WARNING The court hearing this matter directs that the following notice be attached to the file:
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 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.: 4347/19 DATE: 2020-01-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NOGDAWINDAMIN FAMILY AND COMMUNITY SERVICES Applicant – and – A.W. Respondent in Appeal -and – B.S. Respondent in Appeal
- and – BATCHEWANA FIRST NATION BAND REPRESENTATIVE, DARLENE CORBIERE Appellant
Counsel: Sarah J. Bujold, Counsel for the Applicant Shadrach McCooeye, Counsel for A.W. Murdoch Carter, Counsel for B.S. Stacy R. Tijerina, Counsel for Batchewana First Nation
HEARD: December 16, 2019
VARPIO J.
Reasons on Appeal
[1] This is an appeal by Batchewana First Nation (“Batchewana”) of an Order of Condon J. dated April 19, 2019. The motions judge was determining on an interim basis, inter alia, whether a child putatively in need of protection had an indigenous background as per section 90 of the Child, Youth and Family Services Act.
[2] Section 90 of that Act states:
90 (1) Where an application is made under subsection 81 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 101.
Child’s name, age, etc.
(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,
(a) the child’s name and age;
(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; and
(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.
[3] At paras. 70 to 72, and 74 to 76, the motions judge stated:
[70] It is also noted that, while the father’s affidavit was presented to the court, and the participants in the hearing of the motion, at the outset of the motion. No participant in the motion sought additional time in order to challenge, rebut or even explore further the father’s evidence that he self-identifies “as an Aboriginal person with the Batchewana First Nation” and that he seeks to have his daughter understand and learn his “heritage”.
[71] I accept the father’s evidence regarding his maternal grandfather and his identification as an aboriginal person. Other evidence before this court does not contradict that evidence. It is proof that meets the standard of proof of being on a balance of probabilities. I also accept the father’s evidence that he self-identifies as “an aboriginal person with the Batchewana First Nation”. While, on the limited evidence before the court, this is a recent awakening by the father, it is not contradicted by any other evidence. Moreover, it appears that the Batchewana First Nation intends to be inviting of the father and, in turn, the child. I find that this evidence also meets the evidentiary standard of proof of being on a balance of probabilities.
[72] I find that, on a balance of probabilities, this evidence is sufficient to establish that the father, who is a relative of the child identifies as a First Nations person and that pursuant to the criterion in Section 1, clause (c)(i) of O. Reg. 155/18, the child, L.M.W.S, is identified as a First Nations person.
[74] It is also noted that this identification process might not be the process or employ the same criteria used by the Batchewana First Nation to determine what involvement it will have with the father, the child or this proceeding. That is not a matter to be determined by the court and is not within the statutory jurisdiction of this court.
[75] On the other hand, given the ruling that the child, L.M.W.S., is a First Nations person, the balance of the Society’s motion, including as it relates to the Batchewana First Nation must be dealt with.
[76] It is clear from the evidence and the representations of Darlene Corbiere, on behalf of the Batchewana First Nation that the Batchewana First Nation seeks to be involved in this proceeding. The level of involvement will be determined by the First nation. Given the finding in relation to the child including the father’s identification with the Batchewana First Nation, I find that it is appropriate that the Batchewana First Nation be added as a responding party in this proceeding. [Emphasis added.]
[4] In her affidavit filed with the motions judge, Ms. Darlene Corbiere on behalf of Batchewana had deposed the following:
I am a member of the Batchewana First Nation and I am a Child Welfare Band Representative for the First nation for the purposed of proceedings under the Child, Youth and Family Services act involving the First Nation’s members.
I have been asked by the court to provide an affidavit on the process of identifying a Batchewana First Nation (BFN) member of affiliate.
On February 14, 2019 our Team assistant, Lisa Boissoneau, who is trained in membership, checked if the following names are eligible for Batchewana First Nation membership:
(a) B.S., D.O.B. […], 1979
(b) C.S., (maiden name J.) D.O.B. […], 1958 [presumably Mr. B.S.’s mother]
Lisa Boissoneau then contacts Crown-Indigenous Relations and Northern Affairs Canada in Toronto, ON., either by way of telephone, mail, fax or email and in this particular case contact was made by email.
As a result there were no eligible names from our request.
I have not found a community connection to Batchewana First Nation.
[5] Subsequently, on July 10, 2019, Dunn J. made a temporary order whereby she indicated that the child should be placed in the care of the mother subject to supervision by Nogdawindamin. She did not appear to decide the issue of which authority should supervise, CAS or Nogdawindamin.
