Ogwadeni:deo v. K.C., 2021 ONCJ 664

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — 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, the court may make an order, . . . (

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

(8) Prohibition re identifying child. — 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 child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— 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. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. ONTARIO COURT OF JUSTICE CITATION: Ogwadeni:deo v. K.C., 2021 ONCJ 664 DATE: December 20, 2021 COURT FILE No.: Brantford OC 187/21 BETWEEN: Ogwadeni:deo Applicant — AND — K.C., Six Nations of the Grand River Respondents Before Justice A.D. Hilliard Heard on December 16, 2021

Reasons for Judgment released on December 20, 2021 B. Culp................................................................................... agent for the applicant society J. Nneji................................................................................ counsel for the respondent K.C. M. Elchami................................................ counsel for the respondent band, Six Nations A. Macdonald........................................................ counsel for the moving non-party, S.V.

Hilliard J.: [ 1 ] On December 16, 2021, after hearing submissions on the motion of the paternal grandmother to be added as a party to these proceedings, I ordered that Ms. V. would be made a party to the proceedings with written reasons to follow. These are my reasons. Background: [ 2 ] There are two (2) children who are the subject of this protection application: A.M. and A.R. The biological mother of both children is K.C. A.M.’s biological father is deceased. A.R.’s biological father is noted as unidentified. Ms. V. is A.M.’s paternal grandmother. [ 3 ] A.M. was in the care of Ms.

V. from December 4, 2020 to September 27, 2021. Ms. V. assumed full-time care of A.M. after Ms. C. consented to placing both of her children into the care of Ogwadeni:deo under a temporary care agreement. The two children were placed with separate caregivers and were each subject to separate temporary care agreements (TCAs). The original TCA by which A.M. was placed in the care of Ms. V. was for a period of three (3) months. There were two (2) extensions of the TCA, each of which were for a period three (3) months. The last TCA expired on September 4, 2021. [ 4 ] In or around August 20, 2021, Ms.

V. gave notice to Ogwadeni:deo, by way of a letter from her lawyer, that she would no longer be cooperating with the agency. Ms. V. then terminated all contact with the agency and terminated access visits for Ms. C. [ 5 ] This protection application was issued on September 23, 2021. On that date, Ms.

V. was providing the day-to-day care for A.M. but was not noted as a party to the proceedings, nor was she provided notice of the application in advance of the first court date. [ 6 ] On the first return of the protection application, a temporary without prejudice order was granted by Edward, J. placing both children in the care of Ms. C. subject to terms of supervision. On the date that order was made, A.M. was in the primary care of Ms. V. There was no agreement or court order governing Ms. V.’s care of A.M. at the time of the commencement of the protection application. [ 7 ] Ms.

V. then brought a motion in November 2021 to be added as a party to this proceeding and for access to the child, A.M. As there was no agreement on Ms. V.’s requests in November, the motion was scheduled on an urgent basis for a hearing on December 16, 2021. At the motion hearing, Ogwadeni:deo supported Ms. V.’s request to be added as a party. The Band did not oppose Ms. V.’s request. The Respondent mother, Ms. C., opposed Ms. V.’s request to be added as a party. Request to be added as a party: [ 8 ] Ms. V. relies on

section 13(

a) of The Act Respecting First Nations, Inuit and Métis Children Youth and Families (the Federal Act) to support her assertion that she was entitled to be named as a party to these proceedings in the first instance. That

section states: In the context of a civil proceeding in respect to 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 . (emphasis added) [ 9 ] In the

Interpretation

section of the Act, care provider is a defined term: care provider means 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. [ 10 ] Although there have not yet been formal identification findings made in this protection application, Ogwadeni:deo indicates in the protection application that both children self-identify with the Six Nations of the Grand River First Nations community. Ms.

C. also self-identifies as Indigenous, although she and the children are not eligible for registration as band members of the Six Nations. [ 11 ] For the purpose of this motion, I am satisfied that there is information before me that these children are and will be found to be First Nations children under section 90(2) of the Child Youth and Family Services Act (CYSFA). It is necessary for me to be so satisfied in order for me to find that the provisions of the Federal Act apply.

