Different test for best interest of indigenous children, public interest standing and nuisance bamboo

The week on Legally Speaking with Michael Mulligan:

When children are believed to be at risk of harm in British Columbia, they can be apprehended by the director of the Ministry of Children and Families and placed with another family member or into foster care.

Pursuant to the Child, Family and Community Service Act, a judge would then need to determine what was in the best interest of the child. This act sets out a list of factors a judge must consider when deciding what’s in the best interest of the child. The first listed factor is the child’s safety.

In 2019 federal government enacted legislation pursuant to the federal government’s constitutional authority with respect to aboriginal people in Canada that also deals with protecting children. The legislation is called An Act respecting First Nations, Inuit and Métis children, youth and families.

The federal legislation takes priority over the provincial legation. It sets out different criteria that judges must consider when determining what’s in the best interests of an Indigenous child. The first criteria are not safety but rather “the child’s cultural, linguistic, religious and spiritual upbringing and heritage”.

In a court case discussed on the show, a judge needed to determine what was in the best interest of four children of a mother who self-identified as indigenous. The woman believed she was indigenous, though her mother, even though the first nation she believed she belonged to, did not recognize either her or her late mother as being a member.

The mother of the apprehended children had experienced a tragic and traumatic childhood. Her father died in a car accident when she was very young and her mother, who was a severe drug addict, died a few years later. She then spent some time in a home described as “unstable and abusive” before she dropped out of school in grade 10 and began abusing drugs and alcohol. She never had a job and survived on social assistance.

The fathers of her four children were not actively involved in their lives, and one of the fathers has a lengthily criminal record with convictions for violence and sexual offences.

One of the apprehended children has physical and cognitive disabilities. That child was born prematurely after its father assaulted the mother while she was pregnant and then refused to bring the mother to the hospital for two days after she when into premature labour.

The children were apprehended due to what the judge described as reasonable grounds to believe the children had been or were like to be physically harmed because of neglect and immediate danger to their health and safety.

Despite these concerns, the judge hearing the case applied the criteria applicable to indigenous children and ordered the children to be returned to the mother with the hope that sufficient social services intervention could keep them safe.

The judge references the harm from the “sixties scoop” and concerns about placing indigenous children with non-indigenous foster families.

 A SCC case involving “public interest standing” is also discussed. This concept permits a person or organization to bring a court challenge dealing with an issue that doesn’t directly impact them. In this case, the Council of Canadians with Disabilities will be permitted to challenge BC legislation that permits involuntary psychological treatment.

Finally, a case involving a $2,000 award for nuisance caused by a neighbour who planted “running bamboo” along their property line. The bamboo invaded the property next door and required an underground barrier to be installed to stop it from proliferating.

Follow this link for links to the cases discussed. 

Transcript

Legally Speaking Aug 11, 2022

Adam Stirling [00:00:00] Barrister and Solicitor with Mulligan Defence Lawyers, Michael Mulligan joining us for Legally Speaking. Morning, Michael. How are we doing? 

Michael T. Mulligan [00:00:06] Good morning. I'm doing great. 

Adam Stirling [00:00:08] Let's dive right in. I'm reading here; it's different considerations for Indigenous children result in apprehended children being returned to their mother in the first case it is a complicated issue. It has to do with family law, something that we've already reflected upon in terms of the sensitivity of these matters. Help us understand this. 

