WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.—(3) Offences re publication.— A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
ONTARIO COURT OF JUSTICE
BETWEEN:
NIIJAANSINAANIK CHILD AND FAMILY SERVICES
Applicant,
— AND —
T.L., P.D., and HENVEY INLET FIRST NATION
Respondents,
— AND —
A.P. and K.P.
Moving Parties
Before Justice G. Jenner
Heard on June 10, 2026
Reasons for Judgment released on June 23, 2026
Robin Saari....................................................................... counsel for the applicant society
Diane Barker................................................... counsel for the respondents T.L. and P.D.
Debra Snider............................. counsel for the respondent Henvey Inlet First Nation
Lance Talbot............................................. counsel for the moving parties, A.P. and K.P.
James Weppler……………………….counsel for the Office of the Children’s Lawyer,
legal representative for the child
JENNER J.:
I. Introduction
1A.P. and K.P. are the foster parents of the three-year-old child who is the subject of this child protection application. They have been the child’s foster parents since the child was two weeks old. The foster parents move to be added as parties to the application. Their motion is opposed by the child’s mother, T.L., the child’s father, P.D., the applicant society, Niijaansinaanik Child and Family Services, as well as by Henvey Inlet First Nation (HIFN), with which the child is affiliated.
II. Brief Background
2The child was brought to a place of safety in early March 2023 and placed with the foster parents. This placement was formalized by court order on March 15, 2023. That order remains in effect, and the foster parents have had care for the child on an uninterrupted basis since. The foster parents are Indigenous, but not members of HIFN. They reside in Wahnapitae First Nation.
3The child was found to be in need of protection pursuant to ss. 74(2)(b)(ii), (iii) and 74(2)(h) of the Child, Youth and Family Services Act (CYFSA) on January 20, 2025. The trial to determine disposition is scheduled to commence September 21, 2026. At present, the parents have weekly supervised visits with the child. At trial, they will be seeking a return of the child to their care. In the alternative, they will ask that the child be placed with his paternal grandfather.
4The child has an older sibling in the care of their paternal grandfather. The society’s position is that, at 78 years of age, the paternal grandfather is not positioned to care for the subject child, but that he is able to supervise sibling and parental access for the child appropriately. The society intends to seek that the child be placed in the care of the foster parents pursuant to a deemed custody order under s. 102 of the CYFSA, with supervised parental, grandparent, and sibling access maintained. It is not lost on the court, and it was communicated clearly to the parties, that s. 102 does not permit an order to be made placing children in the custody of their current foster parents. The parties are alive to alternatives: see Children’s Aid Society of the Regional Municipality of Waterloo v. H.P., 2025 ONSC 3731. HIFN also supports placement of the child long-term with the foster parents, but through a customary care agreement or an order for extended society care. The OCL also supports the child’s placement long-term with the foster parents.
III. Issue and Overview
5The sole issue before the court at this time is whether the foster parents should be granted party status. The disposition of the application itself is not before me.
6There are three routes to party status in a child protection application involving an Indigenous child:
(1) The person is defined to be a party or to have the right to have party status under An Act respecting First Nations, Inuit and Métis children, youth and families (the Federal Act);
(2) The person is defined to be a party under the CYFSA; or
(3) The court makes a determination that the person should be added as a discretionary party pursuant to r. 7(5) of the Family Law Rules.
7No argument is advanced that the foster parents meet the definition of a party under the CYFSA. For the reasons that follow, I am persuaded that the foster parents do not have a right to party status under the Federal Act, but that I should exercise my discretion under r. 7(5) to add them as parties.
