CHILD AND FAMILY SERVICES
REVIEW BOARD
BETWEEN:
SM
Applicant
-and-
Dilico Anishinabek Family Care
Respondent
DECISION
Adjudicator: Gabrielle Pop-Lazic
Indexed as: SM v Dilico Anishinabek Family Care (CYFSA s. 109)
APPEARANCES
SM, Applicant
Self-represented
Dilico Anishnabek Family Care, Respondent
Kristi Burns, Counsel
Introduction
1This is an application brought pursuant to sections, 109(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 for a review of the proposed removal of the child J.S. from the applicant’s home.
2The Respondent, Dilico Anishnabek Family Care (the “Agency”) raised a preliminary issue as to whether the Child and Family Services Review Board (the “CFSRB”) has jurisdiction over this matter asserting that JS is in customary care rather than extended society care. A preliminary hearing regarding the issue of jurisdiction was heard on April 15, 2019.
3The CFSRB finds that it does not have jurisdiction for the reasons that follow.
BACKGROUND
4This application pertains to the placement of J.S., born [ ]. The child was placed in the Applicant’s care by the Respondent agency on February 1, 2016 when he was [ ].
5The child is eligible for membership in the M[…] First Nation (“M[…] First Nation”) through his mother.
6On March 5, 2019 the Agency wrote to the Applicant advising that the child had been identified for a placement change due to a breakdown in the relationship between the care-givers and the child’s parents.
7The Applicant filed this Application on March 13, 2019 and the matter proceeded to an expedited hearing on March 20, 2019. At that time the Respondent Agency raised the issue as to whether the CFSRB had jurisdiction to hear the matter stating that the child was in customary care rather than in extended society care.
8The matter was put over to a hearing on jurisdiction only which was held on April 15, 2019.
9At the hearing the Agency reiterated its position that the CFSRB does not have jurisdiction on the basis that section 109(8) only applies to children who are in extended society care under the Act. The Agency’s evidence was that the child was in care voluntarily and subject to a customary care agreement made between their Agency and the M[…] First Nation.
10In support of their position, the Agency relied on the following documents that were made exhibits at the hearing:
a. First Nation Declaration of Customary Care signed by band council members on September 20, 2016;
b. First Nation Declaration of Customary Care signed by band council members on July 7, 2017;
c. First Nation Declaration of Customary Care signed by band council members on November 15, 2018;
d. Mikinaak Agreement for Customary Care made on February 25, 2016 for a period of 6 months;
e. Mikinaak Agreement for Customary Care made on August 24, 2016 for a period of 6 months;
f. Mikinaak Agreement for Customary Care made on July 10, 2017 for a period of 12 months;
g. Mikinaak Agreement for Customary Care made on August 9, 2018 for a period of 10 months.
h. Temporary Care Agreement dated January 26, 2016;
i. Temporary Care Agreement dated August 24, 2016;
j. Temporary Care Agreement dated February 8, 2017; and
k. Temporary Care Agreement dated February 26, 2018.
11The Applicant acknowledged that the child came into her care under a voluntary care agreement and does not dispute that the child falls within the definition of a First Nations child under the Act. It was her position however that at the time of her application, the parents had not agreed to continue with customary care and that it was in the child’s best interest to remain in her care.
12While it does appear that the parents did not sign the most recent customary care agreement until April 13, 2019, they had entered into that agreement at the time of the hearing.
THE LAW
13In the preamble of the Act, the Ontario Government recognizes the importance of maintaining children’s connection to their indigenous communities:
With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:
The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.
First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.
Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.
The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.
Further, the Government of Ontario believes the following:
First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.
Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.
For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.
14Customary care is defined under section 2 of the Act as the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community.
15The CFSRB, as a creature of statute, derives its jurisdiction from the provision of the Act. In the present case that jurisdiction must be found in section 109 of the Act which states:
Interim and Extended Society Care
Placement of children
109 (1) This section applies where a child is in interim society care under an order made under paragraph 2 of subsection 101 (1) or extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c).
Change of placement
(6) The society having care of a child may remove the child from a foster home or other residential placement where, in the opinion of a Director or local director, it is in the child’s best interests to do so.
Notice of proposed removal
(7) If a child is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,
(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (8); and
(b) in the case of a First Nations, Inuk or Métis child, give the notice required by clause (a), and
(i) give at least 10 days notice in writing of the proposed removal to a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities, and
(ii) after the notice is given under subclause (i), consult with representatives chosen by the bands and communities relating to the plan of care for the child.
Application for review
(8) A foster parent who receives a notice under clause (7) (a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal.
Board hearing
(9) Upon receipt of an application by a foster parent for a review of a proposed removal, the Board shall hold a hearing under this section.
ANALYSIS
16Having regard to the evidence of the Agency and the Applicant, I make the following findings of fact:
a. The child J.S. is a member of the M[…] First Nation.
b. The child has never been the subject of a child protection application.
c. The child has been placed with the Applicant pursuant to a customary care agreement made between the Agency, the child’s band and his parent.
17As the child is a member of a First Nation who is subject to a customary care agreement, section 109 of the Act has no application. The CFSRB therefore has no jurisdiction to hear this matter.
confidentiality order
18Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions, or any other documents or information provided or used in this Application, with anyone including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.
Dated at Toronto, Ontario, May 21, 2019.
Gabrielle Pop-Lazic
___________
Gabrielle Pop-Lazic
Member