WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, and is subject to subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that publication of the report 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.

45(8) Prohibition on Publication of Identifying Information

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.

45(9) Order re Adult

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.

85.— (3) Offence and Penalty

A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.

Court Information

Halton Registry No.: 456/14

Date: 2016-06-02

Ontario Court of Justice

Between:

CHILDREN'S AID SOCIETY, REGION OF HALTON

Applicant

— AND —

M. M. (mother),

R. M. (father of J.R.G.B.),

J. C. (father of A.L.C.B.), and

D. M. (father of A.F.M. & M.D.M.)

Respondents

Before: Justice Victoria A. Starr

Heard on: May 6, 2016

Reasons for decision on motion released on: June 2, 2016

Counsel

Kathy Li — counsel for the applicant society

Novalea M.A. Jarvis — counsel for the respondent mother M.M.

Logan A. Rathbone — counsel for the respondent father J.C.

A. Rick Toor — counsel for respondent father D.M.

W. Todd Moore — counsel for the Office of the Children's Lawyer, legal representative for J.R.G.B.

Maria N. Sirivar — counsel for the Office of the Children's Lawyer, legal representative for A.L.C.B., A.F.M. and M.D.M.

JUSTICE VICTORIA STARR:

1: INTRODUCTION

[1] In this decision the court determines whether three children are Indian or native persons for the purposes of the Child and Family Services Act, R.S.O. 1990, c. C-11 ("CFSA" or the "Act"). It also addresses the subsidiary issues of identifying a child's band or native community. There is no other case directly on point.

[2] Such determinations turn on whether a child is an Indian or native person as defined in the CFSA. They are fact driven and are to be decided on a case-by-case basis.

[3] The determination is an important one. Those children who fit within the definitional criteria gain automatic access to the benefits, special treatment, and special considerations the Act affords to Indian and native children. Those children who do not fit within the definitional criteria face significant and disadvantaging consequences. They are denied access to such benefits and special consideration. They are to be treated no differently than any other child with cultural, ethnic or racial ties to an identifiable ethnic community.

[4] The definitions are very restrictive. Self-identification with or sharing an ancestral, ethnic, cultural, linguistic or historical connection to an indigenous group or another person of aboriginal decent is not enough. The strength of such connections or ties is not a factor capable of bringing an aboriginal child within the definitional requirements.

[5] The facts of this particular case also underscore the important role social workers, solicitors for a child protection agency, counsel for respondents, and the judiciary, have to play in these child protection cases. Social workers must conduct thorough investigations at the outset of their involvement with families who self-identify as aboriginal; counsel for the society has the responsibility to ensure that all evidence is put before the court in a fair, unbiased, and balanced way, depicting the reality of a child's circumstances. All counsel, particularly society counsel, must bring any ambiguity, discord, or uncertainty about the Indian or native status of children to the attention of the court as soon as possible. Similarly, the court must be vigilant and proactive. It must make enquiries early on so as to identify those children who are potentially Indian or native as defined by the Act. It must also determine the Indian or native status of children, as the Act mandates, as soon as practicable.

2: BACKGROUND TO THESE REASONS

[6] There are four children in this family but only the portion of the protection application with respect to the three youngest children remains unresolved. All three children are under 6 years of age and have been in the society's care since October 28, 2014 — about 19 months. The mother, and the father of the two youngest children, have been incarcerated since the fall of 2014. The court has no information about their release date. No finding has been made yet as to whether these children are in need of protection.

[7] On October 21, 2015, the society amended its already amended protection application to seek an order that all three children be made Crown wards with unspecified sibling access and no access with any of their biological parents.

[8] The society has brought a motion for summary judgment returnable on June 13, 2016. Fixed trial dates have also been set in July 2016.

[9] The possibility that these children are Indian or native was repeatedly drawn to the attention of the society beginning in May 2014, months before the children were apprehended.

[10] The society dismissed the information and possibility that these children are Indian or native persons out of hand. It did not conduct anything that would even approximate a meaningful investigation into whether these children are Indian or native persons as defined by the Act until on or about March 19, 2016, almost two years from the date when the mother first raised the issue of the children's possible status. Instead it has consistently and persistently taken the position that the status of the children is "Not Indian — Not Native". As a result of its dismissive attitude, approach, and position, during the almost 19 months these children have been in its care, the society did not serve or consult with the band, provided none of the services the Act requires it provide to children who are Indian or native, and paid no mind to any of the special planning considerations that must be afforded to Indian or native children.

[11] Unfortunately, no one pushed the issue. The fact that there was disagreement as to whether these children are Indian or native persons only came to the attention of the court when the mother brought a motion seeking a declaration that the children are Indian or native persons under the CFSA. The mother's motion was brought after she received notice of the society's motion for summary judgment, seeking, among other things, a finding that the children are neither Indian nor native.

[12] The mother's motion was returnable before the society's summary judgment motion and it first came before the court on April 13, 2016. The court adjourned the hearing. In this court's earlier decision, Children's Aid Society of Halton Region v M.M., 2016 ONCJ 237, the court set the date of May 6, 2016, to hear submissions on this issue. It hoped that by deciding the issue before the balance of the issues on either the motion for summary judgment or trial, any unnecessary delay could be avoided as well as save substantial costs. The court invited the band to participate in the hearing, in an effort to ensure that the voice of the community could be heard and so that it could receive submissions from counsel with particular expertise in this area of law.

[13] The hearing proceeded on May 6, 2016. The band did not participate. The court reserved.

3: THE COURT'S DECISION

[14] The court released its decision finding that the three children are each Indian and that each child's band is the Mohawks of the Bay of Quinte — Tyendinaga Mohawk Territory, on May 10, 2016. It indicated that written reasons would follow. These are those written reasons.

4: THE ISSUES

[15] The issues the court must decide are these:

1. Are the children Indian as defined in the CFSA?

2. If the children are Indian, what is their band?

3. If the children are not Indian, are they native persons as defined in the CFSA?

4. If the children are native persons, what is their native community?

5: POSITIONS

[16] The society's position is that the children are neither Indian nor native persons. It submits that the definition of Indian and native person is a very restrictive one under the CFSA and that there is no evidence establishing that they are registered as Indian, no definitive evidence that they are entitled to be registered as Indians, and what evidence there is, is conflicting and highly speculative.

[17] With respect to the issue of whether these children are native persons, the society submits that the children must be found to have a connection to a community designated by the Minister pursuant to section 209 of the Act as a native community. The only time the Minister has designated native communities pursuant to section 209 of the Act was in 1995 for the purposes of designating Dilico Ojibway Child and Family Services as a children's aid society. Thirteen communities were designated at that time. No other designation of a native community has been made by the Minister since that time.

[18] Although there is no actual list of the thirteen communities, what does exist is a list of designated Indigenous Child-well-being Organizations. That list sets out the fourteen communities that Dilico Anishinabek Family Care services. While the children may have a connection to the Mohawks of the Bay of Quinte, that band is not one of the communities that Dilico services and thus, is not one of the thirteen communities designated by the Minister pursuant to section 209 as a native community.

[19] The mother's position is that the children are Indian because they are each entitled, by virtue of their direct biological decent from persons who were either registered as Indians (had status), or entitled to be registered as an Indian (entitled to status). She argues that the evidentiary standard is not one of definitiveness but rather "balance of probabilities" and that based on the evidence, it is more probable than not that these children are Indian as they are entitled to be registered as Indians. Their band is the Mohawks of the Bay of Quinte.

[20] In the alternative, the mother's position is that, in the absence of a list (or at least a list the court can be sure is an exhaustive one) of the communities designated by the Minister pursuant to section 209, the court ought to find that the Mohawks of the Bay of Quinte is a native community. She submits that it is not necessary for the Mohawks of the Bay of Quinte to be on the list of communities that Dilico Anishinabek Family Care services in order to be considered a band or native community as argued by the society.

[21] Finally, the mother argues that, if a native community must be served by a child welfare agency in order to be classified as a native community, then the Highland Shores Children's Aid Society (formerly Hastings Children's Aid Society) is the agency that services the Mohawks of the Bay of Quinte. Its status as a native community can be inferred from Justice Mark P. Shelston's references to it as a native community in the case of Children's Aid Society of Ottawa v. S.I., 2015 ONSC 5692.

[22] The father J.C. takes the position that the children are Indian on the same basis as is argued by the mother. He submits that, if this court finds that the children are not Indian, they are also not native persons.

[23] The lawyer for the children takes no position. She submits that it is her job to advocate for the protection of the children's interests. If these children are found to be Indian or native persons as defined under the CFSA, they will be entitled to the additional benefits afforded to such children under the Act, including a wider range of services, and additional options in terms of dispute resolution, possible placement, and even greater options in terms of adoption. She urges the court not to be influenced by the action, inaction or motives of the parties, or by the pressing need to move forward with a final hearing/trial. What is at stake for these children is far too important for such considerations to influence the court in its determination of the issue.

6: THE LEGAL FRAMEWORK AND LANDSCAPE

6.1: Why the Finding that a Child is Indian or a Native Person Matters

[24] The importance of the culture and ethnicity of all children in child welfare proceedings is always an important consideration. It is relevant both at the interim and final placement stages and in general, to the court's determination of a child's best interests. Throughout the CFSA, the court is directed to give consideration to a child's ethnic and cultural ties to their community and to persons who share their ethnic cultural background as placement with such individuals or within the child's community is preferred over foster care, where appropriate.

[25] Indeed, this direction forms one of the objectives of the Act. Paragraph 1(2)¶4 directs that one of the objectives of the Act is to recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences. Specific directions to take a child's culture into account is also found in a number of other provisions, including subsection 57(4) and paragraph 37(3)¶3, and from the inclusion in a "child's community" [found in subsection 2(3)], of persons who have ethnic, cultural or religious ties in common with the child. These sections provide:

51(3.1) Placement with relative, etc.

Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

37(3) Best interests of child

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

3. The child's cultural background.

57(4) Community placement to be considered

Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

3(3) Child's community

For the purposes of this Act, the following persons are members of a child's community:

1. A person who has ethnic, cultural or religious ties in common with the child or with a parent, sibling or relative of the child.

2. A person who has a beneficial and meaningful relationship with the child or with a parent, sibling or relative of the child.

[26] Children who are found to be Indian or native persons as defined in the Act, however, are entitled to additional and special considerations. These special considerations apply in a number of areas including: the provision of services; temporary and permanent placement; change in placement; best interest determinations, and, adoptions. For example:

(a) Recognition of Native Child Protection Services

Paragraph 1(2)5 of the Act specifically recognizes that native peoples should be entitled to provide their own child protection services to their community, and that services to native families should recognize their culture, heritage, traditions and the concept of the extended family.

1(2) Other purposes.

The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

(b) Mandatory Consultation with Band

The CFSA makes it mandatory for any society proposing to provide services to a native child, or actually exercising a prescribed power under the Act, to consult with a representative from the child's band [see section 213.1].

(c) Preservation of Cultural Identity

Where an order is to be made based on the determination of the best interests of an Indian or native child, the court must consider the importance of recognizing the uniqueness of Indian and native culture, heritage and traditions, and of preserving the child's cultural identity [see subsection 37(4)].

(d) Placement Preferences for Indian and Native Children

When the court is making an order under section 57 of the CFSA for an Indian or native child, and has determined that the parent(s) cannot care for the child, the court must place the child with a member of the child's extended family, a member of the child's band or native community, or another Indian or native family unless there is a "substantial" reason for placing the child elsewhere [see subsection 57(5)]. This requires societies to actively seek out alternatives to foster care for Indian and native children. Consider:

57(5) Idem: where child an Indian or a native person.

Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the child's extended family;

(b) a member of the child's band or native community; or

(c) another Indian or native family.

(e) Band Access Rights

A band has the right to make an application for access under section 58 of the Act. If the society makes or receives an application for access under subsection 58(2), the society is obligated to notify the child's band [see also subsections 58(4)].

(f) Placement of Society and Crown Wards

A society shall, if possible, place an Indian or native child that has been made a society ward or a Crown ward with a member of the child's extended family, the child's band or native community, or another Indian or native family [see clause 61(2)(d)].

(g) Band as Party to Proceedings

The representatives chosen by the child's band or native community are automatically entitled to notice and included as a party to child welfare proceedings under Part III of the Act pursuant to paragraph 39(1)4:

39. Parties.

(1) The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child's parent.

