35] The evidence also established that the appellant repeatedly advised Society workers that she had been assaulted by T.E on multiple occasions. For example, the appellant told various Society workers that in January 2015, T.E. was arrested and held in custody pending trial on criminal charges alleging that he assaulted the appellant by pinching her face and punching her in the stomach while she was pregnant with T.J.E. T.E. remained incarcerated until his trial in May 2015, at which time the charges were withdrawn. The evidence from Ms. Praill indicates that the appellant assisted in securing the withdrawal of those charges. The appellant and T.E. maintained contact throughout his period of incarceration in 2015. Once the charges were withdrawn, they immediately resumed cohabitation.

[36] Affidavit evidence from Society workers, Lacey Praill, Sara Geary, and Rebecca Schofield, disclosed that the appellant consistently minimized the seriousness of her assault by T.E. in January 2015, despite requiring medical care for the injuries he inflicted on her. She also repeatedly advised Society workers, including Ms. Schofield, of her intention to resume cohabitation with T.E. once the terms of a non-association condition between them was removed.

[37] In addition, the affidavit evidence before the trial judge disclosed that on July 29, 2013, while the appellant: was 19 years old; approximately 13 weeks pregnant; and living with her mother in Halifax, she attended a shelter reporting that her younger brother had assaulted her the previous night, at the family’s residence.

[38] Notably, the appellant did not cross-examine the Society’s affiants on any of the foregoing aspects of their evidence.

The Initial Protection Application and Basis for Society Care

[39] The Society brought the original protection application with respect to the children on May 4, 2016. On May 17, 2016, despite her expressed serious reservations, Ross J. made a temporary order that the children be placed in the interim care of the appellant, subject to supervision by the Society, together with certain specified terms of supervision, one of which mandated that the appellant have no direct or indirect contact with T.E. at any time. The appellant expressed her commitment to abide by that condition. In addition, the terms of her judicial interim release related to the assault charges against her (arising from the May 1, 2016 domestic violence incidents) prohibited such contact.

[40] Notwithstanding the terms of Ross J.’s interim order, and despite the appellant’s assurances to Society workers that she was complying with same, a Society family services worker observed the appellant and T.E. together in public on July 16, 2016. Members of the WPS also attended the appellant’s residence on that date and found her together with T.E. As a consequence of the breach of Ross J.’s order, the children were brought into Society care on July 16, 2016, where they have continuously remained.

Further Protection Concerns Discovered After July 16, 2016

[41] The affidavit evidence of Ms. Geary and Ms. Schofield (and the exhibits appended thereto) respectively, disclose a further protection concern arising from the discovery of a 31 second video on the appellant’s cellular phone, on July 22, 2016. On that date, while the appellant was crossing from the United States into Canada, the contents of her cell phone were examined by Canada Border Services agents, who discovered a video recording in which, among other things, the child T.J.E. is seen to touch the exposed and fully erect penis of his father, T.E. The video was personally recorded by the appellant.

[42] As a result of the content of the video, the appellant was eventually charged with possession of child pornography, sexual interference (child under 16 years of age), invitation to sexual touching (child under 16 years of age), and sexual assault. T.E. was also charged with similar offences. The terms of the appellant’s judicial interim release in respect of the foregoing charges included, among other things, a condition that she not have any contact with the subject children, except pursuant to a Family Court order or as directed by the Society. As a consequence of the charges and the video, the appellant’s access was reduced to one supervised two-hour visit per week.

The Appellant’s Criminal Trial and Sentencing

[43] In her affidavit, Ms. Schofield deposes that the criminal charges against the appellant and T.E. that arose from the content of and circumstances surrounding the cell phone video, were tried in the Ontario Court of Justice in Windsor on June 6, 7 and 8, 2017, before the Honourable Mr. Justice N. Douglas. On June 8, 2017, Douglas J. delivered oral reasons in which he found the appellant guilty of possession of child pornography and sexual interference, and T.E. guilty of sexual interference. Douglas J.’s reasons for judgment were admitted as evidence at the trial of the status review application before Phillips J.

[44] In his reasons, Douglas J. described, in some detail, the content of the impugned video. His description was subsequently adopted by the trial judge in this proceeding, who then made corresponding findings of fact concerning the video’s content. Specifically, at pages 1 and 2 of his reasons, Douglas J. states:

On that phone, among many other things that are not of my concern, was a 31 second video, and that 31 second video is the subject of these charges that both [the appellant] and her fiancé at the time, her partner, I am not sure of their marital status, but they are partners together, and the child in question is named after [T.E.], so I am assuming that it is his natural child, but on that video is [the appellant] videoing [T.E.] Senior and [T.J.E.] Junior, who I am told was one year and two weeks of age at the time.

The video depicts [T.E.] Senior naked on a couch or a bed with his penis erect, pumping the penis up and down without his hands, with the one-year-old child trying to, and succeeding briefly, touch the erect penis. It also depicts [the appellant] capturing the activity on video, and directing [T.E.] Senior what to do and encouraging him to keep doing it.

It is my general impression of watching the video and hearing counsel, that [T.E.] Senior was ambivalent that the child was present. The child was not the focus of this activity. He and [the appellant] both obviously knew the child was focused on his erect bobbing penis, and that did not seem to matter to either of them. It is equally obvious from the video that [the appellant] was enjoying the activity and neither was she interested in protecting the child from getting involved.

The legal questioning then revolves not on the fact that they were at least negligent parents, but what they were doing criminally, and if so what sections of the Criminal Code would apply.

[45] At the trial in this proceeding, the appellant did not offer evidence to contradict the accuracy of Douglas J.’s description of the impugned video. Instead, she accepted it as accurate.

[46] However, the appellant submits that other aspects of Douglas J.’s reasons place his description of the video in appropriate context, as it relates to the protection issues engaged in this proceeding. Specifically, after reviewing the parties’ submissions and the essential elements of the subject offences, Douglas J. states at pages 11-14 of his reasons:

That is the law. It covers the 31 second video, and I now go to my findings.

Here is the scene depicted: A naked man with a child beside him. The naked man has an erection, and is bobbing his penis up and down without touching it, and this is the main activity that the woman is videoing. It is agreed that the man is [T.E.] and the woman videoing the activity is [the appellant].

It is obvious from her exclamations, and her focus of the camera, and her reaching in to move [T.E.’s] leg for a clearer view, and her comments about “keep doing it”, I find are directed at him, not the child.

If the child was not present, none of us would be here today. It is the involvement of the child, the participation of the child, and not only allowing the child to be involved, but the videoing of the child that brings us all here today.

This child is depicted right next to the naked [T.E.], climbing over [T.E.’s] body to touch the bobbing penis. True, at one point [T.E.] lifts his leg to prevent the child from touching his penis. Also, at one point, [T.E.] grabs the child’s hand, exclaims “hey”, and moves the child’s hand away, but neither he nor [the appellant] stop what they were doing. They do not seem to care that the child is involved in their sex play, and this is clear, sex play between the two adults. They both are getting sexual gratification from what they are doing. He has got the erection. He is bobbing his penis up and down, and she is exclaiming “ooh” and “ah”, and the involvement of the child is allowed by both of them, and it would be obvious to any reasonable observer that what the accused [T.E.] was doing was attracting the child’s curiosity, and both of them kept up the sexual activity even after the child successfully touched the penis of [T.E.]

Even if [T.E.] was a reluctant participant, and looking at his face in the video that is what it looks like to me, he was nonetheless a participant.

Therefore, they are both guilty in law, she as a party of filming and encouraging him to keep going, breaching s. 151 [of the Criminal Code] once the child touches [T.E.’s] penis, and I have, therefore, found that the Crown has proven beyond a reasonable doubt that both are guilty of count two [sexual interference].

I give them the benefit of the doubt on count three, because the Crown has not proven that they were inviting the child to touch [T.E.] Senior. My view of the evidence is that they were not even focused on the child.

Now, why she kept the video with the child in it, maybe she thought it was funny or cute, I do not know and I cannot speculate, but she has paid dearly for that action and will continue to do so.

I also find that this video clip qualifies under the legal definition of child pornography, actually under both definitions. The sexual activity was explicit and viewed objectively, it advocates sexual activity with a child. It follows then that [the appellant] is also guilty of count one, and it follows, therefore, because she was in possession of child pornography, that she offended the Customs Act by bringing that phone over the border, but I will have more to say about that in a moment.

Having found them guilty of count two, and I find them not guilty of count three, I am going to stay count five [sexual assault]. The sexual assault alleged is the same delict as I have convicted them on count two, and, therefore, I find [the appellant] guilty of count one [possession of child pornography] on the Provincial information, and guilty of count two. I find her not guilty of count three and count five has been stayed. She, therefore, is guilty of two counts under the Criminal Code information. I find [T.E.] not guilty of count one [possession of child pornography], guilty of count two [sexual interference], not guilty of count three [invitation to sexual touching], and count five [sexual assault] is stayed.

[47] On September 11, 2017, the appellant was sentenced to six months imprisonment, followed by a period of probation of 18 months together with a ten-year registration on the sex offender registry, as a result of her conviction for possession of child pornography. She was sentenced to a further 90 days imprisonment consecutive, a period of probation of 18 months and a ten-year registration on the sex offender registry, on the sexual interference count.

The Appellant’s Pending Criminal Appeal

[48] E.W. has appealed against her convictions. Her counsel advises that the hearing of her summary conviction appeal has been adjourned on several occasions and was last scheduled to be heard in April 2019. On two occasions, the appellant’s counsel requested that I adjourn this appeal in order to accommodate the hearing and disposition of the summary conviction appeal. I declined both requests based on the children’s ages and the prolonged time that they have been in Society care. Further, as I understand the nature of the appellant’s summary conviction appeal, she does not assert that the Douglas J. misapprehended (or misdescribed) the content of the subject video, in fact. Rather, she submits that he erred in concluding that the content of the video as he described it, was sufficient to prove the offences of possession of child pornography and sexual interference beyond a reasonable doubt.

[49] In my view, the determination of this appeal is not dependant on the result of the appellant’s summary conviction appeal. The protection concerns related to the cell phone video do not arise because the appellant was convicted of sexual criminal offences. Rather, the protection concerns found by the trial judge arise from the events that are depicted in the video, in fact, and the circumstances surrounding the making of the video itself. Those concerns remain operable, in any event of the disposition of the summary conviction appeal. It was the nature of the activities depicted in the video and not the subsequent criminal convictions that informed, in part, the trial judge’s protection findings in accordance with the provisions of the CYFSA. In that context, I found it unnecessary to adjourn this appeal pending the determination of the appellant’s summary conviction appeal.

Determination of the Society’s Motion for Summary Judgment in the Original Protection Application

[50] The Society’s summary judgment motion in the original application was heard and determined by Ross J. on February 1, 2017. At that time, the children have been in Society care for nearly seven months. In her endorsement granting the Society’s motion, Ross J. expressly acknowledged the 12 month maximum period for Society wardship prescribed by the CFSA. Consequently, her final order of Society wardship was limited to four months. In finding that the children were in need of protection, Ross J. determined that they had been exposed to a violent altercation in which T.E. pinned the appellant to the ground and choked her, and the appellant stabbed T.E. with a fork. She found that this was not the first episode of domestic violence between them. To the contrary, the appellant had historically been the victim of domestic violence involving both T.E. and other individuals. She also found that the appellant consistently minimized the seriousness of the domestic assaults in which she was involved, even though she required medical care as a result of at least one of those incidents. The appellant did not challenge the Society’s evidence supporting those findings.

[51] The appellant consented to the Society’s summary judgment motion and conceded that the evidence warranted a protection finding. The same evidence that was before Ross J. in that regard was adduced in the trial of the status review application. However, during her evidence in cross-examination at trial, the appellant denied that she was ever assaulted by T.E. (whether in the presence of the children or not). Instead, she maintained that she fabricated her prior reports of domestic violence to police. The record does not disclose that the appellant put forth evidence in the context of the summary judgment motion before Ross J. asserting that the incidents of domestic violence between herself and T.E. that she had previously reported to police, resulted from exaggeration or fabrication on her part.

[52] As part of her disposition of the summary judgment motion, Ross J. endorsed a Society plan of care, which was effective February 1, 2017 (that plan of care was also filed as an exhibit before the trial judge). Among other things, the terms of the plan of care required the appellant to:

a) Attend for counselling through the mental health program available at the Can-Am Indian Friendship Centre [of Windsor] or other Society approved program, follow the recommendations of the service provider, and receive a favourable report;

b) Attend with her psychiatrist, Dr. Taliga, for treatment of her mental health needs and follow all recommendations, including taking medication as prescribed; and

c) Follow the release conditions related to her criminal charges (which included non-association/non-contact with T.E.).

[53] The plan of care endorsed by Ross J. also required T.E. to participate in a number of services and programs during the identified four month period of Society wardship. The only evidence on the issue at trial, reveals that T.E. did not participate in any of those services or programs.

The Appellant’s Participation in Services and Programs Between February 1, 2017 and June 1, 2017

[54] In her trial evidence, Ms. Schofield testified that contrary to the terms of the February 1, 2017 plan of care, the appellant did not attend the Can-Am Indian Friendship Centre of Windsor for mental health services in the four month period from February 1, 2017 to June 1, 2017. Instead, she eventually accessed mental health services from the John Howard Society. Subsequently, she accessed mental health services through the Canadian Mental Health Association (“CMHA”), although she did not do so in the four month period following February 1, 2017.

[55] Ms. Schofield, also testified that between February 1, 2017 and June 1, 2017, the appellant did not address her “parenting issues” by participating in the Triple P Parenting Program. Similarly, during that time period, the appellant did not access services, programs or resources through the Aboriginal Child Resource Centre or the Métis Nation of Ontario and she did not engage in counselling or treatment through the Windsor Sex Offender Treatment Program.

[56] Ms. Schofield testified that although the appellant had attended on her psychiatrist during the four months following Ross J.’s order, she was not successful in “obtaining [a] transfer of learning with regard to domestic violence or establishing services in the community for ongoing support and recognition that would mitigate the risks to the children should they be returned to her care.”

[57] Ms. Schofield testified that as a consequence of the appellant’s failure to comply with all of the requirements of the plan of care endorsed by Ross J., the protection risks that formed the basis of Ross J.’s protection findings remained operable at the end of the four month period of Society wardship. In addition, there was no indication that T.E. had engaged in the anger management and domestic violence services that were identified in the plan of care.

The Status Review Application and the Society’s May 16, 2017 Plan of Care

[58] The Society commenced a status review application on April 27, 2017 (before the expiration of the four month Society wardship order made by Ross J.), in which it sought an order of permanent Crown wardship, for the purpose of securing an adoption placement for the children. In the context of its status review application, the Society posited, among other things, that neither the appellant nor T.E. had completed the required services specified by the February 1, 2017 plan of care, during the term of the order made by Ross J.

[59] On May 16, 2017, Ms. Schofield provided the appellant, with whom she met on a monthly basis, with an updated Society plan of care. Together, they discussed its requirements. Ms. Schofield also reviewed and discussed the appellant’s progress towards fulfilling the plan of care’s objectives during the course of their subsequent monthly meetings.

[60] The terms of the May 2017 plan of care specifically contemplated that the appellant would: complete domestic violence counselling through the Can-Am Indian Friendship Centre of Windsor; obtain mental health services through the John Howard Society and Dr. Taliga (or other pre-approved service providers, following recommendations made from a service provider); engage in counselling to enhance her parenting skills through the Can-Am Indian Friendship Centre of Windsor (in order to demonstrate an understanding of the children’s basic, developmental, and emotional needs); and obtain sexual abuse counselling through the Windsor Sex Offender Treatment Program (in order to demonstrate an understanding of the impact of sexual abuse on children).

[61] Ms. Schofield’s affidavit and viva voce evidence at trial disclose that the appellant delayed initiating certain of the services contemplated by the plan of care, and in some instances the delay was substantial.

[62] Specifically, on May 31, 2017, the appellant advised Ms. Schofield that although she was working with the John Howard Society, she refused to participate in counselling related to “sexual abuse” because she believed that she would be acquitted of the then outstanding criminal charges related to the cell phone video. The appellant also advised Ms. Schofield that she did not believe that her actions, as depicted on and in relation to the cell phone video, required any further action or attention on her part.

