CHILD AND FAMILY SERVICES

REVIEW BOARD

BETWEEN:

NM and MM

Applicants

-and-

Kina Gbezhgomi Child and Family Services

Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney

Date: December 11, 2019

Citation: 2019 CFSRB 87

Indexed As: NM and MM v Kina Gbezhgomi Child and Family Services

(CYFSA s.109)

WRITTEN SUBMISSIONS

WM

Lauren M. Conti, Counsel (OCL)

Kina Gbezhgomi Child and Family Services, Respondent

Réjean Parisé, Counsel

Introduction

Introduction

1This is an Application filed under section 109(7) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Applicants are appealing a decision by the Respondent (Kina Gbezhgomi Child and Family Services) to remove the child WM from their foster care. The Applicants were given notice of the Respondent’s decision on October 16, 2019.

the law

The Law

3The relevant portions of section 109 of the Act are as follows:

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 … 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); …

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.

background

Background

4The Applicants have been the foster parents for WM since October 23, 2010. WM is now 11 years-old. WM is an Indigenous child.

5WM’s mother experienced a severe brain injury as a result of a motor vehicle accident and WM was left in the care of his father who engaged in substance abuse. As a result, WM was removed from his care by Dilico Anishinabek Family Care (Dilico). Dilico put forward a motion for extended society care (then Crown Wardship) without access which was approved on October 11, 2011. Responsibility for WM was transferred from Dilico to the Respondent on April 15, 2019.

6The Respondent has decided to return WM to the care of his biological mother and four siblings in the Sheguiandah First Nation (SFN). The Applicants indicated that WM wants to stay with his foster family and does not want to be reunited with his bio-mother. They alleged that WM has threatened to run away if placed with his biological family.

7A pre-hearing teleconference was held on October 30, 2019 during which the Respondent raised the issue of the CFSRB’s jurisdiction to review the Respondent’s decision. The Respondent was directed to provide written submissions regarding jurisdiction on or before November 6, 2019; and the Applicants and the Office of the Children’s Lawyer (OCL) were directed to respond on or before November 15, 2019.

8The Applicants did not provide submissions; however, the Office of the Children’s Lawyer (OCL) made submissions on the child’s behalf.

9In its submissions, the Respondent stated the following:

a) The Respondent has been engaged by the SFN as a support in the repatriation of the child to the care of his mother.

b) The Respondent as well as the SFN will bring a status review to terminate the extended society care order.

c) The SFN is engaged in a customary care process to place WM with his mother as SFN finds that traditional customary care should include care by a parent. The SFN believes that including parents in customary care reflects the intention of the reconciliation process. In addition, the inclusion of customary care in the Act recognizes the authority of First Nations peoples to determine the fate of their children.

d) The Respondent alleges that the mother’s and the SFN’s rights under the Canadian Charter of Rights and Freedoms (“Charter”) were breached as a result of procedural concerns (notice, interpretation of First Nations Rights in the Act) in and around the original motion for summary judgement process which resulted in WM being placed with Dilico rather than the Respondent.

10The OCL submitted that the CFSRB has jurisdiction to review the Application based on the provisions of section 109. It argued that there are no exceptions when the criteria in section 109 are met, which has been the case with this Application. It argued that the CFSRB is required to hold a hearing to determine which action is in WM’s best interests.

11The OCL submissions also addressed the Charter and alleged procedural fairness issues related to the October 11, 2011 decision to place WM in extended society care. The OCL argued that these arguments did not focus on the issue and amounted to a collateral attack on the original order. It argued that the CFSRB does not have the authority to challenge the order made by the Ontario Court of Justice.

12The Respondent provided the CFSRB with a reply to the OCL’s submissions. In its reply, the Respondent’s counsel argued:

a) The Respondent will proceed with a Status Review to terminate the extended care order in response to the SFN process.

b) Issues related to procedural and Charter concerns with the initial extended care decision will be determined by the Court and not the CFSRB.

c) The change in placement for WM is an exercise of authority by the SFN. A review under section 109 relates to a decision by a society. The respondent society has not made the decision to move the child; rather, it is acting as a resource to the SFN in implementing the decision to remove WM from foster care.

d) This Application raises questions related to the authority of the CFSRB in relation to First Nations, the customary care process, Charter rights of WM and his mother, as well as procedural fairness concerns with the original Court order.

analysis

Analysis

13My analysis of the CFSRB’s jurisdiction to review the Application focuses on the provisions of s. 109(7) of the Act.

14Firstly, I considered whether the prerequisites for the CFSRB to undertake a review under this section have been met. I considered whether the child is in extended society care at the time of the Application under paragraph 3 of subsection 101(1) of the Act. The Summary Judgment of October 11, 2011 is evidence that WM was placed in the extended care (Crown Wardship at that time) of Dilico. WM was transferred to the extended care of the Respondent on April 15, 2019, and he remains in extended society care. As such, this prerequisite has been met.

