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 File and Parties
Date: April 8, 2019
Court File No.: C21193/18
Ontario Court of Justice
Between:
Catholic Children's Aid Society of Toronto
Briar Downey, for the Applicant
Applicant
- and -
S.T. and B.F.
Paula McGirr, for the Respondent, S.T. Colin Tobias, for the Respondent, B.F.
Respondents
Heard: April 2, 2019
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The Catholic Children's Aid Society of Toronto (the society) has brought a protection application seeking to find the subject 8-month-old child, S.F. (the child), to be a child in need of protection pursuant to clauses 74(2)(b), (h) and (n) of the Child, Youth and Family Services Act, 2017 (the Act). The society seeks a disposition that the child be placed in interim society care for a period of 6 months.
[2] On March 7, 2019, the parties presented the court with a Statement of Agreed Facts. The agreement provides that:
a) The child is not a First Nations, Inuk or Métis child; and
b) The child is a child in need of protection pursuant to clause 74(2)(b) of the Act.
[3] The court was not satisfied that it had sufficient evidence to determine that the child was not a First Nations, Inuk or Métis child and adjourned the case for the society to further explore the issue with the child's extended family.
[4] The matter returned to court on April 2, 2019. The parties filed affidavit evidence and made further submissions. By the close of their submissions, the parties had jointly presented the following position:
a) The child should be identified as a First Nations, Inuk or Métis child.
b) The court is not precluded from finding that a child is a First Nations, Inuk or Métis child just because the child does not have any bands or First Nations, Inuit or Métis communities.
c) Since there are no identified Métis communities set out in the regulations to the Act, the society has no further obligation to serve any person or entity with the protection application.
d) The court can proceed to find the child in need of protection pursuant to the Statement of Agreed Facts filed.
[5] This decision is about whether the child is a First Nations, Inuk or Métis child. In making this determination, the court must address a number of issues, being:
a) What level of evidence or information is sufficient to make a finding that a child is a First Nations, Inuk or Métis child?
b) If the child is found to be a First Nations, Inuk or Métis child, who, if anyone, can be served with the protection application?
c) Is the court precluded from determining that a child is a First Nations, Inuk or Métis child if there are no bands or First Nations, Inuit or Métis communities that can be served with the protection application?
d) Is a great-grandparent of a child a relative for the purpose of making the identification?
Part Two – Review of the Evidence and the Proceedings
[6] The respondents S.T. (the mother) and B.F. (the father) are the parents of the child.
[7] The child was brought to a place of safety in late July, 2018, due to concerns regarding the mother's global developmental delays, mental health issues and her untreated physical health. The father had been diagnosed with schizophrenia, for which he was not taking prescribed medication.
[8] On August 1, 2018, the court made an order placing the child in the temporary care and custody of the society.
[9] The child has remained in the care of the society since then. The parents visit the child twice each week at the society offices for two hours each time. The visits are fully supervised.
[10] The parents are proposing a kin plan for the child.
[11] The parents now live in Hamilton. The court was advised that the parties may seek a transfer of the case to the Superior Court of Justice (Family Branch) in Hamilton once the finding in need of protection is made.
[12] On September 28, 2018, the court endorsed that the society must immediately investigate whether the child is a First Nations, Inuk or Métis child, based on information received from the mother.
[13] The mother filed an Answer/Plan of Care dated October 28, 2018. She stated that her mother, with whom she has a very distant relationship, has told her that she is of Métis background. She also stated that her mother has lied to her about many things so she does not know if she is being truthful or not.
[14] On November 1, 2018, the society advised the court that it was still investigating the child's First Nations, Inuit or Métis status.
[15] The society next filed an affidavit from their worker, Paula Tavares, sworn on January 15, 2019, setting out the following:
a) The society was still investigating the child's First Nations, Inuit or Métis status.
b) The child's maternal grandmother (the grandmother) had told the mother and father that she (the grandmother) was 12.5% Métis, from the Turtle tribe and that she had a status card. The mother told the worker that her native tribe is called "Maite Native" and that her great-great-grandfather was the first native Milwaukee police chief.
c) The society had not been able to connect with the grandmother, despite multiple efforts.
d) The society had checked with Indigenous Services Canada and the Ontario Métis Family Records Centre and could not obtain any information from them that the mother, grandmother or the child's maternal great-grandmother (the great-grandmother) were First Nations, Inuit or Métis.
