RESTRICTION ON PUBLICATION
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.
FILE NO.: D18-0027/AP
DATE: 2020-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.E.O.
Appellant
– and –
M.D.
– and –
T.D.M.T.
– and –
Kina Gbezhgomi Child and Family Services
– and –
Wikwemikong Unceded Territory
Respondents
D. Berlinguette, for the Appellant
S. Haner, for Respondent M.D., not participating in the appeal
Ms. T.D.M.T., not represented and not participating in the appeal
Katherine Hensel and R. Philippe, for Respondent KGCFS
Katherine Hensel, for Respondent Wikwemikong
HEARD virtually at Gore Bay: September 25, 2020
PUBLICATION RESTRICTION NOTICE
Pursuant to subsections 87(8) and 87(9) of the Child, Youth and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
JUDGMENT ON APPEAL
A.D. KURKE J.
Overview
[1] The appellant seeks to lift the stay imposed by Humphrey J. on May 16, 2019, on her application under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) for sole custody of the child L.A.D., born [...], 2013, with access to L.A.D.’s natural parents at the appellant’s discretion. The errors that she alleges mainly focus on the motion judge’s use of s. 103 of the Child, Youth and Family Services Act, 2017, S.O. 2017, Chapter 14 Schedule 1 (“CYFSA”) as the authority for the stay that was imposed. She also alleges errors relating to party standing and the motions judge’s failure to note Kina Gbezhgomi Child and Family Services (“KGCFS”) in default.
[2] This appeal was conducted virtually given the current COVID pandemic. Of the various parties, Ms. T.D.M.T. (the “mother”) is unrepresented. She was notified of the appeal and the hearing date and means of access but has filed no material and did not participate in the hearing. Mr. M.D. (the “father”) is represented, but his counsel indicated that Mr. M.D. would not be participating. KGCFS and Wikwemikong Unceded Indian Reserve (“Wikwemikong”), the child’s First Nation, essentially speak with one voice responding to the appeal. After the oral hearing of the appeal, I invited further written submissions regarding the applicability to these proceedings of s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).
[3] This appeal concerns the intersection between a Customary Care Agreement (“CCA”), which is a creature of the CYFSA, and the application by an individual for custody of a child under the CLRA. Philosophically, there exists a tension between customary care and individual custody, as made evident by the facts of this case. How is a court to resolve this tension? Where do the best interests of the child lie in such circumstances?
Background
Background to the apprehension of L.A.D.
[4] KGCFS had been involved with L.A.D.’s parents (the “parents”) since 2000 because of issues relating to domestic violence and substance abuse. Older children of the parents were being cared for by a relative in the community. Two other children were made Crown wards in 2009. On April 9, 2013, the mother’s file was reopened when KGCFS was advised that she was pregnant again.
[5] L.A.D. was born [...], 2013. She was apprehended by KGCFS, which brought a protection application and in June 2013 placed L.A.D. in the appellant’s home for fostering. The appellant is married to L.A.D.’s paternal great uncle. On September 22, 2014, a Wikwemikong Band Council Resolution was passed, resolving that L.A.D. would be in the care of the appellant. This was done by Wikwemikong in “exercising its inherent authority and responsibility for the care of children of their community” and so that KGCFS could grant the appellant a subsidy for care according to the custom of the Band/First Nation.
The Customary Care Agreement in this case
[6] A CCA was made on December 18, 2014, and in force by April 1, 2015. As a result of the CCA, the protection proceeding that had been initiated was withdrawn. There is an addendum from November/December 2015 that repeats aspects of the CCA relating to agreements made by the various parties. The CCA opens with a statement of purpose:
“This agreement reflects customary care in a formal setting and will be utilized where there are protection concerns deemed by a protection agency and a traditional arrangement is not possible. This agreement ensures that our children receive the best services according to our Anishinaabe ways, customs, beliefs and practices, respectful of the parent’s relationship to the child and permits the time needed to resume the parental responsibility.”
[7] Parties to the CCA are the mother, the father, Wikwemikong, the appellant, KGCFS, and the Children’s Aid Society (“CAS”). All these parties or their representatives signed the CCA. The CCA was described as a “Long-Term” CCA which could be in effect until the child reached the age of 18 years. The CCA requires an annual “case conference – talking circle” to review L.A.D.’s placement, planning and circumstances. The parties acknowledged that the terms and purposes of the CCA had been explained to them and that they had a reasonable opportunity to obtain independent legal advice before signing. Participation was voluntary.
