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.

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

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

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

Ontario Court of Justice

Date: January 4, 2021 Court File No.: Thunder Bay FO-18-348-00

BETWEEN:

D.A. Applicant,

— AND —

G.H. Dilico Anishinabek Family Care Respondents

Before: Justice D.J. MacKinnon Heard on: September 16, 2020 Decision on Summary Judgment Motion released on: January 4, 2021

Counsel: M.E. Dunk.................................................................................... counsel for the applicant(s) E. R. Van Voort ................................................................. counsel for G.H., respondent(s) K. Burns........................... counsel for Dilico Anishinabek Family-Care, respondent(s)

MacKinnon J.:

Background

[1] A.H. was born in September of 2015 to T.H. (father) and C.L.(mother) She was the only child of this couple. A.H. was apprehended at birth by Dilico Anishinabek Family Care (Dilico) without a warrant. T.H. says he is Indigenous. C.L. is non-Indigenous.

[2] The agency did not commence an application in the Ontario Court of Justice but proceeded to place the child with D.A., an approved placement with the agency. D.A. had been a caregiver for Dilico since 2012 and there were no issues with her care. She is the Applicant in this proceeding.

[3] D.A. says that she was told by Dilico that the arrangement was a "Kinship Out of Care". The paternal grandmother was a friend of D.A. and D.A. was considered part of the family. The grandmother, G.H., could not take A.H. because she had other grandchildren living with her including a child with high needs.

[4] In October of 2018, an allegation was made regarding the care by D.A. of an older child. The agency has not disclosed details of this allegation but says it was based on "inadequate supervision". The Applicant was told that the child A.H. would be staying with the grandmother on an extended visit while the investigation took place. The child was never returned to D.A. The complaint was unverified, but D.A. was notified that she could not have any children in her care under five years of age. The agency admits being unable to justify this restriction.

[5] D.A. attempted to get access to A.H. from the grandmother G.H., but was told that the child was in care of Dilico and the grandmother could not give her access.

Court Proceedings

[6] On December 21, 2018, D.A. brought this application for custody of or access to A.H., pursuant to the Children's Law Reform Act (CLRA). It was served on the parents, who failed to file Answers and the matter was set for an Uncontested Hearing. This did not occur as the CLRA matter was stayed to allow an application for access under the Child, Youth and Family Services Act (CYFSA).

[7] Believing that an application under the CYFSA was necessary to obtain access to A.H., D.A. brought her application under the CYFSA in January of 2019. Defending that application, Dilico argued that A.H. was not under CYFSA jurisdiction but was in customary care under the Mikinaak Service Model of the agency and that the First Nation was exercising its inherent jurisdiction. In hearing the arguments of the agency, Elder J. endorsed the following:

The Applicant is seeking access to a child who is placed with a family member. Proper relief is under CLRA, which has been commenced. Leave to w/d w/o costs granted.

[8] D.A. withdrew her application under the CYFSA.

[9] An amended application under the Children's Law Reform Act was brought in August of 2019 which added the paternal grandmother, G.H., who had care of the child. The Applicant seeks interim custody of or access to A.H.

[10] Responding materials were received from the grandmother in January of 2020. The paternal grandmother has also filed a motion for interim custody. Her position is that she does not want D.A. to have custody nor access to A.H. She says that A.H. no longer recognizes D.A. and no access is taking place.

[11] In February of 2020, Dilico Anishinabek Family Care brought a motion to be added as a party to these CLRA proceedings and for other relief. This was adjourned as a result of the closure of the courts during Covid-19. On consent, Dilico was added as a party in June of 2020.

[12] Neither parent has filed an Answer in this matter and continue to be noted In default.

[13] The agency added Peguis First Nation to its pleadings. This is improper and the adding of parties is a function of the court.

Motions Before the Court

[14] The Applicant D.A. and the grandmother G.H. both have motions for custody, and D.A. is, in the alternative, asking for access. These motions will be heard after the Dilico motions.

[15] Dilico requests that the court grant the following orders:

c. An Order prohibiting the Applicant, D.A., from being a party in a case involving the custody of and/or access to the child, A.M.B.H. born September […], 2015 pursuant to subsection 7(4) of the Rules without leave of the Court; d. An Order dismissing the Application issued December 21, 2018; e. In the alternative, an Order striking the Application of D.M.A. issued December 21, 2018 pursuant to subsection 1 (8.1) of the Rules.