[63] On June 19, 2017, the appellant advised Ms. Schofield that she had still not sought out the parenting program identified in the plan of care, either through the Can-Am Indian Friendship Centre of Windsor or an alternative service provider, although she expressed her commitment to do so in the future. Ms. Schofield provided the appellant with the contact information for the Can-Am Indian Friendship Centre of Windsor. Nonetheless, on August 29, 2017 (more than three months after the plan of care was made), the appellant confirmed that she had still not arranged to participate in the requisite parenting program. The appellant did not provide any reason for her delay in that regard.

[64] On August 29, 2017, the appellant confirmed that she had not sought out sexual abuse counselling, despite being found guilty of two sexual offences in June, 2017. Instead, she advised Ms. Schofield that despite the findings of guilt, she did not believe that she had done anything wrong “of a sexual nature”.

[65] On August 31, 2017, the appellant advised Ms. Schofield that she had attempted to contact the Can-Am Indian Friendship Centre of Windsor (in relation to the parenting program) but she had not received a response.

[66] On September 27, 2017, Ms. Schofield met with the appellant at her home, together with a CMHA case manager. At that time (more than four months after the plan of care was made), the appellant advised Ms. Schofield that she had still not participated in programing or services designed to enhance her parenting skills or to address sexual abuse issues. The appellant did not disclose any reason that would have prevented her from engaging in parenting programs or services through the Can-Am Indian Friendship Centre of Windsor or, alternatively, the Aboriginal Child Resource Centre, or the Métis Nation of Ontario. The appellant also advised Ms. Schofield that she was no longer participating in services through the John Howard Society. Finally, and ultimately of great concern to the trial judge, the appellant advised Ms. Schofield that once the current non-association orders between herself and T.E. “expired”, she planned to: resume her relationship with him; live with him; and eventually, to marry him.

[67] On October 18, 2017, Ms. Schofield once again advised the appellant that she ought to engage in a parenting program and she identified various service providers in that regard. Ms. Schofield also confirmed that a CMHA representative was willing to work with the appellant regarding her mental health issues.

[68] On December 8, 2017 (approximately seven months after the plan of care was made), the appellant advised Ms. Schofield that she was finally pursuing services through the Can-Am Indian Friendship Centre of Windsor and she had recently begun to participate in one-on-one weekly parenting counselling sessions. The appellant also confirmed that she continued to see Dr. Taliga regarding her mental health issues and that she was participating in anger management and mental health counselling through the CMHA. Finally, the appellant advised Ms. Schofield that she had not engaged in any services to address sexual abuse issues and she was unwilling to do so.

[69] On February 27, 2018, Ms. Schofield spoke with Sharon Sleiman, a counsellor with the Windsor Sex Offender Treatment Program, who confirmed that she had not heard back from the appellant regarding her participation in counselling. Ms. Schofield then contacted the appellant and encouraged her to make contact with Ms. Sleiman.

[70] On March 5, 2018, the appellant advised Ms. Schofield that she continued to access parenting skills services through the Can-Am Indian Friendship Centre of Windsor. The appellant also disclosed that she had participated in services related to domestic violence through the Can-Am Indian Friendship Centre’s “Strong Women’s Circle” (completing six sessions for which she received a certificate of completion). Finally, the appellant advised Ms. Schofield that she had made an appointment to begin sexual abuse counselling on March 6, 2018 (nearly ten months after the May 2017 plan of care was made).

[71] In her evidence, Ms. Schofield also recounted her consistent efforts to explain the expectations of the plan of care to T.E., who was non-compliant with same. Specifically, on October 26, 2017, T.E. advised Ms. Schofield that: he had not made contact with Hiatus House to resume a domestic violence program from which he had previously been discharged owing to non-attendance; he would not engage in any form of sexual abuse counselling; and he had not sought out anger management counselling.

[72] On January 11, 2018, T.E. again advised Ms. Schofield that he had not sought out anger management counselling or sexual abuse counselling, although he maintained that he was receiving mental health care through Dr. Halonen, having last met with that doctor in late November 2017. Contrary to T.E.’s latter suggestion, Ms. Schofield subsequently received correspondence from Dr. Halonen, dated January 31, 2018, indicating that he had not seen T.E. in more than one year and all of the prescriptions that he had previously provided to T.E. had expired.

[73] In her trial affidavit, Ms. Schofield deposes that as of March 6, 2018, neither the appellant nor T.E. had completed the programming identified in the plan of care that she had reviewed with them on May 16, 2017, and that neither of them had adequately dealt with issues of domestic violence or inappropriate sexual conduct in the presence of children, through counselling or otherwise.

[74] During Ms. Schofield’s ongoing contacts with the appellant and T.E., they also discussed alternative kin with whom the children could potentially be placed. Neither of them identified any potential kinship placements. Ms. Schofield also obtained their consent to speak with the Métis Nation of Ontario and the EWMNNS, and neither community presented a plan with respect to the children.

[75] During the course of her trial evidence, Ms. Schofield confirmed that according to the appellant’s own disclosure, she did not seek out services for domestic violence through the Can-Am Indian Friendship Centre of Windsor until February of 2018 and she had completed the “Strong Women’s Circle” program through that organization, by the time of trial. Ms. Schofield confirmed that she had not been provided with any information from any source evidencing: the depth to which the appellant engaged in that program; the substantive knowledge that the appellant gained in that program; or whether, as a result of that program, any recommendations were made for additional follow-up services for the appellant.

[76] Ms. Schofield independently confirmed that the appellant accessed services through the John Howard Society until September 2017. However, there was an unexplained gap in the services provided by that organization. By September 2017, the appellant only attended at John Howard Society once every two weeks for the purposes of signing in, in order to comply with the conditions of her bail. Beginning in September 2017, the appellant accessed mental health services for “anxiety, depression, and anger management” from the CMHA. She also continued to see her treating psychiatrist every three to six weeks for mental health assessments and medication.

The Appellant’s Direct Evidence at Trial (On the Issue of Protection)

[77] In her viva voce evidence at trial, the appellant confirmed the past history of services that she had accessed, which was consistent with the content of her trial affidavit. She further testified that by the time of trial she had completed six sessions of counselling with Ms. Sleiman of the Windsor Sex Offender Treatment Program, in order to address her “sexual charges”. No further sessions were planned.

[78] During the course of her “sexual abuse counselling” (as she described it), she learned “appropriate sexual behaviour between parents and their children”. She also learned to refrain from engaging in sexual activity around children because it could result in “early sexualizing”. She gained an appreciation of personal and sexual boundaries and she engaged in “relapse protection programming”. Finally, she learned that the sexual behaviour that she engaged in around her children was inappropriate and her actions could have resulted in the children becoming “sexualized” earlier than they otherwise would, which she understood was “not good”.

[79] Her counselling through the John Howard Society addressed her self-esteem issues. It allowed her to build confidence in herself and to be more assertive. She tackled issues with respect to domestic violence committed against her and how to prevent domestic violence, particularly in the presence of children. She stated that if she was subject to abusive behaviour in the future, she would contact police and would leave the place of the abuse, with her children. There was no evidence that she advised her counsellor that she fabricated her past allegations of domestic violence against T.E.

[80] The appellant denied that she was engaged in an ongoing relationship with T.E. at the time of trial. She acknowledged that, on several occasions, Ms. Schofield asked her about her relationship with T.E. She testified that in response, she advised Ms. Schofield that she was open to participating in “couples counselling with T.E. in the future” but only if he first engaged in the services that the Society directed” (i.e. anger management and domestic violence). That aspect of her evidence was not set out in her trial affidavit and only emerged, for the first time, in her viva voce evidence at trial. Finally, the appellant testified that until T.E. accessed the services directed by the Society, she would contact the police if he attended a location where she and the children were present. That was another aspect of her evidence that was not set out in her trial affidavit.

The Appellant’s Evidence in Cross-Examination (On the Issue of Protection)

[81] In cross-examination, the appellant, for the first time, asserted that some of the information contained in the police occurrence reports and the affidavit evidence of Society workers regarding the incidents of domestic violence said to have occurred between herself and T.E. was untrue.

[82] Specifically, although she acknowledged that on May 1, 2016, she threw a glass jar at T.E. in anger, she denied that she stabbed him with a fork. She conceded that she contemporaneously advised police that she had done so. She also denied that T.E. pinned her down and choked her. She conceded that she contemporaneously advised police that he had done so. Ultimately, in cross-examination, she testified that T.E. had never assaulted her at any time. She conceded that T.E. was charged with criminal offences as a result of the alleged domestic assault that she reported to police in May 2016. The charges were ultimately withdrawn. She denied that she was consulted with respect to, or involved in, the withdrawal of the charges against T.E. Instead, she explained that the assault charges against him were withdrawn because there were no pictures evidencing any injuries to her.

[83] In her evidence in cross-examination, the appellant claimed that she was motivated to fabricate allegations of domestic assault against T.E. on May 1, 2016, as retaliation for T.E. lying to police by stating that she had stabbed him with a fork. She did not depose to those aspects of her evidence in her trial affidavit or direct examination. She did not explain why she admitted to police, on May 1, 2016, that she had, in fact, stabbed T.E. with a fork. Further, the appellant did not offer any evidence explaining why she did not disclose her alleged fabricated allegations when the domestic assault that she reported, eventually led to the children’s initial apprehension in May 2016 and the original protection proceeding, or at any time after its inception up to the trial of the status review application. She did not explain why she consented to a protection finding being made on February 1, 2017 that was founded in domestic violence between herself and T.E., that she ultimately asserts did not actually occur. She also did not explain why she testified at trial that her participation in pre-trial counselling afforded her insight into past domestic violence incidents that she subsequently testified at trial did not, in fact, occur.

[84] The appellant conceded that on May 1, 2016, she threw a glass jar at T.E. that struck a wall and shattered, in the presence of the children and the children were crawling in the area of the glass. During that altercation, she and T.E. were shouting at each other in anger, in the presence of the children and the children were crying, as a result.

[85] The appellant confirmed that T.E. was also charged with assaulting her in January 2015, as a consequence of allegedly punching her in the stomach while she was pregnant and pinching her face. Following his arrest, he was incarcerated for five months pending trial. The charges went to trial and T.E. was acquitted. Although the appellant disputed the accuracy of that narrative in her trial affidavit, she conceded to its accuracy in her viva voce evidence.

[86] For the first time in this proceeding, the appellant testified in cross-examination that she also lied to the police about that alleged assault. In that regard, she conceded that she contacted the police in January 2015 and reported that T.E. had punched her in the stomach. However, the appellant stated that she gave evidence at T.E.’s criminal trial indicating that she had fabricated her allegations against him. When pressed on the point in cross-examination, the appellant could offer little in the way of explanation as to why she would have fabricated allegations of assault against T.E. in January 2015, other than to say that she became upset as a result of an argument between them, and she called the police and made up a story against him.

[87] The appellant confirmed that owing to her report to the police that she was punched in the stomach by T.E., she was taken to hospital for assessment. She acknowledged that given her asserted fabrication of the incident, she was aware that such an assessment would be “a waste of everyone’s time”, but she attended in any event, because she wanted authorities to believe her lies.

[88] In cross-examination, the appellant admitted that in 2015 she realized that she had an anger management problem, which she discussed with a Healthy Babies Healthy Children worker, through a form of counselling. She conceded that despite that counselling, she threw a glass object at T.E. in anger in May 2016, knowing that it could have hit him.

[89] The appellant also conceded that she breached the terms of Ross J.’s May 2016 order, because she engaged in contact with T.E. despite being prohibited from doing so. As a consequence of that breach, the children were removed from her care in July 2016.

[90] In cross-examination, the appellant agreed that in his reasons, Douglas J. accurately described the subject cell phone video. She confirmed that the video depicted T.E. naked with his erect penis exposed and T.J.E. sitting next to him. She conceded that eventually the child touched T.E.’s erect penis and attempted to do so again. The appellant conceded that the circumstances of the video demonstrated “poor judgment” on her part. She explained that she was “not thinking clearly” at the time nor was she “thinking about the safety of [her] children”. She first came to that realization during the course of her criminal trial, as she watched the video being played in court. She agreed that she voluntarily video recorded the incident on her phone, but from her perspective she was “not thinking clearly” or “smartly” when she did so.

[91] The appellant now concedes that her children could have been adversely affected as a result of her “poor judgment”. The appellant asserted that through her sexual offender and other counselling, she now appreciates the manner in which her own conduct related to the video could have potentially affected children. The appellant acknowledged that her participation in the circumstances related to the video recording were wrong and resulted from her being “selfish”. She conceded that she was not worried about the well-being of her children at the time.

[92] The appellant also acknowledged, for the first time, that when she lived with T.E., he was habitually naked in the presence of the children. She testified that she always told T.E. to put his clothes on.

[93] The appellant conceded that she did not begin to participate in “sexual offender counselling” until February 2018, which she acknowledged was a significant period of time after the criminal trial in June 2017. She attributed that delay to her inability to contact her criminal counsel to determine whether she should participate in such counselling. She agreed that she did not disclose that to Ms. Schofield, as a reason for her delay, on a contemporaneous basis, or at all. She admitted that she was in the presence of her criminal counsel in September 2017, at her sentencing hearing, but she did not discuss the issue with him at that time because it had “slipped her mind”. The appellant also admitted that she never made an appointment to attend on her criminal counsel after her criminal trial, in order to determine whether she should attend counselling, or otherwise.

[94] The trial judge admitted, as an exhibit, brief correspondence dated May 23, 2018 and authored by Sharon Sleiman, the clinical social worker who counselled the appellant through the Windsor Sex Offender Treatment Program. In her correspondence, Ms. Sleiman indicates that the appellant completed the goals of treatment including: accepting responsibility; understanding personal boundaries and healthy relationships; and her offence cycle; and the development of a relapse prevention plan. The appellant is also said to have gained a deeper understanding of the pain that she has inflicted on her children, which she was able to insightfully articulate. Notably, Ms. Sleiman endorsed further counselling for the appellant, to allow her to examine her own childhood trauma issues and the impact they have had on her poor decision making. Consistent with Ms. Sleiman’s correspondence, in cross-examination, the appellant agreed that she required further counselling, which she admitted she had not undertaken as at the time of the trial.

[95] The appellant confirmed that she was engaged to T.E. prior to the sexual offence charges against them, however, she had not seen him for two years. She considered herself single at the time of trial.

[96] Finally, the appellant confirmed that in her plan of care she stated that she had support from her father Ce.W., who was available to assist with the children if needed. However, in cross-examination, she conceded that: Ce.W. is a resident of Houston, Texas; he has never seen either of the children in person; his past support of the children, to which she generally deposed in her affidavit, consisted of Ce.W. sending money to the children on their birthdays; and Ce.W. had never done anything else to support the children, or to support the appellant’s efforts in respect of caring for the children, at any time.

The Evidence on Disposition

[97] On the issue of disposition, the Society adduced an affidavit sworn by Rebecca Rusenstrom, the children’s Children’s Services Worker. She was not cross-examined. Ms. Rusenstrom was assigned to work with both children when they came into Society care on July 16, 2016, and she continued to do so up to the date of trial.

[98] Ms. Rusenstrom deposes that when the oldest child, C.T-W., came into Society care at the approximate age of two and one-half years old, she demonstrated a number of developmental delays including the following: she did not respond to her name being called; she was unable to follow simple instructions; her speech was limited to a few words; and she could not drink from a regular cup. C.T-W.’s speech delays and lack of social skills were noted at the Ontario Early Years Centre, where the child was observed to be uninterested in engaging with other children and unable to join two words together.

[99] After coming into Society care, C.T-W. was referred to the Children First organization for speech and language development services, which continued until she entered school. A speech pathologist was assigned to C.T-W. together with an occupational therapist (to enhance her fine motor skills). C.T-W.’s hearing capacity has been periodically assessed. She was previously diagnosed with fluid in her ears and she continued to struggle with certain aspects of verbal articulation.