[8] The section of the CCA in this case entitled “Reasons for this Customary Care Agreement” begins with a summary of the parents’ issues and child welfare interventions on behalf of their other children, and concludes that the appellant and her husband:
“…have indicated that they are willing to care full time for [L.A.D.] and are open to the Customary Care Agreement. The parents continue to struggle with addiction issues at this time and it is felt [L.A.D.] will benefit from a family placement while the parents continue to work towards a healthy lifestyle.”
[9] The CCA states that the appellant, who is a Wikwemikong resident, is to be the “customary care provider.” She is given authority to consent to medical, surgical, dental, educational, psychological or diagnostic treatment and anesthetic care that a qualified medical or dental practitioner might recommend.
[10] The signatories to the CCA agreed to various contributions to the agreement. Among those are the following:
a. Wikwemikong agreed that it would actively participate in the development of a plan of care for L.A.D. and annual review. It would provide services and documentation to L.A.D., and inform the parties of actions taken as a result of any serious occurrences involving L.A.D.
b. The parents agreed that the appellant would provide care and supervision to L.A.D. and make day-to-day educational and medical decisions relating to her. They would abide by the plan of care for L.A.D. and the family plan of care, and not “interfere with the customary care placement.” They would abide by visiting arrangements agreed upon by the parties.
c. The appellant is to ensure continuity of L.A.D.’s Anishinaabe way of life in accordance with the biological family’s values, beliefs and traditions. She will provide care for the child for the period set out and participate in the plan of care. She was to complete a home study process to adhere to ministry foster care standards and adhere to KGCFS and CAS service standards which reflect cultural appropriateness. She is to permit parental access as determined to be in the best interests of L.A.D. by Wikwemikong representatives, KGCFS and CAS, and to report any access issues to KGCFS. She is to adhere to Ministry service standards as required by foster care licensing.
d. KGCFS is to ensure continuity of L.A.D.’s Anishinaabe way of life in accordance with the biological family’s values, beliefs and traditions. It was to conduct a home study of the appellant and provide per diem and reimbursable rates for the care of L.A.D. to the appellant. It is to provide services to L.A.D., the parents, and the appellant that are consistent with agency standards and reflective of “culturally holistic services, circle of care and [the] community-based model.”
e. The CAS is to supervise and support L.A.D. and provide her with services for her needs, “reflective of the community-based model.” It will support L.A.D. and her family in service goals and healing, assist L.A.D. in maintaining connection with family and community members, and further all other rights “of an Anishinaabe child.” It will ensure that all parties are active participants in the plan of care and will abide by Band/First Nation protocols in the delivery of service. CAS and KGCFS will ensure that Wikwemikong and the parents are made aware of serious occurrences with respect to L.A.D. or her removal from the appellant’s care.
[11] The CCA states that L.A.D. was under the “joint responsibility” of the appellant, Wikwemikong, the CAS, and KGCFS. The appellant gives L.A.D. residence and exercises “daily care and control.” The parents can have access as agreed among all the parties.
[12] In “Section 4”, the CCA addresses review and termination of the CCA. Any party can request a review of the agreement at any time from the customary care coordinator at KGCFS, who will arrange a case conference or talking circle of all parties within 10 days. Agreements may be terminated by any party by providing written notice to the customary care coordinator, who will arrange a case conference/talking circle within 10 days involving all parties. The parties to the appeal agree that written notice by a party could suffice to terminate the CCA.
Events subsequent to the CCA and the appellant’s application for custody
[13] A worker with KGCFS wrote in an affidavit that since May 1, 2015, KGCFS had had 20 referrals relating to the appellant, involving “lack of supervision, caregiver capacity and risk of emotional harm.” Several of the referrals had been verified and were “being addressed with the caregiver” by KGCFS in consultation with Wikwemikong.
[14] On April 26, 2018, the appellant brought an application for full custody of L.A.D. under the CLRA, which she served on the parents and KGCFS. She noted that KGCFS told her that the mother was not permitted to have access to L.A.D., and that she did not think that the father should be granted any access, as he had only exercised some five minutes per month of access with L.A.D., and he had told the appellant that he did not believe that he was L.A.D.’s biological father.