[16] The court indicated to the parties that it needed better evidence to determine whether the child was a First Nations, Inuk or Métis child.
[17] The matter returned to court on March 7, 2019. The society filed a supporting affidavit from its worker, Margarita de Celis, setting out the following:
a) The mother had told her that the grandmother lies about many things, she does not believe she has a Métis connection and that the indigenous culture has never been part of her life. The mother agreed to talk to her sister about this.
b) The society reviewed its file for when the mother was a child in its care and there was no information that the family had indigenous heritage.
c) The grandmother was not responding to her calls.
d) She had recently called the great-grandmother and had left her number to call her.
[18] The court adjourned the matter and asked the society to explore the issue further with the child's extended family. The matter returned to court on April 2, 2019. The society filed an updating affidavit from Ms. de Celis setting out the following:
a) The society was able to contact the great-grandmother on March 8, 2019.
b) The great-grandmother confirmed to the society that the family is Métis and that her mother was indigenous, but that was all the information she had.
c) The society had called Manitoba Métis Federation and Métis Nation of Ontario to find out if they have the family on their registry list. The society was advised that without more information on who the great-grandmother's mother was, the society cannot get information from the Manitoba Métis Federation. Métis Nation of Ontario advised the society that it does not have this family in its membership.
[19] The parents filed a joint affidavit sworn on March 12, 2019. The mother deposed that:
a) She has never had any connection to the Métis Federation or known any family members who have identified as Métis.
b) She has never met any Métis people.
c) One time, the grandmother mentioned something about some distant relative being Métis and a police chief in Milwaukee.
d) She has never been to an indigenous event or had any association with a First Nation. One time, she heard the grandmother mention something about the Turtle Clan but that was a casual comment.
e) The grandmother lied to her about many things and was probably making up stories to impress her. She does not believe that she or the grandmother have any connection to the Turtle Clan or any First Nations or Inuit status or connection.
Part Three – The Relevant Statutory and Regulatory Provisions
[20] Subsection 90(2) of the Act sets out that the court must make specific statutory findings before determining whether a child is in need of protection. It reads as follows:
Child's name, age, etc.
(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.
[21] The definition of a First Nations, Inuk or Métis child is contained in section 1 of Ontario Regulation 155/18. This regulation reads as follows:
Interpretation, First Nations, Inuk or Métis child
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.
[22] Subclause 1(c)(i) of this regulation refers to a relative of the child who identifies as a First Nations, Inuk or Métis person. Relative is defined in subsection 2(1) of the Act as follows:
"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;
[23] It is noteworthy that the definition of relative does not include the great-grandparent of a child. As observed by Justice John Kukurin in paragraph 18 of Children's Aid Society of Algoma v. C.A., 2018 ONCJ 592, the definition also does not include the child's mother or biological father, step-parent or cousins. Justice Kukurin wrote that the definition set out in subsection 2(1) of the Act presumably contains the universe of a child's relatives for the purposes of the Act and Ontario Regulation 155/18.
[24] Once the court determines that a child is a First Nations, Inuk or Métis child, the second part of the statutory finding that must be made under clause 90(2)(b) of the Act is to identify the child's bands and First Nations, Inuit or Métis communities. There may be more than one band or community. See: Children's Aid Society of Algoma v. C.A., supra, paragraph 19.
[25] The definition of a First Nations, Inuit or Métis community is in subsection 2(1) of the Act. It reads as follows:
"First Nations, Inuit or Métis community" means a community listed by the Minister in a regulation made under section 68 of the Act.
[26] Section 68 of the Act reads as follows:
Regulations listing First Nations, Inuit and Métis communities
68 (1) The Minister may make regulations establishing lists of First Nations, Inuit and Métis communities for the purposes of this Act.