[100] The services provided to C.T-W., while in Society care, proved beneficial. As at the time of trial: C.T-W. was able to communicate in full sentences when speaking to others; her social skills were improved; and she was very comfortable interacting with other children. Nonetheless, C.T-W. continued to require services from an occupational therapist and a speech and language therapist. She also required services targeting development of her further gross and fine motor skills.

[101] Ms. Rusenstrom deposes that when T.J.E. came into Society care on July 16, 2016, he also demonstrated delays in development, particularly with respect to: age appropriate language skills; fine and gross motor skill development; and chewing his food. He was referred to Children First, where he received services in the areas of speech and motor skills development. In addition, his foster mother brought him to the Ontario Early Years Centre on a near daily basis in order to provide him with social development opportunities.

[102] T.J.E. underwent a hearing test in April 2017, which revealed that he experienced difficulties in hearing certain sounds and hearing sounds at a low volume. A further sedated hearing test in October 2017 disclosed no issues.

[103] T.J.E.’s chewing improved after he came into Society care. As of the time of trial, he chewed his food in a normal manner, most of the time. His social skills also improved after he came into Society care. At the time of trial, he was: able to communicate his needs; better able to respond to others; and making progress with his gross motor skills. His speech continued to lag behind his age group, but demonstrated improvement.

[104] In Ms. Rusenstrom’s view, T.J.E. continued to require the services of Children First. In addition, he continued to receive in-home support, in his foster home, to assist in further speech and motor skill development. He also continued to treat with a speech pathologist. Finally, T.J.E. presented with “tight muscles” of an unspecified etiology. A medical practitioner concluded that it was possible that the child had a mild case of cerebral palsy and endorsed that occupational therapy be provided through Children First, which had been arranged as of the time of trial.

[105] Ms. Schofield provided further evidence with respect to disposition and spoke to the terms of the Society’s proposed plan of care for the children, dated May 11, 2017. She confirmed that the Society continued to seek out appropriate potential kinship placements for the children after May 11, 2017, but no suitable placements were identified. Apart from the appellant and C.W. and despite discussion with the children’s parents, extended community and a representative of the EWMNNS, no other plans of care (or placements) for the children were identified or presented.

[106] At the time of trial, C.T-W. resided with her foster parent, C.G., who had expressed an intention to adopt both children subject to no access or photograph access (a detailed letter from C.G., dated July 4, 2017, was admitted into evidence in that regard). Both children had been placed in C.G.’s care when they were originally apprehended in May 2016. However, when they were removed from the appellant’s care in July 2016, C.G. could only take C.T-W. because she had accepted other foster children in the interim.

[107] The evidence revealed that at the time of trial it remained C.G.’s intention to adopt both children. The evidence further disclosed that C.G. had consistently followed that the specific recommendations that were developed at plan of care meetings, including involving C.T-W. in identified Métis culture-specific activities and recommended services to enrich her placement. C.G. engaged in services through the Can-Am Indian Friendship Centre of Windsor specific to foster parent training, and she was committed to follow up with respect to that program. C.G. also engaged the services of a Family Wellness Worker through the Can-Am Indian Friendship Centre of Windsor. C.G. represented that she remained committed, on an ongoing basis, to ensure that C.T-W. was engaged in cultural programming and services both in her school and the community.

[108] C.G. understood that the children had Métis heritage and she expressed a commitment to ensure that they maintained contact with their heritage, consistent with their previous participation in services in that regard that had occurred since C.T-W. began to reside with her. Finally, Ms. Schofield had not had any specific discussions with C.G. in respect to registering the children as members of the EWMNNS once they attained the age of 16 years old.

The Appellant’s Evidence on Disposition

[109] In her trial affidavit, the appellant confirmed details of her proposed plan of care, whereby the children would be returned to her care subject to Society supervision. She testified that no one, apart from the children, would reside with her if they were returned to her care. She intended to enroll them in daycare. She had recently started counselling at the CMHA and intended to continue that treatment. She planned to engage services on behalf of the children through: the Aboriginal Child Resource Centre; the Can-Am Indian Friendship Centre of Windsor; the Ontario Early Years Centre; Talk To Me; Children First; and their daycare and/or school, once enrolled.

[110] The appellant deposed that she had support from her father, Ce.W. and her mother C.W., as well as the Aboriginal Child Resource Centre and Can-Am Indian Friendship Centre. She swore that she would be able to contact both her mother (who resides in Nova Scotia) and her father (who resides in Texas, USA) to receive their assistance with the children, if needed.

[111] The appellant further deposed that her plan of care was in the best interests of the children because she loved them and she “[takes] good care of them”. She had undertaken counselling, anger management and domestic violence courses and was still taking parenting classes. She deposed that she cared for her children “a lot” and she would feel better once they were back in her care and custody. She expressed a desire to raise her children in accordance with “Métis cultural traditions”. The appellant further deposed that she had completed a five-part workshop on healthy relationships (from April 15, 2016 to May 27, 2016, which started before the children’s initial apprehension in May 2016) through the Métis Nation of Ontario and she had accessed services, in the past, through the Métis Healthy Babies Healthy Children program.

[112] In her viva voce evidence, the appellant testified that she was residing in a three-bedroom home, in which T.E. would not be permitted to reside. She planned to enrol C.T-W. in a Catholic school across the street from her home (the name of which she could not recall) and to enrol T.J.E. in daycare. She wanted to pursue a career in policing and was waiting for the appeal of her criminal charges to be determined before she pursued that vocational path.

[113] At the time of trial, the appellant continued to be treated for mental health issues through the Can-Am Indian Friendship Centre of Windsor; the CMHA; and periodic attendance on her psychiatrist. She was willing to engage in further sexual offence counselling through Ms. Sleiman.

[114] In the event that the children were placed in her care, she intended to access resources through the Aboriginal Child Resource Centre and the Can-Am Indian Friendship Centre of Windsor in order to ensure the children were connected with their aboriginal culture. She indicates that those organizations have various programs directed at children and youth.

[115] In the short term, she intended to secure employment and she planned to arrange for a suitable babysitter for the children while she was working.

[116] She testified at trial, that her plan of care was in the children’s best interests because: she was committed to following any conditions imposed by the court; she loved and cared for her children; and she would continue to seek out counselling to improve herself and become a better parent.

[117] The appellant also testified that she was committed to ensuring that she remained clothed while she was in the presence of the children. She represented that she would not engage in sexual activity around the children.

[118] On the issue of visitation, the appellant testified that she saw the children once a week, for a two-hour period, at the Children’s Aid Centre. During her visits, she typically brought the children snacks and engaged in activities with them such as reading, talking to them, playing with them and styling C.T-W.’s hair. She did not expressly testify that they engaged in any activities directed to the children’s Métis culture or heritage. The children are always happy in her presence, and she believes that it would be beneficial to continue seeing them in the event that they were placed elsewhere. In the event the children were placed with their maternal grandmother, C.W., the appellant was committed to attempting to see them every weekend, by either driving or flying to Nova Scotia on a weekly basis. She also believed that there was a possibility that C.W. would relocate to Ontario.

[119] The appellant acknowledged the Society’s evidence with respect to certain of the children’s identified medical and therapeutic needs. However, she herself did not believe that C.T-W had any issues with her speech, despite the child’s continuing participation in speech therapy. She felt that T.J.E. “might need a little” help but that he was still young. She was of the view that T.J.E.’s hearing was “good”. Nonetheless, she was committed to following through with any services identified by the Society with respect to speech and hearing issues.

[120] In cross-examination on disposition, the appellant confirmed that she had not read nor seen the affidavit of Ms. Rusenstrom. She was uncertain if she agreed with Ms. Rusenstrom’s evidence that T.J.E.’s muscle development and coordination were, to a degree, lacking. From her perspective, T.J.E.’s muscle development and coordination were fine.

[121] The appellant confirmed that she had regularly attended the plan of care meetings that were scheduled with respect to the children. During the course of those meetings, the status of each child was discussed. The appellant conceded that when C.T-W. came into Society care, her speech was limited to a few words and she could not drink from a regular cup. The appellant did not believe that C.T-W. had any difficulty socializing or engaging with other children. The appellant understood that the Society had secured a speech pathologist to work with C.T-W. In the event that the children were returned to her care, the appellant intended to continue C.T-W.’s participation in services through Children First, and possibly the Can-Am Indian Friendship Centre, and the “Talk To Me” program. The appellant was uncertain if C.T-W. had any hearing issues. To the extent that she did, the appellant intended to involve her family doctor in the management of same.

[122] The appellant believed that she was probably eligible to send the children to a Catholic school, but, as of the time of trial, she had not made contact with any potential schools for the children. As a result, she was uncertain if she could enrol C.T-W. in the school that she identified previously in her evidence.

[123] She did not perceive T.J.E. to have any difficulties with his mobility or aspects of dressing, although she conceded that those issues were discussed at the plan of care meetings that she attended. She also acknowledged that T.J.E. experienced difficulty chewing his food. She planned to address that issue by telling him to pace his chewing and potentially, by involving her family physician.

[124] The appellant confirmed that: C.T-W.’s foster mother, C.G., attends the plan of care meetings; C.G. appears to care for the children; and she is able to share information with C.G.

Additional Evidence Concerning the Potential of Placing the Children with Their Maternal Grandmother C.W.

[125] The Society adduced evidence at trial relevant to the possibility of placing the children in the care of their maternal grandmother, C.W. While the Society’s protection application was outstanding, C.W. advised the Society that she wished to be considered as a possible placement for the children. The Society requested that the Nova Scotia Department of Community Services complete a kinship assessment regarding C.W.

[126] On October 25, 2016, Heidi Hebb, a protection social worker with the Nova Scotia Department of Community Services, attended at C.W.’s home to begin the assessment. On January 6, 2017, a certificate of convictions was obtained from the Halifax District R.C.M.P. in relation to C.W., which revealed that C.W. had several recent criminal convictions, including: a conviction for obstruction and resisting police in November 2014; obstruction and resisting police in November 2013; and a significant number of convictions (approximately 15) for failing to comply with undertakings and court orders over the period of 2013 to 2015.

[127] On February 28, 2017, Keya Leahey of the Nova Scotia Department of Community Services advised the Society that she had met with C.W., who expressed a belief that her grandchildren should not be kept from her daughter (the appellant). C.W. disclosed that the appellant advised her that the video on her phone was not pornographic. C.W. advised Ms. Leahey that she did not see any risk associated with returning the children to the appellant’s care.

[128] Ms. Leahey also authored correspondence to the Society, dated February 28, 2017, describing her interactions with C.W. She observed that C.W. characterized the events leading to the child pornography charge against the appellant as a “set up” by a former child protection worker. C.W. also expressed her belief that the children had been “kidnapped” by the Society. Ms. Leahey concluded her correspondence by stating:

It is essential that kinship applicants demonstrate a general understanding and acceptance of the reasons children are in care. [C.W.’s] stance that there is no reason for the children to be in care, renders her unable to protect the children from risks posed by their parents.

As you are aware, [C.W.] has a history of numerous convictions for failing to comply with undertakings and probation orders (see attached). Her repeated failure to comply with court orders, taken in conjunction with her belief the children were “kidnapped” make it probable she would not cooperate with court or Agency imposed restrictions on the children’s contact with their parents.

For the above reasons, I would not recommend placement of the children in the care of their grandmother, [C.W.]. Please do not hesitate to contact me if you have any questions or concerns.

[129] Society worker Sara Geary spoke with C.W. on February 28, 2017, and advised her that she would not be approved to provide care for the subject children because she did not believe that the appellant presented a risk of harm to them. C.W. advised Ms. Geary that her daughter was “innocent until proven guilty”. She further stated that she would obtain a lawyer to participate in the court proceedings and that she would be “fighting Keya Leahey, who would ‘suffer from God’.”

[130] On July 4, 2017, C.W. brought a motion to be added as a party to this proceeding. In support of her motion, she swore an affidavit dated July 4, 2017, indicating that she had not had any involvement with any child welfare service and neither had her children. However, records obtained by the Society from the Nova Scotia Department of Community Services, totalling 85 pages in length, evidenced ongoing periodic involvement between that organization and C.W. over the period of October 30, 2009 to March 2, 2016 in respect of 14 distinct child protection issues of which: two were substantiated; four were not substantiated; and nine were not investigated. In her affidavit, C.W. also deposed that she, herself, was in an ongoing abusive relationship with elements of domestic violence. C.W.’s motion seeking party status was withdrawn on August 8, 2017.

THE TRIAL JUDGE’S FINDINGS

[131] During the course of the trial, the trial judge made three distinct findings which form the subject matter of this appeal, namely that: the children were not Métis children within the meaning of the CYFSA; the children were in continuing need of protection pursuant to ss. 74(2) of the CYFSA; and that an order placing the children in the extended care of the Society was the disposition that was consistent with their best interests, as determined in accordance with ss. 74(3) and 101 of the CYFSA.

[132] The appellant essentially asserts that the first challenged finding decisively impacts the third challenged finding because the trial judge failed to advert to all of the otherwise mandatory statutory considerations on disposition (including those set out in s. 101(5) of the CYFSA), as a consequence of his failure to find that the children were Métis. More fundamentally, the appellant asserts that the trial judge’s failure to find the children were Métis children renders the entire proceeding a nullity, thereby necessitating a new trial. Before considering those submissions, I will generally review the bases upon which the trial judge made the disputed findings, below.

(i) The Trial Judge’s Finding that the Children were Not Metis Children

[133] In a ruling delivered orally on May 22, 2018, the trial judge determined that the children were not Métis children within the meaning of the CYFSA. I will fully address the basis of his ruling and the consequences that flow therefrom, when determining the asserted grounds for appeal, later in these reasons. At this juncture, however, I observe that in arriving at his finding, the trial judge was proactive in ensuring that the Society adduced fulsome evidence on the issue. He directed its counsel to adduce evidence directly from a representative of the EWMNNS and, as a result, Grand Chief Mary Lou Parker testified at trial. I will detail her evidence later below.

[134] After Grand Chief Mary Lou Parker’s evidence, counsel for the Society and counsel for the appellant submitted to the trial judge that the children were not appropriately identified as Métis pursuant to the provisions of the CYFSA (in respect of the latter, see the transcript of proceedings at trial, dated May 22, 2018, at pp. 48-49). Following the evidence and counsel’s submissions on the point, Phillips J. made a brief oral ruling in which he states, in part, at p. 3 of the transcript of his ruling:

In my view, based on the submissions made by counsel and the evidence I heard, both of the children have a connection by virtue of race, ancestry, ethnic origin to the Métis community [the EWMNNS]but neither are a member. Neither are in a position to identify in consequence of age and I have no evidence that, in any event, they have self-identified.

If neither are a member and neither have self-identified, then neither come within the critical features of s. 2(4) of The Child Youth and Family Services Act. Therefore, as it applies to s. 90(2), Part B, it has no application. That being said, the considerations having to do with race, ancestry, place of origin, ethnic origin, these will, of course, continue to be important aspects of dealing with and the making of any decisions related to these two children in consequence of the language of the statute, in particular, the provisions of s. 74(3), Part C. [Emphasis added.]

(ii) The Trial Judge’s Protection Findings

[135] Through oral reasons delivered May 24, 2018, and following evidence and submissions on the issue, the trial judge determined that the children were in continuing need of protection. Although the trial of the status review proceeding was conducted in the context of an amended status review application seeking a protection finding in accordance with s. 74(2)(c) of the CYFSA, the evidence and counsel’s respective submissions were not limited to that ground, at trial. Instead, the parties also adduced evidence and made submissions with respect to a potential continuing protection finding based on the children’s historic exposure to domestic violence while in the appellant’s care, which was the protection ground asserted in the Society’s original status review application. Indeed, the Society’s intent to assert and call evidence in support of that protection ground at trial, was disclosed, without objection by the appellant, at a previous trial management conference.

[136] In its submissions on the asserted protection grounds, the Society’s counsel submitted that the appellant’s evidence raised serious credibility issues, particularly her testimony, at trial, that there had never been any issues of domestic violence between herself and T.E. She deposed under oath that every criminal charge that had been brought against T.E. as a consequence of asserted domestic violence against her, resulted from her own fabricated reports to police. She testified that as a result of one of her fabricated allegations, T.E. remained incarcerated from January to May 2015, awaiting trial for offences that she now says he did not commit. The appellant disclosed for the first time, in cross-examination, that she lied to police when she reported that T.E. choked her in May 2016 and assaulted her in 2015. Society counsel submitted at trial, that the foregoing aspects of the appellant’s evidence were untrue and he urged the court to accept, as true, the historical reports of assault that the appellant made to police, with respect to T.E.