[15] In affidavit material the appellant explained that she had been asked by the CAS to pick up L.A.D. from the Manitoulin Health Centre when L.A.D. was three days old. L.A.D. had only known the appellant and her spouse as her parents. The father only stopped by approximately five minutes a month to ask for money or to borrow food items. He did not spend time with L.A.D. The appellant was told by KGCFS that the mother was not permitted to have any access to L.A.D. L.A.D. attends birthday parties and family functions with the appellant’s family.
[16] In June 2018, KGCFS filed a motion to be added as a party to the appellant’s application. In the same motion, KGCFS sought to dismiss the appellant’s custody application, given the existence of the CCA. KGCFS apparently had filed no answer to the appellant’s application.
[17] The father filed an answer to the appellant’s application on August 23, 2018. He indicated that there was a CCA in place, that he hoped one day to be a primary caregiver for L.A.D., and that “[a]s I make progress overcoming my personal issues, I hope to spend more time with [L.A.D.] to strengthen our bond.”
[18] On September 14, 2018, the appellant stated in an affidavit that KGCFS had placed L.A.D. in her care and that she had also cared for other children placed with her by KGCFS. KGCFS had some concerns relating to her, but she had been working with them on a voluntary basis. The appellant further stated that she wanted to terminate the CCA. She understood that she would have to do so in writing. She did not do so because she was worried that if she terminated the CCA, KGCFS would remove L.A.D. from her care. She opposed KGCFS being added as a party to her application.
[19] KGCFS was added as a party to the application on November 8, 2018 by Christie J. in an order that was not put before the court but was summarized in the endorsement of the motion judge. That order was premised on KGCFS being a signatory to the CCA and Rule 7(3)(b)(ii) of the Family Law Rules, and an apparent holding that KGCFS should be a party to enable the court to decide all the issues in the case.
[20] Wikwemikong filed a notice of motion dated November 23, 2018, seeking to be added as a party to the appellant’s application and asking that the appellant’s CLRA application be dismissed. The entirety of that motion was before the motion judge on May 16, 2019, but no one attended for Wikwemikong on that date, and the appellant requested that Wikwemikong’s motion be dismissed.
[21] On May 16, 2019, KGCFS’s motion to dismiss the appellant’s CLRA application was argued before the motion judge. Well into argument of the motion, after counsel for KGCFS had made submissions, the appellant sought to have KGCFS noted in default for having failed to file an answer.
The decision of the motion judge
[22] In his ruling on May 16, 2019, the motion judge added Wikwemikong as a party to the proceeding and stayed the appellant’s CLRA application.
[23] Based on the reasoning of Christie J. in her order adding KGCFS as a party, with which he agreed, the motion judge added Wikwemikong as a party, “to enable the court to decide all issues in the case.”
[24] The motion judge then proceeded to consider various sections of the CYFSA relating to the protection of First Nations, Inuit and Metis children. He noted that it was the duty of the society to pursue plans of customary care and that a child protection proceeding was not a necessary precondition for such plans. He therefore reasoned generally that if a CCA was entered into, then it would be by agreement, and should be accorded deference as “a complete code for the resolution of child protection cases in appropriate circumstances.”
[25] The motion judge noted the ease with which this CCA could be terminated on written notice, and the provision for review of its terms by the parties. However, he went on to observe that the appellant chose not to use the termination notice because she was worried that KGCFS might take the child away from her. He noted the referrals that had been made concerning the appellant, and that KGCFS was working with her to address the concerns.
[26] The motion judge set out the appellant’s argument that, insofar as there was no outstanding protection proceeding before the court, s. 103 should not prevent the appellant’s application. KGCFS had responded that the CCA was a result of the proceeding that had been brought and that therefore s. 103 did apply, and that a stay should be entered “nunc pro tunc.”
[27] The motion judge reasoned that for the operation of s. 103, a proceeding need not be outstanding if it had led to the making of an “order” in the protection context. He held that it was apparent that the essence of s. 103 was to make clear that “once the child’s circumstances are occupied by the child welfare legislation, prima facie, other legal processes do not pertain.” The motion judge then read CCAs into s. 103 of the CYFSA as a valid reason for a stay of a custody application under the CLRA, as “to conclude otherwise would be to diminish the importance of customary care agreements”. To permit the custody application to continue would also invite the court to disregard the intent of the parties in setting up the CCA, which constituted a voluntary meeting of minds.