4. Where the child is an Indian or a native person, a representative chosen by the child's band or native community.

[27] Pursuant to subsection 47(1) and clause 47(2)(c), the court is to determine:

47. Child protection hearing.

(1) Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

(2) Child's name, age, etc.

As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(c) whether the child is an Indian or a native person and, if so, the child's band or native community; and

6.2: What Is the Meaning of "Indian" and "Native Person" in the CFSA?

6.2(a): The Definitions in the CFSA

[28] The terminology for aboriginal identities in the CFSA is limited to "Indian" or "native person." "Indian" has the same meaning as in the Indian Act, R.S.C. 1985, c. I-5 (i.e., a person who is registered as an Indian or is entitled to be registered as an Indian under the Indian Act). A "native person" is defined as "a person who is a member of a native community but is not a member of a band, and 'native child' has a corresponding meaning." A "native community" is defined as "a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services)," which means the designation is made with the consent of the community's representatives. Specifically, "Indian" and "native person", "band", and "native community" are defined in section 3 of the CFSA:

"Indian" has the same meaning as in the Indian Act (Canada);

"native person" means a person who is a member of a native community but is not a member of a band, and "native child" has a corresponding meaning;

"native community" means a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services);

"band" has the same meaning as in the Indian Act (Canada);

6.2(b): The Definitions in the Indian Act

[29] "Indian" is defined in s. 2(1) of the Indian Act (Canada), RSC 1985, c 15:

Indian means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian;

[30] Under subsection 5(1) of the Indian Act, the Department of Indian Affairs and Northern Development, now known as Aboriginal Affairs and Northern Development Canada (AANDC), is responsible for maintaining an Indian Register, essentially, an official list of status Indians.

5. Indian Register — (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act.

(2) Existing Indian Register — The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985.

(5) Application for registration — The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar.

[31] Sections 6 and 7 of the Indian Act set out who are the persons entitled to be registered as an Indian:

6. Persons entitled to be registered

(1) Subject to section 7, a person is entitled to be registered if

(a) that person was registered or entitled to be registered immediately prior to April 17, 1985;

(b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act;

(c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

(c.1) that person

(i) is a person whose mother's name was, as a result of the mother's marriage, omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under paragraph 12(1)(b) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions,

(ii) is a person whose other parent is not entitled to be registered or, if no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred prior to September 4, 1951,

(iii) was born on or after the day on which the marriage referred to in subparagraph (i) occurred and, unless the person's parents married each other prior to April 17, 1985, was born prior to that date, and

(iv) had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted;

(d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

(e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951,

(i) under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or

(ii) under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or

(f) that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section.

(2) Idem — Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).

(3) Deeming provision. — For the purposes of paragraph (1)(f) and subsection (2),

(a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a);

(b) a person described in paragraph (1)(c), (d), (e) or (f) or subsection (2) and who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that provision; and

(c) a person described in paragraph (1)(c.1) and who was no longer living on the day on which that paragraph comes into force is deemed to be entitled to be registered under that paragraph.

7. Persons not entitled to be registered.

(1) The following persons are not entitled to be registered:

(a) a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or

(b) a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered.

(2) Exception — Paragraph (1)(a) does not apply in respect of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.

(3) Idem. — Paragraph (1)(b) does not apply in respect of the child of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.

[32] In this case, the children's entitlement to status, if any, flows through the mother. As the mother was born prior to 1985, thus pursuant to the current Indian Act [clause 6(1)(a)], the mother's eligibility to be registered is determined under sections 11 and 12 of the pre-1985 Indian Act [Indian Act, R.S.C. 1970, c. I-6]. Sections 11 and 12 of the pre-1985 Indian Act provide:

11. Persons entitled to be registered

(1) Subject to section twelve, a person is entitled to be registered if that person

(a) on the 26th day of May, 1874, was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, being chapter 42 of the statutes of Canada, 1868, as amended by section 6 of chapter 6 of the statutes of Canada, 1869, and section 8 of chapter 21 of the Statutes of Canada, 1874, considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada;

(b) is a member of a band

(i) for whose use and benefit, in common, lands have been set apart or since the 26th day of May, 1874 have been agreed by treaty to be set apart, or

(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act;

(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b),

(d) is the legitimate child of

(i) a male person described in paragraph (a) or (b), or

(ii) a person described in paragraph (c);

(e) is the illegitimate child of a female person described in paragraph (a), (b) or (d); or

(f) is the wife or widow of a person who is entitled to be registered by virtue of paragraph (a), (b), (c), (d) or (e).

(2) Exemption — Paragraph (1)(e) applies only to persons born after the 13th day of August 1956.

12. Persons not entitled to be registered.

(1) The following persons are not entitled to be registered, namely,

(a) a person who

(i) has received or has been allotted half-breed lands or money scrip,

(ii) is a descendant of a person described in subparagraph (i),

(iii) is enfranchised, or

(iv) is a person born of a marriage entered into after the 4th day of September, 1951 and has attained the age of 21 years, whose mother and whose father's mother are not persons described in paragraph 11(a), (b), or (d), or entitled to be registered by virtue of paragraph 11(1)(e),

unless, being a woman, that person is the wife or widow of a person described in section 11, and

(b) a woman who is married to a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11.

[33] Band and Band List are defined in the Indian Act in subsection 2(1) as follows:

2. Definitions

(1) In this Act,

"band" means a body of Indians

(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,

(b) for whose use and benefit in common, moneys are held by Her Majesty, or

(c) declared by the Governor in Council to be a band for the purposes of this Act;

"Band List" means a list of persons that is maintained under section 8 by a band or in the Department;

6.2(c): Lack of Jurisprudence Directly on Point

[34] The court was referred to many "authorities" in this case. It is not necessary to discuss every case or document to which the court was referred. In this decision, the court has referenced only those cases or documents from which it derived principles to guide it in determining whether the subject children are Indian or native persons.

[35] Although several of the cases to which the court was directed refer to the children as being Indian or native persons, the issue is discussed in the context of the court's best interest or other analysis and none of them discuss the analytical process followed in arriving at the finding. Despite the efforts of both counsel and the court, only three cases appear to address the issue of whether the children fit within the legislative definition of Indian or native persons: C.M.E.M. and B.J.V. v. Children's Aid Society of Waterloo Region, 2015 ONSC 1942, per Justice James W. Sloan; affirmed at: C.M.E.M. and B.J.V. v. Children's Aid Society of Waterloo Region, 2015 ONCA 612, per Appeal Justices Kathryn N. Feldman, Janet M. Simmons and Bradley W. Miller; and, Children's Aid Society of Ottawa v. K.F., 2015 ONSC 7580.

[36] Although these decisions assisted this court in establishing guiding principles, with respect to the determination of whether a child is an Indian or native person pursuant to the Act, none of the three decisions are directly on point. In each there was no evidence capable of bringing the children within the scope of the existing definitions of "Indian" or "native persons" as those terms are defined in section 3 of the Act. The cases do not discuss the facts necessary to be proven to support such a finding. Further, the litigants in some of these cases relied on criteria that do not assist in such decisions. Not surprisingly, there is no discussion in these cases of the analytical framework to be applied to such determinations.

[37] In C.M.E.M. and B.J.V. v. Children's Aid Society of Waterloo Region (Ont. S.C.), Justice James W. Sloan dismissed an appeal by the parents from an order making children Crown wards without access for the purpose of adoption. The reasons for dismissing the appeal on this ground are set out in paragraphs [16] – [21]. These include: a lack of evidence adduced at trial showing that either the "parents, or the children, took part in or had any connection to any native culture, heritage or tradition other than biologically through their DNA"; the parent's trial lawyer's confirmation at trial of the children's status as not Indian and not native, and, the appellants confirmation that the trial judge had been made aware that the mother had some aboriginal heritage.

[38] Justice Sloan goes on to say, unfortunately, with no detailed analysis, at paragraph [21]:

[21] Even if the trial judge had been directed to Section 37(4) and Part X of the Child and Family Services Act, I find on the facts of this case that those sections of the Act have very little, if any, application.

[39] Paragraphs [10], [11] and [12] of the decision set out some additional findings of fact. It is not clear, however, how those additional findings fit in to the determination of whether a child has or is entitled to status as an Indian or is a native person as those terms are defined in section 3.

[40] The appellants next appealed to the Ontario Court of Appeal. The Court of Appeal's decision and reasons are set out in C.M.E.M. and B.J.V. v. Children's Aid Society of Waterloo Region (supra). Again, while helpful in establishing guiding principles, the decision is of limited value to those looking for guidance on either the analytical process to be applied to such determinations or for any substantive discussion of the definitional criteria. The Ontario Court of Appeal found that the trial judge made no error in failing to identify the mother or children as Indian or as native persons. Its reasons are set out at paragraphs [10], [11] and [12]:

[10] Although represented by counsel, at trial the appellants did not advance any argument that either the mother or the children fell within the definition of Indian or native person under the CFSA. Instead, in response to the required inquiry from the trial judge, the appellants' counsel confirmed that the information in the Society's application concerning status was correct. In relation to both children, the Society's application stated "no Indian status".

[11] Further, while the mother testified at trial that she is part native, she provided no additional evidence about her aboriginal heritage or about any connection with a native community.

[12] In these circumstances, the trial judge made no error in failing to identify the mother or children as Indian or as native persons.

[41] While invaluable for a number of reasons that will become clear elsewhere in this decision, the third decision, that of Justice J. Robert MacKinnon's decision in the case of Children's Aid Society of Ottawa v. K.F. (supra), also disappoints in terms of illuminating the analytical process to follow in deciding whether children fall within the definition of Indian or native persons. Following a trial Justice MacKinnon made an order of Crown wardship. The maternal grandparents appealed. The Divisional Court held that it had not been sufficiently brought to the attention of the trial judge that the children were of "Canadian Indian ancestry" and were entitled to the "protection" of subsection 37(4). The proceedings were returned to Justice MacKinnon for "reconsideration in view of the application of s. 37(4)." The Divisional Court also ruled the parties were entitled to "adduce further evidence and make further submissions relevant to s. 37(4) in accordance with directions to be given by the trial judge."

[42] As noted by Justice MacKinnon, neither the evidentiary record at the initial trial or on appeal actually addressed the facts necessary to be proven to support a finding that the children fell within the scope of s. 37(4) of the CFSA. Rather than conclude that the Divisional Court made an unsupported finding, Justice Mackinnon, concludes that this inquiry must be included as part of the reconsideration ordered by the Divisional Court. Quoting in paragraph [9] of the decision from paragraph [6] of an earlier endorsement dated January 9, 2015, Justice MacKinnon states:

[9] …

"[6]… it makes sense that I should hear evidence and receive submissions on both issues. In this way, if I am wrong in my ruling on the import of the Divisional Court order, any further appeal will take place on a complete evidentiary record. This is in keeping with the policies of the law favouring both judicial economy and a timely conclusion to child protection litigation".

[43] Unfortunately, when the trial did resume, it was common ground that no party and neither child fell within the applicable definition of "Indian" or "native person". The evidence was that the maternal grandfather and, through him, the mother and her children, was of aboriginal ancestry, of Algonquin descent, and were non-status Indians. Accordingly, there was no need to address the issue of whether the children were actually Indian or native persons. As a result, the lion's share of the decision addresses the constitutionality of section 37(4) – an issue further addressed below. As the court notes at paragraph [22]:

[22] What should now be apparent is that an appeal was allowed for the purpose of a reconsideration of the applicability of a section of the CFSA, now admitted not to be applicable to these children — unless through the success of a constitutional challenge raised for the first time long after the initial trial and the appeal……

[44] Despite the lack of jurisprudence squarely addressing the determination of whether children fall within the legislative definitions of "Indian" and "native persons" in the CFSA, there is a rich body of case law from which guiding principles can be gleaned. It is to a discussion of those guiding principles to which the court turns next.

6.4: Guiding Principles from the Jurisprudence on the Legislative Definitions

[45] An important first principle is for courts to understand that terms such as "Indian", "native persons", "aboriginal people", "First Nations Aboriginal People", "Inuit" and "Metis" are not interchangeable either as social classifications or as legal terms to describe classifications of indigenous peoples of Canada. While ideally one should use the social classification the particular group self-identifies as, if uncertain about which social classification may be appropriate, the court should consider using the broadest classifications, namely, "aboriginal" or "indigenous".