[137] Society counsel correctly submitted to the trial judge that in the context of the summary judgment motion in the original protection hearing, Ross J. found that there was a history of domestic violence between the appellant and T.E. The appellant did not dispute the truth or accuracy of their history of domestic violence as it was deposed to by Ms. Praill or Ms. Geary during the original protection hearing, nor did she dispute the disposition of the summary judgment motion the Society brought before Ross J. Instead, she consented to a judgment that included a protection finding premised on domestic violence committed against her by T.E. (and in at least one instance, by her against T.E.).

[138] Society counsel also observed that in her trial affidavit, the appellant deposed that her father Ce.W. was available to assist with the children, if required. However, in cross-examination, she admitted that: Ce.W. had never been to Windsor; he lived in Texas; he never met either of the children; and his past support consisted of sporadically sending monetary gifts for the children’s birthdays. In that context, counsel submitted that the foregoing aspect of the appellant’s trial affidavit, was an attempt to mislead the court by creating an inaccurate impression that she had a supportive network available to assist her in caring for the children.

[139] Society counsel submitted that the appellant’s “explanation” for her excessive delay in initiating sexual offender counselling was simply not believable. He submitted there was a discrepancy between: the appellant’s evidence that she did not attend counselling through the Windsor Sex Offender Treatment Program until February 2018 because she had difficulty communicating with her lawyer; and her admission, in cross-examination, that she had direct contact with her lawyer at her sentencing hearing in September 2017 and three days later at her bail (pending appeal) hearing. The appellant also conceded that she did not engage in any efforts to schedule an appointment with her lawyer to discuss such counselling.

[140] As a result of the foregoing, the Society submitted that the appellant was not credible and, in turn, her evidence indicating that she would not resume cohabitation with T.E. ought to be rejected. That aspect of her evidence conflicted with Ms. Schofield’s evidence that the appellant consistently confirmed that it was her intention to resume cohabitation with T.E. as soon as the non-association order was terminated, without any further reservation or qualification.

[141] Counsel for the Society then expounded upon the specific protection concerns held by the Society, which included: the exposure of children to multiple incidents of domestic violence; and the exposure of children to adult sexual activity. He invited the court to accept as true, the content of the various police reports filed as exhibits (which described historical incidents of domestic violence between the appellant and T.E.), and the affidavit evidence disclosing other incidents of domestic violence in which the appellant was involved. Society counsel submitted that the evidence established the appellant’s consistent failure to acknowledge historic problems associated with the domestic violence in which she was involved.

[142] In turn, counsel submitted that the appellant’s failure to acknowledge her actual history of domestic violence with T.E. prevented her from credibly asserting to the court that she would not expose the children to incidents of domestic violence in the future. To further illuminate that proposition, the Society’s counsel correctly submitted that the appellant’s trial evidence was devoid of any acknowledgement that the children had ever been exposed to incidents of domestic violence. Instead, she said that her historical reports of domestic violence to police were fabricated. In essence, she denied any risk to the children arising from domestic violence exposure.

[143] The Society’s counsel maintained that the concerns raised by the foregoing aspects of the appellant’s evidence were compounded by the absence of evidence that T.E. had completed any of the domestic violence counselling mandated by the Society’s May 2017 plan of care or the plan of care endorsed by Ross J. Counsel submitted that there was a substantial likelihood that T.E. and the appellant would reconcile in the future and the cycle of domestic violence between them would resume because neither the appellant nor T.E. had demonstrated any insight into the triggers of domestic violence between them.

[144] On the issue of the children being exposed to adult sexual activity, the Society’s counsel submitted that during her cross-examination, the appellant acknowledged, for the first time, that T.E. was often naked in the presence of the children. Further, in her trial affidavit, (as distinct from her viva voce evidence) the appellant did not acknowledge any responsibility for the content or circumstances of the cell phone video that resulted in criminal charges against her and T.E. Finally, she substantially delayed accessing appropriate services to address the conduct underwriting her criminal convictions, having finally done so, for the first time, in February 2018, with the result that those services were not completed at the time of trial. In all of the circumstances, the Society’s counsel submitted that the court had no assurance that the children would not be exposed to adult sexual activity in the future, should they be returned to the appellant’s care.

[145] As a result of the foregoing, Society counsel requested that the court find that the children were in continued need of protection pursuant to s. 74(2)(d) of the CYFSA (that there is a risk that the child is likely to be sexually abused or sexually exploited) and s. 74(2)(h) of the CYFSA (that there is a risk the child is likely to suffer emotional harm resulting from the actions, failure to act or a pattern of neglect on the part of the child’s parent or the person having charge of the child).

[146] In her submissions, counsel for the appellant conceded that the court could fairly consider both of the grounds for protection identified by the Society. However, she posited that the appellant had effectively complied with the terms of the February 1, 2017 and May 2017 plans of care in addressing domestic violence issues. She reiterated the appellant’s evidence that she would not reconcile with T.E. until he completed requisite counselling related to domestic abuse and she would not allow him to attend her residence until that was done. The appellant was willing to abide by any order prohibiting her from associating with T.E., in the event that the children were returned to her care.

[147] The appellant’s trial counsel submitted that the appellant acknowledged the protection concerns that arose from her relationship with T.E. and the associated domestic abuse issues. Although counsel did not reconcile the apparent conflict between that proposition and the appellant’s evidence that there were no incidents of domestic violence between herself and T.E., in fact.

[148] Further, the appellant’s counsel submitted that the appellant had effectively achieved the mental health objectives of both plans of care by: participating in counselling through the mental health program at the Can-Am Indian Friendship Centre of Windsor; attending on psychiatrist Dr. Taliga; and engaging in counselling through the John Howard Society in the period of February 1 to June 1, 2017. Counsel acknowledged that the appellant did not attend for counselling at the Canadian Mental Health Association in the period of February 1 to June 1, 2017, nor did she engage services through the Aboriginal Child Resource Centre or the Métis Nation of Ontario during that time.

[149] Further, the appellant’s counsel acknowledged that the appellant did not participate in services through the Windsor Sex Offender Treatment Program during that time. However, counsel submitted that as of February of 2018, the appellant started to participate in services through that program and continued to do so as of the date of trial, and consequently, she was “dealing with the issues regarding inappropriate adult sexual behaviour which may be causing early sexualization and inappropriate behaviour by children”.

[150] Finally, counsel submitted that as of February 2018, the appellant had begun to comply with the terms of the Society’s plan of care, made nine months earlier in May 2017, by accessing domestic violence counselling through the Can-Am Indian Friendship Centre of Windsor (and specifically the Strong Women’s Circle Program).

[151] During the course of the appellant’s trial counsel’s submissions, the trial judge expressed concern over the efficacy of the appellant’s domestic violence counselling, based on the evidence she gave at trial. The trial judge specifically referred to the appellant’s trial evidence denying historical domestic violence between T.E. and herself and her evidence that she made false statements to police in that regard. With respect to the latter aspect of her evidence, the trial judge queried, “How much of that would she have disclosed to persons providing counselling, and had she disclosed that how might that have impacted on what treatment was provided having to do with domestic violence...?” He also queried the extent to which the appellant’s meaningful and successful completion of domestic violence counselling was dependant on the appellant making honest disclosure to her counsellor.

[152] The appellant’s counsel conceded that the identification of the counselling that would be appropriate for the appellant was a function of the extent to which the appellant made honest disclosure of her domestic violence history. The appellant’s counsel conceded that there was no evidence establishing whether the appellant advised her counsellor that there were actual incidents of domestic violence between herself and T.E. or whether she disclosed that her reports to police were fabricated, nor was there evidence establishing the counsellor’s view of the effectiveness of the counselling that occurred.

[153] Counsel then observed that the appellant testified to the benefits she was receiving from sex offender counselling, and she was willing to engage in further recommended counselling in that regard. The court rhetorically questioned the amount of weight that ought to be afforded to the evidence of that counselling, which had only started in February 2018, particularly since the children had been in Society care since July 2016 and the cell phone video was recorded prior to that time.

[154] In response, the appellant’s trial counsel submitted that the appellant delayed initiating sexual offender counselling owing to considerations related to the criminal proceeding, but as of the time of trial, the appellant recognized that she needed to participate in counselling in order to develop insight into her behaviour and to “help her children”. She further submitted that the appellant had gained an appreciation of her past issues with respect to domestic violence and inappropriate sexual conduct, and she had taken steps to address those issues through the counselling and services that she had since accessed.

[155] The appellant’s trial counsel then conceded that a protection finding ought to be made. Specifically, at page 23 of the transcript of the proceedings at trial dated May 24, 2018, she states:

So I would submit that – I know we aren’t in the disposition phase but there will have to be a protection finding. I concede that. I think the disposition would go more on whether given the protection findings whether terms of supervision could ameliorate or address the concerns the court is going to have in regards to risk to the children.” [Emphasis Added]

[156] Further, at page 26 of the transcript of the proceedings at trial, dated May 24, 2018, the appellant’s trial counsel states:

...my submissions would be that there is acknowledgment that there are protection risks that Your Honour could make a finding based upon and that more of our position would be focused on the mother’s compliance on a potential disposition that was less intrusive than the extended care of the Society. Thank you. [Emphasis added.]

[157] In reply, Society counsel submitted that there was a distinction between the appellant’s attendance for recommended services and the appellant establishing, through evidence, that she had derived benefits from those services by gaining insight into the nature of the problems that triggered the need for services, together with an understanding of the changes that she needed to implement in order to eliminate the operable risks of harm to the children. Counsel submitted that the appellant’s evidence did not establish that: she had benefited from counselling; she had gained any insight into the issues that necessitated counselling; or the steps that she needed to take in order to ensure that her past problematic conduct would not be repeated in the future. Therefore, the court could not be assured, on the evidence, that the children would not be exposed to domestic violence or inappropriate sexual activity should they be returned to their mother’s care.

[158] Following submissions, the trial judge set out his bases for the protection findings he made, through oral reasons delivered May 24, 2018, in which he states, among other things, at page 2:

To be clear, the object at this juncture is simply to address continued protection. I listened carefully to the submissions made by the respondent mother’s counsel and I believe that I was told by Ms. Hawkins that a continued protection finding is acknowledged; it is conceded.

I am satisfied on the evidence that there are two protection risks;

a) the exposure of the children to multiple incidents of domestic violence; and

b) the exposure of children to adult sexual activity.

[159] In explaining his finding that the children were exposed to domestic violence while in the appellant’s care, the trial judge recounted the content of the May 1, 2016 police occurrence report, which he found to be straightforward. The report confirmed that the appellant and T.E. engaged in acts of domestic violence against each other in the presence of the children. He then reviewed the appellant’s evidence with respect to the May 1, 2016 incident and concluded that the version of events she deposed to at trial (i.e. all allegations were fabricated) seriously impaired her credibility.

[160] In that respect, he had regard to the affidavit evidence at trial that confirmed that the appellant had been victimized by domestic violence in more than one relationship. He found that the appellant’s trial affidavit was not forthright with respect to her factual assertions concerning the issue of past domestic violence. Further, she did not acknowledge the issue of the children’s historic exposure to domestic violence. Ultimately, he concluded that historic domestic violence, and the potential for the presence of domestic violence in the future, both remained unresolved issues. On the latter point, he specifically accepted Ms. Schofield’s evidence that the appellant consistently disclosed her intention to resume cohabitating with T.E., and he expressly preferred that evidence over the appellant’s evidence in cross-examination that she would only reconcile with T.E. if he completed counselling, as directed by the Society.

[161] The trial judge also determined that although the appellant had taken some steps to address domestic violence issues, there was a substantial delay in her efforts in that regard, relative to when: the incidents of domestic violence occurred; the apprehension of the children; and the period of time in which the children had been in Society care. He found that a substantial period of time had passed before the appellant demonstrated any effort to seek out and engage counselling in respect to domestic violence.

[162] The trial judge placed little weight on the appellant’s evidence concerning the domestic violence counselling in which she engaged prior to trial because there was no evidence adduced at trial from the appellant’s counsellors. The trial judge determined that the efficacy of counselling was significantly dependant on the honesty of the person who was the subject of counselling and the extent to which that person accurately disclosed the circumstances of their background and issues. The trial judge was satisfied that the appellant’s evidence that she had lied to police about two incidents of domestic violence, detracted from the conclusion that she was honest with the counsellors that she saw concerning domestic violence issues.

[163] The trial judge concluded that the children’s exposure to domestic violence was a historical risk and there was no evidence to support the conclusion that the risk would not continue if the children were returned to the appellant’s care, whether she eventually reconciled with T.E. or not (as T.E. was not the only individual that was involved in her past incidents of domestic violence).

[164] The trial judge was also satisfied on the evidence that there was a sufficient basis upon which to find the children were in continued need of protection, pursuant to s. 74(2)(c) of the CYFSA. In reaching that conclusion, he observed that the appellant’s trial affidavit did not include the admission that she made in cross-examination indicating that T.E. was frequently naked in the home, while in the presence of the children, nor her admission that the factual findings of Douglas J., concerning the conduct and circumstances that are depicted in the cell phone video, were, in fact, accurate. The trial judge also expressed concern that even though the children had been in Society care since July 2016 (the video was made before that time), the appellant did not initiate counselling to address “sexual offence issues” until February 2018, with further counselling still required in that regard, as at the time of trial.

[165] Ultimately, the trial judge found that the appellant was not credible and that it was difficult to place much, if any, weight on the evidence she provided at trial. Conversely, the Society evidence concerning ongoing risks of harm to the children was compelling. As a result, he found that the children were in continuing need of protection pursuant to s. 74(2)(c) of the CYFSA and he further found that the children were at risk in consequence of the domestic violence to which they had been exposed while in the appellant’s care.

(iii) The Trial Judge’s Reasons for Disposition

[166] For oral reasons delivered May 29, 2018, the trial judge concluded that an order placing the children in the extended care of the Society without access to the appellant, was the disposition that accorded with their best interests, as determined in accordance with s. 73(3) of the CYFSA. In so doing, the trial judge concluded that the children’s interests were “long overdue for resolution”, since both of them had been in Society care for nearly two years, and both of them were under the age of five years old. He also found that the appellant and T.E. had “parked” the interests of their children during the time that they were focused on other matters, including their criminal trial and pending appeal.

[167] Thereafter, the trial judge recounted the procedural history of the status review application before him, observing, among other things, that the only party who filed an answer was the respondent mother, (the appellant). She also delivered an amended answer to the Society’s amended status review application. The appellant sought the return of the children to her care, subject to Society supervision.

[168] The trial judge then recounted his finding, based on the evidence introduced during the course of the trial, that the children were not Métis children within the meaning of the provisions of the CYFSA and for the purpose of s. 90(b) of the CYFSA. However, he then carefully reiterated the indisputable evidence that the children’s mother and maternal grandmother, C.W., were both Métis women with status as members of the EWMNNS. He also confirmed that the oldest child was approximately 56 months of age and the youngest was approximately 34 months of age, at the time of trial.

[169] Next, the trial judge turned his attention to the history of the Society’s original protection application. He found that the children were brought into Society care on July 16, 2016 as a result of the appellant’s failure to follow the terms of an interim supervision order made by Ross J. on May 17, 2016, and they had remained in the Society’s continuous care since that time. He observed that Ross J. granted the Society’s motion for summary judgment on February 1, 2017, with the appellant’s consent and without opposition from T.E. On that motion, Ross J. expressly found that the children were in need of protection pursuant to s. 37(2)(g) of the CFSA and she imposed a term of Society wardship limited to four months, during which a Society plan of care was operable.

