Wednesday, May 8, 2013

Judge katerynych "the fact that the children are Aboriginal has no bearing in the court’s decision-making process nor mine!"


Year 2002

Violation of Aboriginal Children’s Rights

Children: Caleb Francois 5 year old male, Jesse Francois 4 year old male, Jania Francois 2 year old female, illegally apprehended by the Children's Aid Society in February 2002, Aboriginal Rights Violated and Circumvented. Aided in doing so by Native Child and Family Services of Toronto and Hilda Tennisco of The Algonquins of Pikwakanagan Indian Band.


 Ten Years Ago
The day I stood in the Jarvis street Family Court (more than ten years ago now) and heard case managing Judge katerynych state: "the fact that the children are Aboriginal has no bearing in the court’s decision-making process nor mine because the children are also half Chinese," was incredulous. A million emotions and possible responses shot through me with the accumulative effect of shock and anger. My disbelief and anger with Native child and Family Services of Toronto for failing to offer any services for the protection of my children (though I had begged them from the start) triggered my own early childhood issues of abandonment. I was also stunned by the fact that my lawyer made no objection to her ruling. I thought to myself "this white guy doesn’t have a clue as to what the hell just happened" and my thinking added "what an idiot." (I gave editing this part a lot of thought, but that was my honest reaction to her ruling).

I reassessed my choice of lawyer; this was the second one in a year’s time. The problem had always been in finding a lawyer who knew and understood the legality of Native Family Law. I could not find an Aboriginal Lawyer practicing family law. So there I stood in the court looking at this older white guy I had for a lawyer, disheveled white hair, wrinkled suite looking like it came off of the three-dollar-rack of some second hand store, and I knew at that moment that I was in this fight alone.

Ten Years Later

Our story has never changed in a decade; from the  day they (my children) were scooped in February of 2002 by the system and then split up. Two communities and Chiefs were in the battle. The lower family court's ruling by Judge Katerynych that the children's aboriginal status had no bearing allowed the court to ignore the mandatory legal review for an Aboriginal Plan of Care (This ruling was made extremely early into our case) thus effectively closing out my own reserve as well as The Algonquin Woodland Metis Aboriginal Tribe and its Chief Zane Bell from having legal standing.

The reason Judge Katerynych made that ruling was based on a deception later proven to be true, documented and still available. An officer of the court lied to the Judge concerning the status of the children and their "Legal Status" as aboriginal children. Had the Judge known that the children were/are legal Status at that time, because of law, she would have been compelled by the laws of Ontario and the Indian Act to do a mandatory review of the Plan of Care within its First Nations context. A plan that was made and ready to be presented even before the above mentioned ruling took place. This plan is still within our history, orally and written, from two Chiefs, both of whom are still the Chiefs of their respective communities; Chief Kirby Whiteduck and Chief Zane Bell.

The lie begins with a letter from Hilda Tennisco, Supervisor Pikwàkanagàn Child & Family Services, written by her to C.A.S.T. (Children’s Aid Society of Toronto) stating that the children were not members and were not eligible for status. That was, and still is, outside and exceeding her authority, either in her position and/or as a member of the Band. The authority for determination of the children's status fell under, and falls under, Lands, Estates and Membership and Jan Leroux Program Manager, who had at that time and still holds the authority for such determinations.

Jan Leroux was never consulted by Hilda Tennisco in this regard at any point in the process, nor is there any documentation showing that this was the case, then or now. As a matter of fact the children, all three, have their statuses cards and are registered members of The Algonquins of Pikwakanagan. Which were issued only immediately following the maximum length of time they could be in care before C.A.S.T. could file for full Crown Wardship.

Were it not for this lie told (in a letter written by Hilda Tennisco) to C.A.S.T. and then given to Judge Katerynych in papers not disclosed to myself or my legal counsel, the Judge would have had to give my Reserve, extended family who are registered members of our Reserve, (I have 10 aunts and Uncles and all together 70 first and second cousins) as well as Chief Zane Bell and his wife, legal standing in court to present our Plan of Care within a First Nations context, which we were fully prepared to do.

I am determined to continue working to see these matters addressed. I have worked tirelessly from the minute they were scooped to the present toward that happening. I have documented and written on this matter for a decade.

In that time I have discovered that there are provisions for redress through many of the Constitutional Amendments’ of specific areas within the Indian Act made by the Supreme Court of Canada. Those existed even at the time that my children were scooped. I touch on the issue of legally invalid states of apprehensions of First Nations Children on the second page of this blog; Click:  "Apprehensions of Aboriginal Children Legally Invalid."

Eventually the legacy stolen from our children will be redressed. Another whole generation of stolen Children from our communities across Canada will investigate the circumstances and events of their own apprehensions. Where we have labored in that regard, the next generation will reap the rewards of the parents, families and communities who have sown with integrity. 

 Below is a story printed by the Globe and Mail. They neither followed the case from its beginnings nor investigated the circumstances leading up to the higher court ruling. If they had done so this opinion piece would have reflected the truth rather than fictions. 


 Globe and Mail May 04, 2004 page A20

Do aboriginal children have a constitutional right to grow up in native families? That is the argument made by the Algonquins of Pikwakanagan First Nation in Ontario, in contesting the adoptions of three children born to a native father and a Chinese-Canadian mother. It's an audacious argument, yet one not easily dismissed. A compelling case can be made that, like all children, aboriginal children need to grow up with strong roots in family and community.

The problem is that, as the Algonquins have framed it, that right has an absolute quality. The right to grow up in a native family might trump the children's right to a loving family. If upheld, the right to "grow up native" could have the absurd effect of being used against the children's best interests.

The Ontario case, which involves two boys and a girl, ages 2 to 5, shows why rights are rarely if ever absolute. The Toronto Children's Aid Society, which apprehended the children, arranged three adoptions: to an aboriginal family headed by the birth father's aunt, to a family that included a Chinese-Canadian parent and to a non-native, non-Chinese family. The children began living with those families, all of whom promised to nurture the children's native heritage.

The band had every right to challenge those placements. Under Ontario law, native children taken from their families must be placed in their band or in native families, unless a "substantial reason" exists for not doing so. (No willing family being available would be one such reason.) And Ontario's Child and Family Services Act gives native bands the same right that natural parents have to contest an adoption.

Yet in 18 months the band did not do so. Only after the deadline passed did it offer, with scant supporting information, a Métis family, who were not members of the Algonquins of Pikwakanagan and who were promising only to become foster parents rather than adoptive ones.

"They are now out of time," Madam Justice Ruth Mesbur of Ontario Superior Court ruled about the band's last-ditch effort. The children have families now. Eighteen months in the lives of toddlers and preschoolers is an eternity. "Time is of the essence in proceedings concerning the welfare of children," the judge wrote. ". . . Children's emotional well-being always trumps concerns regarding the importance of nurturing their native heritage."

The right of native children to grow up native is already woven into Ontario law, but communities need to mobilize themselves better than the Algonquins of Pikwakanagan did if they wish the right to become a reality.
__________END

 Here is how you can help

Print out the letter on my page "Further Actions" and send to:

 
Ontario Judicial Council
Adelaide Street Postal Station
P.O. Box 914
31 Adelaide Street East
Toronto, ON
M5C 2K3
The Ontario Judicial Council is an independent body with legislative authority to investigate complaints against provincially appointed judges.  If you have a complaint regarding the conduct of a provincially appointed judge, such complaint must be made in writing to the Ontario Judicial Council at the address above:
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