[46] Further and most importantly, while the use of these same terms, as classifications of the indigenous peoples of Canada, may be helpful cultural, ethnic or racial descriptions, nevertheless culture, race and ethnicity have very little to do with either the legal definitions of these terms or the legal analysis. As legal terms, these same classifications can include different aboriginal identities, depending on the particular legislation to be applied.

[47] For example, as a legal term, First Nations aboriginal people include the Indian, Inuit and Métis peoples of Canada [Subsections 35(1) and (2) Constitution Act, 1982]. However, until the Supreme Court decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, the term "Indian" in paragraph 91(24) of the Constitution Act 1867, 30 & 31 Vict., c. 3. (Imp.), did not include the Metis or other non-status Indians. As Justice Rosalie S. Abella stated at paragraphs [18] and [19] in Daniels v. Canada (Indian Affairs and Northern Development):

[18] The definitional contours of "non-status Indian" are also imprecise. Status Indians are those who are recognized by the federal government as registered under the Indian Act, R.S.C. 1985, c. I-5. Non-status Indians, on the other hand, can refer to Indians who no longer have status under the Indian Act, or to members of mixed communities which have never been recognized as Indians by the federal government. Some closely identify with their Indian heritage, while others feel that the term Métis is more reflective of their mixed origins.

[19] These definitional ambiguities do not preclude a determination into whether the two groups, however they are defined, are within the scope of s. 91(24). I agree with the trial judge and Federal Court of Appeal that the historical, philosophical, and linguistic contexts establish that "Indians" in s. 91(24) includes all aboriginal peoples, including non-status Indians and Métis.

[48] Second, the definition in the CFSA of Indian and native person is a very restrictive one. As a result, there is a clear distinction in the CFSA's treatment of "Indian[s]" and "native person[s]", as defined therein, and the CFSA's treatment of other individuals, including other individuals with aboriginal heritage.

[49] In Children's Aid Society of Ottawa v. K.F. (supra), Justice MacKinnon commented on whether the definitions of "Indian" and "native person" contained in the CFSA are unconstitutional in that they are inconsistent with the definition of "Aboriginal Peoples of Canada" contained in subsection 35(2) of the Constitution Act, 1982, and that they contravene subsection 15(1) of the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, in that they discriminate on the basis of Indian status and native community of origin. In his analysis of the constitutionality issue, and specifically, at paragraph [41], Justice MacKinnon stated that the provisions applicable to an "Indian" or "native child" in the CFSA are not applicable to every aboriginal child coming within the definition of "Aboriginal Peoples of Canada" in subsection 35(2) of the Constitution Act, 1982.

[41] There clearly is a distinction in the CFSA's treatment of "Indian[s]" and "native person[s]", as defined therein, and the CFSA's treatment of other individuals, including other individuals with Aboriginal heritage. In child protection proceedings involving the former group, various provisions for "Indian[s]" and "native person[s]" must be applied by the court. Among other things, this means: that the band or native community of an "Indian" or "native child" is a party to the proceedings and must be notified of the proceedings (CFSA, s. 39); that the importance of preserving the child's cultural identity must be considered by the judge in determining what is in the child's best interests (CFSA, s. 37(4)); and that, if the court makes an order removing the child from the person who had charge of him or her before the intervention of the Society, the court must place the child: with a member of his or her extended family, band or native community; or with another Indian family, absent "a substantial reason for placing the child elsewhere" (CFSA, s. 57(5)). The latter group is not entitled to the mandatory application of these provisions and, in fact, cannot access them at all [emphasis added by this court].

[50] Third, as in other statues and treaties, the distinction drawn by the CFSA definition of "Indian" is not based on ethnicity; it is based on status or entitlement to status. As Justice Mackinnon stated at paragraphs [44]-[49] of Children's Aid Society of Ottawa v. K.F., when addressing the restrictive nature of the definitions in the CFSA:

[44] "Ethnic" is defined by the Shorter Oxford English Dictionary as "(Of a population group) sharing a distinctive cultural and historical tradition, often associated with race, nationality, or religion, by which the group identifies itself and others recognize it; belonging to or characteristic of such a group..."

[45] It is clear from this definition that the "ethnic origins" of the children L.L. and J.L. include Algonquin or, more broadly, Aboriginal ethnicity. Were the differential treatment under the CFSA based on their being Algonquin this would surely fall within the enumerated ground of "national or ethnic origin" within s. 15(1) of the Charter.

[46] However, the distinction drawn by the CFSA definition of "Indian" is not based on ethnicity, it is based on status. Ethnicity or the related concept of ancestry does not determine whether a person has Indian status. As the Royal Commission on Aboriginal Peoples [RCAP] reported:

Recognition as "Indian" in Canadian law often had nothing to do with whether a person was actually of Indian ancestry.

[47] At pp. 305-306, the RCAP Report notes that the post-1985 rules about status (i.e. ss. 6(1) - (2) of the Indian Act) continue to treat individuals with the exact same Indian ancestry differently.

[48] The Federal Court of Appeal in Daniels refers to this in the course of reversing the trial judge's declaration that non-status Indians are "Indians" within s. 91(24) for the reason that the declaration lacked practical utility. It stated at para. 77:

[77] It is also inappropriate to grant a declaration clarifying the limits of who may be considered an Indian notwithstanding their exclusion from the Indian Act. The reasons for excluding people from Indian status are complex, far-ranging and often unrelated to one another. As the Judge noted at paragraph 115 of his reasons, one situation which created non-status Indians were problems recording names during the treaty process and fear of the treaty process itself. The result was that some names were not recorded and those individuals were not recognized as having status under the Indian Act. Other people were recognized as having status, but lost or gave up that status for various reasons, such as the many Indian women who lost status by marrying non-aboriginal men.

[49] It is clear from these passages that at least some of the situations resulting in the loss of Indian status had nothing to do with ethnicity or ethnic origins.

[51] Fourth and similarly, the distinction drawn by the CFSA definitions of "native person" and "native community" is also not rooted in ethnicity or ethnic origins. The designation of "native community[ies]" (and thus the designation of "native person[s]") is based on (a) geographical location, (b) the manner of operation of the First Nations community and (c) band status under the Indian Act. In other words, the intention of section 209 was to enable the Minister to designate First Nations communities that were: (a) located in the remote north on Crown lands; (b) operating in a manner similar to Bands, but (c) without status as Bands under the Indian Act. Again, as stated by Justice MacKinnon, Children's Aid Society of Ottawa v. K.F., at paragraphs [50]-[52]:

[50] Nor is the distinction drawn by the CFSA definitions of "native person" and "native community" rooted in ethnicity or ethnic origins. As is stated in the moving parties' evidence the designation of "native community[ies]" (and thus the designation of "native person[s]") is based on (a) geographical location, (b) the manner of operation of the First Nations community and (c) band status under the Indian Act.

[51] None of these criteria, on which the distinction drawn by the CFSA definitions of "native person" and "native community" is based, engage the "national or ethnic origin[s]" of the community members caught by them.

[52] Accordingly in my view, differential treatment of individuals with aboriginal ancestry on the basis that they do not also have legal Indian status or membership in a "native community" is not differential treatment within the enumerated ground of "national or ethnic origin".

[52] Fifth, there does not appear to be an actual published list to which one can turn that specifies the communities that the Minister has designated as "native communities" pursuant to section 209 of the Act.

[53] In this case, the society provided a copy of an e-mail and letter written by a representative of the Ministry of Children and Youth Services which addresses the designation of native communities. The most relevant portions of that letter are as follows:

A native community is an identifiable geographic community of predominantly aboriginal persons. The Minister's designation is contingent on the "representatives of the community" giving their consent . . .

The only time that the Minister has designated native communities to date was in 1995. Thirteen First Nation communities in the District of Thunder Bay and the District of Algoma were designated as native communities for purposes of designating Dilico Ojibway Child and Family Services as a children's aid society. Dillco has jurisdiction over Band members of the First Nations communities both on and off reserve. The purpose of designating the thirteen communities was to also provide Dillco with jurisdiction for individuals who were members of the First Nations communities but were not legally members of Bands under the Indian Act. Where Dilico is providing notice under the CFSA for a child who is a member of one of the13 designated native communities, notice is provided to the Band.

[54] The letter does not set out the names of the 13 designated native communities.

[55] The society also attempted to obtain a list of the 13 designated native communities from the Minister. The Minister did not provide a list of the 13 designated native communities. What was provided is a list of designated Indigenous Child-well-being Organizations. This list sets out the communities the Dilico Anishinabek Family Care services. There are 14 communities on this list (one too many) and they are:

i. Animbiigo Zaagi igan Anishinaabek (Lake Nipigon First Nation);

ii. Biigtigong Nishnaabeg (Pic River First Nation);

iii. Biinitiwabik Zaaging Anishnabek First Nation (Rocky Bay First Nation);

iv. Binggwi Neyaashi Anishinaabek First Nation (Sand Point First Nation);

v. Fort Albany First Nation;

vi. Fort William First Nation;

vii. Ginoogaming First Nation;

viii. Gull Bay First Nation;

ix. Long Lake #58 First Nation;

x. Michipicoten First Nation;

xi. Pays Plat First Nation;

xii. Pic Mobert First Nation;

xiii. Red Rock First Nation; and

xiv. Whitesand First Nation.

[56] The society in this case asks the court to deduce from this list, that unless the name of the native community in question appears thereon, it is not one of the 13 communities designated by the Minister as a "native community" pursuant to section 209.

[57] In this court's view the fact that the legislature has created a statutory test to apply to the determination of "native person" that turns on whether the community in question is one of those designated by the Minister pursuant to section 209 of the Act while failing to publish any actual list is highly problematic. As the circumstances in this case illustrate, parties and courts are first forced to go on a wild goose chase, searching for a list that does not exist. Then, when no list can be found, parties are forced to incur the unnecessary cost of securing some form of evidence from which the party and the court can pieces the list together. In the final analysis, the court is left to arrive at a conclusion as to who is and who is not on the list based on inferential or deductive reasoning, which in turn, can lead to different and potentially conflicting decisions about whether a particular community is or is not a native community. This is not an acceptable state of affairs. As the legislature has seen fit to tie the determination to a list, it ought to publicize the list of those communities designated by the Minister to date pursuant to section 209 of the Act.

6.5: The Definitions have not been Extended

[58] Another key guiding principle is this: the definitions of Indian and native person in the CFSA have not been extended. As discussed earlier, Justice MacKinnon addressed the constitutionality of the CFSA definition of Indian and native person, in the case of Children's Aid Society of Ottawa v. K.F. (supra). Justice MacKinnon concluded that the restrictive and exclusionary definitions of "Indian" and "native person" contained in the CFSA are not unconstitutional.

[59] Most recently, the Ontario Court of Appeal in the case of C.M.E.M. and B.J.V. v. Children's Aid Society of Waterloo Region (supra), confirms that the definitions have not been expanded and particularly, that the definition does not include non-status Indians or persons who self-identify as native.

[60] In that case, the appellants did not claim to be a status Indian within the meaning of the Indian Act. Rather, the appellants argued that the definition of Indian under the Indian Act has been expanded by case law and that the principles enunciated in R. v. Gladue, [1999] 1 S.C.R. 688, extends the meaning of native to include persons self-identifying as native. The appellants argued that the trial judge's error was in not applying the extended definition and Gladue principles to the circumstances of the case.

[61] The Ontario Court of Appeal's decision in C.M.E.M. and B.J.V. v. Children's Aid Society of Waterloo Region, is instructive for two reasons: First, in considering the issue, the Ontario Court of Appeal notes that "Indian" and "native person" are defined terms in the CFSA have not been expanded. Second, the Court of Appeal determined that Gladue principles of aboriginal self-identification and judicial notice of systemic racism cannot be applied or incorporated in the child protection setting. In rejecting both of the appellant's arguments, the court states at paragraphs [7] and [10]-[14]:

[7] We do not accept these arguments. As a starting point, the appellants did not raise these issues at trial. In any event, neither the mother nor the children fall within the definition of Indian or native person under the CFSA. Further, in the face of the statutory definitions, Gladue principles do not assist in determining whether the children are Indian or native persons. Finally, we are not persuaded that Gladue principles affect the determination of whether an access order would be appropriate in this case.