[ 12 ] Section 79(3) of the CYSFA sets out the individuals who have a right to participate in child protection proceedings, which includes any person who has cared for a child continuously during the six months immediately prior to the hearing. Ms. V. clearly meets that definition. However, that

section provides participatory rights only and limits persons who meet the definition to notice, presence at a hearing, representation by a lawyer, and making submissions to the court. An individual with participatory rights only under s. 79(3) specifically cannot take any further

part in the hearing without leave of the Court. [ 13 ] There is no conflict that needs to be resolved between

section 13(

a) of the Federal Act and section 79(3) of the CYSFA. Section 79(3) of the CYSFA does not preclude me from exercising my discretion to extend party status to an individual who has a right to participate in a child protection proceeding. [ 14 ] Ms. C. submits that it is not necessary for Ms. V. to be made a party to the proceedings, as she is consenting to Ms. V. having access with A.M. However, necessity is not a consideration in this case. As A.M. was in the day-to-day care of Ms. V. at the time of the commencement of the protection application, by virtue of section 13(2) of the Federal Act, Ms.

V. has the right to be a party to the proceedings and she should have been named as a party from the outset. [ 15 ] In arguing against Ms. V.’s request to be added as a party to the proceedings, Ms. C. also points out that Ms. V. withdrew her cooperation and communication with Ogwadeni:deo in or around August 20, 2021. That is also not a relevant consideration in the analysis. Ogwadeni:deo chose not to remove A.M. from the care of Ms. V. after contact was terminated. By virtue of A.M. remaining in the day-to-day care of Ms. V. until the commencement of the protection application, Ms.

V. continued to meet the definition of care provider under the Federal Act. Ms. V.’s cooperation with Ogwadeni:deo, or lack thereof, does not change the undisputed fact that A.M. was in the care of Ms. V. at the time these proceedings were commenced. [ 16 ] The only relevant consideration in determining whether Ms. V. has a right to be added as a party to these proceedings is whether she met the definition of care provider under the Federal Act at the time this protection application was issued. There is no dispute that Ms.

V. was providing day-to-day care for A.M. in September 2021 prior to and at the time of the issuance of this application and that is the determinative factor in the analysis. [ 17 ] Despite Ogwadeni:deo’s stated intention to reintegrate A.M. back into the care of her mother at the expiration of the last TCA in September 2021, A.M. was not removed from the care of Ms. V. until after the commencement of this application. Ms. V. clearly had a right not only to participate in these proceedings but also to be named as a party to the protection application as the care provider for A.M.

Ogwadeni:deo failed to meet their obligation under both the provincial and federal legislation – to give notice to Ms. V. of the proceedings and to name Ms. V. as a party as the care provider to A.M. This failure on the part of Ogwadeni:deo to meet its legal obligations resulted in significant prejudice to Ms. V. She was not able to participate in or make submissions on the motion that was brought on the first return of the protection application, which motion involved a child who was in Ms. V.’s care at the time, and then was put to the cost of bringing her own motion to be added as a party. [ 18 ] Ms.

V. has a right to be added as a party to these proceedings as A.M.’s care provider at the time the protection application was commenced and that order has now been made. Request for access: [ 19 ] As I indicated to counsel at the outset of the motion hearing, Ms. V. did not have standing to bring a motion for access until a determination was made on her request to be added as a party. Accordingly, I did not hear submissions from counsel on that issue and that portion of Ms. V.’s motion was dismissed without prejudice. [ 20 ] Despite my finding that Ms.

V. should have been made a party to this proceeding at the outset, she was not. Participatory rights do not entitle Ms. V. to seek substantive relief from the Court. Until my order was made adding Ms. V. as a party to these proceedings, she did not have standing to seek an order for access. [ 21 ] Although Ms. C. indicated in her oral submissions on the motion that she is consenting to Ms. V. having access with A.M., should a consent on this issue not be forthcoming, Ms. V. is prejudiced once again. Had Ms.

V. been made a party, or at minimum been provided notice of the proceedings at the outset, her request for access could have been addressed at an earlier stage of the proceedings. Any motion for access will now not be heard until the New Year at the earliest. [ 22 ] Given that there was a consensus on the date of the motion hearing that Ms. V. should have access with A.M., it is my expectation that access arrangements will be made forthwith. Should that not occur, a motion for access by Ms. V. can be brought returnable on the next court date in this matter for the purpose of scheduling only.

Released: December 20, 2021

Signed: Justice A.D. Hilliard