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:
Dilico Anishinabek Family Care
Applicant,
— AND —
K.T., K.J., Ginoogaming First Nations, Aroland First Nation
Respondents
Before Justice J. Malette
Heard on February 9, 2026
Reasons for Judgment released on June 25, 2026
Tyra Ohman..................................................................... counsel for the applicant society
Kim Guillemette................................................ counsel for Ginoogaming First Nations
Marco Pasquale Frangione......................................... counsel for Aroland First Nation
No appearance by or on behalf of K.T. and K.J.
MALETTE J.:
1The Applicant brings this motion for a final order permitting Dilico Anishinabek Family Care (“Dilico”) to withdraw this protection application in favour of 3 customary care agreements (“CCAs”). The matter concerns three children: a 10-year-old boy born […], 2016, an 8-year-old boy born […], 2017, and a 7-year-old girl born […], 2018.
2The children were brought to a place of safety on February 22, 2024. At that time, the whereabouts of the respondent parents were unknown. Since then, and despite being properly served, neither parent has had access to the children or participated in these proceedings.
3Dilico, together with Ginoogaming First Nation and Aroland First Nation, seeks an order noting the respondent parents in default and dispensing with their consent to the CCAs. That is the central issue on this motion.
Issue
4Do the CCAs executed without the Respondent Parents’ consent constitute valid agreements under the Child, Youth and Family Services Act, 2017, c 14, Schedule 1 (CYFSA)?
5For the reasons that follow, I find that the CCAs executed without the Respondent Parents’ consent constitute valid agreements.
Background
6The children resided in out-of-care kinship placements with their maternal grandparents from September 14, 2020, until February 22, 2024. Dilico commenced this protection application on February 27, 2024, after the kinship placements broke down. The children were then placed in an Indigenous foster home, where they have remained and made significant progress. Importantly, the children have been placed together.
7Dilico identified numerous protection concerns, including both parents’ significant history of alcohol and substance misuse, domestic violence, unstable housing, failure to engage with Dilico or participate in these proceedings, and the inability to locate either parent since the commencement of the application.
8The children are thriving in their current foster placement and have demonstrated significant developmental, educational, and medical improvements. The children have various diagnoses, including autism, non-verbal autism, and ADHD. Since coming into care, they have received significant dental treatment arising from prior unmet dental needs and tooth decay. Each child has an Individual Education Plan and attends school regularly.
9The caregivers participate in sessions through the Ontario Autism Program to assist them in meeting the children’s needs. The program provides support, resources, and strategies to assist with caring for children with ADHD and non-verbal autism
10The caregivers have actively supported the children’s family and cultural connections by arranging transportation for visits with their maternal grandfather, attendance at cultural events, and ongoing contact with siblings who are not the subject of this proceeding.
Cultural and Societal Context
11Indigenous children remain significantly overrepresented in the Canadian child welfare system. This overrepresentation has been linked to the enduring effects of colonial policies, including residential schools, the Sixties Scoop, intergenerational trauma, and the historical tendency to equate poverty in Indigenous communities with neglect
12In 2021, Indigenous children under the age of 15 represented approximately 53.8% of children in foster care in Canada, despite accounting for only 7.7% of the population of children under the age of 15.1
13The disproportionate apprehension of Indigenous children arose, and continues to arise, in part from the lack of culturally appropriate supports and placement options capable of preserving Indigenous children’s cultural identity, community connection, and sense of belonging.2
14In this case, culturally appropriate supports and placement resources are available, and the parties have worked collaboratively to ensure cultural continuity for the children. However, that outcome cannot be achieved unless the CCAs executed without the respondent parents’ consent constitute valid agreements under the CYFSA. This brings me to the central issue on this motion.
15For the reasons that follow, I find that the CCAs executed without the Parents’ consent constitute valid agreements. Although parental consent remains critical, there are circumstances in which it can be dispensed.
16I find that the Children should not be prejudiced by lack of parental involvement in the proceedings. If I deny the CCAs, the alternative relief sought by Dilico would be an order for extended society care, which would be contrary to the preferred approach for indigenous children.3 Entering into a CCA encourages resolution of child protection issues in a “culturally sensitive and appropriate manner, by agreement.”4
Analysis
What is Customary Care
17The paramount purpose of the Child, Youth and Family Services Act (CYFSA)5 is to promote the best interests, protection, and well-being of children. In doing so, the Act requires that services be delivered in a manner that supports the autonomy and integrity of the family unit and uses the least disruptive course of action.