[6] Batchewana takes the position that the motions judge erred when he decided that, based upon the evidence before him, the child in question had sufficient connection to Batchewana so as to be affiliated with same for purposes of the Act. Batchewana argues that this decision could open the floodgates for any claimant to effectively acquire band status or other benefits.
[7] I agree with Batchewana’s position.
[8] First, it is clear that there is considerable precedent to suggest that findings of indigenous heritage require more than a simple statement from an applicant: Catholic Children’s Aid Society of Toronto v. S.T. 2019 ONCJ 207, [2019] O.J. No 1783 at para 32, 25; Bruce Grey Child and Family Services v. A.B.C., 2018 ONCJ 516 at para 49, and, especially Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, [2017] O.J. No. 6324 (Ont. C.A.) at paras. 56 and 58:
As Mackinnon J. said in Children's Aid Society of Ottawa v. K.F., 2015 ONSC 7580, 71 R.F.L. (7th) 110, at para. 65, a factual foundation that connects systemic factors to the particular child remains essential:
Taking judicial notice of these systemic and background factors would provide the necessary context for understanding why the provincial legislature has included the special additional purposes and provisions applicable to "Indian" and "native" children. It would not displace the need for a factual foundation ...
Similarly, in Catholic Children's Aid Society of Hamilton v. G.H., 2017 ONSC 742, [2017] O.J. No. 1380, at paras. 42 and 44 Harper J. said:
I find that there is no evidentiary record in this case on the basis of which I can assess and balance the importance of the preservation of the Aboriginal heritage of the child when considering the other factors set out in the CFSA.
[T]here is no evidence relating to the uniqueness of the child's particular Aboriginal culture, heritage or traditions for me to take into account.
The appeal judge made no mention that the parents or the child were in any way involved in an Indigenous community or its culture. There is no evidence that the parents had any connection to their culture; that the child was ever exposed to the Indigenous culture; or that anyone from the Indigenous community had ever been involved with the parents or the child. The statement of facts agreed to by the parents in May 2012 stated: "the child is not an Indian or native person." Although at trial the mother said she had applied for status, the Indigenous heritage of the child was not raised until the appeal stage when the father declared that he was Cree and the mother was Mi'kmaq.
I recognize that Indigenous membership has expanded to include self-identification. However, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The appeal judge erred by ordering access based on nothing but the parents' self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child. He then again ignored the requirements of s. 59(2.1). I turn to that issue now. [Emphasis added.]
[9] In this instance, the evidence relied upon by the motions judge does not meet the necessary threshold. In fact, the only evidence is the self-identification of the father which I find to be insufficient evidence as per the case law. The other parties to this appeal raised other arguments regarding sufficiency of the father’s self-identified connection to Batchewana but they failed to address this central concern. In fact, it occurs to me that the need for an evidentiary foundation is a prerequisite for any finding under s. 90. Were this not the case, it is conceivable that numerous people coming before the courts could self-identify as a member of Batchewana, leaving the band with insufficient resources to assist those in need. Surely such a result would defeat the purposes of the Act. As per Housen v. Nikolaisen, 2002 SCC 33, 2002 S.C.C. 33, this constitutes an error in law.
[10] Further, I do not believe it cannot be said that “other evidence before this court does not contradict” the father’s assertion of indigenous heritage. Ms. Corbiere’s affidavit evidence contradicts same in that the father and his maternal grandmother’s names do not appear on the official lists. The motions judge therefore overstated the evidence. As per Housen v. Nikolaisen, supra, this constitutes a palpable and overriding error.
[11] It is important to note that the motions judge commented that Ms. Corbiere, on behalf of Batchewana, led the court to believe that Batchewana might work with the family. That is clearly not the case. I have reviewed the transcripts of this matter and have not found anything within them that would amount to an admission (against interest or otherwise). Nonetheless, the motions judge’s reliance on Ms. Corbiere’s representation clearly had an effect. While I note that the nature of child protection matters require some free flow of ideas as between the court and the parties, I remind all institutional parties that providing a court with a clear position invariably assists the trier of fact in developing the most effective decisions.
[12] Appeal granted. The matter is remitted to the Ontario Court of Justice for a new hearing.
Varpio J.
Released: January 2, 2020
Ontario Superior Court of Justice
B E T W E E N: NOGDAWINDAMIN FAMILY AND COMMUNITY SERVICES – and – A.W. -and – B.S.
- and – BATCHEWANA FIRST NATION BAND REPRESENTATIVE, DARLENE CORBIERE
REASONS ON APPEAL Varpio J.