[62] Since the decisions in C.M.E.M. and B.J.V. v. Children's Aid Society of Waterloo Region and Children's Aid Society of Ottawa v. K.F., the Supreme Court of Canada ruling in Daniels v. Canada (Indian Affairs and Northern Development), was released. There, a central issue was whether Metis and non-status Indians are Indians within the meaning of paragraph 91(24) of the Constitution Act, 1867. The Supreme Court of Canada determined that "Indians" in paragraph 91(24) includes all aboriginal peoples, including non-status Indians and Métis. This conclusion is set out in paragraphs [19] and [50] of the decision:

[19] These definitional ambiguities do not preclude a determination into whether the two groups, however they are defined, are within the scope of s. 91(24). I agree with the trial judge and Federal Court of Appeal that the historical, philosophical, and linguistic contexts establish that "Indians" in s. 91(24) includes all Aboriginal peoples, including non-status Indians and Métis.

[50] The first declaration should, accordingly, be granted as requested. Non-status Indians and Métis are "Indians" under s. 91(24) and it is the federal government to whom they can turn.

[63] There are no court decisions at this point in time regarding the effect of the Supreme Court of Canada's decision in Daniels v. Canada (Indian Affairs and Northern Development), on the meaning of "Indian" under the CFSA. This court was not asked to decide this question. None the less, it notes the following: first, Justice Abella's comments at paragraph [51] of the decision suggest that the expansion of the definition of Indian in paragraph 91(24) of the Constitution Act, 1867, may not affect the definition of Indian in the CFSA:

[51] But federal jurisdiction over Métis and non-status Indians does not mean that all provincial legislation pertaining to Métis and non-status Indians is inherently ultra vires. This Court has recognized that courts "should favour, where possible, the ordinary operation of statutes enacted by both levels of government": Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 37 (emphasis in original). Moreover, this Court has been clear that federal authority under s. 91(24) does not bar valid provincial schemes that do not impair the core of the "Indian" power: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45, [2010] 2 S.C.R. 696, at para. 3.

[64] Second, there are no court decisions at this point in time regarding the effect of the Supreme Court of Canada's decision in Daniels v. Canada (Indian Affairs and Northern Development) on the meaning of "Indian" under the Indian Act. The following commentary issued by the Government of Canada sets out its view that the ruling in Daniels v. Canada (Indian Affairs and Northern Development) does not impact the application of the Indian Act:

The ruling does not impact on Metis and non-Status Indian eligibility for programs and services currently targeted to Status Indians.

However, the decision does not provide Metis or non-Status individuals with new entitlements to registration as Status Indians. The current registration provisions within the Indian Act do not provide the Department with the authority to grant Metis or non-Status recognition; therefore, individuals should not apply under the Indian Act.

6.6: Status, Band Membership and Band Lists – Additional Guiding Principles

[65] A further guiding principle is this: membership in a band does not necessarily mean an individual is a registered Indian or an Indian entitled to be registered. Similarly, a lack of band membership does not necessarily mean that an individual is not registered or entitled to be registered as an Indian.

[66] There are a host of reasons that may explain this state of affairs. One reason stems from the fact that sections 8 through 10 of the Indian Act give control over the band membership and thus, control over the names that appear on the band lists, to those bands who have complied with the various requirements set out in those sections. As such, bands are entitled to develop their own codes and by-laws to govern membership. Thus, the "rules of admittance" or "de-admittance" as a band member can vary from band to band.

[67] Further, some bands welcome additional members, while others do not want to expand. Some bands are concerned about taking in new members without guarantees of increased funding from government. There is also a shortage of land, resources, housing, infrastructure, and other facilities on reserves. Not surprisingly, depending on the band's view of expansion, membership may include individuals who do not fit the definition of Indian under the Indian Act, while other bands may have restricted membership and exclude some individuals who are registered or entitled to be registered as Indians under the Indian Act.

[68] Sometimes parents simply do not get around to having their children added to the band's formal membership list. As the court noted in the case of Children's Aid Society of London and Middlesex v. M.O., at paragraph [35]:

Although registration of native persons is very important to the band, it may sometimes take parents years to register their children. Even though some children are not "formally" registered either with Indian Affairs or the band, the band itself may consider any child born of any native parent to be a member of the band. Where only one parent is an Indian, only the native parent need consent to the registration.

[69] There are also individuals who have status or are entitled to status but who have no band membership (or even a connection to an actual band) because that connection has been lost. Chief among the reasons for the loss are years of living in diaspora as a result of interference in family care in aboriginal communities. This is the legacy of the residential school system that began in Canada in the 1880's. This system had as its two primary objectives the removal and isolation of aboriginal children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption that aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, "to kill the Indian in the child." Another often referred to source of community fragmentation and loss of individual connection is the "sixties sweep". This process began in the sixties when large numbers of aboriginal children were removed from their families, reservations and communities and placed in non-Aboriginal foster and adoptive homes.

[70] This leads to two final additional guiding principles. First, the requirement in clause 47(2)(c) of the CFSA that the court also determine the child's band or native community, cannot mean that the child must be a formal member of a particular band or native community. The purpose of that determination must be the fulfillment of the unique purposes of the CFSA as they relate to Indian and native children. That is, to ensure that Indian and native children are given special consideration, through the provision of culturally appropriate and specialized service to their families, and the survival of their aboriginal communities through early identification, notice, and the provision of a meaningful opportunity for the communities to protect the communal interest in these children through consultation, planning, and participation in both in and out of the court process.

[71] Second, for the purposes of clause 47(2)(c) of the CFSA, it is possible for a child to be an Indian connected to a native community rather than a band. Not all "bands" will meet the definitional criteria set out in clauses 2(1)(a), (b) or (c) of the Indian Act. However, these "bands" may meet the definitional requirements of "native community" under section 3 of the CFSA.

6.7: General Structure to the Analysis

[72] These are the key questions and issues that must be asked and the path of enquiry to be applied:

1. Has the child been recognized by the Indian Registrar as having Indian status?

2. If the child has been recognized as an Indian, then pursuant to subsection 2(1) of the Indian Act, the child is an Indian and the court must find that the child is an Indian under the CFSA.

3. If not a recognized Indian, is the child entitled to be recognized as an Indian under the Indian Act? To be entitled to be recognized, the child must fit within one of the categories of persons in subsections 6(1), 6(2) and who is not excluded by subsection 7(1) of the Indian Act. Where the parent is not an Indian by virtue of registration (a status Indian) then this determination will involve reviewing the parent's ancestral lineage to ensure that the parent was entitled to be registered based on the rules governing government recognition. It will also, in cases where the parent was born prior to April 17, 1985, require a review of the pre-1985 Indian Act.

4. If the child is the child of a person who is entitled to be registered, then the child is an Indian for the purposes of the Indian Act, and accordingly, the court must find the child to be an Indian under the CFSA.

5. If the child is not entitled to be registered as an Indian, then the child is not an Indian for the purposes of the CFSA.

6. If the child is Indian, identify the child's band. The court should determine first whether the child is a member of a particular band, and if not, whether the child is connected to a band as defined in clause 2(1)(b) or (c) or the Indian Act. If so, then identify the child's band.

7. If no band can be identified then the court should determine whether the child is a member of (or connected to) a native community as defined in section 3 of the CFSA. If so, then identify the native community. This will require a review of section 209 of the CFSA and require a determination as to whether the community in question is one of those designated by the Minister as a native community.

8. If no band or native community can be identified for an Indian child then the court should simply make that finding.

9. If a child is not registered as an Indian or entitled to be registered as an Indian then the court must ask: is the child a member of one of a community designated by the Minister as a "native community" pursuant to section 209 of the CFSA? If so, then the child is a native person as defined in section 3 of the CFSA. If not, then the child is not a native person.

10. If the child is a native person it will be easy to identify the child's native community as the finding that the child is a "native person" hinges on the identification of a particular "native community".

6.8: The Nature of the Hearing and Type of Evidence Required

[73] At this hearing, the court commented to the parties from the court's perspective, both parties had, in essence, brought a motion for summary judgment on the issue, as both were seeking a final order without a trial on part of the society's claim and the mother's defence. The rule governing the conduct of a "trial of an issue" is rule 16 of the Family Law Rules, O. Reg. 114/99. While a trial of an issue can be conducted by way of a summary hearing, based solely on affidavit evidence, the general intention is that the proceeding will operate akin to a trial, just with a very narrow focus.

[74] Further the type of evidence that can be relied upon at a motion proceeding under rule 16, as well as the use of hearsay evidence is much more restrictive under rule 16 than that which can be used and relied upon on motions governed by rule 14. For example, pursuant to rule 16 and subject to the court's right to give directions otherwise or to order that the matter proceed as a "mini trial", the evidence is generally in the form of an affidavit. If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court is permitted to draw conclusions unfavourable to the party [see subrule 16(5)].

[75] By contrast, on matters proceeding by way of motion pursuant to rule 14, hearsay evidence can be included in a person's affidavit evidence and relied upon by the court provided that certain conditions are met such as: (a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and (b) if the motion is a contempt motion under rule 31, the information is not likely to be disputed [see subrule 14(19)]. Further, although not directly on point, the court notes that, pursuant to subsection 51(7) of the CFSA, the evidence upon which the court can rely prior to trial (i.e., when adjourning a child protection hearing pursuant to section 51) is at the relaxed standard of that which it finds "credible and trustworthy".

[76] Upon reflection, however, it cannot have been the intention of the legislature that determinations as to whether a child is an Indian or native person be made solely at trial or as a "trial of an issue" pursuant to rule 16. This is the court's view for several reasons. First, many of the sections of the Act speak to early involvement of and consultation with the child's band or native community, early provision of culturally appropriate services, and early consideration of culturally appropriate placement and access orders that recognize and preserve the child's ties to his or her culture, community and to individuals who share the child's ethnic, racial and linguistic characteristics or native communities [see for example, subsections 1(2.5), 37(4), 51(3.1), 51(5), clause 1(2)5, and section 213.1]. There is also the provision in clause 39(1)4 which makes a representative chosen by the child's band or native community a party, where a child is Indian or native. Additionally, there is the directive to the court in subsection 47(1) and clause 47(2)(c), to determine whether a child is Indian or native "as soon as is practicable" and at a "hearing". The term "hearing" is ordinarily used to refer to the proceeding where issues are decided by way of motion. Further, given the practicalities of scheduling a "mini-trial" and the heavy evidentiary onus involved in proceeding by way of motion for summary judgment, the legislature must have intended for the court to make the determination of a child's status without delay and, prior to a trial (min or otherwise). The only process that could accommodate this objective is a motion governed by rule 14.

[77] Given the forgoing, it is this court's conclusion that such determinations are to be made on motion, based on affidavit evidence that may include evidence not in the affiants personal knowledge, so long as that evidence meets the requirements in subrule 14(19).

[78] The range in terms of the type of evidence that can be relied upon is very broad. At its highest level that evidence will consist of the production of a Certificate of Indian Status (CIS). This is the document given to a person if he or she is granted registration under the Indian Act. This is prima facie proof of his or her registration.

[79] It is not the only means of proving one is an Indian however, as often it is entitlement to registration from which the rights of status flow. The main requirement in order to be included in the Indian Register is evidence demonstrating that the person is a direct descendent of persons whom the Canadian government has recognized as being entitled to registration. In Johnson v. Canada (Aboriginal Affairs and Northern Development), 2014 BCSC 352, the Registrar looked at evidence such as birth certificates, marriage certificates, death certificates, obituaries, census listings, and book excerpts.

[80] Despite the court's reliance on specific documentation in Johnson v. Canada (Aboriginal Affairs and Northern Development), independent and corroborative documentary evidence should not be required by courts in all cases to "prove" that a child is Indian under the CFSA by virtue of the child's entitlement to status. The Indian Act itself suggests reliance on other forms of evidence. For example, under subsection 14.2(1) of the current Indian Act, a protest regarding the inclusion or addition or omission or deletion of a person from the Indian Register, or a Band List may be made by notice in writing. The notice is to contain a brief statement of the grounds relied upon. In subsection 15(4), the onus of proof lies on the person making the protest. The type of evidence that can be received on such protest is described in subsection 14(6):

14. Evidence — (6) For the purposes of this section, the Registrar may receive such evidence on oath, on affidavit or in any other manner, whether or not admissible in a court of law, as the Registrar, in his discretion, sees fit or deems just.

[81] It is also important to remember that in many of these cases documentary evidence may not yet be available, exist, or easily obtained. In many cases this may simply be due to the passage of time and the record keeping practices of the period. For example, in this case close to or more than 100 years have passed since the birth of two key ancestors from whom the children's entitlement to status may flow. In other cases the passage of time may be more or less, but often it can be significant.

