CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
KP Applicant
-and-
Wabaseemoong Child Welfare Authority Respondent
DECISION
Adjudicator: Christine Staley Date: July 31, 2025 Citation: 2025 CFSRB 99 Indexed As: KP v Wabaseemoong Child Welfare Authority (CYFSA s.109)
Introduction
1The Applicant seeks a review of the Respondent’s decision to remove KS, AF, and TM (“the Children”) from his care.
2The Applicant filed an Application with the Child and Family Services Review Board (“CFSRB”) under section 109 of the Child, Youth and Family Services Act 2017, SO 2017, c.14, Sched.1 (“the CYFSA”) on July 4, 2025.
3On July 4, 2025, the CFSRB sent a the Application to the Anishinaabe Abinoojii Family Services (“AAFS”), believing it was the agency involved.
4In order to determine eligibility of the Application, on the same day, the CFSRB sent a Case Management Direction (“July 4 CMD”) to the Applicant and AAFS directing that both parties provide submissions to the CFSRB by July 9, 2025 as follows:
“The CFSRB seeks clarification from the Applicant and Respondent regarding the jurisdiction of the CFSRB to review the Application, specifically whether the children were in customary care or extended society care, the timing of removal of the children and the timing of the Letter provided by the Respondent.”
5On July 9, 2025, the CFSRB received an email from AAFS stating:
“AAFS submits that they no longer provide any services to children of Wabassemoong Independent Nations as of April 1, 2021, and thus is not the appropriate Respondent in this matter.
Rather, the designated service provider would be Wabaseemoong Child Welfare Authority (“WCWA”) as they are governed by their Code (“WIN Code”) as well as the coordination agreement between WCWA and Canada under s. 20(2) of the Act respecting First Nations, Inuit and Métis children, youth and families.
6After receiving the information about the appropriate Respondent from the AAFS , on July 10, 2025, the CFSRB sent the Application to WCWA (“Respondent”). On the same day, the CFSRB also sent a CMD dated July 10, 2025 (“July 10 CMD”) to the Applicant and the Respondent directing the parties to provide submissions as previously directed to AAFS and the Applicant (see paragraph [4] above) by July 15, 2025.
7The CFSRB received submissions from the Applicant and Respondent by the required date.
ISSUE
8The issue is: does the CFSRB have jurisdiction to review this matter?
RESULT
9The CFSRB does not have jurisdiction to review this matter. The Application is dismissed.
ANALYSIS
Does the CFSRB have jurisdiction to hear this matter?
10After reviewing the submissions presented, I find that the CFSRB does not have jurisdiction to review this matter.
11Section 109 of the CYFSA states that the CFSRB may review an application pertaining to a proposed removal from a foster parent of a child who is in extended society care and has lived with a foster parent for two years.
12The Applicant submits that the Children must have been in the extended care of the society as all three would have surpassed their statutorily permitted days in interim society care. As such, the CFSRB has jurisdiction to review the Application.
13The Respondent submits that the CFSRB lacks jurisdiction to consider the Application as the matter is governed under its Customary Care Code (the “Code”) which takes paramountcy over the CYFSA.
14The Children were placed with the Applicant under the traditional child welfare laws and under the authority of Wabaseemoong Independent Nations (“WIN”) by AAFS. Since the Children’s placements, WIN began administering its own child and family services program.
15WIN enacted the Code on January 8, 2021 and entered into a Coordination Agreement with Canada and Ontario pursuant to Section 20(2) of the Act respecting First Nations, Inuit and Metis children, youth and families (the “Act”) on March 10, 2022.
16Part I of the Code sets out that WIN possesses the jurisdiction for the safety and security of WIN children. WIN delegates this responsibility to dispense customary code practices regarding child protection and family services to the Respondent.
17Part III of the Code, the Wiidokazowd, a committee established under the Code, is empowered to:
…[H]ear and partake in case reviews, case conferences, case consultation that pertain to the provision of protection or; to issue temporary placements for children and Declare Customary Care for up to one year; to provide pertinent family information and advice; to explore alternative actions as may be just and reasonable to contribute to the provision of services. The role of the Wiidokazowad is designed to carry out the facilitative intent and purpose of this Customary Care Code.
18As such, the Wiidokazowd is granted authority to review and decide on matters involving the provision of child protection and family services, including the review of actions and services provided by the Respondent.
19The Respondent submits that given the inherent conflict presented between the authority provided within the Code to review this matter, and the jurisdiction enunciated within the CYFSA for the CFSRB to potentially review this matter, the Code must prevail.
20Section 18 (1) of the Act provides that:
The inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.
21Further, Section 22 (3) of the Act provides:
For greater certainty, if there is a conflict or inconsistency between a provision respecting child and family services that is in a law of an Indigenous group, community of people and a provision respecting child and family services that is in a provincial Act or regulation, the provision that is in the law of the Indigenous group, community or people prevails to the extent of the conflict or inconsistency.
22The Respondent’s position is further supported by the Supreme Court of Canada in Reference re An Act respecting First Nations, Inuit and Metis children, youth and families (2024 SCC 5) at paragraphs 131-132 where it spoke to Section 22(3) of the Act as follows:
The laws of Indigenous groups, communities or peoples that are incorporated by reference will have the force of law as federal law; laws incorporated into federal law apply as federal law.
Under the doctrine of federal paramountcy, the provisions of a valid federal law prevail over conflicting or inconsistent provisions of a provincial law.
23As made clear by the Act, and confirmed by the Supreme Court of Canada, the conflict presented by the CYFSA and the Code must be decided in favour of the Code. As such, the CFSRB lacks jurisdiction to review this matter.
24Given the CFSRB’s lack of jurisdiction in this matter, there is no need to review the timing of the removal of the Children or the timing of the letter.
ORDER
25The Application is dismissed.
CONFIDENTIALITY ORDER
26Pursuant 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.
Christine Staley
Christine Staley Member