Children's Aid Society of London and Middlesex v. T.E. et al.
COURT FILE NO.: FC1082/20-1
DATE: 2022/08/05
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant
AND:
T.E.
J.G.
L.D. (Oneida Nation of the Thames), Respondents
BEFORE: HENDERSON J.
COUNSEL: Randolph C. Hammond for the Society T.E. Christina Ninham for J.G. Nicole Hill-Dolson for L.D. (Oneida Nation of the Thames) Rod Catford for Non-party T.M.
HEARD: April 22, 2022
ENDORSEMENT
[1] There are two motions before the court:
the father seeks an order dismissing the child protection application issued November 20, 2020, amended January 2021, as withdrawn
a non-party TM seeks an order adding her as a party to the said child protection application.
[2] The father argues that there is a customary care agreement (“CCA”) signed by several parties including Oneida Nation of the Thames (“Oneida”) and The Children’s Aid Society of London Middlesex (the “Society) and therefore the application should be dismissed as withdrawn.
[3] TM opposes the father’s motion for dismissal and argues she meets the criteria for adding a necessary party.
[4] The subject child, ZEG, was born […], 2020. Oneida and the Society were involved with the parents, who from the birth of the child, presented a variety of concerns: adult conflict, homelessness, drug and alcohol use and mental health issues. In the child’s early days, the parents received assistance from various family members but for a variety of reasons the child could not settle in any single home.
[5] For the purposes of these motions the significant players are: the parents TE (mother) and JG (father), TM, a former foster parent, OE (also known as OT), a maternal aunt, Oneida and the Society.
[6] The mother’s heritage is Chippewa First Nation of the Thames but currently does not have status. However, she was traditionally adopted through the Oneida long house. The father is Oneida with status. There is some doubt as to ZEG’s eligibility for status. On November 18, 2021, the father indicated he was registering ZEG but was awaiting her birth certificate. Regardless of status, it is uncontested that the child through her parents identifies as First Nation and her band is Oneida. TM is a member of the Serpent River First Nation which is an Anishinaabe First Nation. She has family members who are members of Oneida. OE’s First Nation status is unclear but being the mother’s sister, she is presumably of the same heritage.
[7] On January 29, 2021, Tobin J. placed the children in the joint care of the parents on the condition the child resides exclusively with one KD.
[8] Despite the court order, the parents relocated the child to TM who is a foster parent through Eagle’s Nest and is known to the parents.
[9] In order to maintain the placement legally, on April 14, 2022, the child was returned to the care and custody of the Society but with the child remaining in the care of TM.
[10] At a meeting on May 5, 2021, all significant parties agreed that the child would be placed in the temporary care and custody of TM. This was confirmed by order of Sah J. The child remained with TM until December 24, 2021.
[11] Two incidents led to the two motions before the court. First, on November 12, 2021, ZE-G became strangled in a blind cord while TM was in the shower. The child was rushed to the hospital and since has made a full recovery.
[12] The matter was investigated. No charges were laid and on November 17, 2021, the Society returned the child to TM’s care.
[13] Not surprisingly, the parents were upset, and accusations and counter accusations followed that appeared on social media. This spilled over into the second incident, arguments regarding Christmas visiting arrangements. Ultimately, the Society consented to the child being placed on an extended stay with OE who supervised the parents in anticipation of this motion.
[14] On February 25, 2022, Price J. varied the order of Sah J. to maintain the child’s placement with OE and granted overnight access to TM pending arguments on the present motions.
[15] In the meantime, Oneida put forward a CCA that was last signed February 23, 2022. The signatories were the parents, OE, Oneida, and the Society. It contemplates a three-month interim agreement placing the child in the care of OE, with parenting time a minimum of six hours per week. It also contains provisions regarding Review and Dispute Resolution and Termination and regarding potential further court involvement.
Position of The Parties
[16] The Society has taken a perplexingly ambivalent position by supporting both motions. They have inherently inconsistent outcomes: if I hold for the father, TM’s motion is moot; if I hold for TM, the father’s motion is moot.
[17] I find this most unsatisfactory. All I know is that the Society signed the CCA and beyond that, I am left with some doubt whether it has met its statutory obligations under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”).
[18] To the extent the mother, OE and Oneida signed the CCA, they support the father’s motion.
[19] Oneida makes it clear that there was a loss of confidence after the November incident in TM’s ability to provide safe and secure care. It was also dismayed about comments TM posted on social media following the incident (the Society shared similar concerns). These postings led to the breakdown in overall communications over Christmas visiting.
