WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT FILE NO.: FC-12-1361-2

DATE: 2019/10/24

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF: Z.-L.C. (DOB: […], 2014), F.C. (DOB: […], 2015), J.-A.G. (DOB: […], 2019), B.S. (DOB: […], 2010)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

M.G.

G.C.

Respondents

COUNSEL:

Eric Smith, for the Applicant

M.G., Self-Represented

Stephen Pender for the G.C.

Sheldon Cherner, Counsel for the Child B.S.

HEARD: October 21, 2019

Endorsement

Aitken J.

[1] On October 21, 2019, a trial was scheduled to commence in this matter. The Children’s Aid Society of Ottawa (“the Society”) was seeking an order for extended Society care for three children: Z.-L.C. ([…], 2014), F.C. ([…], 2015), and J.-A.G. ([…], 2019). The parents of these children are M.G. and G.C. The Society was also seeking an order placing B.S. ([…], 2010), the child of M.G. and C.S., in the custody of his paternal grandmother.

[2] By the time of trial, C.S. had been declared in default and was not participating in the proceedings. M.G., although originally represented by counsel, had parted company with her counsel and was unrepresented. G.C. was represented by Stephen Pender. Sheldon Cherner was acting as counsel for B.S.

[3] In that M.G. was unrepresented, at the commencement of the trial I explained to her the procedure that would be followed during the trial and my role as an independent, impartial decision-maker. I provided her with a memorandum for self-represented litigants to explain in more detail trial procedure and the role of everyone during a trial.

[4] I then confirmed with Mr. Pender that his client was of Métis heritage and ensured that all counsel were of the same view as to the significance of this fact in regard to the analysis that would be required at the conclusion of the trial.

[5] It was at this stage that Mr. Pender advised the court that, during his conversations with M.G. that day, M.G. had advised him that her father and paternal grandmother identified with the Algonquin First Nation. This was the first time that the lawyers for the Society, G.C., and B.S. had been made aware of this assertion. As a result of this disclosure, the trial was adjourned and I proceeded to hear a motion as to whether, under s. 1 of O. Reg. 155/18, the four children were “First Nations children” for the purposes of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the Act”).

[6] On the motion, I heard viva voce evidence from M.G. and her former Society case worker, Leigh Adamson.

[7] M.G. testified that her father and her paternal grandmother identify as Algonquin and are connected with the G[…] Reserve. M.G. lived with her paternal grandmother when she was between the ages of six and twelve. During this period, she regularly attended pow-wows on the reserve. Her grandmother still goes to the reserve. B.S. also goes to the G[…] Reserve when he is staying with M.G.’s paternal grandmother.

[8] M.G. testified that her former case worker, Leigh Adamson, had been aware of her Algonquin connections. Ms. Adamson had asked her if she required any special services as a result of her aboriginal heritage. In that M.G. did not follow any of the traditional practices of the Algonquin First Nation, and in that her relationship with her father had not been a healthy one and she did not want to revisit it, she declined the offer for special services. In fact, on March 5, 2018, M.G. swore three separate affidavits as to Birth, Parentage, and Religion in regard to B.S., Z.-L. C., and F.C. Each affidavit indicated that the child in question did not have Native status.

[9] I accept M.G.’s evidence that these affidavits were sworn in front of an assistant, and not her lawyer at the time and not someone representing the Society. Leigh Adamson confirmed that she had not been present when these affidavits were sworn. M.G. was presented with the affidavits – already completed by someone else – and was asked to sign them. She did so hastily and without there being any detailed conversation as to whether any of the children could fall under the definition of a “First Nations child” under the Act or Regulations. Although the form of affidavit that M.G. was asked to sign was appropriate under the predecessor to the Act, it is not the appropriate form of affidavit to use under the Act. A new form of affidavit is now in use and one of those should have been completed with M.G. well before the commencement of the trial. Had that been done, the issue of whether the children are “First Nations children” under the Act and the Regulations would have been explored more fully at an earlier date and would not have been addressed for the first time at the commencement of trial.