Michael T. Mulligan [00:00:27] It sure is a complicated and difficult area, and it's one of the later twists and turns with respect to children, and protection of children, deals with now a regime that has different treatment for Indigenous children and non-Indigenous children. And the way that works in B.C. is in B.C. we have the Child Family Community Services Act, which sets out the principal consideration being the best interests of the child. And then it lists a number of things that are to be considered by a judge when determining what is in the best interests of a child in terms of, you know, keeping them safe and so on. And not surprisingly, the very first thing listed there in terms of what a judge should think about is the child's safety. Right, then on it goes for, you know, emotional support and so on, so forth and so on. What's complicated the area a little bit is that in 2019 there was a federal act passed. It's an act respecting First Nations, Inuit and Metis children, youth, and families. And it lists the best interests of Indigenous the Indigenous child. And it has a different set of criteria. The first criteria to be considered is not the child safety, rather it is a) the child's cultural, linguistic, religious, and spiritual upbringing and heritage. And then it goes on a list of, non-exclusive, list of other things for the judge to take into account. But rather than starting with the child's safety, which would clearly be a consideration, it directs judges that the linguistic, religious, and spiritual factors are significant and should play a part in the decision making. And so that brings us to this B.C. case that came out just last month. And as with so many of these things, it has a heartbreaking background, which makes for, of course, the difficult decisions. And the heartbreaking background involves a mom of four children, single mother. The children have different fathers. She herself had a tragic upbringing which included her father dying in a motor vehicle accident when she was only four or five, and her mother being a severe drug addict, dying in 2011 when she was just a teenager. It describes her background, the mother's background as a home involving instability and abuse. And now, perhaps not surprisingly, she has been struggling for many years as a mother. She dropped, she the mother, dropped from school when she was in grade ten, fell into drug addiction, has never held a job, and survives on social assistance and has cognitive difficulties. So that is the fact pattern. Then that fact pattern, over a number of years in B.C., the director that deals with child protection has wound up on various occasions apprehending her children out of concern for their safety. And the judge deciding this case referenced the fact that there were some 120 court appearances over the years dealing with her children and the ministry. Apprehending them would have concerns for their well-being. To give you some sense of it, some of the backgrounds included things like the mom being physically abused with respect to one of her partners, a partner who is described as somebody with a long criminal record, including convictions for violent and sexual offences, physically assaulting her, causing her to  give birth prematurely to one of the children, and then refusing to bring her to a hospital. 

Adam Stirling [00:04:19] Oh God. 

Michael T. Mulligan [00:04:19] For a period of time, just terrible circumstances. 

Adam Stirling [00:04:21] Awful 

Michael T. Mulligan [00:04:22] And so you have got these four poor children, right, in this awful circumstance. And they have been repeatedly apprehended. And when children are apprehended, the legislation contemplates trying to make a decision promptly, because, of course, you know, delays can be harmful to kids and instability. And so, when children are apprehended, a decision needs to be made. Well, what should happen before we have the full trial to determine whether the children would be better off in care, better off with a parent or what should happen? And so, the judge in this case determined, first of all. The provincial director did have reasonable grounds to be concerned about the immediate danger to these children. There was a long list of concerns they had on the most recent apprehension, including them not being treated for life, not attending school, not having proper hygiene, questionable people coming to the house. Not sound judgements being made, awful circumstances. But then a judge had to decide. Yes, there were grounds to apprehend them and if the director acted properly. But then the judge had to go in to determine what was best until they have the full hearing. And of course, we don't have enough judges or courtrooms. And so, these hearings often take much longer than really, they should. And so, the judge had to determine what was the best way to care for the children until they have the full hearing. 120 court appearances over many years. And so that brought the judge to this difference between what judges are directed to do with children and what judges are directed to do with Indigenous children. And they're not the same, the judge found. And it was complicated to some extent here, because the mom identifies as Indigenous through her mother. But the first nation from Saskatchewan does not recognize her as being a member of the First Nation, nor do they say the mother was a member of the First Nation. But nonetheless, that is how she identifies. And so that's how this case was being analyzed. And so, when the judge applied this test, which was different and points out that, for example, the federal legislation, which the judge found takes priority, you know, it begins with a preamble talking about the UN declaration on the conventions of the rights of the child. It talks about the agreements Canada has in terms of treatment of Indigenous people. And because of the priority that the Federal Act places on maintaining things like cultural, linguistic, and religious upbringing of the children. The judge concluded that because of that, these children should be, despite the concerns, again returned to their mother, and that there should be efforts made to, they described it as provide wraparound support for the mother, recognizing that she just has an inability to care for the children without, again, the term wraparound support. So, I don't know. That sounds like sort of very careful monitoring and lots of help giving all, given all of her challenges in this very long and tragic background. And so, the case does really raise important issues for people to think about in terms of how do we prioritize these things. And, you know, what should judges be told to take into account? Because the judge, after all, is just doing what the judge has been told to do by Parliament. And the Parliament, of course has recognized the harms caused by things like the sixties scoop, you know, a large percentage of kids being here, being Indigenous. And so, the judge is doing what the judges are told to do. But, you know, I think we need to think carefully about that. And how do we prioritize those things? How do you prioritize the short term, legitimate concern about, you know, the judge points out the ongoing risk posed by one of the fathers having not only this history of sexual and physical violence and a head injury, you know, how do you weigh that up against the harm caused if the children are denied  connections to their culture and identity? You know, and we've made that choice here. We as a society have made that choice, you know, that federal legislation came in in 2019. But, you know, boy, is it worrisome because when you read these hard cases, they are tragic. It is. You know, what kind of a chance do these kids have, right? What kind of a chance to this mom have? Right. Given that background? And so, I think we all need to think carefully about that. Of course, now everyone is trying to be very sensitive not to cause harm in the longer-term way. But what do we do? What do we do as a society or as a judge when you're faced with this kind of a hard case? And so that's the decision that's been made. And it's, I think, clear from the decision, had the mother not identified as Indigenous, there may well have been a different conclusion there because the judge would have then been prioritizing things like the safety of the children and also of interest in the same mix. The Supreme Court of Canada has recently made clear that biological connections to children have little importance in terms of determining where a child should be or what the best interests of the child should be. 