[16] Argument in this matter was heard on September 16, 2020.

Issues

Should the Application be struck or dismissed?

Analysis

[17] Dilico Anishinabek Family Care has brought a motion to have the application of D.A. struck on three basis:

a) Rule 7(4) of the Family Law Rules; b) Rule 16 of the Family Law Rules -There is no genuine issue for trial as Dilico has established a long term placement for the child. c) Rule 1 (8.1) of the Family Law Rules.

a) Rule 7(4) of the Family Law Rules

[18] The agency relies on Rule 7(4) of the Family Law Rules, which states:

Parties In Cases Involving Children

(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:

1. A case about custody of or access to a child.
2. A child protection case.
3. A secure treatment case (Part VII of the Child, Youth and Family Services Act, 2017). O. Reg. 114/99, r. 7 (4); O. Reg. 298/18, s. 7 (1, 2); O. Reg. 535/18,s. 1

[19] The agency states that this rule prohibits foster parents from bringing this Application under the CLRA and that D.A. is a foster parent. Is she a foster parent?

[20] At this point D.A. is not a foster parent. It is fair to say that the child came into her care in the past as a placement by Dilico. The argument of the agency is that D.A. is a "foster parent" as defined by the Child, Youth and Family Services Act and that is why Rule 7(4) applies.

[21] Under the CYFSA, a "foster parent" is defined as:

"foster care" means the provision of residential care to a child, by and in the home of a person who,

(a) receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and (b) is not the child's parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),

and "foster home" and "foster parent" have corresponding meanings; ("soins fournis par une famille d'accueil", "famille d'accueil", "parent de famille d'accueil")

[22] To be a "foster" parent, a person must be providing "residential care". "Residential care" under the CYFSA is defined as;

"residential care" means boarding, lodging and associated supervisory, sheltered or group care provided for a child away from the home of the child's parent, other than boarding, lodging or associated care for a child who has been placed in the lawful care and custody of a relative or member of the child's extended family or the child's community; ("soins en etablissement")

[23] A member of the community is defined in s.2(3):

Member of child's or young person's community

(3) For the purposes of this Act, the following persons are members of a child's or young person's community:

1. A person who has ethnic, cultural or creedal ties in common with the child or young person or with a parent, sibling or relative of the child or young person.
2. A person who has a beneficial and meaningful relationship with the child or young person or with a parent, sibling or relative of the child or young person.

[24] D.A. is Indigenous and shares ethnic and cultural ties with A.H. At the time of the placement of A.H. with her, D.A. had a 'beneficial and meaningful" relationship with A.H. I find that D.A. was a member of the child's community or else Dilico would not have placed the child there.

[25] Dilico has taken a number of positions that support the proposition that the care provided by D.A. to A.H. does not meet the definition of "residential care" under the CYFSA. Dilico does not consider A.H. to be a "child in care". Dilico has argued that a customary care arrangement for the child represents a family or community placement in accordance with the traditions of the First Nation. The agency has called the arrangement Kinship Out of Care, or customary care.

[26] As such D.A. did not provide residential care to A.H. as defined by the CYFSA.

[27] D.A. cared for A.H. in a family or community placement, thus exempting her from the definition of a "foster parent" in the CYFSA. In the previous proceedings brought by D.A. under the CYFSA, Dilico argued that the child was in a family placement and not in an agency placement.

[28] I find that D.A. is not a foster parent and thus not prevented from bringing her application on that basis.

[29] In any event, Rule 7 (4) is a positive directive that everyone who has care of a child shall be named as a party in custody or child welfare cases, with the exception of a foster parent. This is so that foster parents are not burdened by the litigation between the agency and the parents.

[30] This rule does not prohibit foster parents from commencing a court case. It stipulates that they are not required to be named as a party by others, but they can be.

[31] In the case of AM. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, the Court of Appeal upheld a motion judge's decision to allow an aunt of a child to be a party. The Court of Appeal confirmed that the test to be applied is the best interests of the child.

[32] Even if Rule 7(4) prohibited an application by D.A., it is in the best interests of A.H. that D.A. be a party as she has information about the child, a prior relationship and has shown a commitment to care for the child in the future. For three of her five years, D.A. was the only parent of A.H. The question of the continuation of that relationship brings the best interests of the child to the fore.

