WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

87.— (9) Prohibition re identifying person charged.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2018-08-30

Court File No.: Sault Ste. Marie 107/17

Between:

Children's Aid Society of Algoma, Applicant

— AND —

C.A.

C.P.

Respondents

Batchewana First Nation Band Representative (Motion Resp)

Before: Justice John Kukurin

Heard on: June 27 and August 22

Reasons for Judgment released on: August 30, 2018

Counsel

Jennifer Mealey — counsel for the applicant society

Eric McCooeye — counsel for the respondent mother, C.A.

No appearance by or on behalf of:

• respondent father C.P. even though served with notice
• Batchewana Band representative, even though served with notice

KUKURIN J:

[1] Motion for Identification Finding

[1] This decision is on a motion (at Tab 9, Vol 2 CR) brought by the applicant society seeking a determination under s.90(2)(b) and s.2(4) of the Child, Youth and Family Services Act (the "CYFSA") whether the child L.A., age 1 year, is a First Nation child, and if so, that Batchewana First Nation be added as a party Respondent in this child protection proceeding. Implicit in the relief sought is also a determination or finding that the Batchewana band is the child's band. It is unusual procedurally for such determinations to be the subject of a formal motion claim, but there is some merit to this being adopted as a common practice.

Background of Proceeding

[2] I list the highlights of this child protection case for economy:

• The mother has had five children prior to L.A., with several other fathers, all of which children have been subject to child protection orders

• The father of L.A. has three other children who are living with their mother.

• The child L.A., at age of four days, was apprehended on July 6, 2017, in Alberta by child protection authorities there, was transported to Sault Ste. Marie, Ontario, where he was apprehended by the Children's Aid Society of Algoma without a warrant, and placed in foster care. He has been in its care continuously since.

• According to early society evidence (at Tab 3, Vol. 1, para 6) the mother advised that L.A. "is not native, nor eligible for registration with any Band".

• No identification findings were made on July 12, 2017 the first Ontario court date.

• The issue of a finding did not again arise until the date set for hearing of a summary judgment motion on May 29, 2018, by which time, the CYFSA was in effect.

• The summary judgment motion judge was apparently provided with some information orally on intended registration by the father to obtain Native Status or to become a member of Batchewana First Nation. He adjourned the motion pending a decision on an identification finding (for the child), and on whether the Batchewana band representative, not previously named, would be a statutory party.

• At the invitation of the court, the parties referred to only two places in the evidence then before the court that touched on First Nation with respect to the child.

• The summary judgment motion judge ordered that the "mother, father and the society shall file affidavits setting out any evidence to be relied upon in addressing the issue of the child's 'identification' with the Batchewana First Nation."

• Two days later, on May 31, 2018, the society filed affidavit evidence on this identification issue. Neither the mother, nor the father filed anything.

• The society filed its affidavit (at Tab 8 Vol 2) in which the child protection worker attests to the information provided orally (not under oath) by the father at the aborted summary judgment motion on May 29, 2018 to the effect:

  • that the father's biological father is a member of Batchewana First Nation
  • that he did not know the exact spelling of his father's name or date of birth
  • that his mother does not have any native heritage
  • that he would provide further information to the society about his father
  • that he had himself applied for "native status", and
  • that he would provide copies of his application documentation to the society

• The father never provided any information to the society despite his promise. His counsel of record in this case was unable to get any information or instructions from him and was later removed as his counsel on her motion

The Identification Motion

[3] On June 27, 2018, the identification motion was before me. At that time, I made an identification endorsement with respect to the child L.A., that identified him as "not a First Nation, Inuit or Metis child". This was done on the basis of the evidence in the file which I have summarized above. The reasons for such identification were brief:

(1) There was no current First Nation, Inuit or Metis community listed in any Regulation made under s.68 CYFSA.

(2) There was no evidence that the child was a registered card carrying member or registered on a band membership list of any Indian band, or that he identified with any band or First Nation.

(3) The child's biological father was not registered on any band or First Nation membership list.

(4) The mother has no aboriginal ancestry.