18It emphasizes individualized, child-centred decision-making that respects each child’s need for continuity of care and stable relationships within their family and cultural environment, while accounting for their developmental, emotional, physical, and spiritual needs.
19The CYFSA further requires consideration of a child’s identity and background, including race, culture, language, and other personal characteristics. It promotes early planning to achieve timely, permanent outcomes in the child’s best interests, and encourages the meaningful participation of the child, their parents, and, where appropriate, their extended family and community in decision-making.
20As such, it includes an additional purpose distinct to First Nations, Inuit and Métis Peoples. Wherever possible, they should be entitled to provide their own child and family services, and all services to First Nations, Inuit, Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of extended families.6
21This can be achieved by way of customary care, which is defined in the CYFSA as “the care and supervision of a First Nations, Inuk, Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis Community. “[^^7]
22Ultimately, a Children’s Aid Society is statutorily obligated to pursue a plan of customary care of Indigenous children8
23This is important because customary care provides an alternative to in-court child protection proceedings, permitting Indigenous children to maintain meaningful connections to their culture while ensuring their health and safety. It recognizes the distinct and central role of First Nations communities when an Indigenous child becomes engaged with the child welfare system. Although no single, universal model governs customary care, its foundational principle—the collective responsibility for the care of children—remains consistent across Nations. 9
24It is within these legal, cultural and societal backdrops, that this Court must determine, whether in the particular facts of this case, the CCAs are valid in the absence of parental consent.
25These principles underscore that customary care, while an alternative to formal court orders, remains subject to judicial scrutiny. Where parental consent has not been obtained, the Court must be satisfied that the agreement operates in a manner consistent with the objectives of the CYFSA and the requirements of procedural fairness. This necessitates a careful, contextual assessment of the agreement and the circumstances in which it was reached. It is to that analysis that I now turn.
The CCAs are Valid Despite Lack of Parental Consent
26This case raises the question of how to proceed where the parents have not engaged in the proceedings and cannot be located to execute the CCAs. The absence of parental consent engages important considerations of procedural fairness, including the need to ensure that parental rights are not unjustifiably impaired.
27In my view, the determinative question is whether, in the absence of parental consent, the CCAs nonetheless satisfy the purposes of the CYFSA by:
a) protecting the best interests of the children;
b) preserving procedural fairness, including parental rights; and
c) maintaining adequate safeguards and oversight consistent with the statutory scheme.
28Where these criteria are met, and where parental non-participation persists despite reasonable efforts at engagement, the absence of consent will not, in itself, render the agreement invalid.
29In Payukotayno: James and Hudson Bay Family Services v KSLW10, Justice Labelle recognized that while it is preferable to have both biological parents’ signatures on a CCA, it would be “unreasonable and contrary to the intent of the CYFSA” to require the signature of a parent who has not participated in the child welfare proceeding, has been noted in default, and has been unresponsive to child and family services communication attempts.
30In reaching this conclusion, Justice Labelle, relied on a number of statutory factors, including the customary care guide to best practices (see: Ministry of Children and Youth Services, Formal Customary Care: A practice Guide to Principles, processes and Best Practices – “MCYS Guide”) which sets out the individuals who should be signatories to the Customary Care Agreement, namely11:
a) A representative of the First Nation with whom the child is registered or eligible for membership;
b) The child’s biological parents (where one or both are available); (emphasis added)
c) The caregivers with whom the child will reside;
d) A representative of the CAS that will be providing a subsidy to the caregiver; and
e) The child, where the child is older than 12 years of age.
31The guide contemplates that there are situations where one or both parents may not be available.
32Although Payukotayno provides some guidance, it is distinguishable on its facts. While Payukotayno involved only one absent parent, its reasoning is instructive. The decision recognizes that the statutory scheme does not invalidate a culturally appropriate and child-centred plan of care, where parental consent is not obtained. That rationale applies where both parents have failed to engage despite sustained efforts.
33In making my findings, I am mindful of the reasons of the Court of Appeal in M.L. v. Dilico Anishinabek Child and Family Care12 (“M.L.”). The Court of Appeal pointed out that if a society seeks to rely on a customary agreement to resolve protection proceedings out of court, the agreement must be carefully prepared and have the consent of all parties. Otherwise, the child loses the protection of the processes and timelines set out in the CYFSA without assurances of the intended benefits. In that case, the Court of Appeal held that Dilico acted without statutory authority, without the legal parents’ consent, and without the timely involvement of the First Nations.
