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 and Parties
COURT FILE NO.: 10-152-12 DATE: 2019/02/05
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 C.M. (DOB: […], 2001), M.C. (DOB: […], 2003 ), J.C.(DOB: […], 2004 ), C.C. (DOB: […], 2005)
BETWEEN:
Children’s Aid Society of Ottawa Applicant
– and –
N.P. (Mother) J.-P.C. (Father) Respondents
COUNSEL: Judith Hupé, for the Applicant N.P. (Mother)-Self-Represented Dominique Smith, for the Respondent (Father) Sheldon Cherner, for the children
HEARD: January 22, 2019
Endorsement
Blishen J.
[1] On July 3, 2018, the Children’s Aid Society of Ottawa (“the Society”) filed an amended status review application requesting an order that C.C. (DOB: […], 2001) be placed with his father, J.-P. C. under the terms and conditions of a supervision order for six months. The application further requested an order that M.C. (DOB: […], 2003), J.C. (DOB: […], 2004) and C.C. (DOB: […], 2005) be placed in the extended care of the Society with access to the parents J.-P. C. and N.P. at the Society’s discretion taking into consideration the children’s wishes and best interests.
[2] On January 11, 2019, the Society filed a notice of motion requesting summary judgment with respect to the orders sought in the amended status review application. The mother is in default and has not participated in the proceedings. Mr. C. contested the summary judgment motion as did counsel on behalf of the children. The motion was argued on January 22, 2019 and the decision reserved.
Evidence re First Nations
[3] In reviewing the materials filed in support of the motion, I noted the following:
The father’s affidavits in support of statutory findings for his four children sworn on October 18, 2018 (Tab 9 of Vol. 4 of the Continuing Record), indicate the children are First Nations. No band or First Nations community is identified by the father. That portion of the affidavits is left blank.
On December 31, 2018, Mr. C. filed new affidavits with respect to the statutory findings (Tab 10, Vol. 1 of the CR). Those affidavits state the four children are not First Nations.
The affidavit of the Child Protection Worker, Josephine Parke sworn July 3, 2018, notes the three children, M.C., J.C. and C.C. are followed by the medical and dental teams at Wabano, an Aboriginal Health Access Centre offering culturally relevant health services to First Nations, Inuit and Metis Communities in Ottawa (para. 6).
Ms. Parke’s July 3, 2018 affidavit further indicates the Society has maintained community/cultural involvement for the three children who were enrolled to attend the Indigenous Youth Gathering Camp in July, 2018 (para. 9).
In her recent affidavit sworn January 10, 2019, Ms. Parke recognizes the requirement to consider placement of M.C., J.C. and C.C. with a First Nations family but states it is not possible as there are none currently available. She desposes the children could remain together in their current foster home and be offered supports/services through Wabano (para. 25). She further states that throughout the proceedings no First Nations community has presented a plan of care for the children (para. 26). This affidavit was sworn after Mr. C.’s affidavits of December 31, 2018 indicating the children were not First Nations.
[4] The evidence regarding whether the children are First Nations or identify as members of a First Nations community and/or band is unclear and inconsistent. Mr. C. has sworn affidavits in the past and as recently as October, 2018 indicating the children identify as First Nations; then, in December, 2018, indicating they do not. Throughout Ms. Parke’s involvement she has recognized the children as First Nations and has therefore recognized the importance of culturally appropriate services through Wabano and other community organizations.
Law
[5] Regulation 155/18 section 1 (a) under the Child Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1, (“CYFSA”) indicates a child is First Nations/ Inuit or Metis if the child identifies or the parent identifies the child as such. Mr. C. has in the past and as recently as October, 2018, identified the children as First Nations.
[6] Section 90 (2)(b) of that Regulation 155/18 indicates if a child identifies as First Nations there must be a determination as to the child’s band or First Nations community. At the present time, no First Nations communities have been outlined by Regulation. Therefore, if a child is First Nations, it is important to determine the child’s band, if any.