Discussion
[28] The motion judge stayed the appellant’s CLRA application for custody pursuant to s. 103 of the CYFSA. The decision to stay is subject to a correctness standard on appeal: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
[29] As in the court below, the appellant argues that CCAs such as the one in this case, which are not part of an ongoing proceeding or created by order of a court, do not fall within the ambit of s. 103 of the CYFSA. In the appellant’s submission, the motion judge erred by arbitrarily adding “Customary Care Agreements” to the terms of s. 103 and enforcing that addition by staying the appellant’s custody application under the CLRA.
[30] In order to assess the order made by the motion judge, it will be useful to consider the terms of s. 103 of the CYFSA and its purpose, and legislative intent in child welfare legislation.
The primacy of child welfare legislation and the purposive approach to statutory interpretation
[31] Section 103 of the CYFSA dictates the pre-eminence of child welfare legislation, where child welfare proceedings have begun or an order has been made in those proceedings, and a person seeks custody under the CLRA. Section 103 states:
EFFECT OF CUSTODY PROCEEDINGS – If, under this Part, a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Children’s Law Reform Act is stayed except by leave of the court in a proceeding under that Act.
[32] This section underscores the well-established principle that child protection legislation will take precedence over the jurisdiction granted to courts by other provincial legislation dealing with matters of custody: Fortowsky v. Roman Catholic Children’s Aid Society of Essex (County), [1960] O.J. No. 600 (C.A.), at para. 6; D.D. v. H.D., 2015 ONCA 409, at para. 57; C.G. v. Catholic Children’s Aid Society of Hamilton-Wentworth, 1998 CanLII 3391 (ON CA), [1998] O.J. No. 2546 (C.A.), at paras. 18-19. Section 103 protects the integrity of the child welfare placement by ensuring that no other court can substitute its decision for that of the child protection court: Children’s Aid Society of St. Thomas and Elgin County v. C.Z. and J.H., 2003 CanLII 63091 (ON CJ), [2003] O.J. No. 4177 (C.A.), at para. 14.
[33] For its operation, s. 103 requires the existence of child welfare proceedings or an order made during or at the end of those proceedings. CCAs do not find their way into s. 103, although they act as an alternative to child protection proceedings and serve as an expression of Indigenous community values in the sphere of child protection. If s. 103 deals with stays of parallel proceedings for custody under the CLRA when child protection proceedings are ongoing or where they have resulted in court orders, is there any reason or authority to preserve CCAs that have been voluntarily entered into by parties, including the Indigenous community of the child at issue?
[34] The purposive approach to statutory interpretation requires that the words of a statute be read contextually and “harmoniously with the scheme of the Act, the objectives of the Act, and the intention of Parliament”: Rizzo v. Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), [1998] S.C.J. No. 2, at para. 21. This statement aligns with the “Rule of liberal interpretation” of statutes found in s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F: “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”
[35] The Ontario Court of Appeal has determined that if a child welfare proceeding is undertaken in a way that fulfils the intention of child welfare legislation, it can forestall the operation of the CLRA by virtue of legislative intent. In PM. (R.) v. M. (S.), 1994 CanLII 6418 (ON CA), [1994] O.J. No. 2505 (C.A.), the court dismissed the appeal of grandparents whose application for custody of a child who was being placed for adoption pursuant to the provisions of the Child and Family Services Act had been dismissed. The appellants submitted that there must be a conflict between the child welfare statute and the CLRA to prevent their application for adoption from going forward. Osborne J.A. disagreed, and stated (at para. 23):
…Rather than search for a statutory conflict, I prefer to consider the provisions of the two statutes from the standpoint of what I think is a clear indication of legislative intent. Once the choice of adoption is made by persons entitled to make that choice, and where the route of adoption has been followed to the point of placement, I see no room for the operation of s. 21 of the C.L.R.A.