[33] In any event, D.A. is not seeking to be added as a party. She is the initiator of the case.

[34] I find for the purposes of this motion that D.A. is not prohibited by Family Law Rule 7(4) from bringing an application under the CLRA because:

a.) she is not a foster parent as defined by the CYFSA, and b.) even if she were a foster parent, Rule 7(4) does not prohibit her from commencing an application.

b.) Should the Application of D.A. be dismissed because there is no genuine issue of custody or access as Dilico has established a long term placement for the child?

[35] Dilico relies on Rule 16 of the Family Law Rules. It states:

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

[36] The onus is on the agency to establish that there is no genuine issue for trial. The agency argues that there is no issue of custody of A.H. or access to her because the agency has established the answer to the custody question and, as the child has not seen D.A. for a period of time, there can be no issue of access. The agency seeks deference to its placement decision.

Should the court show deference to the decisions of the agency because it is mandated under the CYFSA legislation?

[37] The most powerful tool to ensure the protection and safety of children is the authority to seize or apprehend a child.

[38] Courts have held that a warrantless apprehension should only be conducted when the circumstances of the child are urgent.

[39] In this case the child was apprehended from the hospital. The Applicant D.A. says she was told that the child suffered from heroin withdrawal. All parties seem to agree that the parents had drug problems. There are no articulated reasons why a warrant was not obtained.

[40] As the agency did not commence a Protection Application within five days of the apprehension, as required by s.88 of the CYFSA, any evidence the agency had at the time of apprehension remains unverified as valid protection concerns.

[41] Were there legitimate protection concerns? The only recitation of its concerns are found in the Out of Court Customary Care Agreements (OC-CCA) signed in this matter which state that A.H. was in need of protection because the parents;

a) had significant substance abuse issues; b) did not have legal custody of any other biological children; c) had an extensive child welfare history; d) physical harm or neglect; e) failed to provide or consent to services or treatment to prevent emotional harm.

[42] There is no evidence that C.L., the mother, had any other children. The father had three other children with another partner. There is no evidence that the parents of A.H. remained together.

[43] As the child had never been in the care of the parents, there is no evidence related to physical harm or neglect. The materials filed by the agency do not provide any evidence related to ground (e).

[44] The only possibly valid basis for the apprehension is that the parents had significant substance abuse issues. Even then, there is no evidence about the extent of this problem for the parents individually or the impact on parenting.

[45] By failing to bring the matter to court for examination and verification of the reasons for the apprehension, Dilico Anishinabek Family Care failed to give the parents a forum for answering any claims of the agency, and putting forth their plan for the child and how they would address their issues.

[46] It is of tremendous concern to the court that this child was apprehended at birth and placed elsewhere without the rights of the child and the parents being considered. A.H. was entitled to be raised by her parents and to have a relationship with them unless the grounds for apprehension were verified. The agency deprived this child of that possibility.

[47] Dilico did not operate as a mandated agency following apprehension when, in addition to not seeking any order of the court, the agency placed A.H. in a "foster" home without a court order or even a customary care agreement in effect at all during the child's life or from September of 2015 to at the least, August of 2018 – a period of thirty four months. What authority does Dilico have to make such unilateral decisions?

[48] There is no evidence before the court of any services offered or provided to the parents of A.H. to assist them to be able to move toward a parenting role. There is no evidence of an agreement even for access.

[49] It is of considerable concern that a document filed by the Applicant suggests that the mother and the father were even deprived of completing the registration of the child's birth, which the mother C.L. indicates was done by someone else. The paternal aunt is alleged to have done so as requested by the agency, and that she added her own name as a middle name for the child. This is a failure by the agency to provide the parents with even a modicum of respect.

[50] Dilico Anishinabek Family Care has acted outside of the processes and commitments under the Child, Youth and Family Services Act that they agreed to uphold by donning the cloak of authority provided by their designation.

[51] The failures of the agency at the time of apprehension and post-apprehension support that the agency did not act within its mandate or in consideration of the principles of the CYFSA. The rights of the parents and the child were ignored. For this reason, at this time, placement of this child by the agency cannot be given deference on the basis that the agency is mandated under the CYFSA.

Should there be deference to the placement under the current Out of Court Customary Care Agreement?