Adam Stirling [00:10:11] hmm. 

Michael T. Mulligan [00:10:11] And they came to that approach, bearing in mind things like, you know, major changes over the structure of families, including, you know, families that are, have same sex parents, for example, where there may be a biological connection to one parent but not the other. And concluding, well, that should not be a factor when determining what is in the child's best interest of the two people would otherwise be, you know, excellent parents. You don't prioritize the person for biological reasons. But in the case of Indigenous children, there is the direction I’ve indicated in this legislation. And so, I suppose all we can do is hope in a fact pattern that the wraparound supports, that the judge is hoping that the director of child protection will provide to the mum, will keep these four kids safe until there can be a more fulsome hearing about what ought to happen in the long term. But boy, I must say, reading this case and others like it, they're just so worrisome in terms of, you know, what's going to become of these children. And you look at it and you look at the background of the mum and some of the dads, and you think, well, what hope do they have? Right. You know, sort of kids at a very young age, hundreds of court applications and a page and a half of reasons to be concerned about them. You just are really worried, or at least I am when I read it, that you may just have four more kids who are in the same cycle. 

Adam Stirling [00:11:44] Yeah. 

Michael T. Mulligan [00:11:44] And, you know, what can we do to try to prevent that? 

Adam Stirling [00:11:47] Michael Mulligan, Legally Speaking, we're going to take our first break will be back right after this. 

[00:11:52] COMMERCIAL. 

Adam Stirling [00:11:52] Back on the air here at CFAX1070 Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. As we continue Legally Speaking for this week. Michael, a term that we use from time to time when we talk about litigation in law is who does and does not have public interest standing to challenge a law. What does that term mean? 

Michael T. Mulligan [00:12:11] Yeah, what that means is it's the concept of allowing an individual or group to engage in litigation over some issue, usually a constitutional challenge of some kind, which doesn't directly affect them. Right. Usually, people in court are there because something's impacting them. Hey, you backed over my fence or hey, you're keeping me in jail. Not something happened down the road I don't like it, but there are some issues which are not going to be properly litigated if you don't allow others to challenge them, even where they don't have a direct interest in it. And the particular case here, is a British Columbia case, and it's a case which involves a challenge to the way in which doctors are permitted to perform involuntary treatment for people who they believe have mental illness and pose a risk to themselves or others. And the case started out with two such people who were subject to and I must say, because I'm a little concerned, just even reading it, they were forced psychiatric treatment, including psychotropic medication and electroconvulsive therapy, 

Adam Stirling [00:13:27] Wow. 