IV. The foster parents do not have a right to party status under the Federal Act
8The foster parents’ claim to party status under the Federal Act turns on whether “care provider” in s. 13 of the Federal Act includes foster parents. That question must be answered applying the modern approach to statutory interpretation. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. I must also be mindful of s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”
9Section 13 of the Federal Act provides that “[t]he child’s parent and the care provider have the right to make representations and to have party status.” “Care provider” is defined in s. 1 of the Act as “a person who has primary responsibility for providing the day-to-day care of an Indigenous Child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs.”1
10The foster parents rely on the ordinary language of the s. 1 definition to argue that, as the child’s caregivers, they qualify. It bears emphasizing that while the foster parents have been the child’s foster parents for over three years, the textual argument they advance does not turn on the duration of their involvement with the child. If a foster parent is included in the definition of “care provider” by virtue of having primary responsibility for providing the day-to-day care of the child, then it appears to me they obtain that status from the moment they assume that role.
11At first blush, the foster parents’ argument is compelling. Foster parents are easily described as the primary persons responsible for providing the child’s day-to-day care. The applicant society may ultimately have temporary custody and legal responsibility for the child, but it is awkward to suggest that the society is a person, or that the society, rather than the foster parents, has primary responsibility for the child’s “day-to-day care.” The term “day-to-day care” is more suggestive of actual care—feeding, bathing, getting to and from school, etc.—than custody or a legal relationship.
12When these provisions, however, are read in their full statutory context, the interpretation advanced by the foster parents encounters significant difficulty.
13The scheme of the Act provides important context for understanding the role contemplated for a “care provider.” As explained in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, (the Federal Act Reference), at para. 19, the Act, among other things, performs two interrelated functions: it establishes national standards governing the provision of “child and family services” in relation to Indigenous children, and it affirms the inherent jurisdiction of Indigenous groups, communities, and peoples in that area. Within that framework, “child and family services” are broadly defined to include preventative, early intervention, and protection services. The Act prioritizes the best interests of the child (s. 10), requires notice to parents, care providers, and Indigenous governing bodies before significant measures are taken (s. 12), and establishes a clear hierarchy of placement, favouring family, community, and Indigenous connections (s. 16).
14In my view, the scheme of the Act draws an implicit distinction between those who form part of the child’s family, community, or Indigenous governance structure, and the state’s own provision of child and family services. That distinction should inform the meaning of “care provider” in s. 13. Unlike parents, relatives, community members, or Indigenous governing bodies, who form part of the child’s pre-existing network of care, foster parents provide care within a placement created by state intervention. The foster parent’s role—while often deeply committed and of great importance to the child—remains part of the delivery of child and family services. The same is true in a group home setting. The staff member or supervisor most directly responsible for a child’s day-to-day care would not, for that reason alone, be understood to have a right to party status. This is not to diminish the significance of the caregiving role of foster parents; only to recognize their role in service delivery, and their distinctiveness from other parties whose relationship to the child arises independently.
15In my view, this interpretation is one the text of s. 1 can plausibly bear. If foster care is part of the provision of “child and family services,” then Parliament did not need to expressly exclude foster parents from the definition of “care provider.”
16That interpretation is also more consistent with the way foster care is understood in Ontario’s child protection scheme. The term ‘foster parent’ does not appear in the Federal Act, but the CYFSA defines “foster care” as the provision of residential care to a child by and in the home of a person who receives compensation for caring for the child (except through the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997), and who is not the child’s parent or a person with whom the child has been placed for adoption. Foster parent is stipulated as having a corresponding meaning and foster parents are explicitly excluded from the otherwise broad definition of “parent” under Part V of the CYFSA: s. 74(1). A foster parent has long been understood by the courts as an interim role meant to provide temporary care for children pending their return to their family or their transfer to a more permanent placement. Long before the Federal Act existed, courts have cautioned that foster parents are not intended to provide a comparative analysis for the determination of a child’s best interests from the outset of state intervention: L.(R.) v. Children’s Aid Society of the Niagara Region, 2002 CanLII 41858 (Ont. C.A.), at para. 38.
17It is, of course, Parliament’s prerogative to override or depart from provincial child protection schemes. But considering the Federal Act’s purposes, it appears implausible that Parliament sought to deviate so sharply and elevate foster parents to parties by right.