The Re-Opened Identification Motion

[4] No formal order was ever issued containing my identification findings. Counsel for the mother subsequently requested that I re-open the motion for additional evidence and submissions, which I agreed to do provided that all counsel were in agreement with this. Counsel for the father could not agree as she was unable to ever get his instructions. As mentioned, she subsequently was removed as his counsel.

[5] Ultimately, I directed that the re-opened motion be scheduled for additional evidence, if any, and submissions. There was one additional, but important, piece of evidence filed by the society before I heard these additional submissions on August 22, 2018.

• The society filed one further affidavit (at Tab 11, Vol. 2) to which is attached as an exhibit, an affidavit of Diana Roach, a band representative of Batchewana First Nation sworn Dec 15, 1993, almost 25 years ago, in a protection proceeding in which the father in the present case was the subject child, in which she stated that "The child C.P. is eligible for registration with Batchewana First Nation".

[6] C.P. is the child's biological father in the present case.

The Band Representative

[7] The society, despite the fact that it had not named the Batchewana band representative as a party in the application, decided to serve the band representative with its motion seeking identification findings. The band representative is, in my view, a person who is affected by this motion pursuant to subrule 7(2) of the Family Law Rules:

Rule 7 (2) - For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support. O. Reg. 114/99, r. 7 (2).

[8] No evidence was filed by the band representative, nor were any submissions made by her on the issue of the identification of the child.

Positions Taken on the Motion

[9] The society did not actually want a finding that the child was a First Nation child. It was satisfied with my previous negative finding in that regard. However, it felt duty bound to provide whatever evidence it was able to unearth on the issue. It also submitted for the court's consideration the recent decision of Justice P. Hardman in Bruce Grey C&FS v A.B., in particular paragraph [49], the most important part of which states that "There must be an evidentiary basis for a finding that a child is a First Nation, Inuk or Metis child". The society argued that there was no evidence to support any of the criteria under which the child in this child protection case might be identified as a First Nation child, or as a Batchewana band child.

[10] Counsel for the mother argued that the new evidence confirmed that the father of the child was eligible to be registered as a member of Batchewana band, and his prior unsworn statements indicated that he was pursuing this registration for himself and, maybe for the child L.A. This, argued the counsel, showed some definite identification on his part to the First Nation known as Batchewana band, and also the same band or First Nation identification vicariously by his child. At the very least, it showed a "connection" by the child with Batchewana band through a child's relative, namely himself, the child's biological father. The argument further sought to persuade the court that in the process of determining the identity of the child as a First Nation child, the court ought to construe the provisions of the CYFSA, as well as any Regulations made under the CYFSA, liberally and expansively rather than narrowly.

[11] Unfortunately, the father presented no argument or actual sworn evidence. He failed to provide the information he had promised. The band representative from Batchewana band served with this motion also did not provide any evidence or make any submissions on the motion. Both of these persons would have been in very advantageous positions to do so.

The Law on Identification Findings

[12] The CYFSA replaced the previous Child and Family Services Act (the CFSA) for all intents and purposes as of April 30, 2018. However, not all of the provisions relating to identification findings are found in the CYFSA. There are other provisions that are regulatory in nature, found in recent Regulations made under the CYFSA. With respect to identification findings, O. Reg. 155/18, O. Reg 156/18 and O. Reg 157/18 contain provisions that are not only relevant, but are critical to how a court makes these findings with respect to a child.

Mandate of the Court

[13] The statutory and regulatory sections relevant to this motion are set out below. The first section establishes the court's obligation to make certain identification findings. It is the successor to s.47(2) of the CFSA which required judicial identification of significantly different identification characteristics of the child, and of its history before the court, than does the present statute. Remarkably, s.47(2) CFSA needed not even one regulation to explain how to identify a child under its provisions.