34In my view, the decision in M.L. does not stand for the proposition that parental consent is an absolute precondition to a valid CCA. Rather, it underscores that where a society seeks to rely on a CCA to resolve protection proceedings outside of court, the absence of parental consent raises a risk that the child may be deprived of the procedural and substantive protections otherwise guaranteed under the CYFSA. The central question, therefore, is whether the agreement, as structured, contains sufficient safeguards to address that risk.
35The case at hand does not engage a settled legal test for dispensing with parental consent to a CCA. Nor does M.L. establish that consent is an absolute precondition to validity. Rather, the decision highlights the risks that arise where a CCA is relied upon to resolve protection proceedings without adequate safeguards.
36In that context, the task of this Court is a contextual one. The Court must determine whether, in the absence of parental consent, the agreement as structured remains consistent with the purposes of the CYFSA and preserves the procedural and substantive protections that would otherwise be available to the child and the parents.
37In M.L., the safeguards previously noted were absent. The court found that the agreement was not carefully crafted, the involvement of the First Nations was not timely, and the parents had not been adequately engaged before the decision to proceed by CCA had been explored then implemented. As a result, the Court of Appeal concluded that the statutory scheme had been bypassed without sufficient justification.
38I find, by contrast, in this case:
a) sustained and reasonable efforts were made to locate and engage both parents, without success;
b) the First Nations have been actively and meaningfully involved throughout;
c) the CCAs are comprehensive and carefully drafted;
d) ongoing supervision, service provision, and review are built into the framework;
e) the agreements preserve parental rights and provide mechanisms for future re-engagement; and
f) mechanisms exist to bring the matter back before the Court if the arrangement breaks down.
39In these circumstances, the concerns identified in M.L. do not arise.
40Accordingly, I am satisfied that giving effect to the CCAs in this case does not undermine the purposes of the CYFSA or deprive the children of its protections. Rather, the agreements operate as a structured, supervised, and culturally appropriate alternative that remains consistent with the statutory scheme. This is one of the exceptional circumstances in which the absence of parental consent should not render the CCAs invalid.
41The statutory scheme, the MCYS Guide, and the reasoning in M.L. collectively support the conclusion that, while parental consent is generally required, it may be dispensed with in exceptional circumstances where adequate procedural safeguards are in place and the objectives of the CYFSA can still be met.
42It is clear law that customary care is the preferred approach for Indigenous children.13
43The purpose of the federal legislation, namely, An Act Respecting Frist Nations, Inuit and Métis Children, Youth and Families is to affirm the inherent right of Indigenous peoples to self-government, including jurisdiction over child and family services, to establish national principles governing the provision of those services, and to advance the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
44Central to this framework is the promotion of the best interests of Indigenous children in a manner that preserves cultural continuity, supports substantive equality, and respects the vital role of families, communities, and Indigenous governing bodies in decisions affecting their children.14
45The Court of Appeal further observed that customary care agreements encourage parties to resolve issues relating to a child’s care in a culturally appropriate and responsive manner, by agreement rather than through ongoing child protection proceedings. At its core, the concept recognizes a child’s care as a collective responsibility.15
Judicial Oversight
46Although customary care serves as an alternative to court-ordered child protection proceedings, it does not operate outside the Court’s supervisory role. Judicial oversight ensures that appropriate procedural safeguards are in place and that the rights and interests of all parties to the agreement are adequately protected.
47In determining the validity of a CCA entered without parental consent, judicial oversight is essential. 16
48A central consideration in this analysis is whether the customary care arrangement maintains meaningful oversight and accountability. Although the agreement operates outside of a formal court order, it must not place the child beyond the reach of the statutory protections of the CYFSA. Where mechanisms exist for ongoing supervision, review, and recourse to the Court in the event of breakdown, the agreement remains anchored within the legislative framework.
49In undertaking that assessment, there are several relevant considerations that assisted this Court in determining whether the absence of consent undermines the integrity of the process. These include, but are not limited to:
a) The reasons why the Child/Children were taken to a place of safety.
b) The efforts made by the Agency and other participants, to locate the parents and engage them in the process. This factor is critical to ensuring that the absence of consent reflects non-engagement rather than exclusion, thereby preserving the legitimacy of the process and maintaining the Court’s ability to intervene should circumstances change.
c) Who has signed the Customary Care Agreement.
d) The reasons why the parents have not signed the CCA (unlocated, refusal to engage in the child protection proceedings, avoidance of the Society’s attempts at communication, transient …) Here it is important to distinguish that there are many reasons why Indigenous parents, particularly those who are still feeling the intergenerational effects of the residential school system, may avoid contact with the Society and refuse to participate in the proceedings.
e) The nature of the children’s placement contemplated by the CCA.
f) Whether the CCA is in the best interest of the children.
g) Whether the CCA includes robust provision aimed at protecting the parents’ rights under procedural fairness. This can include clauses providing for reassessment of customary care arrangements at a parent’s request and clauses mirroring the safeguards of parental rights within the CYFSA.
h) Whether the CCA includes clauses which proved children subject to CCAs with the same protections afforded to “children in care” under the CYFSA.
i) Whether the CCA contains clauses that trigger annual review of the CCA, ensuring that it is continually being assessed in absence of parental oversight.
