



WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence
    of the media representative or representatives or the publication of the
    report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)
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
    childs parent or foster parent or a member of the childs family.

45(9)
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.




COURT OF APPEAL FOR ONTARIO

CITATION: C.M. v. Children's Aid Society of the Regional
    Municipality of Waterloo, 2015 ONCA 612

DATE: 20150914

DOCKET: C60343

Feldman, Simmons and Miller JJ.A.

BETWEEN

C.M. and B.J.V.

Appellants (Appellants)

and

The Childrens Aid Society of the Regional
    Municipality of Waterloo

Respondent (Respondent)

Gloria E. Ichim, for the appellants

Jeffrey W. Boich, for the respondent

Heard: August 24, 2015

On appeal from the order of Justice J.W. Sloan of the Ontario
    Superior Court of Justice, dated March 25, 2015, with reasons reported at 2015
    ONSC 1942, [2015] W.D.F.L. 3233, dismissing an appeal from the order of Justice
    P. Hardman of the Ontario Court of Justice dated November 28, 2013.

By the
    Court:

A.

Introduction

[1]

On November 28, 2013, following a trial that began in August 2012  and
    based on a protection application filed in early September 2010  the appellants
    two children were found in need of protection. In all the circumstances, the trial
    judge ordered that the children be designated Crown wards without access.

[2]

On March 25, 2015, a Superior Court appeal judge dismissed the
    appellants appeal from that order.

[3]

On appeal to this court, the appellants ask that the Crown wardship order
    be varied to provide them with access to their children.

B.

iSSUES AND dISCUSSION

[4]

The appellants raise three issues on appeal.

ISSUE 1: Did
    the trial judge err in determining the Indian or native status of the children?

[5]

First, the appellants argue that the trial judge erred in law in failing
    to identify the appellant mother as Indian or native. They submit that identifying
    her as such would have triggered certain special provisions of the
Child
    and Family Services Act
, R.S.O. 1990, c. C.11 (the CFSA) relating to
    Indian and native children.

[6]

In the alternative, the appellants argue that the trial judge erred in
    failing to apply the principles from
R. v. Gladue
, [1999] 1 S.C.R. 688,

to
    the circumstances of this case.

[7]

We do not accept these arguments. As a starting point, the appellants
    did not raise these issues at trial. In any event, neither the mother nor the
    children fall within the definition of Indian or native person under the CFSA. Further,
    in the face of the statutory definitions,
Gladue
principles do not
    assist in determining whether the children are Indian or native persons. Finally,
    we are not persuaded that
Gladue
principles affect the determination
    of whether an access order would be appropriate in this case.

[8]

Under s. 47(2)(c) of the CFSA, the court hearing a protection
    application is required to determine [a]s soon as practicable, and in any
    event before determining whether a child is in need of protection  whether the
    child is an Indian or a native person and, if so, the childs band or native
    community.

[9]

Indian and native person are defined terms in the CFSA. Section 3
    provides that Indian has the same meaning as in the
Indian Act
(Canada) and that native person means a person who is a member of a native
    community but is not a member of a band, and native child has a corresponding
    meaning. Section 209 of the CFSA permits the Minister to designate a
    community, with the consent of its representatives, as a native community for
    the purposes of this Act.

[10]

Although
    represented by counsel, at trial the appellants did not advance any argument
    that either the mother or the children fell within the definition of Indian or
    native person under the CFSA. Instead, in response to the required inquiry from
    the trial judge, the appellants counsel confirmed that the information in the
    Societys application concerning status was correct. In relation to both
    children, the Societys application stated no Indian status.
[1]

[11]

Further,
    while the mother testified at trial that she is part native, she provided no
    additional evidence about her aboriginal heritage or about any connection with
    a native community.
[2]


[12]

In
    these circumstances, the trial judge made no error in failing to identify the
    mother or children as Indian or as native persons.