CYFSA S. 90 (2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine:

(a) the child's name and age;

(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child's bands and First Nations, Inuit or Métis communities; and

(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

[14] This obligation is under the CYFSA. It is an obligation that the law places on the court. It implicitly expects the parties before it to provide the "information" it needs to fulfil this mandate. This obligation exists even if an identification finding had previously been made by the court with respect to the child under the CFSA. The CFSA identification is different than the CYFSA identification and became more or less meaningless if the case was still unresolved when the CYFSA came into effect. The court is obliged to complete another identification under s. 90(2)(b) CYFSA even though there is an existing finding under its predecessor, s.47(2)(c) CFSA. That this is so is confirmed in O. Reg. 157/18 which deals with "Transitional Matters", and in particular s.12.

O. Reg 157/18 S.12 Despite any determination made under clause 47 (2) (c) of the old Act in respect of a child who is the subject of a proceeding mentioned in subsection 11 (1) of this Regulation or a proceeding commenced under Part V of the Act, the court shall, as soon as practicable, determine under clause 90 (2) (b) of the Act whether the child is a First Nations, Inuk or Métis child and, if so, determine the child's bands and First Nations, Inuit or Métis communities.

Criteria for Finding a Child to be a First Nation Child

[15] In a recent decision, I made a statement that the CYFSA does not contain any definition for a First Nation child. While it is true that the statute does not, there is a definition in O.Reg.155/18, a regulation made under the CYFSA that is titled "General Matters Under the Authority of the Lieutenant Governor in Council". This is the first of many meanderings between the Act and the Regulations that the legislature intended the courts to follow when identifying a First Nation, Inuit or Metis child.

O. Reg . 155/18 S.1 A child is a First Nations, Inuk or Métis child for the purposes of the Act if:

(a) the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;

(b) the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or

(c) it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that:

(i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or

(ii) there is a connection between the child and a band or a First Nations, Inuit or Métis community

[16] This regulation makes it clear that this definition of a First Nation child is one that applies for purposes of the Act, that is, the CYFSA. More to the point, it is the definition that the court must use in carrying out its mandate in s. 90(2)(b) CYFSA in identifying the child. If the finding of the court using this definition is a negative one, that is all that the court must do. There are no other criteria for finding a child to be a First Nation child. Of particular note is that there are a number of ways, described in s.1 of O. Reg. 155/18 to find a child to be a First Nation child.

[17] O. Reg. 155/18 gives not only guidance on what the criteria are for finding a child to be a First Nation child, but arguably, it sets these out in its section 1 exhaustively. Put another way, a First Nation child must fall within at least one of the several criteria in s.1 of O. Reg. 155/18 – or it is not a First Nation child.

[18] There is some terminology in s.1 of O. Reg. 155/18 that warrants some closer attention.

• In subsection (a) – the words "identifies themself as" and "identifies the child as" are used with no explanation of what is meant by the word "identifies" anywhere in this regulation. In fact, this word is not defined or explained in the CYFSA or in any other regulation made under this Act. "Identifies themself as" clearly means that the child is the one that does the identifying, and who it is identifying is itself. This is elsewhere referred to as "self identification with". "Identifies the child as" is done by a "parent of the child". The word "parent" is used often in the CYFSA and presumably, the word "parent" used in O. Reg 155/18 has the same meaning as it does in the statute under which it was made. "Parent" means not only a biological parent, but also any statutory parent who falls within the ambit of the CYFSA definition of parent.

• In subsection (b) – the words "member of" is used with respect to one or more "bands". There is also no definition of what a member of a band is in O. Reg 155/18 or in any other regulation made under the CYFSA. "Band" is defined in the CYFSA and is defined by its definition in the Indian Act (Canada).

• In subsection (b) – the words "identifies with" are again used as something which the child does with respect to a band, but the words "identifies with" are qualified in this subsection of the regulation to be "as determined under s. 21 of O. Reg 156/18", which is another regulation made under the CYFSA titled "General Matters under the Authority of the Minister". How that determination is to be made is set out in detail in s.21 which I will deal with below.

• In subsection (b) – "First Nations, Inuit or Metis communities" is used as a grouping. It is not defined in O. Reg 155/18. However, it is defined in the CYFSA statute, specifically in s.2(1) which is a general definition subsection:

CYFSA S.2(1) "First Nations, Inuit or Métis community" means a community listed by the Minister in a regulation made under section 68; ("communauté inuite, métisse ou de Premières Nations")

Currently there is no regulation under s. 68 of the CYFSA that lists any "First Nations communities".

