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Family - Child Protection
MORE CASES
Part 2
. Children’s Aid Society of Ottawa v. Attorney General of Ontario
In Children’s Aid Society of Ottawa v. Attorney General of Ontario (Div Court, 2023) the Divisional Court considered a Crown appeal regarding a child protection criminal production order (a Wagg order):[1] The Attorney General of Ontario (“AG”) appeals the order of Shelston J. made December 22, 2022. The order directed the AG to produce the entire Crown brief from an ongoing criminal prosecution against the father, DF, in the pending child protection case.
[2] An earlier order of October 26 required the Ottawa Police Service to produce all documents in its possession or control that involve, inter alia, DF. It followed a standard format for such orders (commonly referred to as a Wagg order[1]), containing a provision that affords “the Attorney General, Crown Law – Criminal (Wagg Unit)” an opportunity to review the information and documentation in the Crown Brief to determine what it is willing to produce or not produce. The order reserves to the Children’s Aid Society of Ottawa (“the Society”) the right to then bring the matter back to the court for a determination of whether the Crown is bound to produce documents it objects to producing.
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[8] Although the consent resolution is dispositive of the appeal, we wish to make certain observations about the process that culminated in this appeal, and to voice our views on the process.
[9] In child protection cases, particularly when the application is for extended Society care, a disclosure process that takes six months or more to resolve is unacceptable. That is particularly the case when the Wagg process will delay a child protection trial.
[10] A Children’s Aid Society or a parent should decide at an early stage whether to seek a Wagg Order. There are acceptable reasons not to do so prematurely but there ought to be an explanation for any delay.
[11] A delay of 24 weeks for vetting by the Wagg Unit is too long for child protection cases. Those cases need to be prioritized. Moreover, the vetting process needs to identify a particular reason for withholding or redacting a document. Completion of the criminal process is not always sufficient reason, in and of itself, to delay disclosure. Generic reasons do not allow a motion judge to properly assess the appropriate disclosure and will inevitably result in the kind of broad disclosure that was ordered in this case. . Children’s Aid Society of London and Middlesex v. T.E.
In Children’s Aid Society of London and Middlesex v. T.E. (Ont CA, 2023) the Court of Appeal extensively considers party status in child protection proceedings:1. Did the motion judge err in refusing to grant party status to the appellant?
[28] Party status in child protection proceedings can arise in one of two ways: (i) pursuant to r. 7(5) of the Family Law Rules; or (ii) by way of provincial or federal statutes, which both define party status. The Family Law Rules provide a discretionary approach. The statutes are not discretionary: if a person is a “parent”, as defined by either statute, the court has no jurisdiction to find otherwise. (See Catholic Children’s Aid Society of Toronto v. D.L., 2014 ONCJ 587, 51 R.F.L. (7th) 251, at para. 21.)
[29] The motion judge looked only to the discretionary pathway to party status under the Rules. He did not address the provincial and federal legislation.
[30] The provincial legislation, the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, (the “CYFSA”) sets out the criteria for party status in a child protection application. Section 79 (1) of the CYFSA states:The following are parties to a proceeding under this Part:
1. The applicant.
2. The society having jurisdiction in the matter.
3. The child’s parent.
4. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities. [Emphasis added.] [31] Section 74 (1) of the CYFSA defines “parent” as follows:“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:
1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children’s Law Reform Act.
2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7 (2) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.
3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.
4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.
5. An individual who has lawful custody of the child.
6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.
7. An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.
8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children’s Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force. [Emphasis added.] [32] The federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, s. 13 (the “Federal Act”) provides:In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child,
(a) the child’s parent and the care provider have the right to make representations and to have party status; and
(b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations. [Emphasis added.] [33] “Care provider” is defined, in s. 1 of the Act, as “a person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs”.
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Decision on party status
[40] Section 74(1) of the CYFSA provides that a “parent” includes: (i) an individual who has lawful custody of the child; and (ii) an individual who has a right of access to the child. At the time of her motion for party status, the appellant qualified under both criteria. She had an order for temporary custody, as well as an order for access.
[41] While the Act does not expressly include kin caregivers as parents, s. 37(1) specifically excludes only foster parents. Kinship service occurs when a child or youth is placed in the home of an approved kin but the child does not have “in-care” status.[4] Unlike foster parents, kin caregivers are generally known to the biological family. It is considered less intrusive for children because they are not being placed with strangers. “By granting custody to the kin care providers, they become the ‘custodial parents’ for the child”: SMCYFS v. D.D., 2021 ONSC 1994, at paras. 41 and 47.
[42] Kin caregivers are not foster parents. “Foster parent” is defined in the CYFSA:“foster care” means the provision of residential care to a child, by and in the home of a person who,
receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and
is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),
and “foster home” and “foster parent” have corresponding meanings; (“soins fournis par une famille d’accueil”, “famille d’accueil”, “parent de famille d’accueil”) [Emphasis added] [43] The defining feature of foster parent is that they receive compensation for caring for the child. In Windsor-Essex Children’s Aid Society v. D.L.H., 2015 ONCJ 310, Tobin J. at para. 21 said: “A foster parent, by definition, is one who receives compensation for caring for a child.” Except for the 12 days in January 2021 when the child was with the appellant in foster care, she neither received nor requested any financial assistance from the Society for the child’s care.