[13]

On
    appeal to the Superior Court, the appellant mother filed an affidavit indicating
    that her father is Ojibway. She does not claim to be a status Indian within the
    meaning of the
Indian Act
, R.S.C. 1985, c. I-5. Rather, she argues
    that the definition of Indian under the
Indian Act
has been extended
    by case law and that
Gladue
extends the meaning of native to include
    persons self-identifying as native.

[14]

However,
    contrary to the appellants submissions,
Daniels v. Canada (Minister of Indian
    Affairs and Northern Development)
, 2014 FCA 101, 371 D.L.R. (4th) 725,
    does not stand for the proposition that non-status Indians are included as
    Indians within the meaning of s. 91(24) of the
Constitution Act, 1867
.
    Moreover,
Gladue
was decided under the
Criminal Code
and does
    not alter the statutory definitions set out in the CFSA. In any event, we note
    that the relevant inquiry under the CFSA is the childrens status, not the
    mothers status. The fact that the mother may self-identify as native does not
    determine her childrens status.

[15]

Finally,
    s. 59 (2.1) of the CFSA provides that [a] court shall not make  an access
    order  with respect to a Crown ward unless the court is satisfied that, (a)
    the relationship between the person and the child is beneficial and meaningful
    to the child; and (b) the ordered access will not impair the childs future
    opportunities for adoption.

[16]

At
    the time the trial judges decision was delivered, the children had been in
    care for about three years and three months. When apprehended, the youngest
    child was less than two years old. The trial judge declined to make an order
    for access for two reasons. First, she was not satisfied that a relationship
    existed between the appellants and their children that was beneficial or
    meaningful to the children. Second, because no adoption plan had by then been
    put forward, she was unable to determine whether access would impair the
    childrens future opportunities for adoption.

[17]

As
    of the date of the appeal to the Superior Court, the children had not had
    access with the appellants for more than a year and there was evidence that
    neither child had asked for contact with the appellants since the last visit.
    Moreover, following an inquiry directed by the court, the proposed adoptive
    parents (the childrens foster parents since being taken into care) wrote a
    letter to the Societys counsel indicating they were unwilling to meet with
    counsel or the appellants and that any court ordered openness or access would
    jeopardize the stability of the placement.

[18]

Under
    these circumstances, an access order was not available under the CFSA  and
Gladue
principles did not in any way assist in making that determination.

ISSUE 2:  Did
    the trial judge err by drawing negative inferences based on the appellant
    mothers flat affect?

[19]

The
    second issue raised by the appellants on appeal is that the trial judge erred
    in failing to recognize the mothers flat affect as an immutable feature of
    the mothers cultural identity as an Ojibway. The appellants argue that the
    trial judge erred in drawing negative inferences about the mother and her
    ability to connect with her children based on an undiagnosed flat affect and
    monotone voice, both of which the appellants claim are immutable features of
    the mothers cultural identity that do not affect her parenting abilities.

[20]

We
    do not accept this argument. This issue was fully canvassed before the Superior
    Court appeal judge. The Superior Court appeal judge placed little weight on
    fresh evidence the appellants sought to introduce on appeal from a
    self-described expert on many, if not all aboriginal issues concerning flat
    affect as it pertains to aboriginal peoples. He did so in part because no
    effort had been made to adduce such evidence at trial, or to demonstrate on
    appeal the witnesss credentials.

[21]

The
    Superior Court appeal judge noted that the issue of the mothers flat affect
    and her ability to connect with her children had been raised in a Parental
    Capacity Assessment prior to trial. Despite that, the only evidence the
    appellants led at trial in response was a brief statement by the mother that
    she is part native and that natives tend to speak in a monotone voice. As noted
    by the Superior Court appeal judge, this evidence was insufficient to allay the
    trial judges concerns arising from the assessors evidence that the mother was
    unable to connect emotionally with her children and gain their attention.

[22]

Further,
    while the issue of the mothers flat affect was mentioned in the Parental
    Capacity Assessment, many other concerns were also raised. In his reasons
    dismissing the parents appeal, the Superior Court appeal judge fully addressed
    the issue of whether the trial judge failed to consider the best interests of
    the children in making an order for Crown wardship.