• In subsection (c), the words "... there is information that demonstrates that..." sounds like a clear invitation to the person making the s.90(2)(b) determination of identity to rely on information that is not necessarily 'evidence'. In fact, it says nothing about the standard of such information, where it comes from, how reliable it may be and whether it is gospel or rumour.

• In subsection (c) the words "relative or sibling of the child" are used. "Relative" is similarly not defined in O. Reg.155/18 but is defined in the CYFSA.

CYFSA – s. 2(1) "relative" means, with respect to a child, a person who is the child's grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption; ("membre de la parenté")

Presumably, this list contains the universe of a child's "relatives" for the purposes of the Act and for purposes of O. Reg 155/18. Surprisingly, this list does not include the child's mother or biological father, certainly not a step-parent or a partner of the mother or biological father - and no cousins.

"Sibling" seems to be defined nowhere in any Act or Regulation except in a publication like Webster's where the meaning is a person in relation to whom a child has the same parents or one parent in common. In my view, siblings include full siblings and half siblings, and also siblings by adoption.

• In subsection (c), the words "connection between the child and a band" are used. What such a "connection" is, or may consist of, is unexplained anywhere in the CFSA or in its regulations. One is tempted to use a common sense and ordinary meaning when trying to determine if such a connection exists with respect to any particular child. The drawback is that this may lead to a broad interpretation, or a narrow one, depending on who is making the determination. I see this as likely the most fertile area for case law to develop where all justices or jurists will be free to expound on what the legal draughtsmen had in mind when they used the word "connection". What is important to remember is that the connection is one that is between a child and a band or bands, not between another person (i.e. a relative, a sibling or extended family member) and a band or bands.

Criteria for Determining a First Nation Child's Bands

[19] While s.1 of O. Reg. 155/18 provides many possible ways by which a child protection court can determine whether a child is a First Nation child, this is not the end of its duty. If it determines the child to be a First Nation child, it must then determine the child's "bands". The plural is used because it is possible that the child's band under one criterion is different than the same child's band under a different criterion. In fact, it might be a mistake to end the determination process once one band has been identified as the child's band. The child may benefit from having several bands, in a material as well as in a cultural sense, and may have more options in the child protection proceeding with several band representatives.

[20] The identification of the band(s) of a child found to be a First Nation child is dealt with by both the CYFSA statute as well as by O. Reg. 156/18. Subsection 2(4) of the CYFSA deals with references in the CYFSA to a child's band. The use of the word "includes" suggests that the four enumerated alternative criteria are not exhaustive; there may be other unspecified criteria that a court may use to identify a first Nation child's bands.

CYFSA S.2(4) In this Act, a reference to a child's or young person's bands and First Nations, Inuit or Métis communities includes all of the following:

1. Any band of which the child or young person is a member.

2. Any band with which the child or young person identifies.

3. Any First Nations, Inuit or Métis community of which the child or young person is a member.

4. Any First Nations, Inuit or Métis community with which the child or young person identifies.

[21] While it is very helpful to have a list of optional criteria that a court can use to determine a child's band(s), the criteria themselves may be somewhat of a problem. Once again, the determination of a child's band is based on membership by, or identification of the child with one or more bands. [I deliberately do not include First Nation, Inuit or Metis (FNIM) communities as there are currently none]. Membership in a band may not be so straight forward as one might imagine. However, the absence of any regulatory instruction on how to determine if a child is a member of a band leads me to the inference that only if the child's name is on a band's membership list when the determination is made will suffice to meet this criterion.

[22] The band with which a child "identifies" is obviously a more difficult criterion, but fortunately, there is a regulation that provides some rules as to how to interpret the words "identifies.... with".

O. Reg 156/18 S.21 The bands or First Nations, Inuit or Métis communities with which a First Nations, Inuk or Métis child identifies, if any, are determined in accordance with the following rules:

1. If the views of the child can be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifies are any bands or First Nations, Inuit or Métis communities with which the child indicates that they identify.

