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

Date: March 13, 2020

Court File No.: C76/18

Ontario Court of Justice

Between:

Ogwadeni:deo Applicant

— And —

P.E. and C.P. and Child and Family Services Department – Six Nations Respondents

Before: Justice G. B. Edward

Motion Heard on: February 14, 2020

Reasons for Judgment dated: March 13, 2020

Counsel:

• A. Macdonald, Agent for M. Bulbrook, for the Applicant
• M. Elchami, for the Six Nations Band

EDWARD J.:

Background and Procedural History

[1] On February 14th last this matter was adjourned to today's date in order that I give an opinion on the Court giving effect to a formal customary care agreement without the parents' signature.

[2] This is a timely discussion given two recent decisions of this Court; one being Justice Hilliard's decision in Children's Aid Society of Brant v. R.P., et al, 2019 ONCJ 649, released last fall and Justice D.J. MacKinnon's decision in M.L. and D.L. v. B.T., D.C., and Dilico Anishinabek Family Care, 2020 ONCJ 123, released last week in Thunder Bay.

[3] But first some background in this case. The subject child is C.P.J., also known as CJ, born […], 2014. The Respondent parents are P.E. and C.P. Both parents have struggled mightily with addiction issues.

[4] The child came into care after a tense stand-off situation at the residence of the maternal grandfather. The CAS of Brant initially brought the protection application and this court made a temporary Order placing the child with the Society on March 26, 2018, with access to the parents at the discretion of the Society. This has been the only placement Order made in this case.

[5] On April 20, 2018 the file was transferred from the CAS of Brant to Ogwadeni:deo.

[6] On April 3, 2019 Justice Baker directed Ogwadeni:deo to serve an amended protection application given the time the child had been in care and given his age. This amended protection application was served on the mother on May 15, 2019 and substitutionally served on the father on September 17, 2019. Both parents were then noted in default on November 1, 2019.

[7] As indicated above the Six Nations Band is desirous of resolving this matter by way of a formal customary care agreement that would have the effect of the court being invited to mark the amended protection application as withdrawn.

Legal Framework: Section 21 of the CYFSA

[8] In the R.P. case Justice Hilliard found that when a customary care agreement is used as "an alternative mechanism" to the court process it falls within the purview of s.21 of the CYFSA. That section reads as follows:

Elements of Valid Consent or Agreement, Etc.

A person's consent or withdrawal of a consent or participation in or termination of an agreement under this Act is valid if, at the time the consent is given or withdrawn or the agreement is made or terminated, the person,

(a) has capacity;

(b) is reasonably informed as to the nature and consequences of the consent or agreement, and of alternatives to it;

(c) gives or withdraws the consent or executes the agreement or notice of termination voluntarily, without coercion or undue influence; and

(d) has had a reasonable opportunity to obtain independent advice.

[9] Clearly neither parent falls within the parameters of this requirement as neither has signed the customary care agreement.

The Band's Position: Bill C-92 and Indigenous Jurisdiction

[10] In response Mr. Elchami, on behalf of the Band, filed a memorandum in support of his argument that a customary care agreement may be finalized without the consent of the biological parents. Mr. Elchami first invited the Court to consider the new federal legislation entitled "An Act respecting First Nations, Inuit and Métis children, youth and families", which came into force January 1, 2020, also known as Bill C-92.

[11] Specifically Mr. Elchami directed the Court to consider s.18(1) of the Act which reads:

Affirmation

18(1) The inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.

[12] From there Mr. Elchami notes Six Nations Elected Council Resolution No. ICGC #425/07/09/2016 which reads:

Moved by Melba Thomas and seconded by Lewis Staats that the Six Nations Elected Council support the Six Nations Band Representatives to enter into a Customary Care agreement that where the caregivers are willing to meet the requirements of a "formal" customary care agreement and the parents are not in agreement and the children are being considered for society and/or Crown wardship.

Followed by Resolution No. ICGC #428/07/19/2016, which reads:

Moved by Melba Thomas and seconded by Lewis Staats that the Six Nations Elected Council / Ogwadeni:deo have every child in need within the community placed into Customary Care verses[sic] Foster Care.

[13] Mr. Elchami argues that the new federal legislation provides authority for courts in Ontario to respect a law enacted by a First Nations governing body (in this case the Six Nations Elected Council) in relation to child and family services. Mr. Elchami goes on to say the practice of the Band is to proceed with a customary care agreement without the consent of the biological parent "only if that consent cannot be ascertained". Under those circumstances, the Band will sign on behalf of the biological parents. The rationale for this action, according to Mr. Elchami, is that there are many situations "where the vital pillars" for a Customary Care Agreement have been established, however the biological parents cannot be found or contacted to sign the Customary Care Agreement. This prejudices the child and risks the child being placed into foster care, which is contrary to the above noted resolution, ICGC #428/07/19/2016.