[23]

We
    see no basis on which to interfere with the Superior Court appeal judges
    conclusions.

Issue 3:  Did
    the trial judge err in failing to consider the best interests of the children
    in relation to access?

[24]

The
    final issue raised by the appellants is that the trial judge erred in failing
    to consider the best interests of the children in relation to access. The
    appellants argue that the trial judge erred in failing to consider the best
    interests of the children in the context of their aboriginal heritage and in
    failing to consider that ongoing contact with their birth parents would assist
    in preserving their sense of historical and cultural uniqueness.

[25]

We
    do not agree. The trial judge was aware of the childrens cultural heritage.
    She noted in her reasons that [w]hile the children are not Indian or native
    as defined by the CFSA, they do have a link to that heritage through their
    mother. Family connections are an important consideration in assessing the best
    interests of the children.

[26]

Despite
    that observation, the trial judge concluded that, considering all the
    circumstances of the case, an order for Crown wardship was necessary and in the
    best interests of the children. That finding is supported by the evidence and
    the appellants have not sought to set aside the order for Crown wardship on
    appeal.

[27]

As
    we have said, once the trial judge determined that an order for Crown wardship
    was necessary, in the face of s. 59 (2.1) of the CFSA and in the light of her
    other findings, an access order was not available. On appeal to the Superior
    Court, the trial judges findings and conclusions were upheld  and
    supplemented. As we have said, the Superior Court appeal judge directed that an
    inquiry be made concerning whether the proposed adoptive parents (the
    childrens foster parents since apprehension) would proceed with the adoption
    if an order were made for Crown wardship with access. The proposed adoptive
    parents responded in a letter to the Societys counsel that any court ordered
    openness or access would jeopardize the stability of the placement. Further,
    the Superior Court appeal judge stated that the court had been advised that the
    proposed adoptive parents were not prepared to proceed with the adoption on
    that basis. He concluded that making an order for Crown wardship would impair
    the childrens prospects for adoption. We see no basis on which to interfere
    with his determination or that of the trial judge.

C.

Delay

[28]

Before
    disposing of this appeal, like the Superior Court appeal judge, we must comment
    on the issue of delay.

[29]

In
    his reasons, the Superior Court appeal judge set out a brief chronology of the
    salient events in this case. We have included that chronology in Appendix A. In
    short, the children went into care with their current foster parents more than five
    years ago on September 2, 2010. They were then 1.8 and 3.8 years old.  They are
    now six and eight and are still in legal limbo. Such delay is unacceptable in
    the lives of these children.

[30]

After
    setting out his chronology, the Superior Court appeal judge noted that none of
    the legislated time limits under the CFSA were even remotely adhered to in
    this case. He expressed concern about the failure to follow the statutory
    requirements as well as the overall delay. He also expressed the hope that
    counsel would bring his concerns to the attention of those who can affect
    meaningful change.

[31]

We
    echo the Superior Court appeal judges concerns. We go further and state that
    it is imperative that judges, court administrators, counsel (particularly
    counsel for Childrens Aid Societies) and assessors take responsibility for
    ensuring adherence to statutorily required timelines.

[32]

We
    summarize below the most significant delays that occurred in this case:

·

More than a year passed from the date of apprehension on
    September 2, 2010 until the date when the Parental Capacity Assessment was
    completed on October 27, 2011.

·

The Society amended its protection application to instead request
    Crown Wardship on February 3, 2012. This was almost a year-and-a-half after the
    date of apprehension and already past the 12-month statutory limit for Society
    custody and care. More than six months passed between this date and the first hearing
    date at the Ontario Court of Justice on August 23, 2012.

·

Almost six months passed between the first and last days of the
    Crown wardship hearing at the Ontario Court of Justice (from August 23, 2012 until
    February 4, 2013) with no more than a few days of hearings each month.

·

More than nine months passed from the conclusion of the hearing
    to the release of the Ontario Court of Justice Reasons.