2. If the views of the child cannot be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifies are any bands or First Nations, Inuit or Métis communities that a parent of the child indicates are bands or communities with which the child identifies.

[23] The first determination that a court must make is whether it can ascertain the views of the child on the issue of with which band(s) the child identifies itself. Presumably this is information that will be forthcoming from the child in the case, although how a child makes its views known to the court has always been a bit of a problem. If the views can be ascertained, it is a simple matter of whatever band(s) the child indicates. If the child's views cannot be ascertained, it is still ostensibly a simple matter of whatever band(s) a parent of the child indicates the child identifies with. This information from a parent would likely be 'hearsay' that the court is directed by s.21 of O. Reg. 156/18 to accept (without question).

[24] One problem, of course, is that in any child protection case, a child may have multiple 'statutory' parents, including some not even related by blood to the child. If the child's views cannot be ascertained, each of them is entitled to indicate one or more bands with which the child identifies. This rule of interpreting the child's band does not seem to require such a person to justify his or her indication with any factual or non-factual 'evidence', or even with any 'information'. All that is needed is that person's 'indication' of the band(s) with which the child identifies.

[25] At the opposite pole is another problem, namely that a parent fails to indicate at all. This is not so uncommon as may be thought. For example, in the present case, neither parent has made any such indication, at least not explicitly and unequivocally.

[26] If, as Justice Hardman said in Bruce Grey C&FS v AB, the finding that a child is a First Nation, Inuit or Metis child must have an evidentiary basis, should not the finding of the band(s) of a child found to be a First Nation child also require an evidentiary basis? Perhaps. Or perhaps not. A plain reading of s.21 of O. Reg. 156/18 seems to require only an 'indication' by the child (clause 1) or by a parent of the child (clause 2). An indication is essentially a statement of the individual indicating. Nor does the 'indication' of with which band the child identifies seem to require any evidence or information on which the child's identification with the band is based. It seems somewhat incomplete for a court to base so important a finding as the First Nation child's band on merely the say so of the child, or of a parent of the child. Courts normally act on evidence. None seems to be required on this issue.

Role of the Band in Identification Findings

[27] The only other significant provision that is relevant to this motion is s.79(1) CYFSA which deals with who are statutory parties in a proceeding under Part 5 of the Act.

CYFSA S.79 (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. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.

[28] Clause 4 is of importance because it adds the child's bands as formal respondent parties in the child protection (or status review) application before the court, where an identification finding is made that a child is a First Nation Child. This is the tip of the iceberg insofar as the differential treatment that the CYFSA accords to a First Nation child, as opposed to a child that is not a First Nation child. From a band point of view, it provides all of the rights that any party has in the application, which are considerable in themselves, and combined with the special provisions that deal with First Nation Children, it permits the child's band(s) to make an important contribution to all aspects of the proceeding. It also enables the band representative to advocate for the band's own interests in the proceeding which may or may not coincide with those of the child or of any other party. It also opens up avenues for the court that are not passable for a child who is not First Nation.

[29] What is of significance to me is that the band representative is a party from the outset only if named as a party by the applicant in the application. The usual applicant is a society. This requires the society to anticipate which band(s) should be named as parties. This was much easier for a society to do under the CFSA where band party status was based on whether the child was an Indian child or a member of a native community. However, the CYFSA has introduced a much more complex and convoluted process for identifying not only a First Nation child, but also the child's band(s). The result is precisely what is happening in this case. The society has brought a motion seeking judicial identification of the child not only as a First Nation child, but also a determination of the child's band if so identified.

[30] No band representative is named as a party in the child protection case before me. If this is going to become the status quo procedurally, then a band will have no say in whether a child is a First Nation child, and no say in which is the child's band. This determination will be made in absence of the band, perhaps even in ignorance that such determinations are being made. The only practical recourse by a band found to be the band of a First Nation child would be to not participate in the case if it so chose.