50Applying these factors to this case I note the following:
a) Dilico has identified numerous protection concerns, including both parents’ significant history of alcohol and substance misuse, domestic violence, unstable housing and failure to engage with Dilico.
b) The CCAs have been signed by all recommended signatories with the exception of the parents.
c) The Respondent parents where properly served. Yet they have not been involved in the child protection proceeding since the children were brought to a place of safety on February 22, 2024. Despite significant and ongoing efforts to locate them, including attendance at last known addresses, tips about possible residences, outreach to family members and acquaintances, repeated telephone calls, inquiries with community partners and hospital staff, ongoing consultations with first nations, their whereabouts remain unknown, and they have not engaged with the proceedings. Their non-participation cannot operate to indefinitely prevent a permanent plan in the children’s best interests.
d) The Children have remained with the same caregivers since they were first brought to a place of safety by the Dilico. They are the signatories to the CCAs. It is a culturally appropriate placement, that is contemplated as a long-term placement.
e) The CCAs are in the Children`s best interest. The children have been placed with caregivers who, the evidence shows, have consistently met their physical, emotional, developmental, and cultural needs. They have ensured their medical care, supported their well-being, and provided a stable, nurturing home in which they are thriving. The caregivers actively engage them in age-appropriate activities, support their development, and facilitate connections with family, community, and culture. They have demonstrated a clear commitment to their long-term care and well-being. In these circumstances, the placement promotes stability, continuity of care, and cultural connection, all of which are in the children’s best interests.
f) The CCAs have robust provisions aimed at protecting the parents’ rights under procedural fairness. The CCAs include a clause that clearly stipulates that the agreement is not intended to terminate or sever the legal rights and responsibilities of the parents. It provides the parents with a right of revocation if they are located and informed of the existence of the CCAs. It further binds the parties to continue to make every effort to attempt to locate, notify and include the parents in matters affecting their children moving forward.
g) The CCAs contain clauses that provide the children with the similar protections afforded to “children in care” under the CYFSA. Particularly, ongoing care and planning by Dilico has been built into the CCAs. This is of particular importance given the Children’s special needs.
h) The CCAs contain a clause that provides for bi-annual case consultation and review. Additional case consultations or reviews are contemplated if requested by the caregivers. In addition, the CCAs contain a termination of agreement provision that ensures that the customary care arrangement does not operate outside the statutory framework of the CYFSA.
51These provisions ensure that the agreement remains anchored within the CYFSA framework. If the arrangement is terminated and no care plan is in place, the matter must return to the Court, thereby preserving judicial oversight and ensuring that the Children continue to benefit from the protections and processes set out in Part V of the Act.
52These provisions mitigate the concern that a child subject to a CCA may lose the protections of the CYFSA. By requiring that the matter be brought before the Court if the agreement is terminated and no care arrangement exists, it ensures that judicial oversight is not displaced but remains available to address any breakdown in the placement or emerging protection concerns.
53Dilico, Ginoogaming First Nation, and Aroland First Nation have worked collaboratively to develop CCAs that promotes cultural continuity for the children. The agreements provide that the customary caregivers, the First Nations, and Dilico will work cooperatively in accordance with the Seven Sacred Teachings and will participate in biannual case consultations and reviews. Importantly, the CCAs preserves the parents’ rights should they re-engage and wish to participate in planning or decision-making concerning the children.
54CCAs are the least intrusive measures to meet the Children’s needs. Unlike extended society care, which entails a more intrusive and state-centred form of intervention, customary care preserves familial and community governance, maintains parental legal status, and prioritizes cultural continuity. In that sense, it represents a significantly less disruptive mechanism while still ensuring protection and stability.