18The Supreme Court of Canada has, in the Federal Act Reference, made detailed observations of the context in which the Federal Act was enacted and its objects. I rely on that analysis in its entirety but will focus here on the most critical elements for present purposes. As the Supreme Court of Canada explains, the Act is directed in part at addressing the historic overrepresentation of Indigenous children in state care and the harms of colonial child welfare practices, including the residential school system and the ‘Sixties Scoop’: paras. 10–11. Its overarching purpose is to protect the well-being of Indigenous children, youth, and families by promoting culturally appropriate child and family services, and in so doing to advance reconciliation with Indigenous peoples: para. 41. This purpose is carried out through three interrelated objectives: affirming Indigenous jurisdiction, establishing national standards, and implementing aspects of the United Nations Declaration on the Rights of Indigenous Peoples: paras. 42-45.
19Interpreting “care provider” to include foster parents as of right would immediately elevate a temporary, state-driven placement to a position of procedural entitlement not contemplated by the Act’s hierarchy of relationships. It would risk shifting the statutory focus away from family, community, and Indigenous governance toward the state-created placement. That result would sit uneasily with the Act’s emphasis on restoring and preserving Indigenous jurisdiction over Indigenous child welfare. It would also risk replicating, in a modern form, the dynamics the legislation is intended to redress, including the displacement of Indigenous children from their families and communities that characterized the ‘Sixties Scoop.’
20Considering the text, scheme, and purposes of the Federal Act together, I am not persuaded that foster parents fall within the meaning of “care provider” for the purpose of s. 13. To interpret the provision otherwise would extend automatic party status to those whose role arises from a state-created placement, in a manner that is inconsistent with the Act’s structure and objectives.
V. What discretionary participation rights should the foster parents be granted?
21The Federal Act does not grant the foster parents a right to party status. But neither does it necessarily preclude their addition as parties. The court retains the discretion to grant the foster parents party status pursuant to r. 7(5), which provides that the court “may order that any person who should be a party shall be added as a party”.
22In Children’s Aid Society of London and Middlesex v. H. (S.), 2002 CanLII 46218 (Ont. S.C.), at para. 22, the court set out the following principles to consider before adding a party to a child protection proceeding:
(a) whether the addition of the party is in the best interests of the child;
(b) whether the addition of the party will delay or prolong proceedings unduly;
(c) whether the addition of the party is necessary to determine the issues; and
(d) whether the additional party is capable of putting forward a plan that is in the best interests of the child.
23Per Children’s Aid Society of Algoma v. V.C., 2011 ONCJ 83, at para. 12, courts have also considered,
(e) whether the person sought to be added has a legal interest in the proceeding in the sense that an order can be made in favour of or against that person.
24This framework developed prior to the introduction of the Federal Act. In my view, in cases to which the Federal Act applies, the court might also ask itself,
(f) whether adding the party would be consistent with or frustrate the Federal Act’s purposes and principles, including the paramountcy of the child’s best interests, cultural continuity, and substantive equality.
25In the specific context of adding foster parents as a party, the Court of Appeal in A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, at paras. 25-26, has endorsed the consideration of a number of additional factors:
The age of the child and the time line considerations of the CFSA;2
Whether there has been a finding of a need of protection at the time the request for participation is made;
Whether the foster parents will be called to testify and whether their evidence will be challenged;
Whether the persons or parents who had charge of the child at the time of commencement of the proceedings are presenting a plan;
The time of continuing placement of the child;
Whether there has been any contact with the proposed caregivers;
Whether the application has been amended; and
Such other considerations that suggest the foster parent’s involvement would clarify the best interests of the child.
26In assessing these various factors, I must also bear in mind that I am not deciding between full participation of the foster parents and no participation at all. Section 79(3) of the CYFSA provides that any person, including a foster parent, who has had continuous care of a child during the six months preceding the hearing is entitled to notice of the hearing, may be present at the hearing, may be represented by a lawyer at the hearing, and may make submissions, but shall take no further part in the hearing without leave of the court. The stipulation “without leave” implies that the court may grant further participatory rights on a case-by-case basis.