More than one community
(2) A regulation made under subsection (1) may list one or more communities as a First Nations, Inuit or Métis community.
Consent of representatives
(3) Before making a regulation under subsection (1), the Minister must obtain the consent of the community's representatives.
[27] As of this date, there are no First Nations or Métis communities that have been listed by the Minister in a regulation made under section 68 of the Act. Only one Inuit community has been listed, being the Inuit Tapiriit Kanatami, pursuant to Ontario Regulation 159/18.
[28] The preamble to the Act includes the following statements:
With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:
The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.
First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.
Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan's Principle.
The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.
Further, the Government of Ontario believes the following:
First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.
Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.
For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.
[29] Section 1 of the Act sets out that its paramount purpose is to promote the best interests, protection and well-being of children.
[30] Paragraph 6 of subsection 1(2) of the Act sets out another purpose of the Act as follows:
- 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.
[31] The court has considered the preamble and purposes of the Act in making this decision.
Part Four – Case Law About the Identification of First Nations, Inuit and Métis Children
[32] In Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516, Justice Paddy Hardman found that there was insufficient evidence to identify a child as First Nations, Inuk or Métis. The court wrote the following:
a) Although the definition should not be interpreted narrowly, it should not be made casually either. Any finding may impact the particular child and the parents, including litigation time, not to mention the First Nations, Inuit and Métis communities (paragraph 42).
b) There must be an evidentiary basis for finding that a child is a First Nations, Inuk or Métis child. The evidence should be sufficient for the child to fall within the definition of a First Nations, Inuk or Métis child as set out in Ont. Reg. 155/18 (paragraph 49).
c) Evidence of an unnamed relative with a possible connection to a community or a band is insufficient evidence. The purpose of the finding must be taken into account in looking at the evidentiary basis for the finding. There needs to be sufficient evidence about the child's connection to allow the court to order service (paragraph 49).
[33] In Children's Aid Society of Algoma v. C.A., supra, the court wrote that:
a) The court must apply the definition of First Nations, Inuit or Métis child set out in Ont. Reg. 155/18 for the purpose of identification under the Act. The criteria set out in the regulation is exhaustive (paragraph 17).
b) Parent means anyone who falls within the statutory definition of parent in the Act. This might result in the identification of multiple bands or communities for the child (paragraph 18).
c) The court should take a broad view in interpreting if the child has a connection to a band or a First Nations, Inuit or Métis community under the regulation. This seems to be in accordance with the spirit of the Act which tends to be more inclusive when it deals with aboriginal peoples (paragraph 44).
d) In subparagraph 1(c) of Ontario Regulation 155/18, 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 (paragraph 18).
[34] In Children's Aid Society of Brant v. S.G., 2018 ONCJ 958, Justice Kathleen Baker wrote the following:
a) The early determination of whether a child is First Nation and the appropriate native community is a particular priority for a number of reasons. First, it triggers an obligation by the Society to meet the child's cultural needs. Second, if there is an identifiable native community, that community is a party to the proceeding and service is required (paragraph 35).
b) It is now widely recognized that the "Sixties Scoop" perpetuated an injustice on Aboriginal communities, families and children. That was a significant driver to the amendments of the governing legislation that require early identification, participation of native communities in proceedings and priority for placements of First Nation, Inuk and Métis children that are congruent with the child's heritage (paragraph 44).
c) As a society, we have to be vigilant that these protections have not been legislated for naught. It is the court's hope that all involved will consider what transpired in this case and immediately put into place measures to ensure that necessary training and protocols are reviewed and updated to ensure that these requirements are met in every case (paragraph 45).
Part Five – What Level of Evidence or Information is Sufficient to Make the Finding that a Child is a First Nations, Inuk or Métis Child?
[35] The court agrees with the court in Bruce-Grey, supra, that there must be sufficient evidence or information to make a finding that a child is a First Nations, Inuk or Métis child. To just say that anyone, no matter how incredulous their claim may be, can put their hand up and have this claim accepted without question would be an open invitation to persons to abuse the administration of justice. It could cause considerable harm to children by delaying decisions affecting them and would be disrespectful to the First Nations, Inuit and Métis persons the Act is intended to include. The underpinning of any self-identification right is that it must be made in good faith.