[52] In August of 2018, an OC-CCA (Out of Court Customary Care Agreement) was signed between the agency and the father only. This was a short-term agreement for a period of six months. T.H. wished the child to reside with the paternal grandmother, G.H. There were no other signatures on the agreement. The agreement was to terminate on February 26, 2019.

[53] There is no explanation as to the absence of the signature of the mother of A.H. or the First Nation. In the affidavit of the society worker, Tylyn Silander, dated February 4, 2020, she states the following:

Dilico's mandate is to provide services to immediate family with a goal of reunification of a child whenever possible by following the Mikinaak Service Model for Customary Care ("Mikinaak Service Model"). These services are being provided to AH., G.H, and T.H. The Mikinaak Service Model is based on the direct, active involvement of the child's First Nation community working in partnership with and assisting parents in the care of a child in times of need. (Para 26)

[54] I note that the mother is omitted from the list of persons on whose behalf the Mikinaak Service Model is operating.

[55] The materials provided to D.A regarding the Mikinaak Service Model provide further information about the role of the First Nation generally in a customary care agreement:

The First Nation community has stated that Dilico is to care for the child on its behalf and the on-going planning for the child requiring out-of-home care is to be done jointly between the First Nation and Dilico .... Traditional Customary Care practices are influenced and determined by the culture of the parents and community in which the child is raised, and does not require agency involvement as the child is not in need of protection (based on criteria outlined under the Child and Family Services Act.

[56] The basis of the Mikinaak Service Model is that the First Nation has direct and active participation in the process, designates Dilico as the legal guardian of the child and works jointly with the agency. I note that the Declaration to be signed by Chief and Council, which is attached to and forms part of the August 2018 OC-CCA, is not signed by anyone.

[57] The absence of the signature of the mother and the First Nation from the August 26, 2018 customary care agreement, and the fact that the First Nation has not signed the Declaration, renders this customary care agreement invalid in my view. It is invalid because it does not reflect a consensus among the legitimate participants. I also note that this agreement, which D.A. was not aware of, was signed in advance of the removal of the child from her care.

[58] The Applicant has also raised a question whether T.H. is a member of Peguis First Nation. While the agency says that he is, the Applicant has sworn that the agency told her that the child was not Indigenous and that T.H. was not a member of Peguis First Nation but may have been affiliated with them. In her conversations with the First Nation, the Applicant reports that she was told that they had no record of this child.

[59] The current OC-CCA was signed by the father and agency on February 5, 2019, and by one person from the Peguis First Nation in Manitoba in March of 2019 representing "C.H.". There is no indication who the person from Peguis First Nation is or their authority to commit the First Nation. This agreement states that it begins on August 26, 2019 and has an end date of September 22, 2033, a period of fourteen years.

[60] The Declaration attached to this agreement, ordinarily signed by a First Nation Chief and Council, has not been signed by the First Nation or any party. This Declaration is the document in which the First Nation exercises its inherent authority and declares the child to be in the care of Dilico and that Dilico has "legal guardianship" of the child. The document is not signed by the band or the father or the mother.

[61] The mother, C.L., did not sign any agreement until January of 2020 when she signed the current customary care agreement. The Applicant, D.A., met with the mother who denied signing the customary care agreement or any such document. The agency complains in their materials about the Applicant bothering the mother while she was in jail, yet that is the place where the agency had the mother sign the agreement.

[62] Vulnerable parents in vulnerable situations should not be signing any documents without legal advice. There should be evidence that the mother, who was in jail, was not under duress and had independent legal advice and was not threatened in any way about phantom consequences should she not sign. For example, see Children's Aid Society of Brant and R.P. 2019 ONCJ 649 where the mother felt threatened by the agency that if she did not agree to a customary care agreement that the consequences would be a court action.

[63] The agency claims that the First Nation is the source of its authority and guardianship. There is a question in this case as to whether the father is a member of the Peguis First Nation. In any event, as the First Nation did not, through Chief and Council, declare the agency to have legal guardianship and did not sign the Declaration, I find this OC-CCA to be invalid.

The J.E.O. Case

[64] Following argument in this matter, the case of J.E.O. v. M.D., 2020 ONSC 6106, was released and I invited the parties to submit their arguments based on the decision.

[65] In the J.E.O. case, a child was apprehended at birth. The agency brought an application to court and entered into a long-term customary care agreement. The agreement was signed by all parties including the caregiver. The fostering family was a relative. The band council passed a resolution that the child would be in care of the fostering family. The protection proceeding was withdrawn.