Concerns Raised by Justice MacKinnon

[14] This approach to the rendering of Out-of-Court Customary Care Agreements has raised concerns by my colleague Justice MacKinnon in the M.L. case cited above.

[15] At paragraph 61 of her decision the learned justice writes:

In the out-of-court customary care agreements ... there do not appear to be the same safe guards of parental rights as found in the CYFSA.

And at paragraph 70:

The out-of-court customary care system assumes, and the agency argued, that the First Nation knows what is best for the child and will make decisions for the child.

And at paragraph 74:

There are no provisions in the CYFSA for review of out-of-court customary care agreements. The agency need not explain to anyone why certain individuals are parties while others are not. There is no court oversight in regard to other issues such as the use of Short Term as opposed to Long Term agreements.

And finally, at paragraph 82 Justice MacKinnon concludes that:

The proliferation of customary care agreements outside of the CYFSA has created a parallel system of child welfare by customary care.

Provisions in Bill C-92

[16] The issues raised by Justice MacKinnon are obviously a concern for this Court for reasons that I will explain shortly. But first, I am heartened by a couple of provisions in the new legislation. Section 12(1) of Bill C-92 reads:

Notice

12(1) In the context of providing child and family services in relation to an Indigenous child, to the extent that doing so is consistent with the best interests of the child, before taking any significant measure in relation to the child, the service provider must provide notice of the measure to the child's parent and the care provider, as well as to the Indigenous governing body that acts on behalf of the Indigenous group, community or people to which the child belongs and that has informed the service provider that they are acting on behalf of that Indigenous group, community or people.

[17] I am satisfied that both Respondent parents have been served with the service provider Ogwadeni:deo's amended protection application and that as part of its claim the service provider was seeking an Order for extended care, or alternatively, asking for the withdrawal of the amended protection application in favour of commencing a formal Customary Care Agreement.

[18] I would also note the new legislation mandates the consideration of best interests of the Indigenous child. Section 10(1) reads:

Best interests of Indigenous child

10(1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Court's Analysis and Concerns

[19] So where does that bring us? Ogwadeni:deo wants this Court to endorse its amended protection application withdrawn based on it having entered into an out-of-court formal customary care agreement with the Band and the formal customary care providers. The Band says its resolution, which they argue is enabled by virtue of Bill C-92, allows the Band to sign the customary care agreement on behalf of the parents.

[20] But what concerns this Court in agreeing to withdraw the amended protection application is the lack of oversight the Court has had on this file. Aside from a temporary without prejudice Order made on March 26, 2018 no further substantive Order has been made with respect to the child CJ. Aside from an affidavit sworn by the CAS of Brant's protection worker on March 22, 2018 and a follow up affidavit dated April 9, 2018 by the Society's Director of Aboriginal Services describing how the child came into care, the Court has received no further information about the child — where the child is residing, or how the child is doing.

Statutory Requirements for Withdrawal

[21] As noted Ogwadeni:deo brought an amended protection application under Part V of the CYFSA. Section 90 of the CYFSA reads:

90(1) Where an application is made under subsection 81(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 101.

[22] Cases such as Children and Family Services for York Region v. S.(J.G.), 2004 OJ No. 4681, stand for the proposition that in child protection proceedings a society must seek leave to withdraw its application.

[23] Factors relevant in determining whether a withdrawal would be appropriate include:

1. Whether any continuing protection concerns exist;

2. Whether all parties consent to the withdrawal;

3. The reason for the withdrawal;

4. How the withdrawal would affect the fairness of any other custody litigation.

(See Catholic Children's Aid Society of Toronto v. B.(D.), [2002] OJ No. 2318)

Court's Decision

[24] Because this Court has received no additional evidence since March / April 2018 on the welfare of CJ it cannot possibly know whether any continuing protection concerns exist.

[25] It is this Court's opinion that many of the customary care agreements Ogwadeni:deo has entered into over the last two years have, for the most part, benefitted children. Here, though, I have no information to determine whether this proposed formal customary care agreement is in the best interests of the child, CJ. At a minimum an affidavit from the child's current worker setting out the child's circumstances and addressing why it's in the child's best interest that he be subject to this agreement, is warranted. Until I receive such evidence I cannot in all good conscience, permit the withdrawal of the amended protection application.

Dated at Brantford, Ontario this 13th day of March 2020.

The Honourable Justice G. B. Edward