[44] Although the motion judge referred to the appellant as a foster parent, she was a kin caregiver, not a foster parent.
[45] As this court noted in Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114:... the principle of statutory interpretation known as the presumption of implied exclusion (sometimes referred to as expressio unius est exclusio alterius) precludes such an approach. The principle of implied exclusion presumes that "to express one thing is to exclude another" and accordingly, when a statutory provision refers to a particular thing, but is silent with respect to other comparable things, that silence reflects an intention to exclude the unmentioned items … In other words, "legislative exclusion can be implied when an express reference is expected but absent". [Citations omitted.] [46] Since the statute is silent with respect to “other comparable things”, in this instance, foster parents, and only foster parents, are excluded from the definition of “parent”, and therefore from party status, under the CYFSA. The appellant is not a foster parent. She is therefore not excluded. As for the suggestion that status as a “parent” can only be determined at the start of the application or on status review, nothing in the statute suggests a time restriction of any kind.
[47] The concern expressed in J.S. that “there could end up being a situation where there are multiple “parents”, including even persons who are no longer providing temporary care” is in my view misplaced.
[48] The decision in J.S. conflicts with another decision of the Superior Court[5] and requires the court to ignore the clear words of the statute. The definition of “parent” in s. 74 (1) of the CYFSA is in the present tense – it references a person who has lawful custody, as well as one who has lawful access.
[49] The CYFSA does not call for retrospective consideration to include persons who are no longer providing care. Individuals entitled to party status have custody and/or access at the time of the motion to be added as a party. Consequently, no “floodgate” issue arises.
[50] Moreover, the CYFSA must always be considered in the context of its paramount purpose: to promote the best interests, protection and well-being of children: s.1(1). Granting the kin caregiver party status provides the court with current, relevant information about the child and their care.
[51] In denying the appellant party status, the motion judge erred in considering only discretionary party status under rule 7(5) of the Family Law Rules and not the statutory entitlement to party status under the CYFSA.
[52] The appellant, who, at the time of the motion, had “lawful custody of the child”, an order for access to the child, and was not a “foster parent”, met the definition of “parent” in s.74(1) of the CYFSA and so had a statutory entitlement to party status pursuant to s.79(1). Although the motion judge commented that the appellant did not file a plan of care, she did file Form 35.1 under the Family Law Rules indicating her plan of care for the child and included a vulnerable sector check.
[53] I have concluded that the appellant was entitled to party status, pursuant to the CYFSA. It is, therefore, not necessary to address the respondents’ submissions that for the appellant to qualify as a “care provider” under the Federal Act, she must be a member of the same band. . Children’s Aid Society of London and Middlesex v. T.E.
In Children’s Aid Society of London and Middlesex v. T.E. (Ont CA, 2023) the Court of Appeal considered the child protection regime involving indigenous children, including relevant provisions of the federal "First Nations, Inuit and Métis children, youth and families (An Act respecting)":[32] The federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, s. 13 (the “Federal Act”) provides:In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child,
(a) the child’s parent and the care provider have the right to make representations and to have party status; and
(b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations. [Emphasis added.] [33] “Care provider” is defined, in s. 1 of the Act, as “a person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs”.
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[56] The motion judge allowed the father’s motion to withdraw the Society’s protection application. This was procedurally flawed, as only the Society is in a position to withdraw its own application. That said, it is appropriate to decide this issue on the merits.
[57] The motion judge based the decision to dismiss the proceedings on the existence of the CCA. To understand the significance of the CCA, and the positions of the parties, it is necessary to review the concepts which underly a customary care agreement.
[58] Customary care is defined by legislation. Customary care agreements are not.
[59] Section 2 (1) of the CYFSA provides that “customary care” means “the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community”.
[60] As this court confirmed in Dilico, at para. 35, customary care is the preferred approach for a First Nations, Inuk or Métis child in care. This is consistent with federal and provincial legislation, as well as the principles housed in the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3.
[61] Section 80 of the CYFSA directs Societies to make all reasonable efforts to develop a plan for customary care for a First Nations, Inuk or Métis child in need of protection.
[62] Customary care agreements are the agreements that implement the plan for customary care. They are agreements between the parties, a representative of the First Nation, and the Society that set out a plan for the child’s care, in accordance with the objectives of the legislation, rather than through the usual child protection proceedings. Customary care agreements represent a cooperative and community-based approach to the wellbeing of First Nations, Inuit and Métis children in care.
[63] At issue is whether, and to what extent, customary care agreements are subject to court supervision. The appellant says that they are. The respondents, on the other hand, submit that the courts have limited, if any, supervisory role because Oneida has inherent jurisdiction to care for their own children.
[64] Thus, the parties fundamentally differ as to the nature and effect of customary care agreements generally and, specifically, the CCA in this case.