[170] The trial judge found that Ross J.’s order “had a very keen eye on the respective ages of the children”, as well as, the date on which the children came into care (July 16, 2016) and the provisions of s. 70 of the CFSA, which permitted the children to be in Society care for a maximum period of 12 months, as a consequence of their ages. He found that as a result of Ross J’s final order, T.E. and the appellant were obligated to achieve plan of care objectives during the four month period beginning February 1, 2017. Yet, T.E. did nothing between February 1 and the end of May, 2017, to achieve any plan of care objectives and the appellant’s engagement with the plan of care during that time was inadequate.

[171] Although the evidence revealed that in the period of February 1 to May 31, 2017, the appellant attended on her psychiatrist and engaged in some programing with the John Howard Society, the trial judge determined that the evidence was not sufficient to establish that she had satisfactorily addressed issues related to: childhood trauma; domestic violence; and child sexual abuse.

[172] The trial judge found that the circumstances that resulted in the children being placed in Society care in July 2016, specifically, the appellant’s breach of a term of Ross J.’s interim supervisory order was a profound concern and underscored the appellant’s inability to follow court orders.

[173] Beginning at page 11 of the transcript of his reasons, the trial judge conducted a detailed review of the evidence that was before Ross J. in the context of the summary judgment motion, which was subsequently adduced before him at trial, concerning the history of domestic violence between the appellant and T.E. and others. In so doing, he set out the evidence related to the following subjects (all of which has been summarized previously in these reasons):

a) the circumstances surrounding the incident of mutual domestic violence between T.E. and the appellant, committed in the presence of the children, on May 1, 2016, and the involvement of police, in response;

b) the appellant’s May 1, 2016 disclosure to police confirming that, while in the presence of the children, T.E. pinned her down and choked her. In response, she stabbed him with a fork and threw a glass jar at him. As a result, she was charged with two counts of assault with a weapon;

c) T.E.’s disclosure to police on May 1, 2016 confirming that the appellant stabbed him with a fork. He was charged with assaulting the appellant;

d) the appellant’s history of domestic violence victimization, including during her relationship with V.T. and while she lived at home in Nova Scotia;

e) the appellant’s disclosure to Society workers that V.T. had threatened to take their child (C.T-W.) and to burn down their house;

f) the appellant’s disclosure to police and repeated disclosure to Society workers, that she had been assaulted by T.E. in January 2015, when he had punched her stomach, while she was pregnant. T.E. was arrested and remained incarcerated until his trial in May 2015. T.E. and the appellant maintained contact throughout his period of incarceration and resumed their cohabitation when the assault charges against him were withdrawn; and

g) the appellant consistently minimized the seriousness of the January 2015 assault when she discussed it with Society workers, even though her related injuries required medical care.

[174] The trial judge described the last aspect of the foregoing evidence as having a “resounding impact” on his determination of:

a) the prospect of future reconciliation between the appellant and T.E.:

b) the degree to which the appellant had any insight into the dynamic of domestic violence. The trial judge ultimately found that she had no insight in that regard; and

c) the appellant’s appreciation, if any, that the absence of criminal proceedings did not detract from the reality that domestic violence had actually occurred.

[175] At page 15 of the transcript of his reasons, the trial judge resolved the conflicting evidence concerning whether domestic violence occurred between T.E. and the appellant, including his assessment of the appellant’s evidence on that issue. Where the evidence differed, the trial judge preferred the affidavit evidence of Society worker Lacey Praill (the relevant aspects of which are set out earlier in these reasons) together with the content of the Windsor Police Service occurrence reports, over the viva voce evidence of the appellant at trial (i.e. all allegations were fabricated). Consistent with his findings concerning the appellant’s credibility when determining the issues related to protection, the trial judge found, at page 16 of the transcript of his reasons, that the appellant “is unable to recognize the truth. She is a liar.”

[176] The trial judge also accepted the affidavit evidence of Society worker Sarah Geary over the appellant’s viva voce evidence that she fabricated reports of domestic assault. Similar to Ms. Praill, Ms. Geary’s affidavit evidence revealed that the appellant disclosed to her, that she had been assaulted by T.E. in the past and that T.E. had been incarcerated in January of 2015 as a result of assaulting her. In the context of that evidence, the trial judge found, at page 17 of the transcript of his reasons, that despite the violence between the appellant and T.E., the appellant had consistently minimized the seriousness of their conflict and that when T.E. was charged by Windsor Police in January 2015, the appellant subsequently took steps to have the charges withdrawn.

[177] At page 16 of the transcript of his reasons, the trial judge reviewed the relevant aspects of the affidavit of Sara Geary, sworn December 1, 2016, about, among other things, the issue of the children’s status (sworn before the CYFSA was in effect). Although Ms. Geary deposed that neither child had Native status, the trial judge expressly observed that the appellant identified as Métis. He then found that the appellant’s Métis status had a significant impact on the consideration of the best interests factors, relative to disposition.

[178] The trial judge also recounted Ms. Geary’s evidence that when the original protection application was commenced in May 2016, Ross J. permitted interim supervisory placement of the children in the appellant’s care, on terms that included non-association between the appellant and T.E. (the least intrusive order that could be made, in the circumstances). The appellant failed to comply with the terms of the order. The trial judge found that in so doing, the appellant: placed her own needs above those of the children again; demonstrated an absence of insight and sound judgment; and demonstrated that the court could not trust her to comply with the terms of a court order.

[179] Beginning at page 18 of the transcript of his reasons, the trial judge reviewed the evidence related to the circumstances and conduct surrounding the video that was recovered when the appellant’s cell phone was seized from her on July 22, 2016. He observed that after a trial in June 2017, the appellant was found guilty of criminal charges of a sexual nature, for which she was sentenced to a period of incarceration. The reasons in support of the findings of guilt made against the appellant were adduced as evidence at the trial of the status review application.

[180] The trial judge correctly noted that despite the appellant being afforded an opportunity to furnish an explanation for the circumstances of her conduct in relation to the cell phone video, her trial affidavit and her evidence in direct examination did not touch upon those matters at all. In cross-examination, the appellant admitted to her involvement in making the video and her involvement as a participant in the recorded events. Further, she testified that she did not dispute the accuracy of Douglas J.’s description of the content of the video, which the trial judge ultimately accepted and found as facts, in the trial of the status review application.

[181] The trial judge then expressly considered the merits of the potential disposition options available to him, as disclosed by the evidence, in the context of the continuing risks of harm that he found, specifically:

1. The children’s historical exposure to multiple incidents of domestic violence (while in the appellant’s care);

2. The exposure of a child to adult sexual activity; and

3. The appellant’s failure to discharge, with any degree of sufficiency, the plan of care objectives identified on February 1, 2017 and in May 2017.

[182] He began his analysis by observing, at page 21 of the transcript of his reasons, that: V.T., the father of the oldest child, had not had contact with the child since the order that was the subject of the status review was made; and the respondent T.E. had not exercised access with the children since they came into Society care on July 16, 2016. Further, the evidence established that T.E. had not done anything to discharge his plan of care obligations, including addressing risks having to do with domestic violence and sexual exploitation. The trial judge found that as a result of the evidence that the appellant intended to reconcile with T.E. in the future, which he accepted, the risks of harm that T.E. posed to the children continued to exist.

[183] Beginning at page 23 of the transcript of his reasons, the trial judge evaluated the appellant’s position that if the children could not be returned to her care, they ought to be placed with their maternal grandmother, C.W. In considering that possible disposition, Phillips J. reviewed, in detail at pages 24 to 26 of the transcript of his reasons, the evidence concerning C.W.’s kinship assessment (all of which has been set out previously in these reasons). Based on that evidence, he concluded that: C.W. had no appreciation of the risk of harm that domestic violence repeatedly posed to the appellant and the subject children; C.W. was “blind to the circumstances of the cell phone video”; C.W.’s extensive criminal record supported a finding that she historically paid little (to no) attention to court orders; and C.W. had little, if any, appreciation of the dynamic of domestic violence.

[184] The court expressed its lack of surprise that the Society rejected a placement of the children with C.W. as a consequence of information it received from the Nova Scotia Child Protection Authority, including: evidence of C.W.’s characterization of the events that culminated in the appellant being charged with a child pornography offence as a “set up” orchestrated by a former child protection worker; C.W.’s belief that the subject children had been “kidnapped” from the appellant by the Society; and her stated belief that there was no reason for the children to be in Society care, at all.

[185] After considering C.W.’s trial evidence, together with evidence from Ms. Schofield and the documentary evidence admitted into the record, without objection by the appellant, from the Nova Scotia Child Protection Authority, the trial judge found that C.W. was not a suitable placement for the children and she would likely not be protective of them because she had no appreciation of the protection risks involved in this instance.

[186] In evaluating the potential placement of the children in the appellant’s care, the trial judge revisited the issue of her credibility at page 22 of the transcript of his reasons. In so doing, he expressly considered among other things, her evidence that she fabricated reports of domestic violence involving T.E. to the WPS and the Society. He also found that the appellant “paid no attention to Justice Ross’ interim order of May 2016.” Ultimately, he determined that very little weight, if any, could be placed on the appellant’s trial evidence.

[187] The trial judge accepted Ms. Schofield’s evidence that, on more than one occasion, the appellant had disclosed her intention to resume cohabitation with T.E. He expressly rejected the appellant’s evidence at trial that she did not intend to do so, because he did not find it “believable”. Instead, he concluded that at the time of trial, the appellant continued to lack a sufficient appreciation of the risks that T.E. posed to both her and the subject children.

[188] At page 29 of the transcript of his reasons, the trial judge found that the appellant had failed to adduce cogent and convincing evidence that she had discharged her obligations under the plans of care made prior to trial. In that regard, he observed that although the appellant adduced, as evidence, a number of documents (including certificates of program completion), with the Society’s consent, that evidence was not “terribly helpful” to him in arriving at definitive factual findings. He states, at pages 29-30 of the transcript of his reasons:

They are not helpful because of the depth of the mother’s issues, historically over many years, is so profound and the risks so pervasive that it would have required far more detailed evidence from those persons engaged in the services in which the mother is alleged to have participated. What were the service providers told? To what extent did the mother engage in the service? What independent analysis was drawn as to the extent to which she understood lessons, gained insight? None of that was available for this court. Given the length of time that this matter has been outstanding, this is a matter of considerable consequence.

[189] Apart from the appellant’s failure to achieve plan of care objectives, the trial judge found that she was not adequately focused on the resolution of issues associated with domestic violence and sexual abuse. He observed that the appellant had not adduced any evidence with respect to the manner in which she had addressed identified issues concerning her own childhood sexual trauma, which were only disclosed in the context of this proceeding, during her viva voce evidence at trial.

[190] The trial judge indicated that he had considered his concerns with respect to all of the foregoing, in the context of his previous findings that: the appellant was not a credible witness; and she had not demonstrated an ability to comply with court orders. In the result, he was “extraordinarily wary” of both: placing the children with the appellant; and “the prospects of what would occur once the non-association condition with [T.E.] was removed.” He concluded that “Return, therefore, to the mother is not in the best interests.”

[191] After reiterating that it was not possible to place the children with T.E. or their maternal grandmother C.W., the trial judge correctly observed there was no evidence of any other family placement or of a community placement for the children. He then reasoned that the Society’s plan of care, subject to the best interests analysis, was the only viable placement option disclosed by the evidence.

[192] Beginning at page 31 of the transcript of his reasons, the trial judge engaged in a consideration and determination of the children’s best interests expressly in accordance with the provisions of s. 74(3) of the CYFSA. In so doing, he concluded:

1. With respect of s. 74(3)(a) of the CYFSA, having regard for their age and maturity, the views and wishes of the children could not be ascertained. The Office of the Children’s Lawyer was not involved. The evidence established that the children’s needs were being met in foster care. The court was not provided with any other evidence concerning the children’s views and wishes.

2. With respect to s. 74(3)(c)(i) (the children’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs) and s. 74(3)(c)(ii) (the children’s physical, mental and emotional level of development), the court accepted the evidence of Society worker, Ms. Rusenstrom, and found that when C.T-W. came into Society care, at the age of two and half years old, her needs were pronounced. She presented with developmental delays. The trial judge determined that there was no aspect of the evidence that suggested the appellant knew of, or appreciated, the existence of the child’s needs or that she took steps to address those needs before the child came into Society care, which, in turn, reflected on her parenting capability. After the child came into Society care, services were marshalled to address C.T-W.’s issues including: speech delay; lack of social skills; and lack of engagement with other children. At page 33 of the transcript of his reasons, the trial judge considered, in detail, the evidence of the specific services provided and the concordant gains that C.T-W. experienced.

The trial judge accepted that the child, T.J.E., also demonstrated developmental delays when he came into the care of the Society, particularly with respect to age appropriate language skills. At page 34 of the transcript of his reasons, the trial judge concluded that no aspect of the evidence established that the appellant had any sense of the challenges experienced by T.J.E. before he was brought into Society care. The trial judge accepted the detailed evidence of the nature of the services that were provided to T.J.E. after he came into Society care, together with the positive gains that the child made in response. The trial judge found that although the appellant participated in Society plan of care meetings after the children came into its care, there was very little in the appellant’s affidavit evidence that addressed the children’s needs (as identified by other aspects of the evidence before him), nor her plan to address those needs in the future. He expressed serious reservations concerning the extent to which the appellant genuinely understood the historic and ongoing care needs that the children had and have as a consequence of their respective multi-faceted developmental delays, and the ongoing challenges that both of the children face.

3. Beginning at page 36 of the transcript of his reasons, the trial judge considered the circumstances that are set out in s. 74(3)(c)(v) to (ix), that he found to be relevant on the evidence and in the circumstances before him, including: (v) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community; (vi) the importance of continuity in the child’s care and the possible effect of disruption of that continuity; (vii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent; and (ix) the effects on the child of delay in disposition of the case; and clearly the trial judge also had regard throughout his disposition reasons, to the risk that the child may suffer harm through being returned to the appellant’s care (in accordance with s. 74(3)(x)) and the degree of risk that justified the finding that the children were in need of protection (in accordance with s. 74(3)(xi) of the CYFSA).

The trial judge specifically referred to the correspondence from the children’s foster parent, C.G., who expressed an intention to make a plan for the adoption of both children, without access. He reviewed the details of C.G.’s education and employment history, which included working as a resource consultant with “Children First”, in the context of both a mental health team and a child development team, over the past nine years, and C.G.’s extensive training and experience in facilitating developmental gains in children in early childhood. The content of C.G.’s correspondence was admitted without objection from the appellant and was not challenged.

The trial judge concluded that to a large extent the best interests consideration of s. 74(3)(c)(v)-(viii) of the CYFSA could only be derived through regard to the evidence of the Children’s service worker, Ms. Rusenstrom, and the foster parent, C.G., since the court had already concluded that placement with the appellant or other family members or respondents was not possible.

In accordance with s. 74(3)(c) of the CYFSA, the trial judge also considered the effects of delay in disposition, and concluded that based on the ages of the children and the amount of time that they had been in the continuous care of the Society, the issue of permanency planning had to be addressed.

Importantly, at page 38 of the transcript of his reasons, the trial judge found that the evidence established beyond doubt that reuniting the children with their birth parents was not an option that would protect them against risk.

[193] Finally, consistent with his approach throughout the trial, when determining disposition, the trial judge had very serious regard for the children’s Métis heritage and culture, and the importance of preserving their cultural identities and connection to community. However, he found the evidentiary record to be of little assistance in that regard. At page 37 of the transcript of his reasons, the trial judge found there were many unanswered questions concerning the foster parent, C.G., in relation to those considerations. At page 38 of the transcript of his reasons, the trial judge expressed that (in accordance with s. 74(3)(c)(iii) and (v) of the CYFSA) he had to place emphasis on considerations of the child’s race, ancestry, place of origin, colour, ethnic origin, cultural and linguistic heritage, which paralleled the paramount purposes of the statute as articulated at s. 1(2)(iii) of the CYFSA. However, he found that there was little evidence (including evidence from the Society, C.W. and the appellant) that focused on any of those factors.

[194] In the trial judge’s view, the seriousness of that omission was underscored by the incontrovertible evidence that the children’s mother and maternal grandmother were Métis women. The trial judge determined that the “very sketchy oral evidence” before him that suggested that C.G. would ensure a continuation of the children’s connection to the Métis community was “insufficient”.