[20] Oneida agrees with the father that the best way to protect the child’s cultural roots and ensure reunification with the parents was with the CCA.
[21] The father characterizes his motion as an exercise of Oneida’s inherent jurisdiction over one of its own children. This authority arises from its exercise since time immemorial, despite interference by the colonial state.
[22] He relies on the United Nations Declaration of The Rights of Indigenous People which has been adopted by the Canadian government. In addition, he cites An Act respecting First Nations, Innuit and Metis Children, Youth and Families, SC 2019, c.24 (“the Federal Act”) which states within its preamble, among other recitals, a commitment by the Government of Canada to the above UN Declaration.
[23] He believes the current placement with OE will facilitate a reconciliation with his daughter for a number of stated reasons including closer proximity.
[24] Finally, the father opposes TM’s motions for several other reasons including the fact that all the parties to the current action have signed the CCA and that if TM wants access there is nothing precluding her in the CCA from commencing an application pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12.
The Law
The Father’s Motion
[25] The father relies on the existence of the CCA to support his options.
[26] The concept of customary care is defined in s.2(1) of the CYFSA as “the care and supervision of a First Nations, Inuk, or Metis child by person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Metis community.”
[27] S.80 of the CYFSA requires a Society to “make all reasonable efforts” to pursue a plan for customary care of 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 Nations, Inuit or Metis community.
[28] The Court of Appeal spoke about customary care in M.L. v. B.T. 2022 ONCA 240, where it made several observations:
“Customary care is the preferred approach for Indigenous children” (para. 35).
“The practice of customary care arose as an alternative to court related processes and court ordered care, so that First Nation children and youth can be both protected from health and safety concerns while remaining strongly connected to their culture and communities” (para 36).
“Customary care agreements encourage the parties to resolve issues concerning a child’s care in a culturally sensitive and appropriate manner by agreement rather than child protection proceedings . . . Although the tenets of customary care differ from nation to nation, at its core the concept envisages a child’s care as a collective responsibility” (para. 37).
“Like any agreement, customary care agreements require informed and voluntary consent: see s.21 of the CYFSA” (para. 38).
“Customary care does not operate outside judicial oversight (and) . . . the courts may become engaged when there is evidence of bad faith or improper procedure” (para. 39).
“Under the CYFSA, the court plays an essential role in receiving the decisions of the child welfare agencies acting on their initial determination that a child is in need of protection. Judicial oversight ensures the child welfare agency acts within its authorized role, that statutory timelines are met, and that procedural protections exist for all parties, especially the parents who often vulnerable” (para. 40).
TM’s Motion
[29] Rule 7(5) of the Family Law Rules provides that “the Court may order that any person who should be a party shall be added as a party and may give directions for service on that person.”
[30] The case of CAS of London and Middlesex v. S.H. 2002 CanLII 46218 (ONSC), a decision of G. Campbell, J. is the leading case interpretating r. 7(5) in the context of child protection proceedings. His interpretation has since been approved by the Court of Appeal in A.M. v. Prescott-Russell, 2017 ONCA 601. G. Campbell, J. asked four questions:
a. Whether the addition of the party is in the best interests of the child
b. Whether the addition of the party will delay or prolong the proceedings
c. Whether the addition of the party is necessary to determine the issues
d. Is the person capable of putting forward a plan that is in the child’s best interests.
Discussion
[31] Before proceeding further, I make the following findings:
The CCA is a valid agreement signed by all participating parties. Both parents seek the arrangements, seeing it as the best way to have the child returned to their care. The motion to accept the CCA is brought by the father who is represented.
I disagree with TM’s submission “that the emergence of the current Customary Care Agreement itself was not a careful incrementally developed proposition but rather a reactionary plan to thwart (TM).” I agree Oneida had rejected a CCA a year earlier believing the child ineligible, but this CCA was not a slap dash effort. A read of the document discloses a well considered document that addressed the parties’ duties. Most importantly it addresses in detail relevant concerns. The fact that it appeared to thwart TM is an incidental effect and reflects more from the loss of confidence of both Oneida and the parents in TM’s capabilities following the November incident.
With respect to the November incident, there is no evidence before the court that would indicate TM was in any way negligent. Indeed, the Society returned the child to her care a few days later. While the Society has no overall concerns with TM, it shared concerns with Oneida and the parents regarding postings by TM after the incident.