55The children’s parents are presently unable to care for or participate in planning for the Children, because of significant personal challenges. The CCAs expressly recognize and respond to this reality by preserving the parents’ rights and ensuring ongoing procedural fairness. Should the parents be located and wish to re-engage, the agreements provide meaningful avenues to do so, including the right to be informed, to obtain legal advice, to participate in case conferencing, and to seek revision or termination of the agreements. These provisions ensure that, while the Children’s need for stability is met, the parents are not permanently excluded from decision-making concerning their Children.
56These reasons should not be interpreted as granting “carte blanche” to enter into Customary Care Agreements without parental consent. Such arrangements are justified only in exceptional circumstances, where safeguards are in place to ensure procedural fairness and protect the Children’s best interests. While not intended to be an exhaustive list, circumstances that may be characterized as exceptional include those where:
a) The parents cannot be located or have disengaged despite reasonable efforts;
b) The placement is stable, appropriate, and culturally grounded; and
c) The agreement contains safeguards sufficient to preserve procedural fairness and oversight.
Conclusion
57In conclusion, I am satisfied that this is one of those exceptional cases where dispensing with parental consent to the CCAs is both necessary and justified while remaining consistent with the purposes of the CYFSA. The respondent parents have been wholly absent from these proceedings despite sustained and meaningful efforts to locate and engage them. In these circumstances, the children cannot be left in a state of uncertainty or deprived of a stable, culturally grounded plan of care due to parental non-participation.
58The evidence establishes that the CCAs are firmly rooted in the children’s best interests. The children are thriving in a placement that is stable, attentive to their developmental and medical needs, and, critically, supportive of their Indigenous identity, community connection, and cultural continuity. This is precisely the type of placement contemplated and preferred under the CYFSA.
59Equally important, the CCAs contain meaningful procedural safeguards. They preserve the parents’ legal rights, provide a mechanism for re-engagement should the parents come forward, and ensure ongoing oversight through regular review. The continued involvement of Dilico and the First Nations communities ensures both accountability and support, reinforcing that customary care does not operate in a vacuum, but within a framework of supervision and shared responsibility.
60When compared to the alternative of extended society care, the advantages of customary care are clear. It represents a less intrusive, more culturally responsive approach that prioritizes community, family, and identity, while still meeting the statutory objectives of protection and permanence. It allows these children to remain connected to who they are, rather than being further removed from their cultural foundations through prolonged court involvement.
61Accordingly, I find that the CCAs, though entered into without parental consent, are valid and should be given effect. This outcome reflects a careful balancing of the children’s best interests, the importance of cultural continuity, the necessity of procedural fairness, and the statutory role of the child welfare agency.
Order
62This court orders that:
a) The requirement that K.T. and K.J. (the parents), sign the Customary Care Agreements is dispensed with.
b) The Respondents K.T. and K.J. are noted in default.
c) The child protection application bearing Court File No. Fo-23-00170-01 relating to the children is withdrawn in favour of Customary Care Agreements.
d) All existing Orders of Court File No. FO-23-00170-01 relating to the Children are vacated.
Released: June 25, 2026
Signed: Justice J.L. Malette
characteristics of foster children and their households, Catalogue No 41-20-0002 (2024) at 3.
of the Final Report of the Truth and Reconciliation Commission of Canada, Catalogue No IR4-7/2015EPDF
(2015) at 136-137.
Footnotes
- Statistics Canada, Indigenous foster children living in private households: Rates and sociodemographic
- Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling the Future: Summary
- ML v Dilico Anishinabek Child and Family Care, 2022 ONCA 240 at para 35
- Ibid at para 37
- Child, Youth and Family Services, 2017, S.O. section 1(1); 1(2)
- Child, Youth and Family Services, 2017, S.O. section 1(2), 2017; M.L v Dillico Anishninabek Child and Family Care, 2022 ONCA, 240
- Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1, s 80.
- ML v Dilico Anishinabek Child and Family Care, 2022 ONCA 240 at paras 36-37
- Payukotayno: James and Hudson Bay Family Services v KSLW, [2024] OJ No 5632 at paras 30, 33.
- Ontario, Ministry of Children and Youth Services, Formal Customary Care: A Practice Guide to Principles, Processes and Best Practices (2013) at para 19: https://files.ontario.ca/mccss-customary-care-guide-en-2022-03-15.pdf
- Ibid, para 48-49
- Children’s Aid Society of London and Middlesex v. E.(T.), 2023 ONCA 149
- An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 : https://laws.justice.gc.ca/eng/acts/F-11.73/page-1.html
- M.L. v. Dilico Anishinabek Child and Family Care, 468 DLR (4th) 58, 2022 ONCA 240 at paras 35-37
- Ibid., paras 39-40.
- Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1, s 2(1).