·

More than a year passed from the filing of the Notice of Appeal
    with the Superior Court of Justice on December 16, 2013 to the first Superior
    Court of Justice hearing date on February 12, 2015.

[33]

Where
    a statute requires that events occur within a specified time frame, it is
    simply unacceptable that justice system participants fail to adhere to those
    time frames. As Justice LHeureux-Dubé commented on behalf of the majority of
    the Supreme Court in
Winnipeg Child and Family Services v. K.L.W.
,
    2000 SCC 48, [2000] 2 S.C.R. 519, at para. 136, [t]he six-month delay prior to
    the hearing to determine whether John was in need of protection appears, on its
    face, to be highly unreasonable, particularly in the case of a newborn child.
    This court spoke about  the importance of timeliness in child welfare cases in
Childrens
    Aid Society of Oxford County v. W.T.C.
, 2013 ONCA 491, [2013] O.J. No.
    3438.

[34]

That
    requires, among other things, that assessment reports be prepared with
    dispatch; that Childrens Aid Societies make decisions in accordance with statutory
    timelines about how to proceed in a particular case; that meaningful case
    management occur in which timetables are set and witness lists are fully
    canvassed; that trials be scheduled so that trial days are not stretched over
    months; and that trial judges receive adequate time to prepare reasons in a
    timely fashion.

[35]

We
    acknowledge that additional factors may contribute to delay in particular cases.
    It is our hope, however, that all those involved in the child welfare system
    will do their part to minimize delay and promote finality for children. The
    children involved in this system deserve better.

D.

disposition

[36]

Based
    on the foregoing reasons, this appeal is dismissed. We make no order as to
    costs.

Released:

KF                                                   K.
    Feldman J.A.

SEP 14 2015                                    Janet
    Simmons J.A.



B.W. Miller J.A.



Appendix A

The
    following are some of the salient chronological/time facts involved in this
    case:

A.

When the children went into care
    with their current foster parents on September 2, 2010, CMV was 1.8 years old
    and LMV was 3.8 years old.

B.

The trial to determine the
    children's future, which heard evidence over 12 days commenced August 23, 2012
    and was completed on February 4, 2013. This is approximately 165 days from the
    first day of evidence to the last day of evidence.

C.

The trial judgment was delivered
    on November 28, 2013, which is approximately 300 days after the completion of
    the trial. On November 28, 2013, it was also three years two months and 26 days
    from the date the children began living with and bonding with their foster
    parents. CMV was then five years old and LMV was 7.1 years old.

D.

The last access between the
    Appellants and the children was on November 27, 2013, which is about 480 days
    before this appeal Judgment was rendered.

E.

The trial in this matter commenced
    almost 2 years after the children were taken into care and the judgment was
    released more than 3 years after the children were taken into care.

F.

The hearing of this appeal
    commenced on February 13, 2015; in summary, approximately 4 1/2 years after the
    children were taken into care.

G.

Rule 33(1) of the
Family Law
    Rules
indicates that a hearing in a child protection case should take
    place no more than 120 days after the child is taken into care. In this case
    approximately 720 days elapsed. This is five times what the legislation says is
    allowable.

H.

Section 70 of the
Child
    and Family Services Act
indicates that the court shall not make an order
    for Society Wardship that results in a child under the age of six being a
    society ward for the period exceeding 12 months or a child being over six being
    a society ward for a period exceeding 24 months.





[1]
In response to the Societys application and amended application, the
    appellants filed an Answer and Plan of Care and an Amended Answer and Plan of
    Care. In both documents, the appellants stated n/a in the box entitled
    Childs Native Status in relation to both children.



[2]

The only evidence given at trial concerning the
    appellant mothers aboriginal heritage occurred during the following exchange:

Q. You heard a number of
    witnesses describe what they observed during your visits, how do you feel about
    their description of your behaviour during the visits?

A. Like when they said I had a
    flat effect .



A. Well, theres a reason behind
    the flat effect. I am part native and if you listen to other natives, they have
    that same flatness in their voice  monotone.