[31] In my view, it would be better by far to have a band or bands involved in the identification determination under s.90(2) CYFSA. This is easily done by a motion. It limits a band representative to information relevant to the identification findings issues. It allows the court to have information from the band directly, from its own records, rather than through hearsay from other parties. It allows the band to file evidence that may be contradictory to, or supportive of, other evidence on the issue. It allows the court to have a more informed understanding of how the band functions. Moreover, a motion has procedural requirements and rules that afford some formality and uniformity to the identification process. Most importantly, it allows involvement in an issue that is critical to First Nations and bands, as much as to the child being identified. The present scheme does not seem to allow for such involvement.

Impact of the Preamble of the CYFSA and Purposes of the CYFSA

[32] The Preamble that precedes Part 1 of the CYFSA sets out certain acknowledgements, commitment and beliefs of the Government of Ontario. While these, and especially the principles to which its commitment applies, relate to all children and all families to whom services are provided by the province, there are several of these provisions that are specifically applicable to First Nation, Inuit and Metis children and families. It would be fair to say that the provisions of the CYFSA coincide quite well with these acknowledgements and commitments and beliefs of our Ontario government.

[33] With respect to the provision of the CYFSA statute itself (and of course to the regulations made under the statute), and in particular to those provisions that deal with the identification of children as FNIM children and identification of their bands, the preamble may have only marginal impact until a finding is actually made that a child is a FNIM child. The government's beliefs and acknowledgements are with respect to FNIM peoples and FNIM children. These, and its stated commitments are applicable only when these people and children are so identified. The preamble does little in terms of assisting the aboriginal communities, societies, families, and particularly the courts in deciding if a child is or is not an FNIM child.

[34] The paramount purpose of the CYFSA remains what it was under the CFSA, namely, to promote the best interests, protection and well-being of children. Additional purposes, so long as they are not inconsistent with the paramount purpose are also recognized as legitimate and desirable purposes of the Act. This includes paragraph (6) of s. 1(2) CYFSA:

CYFSA S.1(2)

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

This is certainly a legitimate purpose but one that can only be observed if the FNIM peoples and the FNIM children are first identified as such.

[35] Accordingly, while the sentiments in the preamble and the expressions of the paramount and other purposes of the CYFSA are impressive and inclusive, they are not very helpful to anyone else who has any involvement in the identification determinations called for by the statute. These identifications are determined by the application of the criteria and directions of the Act and the Regulations to the factual information that is before the court on the issue of identification. It is only after this process is completed that the government's acknowledgements, commitments to principles and to practices, and its beliefs with respect to FNIM people and particularly to FNIM children impact the courts in child protection cases.

Analysis of the Law and the Facts

[36] L.A. is 13 months of age at this time. He is presumably not verbal in the sense that he cannot identify himself as a First Nation child. In any event, there is no information that he has made such self-identification. I do not find L.A. to be a First Nation child on the basis of his self-identification with a band.

[37] It would be sufficient if a parent of L.A. identified him as a First Nation child. There are only two "parents" in this child protection case, his biological mother and his biological father. The mother's statement to the society worker is that the child "is not Native and is not eligible for registration with any band". She has not, in the year since she allegedly made that statement, contradicted it or said it was not accurate, or denied saying it. She has not filed any evidence on the motion before the court. The father has not identified L.A. to be a First Nation child. The evidence of what he allegedly said on the first day of the aborted summary judgment motion was that he had applied for "Native Status" for himself and would provide proof of this to the society. He never provided anything. He did not identify L.A. as a First Nation child. Accordingly, under clause (a) of s. 21 of O. Reg155/18, I cannot find that L.A. is a First Nation child.

[38] The evidence is clear that L.A. is not a member of Batchewana band. In fact, it is not clear what efforts, if any, have been made for an application for L.A. to be accepted by the Batchewana band as a member. The only evidence on membership with Batchewana band is that L.A.'s father was entitled to be registered as a member some 25 years ago, that he has not since been registered as a member, and that he may now be in the process of applying to be registered, not as a member of this band, but for "Native Status" for himself. There is no information from the band or from any other party to contradict this or to confirm it. It is not enough for the court to conclude that L.A. is a First Nation child on the basis of membership in a band.