[195] In the context of the preamble to the CYFSA, Canada’s evolving relationship with Métis and the findings of Truth and Reconciliation Commission, all of which the trial judge remained expressly mindful, he was “monumentally” troubled because the evidence at trial (as adduced by all parties) “contained next to nothing” concerning the subject matter of the considerations set out in s. 74(3)(b) and s. 74(3)(c)(iii) and (iv) of the CYFSA, in regard to the determination of disposition that was consistent with the children’s best interests.

[196] Nonetheless, he concluded that on the evidence, he had no other disposition option available to him that would adequately protect the children, other than to place them in Society care. He concluded that although he was not furnished with fulsome evidence with respect to the foregoing aspects of “best interests”, his ability to determine that an order of extended Society care was in the children’s best interests was not thwarted, particularly because there was an absence of any other viable placement alternative in disposition, and as a result of the ages of the children and the duration of their time in care.

[197] At page 41 of the transcript of his reasons, the trial judge expressed his appreciation of the need to foster a continuing connection between the children and the EWMNNS, but he concluded there was “no evidence to support any resolve but for Extended Care” and that there was “no evidence to support the matter of access”. As a result, he made an order of Society extended care with no access.

[198] In the context of the totality of the foregoing, I will now consider and determine the asserted grounds of appeal.

THE APPELLANT’S REMEDIAL REQUEST ON APPEAL

[199] Although her Amended Notice of Appeal requests a broad range of relief, during the course of her submissions, the appellant’s request was limited to an order remitting this proceeding to the Ontario Court of Justice for a new trial on the basis that the trial judge erred in finding that the children were not Métis children within the meaning of the provisions of the CYFSA. The appellant submits that as a result of that error, the trial judge further erred by declining to add a representative of the EWMNNS as a party to the proceeding, in circumstances in which it was required to be added pursuant to s. 79(1) 4 of the CYFSA. As a result of those asserted errors, the appellant submits that the entire proceeding before the trial judge was a nullity. Therefore, she contends that this court has no option other than to order a new trial.

THE APPELLANT’S ASSERTED GROUNDS FOR APPEAL

[200] Although the appellant’s amended notice of appeal is drafted in a more expansive manner, in her factum and submissions she identifies three distinct grounds for appeal, as follows:

a) the trial judge erred in law and mixed fact and law, by failing to identify the children as Métis children, in accordance with the provisions of the CYFSA and its related regulations;

b) the trial judge erred in fact, mixed fact and law, and law in finding that the children were in need of protection pursuant to s. 74(2)(c) of the CYFSA (“sexually abused or sexually exploited”). However, she concedes that on the evidence, a protection finding may have been appropriately made in accordance with s. 74(2)(b)(i) of the CYFSA (“failure to supervise or protect the child, with regard to exposure to partner abuse”) [although that section is predicated on a risk of physical harm to a child, which is not a concern in this instance]; and

c) the trial judge erred in law, by unilaterally striking documentary exhibits that were filed with the consent of the parties who participated in the trial, in circumstances where such evidence was relevant to an assessment of the risk of harm posed to the children in the event they were returned to the appellant’s care.

[201] The appellant further contends that the additional evidence she seeks to adduce alters the factual matrix that was before the trial judge to such an extent that a new trial is justified.

POSITION OF THE RESPONDENT SOCIETY

[202] The Society posits that the trial judge did not commit any error of fact, law, or mixed fact and law. It submits that 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 were relevant to the determination of the children’s best interests. Finally, it submits that the proposed fresh and further evidence on appeal (if admitted) does not alter the factual matrix that was before the trial judge to such an extent that it warrants this court substituting its view for that of the trial judge, or directing a new trial.

[203] I will now determine 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.

THIS COURT’S FUNCTION ON REVIEW

[204] 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

[205] The appellant’s stated grounds for appeal are embedded with assertions that the trial judge erred in law; fact; and mixed law and fact.

[206] 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. 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.

[207] 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. 5, 6 and 23; and Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), at para. 296.

[208] 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).

[209] The degree of deference traditionally afforded to the factual determinations of a trial judge is particularly compelling in child protection cases. An appellate 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, 344 O.A.C. 89, at para. 28; Children’s Aid Society of Ottawa v. S.N.-D., 2012 ONCA 590, 26 R.F.L. (7th) 46, at para. 19; Children’s Aid Society of Toronto v. V.L., 2012 ONCA 890, 249 O.A.C. 388, at para. 16.

[210] 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. 8, 27 and 31.

DISPOSITION

Issue #1: Did the trial judge err in law or mixed fact and law by determining that the subject children were not Métis children within the meaning and for the purposes of the provisions of the CYFSA?

[211] For the following reasons, I accept the appellant’s position that the trial judge erred in finding that the children were not Métis children within the meaning of the provisions of the CYFSA. However, as I will explain, the trial judge did not err in declining to add a representative of the EWMNNS as a party respondent to the proceedings pursuant to s. 79(1) 4. of the CYFSA, as the appellant otherwise asserts. My conclusion in that regard disposes of the appellant’s primary thesis that the trial judge’s failure to add a representative of the EWMNNS as a party to the proceeding rendered the trial and its result, a complete nullity against all parties. In turn, her position in that regard founds her submission that the only recourse available to this court is to allow her appeal against both the protection finding and disposition and remit the matter to the Ontario Court of Justice for a new trial, with the EWMNNS added as a party to the proceeding. Her remedial request is undermined because the proceeding before the trial judge was not a nullity.

[212] Despite the trial judge’s error in determining that the children were not Métis children in accordance with the CYFSA, I am of the view that a new trial is not required. The trial judge’s error was driven, in part, by the failure of both trial counsel to identify and make submissions with respect to the correct legislative criteria applicable to the issue and further by the appellant’s trial counsel’s concession that the children were not Métis within the meaning of the provisions of the CYFSA. Nonetheless, it is clear that the trial judge remained mindful of the continuing importance of the children’s cultural identities and their connection to community at every stage of the trial and throughout his determination of best interests and disposition. Ultimately, not only was his disposition reasonably supported by the evidence, more fundamentally it was found to be the only available disposition that adequately protected the children against the identified risks of harm. The trial judge found that that was so, in any event of the consideration prescribed by ss. 74(3)(b) and (c)(ii) and (iii) of the CYFSA. The evidence available at trial reasonably permitted him to arrive at those conclusions.

[213] Before explaining the foregoing conclusions, I will review the manner in which the issue of whether the children were Métis children within the meaning of the CYFSA was determined at trial. The trial judge was demonstrably aware of his obligation to inquire and determine whether the children were Métis, in accordance with s. 90(2)(b) of the CYFSA, prior to determining whether they were in need of continuing protection. The trial judge first raised the issue of the children’s Métis status at the outset of the proceeding during a detailed trial management exercise. At trial, he received evidence on the issue from the children’s maternal grandmother (C.W.), the children’s mother (the appellant), and Society Family Services worker, Rebecca Schofield. Further, he required the Society to adduce evidence directly from a representative of the EWMNNS. In that regard, arrangements were made for evidence from the EWMNNS Grand Chief, Mary Lou Parker, via telephone attendance (on consent), which is generally summarized below.

[214] Grand Chief Mary Lou Parker testified that membership in the EWMNNS is dependent on an individual’s successful application, which results in the issuance of a membership card. An individual must be at least 16 years old to apply for membership and must do so on their own behalf. A parent cannot apply for membership on behalf of a child. However, a child can be registered under the name of a parent, until the child is old enough to apply for membership on their own.

[215] At the time of trial, the EWMNNS had over 30,000 members. The appellant became a member on June 21, 2013 (before the subject children were born). She did not contact the EWMNNS prior to trial, to arrange for the children to be “registered” under her membership.

[216] Before she gave evidence at trial, Grand Chief Mary Lou Parker was aware of the subject protection proceeding and the Society’s then pursuit of “Crown wardship” and a permanent placement for the children, other than with their biological mother. Nonetheless, Grand Chief Mary Lou Parker testified that the EWMNNS did not wish to participate in the status review proceeding. She expressly confirmed that the EWMNNS would not participate in the proceeding if it was given the right to do so, further stating, “We don’t like to get involved.” She expressed a preference that the children be placed in “a Métis home where they won’t forget...about their heritage.”

[217] In the context of the evidence of Grand Chief Mary Lou Parker together with evidence from C.W., the appellant, and Ms. Schofield, respectively, all of which confirmed that both the appellant and C.W. were Métis and members of the EWMNNS, the parties erroneously directed the trial judge to s. 2(4) of the CYFSA as the legislative source of the criteria applicable to the determination of whether the children were Métis children. That subsection actually provides guidance with respect to the identification of a child or young person’s Bands and First Nations, Inuit or Métis communities, as follows:

(4) In this Act, a reference to a child’s or young person’s bands and First Nations, Inuit or Métis communities includes all of the following:

1. Any band of which the child or young person is a member.

2. Any band with which the child or young person identifies.

3. Any First Nations, Inuit or Métis community of which the child or young person is a member.

4. Any First Nations, Inuit or Métis community with which the child or young person identifies. [Emphasis added.]

[218] Relying on s. 2(4) of the CYFSA, the Society submitted that the children were not members of the EWMNNS and they were not eligible to become members until they were 16 years of age, at which time they could determine, on their own, whether to submit a membership application. The Society further submitted that according to Grand Chief Mary Lou Parker, the appellant could have registered the children with the EWMNNS, but she had not done so. As a result, there was nothing to “associate” the children with the EWMNNS or any other recognized Métis community. Therefore, the Society asserted that the children were not Métis children for the purpose of the CYFSA. Nonetheless, the Society acknowledged that the court could consider the appellant’s connection with the EWMNNS, when determining the children’s best interests at the disposition stage of the proceeding.

[219] In the alternative, the Society submitted that if the children were found to be Métis and a representative of the EWMNNS was added as a party, it was appropriate to make an order dispensing with service on the EWMNNS because Grand Chief Mary Lou Parker testified that the EWMNNS would not participate in the proceeding. In the Society’s submission, the alternative would necessitate an adjournment to permit service on the EWMNNS, which would not be in the children’s best interests, owing to their ages and the amount of time that they had already been in Society care.

[220] In response, counsel for the appellant only directed the trial judge to ss. 2(3) and (4) of the Act and submitted that those provisions exclusively established the criteria that the court was required to apply in determining whether the children were Métis. The provisions of s. 2(4) of the Act have been reproduced above. Section 2(3) of the Act simply defines the “members of a child’s or young person’s community” as:

1. A person who has ethnic, cultural or creedal ties in common with the child or young person or with a parent, sibling or relative of the child or young person.

2. A person who has a beneficial and meaningful relationship with the child or young person or with a parent, sibling or relative of the child or young person.

[221] After referencing those statutory provisions, the appellant’s trial counsel then agreed with and adopted Society’s counsel’s submissions with respect to the application of s. 2(4) of the Act. She submitted that based on their ages, the children were not eligible for membership in the EWMNNS and, further, they could not self-identify as Métis. As a result, the appellant’s counsel conceded that the evidence before the trial judge fell short of establishing that the children were Métis children in accordance with the definition set out in s. 2(4) of the Act. She also submitted that memberships of both the appellant and C.W. in the EWMNNS were relevant when considering the determination of the children’s best interests at the disposition stage.

[222] In accordance with the submissions of both counsel (including the appellant’s concession on the point), the trial judge concluded that the children were not Métis within the meaning of the provisions of the CYFSA. His reasons for so doing have been reproduced earlier. In turn, the trial judge concluded that since the children were not Métis for the purposes of the CYFSA there was no basis to add “a representative of the EWMNNS as a party” to the proceeding.

[223] Despite the appellant’s trial submissions to the contrary, she now asserts that the trial judge erred in determining that the children were not Métis within the meaning and for the purpose of the provisions of the CYFSA. She contends that as a result of that error, the trial judge incorrectly declined to add a representative of the EWMNNS as a party respondent contrary to s. 79(1) of the Act. She asserts his failure in that regard rendered the trial a nullity and therefore, a new trial is mandatory. I do not agree.

[224] As I will explain, despite his identification error, the trial judge’s determination that the EWMNNS was not a required party remained correct, based on the current status of the relevant regulation contemplated by s. 68 of the CYFSA, that serves as the legislative mechanism by which the communities that fall within the meaning of the term “Métis community”, as it is defined in s. 2 of the CYFSA, are identified.

[225] Further, even if the trial judge erred in failing to add a representative of the EWMNNS as a party, it would not have rendered the proceeding a nullity against all parties, but only against the EWMNNS.

[226] Finally, since extended Society care was the only available disposition that adequately protected the children against the identified risks of harm, the disposition arrived at by the trial judge remained the one that was consistent with their best interests, even when the children are appropriately considered Métis children for the purpose of the provisions of the CYFSA, including s. 74(3)(b) and s. 101 (and in particular ss. 101(3), (4), and (5) of the Act). I will explain those conclusions below.

The Legal Principles Applicable to the Determination of Whether the Children are Métis for the Purpose of the CYFSA

[227] This ground of appeal concerns an extricable question of law, namely whether the trial judge correctly identified the legal principles that apply to the determination of whether the children are properly identified as Métis children pursuant to, and for the purpose of, the CYFSA and its related regulations. The standard of review is, therefore, correctness. Below, I will set out the applicable legislative framework engaged by the issue.

[228] The court’s obligation to determine whether a child is a First Nations, Inuk or Métis child is set out in s. 90(2)(b) of the Act, which provides that:

90(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis communities;

[229] In the original protection application, Ross J. determined that the children did not have Indian or Native status. That finding was made pursuant to s. 47(2)(c) of the CFSA. The trial judge correctly apprehended that despite Ross J.’s previous finding, a fresh identification under s. 90(2)(b) of the CYFSA was required “as soon as practical” in the context of the status review proceeding. Although he did not expressly refer to it, the trial judge’s approach is consistent with, s. 12 of O. Reg. 157/18 (“Transitional Matters”), which provides:

Despite any determination made under clause 47(2)(c) of the old Act [CFSA] in respect of a child who is the subject of a proceeding mentioned in subsection 11(1) of this Regulation or a proceeding commenced under Part V of the Act [CYFSA], the court shall, as soon as practicable, determine under clause 90(2)(b) of the Act whether the child is a First Nations, Inuk or Métis child and, if so, determine the child’s bands and First Nations, Inuit or Métis communities.

[230] By its terms, s. 12 of O. Reg. 157/18 refers to s. 11(1) of the same regulation. Section 11(1) of O. Reg. 157/18 refers to proceedings commenced under Part V of the CFSA but not concluded before the date the CYFSA came into effect, and further provides that such proceedings are continued as a proceeding commenced under Part V of the CYFSA. The subject status review application was such a proceeding. As a result, the provisions of the CYFSA applied to the trial judge’s determination.

[231] In this instance, the trial judge erred in law, by basing his determination of whether the children were Métis on a consideration of the statutory provisions set out in s. 2(4) of the Act, which expressly operate to determine the scope of a child or young person’s bands and First Nations, Inuit or Métis communities. That determination is distinct and separate from the issue of whether a child or young person is appropriately identified as First Nations, Inuit or Métis, simpliciter. The scope of the analysis that the trial judge ought to have engaged did not end nor ought it to have begun with a consideration of the criteria set out in s. 2(4) of the Act.

[232] Instead, the provisions of regulation O.Reg 155/18 made pursuant to the CYFSA prescribe the criteria by which the subject determination is to be made. Unfortunately, neither counsel for the Society nor counsel for the appellant brought those provisions to the attention of the trial judge. Their submissions with respect to the legislative framework applicable to the issue of identification began and ended with a reference to s. 2 of the Act. During those submissions, the appellant through her trial counsel, conceded that the children were not Métis children for the purpose of the CYFSA. In that context, it is hardly surprising that the trial judge arrived at the determination that he did, particularly as the provisions of the CYFSA had come into force less than one month before the commencement of trial.