[36] Following this analysis, once a placement procedure in child welfare legislation has been carried to its logical conclusion, it ousts determination of custody by way of the CLRA. This is because the legislature intended that conclusive steps taken pursuant to child welfare legislation be preferred over custody applications under the CLRA. Or in the words of the motion judge in this case: “once the child’s circumstances are occupied by the child welfare legislation, prima facie, other legal processes do not pertain.”
[37] The question then becomes: did the legislature intend that CCAs be considered placements that further the purposes of child welfare legislation?
Legislative provisions in the CYFSA concerning First Nations, Inuit and Metis children
[38] In considering this question, it is necessary first to consider provisions in the CYFSA that relate to the protection of First Nations, Inuit and Metis children, and what those provisions show about the place of customary care in the scheme of the CYFSA. As noted by the motion judge, the CYFSA contains many provisions that underscore the importance of involvement and self-determination by First Nations, Inuit and Metis peoples and communities in providing child and family services that advance the cultural needs of their children and speak to their heritage, traditions, and community values.
[39] In s. 1(2) 6. of the CYFSA, one of the listed purposes of the legislation is stated to be:
First Nations, Inuit and Metis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nation, Inuit and Metis 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.
[40] Part V of the CYFSA deals with “Child Protection” and runs from s. 74 to s. 143. Section 74 provides guidance with respect to interpretation of the Part. In setting out legislative definitions of “the best interests of a child” in s. 74(3)(b), which are central to any undertaking pursuant to this Part of the CYFSA, the CYFSA states in strong terms that a person who is directed to consider a child’s best interests shall:
in the case of a First Nations, Inuk or Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community…
[41] In s. 80, the CYFSA sets out the primacy of plans of customary care in the legislative scheme, where First Nations, Inuit and Metis children are involved. This provision sits just prior to sections dealing with the commencement of protection proceedings and sets out the desirability of customary care in strong terms:
CUSTOMARY CARE – A society shall make all reasonable efforts to pursue a plan for customary care for a First Nations, Inuk or Metis child if the child,
(a) is in need of protection;
(b) cannot remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part or, where there is an order for the child’s custody that is enforceable in Ontario, of the person entitled to custody under the order; and
(c) is a member of or identifies with a band, or is a member of or identifies with a First Nation, Inuit or Metis community.
[42] In these sections of Part V of the CYFSA, the legislature has provided clear guidance that a society is to “make all reasonable efforts” to put in place a plan of customary care in priority to other options under the Part, where First Nations, Inuit or Metis children are involved. This option, like the other options under Part V, requires that the child in question be determined to be “in need of protection,” in this case by the child welfare society.
[43] As noted by the motion judge, s. 80 does not require that a proceeding have been commenced in a court before resort may be made to the development of a CCA. In such cases, the terms of any such agreement must be understood to govern the relationship among the parties in appropriate circumstances. Nothing in the provision requires a court to make a finding that a child is in need of protection. Rather, the wording of the provision allows that determination to be made by the society for the purpose of pursuing a CCA.
[44] From the provisions considered above, one can infer a clear intent on the part of the legislature that a CCA is to be considered a valid and preferred option in the case of an Indigenous child in need of protection, as in PM.(R.). But also available are views put forward in the legislature during consideration of the CYFSA. These views are important for providing a background to the legislation which further solidifies the intention of the legislature with respect to these provisions.
[45] At p. 2329 of No. 44 of the Official Reports of Debates (Hansard) of the Legislative Assembly of Ontario for February 22, 2017, in the presentation of the CYFSA, the Ontario Parliamentary Assistant to the Minister of Indigenous Relations and Reconciliation, spoke of the rationale behind the provisions with respect to First Nations, Inuit and Metis children:
This brings me to […] relationships with First Nations, Inuit and Métis peoples. The government is committed to supporting First Nations, Métis and Inuit children, youth and families through an acknowledgement of our government’s unique relationships with Indigenous peoples and through services that respect Indigenous cultures, heritage and traditions.
I want to reflect for a moment on what we have heard from many Indigenous children, youth, families and leaders. They have told us that Indigenous children are sometimes sent far away from home to other parts of the province, to big cities and to unfamiliar places. They have told us that the current system leaves families and friends at home worried and heartbroken, compounding trauma in communities that have, more often than not, already experienced tremendous amounts of grief because of this country’s history of residential schools. And the current legislation does not adequately reflect the unique relationship between the government and First Nations, Inuit and Métis peoples living in Ontario. […]
The proposed legislation acknowledges the unique relationship between Ontario and Indigenous peoples and references the United Nations Declaration on the Rights of Indigenous Peoples and Jordan’s Principle. It acknowledges that First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada with their own laws and distinct cultural, political and historical ties to Ontario.
