Ontario Civil

Aboriginal Law

Family law

Children in need of protection

Child made Crown ward with no access to parents
Child was apprehended at birth by children’s aid society and had remained in foster care on consistent basis since that time. Society commenced protection application requesting order for Crown wardship without access to parents. In its wardship application, society brought motion for summary judgment. Metis father applied successfully to challenge s. 3(1) of Child and Family Services Act as violating s. 15 of Canadian Charter of Rights and Freedoms on basis that its definitions of Indian, Native person and Native child did not extend to Metis children. Definitions of Indian, Native person, and Native child in Act were declared in valid and declaration of invalidity was suspended until August 11, 2017. Child, for all purposes relating to protection application, was to be treated as if he were Indian, Native person or Native child within meaning of s. 3(1) of Act. Once designation of Native status was made pursuant to relevant order, society made efforts to see if any members of Metis community would participate in litigation or provide family with placement option, without success. No kinship plan was put forward by parents once it was determined that maternal grandmother was inappropriate placement. By time trial started, child had been in care for total of 21 months. At trial, father asserted that child and his other two children who had already been made Crown wards and adopted in earlier proceedings were subject of major breaches of their constitutional rights as aboriginal people. Application granted. Child was made Crown ward with no access. Mere claim that someone is Native does not allow court to consider relevant factors within legislative scheme, without some evidence of what is important to this family, this child, and Aboriginal community that child is said to be member of. There was no evidentiary record on basis of which to assess and balance importance of preservation of Aboriginal heritage of child when considering all other factors set out in Act. Father did not demonstrate sufficient gains in his ability to parent despite having services available to him since at least 2012. Child had been in care of same foster home since his release from hospital in June 2015 and was thriving despite difficult start to life. It was in child’s best interests to be made Crown ward. Parents did not provide evidence that access to child would be meaningful or beneficial. Parents did not show that they could parent child without serious risk of harm to him and access to father would impair adoption of child.
Catholic Children’s Aid Society of Hamilton v. H. (G.) (2017), 2017 CarswellOnt 4044, 2017 ONSC 742, R.J. Harper J. (Ont. S.C.J.).
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