[36] While the inability of a person to name specific bands or First Nations, Inuit or Métis communities might be a factor in assessing the identification issue, it should not be determinative. The reality is that due to the Sixties Scoop, many aboriginal persons now have fractured memories of their connections with their bands and First Nations, Inuit and Métis communities. It is likely that many will not be able to name specific bands or communities. Evidence or information will often come from memories of discussions with relatives. It is likely that it will often lack detail. Many will not be registered with any First Nations band or belong to any First Nations, Inuit or Métis organization. In many cases, neither will their parents. This does not necessarily preclude the court from making a finding that the child is a First Nations, Inuk or Métis child. The new legislative provisions are an opportunity for these children to reignite lost connections with their culture and heritage.
[37] The court agrees with Justice Kukurin in Children's Aid Society of Algoma v. C.A., supra, that the court should take a broad view in interpreting if a child is a First Nations, Inuk or Métis child. This is an approach that is consistent with the statements made in both the preamble and purposes section of the Act.
[38] It is this court's view that only a low threshold of reliable and credible evidence or information should be sufficient to make a finding that a child is a First Nations, Inuk or Métis child.
Part Six – In the Absence of a Designated Community Under the Regulations, Can the Court Designate a Person or Another Entity as the Child's Community?
[39] Clause 90(2)(b) of the Act also requires the court to name the child's bands and First Nations, Inuit and Métis communities. However, no designated Métis communities have been listed yet in a regulation by the Minister. In the absence of such a designation, the idea was suggested in submissions that the court could designate the grandmother or the great-grandmother as the child's community.
[40] The court finds that it does not have the authority to create a community for the child that is not listed in a regulation made under section 68 of the Act. Subsection 2(1) of the Act is clear that a First Nations, Inuit or Métis community means a community listed by the Minister in a regulation made under that section. Only the Minister can designate by regulation the Métis communities.
[41] Further, the court must consider that there are privacy interests set out in the Act to protect children and parties involved in the child protection system. Subsection 87(4) of the Act provides that hearings are held in private (with limited exceptions) and subsection 87(8) provides that 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.
[42] The mother deposed that she has a distant relationship with her family. The grandmother has chosen not to engage with the society. The grandmother and great-grandmother have expressed no interest in seeing the child. Neither would come close to meeting the required test to be added as parties to the case pursuant to subrule 7(5) of the Family Law Rules. Serving either the grandmother or great-grandmother with the protection application and being required to consult with them throughout this case, as is required with a child's Métis community, would run counter to the privacy provisions set out in the Act, further delay this matter and not be consistent with the paramount purpose of the Act - to promote the best interests, protection and well-being of children.
Part Seven – Is the Court Precluded from Determining that a Child is a First Nations, Inuk or Métis Child if There are No Bands and First Nations, Inuit or Métis Communities That Can Be Served with the Protection Application?
[43] The answer to this question is absolutely not. Clause 90(2)(b) of the Act requires the court to determine if the child is a First Nations, Inuk or Métis child and if so, to determine the child's bands and First Nations, Inuit or Métis communities. The inability to name a child's bands and First Nations, Inuit or Métis communities does not negate the initial determination that the child is a First Nations, Inuk or Métis child. The court can then make the statutory finding that the child has no bands and First Nations, Inuit or Métis communities.
[44] Any interpretation to the contrary would lead to the result that a Métis child cannot be identified as such because there are no listed communities by the Minister under a regulation. Most Inuit children would face the same outcome. Many indigenous persons who have been displaced from their communities and are unable to identify their bands or communities would be deprived of the opportunity to reconnect with their culture and heritage. The Act and regulations set out considerable rights and additional considerations for these children that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. It would be contrary to the purposes of the Act to disenfranchise these children.