[7] Pursuant to Regulation 156/18 Section 21, the views of the child, if they can be ascertained, must be obtained as to the band with which the child identifies. If the child’s views cannot be ascertained, the band maybe identified by a parent.
[8] Based on the evidence, it appears none of the children in this case have been asked whether or not they identify with a band which is the mandatory first step to be taken if a child is First Nations.
[9] Under the CYFSA, it is possible for a child to identify as First Nations and not be a member of a band or a First Nations Community. Overall the CYFSA is more inclusive in dealing with individuals who identify as Indigenous.
[10] A child’s identification as First Nations, whether or not a member of a band or First Nations community, is important as there are many considerations under the CYFSA with respect to First Nations children. For example:
The preamble to the legislation recognizes the importance of a child identifying with or belonging to a First Nation or a community and emphasizes the importance of ensuring, whenever possible, that care and services for children be in accordance with their distinct cultures, heritages and traditions.
In considering the purposes of the legislation, paragraph 6 ss. 1 (2) of the CYFSA provides that First Nations, Metis and Inuit children are entitled wherever possible, to services provided in a manner that recognizes their cultures, heritages, traditions, connections to their communities, and the concept of the extended family.
Pursuant to s. 74 (3) of the CYFSA, the importance of preserving a First Nations child’s cultural identity and connection to community is a specific stand-alone consideration in determining what order is in the child’s best interests.
In addition, under s. 101 (5) of the CYFSA, when determining the appropriate disposition for a First Nations child, unless there is a substantial reason for placing the child elsewhere, the child shall be placed with a member of the extended family, if possible or, if not, with another First Nations family.
[11] All these considerations, in particular numbers 3 and 4, are important in determining whether to grant summary judgment in this case.
Conclusion
[12] If the children are First Nations, I will be required on this summary judgment motion to consider what efforts have been made and will be made and by whom to maintain the children’s connection to or identification with their First Nations culture or community. All the relevant sections of the CYFSA regarding First Nations children must be considered.
[13] As noted above, the evidence regarding the First Nations status of the children is inconsistent and confusing. Therefore, I will require:
Further evidence from Mr. C., as to why up to December 31, 2018 he identified the children as First Nations, on what basis and why he retracted or changed the First Nations identification just before the summary judgment motion. Clarification is essential.
The children are to be consulted individually and evidence is to be provided as to whether they consider themselves to be First Nations.
If not, or if they are unclear and Mr. C. continues to state the children are First Nations, the children’s views, if they can be ascertained, must be provided as to whether they identify with a band.
If the children’s views regarding band identification cannot be ascertained or are unclear and Mr. C. continues to identify the children as First Nations, Mr. C. is to provide evidence as to the band, if any, with which the children identify. If there is a band identified, the band representative is a party and must be served pursuant to s. 79 (1)(4).
The Society is to provide further evidence as to its understanding as to the children’s First Nations status, the basis for that understanding and specifically and in detail what has been done to meet the requirements of the CYFSA regarding First Nations children.
[14] This evidence and clarification on the issue of First Nations status is to be provided by way of affidavits served pursuant to the Family Law Rules, O. Reg. 114/99, and submitted to the court by February 15, 2019.
[15] If any party wishes to make further submissions on the summary judgment motion based on the new evidence, trial coordination is to be notified by February 20, 2019 and a date is to be set for those submissions to be heard by March 8, 2019.
Released: February 5, 2019
Blishen J.
COURT FILE NO.: 10-152-12 DATE: 2019/02/05
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 C.M. (DOB: […], 2001), M.C. (DOB: […], 2003 ), J.C.(DOB: […], 2004 ), C.C. (DOB: […],2005)
BETWEEN:
Children’s Aid Society of Ottawa Applicant
– and –
N.P. (Mother) J.-P.C. (Father) Respondents
Endorsement
Blishen J.
Released: February 5, 2019