Indigenous children

Case management direction on scheduling intervention motions and the hearing date for an appeal from the dismissal of a certification motion in a proposed class proceeding alleging systemic failures in the child welfare system respecting Indigenous children in out-of-home care off-reserve, including over-representation in care and gaps in essential services such as health and education.

The case management judge directed that intervention motion materials be filed by March 5, 2026, responding materials by April 10, 2026, and intervention motions be heard May 8, 2026.

The appeal was scheduled for two days in June or early fall 2026.

The Court of Appeal for Ontario dismissed the appeals of both the Attorney General of Canada and Katherine Cannon from a trial judgment finding them liable for abuse and loss of Indigenous culture suffered by the respondents, three sisters.

The court held that Canada owed an ad hoc fiduciary duty to the respondents as de facto wards in a unique interprovincial context, and that Canada breached this duty by shelving a plan to return the children to their Indigenous maternal family.

The court also upheld findings of negligence and joint and several liability for damages.

The court clarified the limits of sui generis fiduciary duty, the requirements for ad hoc fiduciary duty, and the application of proximity and foreseeability in negligence.

The Children's Aid Society sought an order for extended Society care for three Indigenous children with high needs.

The father sought their return under a supervision order, supported by the mother.

The court found that the protection concerns that led to the children's removal had not been mitigated by the parents, and the Society's efforts to provide culturally appropriate services and support were inadequate.

Despite the children's strong desire to return to their father, the court concluded that extended Society care was the only safe option.

However, recognizing the importance of the children's Indigenous identity and their meaningful relationships with their family, the court ordered robust access for both parents and the paternal grandmother.

The appellant father appealed a summary judgment decision finding that his three children were in need of protection due to a risk of sexual harm.

The father argued that the motion judge applied the wrong test for summary judgment, failed to apply the principles for child protection cases set out in Kawartha, and erred in admitting and weighing evidence.

The Superior Court of Justice dismissed the appeal, finding that the motion judge correctly applied the summary judgment test, properly considered the children's Indigenous status and best interests, and made no palpable and overriding errors in his credibility assessments or evidentiary rulings.

The Children's Aid Society of the Niagara Region brought a motion to place a First Nations child in foster care, while the mother brought a cross-motion to have the child returned to her under supervision.

The court considered the child's history, recent concerns including unexplained bruises, alcohol/cannabis use, and unauthorized caregivers, alongside the principles of the Child, Youth and Family Services Act, 2017 and An Act respecting First Nations, Inuit and Metis Children.

Giving serious weight to the First Nation's judgment, the court found the child could be adequately protected under the mother's supervision with new conditions, dismissing the Society's motion and granting the mother's.

The Respondent Mother, J.K., sought an order for costs against the Children’s Aid Society of Ottawa for alleged delays in returning her child, X.K., to her temporary care and custody.

The Society opposed this request and brought its own motion for costs.

The court dismissed the Mother's motion for costs, finding that the evidentiary record did not support the conclusion that the Society acted in a patently unfair and indefensible manner, despite some initial delays in worker assignment.

The court emphasized the special considerations for First Nations, Inuit, and Métis children under the Child, Youth and Family Services Act, 2017, but concluded that the Mother had not demonstrated sufficient stability for an earlier return of the child.

The Society's motion for costs was adjourned.

This appeal concerns a mother's request for access to three of her six children in extended care following their apprehension by the Children's Aid Society in 2015.

The motion judge granted Crown wardship without access.

The Divisional Court affirmed the decision but applied the old Child and Family Services Act rather than the new Child, Youth and Family Services Act, 2017.

The Court of Appeal allowed the appeal, finding that the transitional provisions of the new Act applied, the record was insufficient to satisfy the expanded access test, the children's Indigenous heritage was not properly considered, and the approach to summary judgment in child protection matters was misapplied.

The matter was remitted to Superior Court for determination under the new legislation.

A paternal grandmother sought custody of two indigenous children and opposed the maternal grandmother's request to relocate with the children from Kenora to Cochrane, Ontario.

The maternal grandmother had been the primary caregiver since the children's births, while both parents struggled with severe addiction issues.

The court awarded custody to the maternal grandmother and granted permission for relocation, finding that stability with the primary caregiver and the maternal grandmother's genuine commitment to the children's welfare outweighed concerns about the paternal grandmother's age and fears of severed contact.

The court established a detailed access regime to preserve the paternal grandmother's relationship with the children.

The plaintiff brought a class action for damages arising from the "Sixties Scoop," alleging that Canada breached its obligation under the 1965 Canada-Ontario Welfare Services Agreement to consult Indian bands before extending child welfare services to reserves.

This failure resulted in the loss of aboriginal identity for thousands of children placed with non-aboriginal foster or adoptive parents.

The court granted the plaintiff's motion for summary judgment, finding Canada liable for breaching a common law duty of care, though it did not establish a fiduciary duty.

The case will proceed to the damages assessment stage.

A summary judgment motion brought by the Children's Lawyer on behalf of two Indigenous children seeking Crown wardship without access.

The maternal grandfather and Walpole Island First Nation opposed the motion, arguing a trial was necessary.

The court found no genuine issue for trial and granted Crown wardship, finding that the children's best interests were served by remaining in their current foster placement with an Indigenous family rather than transitioning to the grandfather's care on the First Nation territory.

The court considered the children's special needs, cultural identity, continuity of care, and the grandfather's inconsistent access pattern over two years.