[233] The various provisions of the CYFSA and its related regulations that apply to the manner by which a child is determined to be a First Nations, Inuk, or Métis and the identification of the child’s First Nations, Inuk or Métis communities are helpfully collected by Kukurin J. in Children’s Aid Society of Algoma v. C.A., 2018 ONCJ 592. At para. 15 of Children’s Aid Society of Algoma v. C.A., Kukurin J. observes that the provisions of O. Reg. 155/18 (“General Matters Under the Authority of the Lieutenant Governor in Council”) is “...the first of many meanderings between the Act and the Regulations that the legislature intended the courts to follow when identifying a First Nations, Inuit, or Métis child.”

[234] Section 1 of O. Reg. 155/18 bears particular relevance to the issue before the trial judge. It provides:

1. A child is a First Nations, Inuk or Métis child for the purposes of the Act if,

(a) the child identifies themselves as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;

(b) the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or

(c) it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,

(i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or

(ii) there is a connection between the child and a band or a First Nations, Inuit or Métis community. [Emphasis added.]

[235] The foregoing provisions prescribe the criteria that the court must apply in carrying out its mandate in accordance with s. 90(2)(b) of the CYFSA. The available paths to identify a child as First Nations, Inuk or Métis pursuant to the foregoing section, are finite and exhaustive.

[236] Similar to several sections of the Act and its related regulations, s. 1 of O. Reg. 155/18 utilizes the phrase “First Nations, Inuit or Métis community[ies]”. Although that phrase is not defined in O. Reg. 155/18, it is defined in s. 2(1) of the CYFSA as follows:

“First Nations, Inuit or Métis community” means a community listed by the Minister in a regulation made under section 68.

[237] At the time of trial (and at present), a regulation under s. 68 of the CYFSA, listing the communities that fall within the descriptor of “First Nations, Inuit or Métis community” had yet to be enacted. That legislative gap presents difficulty to the meaningful application of ss. 1(b) and (c) of O. Reg. 155/18.

[238] Nonetheless, the trial evidence of the appellant conclusively supported a finding that the children were Métis children for the purpose of the CYFSA, in accordance with s. 1(a) of O. Reg. 155/18. In her evidence, the appellant (a parent to both children) expressly identified the children as Métis, thereby satisfying the criteria set out in s. 1(a) of O. Reg. 155/18. That is enough for the finding to be made, particularly as the evidence otherwise establishes a connection between the children and the EWMNNS.

[239] I would add that since a regulation made pursuant to s. 68 of the CYFSA identifying those communities that fall within the definition of First Nations, Inuit or Métis communities, as prescribed by s. 2 of the Act, has yet to be enacted, the provisions of s. 1(b) of O. Reg. 155/18 did not offer a path by which the trial judge could have identified the children as Métis children, through self-identification. To be clear, the trial judge found that given their respective ages, the children’s views concerning self-identification with any Métis community (including the EWMNNS) could not be ascertained. On the evidence, that finding was a reasonable one. However, that did not necessarily end the inquiry. Pursuant to s. 1(b) of O. Reg. 155/18, the court was required to consider whether the child was a member of, or identified with, one or more bands of First Nations, Inuit or Métis community, as determined under s. 21 of O. Reg. 156/18. That section provides:

21. The bands of First Nations, Inuit or Métis communities with which a First Nations, Inuk or Métis child identifies, if any, are determined in accordance with the following rules:

22. If the views of the child can be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifies are any bands or First Nations, Inuit or Métis communities with which the child indicates that they identify.

23. If the views of the child cannot be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifies are any bands or First Nations, Inuit or Métis communities that a parent of the child indicates are bands or communities with which the child identifies. [Emphasis added.]

[240] However, in the absence of an operable regulation made pursuant to s. 68 of the CYFSA that lists the communities that fall within the definition of “First Nations, Inuit, or Métis community” in s. 2(1) of the Act, after he determined that the children’s views could not be ascertained, the trial judge was foreclosed from determining whether a parent of the children indicated any bands or “communities” with which the children identify.

[241] Had the EWMNNS been designated as a “Métis community” in a regulation made pursuant to s. 68 of the CYFSA that was in effect at the time of trial, the trial judge would have been required to determine if the appellant’s evidence persuasively “indicated” that the children “identified” with the EWMNNS. If so, the children would have appropriately been found to be Métis children for the purpose of the Act in accordance with s. 1(b) of O. Reg. 155/18.

[242] The absence of a regulation made under s. 68 of the CYFSA, listing the EWMNNS as a “Métis community”, also neutered the trial judge’s ability to consider whether the children were Métis in accordance with s. 1(c) of O. Reg. 155/18. Had such a regulation been in effect at the time of trail and, to the extent that the issue of identification of the children as Métis could not be determined in accordance with either ss. 1(a) or (b) of O. Reg. 155/18, the children would properly be identified as Métis pursuant to s. 1(c) of O. Reg. 155/18.

[243] The record at trial contained evidence from each of the appellant, C.W., Ms. Schofield and Grand Chief Mary Lou Parker that clearly established that the children’s maternal grandmother, C.W. (a “relative” of the subject children in accordance with s. 2(1) of the CYFSA) identified as a Métis person. The evidence also conclusively demonstrated that there is a connection between the children and the EWMNNS that affords the children an entitlement to apply for membership therein at 16 years of age. Accordingly, had the EWMNNS been designated as a Métis community in a regulation made pursuant to s. 68 of the CYFSA, the children also would have been properly found to be Métis pursuant to s. 1(c)(i) and (ii) of O. Reg. 155/18. It remains, however, that such a regulation was not in effect at the time of trial and therefore, the trial judge did not have that path of identification available to him.

The Effect of the Failure to Add the Eastern Woodland Métis Nation, Nova Scotia as a Party to the Proceeding

[244] Having found that there was sufficient evidence before the trial judge to make a finding that the subject children were Métis children in accordance with s. 1(a) of O. Reg. 155/18, I will now turn to the appellant’s assertion that the trial judge erred in declining to add a representative of the EWMNNS as a party respondent. For the reasons that follow, I conclude that he did not err in that regard.

[245] The appellant posits that: pursuant to s. 79(1) 4. of the CYFSA, a representative of the EWMNNS was a required party in this instance; the trial judge’s error in failing to add a representative of the EWMNNS rendered the proceeding a nullity; and in turn, an order on appeal directing a new trial is mandatory.

[246] The difficulty with the appellant’s position is two-fold. The first difficulty arises from the absence of a legislative basis to conclude that the EWMNNS is currently or was, at the time of trial, a “Métis community” within the meaning of s. 2 of the CYFSA. The second difficulty is a function of the extent to which the proceeding would have been “a nullity”, in the event that a representative of the EWMNNS ought to have been added as a party to the proceeding. I will explain.

[247] Section 90(2)(b) of the CYFSA requires the court to determine not only whether a child is a First Nations, Inuk or Métis child, but, in the event that the child is so found, to identify the child’s bands and First Nations, Inuit or Métis communities. As I observed previously, the term “First Nations, Inuit or Métis community” is defined in s. 2 of the Act to mean, “a community listed by the Minister in a regulation made under s. 68”. Thus, the Act expressly contemplates that the determination of whether a community is a First Nations, Inuit or Métis community for the purpose of the CYFSA, is a function of ministerial discretion and not judicial determination.

[248] In turn, s. 68 of the CYFSA provides:

Regulations listing First Nations, Inuit and Métis communities

68 (1) The Minister may make regulations establishing lists of First Nations, Inuit and Métis communities for the purposes of this Act.

More than one community

(2) A regulation made under subsection (1) may list one or more communities as a First Nations, Inuit or Métis community.

Consent of representatives

(3) Before making a regulation under subsection (1), the Minister must obtain the consent of the community’s representatives.

[Emphasis added.]

[249] The provisions of O. Reg. 159/18 (“List of First Nations, Inuit and Métis Communities”) are patently related to s. 68 of the CYFSA. However, that regulation was not in force at the time of trial nor at the time that this appeal was heard and determined. It does not come into force until July 1, 2019. Further, the scope of the regulation is currently limited. Under the heading, “List of First Nations, Inuit and Métis Communities”, the regulation provides at s. 1:

1. (1) This Regulation establishes the list of First Nations, Inuit and Métis communities referred to in subsection 68(1) of the Act.

(2) The following are First Nations, Inuit or Métis communities for the purposes of the Act:

1. Inuit Tapiriit Kanatami.

[250] As a result, a regulation listing “First Nations, Inuit and Métis communities”, as contemplated by ss. 2(1) and 68 of the CYFSA, has not yet come into force and the EWMNNS is not currently listed as a Métis community within the proposed regulation. This court was not directed to any other provisions of the CYFSA or its related regulations that supports the conclusion that the trial judge ought to have, or even could have, recognized the EWMNNS as a “Métis community” for the purpose of s. 78(1) 4. of the Act. Therefore, I am left to conclude that at the time of trial, there was no basis founded in the provisions of the CYFSA or its related regulations to add a representative of the EWMNNS as a party respondent to the proceeding pursuant to s. 78(1) 4. of the Act.

[251] In arriving at the foregoing conclusion, I remain mindful that the absence of a regulation that is both in effect and that identifies specified First Nations, Inuit and Métis communities for the purposes of the CYFSA (in accordance with s. 68 of the Act), effectively frustrates the ability of representatives of such communities from being added as parties to a proceeding pursuant to s. 79(1) 4. of the Act, even in circumstances in which the child is an actual member of such a First Nation, Inuit or Métis community, in fact. Correspondingly, that result deprives the First Nation, Inuit or Métis community from making important contributions to all aspects of a child protection proceeding, from its inception, including advocating for its own interests in the proceeding. That result is difficult to reconcile with the preamble to the CYFSA, which provides, in part:

With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

[252] The trial judge’s reasons reflect that in arriving at his determinations with respect to disposition, he was acutely attuned to the foregoing aspects of the Preamble to the CYFSA (to which he expressly referred), together with the principles and historical experiences that underwrite the sentiments expressed by the Legislature, therein.

[253] Nonetheless, it remains that based on the manner in which the Act is structured, the determination of whether a particular community is a “First Nations, Inuit or Métis community” for the purposes of the CYFSA, is a function of the exercise of ministerial discretion as opposed to judicial determination: see Catholic Children’s Aid Society of Toronto v. S.T., 2019 ONCJ 207, at paras. 39-40. In the absence of a regulation made pursuant to s. 68 of the CYFSA listing the EWMNNS as a “Métis community”, the trial judge did not err in declining to add a representative of the EWMNNS as a party to the proceeding pursuant to s. 79(1) 4. of the Act.

[254] In addition, based on the evidence before him, the trial judge did not err by declining to exercise whatever discretion was available to him pursuant to r. 7(5) of the Family Law Rules to “order that any person who should be a party shall be added as a party”, as a basis to add a representative of the EWMNNS as a party to the proceeding.

[255] Recall, Grand Chief Mary Lou Parker testified that she did not want a representative of the EWMNNS to be added as a party to the proceeding and that in the event that such a representative was added, he or she would not participate in the proceeding. Further, the EWMNNS did not propose or endorse a specific plan for the children and it had no placement options or other disposition options to offer to the court. Finally, the court was not requested by any party or the EWMNNS to exercise its discretion pursuant to r. 7(5) of the Family Law Rules to add a representative of the EWMNNS as a party. To do so would have potentially required the proceedings to be adjourned so that a representative of the EWMNNS could be served with pleadings and the trial would necessarily have been delayed. In all of the circumstances, that result was not desirable especially in the context of the ages of the children and the length of time that they had been in the continuous care of the Society, as at the time of trial.

Provisional Findings on the Effect of Failing to Add the Eastern Woodland Métis Nation, Nova Scotia as a Party to the Proceeding

[256] If my determination that the trial judge did not err in declining to add a representative of the EWMNNS as a party to the proceeding is incorrect, I would, nonetheless, conclude that the trial judge’s failure to do so did not render the proceeding a nullity as against the appellant, as she contends. Rather, the proceeding would have constituted a nullity only against the EWMNNS: see Children’s Aid Society of London and Middlesex v. E.M.E.E., 2017 ONSC 5292, at para. 17.

[257] In Children’s Aid Society of London and Middlesex v. E.M.E.E. (a case upon which the appellant heavily relies), the subject child was made a Crown ward through an order that was silent on the issue of access. Subsequently, the Society brought a motion for directions after it discovered that it had failed to serve the First Nations band of which the child’s father was a member. The Society served its motion for directions on the band and the child’s mother, father and foster parents. The child’s father did not participate in the proceeding or the motion. In the context of the Society’s motion, minutes of settlement were executed by all of the parties except the child’s father, through which they sought an order: declaring the Crown wardship order a nullity as it related to the First Nation only; amending the title of proceedings to make the First Nation a party; amending the statutory findings to reflect that the child was native and associated with the First Nation; providing for specified access; and reinstating the Crown wardship once the above changes were made.

[258] In determining whether to give effect to the minutes of settlement, Mitrow J. determined two preliminary issues, namely: the effect of the Crown wardship order as it related to the First Nation; and the proper procedure to follow where a Crown wardship order was made without notice to a statutory party.

[259] In addressing the first issue, at para. 21 of his reasons, Mitrow J. referred to s. 39(1) 4. of the CFSA (which is similar to s. 79(1) 4. of the CYFSA), and concluded that the First Nation should have been afforded an opportunity to participate in the application that led to the Crown wardship order. At para. 22 of his reasons, he held that “The right of the First Nation to participate in protection proceedings involving the child is fundamental.” Finally, at para. 23, he concludes:

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

[260] In addressing the second issue, Mitrow J. determined that where a Crown wardship order is made without notice to a statutory party, the proper procedure to address the order lies in the statutory party’s ability to move to “set aside” the challenged order pursuant to r. 25(19) of the Family Law Rules, principally on the basis of “lack of notice”.

[261] In accordance with the foregoing, to the extent that a representative of the EWMNNS ought to have been added as a party and was not (and/or ought to have received notice and did not), it remains that the EWMNNS is the “aggrieved party” in that regard, not the appellant. Had a representative of the EWMNNS been a mandatory statutory party to the proceeding before the trial judge pursuant to s. 79(1) 4. of the CYFSA, and was not added, the EWMNNS would have had the opportunity, in the event it wished to do so, to bring a motion to set aside the final order of Phillips J., as against it, pursuant to r. 25(19) of the Family Law Rules. This court was not advised that the EWMNNS ever brought such a motion. Therefore, even if the trial judge erred by declining to add a representative of the EWMNNS, that error did not render the trial a nullity. With that issue determined, I will now consider the actual effect on disposition of the trial judge’s error in determining whether the children were Métis within the meaning of the CYFSA.

The Actual Effect on Disposition of the Trial Judge’s Error in Determining Whether the Children Were Métis Within the Meaning of the Provisions of the CYFSA

[262] In general, an erroneous finding that a child is not a First Nations, Inuk or Métis child within the meaning of the CYFSA has the potential to lead to a less than fully informed determination of the disposition that accords with the child’s best interests in accordance with s. 74 and s. 101 of the Act. However, that result did not occur in this instance. Despite his error, the trial judge’s disposition was not only reasonably supported by the evidence, it remains that it was the only available disposition that adequately protected the children in the context of the available evidence and all of the requisite considerations prescribed by s. 74(3) of the Act (best interests) generally and s. 74(3)(b) (the importance of preserving the child’s cultural identity and connection to community) specifically, together with s. 101 (disposition), generally and s. 101(4) (community placement) and s. 101(5) (First Nations, Inuk or Métis child) specifically. I will explain below.

[263] Consistent with its expressed preamble and objectives, the CYFSA provides for differential treatment between children who are First Nation, Inuit or Métis and those who are not. That differential treatment is well founded in the historic and systemic injustices that have historically been imposed upon First Nation, Inuit and Métis children, families and communities in the context of both the provision of child services and child protection proceedings.

[264] The CYFSA’s primary purpose is to promote the best interests, protection and well-being of children. One of its other purposes, pursuant to s. 1(2) 6. of the Act, so long as it is not inconsistent with the best interests, protection and well-being of children, is to recognize that:

1(2) 6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

[265] The differential treatment prescribed by the CYFSA impacts both the manner in which services are provided by a protection agency to, and on behalf of, a child and the child’s family (see, for example, O. Reg. 156/18, ss. 3-6) and the considerations that a court must undertake in determining the issues in a protection proceeding including: the determination of a child’s best interests pursuant to s. 74(3) of the Act; the identification of the available disposition options pursuant to s. 101 of the Act; and the mandatory disposition considerations a court must undertake, in the circumstances of the case before it.