The proposed legislation […] requires societies to make all reasonable efforts to pursue a plan for customary care for First Nations, Inuit and Métis children and youth in need of protection. As much and as often as possible, we will honour the traditions of Indigenous communities, including customary care, by supporting efforts to keep children close to home and all that is familiar.
We have listened to Indigenous partners in all parts of the province and understand that while there are many common issues, there are also cultural needs, as well as geographic needs, that must be met and recognized. We are committed to continuing the conversation and working with them on how to keep children safe and cared for, and I am confident that this legislation will steer us down a positive path.
[46] In introducing the legislation, the Parliamentary Assistant spoke of the importance of respect for Indigenous cultures, heritage and traditions, and a recognition that Indigenous children should not be taken from the control of their communities. She discussed the importance of Indigenous laws and the distinct cultural, political and historical ties of Indigenous peoples to Ontario, and the need to honour the traditions of Indigenous communities, including customary care, by supporting efforts to keep children close to home. The legislation represented a commitment to work with Indigenous communities to keep their children safe and cared for.
[47] It is apparent that the spirit that animates the CYFSA with respect to First Nations, Inuit and Metis children is a recognition that these communities are unique, have a special relationship with Ontario, and should be given the first opportunity to offer protection to their own children and families in line with their own community values, customs and heritage. To give effect to this sentiment, community-based child protection must be given priority to court-ordered options under the CYFSA that would see children taken from their communities and stripped of their heritage, traditions, and cultural identities.
[48] Section 80 encourages the use of CCAs towards this end and even establishes them as a preferred method of protection for Indigenous children in Part V of the CYFSA. The emphasis is on participation by the community to instill in its children community values and cultural identity. Section 80 is situated in Part V of the CYFSA and must be understood to be part of the legislature’s efforts to provide for the protection of children in Ontario. Its placement, just before that part of Part V that sets out “Commencing Child Care Proceedings,” is a clear signal that CCAs are to be attempted prior to the initiation of such proceedings, wherever possible.
[49] If CCAs are to be preferred even to child protection proceedings in the case of Indigenous children, they certainly must oust the operation of s. 21 of the CLRA in the appropriate case. Nothing would more fundamentally undercut the provisions of the CYFSA that relate to the protection of Indigenous children, or the principles enunciated in the legislature in that regard, than the ability of an individual to bring a custody application under the CLRA that could result in a court order that would collapse a CCA, such as that in this case. To do so would be to disregard the voluntary parental participation and Indigenous community input that defines a CCA.
[50] Accordingly, like the motion judge, in the circumstances of this case I see no room for the operation of s. 21 of the CLRA in the context of this Customary Care Agreement.
Giving effect to legislative intent
[51] The motion judge used s. 103 of the CYFSA to stay the appellant’s CLRA proceedings. The appellant asserts that the motion judge’s use of s. 103 represents legal error.
[52] I do not need to decide whether that is the case. If an appellate court agrees with the lower court’s conclusion but uses a different route to arrive at that destination, the lower court’s conclusion can still be maintained. “[T]he appeal lies from the order, not the reasons for the order”: Fanshawe College of Applied Arts and Technology v. AU Optronics Corp., 2016 ONCA 131, at para. 9; Scherer v. Scherer, 2002 CanLII 44920 (ON CA), [2002] O.J. No. 1661 (C.A.), at para. 5; Fantl v. Transamerica Life Canada, 2009 ONCA 377, at paras. 48-50. I agree with the motion judge that the appellant’s CLRA application should be stayed, but for different reasons than relied upon by the motion judge.
