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.