[266] Specifically, s. 74(3)(b) of the Act provides that in determining the best interests of a child, among other things, the court must:

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c);

[267] Further, s. 74(3)(c)(iii) and (iv) mandate that in determining a child’s best interests, the court must (if it considers it relevant in the circumstances before it) consider the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression and cultural and linguistic heritage.

[268] In terms of disposition, s. 101(5) of the Act provides:

(5) Where the child referred to in subsection (4) [which directs a consideration of community placement in disposition] is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible,

(a) in the case of a First Nations child, another First Nations family;

(b) in the case of an Inuk child, another Inuit family; or

(c) in the case of a Métis child, another Métis family. [Emphasis added.]

[269] In addition, s. 109(2)(d) of the Act provides that where a child is in the interim or extended care of a Society, it shall choose a residential placement for the child that, among other things:

(2) ...

(d) in the case of a First Nations, Inuk or Métis child, is with, if possible, a member of the child’s extended family or, if that is not possible,

(i) in the case of a First Nations child, another First Nations family,

(ii) in the case of an Inuk child, another Inuit family, or

(iii) in the case of a Métis child, another Métis family;

[270] The best interests considerations mandated by s. 74(3) of the Act are also operable in the context of an adoption application pursuant to s. 179(2) of the Act (a provision that the trial judge inferentially alluded to in his reasons for disposition).

[271] As a result of the foregoing provisions, it is clear that the determination of whether the subject children were Métis children within the meaning of the CYFSA was an important issue in the ultimate determination of disposition.

[272] I also remain mindful that as part of her appeal, the appellant criticizes the nature and level of the services made available to her by the Society prior to trial, which she says were inadequate, because the Society did not consider the children to be Métis. In my view, such criticism is ill-founded for two reasons.

[273] First, it is clear on the evidence adduced at trial that the Society engaged in efforts to identify and facilitate the provision of services to both the children and the appellant that were consistent with both the appellant’s connection and the children’s connection to the EWMNNS and their Métis heritage and culture. The Society contemplated and facilitated the availability of access to services provided through appropriate providers including the Can-Am Indian Friendship Centre of Windsor. There was no evidence before the trial judge concerning any services that were potentially available to the children and/or the appellant that were either not considered by the Society or refused by the Society, based on a determination by the Society that the children were not Métis children. In addition, Grand Chief Mary Lou Parker testified that there were no child-related services available through the EWMNNS for the benefit of its members or their children.

[274] Second, the CYFSA came into effect only weeks before trial. Prior to that time, the proceeding was governed by the provisions of the CFSA. In the context of the original protection application, Ross J. determined that the children did not have Native status under that legislation. That finding was never challenged and it remained undisputed in the context of this appeal. There was no evidence adduced at trial that suggested that the nature and level of the services identified, facilitated, and/or provided by or through the Society to the children and the appellant were inadequate in the context of the undisputed determination that the children did not have Native status for the purpose of the CFSA.

[275] Turning to the trial related issues, earlier in these reasons I recounted in detail the content of the trial judge’s reasons for disposition, in which he meticulously explained the evidentiary path and the reasoning that led to his conclusion that an order for extended Society care without access was the only disposition that adequately protected the children and the one that accorded with the children’s best interests.

[276] The trial judge’s reasons and his comments during the trial demonstrate that throughout the proceeding he remained mindful of the children’s connection to the EWMNNS and the importance of preserving their connection to their Métis culture, heritage and tradition. Despite his deliberations in that regard, he concluded in all of the circumstances, including the operable risks of harm posed to the children in the event they were returned to the appellant’s care, together with the finite disposition options available to him, that extended Society care was in the children’s best interests. Indeed, he concluded that it was the only available disposition that adequately protected the children and that regardless of the underdeveloped evidence concerning the subject matter of ss. 74(3)(b), (c)(ii) and (iii) of the CYFSA, the Society’s plan of care was the only viable disposition option. Finally, he found that in the absence of any other viable placements, the disposition sought by the Society was in the children’s best interests (see pages 31 and 40 of the transcript of the trial judge’s reasons for disposition). Those findings are all reasonably supported by the evidence. I will explain.

[277] Recall, that at trial, the court was presented with plans of care and evidence in support of only three possible placements: a return of the children to the care of the appellant (with supervision); a placement of the children in the care of their maternal grandmother (C.W.) in Nova Scotia; and an order for extended Society care. Despite the Society’s inquiries of the children’s parents, no other community placements were identified and despite Society contact, neither the EWMNNS nor the Métis Nation of Ontario put forth plans with respect to the children.

[278] The trial judge’s findings, which I have previously reviewed, with respect to: the appellant’s credibility; his reasons for determining that the plans of care offered by the appellant and C.W. did not accord with the children’s best interests; and his conclusion that the children would not be adequately protected in the care of either the appellant or C.W. (even with supervision) are all reasonably supported by the evidence. Further, the basis for the trial judge’s findings with respect to each of the foregoing determinations in that regard remain undisturbed, even after considering the provisions of s. 74(3) (including s. 74(3)(b)) and s. 101(5) of the Act. I will explain further below.

[279] The trial judge’s reasons for determining that the appellant was not credible, refer in a fulsome manner, to the nature of the evidence that led him to that conclusion. His findings in that regard are entitled to deference from this court. The trial judge recounted that, the appellant historically made allegations of domestic violence against T.E. to police, which resulted in criminal charges against him, and subsequently to Society workers post apprehension. The appellant consented to a summary judgment motion in the original protection application that included a protection finding based on the children’s exposure to the domestic violence between herself and T.E. At trial, she testified that she would not consider reconciliation with T.E. unless he engaged in domestic violence counselling, among other things.

[280] Then, in cross-examination, she denied that any acts of domestic violence occurred between herself and T.E. including the details of the specific incidents that she had reported to police, on a contemporaneous basis. She testified in cross-examination that she fabricated her reports because she was angry with T.E. She testified that she even attended hospital to seek medical attention in relation to an assault that she claimed at trial never happened, because she wanted people to believe her lies. In the context of that evidence, the trial judge expressly determined that the appellant was a liar. There was ample evidence before him to support that conclusion.

[281] The trial judge also set out, in detail, the basis for his conclusion that returning the children to the appellant’s care would not adequately protect them from the risks related to each of the grounds for the protection finding that he made. The evidence available to the trial judge provides a comprehensive and reasonable basis to support his conclusion that the appellant did not appreciate the risks posed to the children, through the domestic violence to which they had been historically exposed, while in her care.

[282] That risk was heightened in this instance through what the trial judge accepted as credible and cogent evidence from Society workers who testified that, on more than one occasion, the appellant disclosed her plan to reconcile with T.E., once the non-association conditions imposed in the context of the criminal proceeding were removed. At trial, the appellant testified that she did not plan to do so. She effectively stated that she would not consider reconciliation with T.E. until he completed domestic violence and anger management counselling in accordance with the Society’s May 2017 plan of care.

[283] Her stated position in that regard was not easily reconciled with her evidence in cross-examination that she fabricated her prior reports to police concerning T.E.’s domestic violence against her, and he had, in fact, never assaulted her, at any time. If that aspect of her evidence was true, her fabrications resulted in significant consequences for T.E., who was incarcerated for several months following one of the appellant’s domestic violence reports. Similarly, if that aspect of the appellant’s trial evidence is true, then she repeatedly lied not only to police but to Society workers after the original application was brought.

[284] Her evidence in that regard also stands in contrast to the consent position that she adopted with respect to the Society’s summary judgment motion in the original protection application, which was premised on a need for protection as a result of the children’s exposure to domestic violence committed between the appellant and T.E. Further, if her past allegations of domestic violence involving T.E. were truly the product of fabrication, it is difficult to understand her evidence that she would not reconcile with T.E. until he sought out services related to past domestic violence against her (since she subsequently testifies that it never happened). Her evidence of fabrication is also difficult to reconcile with her evidence that through counselling she had gained insight into her past experience with domestic violence in which, according to her past disclosure, T.E. reportedly held a prominent role.

[285] In the context of the foregoing, the trial judge’s rejection of the appellant’s evidence that T.E. did not commit acts of domestic violence against her and her evidence that she did not intend to reconcile with T.E., together with his finding that T.E.’s history of domestic violence against the appellant would pose a risk to the children (through exposure) in the event that they were returned to the appellant’s care were all supported by the available evidence.

[286] The trial judge also reasonably concluded that there was another aspect of the evidence that rendered dubious the appellant’s assertion that she would not consider reconciling with T.E. unless he completed the plan of care objectives of the Society’s May 2017 plan of care. Specifically, the appellant previously breached an order made in the context of the original protection proceedings that prohibited her from associating with T.E. Within two months of Ross J.’s May 2016 order, the appellant and T.E. were found to be in the presence of one another contrary to the order’s terms. The trial judge reasonably found that the appellant’s non-compliance in that regard, when combined with other factors affecting her credibility, undermined her evidence with respect to her stated pre-conditions to reconciliation with T.E.

[287] The appellant’s breach of the May 2016 order was not the only evidence of non-compliance before the trial judge. He also found that the appellant did not fully comply with: all of the plan of care objectives endorsed by Ross J. in her final order made on February 1, 2017; and all of the subsequent plan of care objectives identified by the Society in May 2017, as of the time of trial in May 2018. The appellant’s prior breach of an order of supervision and her non-compliance with successive plans of care, reasonably informed the trial judge’s determination that an order of supervision would not adequately mitigate the risks of harm to the children that would arise if they were returned to the appellant’s care, in any event of reconciliation with T.E.

[288] In addition, the trial judge determined that despite acknowledging that the children were in need of protection through her consent to the summary judgment granted by Ross J., on more than one occasion the appellant delayed initiating specified services that were identified and designed to address the operable protection ground. The evidence also revealed that the appellant engaged in an approximate ten month delay between the time that she discussed the requirements of the May 2017 plan of care with Ms. Schofield and the time she engaged in efforts to participate in the Sexual Offender Treatment Program, despite repeated recommendations by Ms. Schofield that she do so. Apart from filing certificates of program completion and deposing to her general attendance on certain service providers and counsellors, the appellant offered little confirmatory evidence at trial with respect to the insight that she derived from her participation therein; and the manner in which her participation contributed to her ability to protect the children from the risks of harm identified by the trial judge.

[289] Finally, the appellant’s trial evidence reveals, as the trial judge found, that she did not fully appreciate the nature and extent of the children’s needs, as detailed in the evidence of Society worker Rebecca Rusenstrom. Ms. Rusenstrom testified that both children have multiple developmental needs (related to both physical and social development) requiring various forms of therapeutic intervention, which were identified when the children came into Society care. Appropriate services were identified, initiated and have continued to be provided to the children while they have been in Society care. In her evidence, the appellant acknowledged that the children presented with some developmental issues, but she also denied the existence and/or extent of other needs that were detailed in Ms. Rusenstrom’s evidence.

[290] The trial judge had regard to all of the foregoing evidence and circumstances when he determined the disposition that was consistent with the children’s best interests in accordance with s. 74(3) of the CYFSA. Further, although the trial judge did not find the children to be Métis children within the meaning of the CYFSA, he nonetheless had express regard for s. 74(3)(b) of the CYFSA in his determination of their best interests in the context of disposition, particularly at pages 16, 31 and 38 – 40 of his reasons. In the latter portion of his reasons, the trial judge correctly observed the relative scarcity of evidence that was before him concerning the subject matter of ss. 74(3)(b) and (c)(iii) and (iv) of the CYFSA, including in the appellant’s evidence. In that regard that the appellant’s evidence in her trial affidavit was limited to her statements that: she was Métis; she wanted to “raise” [the] children in Métis cultural traditions; her mother and siblings all identify as Métis persons; and she planned to access supportive services for the children through the same service provider that the Society had already accessed on behalf of the children, the Can-Am Indian Friendship Centre of Windsor. She did not offer any specific evidence concerning the EWMNNS or plans to connect the children to that Métis community.

[291] Despite specifically adverting to ss. 74(3)(b) and (c)(ii) and (iii) of the CYFSA in his best interests analysis, the trial judge found that his ability to address those considerations was frustrated by the lack of evidence on those issues. Nonetheless, he concluded that his inability to do so did not thwart his ability to reach a conclusion on disposition in the circumstances of this particular proceeding because on the evidence, there were no other viable alternative placement to the order the Society sought. The evidence reasonably supported his findings in that regard. The trial judge then posed rhetorical questions concerning the preservation of the children’s cultural identities and connection to community that were not answered by the available evidence, and he tacitly observed that the issue would be likely be revisited and more fulsome evidence in that regard required, if and when the issue of adoption came before the court in the future.

[292] In the foregoing context, the trial judge’s failure to find that the children were Métis within the meaning of the CYFSA did not undermine his ultimate disposition. Had the trial judge correctly determined that the children were Métis children within the meaning of the provisions of the CYFSA, “best interests” would have remained the only applicable test on disposition, and its application would necessarily require a consideration of, at the very least, the importance of preserving the children’s cultural identity and connection to community. Although that is an important factor, it is not the only factor in determining the children’s best interests (and correspondingly, disposition) and it does not attract an unreasonably higher weight in the best interests analysis: see Children’s Aid Society of Nippising and Parry Sound v. S.F., 2016 ONCJ 737, at para. 83; and Algonguins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646, 50 R.F.L. (7th) 272, at para. 67, leave to appeal refused, [2014] S.C.C.A. No. 513.

[293] Of course, any evidence concerning the children’s Métis heritage, traditions and culture and the preservation thereof, warrants substantial consideration and deliberation and must be evaluated in appropriate context. 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 with respect to First Nations, Inuit and Métis issues relevant to the proceeding: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 443, at para. 60; and Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, at para. 54, leave to appeal refused, [2018] S.C.C.A. No. 51.

[294] The trial judge’s approach to disposition and the manner in which he considered and addressed the limited evidence and the issues surrounding the children’s connection to community and the importance of preserving their Métis culture, traditions, and heritage are consistent with the foregoing principles, even in the absence of finding them to be Métis children within the meaning of the CYFSA. Despite his error, the trial judge still found as a fact that the children had a connection to the EWMNNS and he approached the issue of disposition with a recognition of the importance of preserving the children’s cultural identities and their connection to community. In so doing, he remained expressly mindful of important contextual information relevant to the issue but he was confronted with the difficulty that there was very little case specific evidence adduced at trial on issues relating to the children’s Métis traditions, heritage, culture, and community. To the extent that any such evidence was provided, it was considered by the trial judge when determining the children’s best interests and disposition.

[295] The evidence before the trial judge indicated that no services were available to the children through the EWMNNS. There was limited and non-specific viva voce evidence adduced that prior to apprehension the appellant involved the children in some programs in the Windsor area with respect to Métis culture and heritage, and that she intended to do so again. There was some evidence with respect to the Society’s efforts to involve the children in programs and services directed to their Métis culture and heritage since they have been in Society care. There was little evidence with respect to the foster parent’s future plan in that regard, particularly as it concerned the EWMNNS.

[296] The trial judge had regard to all of the foregoing. However, his determination of the disposition that was consistent with the children’s best interests was not solely a function of his consideration of those aspects of the evidence. Although Métis issues had to seriously inform his determination of the children’s best interests, he was required to consider the evidence in that regard together with all of the other relevant evidence and factors that informed the children’s best interests, in order to arrive at his disposition. He did so. As a result of his findings that the children would not be adequately protected in the care of the appellant or C.W., I am not persuaded that the result could have been any different had the trial judge applied the appropriate legislative criteria to determine that the children were Métis children in accordance with the CYFSA.

[297] It may very well be that when s. 74(3)(b) is considered in isolation, on the totality of the evidence at trial, and despite the limited case-specific evidence concerning the children’s cultural identities and connection to community, the children’s return to the appellant’s care would be the disposition that would best serve the considerations set out therein, particularly, in the context of the finite disposition options available to the trial judge. However, the subject matter of [s. 74(3)](https://www.canlii.org/