Charlotte Murray

The children's aid society brought a motion within a status review application to vacate a previous statutory finding that a child in extended society care was not a First Nations child.

The society sought a new finding that the child is a First Nations child based on new evidence of the paternal aunt's self-identification as Indigenous.

The foster parents and maternal grandfather opposed the motion, arguing the previous finding could not be varied.

The court held that a child's identity is fluid and can be revisited on a status review application if new evidence arises and it is in the child's best interests.

The court accepted the paternal aunt's self-identification and declared the child a First Nations child under the Child, Youth and Family Services Act.

The Children's Aid Society appealed an order of the Superior Court of Justice that set aside a Crown wardship declaration and directed the matter proceed to trial.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the Superior Court order was interlocutory, not final.

An order directing that a matter proceed to trial, even when it sets aside a prior final order, does not itself constitute a final order for appellate jurisdiction purposes.

The appeal was quashed, and the matter was directed to proceed to trial.

This is a ruling on a preliminary jurisdictional issue concerning whether a motion to change a custody order should be heard in the Ontario Court of Justice or the Superior Court of Justice.

The original order was made by the Superior Court of Justice, Family Court Branch in Hamilton pursuant to section 57.1 of the Child and Family Services Act, granting custody to the applicants with access to the respondent mother at their discretion.

The respondent mother sought to vary the order.

The court determined that since a section 57.1 order is deemed to be a custody order under the Children's Law Reform Act, and the original order was made in the Superior Court of Justice, any variation of that order must proceed in the Superior Court of Justice.

The motion was transferred to the Superior Court of Justice in Milton.