[66] A number of referrals were received regarding the caregiver and she wanted to obtain a custody order under the CLRA so that she could then terminate the CCA. She was afraid to terminate the CCA and risk removal of the child. The agency became a party to the CLRA application and sought to have the application of the caregiver dismissed.

[67] The trial court held that s.103 of the CYFSA incorporated customary care agreements and allowed the child welfare legislation to occupy the legislative area related to the child. The section reads:

103 If, under this Part, a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Children's Law Reform Act is stayed except by leave of the court in the proceeding under that Act.

[68] This was upheld on appeal.

[69] In the case at bar the agency did not rely on s.103 of the CYFSA. Here, a proceeding was never commenced under the CYFSA nor was any substantive order under the CYFSA made, although those were the facts in the J.E.O. case. By commencing an application, the agency in J.E.O. brought the matter within the CYFSA and signalled its use of its powers. It was a judicial act to allow withdrawal of the application in favour of the CCA.

[70] In the case of A.H., D.A. did commence an application under the CYFSA. The agency argues that the application of D.A. is sufficient to ground this matter in s.103 and thus support that the jurisdiction for this matter is under the CYFSA. In accepting this interpretation, one would have to ignore the only order made in the CYFSA proceeding started by D.A. – that is, the endorsement of Elder J. that the matter should rightly be under the CLRA, a position put forth by Dilico.

[71] In addition, the situation of the customary care agreement was markedly different in the J.E.O. case. The First Nation was the lead in regard to the placement of the child in the J.E.O. case and issued a Band Council Resolution (BCR) early on. A BCR is an act of the government of the First Nation and is done on traditional governance principles or those set out in the Indian Act which require a quorum for passing. One can be assured that a BCR is the First Nation speaking. In this case not even the Declaration is signed by the Peguis First Nation. They have not attended court or been represented. There is no evidence that they have been involved at all in any aspect of this placement.

[72] In his analysis, Justice A.O. Kurke reviews the legislative changes to the CYFSA and the intent of the statute regarding Indigenous children. He states the following:

It is apparent that the spirit that animates the CYFSA with respect to First Nations, Inuit and Metis children is a recognition that these communities are unique, have a special relationship with Ontario, and should be given the first opportunity to offer protection to their own children and families in line with their own community values, customs and heritage. To give effect to this sentiment, community -based child protection must be given priority to court-ordered options under the CYFSA that would see children taken from their communities and stripped of their heritage, traditions, and cultural identities. (para. 47)

[73] This view is respectful and considers that the FNIM communities know their families and are able to make informed decisions in regard to the children of the community. This is the optimum situation.

[74] In this case, there is no evidence that this family or this child have ever been to Peguis First Nation in Manitoba, which is 900 kilometers from Thunder Bay. There is no evidence before the court of any interactions, cultural or social, between the G.H. family and members of the First Nation.

[75] Justice Kurke goes on to review s. 80 of the CYFSA, which says:

Customary care

80 A society shall make all reasonable efforts to pursue a plan for customary care for a First Nations, Inuk or Metis child if the child,

(a) is in need of protection; (b) cannot remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part or, where there is an order for the child's custody that is enforceable in Ontario, of the person entitled to custody under the order; and (c) is a member of or identifies with a band, or is a member of or identifies with a First Nations, Inuit or Metis community.

[76] He asserts that the placement of this section prior to Part V of the Act dealing with "Commencing Child Care Proceedings", means that court proceedings do not have to be commenced before CCAs can be entered into. Yet, I note that s.80(b) contemplates at least an intervention under Part V as a precipitating event.

[77] However, the court goes further:

... Nothing would more fundamentally undercut the provisions of the CYFSA that relate to the protection of Indigenous children, or the principles enunciated in the legislature in that regard than the ability of an individual to bring a custody application under the CLRA that would collapse a CCA, such as that in this case. To do so would be to disregard the voluntary parental participation and Indigenous community input that defines a CCA.

[78] Again, the concept of community and parental participation and decision-making is at the heart of the CCA. That this approach is inviolate is problematic.

