Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m F E B R U A R Y 2 0 1 9 49 Although the Supreme Court of Canada's 2014 decision in Hryniak v. Mauldin did not concern family law, it emphasized the value of summary judgments in reducing the length of time of proceedings and the attendant costs, says Nicholas Bala, a professor at Queen's University's Faculty of Law in Kingston, Ont., and an expert on issues related to children, youth and families in the justice system. "I think wisely and correctly both child protection agen- cies in Ontario … have been making more use of summary judgment in child protection cases," Bala says. He says this is specifically used in cases where the Children's Aid Society views parents as incapable of caring for their children. "Very likely the lengthy hearings harm the children who need place- ment, and it's costly for the CAS, Legal Aid and the courts. So, a move to summary judgment is appropriate." Thompson says Ontario is "a unique creature" in using summary judgment in child protection cases so frequently, which he attributes in part to Ontario's courts being over- burdened. "In most other jurisdictions, you can get to trial in a rea- sonable period of time," he says. "In Nova Scotia, we have strict timelines, and our judges meet them. But Ontario is a big province, with many languages and cultures, and it's much more difficult; [the judicial system is] also under-resourced." Toronto family lawyer Schuman notes "a big disparity" in how busy judges are across Ontario, and while "anything that expedites the process is good," he says, he also notes that many people involved in the child protection system "don't feel they've had a chance to present their case, and often they don't." It is also often easier to accept defeat if they've had a judge listen to them, he says. Where the chances for parents succeeding in court is low, though, because of disastrous or abusive parenting, "there won't be any other decision made than that the children should be Crown wards," and summary judgment makes sense. First Nations and child protection The legal system has grotesquely underserved First Nations families, to the point of crisis, says Turpel-Lafond. "The court system doesn't work for First Nations children and families." In Manitoba, 90 per cent of children in care are Indig- enous; in other Western provinces the figure is about 80 per cent, she says, and is significant in other provinces, including Ontario; "it's astounding." The first five calls to action of the December 2015 report of the Truth and Reconciliation Com- mission addressed Aboriginal child welfare and called on the government to reduce the number of Aboriginal children in care. Schuman likewise notes the destructive legacy for Indig- enous parents who passed through the residential school system and had only a terrible experience of what "parenting" should be. "When you talk about helping Aboriginal families parent, there are Aboriginal parents today who are in abusive rela- tionships because their parents were abused from residential schools. If you don't understand what's going on, you miss the main problem," underscoring the importance of culturally sensitive Aboriginal children's aid societies, which in Ontario have been established in Toronto and Durham region, he says. The evidence points to the importance of keeping Indig- enous children in their own communities, at least, or in other Indigenous homes. In the Winnipeg case of Angel, the Indig- enous teenager who accidentally overdosed, Assembly of Manitoba Chiefs Grand Chief Arlen Dumas said after release of the child advocate's report that the girl's death pointed to the need for First Nations to have jurisdiction over Indig- enous families and children. As president of the Canadian Council of Child and Youth Advocates, Turpel-Lafond says "we pushed for legislation to be strengthened" to benefit Indigenous children and fami- lies, which has borne some fruit. The federal government's proposed legislation last February would allow Indigenous governments control over child welfare, along with education and health care; Minister of Crown-Indigenous Relations and Northern Affairs Carolyn Bennett is expected to develop this new legal framework. "The legal developments with respect to children and families are significant, but they are fragile systems," says Turpel-Lafond. "If one small thing changes," such as a reduc- tion in legal aid services, "these all have such a huge effect in the lives of people." L E G A L R E P O R T The complete suite of tools for family law professionals is now securely in the cloud Learn more at divorcemate.com or call 1.800.653.0925 Untitled-1 1 2018-07-13 11:07 AM

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