C.M. et al. v. Children's Aid Society of the Regional Municipality of Waterloo,

• Jurisdiction: Ontario
• Judge: Feldman, Simmons and Miller, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2015), 339 O.A.C. 112 (CA),2015 ONCA 612
• Date: 24 August 2015

C.M. v. CAS (2015), 339 O.A.C. 112 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. SE.009

C.M. and B.J.V. (appellants/appellants) v. The Children's Aid Society of the Regional Municipality of Waterloo (respondent/respondent)

(C60343; 2015 ONCA 612)

Indexed As: C.M. et al. v. Children's Aid Society of the Regional Municipality of Waterloo

Ontario Court of Appeal

Feldman, Simmons and Miller, JJ.A.

September 14, 2015.

Summary:

On a protection application, the appellants' two children were found in need of protection. The trial judge ordered that the children be designated Crown wards without access. A Superior Court appeal judge dismissed the appellants' appeal from that order. On this appeal, the appellants asked that the wardship order be varied to provide them with access, on the grounds that the trial judge erred (1) in determining the Indian or native status of the children (the mother self-identified as native); (2) by drawing negative inferences based on the mother's "flat affect"; and (3) in failing to consider the best interests of the children.

The Ontario Court of Appeal dismissed the appeal on all grounds, and commented on the significant delays that occurred in this case.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Guardian and Ward - Topic 815.7

Public trustee or guardian - Appointment - Child in need of protection - Cultural heritage - On a protection application, the appellants' two children were found in need of protection - The trial judge ordered that the children be designated Crown wards without access - On appeal to the Superior Court, the appellant mother filed an affidavit indicating that her father was Ojibway - She did not claim to be a status Indian, but self-identified as native - On this appeal, the appellants argued that the trial judge erred in law in failing to identify the mother as Indian or native - They submitted that identifying her as such would have triggered certain special provisions of the Child and Family Services Act (CFSA) relating to Indian and native children - In the alternative, the appellants argued that the trial judge erred in failing to apply the principles from R. v. Gladue (1999) (S.C.C.) - The Ontario Court of Appeal rejected the arguments - The appellants did not raise those issues at trial - In any event, neither the mother nor the children fell within the definition of Indian or native person under the CFSA - Further, in the face of the statutory definitions, Gladue principles did not assist in determining whether the children were Indian or native persons - Finally, the Court was not persuaded that Gladue principles affected the determination of whether an access order would be appropriate in this case - See paragraphs 5 to 18.

Guardian and Ward - Topic 902

Public trustee or guardian - The hearing - Time limits (incl. applications) - The Ontario Court of Appeal commented on the significant delays that occurred in this child welfare case - "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. ... [I]t is imperative that judges, court administrators, counsel (particularly counsel for Children's Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines. ...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. ... That requires, among other things, that assessment reports be prepared with dispatch; that Children's 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." - See paragraphs 28 to 35.

Indians, Inuit and Métis - Topic 2841

Guardianship - Appointment of guardian - General - [See Guardian and Ward - Topic 815.7].

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, consd. [para. 6].

Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2014), 457 N.R. 347; 371 D.L.R.(4th) 725; 2014 FCA 101 refd to. [para. 14].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 33].

Children's Aid Society of Oxford County v. W.T.C. (2013), 308 O.A.C. 246; 2013 ONCA 491, refd to. [para. 33].

Statutes Noticed:

Child and Family Services Act, R.S.O. 1990, c. C-11, sect. 47(2)(c) [para. 8]; sect. 59(2.1) [para. 15]; sect. 209 [para. 9].

Counsel:

Gloria E. Ichim, for the appellants;

Jeffrey W. Boich, for the respondent.

This appeal was heard on August 24, 2015, before Feldman, Simmons and Miller, JJ.A., of the Ontario Court of Appeal. The Court delivered the following judgment, released on September 14, 2015.