Darryl Rod Buxton

The Anishinaabe Abinooji Family Services (AAFS) brought a motion for temporary care and custody of a 12-year-old Indigenous child, M.P., who was apprehended after threatening self-harm if forced to return to the care of Traci Lockman, a non-Indigenous former caregiver.

The child's biological father, N.J., and the G.N. First Nation (GNFN) supported the AAFS's position to place M.P. with her elder sister, S.P., in the First Nation community.

Ms. Lockman sought the child's return to her care.

The court applied the Child, Youth and Family Services Act, 2017 (CYFSA) and the paramount federal An Act Respecting the First Nations, Inuit and Metis Children Youth and Families (Federal Act).

The court found that AAFS discharged its onus, establishing reasonable and probable grounds of risk of harm if the child returned to Ms. Lockman.

Emphasizing the Federal Act's priority of placement scheme and the child's best interests, including cultural continuity and connection to the Indigenous community, the court determined that S.P., as an adult family member, had priority over Ms. Lockman, who was not considered family by the First Nation or the father.

The court dismissed Ms. Lockman's request and ordered M.P. to remain in the temporary care and custody of S.P. under AAFS and GNFN supervision, with structured access for Ms. Lockman.

The Anishinaabe Abinoojii Family Services applied for warrants for two children, leading to a child protection application.

The mother and First Nation challenged the court's jurisdiction, arguing the agency failed to bring the application within the five-day statutory limit following two apprehensions (one in October 2023 and one in December 2023).

The court found that the October apprehension was without legal authority due to lack of consent and failure to comply with the five-day rule, but deemed it a discrete event that did not preclude a subsequent intervention.

For the December apprehension, the court applied the Family Law Rules for calculating time and found the agency complied with the five-day limit.

The court concluded it had jurisdiction to hear the current child protection proceeding.

This is a costs endorsement following a partially successful appeal.

The appellants, who were self-represented, had their appeal allowed in part, leading to several claims against the Dryden Police Services Board and some employees proceeding to trial.

While the appellants did not seek costs and none were awarded to them for the appeal, a significant $25,000 costs order against them from the motion judge was set aside, with those costs reserved to the trial judge.

The Dryden Police Services Board and its primary employees were denied their costs claim for the appeal.

However, one employee, Kevin Hildebrand, was awarded nominal costs of $1,000, and Anishinaabe Abinoojii Family Services and its employees were awarded $3,623.30, as they were entirely successful on appeal.

The appellants appealed a summary judgment dismissing their action against the Dryden Police Services Board and Anishinaabe Abinoojii Family Services and their employees.

The action stemmed from a warrantless entry into their home by a child protection worker and police officers.

The Court of Appeal upheld the dismissal of claims against the Society defendants due to the expiry of the limitation period.

However, it set aside the summary judgment dismissing claims against the Dryden Police related to the lawfulness of the entry, including negligence, false arrest, false imprisonment, assault and battery, trespass, invasion of privacy, and Charter breaches (ss. 7 and 9), finding the motion judge erred in concluding the entry was lawful under the CFSA without sufficient evidence of statutory preconditions.

The Court also reinstated Mr. Land's claims for negligent investigation and malicious prosecution, while dismissing Ms. Henry's similar claims due to her participation in a diversion program.