15Secondly, I considered whether the child has lived continuously with his foster parents for two years. The Application indicated that WM has lived continuously with the Applicants for nine years (since October 25, 2010). The Respondent did not challenge this fact. As such, this prerequisite of the section 109(7) test has been met.

16Thirdly, I considered whether WM had been removed based on a decision by a society. In its letter of October 16, 2019 to Dilico, the Respondent indicated that WM would be removed from his foster family under section 109 of the Act. The Respondent’s counsel argued that it was the SFN which proposed the removal of WM. The SFN has proposed the move as an exercise of its authority to determine the fate of its own children. In addition, the Respondent’s counsel argued that the Respondent’s role is one of a resource to the SFN, rather than a decision-maker in relation to the removal decision.

17After reviewing the Act, I find the SFN does not have the authority to remove WM from foster care for the reasons that follow.

18Section 109(7) of the Act clearly specifies the authority to remove a child under subsection 109 rests with a society. The Act addresses the relationship between FNIM Child Welfare agencies and FNIM Bands and communities in subsection 70 (1) under part IV of the Act which states: “A band or First Nations, Inuit or Métis community may designate a body as a First Nations, Inuit or Métis child and family service authority. Subsection (2) states that:

Where a band or First Nations, Inuit or Métis community has designated a First Nations, Inuit or Métis child and family service authority, the Minister,

a) shall, at the band’s or community’s request, enter into negotiations for the provision of services by the child and family service authority;

b) may enter into agreements with the child and family service authority and, if the band or community agrees, any other person, for the provision of services; and

c) may designate the child and family service authority, with its consent, as a society under subsection 34(1).

19These provisions provide a significant role for Bands and/or communities to designate a family service authority; however, it is the Minister who then designates, negotiates and enters service agreements with the child and family service authority to provide services. Under subsection 34(2) of the Act, the Minister has the authority to impose conditions on the designation or functions of a society as outlined in subsection 35(1). A FNIM Band or community does not have the authority to provide services under the Act except in relation to customary care agreements.

20Section 111(1) addresses the roles and responsibilities where a child is in extended care. It states:

Where a child is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116 (1)(c ), the Crown has the rights and responsibilities of a parent for the purpose of the child’s care, custody and control, and the Crown’s powers, duties and obligations in respect of the child, except those assigned to a Director by this Act or the regulations, shall be exercised and performed by the society [emphasis added] caring for the child.

21This provision clearly indicates that the Crown has delegated its rights and responsibilities to act as a parent of a child in extended care to the society caring for the child.

22In respect of the Application before me, the Act addresses the removal of a child from foster care in section 109. Subsection 6 indicates that it is the society which proposes the removal of a child from a foster home where it is in the child’s best interests to do so. This subsection does not provide for any other decision-maker or authority to propose a child’s removal.

23I considered the Respondent’s counsel’s argument that the Respondent is acting only as a resource to the SFN in its exercise of its rights. This argument is undermined by the Respondent’s actions in several ways. Firstly, I note that the letter of October 16, 2019 to Dilico indicated that WM would be moving based on section 109(1) of the Act. The Act specifically states that a society has the authority to propose the removal of a child from the foster parent. Therefore, the Respondent’s authority to propose removing WM comes from its role as a society and not from any “resource” role taken by the Respondent.

24Secondly, at no time did the Respondent indicate in its October 16, 2019 letter that it was acting on behalf of or in support of the inherent authority of the SFN to direct the care of its First Nations’ child. The letter did not indicate that Dilico or the Applicants should communicate with the SFN about this decision, and it indicated that the parties had a right to appeal the decision. The only authority for appeal is by following the provisions in subsection 109(8) which relate to the society’s proposal. Again, the Respondent is acting based on the authority provided to it under the Act and not in a resource role.

25Thirdly, the Respondent’s counsel indicated that the Respondent is submitting a status review application. This can only be done through the authority granted to it as per subsection 113(2) of the Act. As such, I find that the Respondent is taking an active role in determining the placement of the child through its decision to submit a status review application. Entering a legal proceeding in relation to the care, custody, or supervision of a child is much more than acting as a “resource” to the SFN.

26Given the provisions in the Act discussed above, I find that the SFN does not have the authority to propose the removal of WM from his foster home. This authority under the Act belongs squarely with the Respondent. I therefore find that the prerequisite that a society makes the decision to remove a foster child from a home has been met.

27In its submissions, the Respondent raised many questions related to the integration of concepts of reconciliation in implementing the provisions of the Act as they relate to FNIM Bands, communities, and children.

28In making this jurisdictional decision, I carefully considered the provisions of the Act which relate to the needs and interests of FNIM children, Bands and communities. I considered the Preamble of the Act which recognizes the harm that has been committed by the historical disregard for the importance of Indigenous culture and participation in child welfare. I also considered the importance for FNIM Bands and communities to maintain family and community connections for their children.

29The Preamble to the Act states:

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.