27The question, then, is not a binary inquiry as to whether the foster parents should be added as parties, but rather, considering r. 7(5) and CYFSA s. 79(3) together, what level of participation or what bundle of participatory rights is most appropriate.
28In my view, in the particular circumstances of this case, granting the foster parents party status is appropriate and in the child’s best interests. The circumstances I have considered include:
The foster parents have been the child’s continuous caregivers for all but the first two weeks of the child’s life. The child is three years old. The foster parents’ involvement in this child’s life goes far beyond short-term, temporary care. The immense import of their relationship to the child is reflected in the positions of the society, HIFN, and the OCL, all of whom support long term placement of the child with the foster parents, with appropriate access for the child’s parents, sibling, and grandfather.
Adding the foster parents as parties will not delay the trial on disposition. The foster parents and their counsel have confirmed they are available for the existing trial dates. The applicant society will have prepared disclosure to meet their obligations to the parents, so there is no reason to believe making disclosure to the foster parents cannot occur in a timely manner. The court is well-positioned to adjust any necessary timelines to ensure that the trial proceeds as scheduled.
The foster parents are capable of advancing a plan of care for the child. While the society intends to advance a plan of care involving the foster parents in any event, the foster parents are best positioned to advance that plan.
The foster parents have unique insight into the child’s needs and circumstances, including special medical, developmental, and nutritional needs detailed in their affidavit evidence, and unchallenged by any party. It is in the child’s best interests for the foster parents’ level of participation to extend to presenting and challenging evidence at the hearing. The Court of Appeal for Ontario has recognized the benefit in permitting a care giver to provide the court with current, relevant information about the child and their care: Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149, at para. 50. While that observation was made in the context of a kin caregiver, it is no less true of long-term foster parents.
Access to full disclosure also serves the foster parents’ ability to present and challenge evidence effectively. I am mindful that the foster parents’ receiving disclosure impacts the privacy interests of the parents and the child. In my view, however, that prejudice is outweighed by the benefits to the child of allowing the child’s lifelong primary care givers to present fully informed evidence responsive to the child’s circumstances.
The potential outcomes of the trial include an order which may see the foster parents take on a different role than that they currently legally occupy, and which may place the child with them under binding conditions. In this way, the foster parents have a legal interest in the matter.
The addition of more parties who may oppose the parents’ position poses risk of unfairness to the parents. The court, however, is familiar with the dynamics of multi-party proceedings, is alive to the vulnerability of parents, and is quite capable of managing the trial accordingly. The trial judge will be well-positioned to ensure no prejudice arises to the parents in their ability to present their case, including by limiting unduly repetitive examinations, cross-examinations, and submissions from aligned parties.
The present alignment or substantial overlap of the foster parents’ anticipated trial position with that of the society and HIFN is no substitute for the foster parents’ direct participation. Child protection proceedings are fluid. The society has an ongoing obligation to assess the child’s and the parents’ circumstances. There is no guarantee that the parties’ present alignment with the foster parents will be maintained through to the completion of the trial.
The principles animating the Federal Act are not undermined by granting the foster parents party status in these particular circumstances. My conclusion that foster parents are not entitled to party status as of right under the Federal Act does not preclude me from granting discretionary participation where doing so assists in determining the child’s best interests and does not displace the Act’s emphasis on cultural continuity, family and community connection, substantive equality, and the jurisdiction and role of the child’s Indigenous group, community or people. The foster parents’ addition as parties does not determine the child’s placement, alter the governing statutory priorities, or lessen the trial judge’s obligation to apply the Federal Act. It simply ensures that, in light of their sustained caregiving role and the child’s circumstances, they may participate fully in the hearing at which those principles will be applied.
VI. Conclusion
29The foster parents are granted party status pursuant to r. 7(5).
30I thank counsel for their helpful materials and submissions.
31I am advised that mediation is ongoing in this matter. Despite the procedural disagreement animating this motion, the parties are to be commended for their continued cooperation in pursuit of the child’s best interests.
Released: June 23, 2026
Signed: Justice G. Jenner