[82] There is also a cultural dimension to be considered and which may further complicate these practicalities. First, many aboriginal cultures share the tradition of passing down the "history" of the community, the family, and of the members of both, from one generation to the next orally. As noted earlier and unlike the practices of those who have historically formed Canada's dominant culture, it is not the practice for many aboriginal people to "obtain" or "record" status or important events formally or in writing, (i.e. by obtaining formal membership status in the band for one's children or even notifying the band formally of the birth, death or marriage of children, or, even applying for Indian status through the Indian Registrar). These possibilities may require the culturally competent court, to adapt its evidentiary expectations.

[83] Adapting to be culturally sensitive with respect to family and communal histories does not mean that courts ought to be permitted to rely upon inadmissible evidence, but it does mean that either oral testimony on oath, or evidence in the form of an affidavit ought to be accepted as the minimum standard of proof required under the CFSA to establish that a child is Indian by virtue of its entitlement to status. It also means that the decision as to whether to accept this minimum or to require more, ought to follow along the same lines as those governing the Registrar's acceptance of such evidence — on a case by case basis and if it is fit and just to do so.

6.9: The Evidentiary Standard

[84] In its submissions, the society in this case repeatedly referred to a lack of definitive proof as to the status or entitlement to status of several of the children's ancestors. As counsel for the mother quite rightly pointed out, "definitive" proof is not what is required. The standard to be applied is a balance of probabilities. This court shares the view of Justice Donald M. Little as set out in the case of Heintz v. Heintz, 2009 MBQB 304, at paragraphs [75] and [76]:

[75] From my review of the case law, evidence at many of these hearings is often "thin". Parents adopt positions. This case is no different. The "evidence" is not so much a series of established facts from which reliable "best interests" conclusions can be drawn, but rather a series of bare allegations, beliefs, emotionally held opinions and arguments which may or may not find favour with the court as a matter of judicial notice, common sense, or inferential reasoning. The court must ultimately decide which side's case is more persuasive if only because a decision must be made. Often, if the evidentiary scales are tipped at all, it is by a feather's weight.

[76] Some case law makes passing reference to the limitations, or absence of evidence, or what might be considered the subjective nature of this kind of inquiry (for examples: see Comrie at Paragraph 22; Hornan at Paragraph 181; and Pappel at Paragraph 20). This will likely always be so. Proportionality in most cases dictates the necessity of a summary proceeding. How one side or the other can predictably or demonstrably show a child's interests will or will not be served by a change of name is likely to remain elusive. In the end, the decision is one that must have due regard for the onus of proof, the relative frailties of the evidence and the fact that a decision, one way or another, nonetheless needs to be made. Sometimes, the court must simply do the "best it can" with what it has.

6.10: The Onus and Other Responsibilities that Lie with Children's Aid Societies

[85] Pursuant to paragraphs 1(2)4, 1(2)5 and clause 20.2(2), of the CFSA, when providing services to children who are native or Indian, the agency is required to take the child's culture, heritage and traditions into consideration at all times, to ensure that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family, and to consult with the child's band or native community in the provision of services.

[86] The CFSA also requires that, on taking a child into care, an agency must comply with subsections 57(3), (4), (5), 58(2) and 61(2). These subsections require the agency at every step of any proceeding (whether by consent or otherwise), to satisfy the court that it has discharged the heavy onus (especially in cases of native children) to give both notice and every opportunity to the native community to make a placement available with a member of the child's extended family, "a member of the child's band or native community or another Indian or native family, unless there is a substantial reason for placing the child elsewhere".

[87] Even when the matter is returned for status review, the agency must comply with subsections 64(10) and 65(3). That is, it must constantly reconsider any non-native placement and continually satisfy the court that the appropriate efforts, notice and opportunity have been given to the extended family, native community or band to offer a native placement.

[88] While it is expected that parents will alert the agency to the possibility that their children may have some connection to the aboriginal community and that they will work co-operatively with the society as it discharges its responsibilities, the onus is not on the parents. As this court noted at paragraph [6] of its earlier decision, Children's Aid Society of Halton Region v M.M. (supra), there are good reasons for this applicable to most parents, aboriginal and non-aboriginal alike:

[6] Depending on the parents is often unhelpful. All too often they are unrepresented, disenfranchised individuals coping with the loss of their child as well as such issues as addiction, mental health, intellectual challenges and criminal charges. They often do not know of the special considerations and treatment of Indian or native children. They may also generally experience difficulty advocating for themselves or their children with society representatives such as when they hold negative perceptions of those representatives. It is a tall order to expect them to effectively advocate with such representatives for the special considerations afforded to them and their children. Further, many are unable to marshal evidence to support their position, generally, let alone the kind of evidence required to prove that their children are Indian or native. Even rarer is a parent who has the ability to come forward and make the complicated legal argument required at a hearing to determine whether a child is Indian or native.

[89] These challenges are compounded in the case of aboriginal parents. Many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions. Although made in the context of a discussion about how systemic and background factors explain in part the incidence of crime and recidivism for aboriginal offenders, the comments of the Supreme Court of Canada at paragraph [67] of R. v. Gladue, are helpful in understanding why the onus cannot be placed upon aboriginal parents to "prove" their children's status in the CFSA context:

[67] The background factors w systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offenders as well. However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions. are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and other factors contribute to a higher incidence of crime and incarceration. A disturbing account of these factors is set out by Professor Tim Quigley, "Some Issues in Sentencing of Aboriginal Offenders", in Continuing Poundmaker and Riel's Quest (1994), at pp. 269-300. Quigley ably describes the process whereby these various factors produce an overincarceration of aboriginal offenders, noting (at pp. 275-76) that "[t]he unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately with the ranks of the latter, our society literally sentences more of them to jail." [emphasis added]

[90] Similarly, the onus should not fall on the shoulders of an Indian band or native community. There is nothing in the statute to suggest that the band or native community is required to actively participate in any proceeding under the Act. Notice to and inclusion of bands wishing to participate is entirely an obligation of the children's aid societies.

[91] While this differing level of statutory responsibility may appear unfair, it is both necessary and appropriate. As the court notes in the decisions of Algonquins of Pikwakanagan v. Children's Aid Society of Renfrew County, 2014 ONCA 646, at paragraph [61] and in Children's Aid Society of London and Middlesex v. Marilyn O., at paragraph [47]:

[47] While this differing level of statutory responsibility may appear unfair, the legislation may have intended this to address a long-standing concern of the aboriginal and Indian population that non-Indian institutions, agencies and families had been inappropriately placing Indian children in non-Indian homes to the detriment of the bands, the Indian communities and the Indian children themselves.

[92] Not only does the onus of giving notice to the band and of fulfilling the investigatory and service objectives vis-à-vis Indian and native children under the CFSA fall squarely on the shoulders of children's aid societies, but so too does the responsibility of ensuring that the affidavit evidence put before the court is balanced, fair and presents a factual recitation of incidents or events, in their totality.

[93] The court was referred to several cases where this principle is enunciated and where the agency in question was criticized for failing to fulfill this onus. The best example from the cases is Justice Barbara L. Baird's comments in New Brunswick Minister of Social Development v. M.A. and R.A., 2014 NBQB 130. These are some of the excerpts from that decision:

[274] My unequivocal response is that in child protection hearings, where the future of the parent child relationship is at stake, ethics must never be sacrificed in the name of the adversarial system.

[277] Given the hundreds of pages of documents and the nature of this litigation, it is unrealistic to expect that self-represented litigants could reasonably and effectively participate in the adversarial system.

[278] Had it not been for the diligence of both counsel for the respondents the troubling aspects of this case would not have surfaced.

[279] To fall back on the cliché that we function in an adversarial system does not address the concerns I have with process.

[280] The best interests of children call us to a higher duty of care, professional ethics, lack of bias, impartiality and fairness. In other words, winning expeditiously is not an option.

[326] Except of Court Comments, April 28, 2014

THE COURT: First of all I want to thank you for reaching the agreement that you did. I am convinced that the Minister's case had significant flaws and, and quite frankly, I remain deeply troubled and concerned about the way this file was handled, and I am telling you all right now that there will be a decision. I am signing the consent, or agreeing to this consent order; however reasons will follow. It will be an order, but reasons are going to follow. And in those reasons I intend to outline the concerns that I have relative to certain aspects of the evidence starting with the testimony of Ms. Thibeault, the lead social worker, where she admitted that in her opinion the policy or the practice of incorporating only certain aspects of service provider notes in affidavits was characterized by her as "unethical, unbalanced and skewed". I cannot tell you how profoundly troubled I am by this revelation. It is, it is beyond belief that we as judges are receiving these affidavits routinely from the Department of Social Development, we have to rely on the integrity of the process, we believe that they are fair and balanced and that they reflect the reality of the situation, and I can, I can assure you that were it not for the fact that counsel for the respondents dug through the notes and spent the hours of work I'm sure they spent in cross referencing the notes with the affidavits, this issue undoubtedly would never have come to light. How many of these applications have been heard under circumstances where this issue was not raised or flushed out? And it calls into question, it makes me sick to my stomach when I think about it, it calls into question the integrity of the process.

[325] Recommendations

3. The affidavits which accompanied the Notice of Application and Notice of Motion were, in the scrutiny of cross-examination, unreliable, as they were "skewed" and did not show the whole picture.

The affidavits were prepared by the legal administrative assistants, on the advice of the social worker involved at the time.

12. Crown counsel acting for the Minister of Social Development are acting in a capacity where they receive and offer advice to a client.

Their role is to present the case in its totality.

Their higher calling is to the administration of justice and to the court.

[94] In Children's Aid Society of Hamilton v. M.N., the court commented extensively on the issue of onus and the obligation of the society in cases involving children who may be Indian or native persons. The court dismissed the society's summary judgment motion and noted many deficiencies with respect to the evidence. One such deficiency included that the affidavits did not adequately address culture and language issues nor satisfactorily dealt with the child's right to exposure to her culture and language which were significant issues in that case. The court noted that the action was far from ready for trial. The court criticized the society who had not met its positive obligation to investigate all relevant circumstances and provide adequate services to families. At paragraphs [38] and [39], the court notes:

[38] The Society has an obligation, pursuant to s. 15 of the Act, to protect children, properly investigate all relevant circumstances and provide adequate services to families that have as its objective the reuniting of family members where appropriate. (See, for example, Children's Aid Society of London and Middlesex v. S.(E. V.F.) (2004), 1 R.F.L. (6th) 68 (Ont. S.C.J.) and children's Aid Society of Niagara Region v. D.(W) (2004), 1 R.F.L. (6th) 84 (Ont. S.C.J.)) Section 57(2), (3) and (4) also engage a discussion of less disruptive alternatives. These matters are not fully canvassed in the evidence as required.

[39] The Society may not utilize the system as a means of delay and then rely on the statutory time limit to argue Crown wardship is the only remedy available. Such, in essence, is an improper attempt to transfer the evidentiary onus to the parents, is clearly contrary to the stated purpose of the Act and cannot be said to be in the best interests of the child.

[95] Given the forgoing and the positive obligations and heavy onus on children's aid societies, this court adds three additional guiding principles with respect to the weighing of evidence and inferences to be drawn. First, where the possibility is raised that a child may be an Indian or native person, such assertion should be treated as a prima facie case for such a finding. It thus lies to the society, if it wishes to take a contrary position, to "prove" that the child is not Indian or native.

[96] Second, in the absence of a reasonable explanation, any failure on the part of the society to call relevant evidence, ought to result in the court drawing an adverse inference. The adverse interest that should be drawn in such circumstances is that such failure amounts to an implied admission that that the missing evidence or of the absent witness would be contrary to the society's case, or at least would not support it. Support for this principle is found in the jurisprudence and in this regard the case of Sabanegh v. Habaybeh, 2010 ONSC 6572, is instructive. There, the court stated at paragraph [73]:

[73] In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that that the evidence of the absent witness would be contrary to the party's case, or at least would not support it.

[97] Third, the benefit of any doubt should inure to the benefit of the subject children. These three additional principles ought to be considered and applied when appropriate because there is simply too much at stake for aboriginal children, families, bands and communities. For the court to do otherwise would sacrifice access to justice in the form of receiving the benefits and special considerations afforded to Indian and native children in the name of the adversarial system.