[53] In the circumstances of this case, s. 80 of the CYFSA has been followed to the point at which L.A.D. has been made the subject of a CCA which was to last potentially up to L.A.D.’s eighteenth birthday and of which the appellant, Wikwemikong, KGCFS, CAS, and the parents are voluntary signatories. The signatories are entitled to contribute to the making of life choices and decisions for L.A.D. in L.A.D.’s First Nations community. As I have considered above, PM.(R.) sets out a means of achieving the motion judge’s result by determining the intention of the legislature and the nature and extent of the child welfare steps that have been undertaken. It is apparent that the CCA under consideration fulfils legislative intentions and deserves the court’s protection. In such circumstances, it is unnecessary to attempt to resort to s. 103 of the CYFSA to determine that the appellant’s CLRA application should not proceed.
[54] Moreover, section 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) states: “A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.” A predecessor of this provision has been held to confer “a statutory right that had previously been considered inherent in the jurisdiction in the Court”: Empire-Universal Films v. Rank et al., 1947 CanLII 77 (ON SC), [1947] O.R. 775 (H.C.J.). It is noteworthy that the authority inherent in s. 106 is discretionary, in that a court “may” stay any proceeding.
[55] The discretion in s. 106 of the CJA is a broad one and the provision sets out no specific test. That said, it should be resorted to sparingly, in the clearest of cases: Hester v. Canada, [2008] O.J. No. 634 (Div. Ct.), at para. 15; Aldo Group Inc. v. Moneris Solutions Corp., 2013 ONCA 725, at para. 30.
[56] In the circumstances of the CCA in this case, for the reasons already set out, it would have been appropriate to exercise the court’s discretion to stay the CLRA application under the principle enunciated in the PM.(R.) decision or under s. 106 of the CJA. This would be the “clearest of cases” for the exercise of such a discretion. That is not to say that any and all CCAs will equally merit the protection of the court against CLRA applications.
[57] Here, a long-term Customary Care Agreement has been entered into that preserves the involvement of L.A.D.’s parents, community, KGCFS, and extended family in terms that echo ss. 1(2)6., 74(3)(b) and 80 of the CYFSA. All parties have contributions to make to the customary care of L.A.D., and the parents and L.A.D. are granted the possibility of a reconciliation at some point. The CCA is based on the voluntary participation of all parties, including the appellant. There are provisions that allow for regular review and discussion of aspects of the plan of care, to permit modification over time. Importantly, the appellant has it in her power to collapse the CCA by giving written notice of her intention to do so. That would permit a reconsideration of protection issues, if necessary, but could remove one barrier blocking the appellant’s ability to seek custody of L.A.D.
[58] However, in other circumstances, where issues arise over such things as: the voluntariness of participation by parties to a CCA; the improper exclusion of necessary parties; review procedures; the right to terminate the CCA; the desirability of a longer-term placement; or whether the CCA is genuinely intended to foster the intention of the legislature or has been put in place for some collateral and impermissible purpose; or other such issues, a court might well not exercise its discretion to stay custody proceedings that have been brought under the CLRA: see, e.g., M.L. v. B.T. and Dilico Anishinabek Family Care, [2020] O.J. No. 989 (C.J.).
Conclusions
[59] For the reasons discussed above, the motion judge committed no error in imposing a stay of proceedings on the appellant’s CLRA application.
[60] The appellant has also argued that the motion judge was in error in granting party status to Wikwemikong and in not noting KGCFS in default. Given that in s. 106 of the CJA, any person, “whether or not a party”, could move to stay the appellant’s CLRA proceeding, the appellant has suffered no prejudice from these rulings by the motion judge. In any event, given the status of Wikwemikong and KGCFS as signatories to the CCA, it was appropriate that they be parties to the appellant’s application. Finally, the timing of the appellant’s request to note KGCFS in default strongly militated against that relief.
[61] The appeal is dismissed.
The Honourable Mr. Justice A.D. Kurke
Date: October 14, 2020
FILE NO.: D18-0027/AP
DATE: 2020-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.E.O.
Appellant
– and –
M.D.
– and –
T.D.M.T.
– and –
Kina Gbezhgomi Child and Family Services
– and –
Wikwemikong Unceded Territory
Respondents
JUDGMENT
A.D. Kurke J.
PUBLICATION RESTRICTION NOTICE
Pursuant to subsections 87(8) and 87(9) of the Child, Youth and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
Released: October 14, 2020
PUBLICATION RESTRICTION NOTICE
Pursuant to subsections 87(8) and 87(9) of the Child, Youth and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.
afdfa