30I considered the jurisprudence cited by the Respondent. For example, the Catholic Children’s Aid Society of Hamilton v. G.H., T.V. and Eastern Woodlands Métis of Nova Scotia, 2016 ONSC 6287 decision at paragraphs 26 and 27 highlights safeguards in the Child and Family Services Act (precursor to the Act) which work to ensure respect for the cultural heritage and traditions of FNIM communities in relation to the best interests provisions. These safeguards include:

a) the recognition of the rights of FNIM peoples to provide their communities with services that recognize their culture, heritage, traditions and concept of extended family

b) notice requirements to Bands and/or communities to participate in all stages of child protection proceedings; the right for Bands and/or communities to be a party at proceedings

c) the right to initiate court proceedings related to access, status reviews, and appeals of a child protection order

d) duty of child protection agencies to consult regularly with Bands and/or communities

e) for courts to address a FNIM child’s culture in relation to placement or residential placement, customary care, and extended society care; openness, adoption planning; and placement of children

31In Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516 at paragraphs 32-34, the Court found that a finding of Indigenous status for a child allows for parties, including First Nations, to promote the best interests, protection and well-being of children through child-focused solutions:

This finding ensures that a First Nations, Inuit or Métis community with connection to the child is recognized as a party and participant in the decision-making around that child. With the recognition comes the expectation that that community may be able to help the society, parents and court make a plan addressing the best interests of that child.

32A plain reading of the wording of the Act commits and directs decision-makers to bear in mind the particular history, experience, cultures, and practices of FNIM peoples in the application of the Act and Regulations.

33I considered the provisions of the Act in relation to the role of FNIM Bands and communities. Subsection 72 of the Act provides decision-makers with direction regarding regular consultation and service planning and exercise of powers for FNIM communities and children; however, the direction does not provide FNIM communities with authority to decide what services are in the best interests of its children.

34The Act also makes several qualifications in relation to the guiding principles in the Preamble. The Act uses the terms “wherever possible” in relation to its commitment to reconciliation:

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.

35I also considered the principles in the Preamble in relation to the paramount purpose of the Act: the promotion of the best interests, protection and well-being of children. In a recent decision (Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516) the Court reflected on the provisions in the Preamble of the Act regarding FNIM Bands and communities. At paragraphs 29 – 31, the Court stated:

Presumably the preamble is intended to highlight the intention of the Government in making some of the changes it has to this legislation. The specific purposes of the act remain, however, in section 1 of Part 1 of the Act itself.

While there appears to be a more detailed emphasis on the importance of the family and the provision of services, the paramount purpose remains to promote the best interests, protection and well-being of children.

However, the comments in the preamble should sharpen the court’s focus in dealing with the individual child and that child’s best interests.

36I concur with the Court that decision-makers are guided by the paramount purpose of the Act which is the promotion of the best interests, protection and well-being of children. In addition, by qualifying FNIM involvement by the words “wherever possible” the writers of the Act have subordinated the provisions in the Preamble to the best interests, protection and well-being of the child.

37In the Application before me, the Respondent has asked the CFSRB to respect the SFN’s alleged authority to decide to remove WM from foster care. While a liberal interpretation of the Act is encouraged in the Preamble and the principles of reconciliation, there is nothing in the Act that allows for decision-makers to concede jurisdiction or abrogate any provision of the Act in the interests of FNIM Bands, communities, and children. There are no provisions in the Act that would remove the CFSRB’s jurisdiction to consider the removal of a child from foster care. The CFSRB has authority to vary rules and procedures; however, it does not have the authority to choose which sections of the Act to apply and which not to apply.

38FNIM communities and Bands have specified and dedicated roles to play in the care for their children under the Act. These roles reflect the rights of FNIM Bands and communities enshrined in the Constitution and a spirit of reconciliation to address historic mistreatment of FNIM children and communities; however, these rights do not extend to an abrogation or variation of specific provisions under the Act. The CFSRB has little room to interpret provisions in the way suggested by the Respondents.

39While I have found that the CFSRB has jurisdiction to consider the Application, an analysis of the merits of this Application must be alert, alive and sensitive to the directions provided in the Preamble as well as the spirit and intent of reconciliation.

SUMMARY

Summary

40A review of subsection 109(8) of the Act indicates that the CFSRB is the only entity that has authority to review a proposal to remove a child from foster care and to hold a hearing. FNIM Bands and communities are to be informed of the decision and are parties to the hearing; however it is the CFSRB who, under subsection 109(15) has been directed to: “in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision”.

order

Order

41Because of the reasons outlined above, I find the CFSRB has jurisdiction to review the proposed removal of WM from his foster family pursuant to subsection 109(8) and (9) of the Act.

NEXT STEPS

Next Steps

42Given that I have decided the CFSRB has jurisdiction to consider the Application; and given the importance of an early resolution of foster care disputes in the Act and regulations, a pre-hearing teleconference will be scheduled as soon as possible to make arrangements for a hearing on the merits of the Application.

confidentiality order

Confidentiality Order

43Pursuant 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.