7: THE EVIDENCE

7:1 Evidentiary Issues

7.1.a: The Parties' Reliance on Hearsay

[98] Virtually all of the evidence in this case relevant to the determination of whether the children are registered as Indians or entitled to be registered as Indians under the Indian Act, is based on hearsay. In some instances the statements relied upon are double and triple hearsay and in others the specific source of the statement is not named. Further, some of the most significant information proffered by the society as evidence has as its source websites such as Google, ancestry.ca and automatedgeneology.com. There is no evidence about the reliability of the information posted on these websites.

[99] No one objected to the admission of any of the hearsay, other than the mother in two limited instances, no doubt because both the mother and the society needed it to advance their positions. The mother objected to the admission of the statements made by T.W. and L.B. which were presented through the evidence of child protection workers Jennifer Benallick and Donna Miles. The objection was on the ground that the society could have put the evidence of these two witnesses before the court by way of an affidavit sworn by each and it had offered no reason why it had not done so.

[100] The court has admitted most of the hearsay evidence on the basis that the hearing proceeded as a motion pursuant to rule 14 and as a result, hearsay evidence, that meets the criteria set out in subrule 14(19), can be relied upon at such hearings. However, as will be seen below, it placed less weight on the evidence of T.W. and L.B. than on S.B.'s evidence where their evidence conflicts and it placed limited weight on the evidence obtained via searches on Google, ancestry.ca or automatedgenology.com.

7.1.b: Hearsay Statements made by R.W.

[101] The court also placed significant weight on the hearsay evidence of S.B. with respect to information conveyed to her by her former husband, R.W. and his deceased grandmother, I.M.

[102] S.B. is the children's biological maternal grandmother and R.W., their maternal biological grandfather. They were married in 1973 and were together for about 6 years. They subsequently separated. I.M. and E.B. (R.W.'s mother) are both deceased. R.W. while alive, now suffers from dementia.

[103] Most of what S.B. has to say comes from things that R.W. and I.M. told her when S.B. and R.W. were together. That evidence meets the test for threshold admissibility as it is both necessary and reliable. With respect to reliability, it is information conveyed to S.B. before R.W. had dementia and while I.M. was still alive; and is corroborated in many instances by both S.B.'s evidence based on her own personal knowledge, recollections and experiences including her recollection of what she was told by R.W.'s grandmother, I.M. Further, and as discussed below, some of the information S.B. recounts as having been told by R.W. is partially corroborated by independent sources, such as by official band representatives, and R.W.'s half siblings, T.W. and L.B.

7.1.c: Opinion of the Office of the Indian Registrar

[104] The society relies upon an opinion given to it over the telephone by a representative at the office of the Indian Registrar. Specifically, child protection worker and community protection services supervisor, Donna Miles, deposed that child protection worker, Jennifer Benallick spoke to someone at the office of the Indian Registrar who told her that she did not believe the children were eligible for status. This "opinion" is of no value in this case and the court placed no weight on it. This is because according to the evidence of Donna Miles, the opinion was based on the non-identifying information the representative from the Registrar's office had been provided by Ms. Benallick. It is hard to fathom how an opinion can be formed about the children's entitlement to status without identifying information. Further, the evidence does not disclose what information the representative was provided, and as the court has noted below, the society followed a line of ancestry that had C.W. as R.W.'s father, not T.G.

7.1.d: Negative Inferences Drawn Against the Society as a Result of Deficits in the Evidence

[105] In challenge to the mother's assertion that the children are Indian, the society relies on the absence of more definitive or documentary evidence put forward by the respondents establishing such things as: recognition by the Indian Registrar, band membership, birth dates, parentage, and marriage dates. For example, the society asserts that there is no proof that the maternal grandmother was married to R.W. before 1985 and thus, the court cannot find that the maternal grandmother's entitlement to Indian status would have flowed from clause 11(1)(f) of the pre-1985 Indian Act.

[106] The responsibility to investigate and to produce such evidence and records, for the reasons outlined above and particularly given the differing statutory responsibilities on the society, lay with the society. This obligation arose the moment it became involved with this family and certainly crystalized months before it apprehended the children, when the mother first told the worker that her father was Mohawk. Despite this, the society put no birth, death or marriage records before the court. The best evidence the society has to offer this court is statements made by third parties that either conflict with the grandmother's evidence, amounts to unsubstantiated opinion evidence, or consists of information and documents obtained from its web searches.

[107] The society's explanation for its failings is to blame the mother and grandmother. It blames the mother and grandmother for the lack of documentary and more definitive evidence and for its failure to conduct any earlier and meaningful investigation into the children's entitlement to status as Indians. Examples of what it perceives as "blameworthy" on the part of the mother, maternal grandmother, and counsel for the mother, include:

a) Although the mother told Jennifer Benallick that her father was R.W., she also told her that he did not have Indian status;

b) Although the mother told Jennifer Benallick that her father was Mohawk, she did not provide her with any further information regarding the eligibility of her children for Indian status or which band to serve;

c) The mother did not provide any information about her personal connection to any aboriginal community;

d) Entitlement to status would have to flow through the children's great grandfather, T.G. but it was not aware of what band or native community he belonged to or is eligible to belong to and the affidavit of S.B. does not provide this information;

e) When the children were apprehended, the grandmother reported that the mother's biological father believed that he was native based on rumours and that he did not have status and when the society asked the mother, the mother also advised that she was not native and did not have status;

f) It asked the mother through counsel and on November 24, 2015, to provide affidavit evidence regarding her status and the status of all the children. Affidavit evidence was not provided until March 2016, in the form of affidavits sworn by the grandmother and the law clerk for mother's counsel.

[108] Several facts are abundantly clear from the evidence. First, the society was alerted to the possibility and thus of the need for it to thoroughly investigate the issue of the children's status or entitlement to status, months before the children were apprehended. Many examples of this are set out in this court's earlier decision, Children's Aid Society of Halton Region v M.M. (supra) at paragraphs [23]-[26]. Additional examples include:

(a) Child protection worker, Jennifer Benallick's evidence in her September 9, 2014 affidavit wherein she notes:

The children have status, however M. M. has advised that her biological father was one half native, and that there are current issues with his status. M.M. reported her biological father is R. W., and his current whereabouts is unknown. M.M. reported that her father believed that he belonged to the Mohawk Tribe. M.M. reported that she was legally adopted by G.B. S.B.., who currently resides in Burlington, Ontario. [initializing of names added]

(b) The March 27, 2015 affidavit of the mother, M.M. wherein she states: "Further, the children are aboriginal and therefore should be placed with a member of their extended family, the maternal grandparents".

(c) The affidavit of the maternal grandmother, S.B., sworn April 27, 2015 wherein she states:

I am aware that M.M.'s biological father is native. However, he has no status to my knowledge as he failed to obtain a status card. M.M.'s maternal grand uncle was a Chief of a tribe for a while and both of the biological father's paternal grandparents resided on the reservation, along with other family members [initializing of names added].

[109] There are other examples which have as their source, records of the Society submitted for this court's consideration, and which leave no doubt that the society was aware of the possibility and of its responsibilities. Examples of the notations from the society's records which illustrate this are:

(a) In a record made by child protection worker, Jennifer Benallick, dated May 7, 2014, regarding a face-to-face meeting between Jennifer Benallick and M.M., Jennifer Benallick notes: "kids — native — Mohawk tribe, bio father — no status, kids — ¼ — issues over her father's status, ½ status –R.W. (bio), legally adopted by G. B." [initializing of names added]

(b) In Jennifer Benallick's record relating to an internal meeting held on January 15, 2015 she notes: "let legal know — Mohawk".

(c) On November 18, 2015, Jennifer Benallick wrote: "Reviewed our conversations we had when she stated that **** thought he was aboriginal, however it was all based on rumours. M.M. does not have status, she is half Indian, she does not know the procedure, she does not know if she applied and received it. R.W. is full blooded Indian but she does not know if he had status. Reviewed that we will have to notify the band does she know which band. She advised no, it was over 40 years ago. [initialization added]

(d) In a note written by child protection worker and community protection services supervisor, Donna Miles, on February 23, 2016, she notes: "The mother has indicated that the children have status that the mother has status and does not have status – the mother is to provide information for status. We need to check if there are relatives out there for status".

[110] A second important fact that emerges from the evidence is that some of the statements made by the mother and her mother about who had and did not have status convey a sense of uncertainty. Also clear is that neither the mother and the grandmother provided the society with the detailed information they each clearly had and which would have assisted the society in fulfilling its investigatory, notice and service obligations.

[111] The society places much weight on the statements it alleges both the mother and grandmother made about R.W. not having status and upon the mother and grandmother not providing it with information establishing entitlement to status. The grandmother denies that she ever said R.W. was not entitled to status. The court prefers the mother and grandmother's evidence about what each said or did not say to the worker(s) over that of the society as the mother's and grandmother's evidence is supported by the notations made in the society records and in the mother's, grandmother's and even the worker's earlier affidavits.

[112] Knowing who had, has or is entitled to Indian status is no easy feat for all the reasons previously discussed. This is why the society is charged with the task of investigating the issue. In this case the society seems to have applied the wrong definitional criteria. On the evidence, the society's litmus test for action appears to have been "status" rather than "entitlement to status". While inconclusive as to status, the court finds that the statements made by the mother and grandmother throughout these proceedings and before, clearly identify the mother as half native, her father as full Indian or native, and signal the potential that these children may be entitled to status.

[113] Third, by early November 2015, the society had sufficient information to identify the specific band the children are alleged to be connected to. The mother had written on a draft statement of agreed facts signed by the society with respect to the fourth child, "Mohawk Reservation (Nappanee Ontario)".

[114] Fourth, by late November 2015, the society knew that the mother and the father, D.M. were asserting that the children were Indian as both the final statement of agreed facts filed with respect to the children's older brother as well as the mother and father D.M.'s answer and plan of care asserted as much.

[115] Fifth, and despite all of this and instead of fulfilling its statutory obligation, the society continued to ignore and dismiss all of this information until November 2015 when it demanded that the mother submit an affidavit evidence regarding her status and the status of the children (which she did not do until March 2016). Further and for 16 months, the society presented the courts with only those facts that supported its position that the children were neither Indian nor native. In effect, it painted a one sided and incomplete picture of the circumstances of these children to the court. It even failed to and at first refused to serve the band, even after the band had been identified and indicated it would accept service.

[116] Finally and most importantly, based on the evidence, the society did not even begin any real investigation to determine whether these children were Indian or native persons until March 2016. It did so in response to the mother's motion for a declaration that the children are Indian or native persons and for an order that the band be served. In other words, the society began its investigatory efforts about 13 days before the mother's motion was to be heard. In the short timeframe that it left itself, the court is not in the least bit surprised that the society has been unable to put documentary or much in the way of definitive or reliable evidence before the court.

[117] In all the circumstances, the court does not accept the society's explanation as to why it is unable to present the court with more meaningful, reliable and even documentary evidence about these children's entitlement to status. In the circumstances, blaming the mother and grandmother is not reasonable.

[118] Given the absence of a reasonable explanation the court has, in several instances, drawn inferences adverse to the position of the society. The adverse inference drawn is that the society's failure amounts to an implied admission that the missing evidence, including birth, marriage, and death records, as well as records evidencing the status or entitlement to status of various individuals as Indians, would be contrary to the society's case, or at least would not support it. The court has identified below those instances where it has drawn such negative inferences.

7.2: The Evidence And Key Findings Of Fact

7.2.a: Overview of the Flow of Status According to S.B., the Maternal Grandmother

[119] Based on the evidence, there are two avenues put forward by the mother through which the entitlement of the children to be registered as Indians pursuant to the Indian Act flows. The first is through their biological connection to their great, great grandfather, R.M. There is no real dispute that R.M. was born native, is a person whose name appears on the band's membership list, and was recognized by the Indian Registrar as an Indian. This theory hinges on R.M. being the biological or adoptive father of E.B., the children's great grandmother.

[120] The second theory is that, either in addition or separately, the children are entitled to status through their great grandfather, T.G., who was married to E.B. The lynchpin to this theory is that T.G. is the biological father of the children's biological grandfather, R.W., and, that T.G. was either registered as an Indian or entitled to be registered as an Indian.

[121] Based on the undisputed and unchallenged facts and given the forgoing, the material facts in dispute centre around E.B.'s and R.W.'s paternity and whether either of their fathers were Indian within the meaning of the Indian Act. The material contested findings of fact that this court must make are these:

a. T.G. was R.W.'s biological father; and

b. T.G. was a recognized Indian or entitled to recognition as an Indian; and,

c. Whether E.B. is the legitimate, illegitimate, or adopted child of R.M. or someone else who was Indian or entitled to be registered as an Indian.