[65] The appellant submits that customary care agreements are an invention designed to circumvent the provisions of the CYFSA and are “now being used to justify where a child resides outside the purview of the courts”. Consequently, issues such as mandatory timelines and a careful analysis of the best interests of the child are completely avoided. The appellant submits that customary care and customary care agreements have been conflated and that the agreements are being used to give the relevant band the unilateral authority to decide where, and with whom, the child resides, outside of the purview of the courts and the necessary best interests analysis.
[66] The appellant says that, if Oneida seeks to exercise inherent jurisdiction, they need to follow the steps necessary to implement self-government, as set out in s. 20 of the Federal Act:20 (1) If an Indigenous group, community or people intends to exercise its legislative authority in relation to child and family services, an Indigenous governing body acting on behalf of that Indigenous group, community or people may give notice of that intention to the Minister and the government of each province in which the Indigenous group, community or people is located.
Coordination agreement
(2) The Indigenous governing body may also request that the Minister and the government of each of those provinces enter into a coordination agreement with the Indigenous governing body in relation to the exercise of the legislative authority, respecting, among other things,
(a) the provision of emergency services to ensure the safety, security and well-being of Indigenous children;
(b) support measures to enable Indigenous children to exercise their rights effectively;
(c) fiscal arrangements, relating to the provision of child and family services by the Indigenous governing body, that are sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities and to support the capacity of the Indigenous group, community or people to exercise the legislative authority effectively; and
(d) any other coordination measure related to the effective exercise of the legislative authority. [67] Absent these steps, and those that follow in ss. 21-24, the appellant submits that the community will be left without the rule of law and, therefore, the respondents should be precluded from claiming sole authority over children subject to customary care agreements.
[68] The respondents submit that customary care agreements reflect the inherent right of First Nations to self-government and must be viewed through the lens of the history of residential schools and the need for reconciliation. The agreements must be respected because First Nations must make decisions regarding the care of their own children.
[69] The respondents go further to say that they, not the courts, have jurisdiction over their children. They rely on provincial and federal legislation.
[70] As per s. 1(2) of the CYFSA, one of the purposes of Act is as follows: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. [71] Similarly, s. 18 of the Federal Act provides:(1) The inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.
(2) For greater certainty and for the purposes of subsection (1), the authority to administer and enforce laws includes the authority to provide for dispute resolution mechanisms. [72] The respondents submit that parties to a customary care agreement have full authority over the care of the child and the court has a minimal supervisory role. Based on these principles, the motion judge was correct to dismiss the proceedings based on the CCA. . J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal considered the evidentiary weight to be given to a child's wishes:Did the motion judge err by giving significant weight to the Voice of the Child Report and in finding that the children’s views were independently held?
[32] It is well settled that when determining how much weight to give a child’s wishes, a court is to consider: 1) whether the parents are able to provide adequate care; 2) how clear and unambivalent the wishes are; 3) how informed the expression is; 4) the age of the child; 5) the child’s maturity level; 6) the strength of the wish; 7) how long they have expressed their preference; 8) the practicalities of the situation; 9) parental influence; 10) overall context; and 11) the circumstances of the preference from the child’s point of view: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 42.
[33] While the motion judge found that the children’s views were “strongly held and independently formulated” – and while he noted the children’s ages, the fact they lived with the respondent, and that both parties were good parents – he ignores some rather salient aspects of the report, such as the 12-year-old child indicating to the social worker that her “mother had advised that the [vaccine] is experimental” and had provided her with “research from scientists”, and that the 10-year-old said to the social worker that “in every case the vaccine had been tested on animals the animals had died”, that the vaccine “was just the test one and he did not want the test one”, and that his mother had told him he could not be vaccinated without her permission. In other words, the motion judge failed to consider how informed the expression was and, notwithstanding a conclusory finding that the children’s views were “strongly held and independently formulated”, he failed to even acknowledge, let alone factor into his analysis, the respondent’s obvious influence.
[34] Guidance on how to properly treat a child’s views and preferences can be found in K.K. v. M.M., 2021 ONSC 3975. In that case, the court held, at paras. 748-749, that, while the OCL indicated that the 11-year-old child had not been “coached”, they were simply repeating what a parent had told them, meaning their views were not independently formed. Accordingly, the child’s views were given no weight.
[35] The motion judge appears to have made no effort to understand the children’s concerns about the vaccine. In the circumstances of this case, it was incumbent on him to explore this further and to ensure that the children had good and complete information about the vaccine, before drawing a conclusion about their independence.
[36] In the end, the motion judge’s finding that the children reached their own conclusions – free from the respondent’s influence – was not supported by any evidence. In fact, the opposite is true. As such, his decision to give the children’s views any weight was an error. . Children's Aid Society of Toronto v. J.G.
In Children's Aid Society of Toronto v. J.G. (Ont CA, 2020) the Court of Appeal extensively reviewed changes to children's aid society law brought about by the passage of the Child, Youth and Family Services Act (CYFSA), replacing the Child and Family Services Act (CFSA) [paras 15-66].
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