Kristie Lokmen Tsang

This is a costs endorsement following an appeal in a child protection case.

The appellant, T.M., sought partial indemnity costs against the individual respondents (parents and aunt) and the Oneida Nation of the Thames.

The Court of Appeal for Ontario, guided by the Family Law Rules, declined to award costs against the individual respondents but found it appropriate to order costs against the Oneida Nation.

The court noted that the Oneida Nation's costs submissions contained unsworn, unproven, and disrespectful statements attacking the appellant's character, and that the appellant had to bring a contested motion for continued access pending appeal.

The court ordered the Oneida Nation to pay $10,000 in costs to the appellant.

This appeal concerns whether the appellants, who have cared for an Indigenous child (J.T.) since infancy, are entitled to bring an application for parenting orders under the Children’s Law Reform Act (CLRA).

The motion judge allowed the application, but the appeal judge overturned, finding the appellants were "foster parents" precluded from bringing such an application and that a valid customary care agreement existed.

The Court of Appeal found that Dilico Anishinabek Family Care acted without legal authority by maintaining de facto guardianship after temporary care agreements expired and that subsequent agreements were not valid customary care agreements due to lack of consent from all parties.

The Court held that judicial oversight is required and that the appellants are entitled to pursue their CLRA application, regardless of whether they are characterized as foster parents or customary caregivers, as the CLRA provides an avenue for determining the child's best interests, incorporating national standards for Indigenous children.