Michael T. Mulligan [00:13:27] Which the latter part being kind of what you might imagine is electrocuting them. They looked up some of the concerns about include this, kind of warning you don't want on the list of side effects. "You may have some problems with loss of memory. They can last between a few weeks and several months. Avoid making major decisions while you're having electroconvulsive therapy. "

Adam Stirling [00:13:47] Yeah, no, it's very, very serious medical intervention, treatment for depression and other matters. But yes. 

Michael T. Mulligan [00:13:53] Yes, it sounds like a sort of One Flew Over the Cuckoo's Nest, but that's what they were undergoing. And so, this litigation started with two people who underwent that kind of treatment without their consent or the consent of somebody else acting on their behalf. 

Adam Stirling [00:14:10] Wow. 

Michael T. Mulligan [00:14:11] But along with the Council of Canadians with Disabilities, which was the organization is like a national organization with thousands of members that advocates for people with disabilities. They got chapters all across the country. That's kind of what they do. And probably not surprisingly, a couple of years after this litigation started, the two people who were subject to this forced treatment dropped out of the process. Right. And so, then the issue became, should the Council for Canadians with Disabilities be permitted to continue with this legal challenge about how those involuntary treatment decisions are made; whether they're constitutionally permissible, or not? And so, the judge that originally heard it in BC found that, no, they shouldn't be allowed to do that. And so that issue got appeal all the way up to the Supreme Court of Canada, who just came out with a decision and concluded that indeed, the Council for Canadians with Disabilities should be permitted to carry on. And they emphasized again what the test is for that. The test is like a three-part test; it's whether the case raises serious issues, basically is of some frivolous thing or important. Does the group or individual have a genuine interest in the matter, even if it's not a personal one? Which this group does. And is there another way in which the matter could reasonably be brought to court? Right. And if you're going to wait on people who are believed to have serious mental illness, to bring the challenge, that's probably never happening. Right. 

Adam Stirling [00:15:45] Yeah. 

Michael T. Mulligan [00:15:45] And I like this, it sort of brings it to the point the Supreme Court of Canada then speaks about, you know, what the underlying purpose of, is in limiting people to have standing. And that really amounts to the effective allocation of scarce judicial resources. And I love this "screening out busybody litigants". So, you know, the idea there is you don't want people that are just kind of litigious or want to fight about everything being able to do so, you want people who are appropriate people to do it, organizations to do it right. 

Adam Stirling [00:16:17] Yeah. 

Michael T. Mulligan [00:16:17] And the court pointed out it's really a matter of judicial discretion. And furthermore, a judge could make an initial decision and if it turned out they were wrong, right? It turned out like some group wasn't properly presenting the case, calling relevant evidence, or doing a good job of it, whatever it might be, a judge would be permitted to reconsider the decision. It doesn't have to be final. And so that's the broad test. They point out that these things are really discretionary for the judge. There shouldn't be more weight on one factor than another. It's up to the judge to decide that. And so, the decision here, which I think is a good one, sounds like an important issue, right? That should be sorted out. Is that a, I don't think anyone's arguing there shouldn't be some circumstance in which people could get treatment that they can't consent to because of their mental illness. It sounds like the argument is about, how that should happen, and who should make that decision, which is certainly fair enough and the kind of thing which is important. The other thing the Supreme Court of Canada did, which is significant in this case. 

Adam Stirling [00:17:19] Yes. 