[45] When the child's bands and First Nations, Inuit or Métis communities can be identified, the Act sets out rights regarding notice, participation and consultation with those bands and communities, including:
a) Notice and participation in a protection proceeding. See: subsection 79(1), subsections 113(4) and (5) and section 115 of the Act.
b) Notice and participation around adoption and openness. See: sections 186 and 187, subsection 192(2) and section 197 of the Act.
c) Notice and party standing in society access applications and the ability to initiate access applications under section 104 of the Act.
d) The society shall make all reasonable efforts to pursue a customary care plan for the child, under section 80 of the Act, if a finding in need of protection is made and the child cannot remain with or be returned to the person who had charge of the child before society intervention.
e) The right to participate in alternative dispute resolution processes. See: subsections 17(2) and (4) of the Act.
f) The right to participate in Review Board cases. See: subsection 66(4) of the Act.
g) The right to initiate an appeal. See: section 121 of the Act.
h) The right to consultation at all stages of the case. See: sections 23 and 25 to 29 of Ontario Regulation 156/18 and sections 72 and 73 of the Act.
[46] If a child's bands and First Nations, Inuit or Métis communities cannot be identified, it is the rights that are set out above that are not activated. However, many other additional considerations still apply to First Nations, Inuit and Métis children in the Act and its regulations that should not be extinguished just because the child's bands and First Nations, Inuit or Métis communities cannot be named. These include:
a) In assessing a child's best interests under subsection 74(3) of the Act, the court shall consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the other considerations set out in subsection 74(3).
b) The same best interests test applies on an adoption application. See: subsection 179(2) of the Act.
c) Subsection 101(5) of the Act sets out that where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before society intervention, that unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child's extended family if it is possible or, if it is not possible:
i. in the case of a First Nations child, another First Nations family;
ii. in the case of an Inuk child, another Inuit family; or
iii. in the case of a Métis child, another Métis family.
d) Clause 109(2)(d) of the Act provides that when the child is in interim or extended society care, the child shall be placed, if possible, with a member of the child's extended family or, if that is not possible:
i. in the case of a First Nations child, another First Nations family;
ii. in the case of an Inuk child, another Inuit family; or
iii. in the case of a Métis child, another Métis family.
e) Section 112 of the Act provides that if the child is in extended society care, the society is required to assist the child in developing a positive, secure and enduring relationship within a family through one of the following:
i. a plan for customary care;
ii. an adoption; or
iii. a custody order under subsection 116(1).
f) Section 124 of the Act provides for continuing care and support of the child once he or she turns 18 in prescribed circumstances.
g) Sections 3 to 6 of Ontario Regulation 156/18 set out specific requirements for the servicing of the child by child protection agencies. It includes obligations to make inquiries, provide information, identify resource persons and offer culturally appropriate services. In particular:
i. Subsection 3(2) of the regulation states that when providing services to the child and the child's family, a service provider shall take into account the child's cultures, heritages, traditions, connection to community and the concept of the extended family.
ii. Subsection 4(3) of the regulation requires the society to inform the child and the child's family about its obligations under subsection 3(2) of the regulation.
iii. Clause 4(5)(b) of the regulation requires the society to ask the child what information the child has about their cultures, heritages, traditions, connection to community and the concept of the extended family the child wishes to have the service provider take into account in relation to any aspect of providing services to the child and the child's family.
iv. Section 6 of the regulation sets out service requirements for a First Nations, Inuk or Métis child.
Part Eight – Analysis
[47] In this case, the child is too young to identify himself as a First Nations, Inuk or Métis child.
[48] The child's parents filed an affidavit that they do not identify the child as a First Nations, Inuk or Métis child.
[49] Accordingly, the child is not a First Nations, Inuk or Métis child pursuant to clause 1(a) of Ontario Regulation 155/18.
[50] The child is not a member of nor does he identify with a First Nations, Inuit or Métis community. Accordingly, the child is not a First Nations, Inuk or Métis child pursuant to clause 1(b) of Ontario Regulation 155/18.
[51] The child also does not have a connection with a band or a First Nations, Inuit or Métis community. Accordingly, the court cannot find that the child is a First Nations, Inuk or Métis child pursuant to subclause 1(c)(ii) of Ontario Regulation 155/18.