[39] Whether L.A. identifies with one or more bands is another route to a finding that he is a First Nation child. To make this determination, the court has to look at O. Reg 156/18. Firstly, I conclude that, because of his age, I am not able to ascertain L.A.'s views and, in any event have no indication of with what band(s) L.A. indicates he self-identifies.

[40] As the child's views cannot be ascertained, the court must look to see if any parent indicates with which band(s) the child identifies. All that is really required here is an "indication" by either (or both) of the two parents in this proceeding stating the name of the band(s) with which the child identifies. The mother has not said that L.A. does not identify with a band. All that she (is alleged to have) said was that L.A. was "not eligible for registration" with any band. However, neither has the mother given any indication that L.A. identifies with any band. If she has, I have not found this indication anywhere in the continuing record.

[41] The father has similarly given no indication that L.A. identifies with any band(s). With a stretch, this might be an inference that the court could make from the combination of father's statements about his own application for "Native status", and the 25 year old affidavit, sworn by a Batchewana band representative, that indicates that the father was then eligible or registration with Batchewana band. I decline to make the jump that these two pieces of information are tantamount to the father's indication that L.A. identifies with a band.

[42] Accordingly, s.21 of O. Reg 156/18 does not assist the court in determining with which band(s) the child L.A. identifies, either by his own indication of self-identification or by indication of a parent of L.A.'s identification. Therefore, under clause (b) of O. Reg. 155/18, I cannot find that L.A. is a First Nation child.

[43] As determinations of whether L.A. is a First Nation child cannot be determined under clauses (a) or (b) of O. Reg 155/18, the court has to look for any information, firstly, that any relative or sibling of the child L.A. identifies as a First Nation person. There is such information. The society affidavit which recounted what the father had said on the first day of the aborted summary judgment motion also provides the information that the father's father, that is the child L.A.'s paternal grandfather, was not only a status Indian and had an Indian Status card, but was also a member of Batchewana band. This is, in my view, information that a "relative" (grandfather) of L.A., as defined in s.2(1) CYFSA, identified as a First Nation person. Although the basis for this conclusion is rather weak as evidence, it is not evidence that the regulation directs the court to look to. It directs the court to see if "there is any information". Indian status and Batchewana band membership of the child's relative is sufficient to find the child L.A. to be a First Nation child under O. Reg 155/18 s.1(c)(i).

[44] In the event I am incorrect in making such finding, the court also has recourse to subclause (ii) of O. Reg 155/18 s.1. This directs the court to look for any information that demonstrates a "connection" between a child and a band. The characteristics of the connection are not described in the regulation. It could be an unequivocal or clear cut connection, or it may be an ambivalent or unexplicit one, or anything in between. This is where the court has to decide whether to take an expansive view of the connection as well as of the information on which the connection is founded, or to take a more narrow approach. My inclination is to choose the broader approach to both. This seems to be in accordance with the spirit of the new CYFSA which tends to be more inclusive especially when it deals with aboriginal peoples. If a child is identified as First Nation on information that is too tenuous or on a connection that is too ambiguous, the band or the First Nation still has the option of not participating actively in the case or with the child.

[45] I do find that information exists that demonstrates a connection between the child L.A. and the Batchewana band or First Nation. That information is with respect to the child's father, C.P., being eligible for band membership in 1993. It also includes the information that L.A.'s paternal grandfather was a member of Batchewana band. While I have information that the mother stated that L.A. was not eligible for registration with any band, I discount that statement because it is before the court as hearsay, and it originates from the mother who has no aboriginal connection herself, nor is there any indication of how she would know this to be true. Accordingly, I do find that L.A. is a First Nation child under O. Reg. 155/18 section 1 (c)(ii).

[46] The identification findings with respect to L.A. will be amended accordingly. L.A. is identified as a First Nation child and his band is the Batchewana band. Batchewana First Nation band representative shall be added as a party Respondent in the child protection Application at Tab1 Vol. 1. The society shall serve the Batchewana band representative with a copy of all documents in the Continuing Record to date.

Released: August 30, 2018

Signed: "Justice John Kukurin"