Michael T. Mulligan [00:17:20] Is it got all the way to the Supreme Court of Canada because the British Columbia government, AG's department challenged it. They argued that the Canadian Council for People with Disabilities shouldn't be able to bring the claim and then that got appealed. And then the attorney general appealed it all the way to the Supreme Court of Canada, which is no small undertaking. And so in addition to allowing the challenge to go ahead, the Supreme Court of Canada also made an order for special costs for both the Court of Appeal decision and the Supreme Court of Canada decision, so that the Council for Canadians with Disabilities isn't going to be left on the financial hook for those challenges which were brought on by the provincial attorney general, arguing that they shouldn't be allowed to bring the argument. So, we'll have to wait and see the outcome. But now the case will get litigated, despite the fact that the people that were involuntarily subject to electroconvulsive therapy weren't able to continue with the litigation all the way to the Supreme Court of Canada. 

Adam Stirling [00:18:23] We have 4 minutes and 15 seconds remaining and a story that deals with $2,000 in damage for a neighbour whose bamboo grew under a fence creating a nuisance. 

Michael T. Mulligan [00:18:35] Indeed, this is a Saanich case local and it's a case which went to the Civil Resolution Tribunal that now is authority to deal with tiny, small claims claims up to $5,000. And the fact pattern was that about ten years ago, one neighbour in somewhere in Saanich planted a bunch of bamboo, which was a type that grows tendrils underground and then sprouts up. And the neighbour on the other side, who was described as having a manicured lawn, was forever cutting off these tendrils that were coming up. Suddenly there was concerned about whether they would interfere with structures or foundations. And so, the claim was brought, and I should say the neighbour brought it up with the other neighbour who didn't do anything about it, eventually the neighbour who had the bamboo popping up installed a barrier, sounds like some kind of an underground metal barrier to try to stop the bamboo from continuing to come through. It sounds like it was only partially successful, and the legal issue became is that a, in the legal sense, a nuisance. And the test for that, a nuisance has to be a substantial, like a nontrivial interference with somebody's use and enjoyment of property. And then there's also a requirement that the person causing the nuisance must know that they're causing the nuisance and not exercise reasonable care to remedy the situation. 

Adam Stirling [00:19:59] hmm. 

Michael T. Mulligan [00:20:01] Here the neighbour with the bamboo popping up told the other neighbour, hey, your bamboo is coming up. Do something about that. 

Adam Stirling [00:20:07] Yeah. 

Michael T. Mulligan [00:20:07] Put in a barrier. Stop it. And they didn't and so that's the fact pattern which the case preceded. The neighbour who was having the bamboo popping up was asking for the cost of putting in the barrier. But unfortunately, he didn't have all the receipts. He said it cost them $3,800, which he didn't submit. And so, he got less than what he asked for. He was also asking the Civil Resolution Tribunal to order the other neighbour to get rid of the bamboo or put in a barrier. And the Civil Resolution Tribunal pointed out they don't have the authority to do that right. Neither does the small claims court judge. They don't have the authority to issue injunctions like you could get in the Supreme Court. The authority in this case of the Civil Resolution Tribunal is up to $5,000. That's all they can do. They can't order people around or direct people to go and install barriers or dig up bamboo. And so, the outcome here was a judgement for the neighbour with the bamboo coming up in the amount of $2,000 plus the $7.01 and prejudgment interest, and the $87.50 fee you need to pay to have a case go to the Civil Resolution Tribunal. So I guess the takeaway for people is don't be a nuisance to your neighbours and if they point out that your you've decided to plant your bamboo is coming up all over their yard, you'd be well advised to do something to try to mitigate that or else you might be on the hook for the cost of the neighbour fixing the problem. So be good to your neighbours. 

Adam Stirling [00:21:45] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking during the second half of our second hour every Thursday here on CFAX1070. Michael, thank you so much as always. A pleasure. 

Michael T. Mulligan [00:21:54] But thanks so much. Have a great day. 

Adam Stirling [00:21:56] All right. You, too. Bye now. 

Automatically Transcribed on August 12, 2022 – MULLIGAN DEFENCE LAWYERS