[52] This leaves the court with only subclause 1(c)(i) of Ontario Regulation 155/18 to make a finding that the child is a First Nations, Inuk or Métis child. This clause states that the court can find a child to be a First Nations, Inuk or Métis child if this cannot be determined under clause (a) or (b), but there is information that demonstrates that a relative or sibling of the child identifies as a First Nations, Inuk or Métis person.
[53] The court received information from the great-grandmother that she identifies as a First Nations, Inuk or Métis person. However, a great-grandmother is not a relative as defined in subsection 2(1) of the Act. That subsection only lists grandparents, siblings, aunts, uncles, great-aunts and great-uncles of the child. If the legislature had intended to extend the definition of relative further, it could have done so – it certainly considered great-aunts and great-uncles (who would be the grandparents' siblings). The takeaway is that the legislature put a limit on how far back the investigation about a child's family's First Nations, Inuit or Métis connections would go to two generations before the child.
[54] However, the grandmother is a relative as defined in subsection 2(1) of the Act. Despite her lack of cooperation with the society, she provided specific information to the mother that she identified as Métis. She told her daughter that she was 12.5% Métis, from the Turtle tribe (or Clan) and that she had a status card. She told her that her native tribe is called "Maite Native" and that her great-great-grandfather was the first native person in Milwaukee to be police chief. This information was related by the mother to the society worker.
[55] The problem the court initially faced was that the mother claimed that the grandmother always lied to her and she didn't know whether to believe if this information was true. Subsequently, she deposed that she didn't believe that the information was true.
[56] This is where the subsequent information provided by the great-grandmother became important. Essentially, the great-grandmother corroborated the information provided by the grandmother to the mother, by stating to the society that the family is Métis and that her mother was indigenous.
[57] The court finds that this evidence and information is sufficient to meet the low threshold required to find that the child is a First Nations, Inuk or Métis child.
[58] The court further finds that the child has no bands and First Nations, Inuit or Métis communities at this time. Accordingly, there is no one else that needs to be served with the protection application.
[59] The court has reviewed the Statement of Agreed Facts presented by the parties, and based on those facts finds that the child is a child in need of protection, pursuant to subclause 74(2)(b)(i) of the Act.
Part Nine – Conclusion
[60] Final orders shall go as follows:
a) The statutory findings pursuant to subsection 90(2) of the Act are made in accordance with the Statement of Agreed Facts with the following changes:
The child is found to be a First Nations, Inuk or Métis child.
The child has no bands and First Nations, Inuit or Métis communities at this time.
b) There is a finding that the child is a child in need of protection pursuant to subclause 74(2)(b)(i) of the Act.
[61] The case has been adjourned until May 13, 2019 for a case conference. The society has been directed to begin its kinship assessment of the family plan put forward by the parents. The society should also, if a transfer of the case to Hamilton is not imminent, set out by the return date how it plans to implement the additional considerations and service requirements set out in the Act and its regulations for the child.
[62] This case highlights the importance of addressing the identification issue as early as possible in a case so that if a child is identified as a First Nations, Inuk or Métis child, the additional service requirements can be implemented and the additional considerations for such children be taken into account by the society and the court. If a child's bands and First Nations, Inuit or Métis communities can also be identified, then there are additional requirements for service, participation in the case and consultation. We have an obligation to First Nations, Inuit and Métis children and their bands and communities to make the identification as soon as possible so that these rights and considerations are not compromised. It would also be a disservice to these children if important decisions about them were delayed because these issues arose at a late stage in the case.
[63] The society is to be commended for employing a Truth and Reconciliation Liaison and Disclosure Researcher to investigate the identification issues that are occurring more frequently with the changes in the legislation. This is a model that hopefully other child protection agencies will emulate. The new identification provisions in the legislation dictate that agencies set up protocols and develop contacts with First Nations, Inuit and Métis bands and organizations to effectively investigate these issues so that children can be properly identified in a timely manner.
[64] Lastly, the court thanks all counsel for their able and helpful submissions on this matter.
Released: April 8, 2019
Justice S.B. Sherr