7.2.b: Agreed, Undisputed or Unchallenged Facts

[122] Below are the key agreed, undisputed or unchallenged facts.

[123] Neither the mother nor any of the subject children have been recognized by the Indian Registrar as having Indian status. Thus, the only way these children can be found to be Indian within the meaning of the Indian Act and the CFSA, is if they are found to be entitled to be registered as Indians under the Indian Act.

[124] Any entitlement to Indian status must flow through the mother and her ancestral lineage as none of the children's fathers have or are entitled to Indian status.

[125] The children's alleged great great grandfather (R.M.) was born native and was recognized by the government as an Indian. Similarly, it seems to be agreed or at least there is no serious challenge to the assertion that the children's alleged great, great grandmother, I.M., was also a recognized Indian. However, she was not born native. She acquired her Indian status through her marriage to R.M.

[126] The Mohawks of the Bay of Quinte - Tyendinaga Mohawk Territory are a recognized band within the meaning of the Indian Act. Theirs is a population of the Six Nations of the Grand River. The Shenandoah reservation is part of the Tyendinaga Mohawk Territory.

[127] At this time the evidence is that except for the children's alleged great great grandfather (R.M.) and his wife I.M., the great great grandmother of the children, neither the mother, any of the children, nor any one of the names of the other individuals along the mother's ancestral tree, were or are members of the Mohawks of the Bay of Quinte. None of these individuals, other than I.M. and R.W., are listed on the band membership list.

[128] The band of Mohawks of the Bay of Quinte - Tyendinaga Mohawk Territory has said:

(a) It may be served with materials in these proceedings.

(b) It is looking for information to prove the mother's eligibility;

(c) It appears to it that the mother's lineage would be a positive match for eligibility based on surname information.

I.M. and R.M.

[129] The band records list no other marriages for I.M. and R.W. other than to each other.

E.B. (children's great grandmother)

[130] E.B. is the biological great grandmother of the children as she is the biological mother of R.W. (the children's biological maternal grandfather). E.B.'s date of birth was […], 1927.

7.2.c: The Contested or Semi-Contested Evidence

7.2.(c)1: Overall Assessment of the contested evidence

[131] The evidence with respect to the material facts in dispute is incredibly thin. It is not so much a series of established facts from which reliable conclusions can be drawn, but rather, a series of bare allegations, beliefs, unsubstantiated or unreliable opinions and arguments. Some of these have found favour with the court as a matter of common sense or inferential reasoning. The court's decision with respect to many of the material facts is, for the most part, based on the arguments it has found more persuasive or plausible, but just barely so. In the end, on most of the issues, the evidentiary scales are tipped by a feather's weight in support of the mother's position on many of the contested facts.

7.2(c)2: S.B.'s evidence about R.W.'s parents - E.B. and T.G.

[132] S.B.'s evidence in support of a finding that E.B. is the legitimate, illegitimate, or adopted child of R.M.; that E.B. was married to T.G.; that T.G. was R.W.'s biological father; and, that T.G. was Indian includes:

a. R.W. told her that E.B.'s parents were I.M. and R.M.;

b. I.M. and R.M. resided on the Tyendinaga 6 Nations Mohawk territory reservation;

c. R.W. repeatedly told her that he was 100% Indian;

d. R.W. and she spent all of their summers while together (about 6 of them), visiting his grandmother, I.M. on the Tyendinaga 6 Nations Mohawk Territory reservation, where I.M. resided. R.M. was deceased by this time.

e. E.B. was raised on the 6 Nations Mohawk territory reservation.

7.2(c)3: Issue One: Was T.G. or C.W. the biological father of R.W.?

[133] Some of the information that child protection worker, Jennifer Benallick, obtained from one of R.W.'s siblings, T.W., serves to confirm certain portions of S.B.'s evidence. For example, T.W. confirms that:

a. E.B. had two marriages. Her first marriage was to T.G., who was of native heritage. She took T.G.'s last name upon marriage (thus becoming E.G.);

b. Upon dissolution of her marriage to T.G., E.B. married C.W.;

c. E.B. was the daughter of R.M. of the Tyendinaga Mohawk, and E.B.'s mother was I.M.

[134] Some portions of S.B.'s evidence are also corroborated in whole or in part by statements the worker deposes were conveyed to her by R.W.'s sister, L.B. who also holds Power of Attorney for R.W. In this regard the court notes that child protection worker and community protection services supervisor, Donna Miles, deposed that child protection worker, Jennifer Benallick spoke to L.B. on April 7, 2016. L.B. is reported to have said, among other things, that:

a. E.B. had two marriages;

b. E.B. had been married to a person with the surname of "Greene", who did have Indian status;

c. After her marriage to "Greene", E.B. married C.W., who was a "white" man; and,

d. She believes that E.B. lost her Indian status as a result of her marriage to C.W. It is unclear from the evidence where she believes E.B.'s status derived from. That is, whether E.B.'s status flowed from her marriage to "Greene" or whether she had status independent from her marriage to Greene, which was lost as a result of marrying a "white man".

[135] Beyond those statements which are consistent with S.B. and T.W.'s information, the court finds L.B.'s evidence completely unreliable and places no weight on the balance of the statements or the lay opinions attributed to her. The court's decision not to assign any weight to the additional information she is reported to have provided is in part the result of these findings: she has very little knowledge about her own parentage and ancestry; and, her statements are inconsistent with the statements S.B. attributes to R.W. as well as with statements attributed to T.W. Further, her conclusion and statements: "R.W. was not eligible for Indian status, nor were any of her siblings" and, "Had R.W. been eligible for Indian status, she would have applied because it would open the door for him to more supports", lacks any real foundation. It appears to have been formed based on what little (and likely incorrect) information she has, rather than on the results of any investigations she made.

[136] These are some of the examples of statements that she is reported to have made that have led the court to this conclusion:

a. E.B. had been married to G. Greene (as opposed to T.G. as R.W. and T.W. said);

b. She does not know who R.W.'s biological father was;

c. She does not have R.W.'s birth certificate;

d. She does not know who her own biological father was.

[137] R.W.'s brother is also reported as having told the worker something that conflicts with S.B.'s evidence as to what the children's grandfather, R.W. told her. That is, T.W. is reported as having said that he and R.W. share the same biological mother and biological father. Thus, according to him, C.W. is R.W.'s father, not T.G., as R.W. reported to S.B.

[138] The court in this instance is called upon to weigh two pieces of hearsay evidence. It has assigned greater weight to R.W.'s statement to S.B. that T.G. was his father than on T.W.'s statement that C.W. was R.W.'s father. This is why: Based on T.W.'s and L.B.'s statements, there seems to be uncertainty in this family as to who fathered whom. The court has no information about the age difference between T.W. and R.W and a great deal of time has passed since R.W. and T.W. were children. The court also has no way to assess the strength or reliability of T.W.'s memory. Given these frailties, the court finds that R.W. would have been in the best position as between the siblings to know who his own father was. This coupled with S.B.'s evidence that he repeatedly told her about his lineage is more reliable than T.W.'s one time statements made to a child protection worker. The court accepts S.B.'s evidence that E.B. and T.G. were R.W.'s biological parents over Jennifer Benallick's evidence on this point.

[139] The society produced no documents evidencing Indian registration or a lack thereof, birth or marriage records for T.G., C.W., E.B. R.W., or any of R.W.'s siblings. From its failure to produce records supporting its assertion that C.W. and not T.G. was R.W.'s father, the court draws the adverse inference that had these records been produced, they would not have supported the society's position on these disputed facts.

[140] Accordingly, this court finds that T.G. was R.W.'s biological father.

7.2(c)4: Issue two: Was T.G. registered as an Indian or entitled to be registered as an Indian?

[141] Very little information about T.G. is available. In part this is because the society concentrated its search on the ancestry of C.W. (the father of T.W.) rather than T.G.

[142] The Society relies upon statements made to it by the band that it says demonstrate that T.G. was not an Indian or married to E.B. These statements are:

a. There were a few people under the name "T.G." registered in the band's membership database;

b. None of the persons listed as T.G. was listed with a marriage to a person with the first name "E";

c. There was no E. Greene listed in their membership database.

[143] The court is not persuaded that the band's statements mean that T.G. was not married to E.B.; not native by birth; not an Indian with status; and not entitled to be registered for status as an Indian, for several reasons. First, the one thing that R.W. and his two siblings seem to agree upon is that E.B.'s first husband had "Greene" as his surname and he was of native heritage. L.B. and S.B. assert he was more than that, he was 100% Indian. As the court has already found that T.G. was R.W.'s biological father, it must therefor also conclude, in the absence of evidence to the contrary, that he was born native. No one has given evidence that T.G. was a member of the Bay of Quinte band. S.B.'s evidence is that she does not know what band he belonged to. The fact that no T.G. with a marriage to a person with the first name "E" can be found in the band's database does not mean that T.G. was not an Indian. What it may mean is that T.G. was not a member of the Bay of Quinte Band.

[144] The society produced no documents evidencing T.G.'s registration as an Indian or a lack thereof. It produced no birth record for T.G. or documentary records tending to show that T.G. was not native by birth, did not have status or was not entitled to status or that he and E.B. were never married. In the circumstances and given the lack of an acceptable explanation from the society as to why these records were not produced, the court draws the adverse inference that had these records been produced, they would not have supported the society's position on these disputed facts.

[145] Weighing all of the evidence together, and taking the court's adverse inference coupled with the greater weight it has afforded to S.B.'s evidence, into account, this court has reached the conclusion that it is more probable than not that R.W.'s father, T.G. was married to E.B., was born 100% native and either was registered as an Indian or entitled to be registered as an Indian.

7.2(c)5: Issue three: Was E.B. the legitimate, illegitimate, or adopted child of R.M. and I.M.?

[146] The society relies, in part, upon the results of its search efforts into I.M.'s background in support of a finding that E.B. is not the biological or legitimate daughter of R.M. and I.M. The first thing it relies upon is information about I.M. obtained from the band, which includes:

a. I.M.'s middle name was "May" and her parents' last name were listed as "L". Thus, her name at birth would have been "I.M.L";

b. I.M.'s surname prior to her marriage to R.M. is listed in the band records as "B".

[147] The next thing that the society relies upon is the results of its efforts to determine how I.M. acquired the surname of "B" between birth and her marriage to R.M. Based on its search efforts it believes that I.M. married J.R.B. before her marriage to R.M. In this regard the court notes that the society searched for "B., I." using Google. One of the search results returned was from ancestry.ca, showing that there was a record of a marriage between an "I.M.L." and "R.J. B." on November 24, 1926, in Lennox, Ontario.

[148] Results from the society's search revealed a 1911 Census of Canada from automatedgenealogy.com listing a "R.J.B." as being male and a son, with what the worker assumes is a date of birth of March 1904. Based on the adjacent listings, the worker assumes, R.J.B.'s parents are D.B. and I.A.B.

[149] There were no persons with the names of D.B. and I.A.B. in the band's database.

[150] There was no "R.J. B." registered in the band's data base.

[151] The society deduces from the forgoing that R.J.B. was not native.

[152] The society also infers from the fact that E.B.'s surname is "B" which matches I.M.'s surname before her marriage to R.M. and the surname of the man they assert I.M. married on November 24, 1926, and from the close proximity between that date of marriage and E.B.'s date of birth according to S.B. ([…], 1927), that R.J.B. is E.B.'s biological father, not R.M.

[153] To further solidify its position, the society relies upon information it obtained from a band representative with respect to what is recorded in its records about I.M. and R.M.'s marriage histories and children. The highlights of that evidence follows:

[154] R.M. and I.M. were listed in the band's database with two registered sons and no daughters.

[155] I.M. was not listed as having a daughter by the name of "E" or "E.B.".

[156] There was no "E.B." registered in their membership database.

[157] There was no "E" born on […], 1927, or born in 1927, registered in their membership database.

[158] Based on the evidence before the court at this time E.B.'s paternity includes these possibilities, at minimum:

a. E.B. was the legitimate biological daughter of R.M. and I.M.;

b. E.B. was the illegitimate child of R.M. and I.M., conceived and born before their marriage;

c. E.B. is R.M.'s illegitimate daughter conceived with someone other than I.M.;

d. E.B.'s biological father is R.J.B.; or,

e. E.B. is the biological, illegitimate, or adopted child of someone other than R.M. and R.J.B.