I do not agree with TM’s submissions that OE is part of the instability problem. According to the affidavit of Ms. Luxton, a Society worker, sworn March 10, 2022, the Society has continued to assess OE’s role throughout these proceedings. She stepped forward shortly after the birth of the child to care for her while the parents underwent mental health assessments. That effort ended two weeks later due to space constraints at the time. Further arrangements were made in July 2021, for the child to stay with OE while TM was away. This did not occur as the mother and OE agreed it was best to leave the child with TM. In September, OE again indicated to the Society that she was willing to put forward a plan if things did not work out. In the meantime, she wanted to arrange access. At a family meeting in October, OE again offered to put a plan forward to care for the child if needed. A worker pointed out that she had had the child a couple of times before and it did not workout. Despite that statement, arrangements were made with OE to supervise visits with the parents. OE said she would be agreeable to supervising once a week and she gave permission for internal Society checks.
[32] All of the evidence would indicate that far from being part of the instability problem, she has been consistently ready, willing and able to offer assistance and put forward a plan to care for the child if necessary. The Society has no concerns about her and has been continually assessing her role.
[33] I grant the father’s motion and dismiss TM’s motion. I do so for the following reasons:
[34] First, in my view, a CCA must be given considerable weight, though subject to judicial review. The Court of Appeal in M.L. v. B.T., supra, at paragraph 35 has observed that “customary care is the preferred approach for Indigenous children.”
[35] Presumptive confidence must be placed in a CCA that it meets the child’s best interests if the legislative statements contained in the U.N. Declaration, the Federal Act recitals and in the CYFSA and specifically s.1(2)6 are to mean anything. S.1(2)6 reads:
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.
[36] Further support of this view is found in the mandatory language of s.80 of the CYFSA, that a Society must “make all reasonable efforts to pursue a plea of customary care for a First Nations, Inuit or Metis child.”
[37] Finally, in M.L. v. B.T., supra the Court of Appeal focussed judicial oversight primarily on the technical aspects of the CCA, that is, whether the agreement was made in good faith, did all the parties sign and of those that did sign, was it voluntarily.
[38] As I have found there are no technical defects as contemplated by the Court of Appeal with this CCA. The evidence shows that the child is doing well in the care of OE and the Society has no concerns. No issues have been raised in respect of a child welfare history or criminal record for OE.
[39] The CCA is detailed and speaks to the child protection concerns and in listing the “duties” of the parents, the caregivers, Oneida and the Society it is clear on the expectations of all the parties. Interestingly, visiting time is not characterized as an entitlement to be granted by an authority but as one of the parents’ duties. The onus is on the parents to exercise it. The worker’s affidavit at the end of March indicated visiting had in fact been erratic by the parents.
[40] Finally, I am satisfied that both Oneida and the Society under these duties will maintain oversight and provide support to OE.
[41] The second reason focusses on TM’s best interests argument and specifically that given the time the child spent in her care, it is in the child’s best interests that she have access to the child.
[42] As TM’s draft answer and plan of care were not filed, I do not know what her intended plan is. However, on the basis of the submissions made it would appear that she is seeking access at least. I will work on the assumption that she would also be prepared to provide permanent care to the child.
[43] TM argues that she cared for the child for eight months during which she developed a close and loving relationship. The court, she says, should have all positive plans before it determines what is in the child’s best interests.
[44] There are several reasons why I do not accept this argument.
[45] First, although TM had care of the child for eight months, up to December 24, 2021, at no time did TM serve and file an Answer and Plan of Care. The application was commenced on November 20, 2020, and although the child has not been technically in care for the purposes of s.122 of the CYFSA she is nearly two and only now experiencing some semblance of permanency which is long overdue for a child her age.
[46] To add TM at this time would add considerable time to the proceedings. It would change what is now a resolved proceeding into a protracted conflicted proceeding. Oneida and the parents have made it clear they oppose access, let alone care.
[47] In view of the back log of cases in this jurisdiction it would be at least 18 months before trial. I find that delay not to be in the child’s best interests.
[48] To the extent TM wants relief there is nothing precluding her from commencing an action pursuant to the Children’s Law Reform Act, joining the current parties as respondents.
[49] An order shall issue dismissing the child protection application issued November 20, 2022, and amended January 29, 2021, as withdrawn, and dismissing TM’s motion.
[50] There shall be no order as to costs.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: August 5, 2022