[10] This is not a case where a litigant is holding back information and then blurting it out at trial in an effort to thwart or delay proceedings. M.G. did not come into the trial wanting an adjournment. On the contrary, she, like all the other parties to the proceeding, wanted the trial to be held and concluded at the earliest opportunity. This also is not a case where a litigant has been untruthful in signing an affidavit. M.G. does not consider herself or any of her children to have “Native status”. She does not participate in Algonquin culture and has not involved her children in any Algonquin practices or traditions. However, that is not the relevant test under the Act and the Regulations. Finally, this is not a case where there is a mere possibility of some connection with an unnamed First Nation, Inuk, or Métis community. The First Nation, the band, and the reserve have all been clearly identified.

[11] Section 1 of Ont. Reg. 155/18 reads as follows:

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

(a) the child identifies themself 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.

[12] Under s. 2 of the Act, “relative” means, with respect to a child, a person who is the child’s grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption.

[13] There is uncontroverted evidence that M.G.’s father, the children’s grandfather, identifies as a “First Nations person”. There is uncontroverted evidence that B.S. has had some connection with the Algonquins of the G[…] reserve.

[14] I adopt the reasoning and guidelines set out by Hardman J. in Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516, at paras. 10-40, regarding the importance of exploring and determining at the earliest opportunity whether a child is a “First Nations, Inuk or Métis child” under the Act and Regulations and, in the case of a connection with a First Nation, the need for service on any identified band. The band name of the Algonquins at the G[…] reserve is the Algonquins of P[…]. This is the band that must be served with notice of these proceedings and given the opportunity of being a party to these proceedings in accordance with s. 79(1) of the Act.

[15] The Society urged me not to make a finding that the children in this case are First Nations children. Given the uncontroverted evidence before me, I could not accede to this request. The Society’s counsel then urged me to continue with the trial while notice is being given to the Algonquins of P[…], even though they would not initially be present at the trial. Clearly, that would not have been appropriate. I shared the Society’s concern that this late development will result in further delay in a final decision being made to further the children’s best interests through a permanent and stable plan for their care. The two girls have been in care for a period way beyond that statutory timelines. Nevertheless, the Legislature has made it clear that it is of great importance in our quest for reconciliation with our First Nations peoples to protect their right to participate in decision-making regarding the welfare of First Nations children.

[16] Section 79(7) of the Act allows the court to dispense with notice to a person where the court is satisfied that the time required for notice to that person might endanger the child’s health or safety. No evidence was provided on the motion as to how the health and safety of any of the children currently in care would be negatively impacted by a further delay in these proceedings. In saying that, I do not want to be seen as ignoring the harm that can be caused through a delay in creating a permanent, healthy, stable home environment for children. However, in the balancing act required in applying this legislation, significant weight must to be given to the rights of our First Nations communities to further the welfare of their people.

[17] After providing my decision in regard to the children being First Nations children, I instructed counsel to provide me with an order for my signature about service on the Algonquins of P[…]. Instead of adjourning the trial, I declared a mistrial so that it would be clear that I am not seized of the matter and the trial can be scheduled as soon as possible before any available judge of the Superior Court of Justice at Ottawa.

[18] Although no return date was provided at the conclusion of the motion, one needs to be set so that the case can be spoken to after service has been effected on the band, and counsel, hopefully, have some idea as to when the trial may be able to proceed. Counsel are instructed, after consultation with M.G., to arrange a return date with the Trial Coordinator.

Released: October 24, 2019

Aitken J.

COURT FILE NO.: FC-12-1361-2

DATE: 2019/10/24

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF: Z.-L. C. (DOB: […], 2014), F.C. (DOB: […], 2015), J.-A.G. (DOB: […], 2019), B.S. (DOB: […], 2010)

BETWEEN:

Children’s Aid Society of Ottawa

Applicant

– and –

M.G.

G.C.

Respondents

Endorsement

Aitken J.

Released: October 24, 2019