[159] All of these theories are highly speculative. Thin as it is, the evidence favours a finding that I.M. was not native by birth and neither had status nor was entitled to status as an Indian prior to her marriage to R.M.

[160] Based on the evidence, this court finds that I.M. was married to R.J.B. before she married R.M. and that E.B. was more likely born prior to I.M.'s marriage to R.M. Based on the evidence as to when I.M. and R.J.B. married and when E.B. was born, it is also most likely the case that when I.M. married R.J.B., she was already three months pregnant with E.B. While there is little chance that E.B.'s mother was someone other than I.M., there is a chance that E.B.'s biological father was someone other than R.J.B. In other words, I.M.'s prior marriage to R.J.B. does not rule out the possibility that R.M. was E.B.'s actual biological father. It does, however, make it highly doubtful that E.B. was the legitimate child of R.M.

[161] Several factors tip the scale of probabilities in favour of a finding that E.B. was R.M. and I.M.'s illegitimate biological child. First, there is the fact that R.M. and I.M. ultimately married. Next, S.B.'s evidence which suggests a whole hearted acceptance by R.M., the family, and community of E.B. and later her son, R.W. as R.M. and I.M.'s grandson. There is also S.B.'s evidence that both R.W. and I.M. told her that R.M. was E.B.'s father (also confirmed by T.W.). S.B.'s evidence that E.B. grew up on the reserve and of the close connection between R.W. and the reserve (visiting it every year) and with his grandmother, I.M. also suggests a close nexus between R.W. and R.M. Third, there is the evidence of T.W. and L.B., both of whom effectively told the worker that E.B. was native.

[162] The court has placed very little weight on the evidence as to what is and is not recorded in the band's database because it does not trust those records (or the society's evidence about what it was told about those records) to be accurate. There are unexplained inconsistencies. For example, while the band's records do not show R.M. and I.M. as having any children other than two sons, those same records are alleged to show I.M. as not having any previous marriages. Further, the society alleges that the band database does not contain any references to anyone with the surname B. This information seems inconsistent with the second statement attributed to the band about that surname, namely, that "B- was not a common surname among members of the Mohawks of the Bay of Quinte". How can a name exist, albeit uncommonly, and not be in the band database? This evidence is also incompatible with the admitted evidence that the band representatives have advised that, based on the surnames, there appears to be a positive match. There is also the likely record keeping frailties of the era to consider as well as the fact, as noted previously, that it is not uncommon for parents to delay or fail to take formal steps to have their children registered as band members. In this case, the fact that E.B. was female and likely illegitimate may further explain the absence of any recording of her as being the child of I.M. and R.M. in the band's database.

[163] Finally, there is the absence of birth records, death certificates, adoption records and marriage records, all of which could have cleared some of the uncertainties in the evidence. Again, it was the society's responsibility to procure such records. It did not and from its failure to do so and lack of reasonable explanation, the court draws the adverse inference that had these records been produced, they would not have supported the society's position that R.J.B. was the biological father of E.B. and not R.M.

[164] Having taken all of the evidence and relevant factors into consideration and weighed them accordingly, this court finds that, on a balance of probabilities, E.B. was the illegitimate child of R.M., who was an Indian with status and a member of the band.

8. ANALYSIS

8.1: Motive, Conduct and Potential Delay

[165] These three children have been languishing in care for about 19 months - since October 30, 2014, without a final hearing on either the protection finding or disposition. A finding that these children are Indian or native persons will likely lead to further delay and depending on what transpires next, that delay may be lengthy.

[166] The court is keenly aware of the statutory imperative to move forward without delay and of the need for it to adhere to the statutory and regulatory timelines which govern child welfare cases and as reminded recently by the Ontario Court of Appeal in C.M.E.M. and B.J.V. v. Children's Aid Society of Waterloo Region (supra).

[167] Although the society shoulders the lion's share of the responsibility for this sad state of affairs and for any ensuing delay, the mother is neither without fault nor guileless. The mother's explanation for her failure to push the issue of the children's Indian or native status - because it was inconsequential until the society amended its pleadings to seek Crown wardship – is likewise unacceptable. By the time this motion was heard the mother had been represented by very capable counsel for almost a full year. The mother's conduct has the taint of a "stalling tactic" and does not appear to this court to be motivated by a true desire to preserve the children's connection to their aboriginal heritage and community.

[168] None the less, the court agrees with counsel for the children that considerations of poor litigation conduct and motive are not factors upon which the court can refuse to make a finding that the children are Indian or native persons. If the children fit the definitional criteria for such a finding, the court has no choice but to make a finding that they are Indian or native persons as those terms are defined in the CFSA. As the children's lawyer quite rightly points out, if these children fit the criteria they will have access to a wider range of services, additional options in terms of dispute resolution and possible placement, and, even greater opportunities in terms of adoption. There is simply too much at stake for these children. No matter how egregious and frustrating the litigation conduct of the parties, suspect their motives, or the resulting delay, such considerations cannot and have not influenced the court in its determination of whether these children fit within the definition of Indian or native persons.

8.2: Determination of Main Issue #1: Are the Children Indian within the meaning of the CFSA?

[169] The court now turns to the application of its factual findings to the determination of whether the children fit within the definitional criteria of "Indian" set out in the Indian Act and the CFSA.

[170] The question based on the path of enquiry outlined earlier and given that none of the children is registered as an Indian, is whether the children are entitled to be recognized by the Indian Registrar as having Indian status. In this case entitlement to status can only flow from the children's mother, M.M. Like her children, there is no evidence before the court that M.M. has been recognized by the Indian Registrar as an Indian. She has no CIS and although the court was told at the hearing that she has now applied for recognition, there is no evidence at this time demonstrating that M.M. has been granted such recognition.

[171] The question thus becomes: do the children have at least one parent who is entitled to status? Again, the only parent in this case who may be entitled to status is the mother. Because M.M. was born prior to 1985, pursuant to the current Indian Act [section 6(1)(a)], her eligibility to be registered is determined under sections 11 and 12 of the pre-1985 Indian Act. The particular wording of the applicable sections is set out above in the definitions section of these reasons. As part of its analysis the court must examine the flow of entitlement through the mother's ancestral lineage.

[172] R.M. was a member of a band and registered as an Indian and therefore was an Indian pursuant to section 2(1). Even if not registered he would be entitled to recognition pursuant to subsection 11(b).

[173] R.M. married I.M. and as such, I.M. acquired status as an Indian under 11(f) [wife of person entitled to be registered under section 11(b)]. As she was registered, she would, in any event, have been an Indian pursuant to section 2(1).

[174] E.B. was the illegitimate child of R.M. and I.M. There is no provision under which she can be found to be entitled to status. Only one subsection applies to an illegitimate female child and that is through I.M.'s status as a member of a band [see 11(e)]. However, subsection 11(2) directs that subsection 11(e) only applies to a person born after August 13, 1956. E.B. was born in 1927.

[175] As a result of the forgoing, the children's entitlement to status cannot flow from E.B. as the illegitimate daughter of I.M. and R.M.

[176] T.G. was also born prior to 1985, was 100% native and was either registered as an Indian or entitled to be registered as an Indian. As such, he was a recognized Indian or was entitled to registration pursuant to subsections 11(a), 11(c), or 11(d).

[177] When E.B. married T.G., she became entitled to be registered as having status (even though she was not previously entitled to status) pursuant to section 11(f) – given that she was the wife of a person entitled to be registered.

[178] R.W. is the biological son of E.B. and T.G. He was born prior to 1985. As a direct male descendant in the male line of T.G., he is entitled to be registered pursuant to section 11(c) [a male person whom is a direct descendent in the male line of a person described in 11(a) or (b)]. As the court has found that T.G. and E.B. were married R.W.'s entitlement is also be grounded under 11(d)– legitimate child of a person described in 11(a);

[179] S.B. married R.W. and was entitled to be registered under 11(f) [the wife of a person entitled to be registered].

[180] M.M. was born prior to 1985. She is the legitimate child of R.W. and S.B. As such, M.M. is entitled to be registered under section 11(d) [the legitimate child of R.W., a male person described in 11(c) - who is a direct descendant in the male line of a male of a person describe in paragraph (a) or (b)]. Therefore, M.M. is entitled to be registered under 6(1)(a) of the current Indian Act [person entitled to be registered immediately prior to April 17, 1985];

[181] All three children are the biological children of M.M., a person entitled to be registered under subsection 6(1) of the current Indian Act. As a result, this court finds that each of the three children have at least one parent who is entitled to be registered under subsection 6(1), and thus, pursuant to subsection 6(2), are themselves each entitled to be recognition by the Indian Registrar as an Indian.

[182] Given the forgoing this court further finds that the children each fall within the definition of "Indian" pursuant to subsection 2(1) of the Indian Act and by extension, are Indian as defined in section 3 of the CFSA.

8.3: Determination of Main Issue #2 – What is the Identity of each Child's Band?

[183] There is no dispute, as noted earlier, that the Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory is a band and has been declared by the Governor in Council to be a band for the purposes of the Indian Act. Accordingly, this court finds that the band falls squarely within the definition of "band" set out in section 2(1)(c) of the Indian Act and section 3 of the CFSA.

[184] The evidence of S.B., in particular, establishes the band that these children, through their ancestral lineage are most closely connected to is Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory. That Band has advised that it will accept service indicating an interest in these children, and advised that it appears, based on surnames, that M.M. and these children may be part of its community. There is no evidence that the children are connected to any other band as the band that T.G. was a member of or entitled to be a member of is unknown.

[185] Given the forgoing, and as formal band membership is not required for the reasons discussed earlier, this court identifies the band of the children as that of the Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory.

8.4: No Need to Determinate if these Children are Native persons or to Identify their Native Community

[186] Given this court's finding that the children are Indian and that their band is Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory, there is no need for this court to determine whether the children are native persons or to identify their native community. Thus, the court has not addressed these issues.

9: OTHER ISSUES

[187] As a result of this court's ruling the society has since advised the court that it withdraws its motion for summary judgment currently scheduled to be heard on June 13, 2016. The court would like to preserve the June 13, 2016 court date so that the parties can address the matter of rescheduling the trial management conference and any other issues that must be addressed.

[188] Costs have been sought. Although the court has not determined the issue, in the court's preliminary view this is not a situation where a cost order should be made against any of the parties. The issue was important and complex and there was no jurisprudence directly on point to guide the parties. It was reasonable and necessary in all the circumstances for this issue to be brought to the attention of the court for determination. Both the mother, D.M. and the society, however, engaged in conduct that prevented this issue from being determined "as soon as practicable." Their litigation conduct has jeopardized the timely progression of this case towards final resolution. Having said this, the court has not offered the parties an opportunity to make submissions with respect to costs and it may be that the court is unaware of relevant factors that might persuade it otherwise. If a party wishes to pursue this issue the court will hear oral submissions on the issue on June 13, 2016.

10: CONCLUSION AND ORDER

[189] For all of the forgoing reasons, this court makes the following findings and order:

1. This court finds as follows for the purposes of the Child and Family Services Act:

a. The child, A.L.C.B., born […], 2009, is an Indian as defined by the Child and Family Services Act and the child's band is Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory;

b. The child, A.F.M., born […], 2010, is an Indian as defined by the Child and Family Services Act and the child's band is Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory;

c. The child, M.D.M., born […], 2013, is an Indian as defined by the Child and Family Services Act and the child's band is Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory;

2. This matter is adjourned to be spoken to on June 13, 2016 at 10:00 a.m. to address the matter of scheduling a trial management conference as well as possibly costs, and any other issues that may need to be addressed.

3. The parties are to serve and file a 14C Confirmation for the next attendance on which the party filing is to identify the issues the party wishes to discuss at the attendance.

4. Mr. Toor may participate on June 13th by teleconference provided he makes arrangements to do so through the Judicial Secretary, including advising her of his intentions in advance.

5. Should a party wish to pursue the issue of costs, that party shall advise the Judicial Secretary in writing by June 6, 2016 of this intention, serve a bill of costs on all parties by end of day on June 6, 2016, and, be prepared to make submissions on the issue orally on June 13, 2016.

6. The Judicial Secretary is requested to send a copy of this endorsement to all counsel.

[190] The court commends counsel for all of their hard work on this motion and in particular, for their written advocacy and briefs of authority.

Released: June 2, 2016

Signed: "Justice Victoria Starr"