Should Aboriginal Heritage Trump Child Protection Needs?
In a recent child protection case, the court summed up nature of the proceedings with a definite air of gravitas:
This case is also about the equality rights of Métis children and their families in the child protection context in Ontario, and whether the provincial government is respecting those rights. It is an important opportunity for this province to demonstrate its commitment to act upon the Calls to Action that the Truth and Reconciliation Commission of Canada issued in 2015.
The facts involved a child who had been apprehended at birth by the Children’s Aid Society (CAS), and was in foster care ever since. He was now almost two years old.
The father claimed the child was of Métis heritage. This claim was an important fact, because the definition of “Native child” contained in the Child and Family Services Act (CFSA) did not include Métis. This meant that a Métis child would not gain the same advantages as one who had been designed a “Native child” under the CFSA; including the benefit of a legislative mandate to the court to the effect that any order made in relation to the child was to bear his or her cultural, religious, and regional differences in mind.
Against that background, the CAS had applied to have the child made a Crown ward, with no access to the parents at all. This sparked a successful Charter of Rights challenge by the child’s father, who claimed that the differing treatment of Métis children was in violation of the guarantee of “equality before and under law, and equal protection and benefit of law”. A prior court had temporarily addressed the father’s concern by ordering the child to be treated as if he were in the more beneficial “Native child” category for the purposes of the court application by the CAS to make him a Crown ward.
The court then turned to assessing the parties’ positions on that application. It acknowledged that there were numerous factors involved in deciding a child protection application, and the child’s Aboriginal heritage was just one of them. Here, the father had raised the issue at the eleventh hour, and had supplied only scarce evidence to show that maintaining the native heritage and culture was important to the family. The court said:
What I have outlined above is the totality of the evidence this court was given relative to [the father’s] background. He did not give any testimony about his Aboriginal background or any connections that he had or has in that community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program.
The court quoted from a prior ruling in which the court had to deal with similar issues, then added its own comments:
Our compassion toward and recognition of the importance of native heritage and families remains unwavering. But special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children.
I agree with all of the considerations that are set out by [the prior judge] in the above-quoted paragraph. In addition, I do not feel that the legislative scheme put in place to recognize the importance of Native heritage and culture for children who have been designated as Native can be meaningfully applied in the abstract. There must be evidence of the nature of the involvement of the child’s family in the Native community. The mere claim that someone is Native does not allow the court to consider the relevant factors within the legislative scheme, without some evidence of what is important to this family, this child, and the Aboriginal community the child is said to be a member of.
In this case, the required proof was absent. The father had also not shown that his prior inappropriate parenting skills had improved even though he had parenting services available to him for several years. An attempt to find the child suitable placement with extended family-members had failed. Meanwhile, the child had begun to thrive in his current care arrangement that did not feature any involvement by the parents.
Finally, the court observed that prior to bringing its application, the CAS had invited members of various Ontario-based Métis communities to participate in the litigation or provide the placement options for the child, without success.
Ultimately, the child was made a Crown ward, with no access to the parents. However, the court also directed that the CAS should make every effort that any foster parent or adoptive placement would be willing to educate the child on his Aboriginal heritage and culture, and to expose the child to his culture on an age-appropriate basis.
For the full text of the decision, see:
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