[79] Consider the situation of separating parents. Many are competent and caring and can put aside their own differences to be able to enter into separation agreements which meet the needs of their children. In cases where the circumstances change, courts can intervene to review the matter and set a new regime that is more relevant to the present circumstances of the children. Should any contract in regard to children ever be closed and permanent? Human decision-making can be fraught with challenges; perceptions, bias, racism, poverty, misunderstandings, and politics.

[80] Under the CYFSA there are at least some safeguards for the rights of the parents and that the focus remains on the needs of the child. However, for OC-CCAs entered into through an agency's portal, the processes vary from agency to agency and may not reflect a community consensus, the wishes of the family or parents or the needs of the child. In those cases, either the CYFSA needs to develop a process for review of OC-CCAs or the CLRA will be the only place for consideration of the issues related to children bound under such contracts.

[81] In this case, not only are the facts distinguishable from J.E.O. but the First Nation and the community in Manitoba are not the driving forces putting together this OC-CCA. The lack of a Declaration by the First Nation represents an absence of that community cohesiveness spoken of in J.E.O. I cannot give the OC-CCA deference for the reasons stated above.

[82] This is not a case where an agency is acting with lawful authority under the CYFSA or under the authority of a CCA such that the application of D.A. should be dismissed in deference to the placement of the agency.

Family Law Rule 1 (8.1)

[83] The agency also argues that the application should be struck in accordance with Family Law Rule 1 (8.1). That rule states:

Failure to Follow Rules - If a person fails to follow these rules, the court may deal with the failure by making any order described in sub rule (8), other than a contempt order under clause (8)(g).

[84] There is no evidence before the court to support this contention that the Applicant failed to follow the rules.

[85] The agency argued that the case should not proceed on the basis of proportionality. Dilico argues that a full hearing is not necessary as D.A. has not seen the child for a number of years and the outcome of the application is likely that D.A. will not get custody or access.

[86] I agree that custody may be a more difficult proposition than access. The question is whether D.A. should be given the right to pursue this application in circumstances where her relationship with the child has diminished due to the period of time she has not engaged with the child. She did commence her application as soon as possible and has continued to pursue it.

[87] Each of these individuals, G.H. and D.A., has arguments to make in regard to the future of A.H. While some time has elapsed since D.A. saw the child, it is not unusual for individuals in a parenting role to recommence contact after some absence. Some of the delay in this case seems related to the need for the grandmother to obtain counsel, the intervention of the agency, and the Covid 19 court shut down.

[88] A.H. has the right to the continuation of relationships which benefit her. Although the paternal family may not agree, it is the child who benefits from access as long as it does not interfere with the relationships in her biological family. There may, at trial, be an issue as to the control of family interactions by the family.

[89] It is important to consider that there should be succession planning in regard to this child, given the ages of the two women at the center of this conflict and the reported lack of progress by the parents. There must be a consideration of the need for planning for A.H.'s future.

[90] I see no reason to keep the court from exploring these issues in the best interests of A.H.

Decision

[91] The agency has failed to show that there is no genuine issue for trial in this matter. The issue is whether it is in the best interests of A.H. to have contact with or be in the custody of D.A. or G.H.

[92] In all of the circumstances, for the reasons given, the following is my interim order:

1. The motion of Dilico Anishinabek Family Care is dismissed.
2. The matter shall continue as a proceeding under the Children's Law Reform Act;
3. The customary care agreement dated August 26, 2019 to September, 2033 is stayed until further order of the court. No other customary care agreements are to be signed in regard to A.H.
4. The documents filed by Dilico Anishinabek Family Care have added Peguis First Nation as a party. Parties are only to be added by the court. Peguis First Nation shall be deleted from the style of cause.
5. The order to be taken out shall include the full names of the parties and child.
6. The Office of the Children's Lawyer is requested to provide representation to the child A.H. or to engage in an investigation.
7. Dilico Anishinabek Family Care and T.H. shall provide proof of the membership of T.H. with Peguis First Nation.
8. Dilico Anishinabek Family Care and T.H. or G.H. shall provide a copy of the Statement of Live Birth for the child.
9. Costs submissions in writing from the Applicant to be served and filed within ten days if costs are requested, not to exceed four pages excluding any accounts. Reply submissions on costs to be served and filed within ten days of the service of costs submissions by the Applicant, not to exceed four pages.

[93] The matter of interim custody or access in regard to AH. shall be set at the next list day for this matter.

**Released:** January 4, 2021 **Signed:** Justice D.J. MacKinnon