WARNING
Prohibitions under the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1 apply to this decision:
Prohibition re identifying child
87(8) 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.
Prohibition re identifying person charged
87(9) 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.
Transcript
87(10) No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise.
Offences re publication
142 (3) 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 OF APPEAL FOR ONTARIO
CITATION: M.L. v. B.T., 2021 ONCA 683
DATE: 2021-10-04
DOCKET: M52822 (C69821)
Paciocco J.A.
BETWEEN
M.L. and D.L.
Appellants/Applicants
and
B.T., D.C. and Dilico Anishinabek Family Care
Respondents/Respondents
Jessica Gagné, for the appellants/applicants, M.L. and D.L.
Edward R. Van Voort, for the respondent, D.C.
Katherine Hensel, for the respondent, Dilico Anishinabek Family Care
Heard: September 29, 2021 by videoconference
ENDORSEMENT
OVERVIEW
[1] This is a custody dispute between the applicants, M.L. and D.L., and the respondent, Dilico Anishinabek Family Care (“Dilico”). The custody dispute concerns J.T., a child in need of protection, whom Dilico placed in the applicants’ care more than six years ago, eight days after J.T.’s birth. Dilico intends to terminate the placement so that J.T. can be placed with her mother, D.C.’s, family, in the Berens River First Nation in Manitoba. In proposing this placement, Dilico is attempting to ensure that J.T.’s best interests are served by preserving her links to her Indigenous culture, family, and community. However, D.L. and M.L believe that it is in J.T.’s best interests that she remains in their care. Accordingly, they launched a custody application pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
[2] On September 7, 2021, Newton J. of the Ontario Superior Court of Justice released an appeal decision that sets aside the applicants’ custody application and paves the way for Dilico to remove J.T. from the applicants’ care, and to pursue their intended placement of J.T with her mother’s family.
[3] The applicants now bring a motion before me to stay the appeal judge’s decision pending the final determination of their appeal. Dilico does not oppose a conditional stay that would require J.T. to continue to reside with the applicants pending that determination, but requests that the conditional stay maintain their role as the legal guardian of J.T. The applicants ask for supplementary relief as well, which Dilico does not oppose. D.C. did not participate in this motion. J.T.’s father, B.T., was served with the applicants’ custody application, but has not responded.
[4] For the reasons that follow, I am ordering a stay of the appeal decision, an order that will assure that J.T. is not removed from the applicants’ care pending the final determination of the appeal. However, I am also imposing conditions in J.T.’s best interests that will satisfy some of Dilico’s concerns. Finally, I make additional orders for associated relief, described below.
MATERIAL FACTS
[5] J.T., an Indigenous child, was born in Thunder Bay in late 2015. Her case was referred to Dilico at the time of her birth. J.T. was apprehended by Dilico with the consent of her mother, D.C., and her father, B.T, when she was one day old. When J.T. was eight days old, she was placed in the care of Dilico pursuant to a short temporary care agreement signed between Dilico and J.T.’s parents. Dilico then placed J.T. in the care the applicants, M.L. and D.L., while maintaining contact with her biological family.
[6] Under s. 80 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched 1, (“CYFSA”) children’s aid societies are obligated to make reasonable efforts to pursue a plan of customary care for Indigenous children. After a child is found to be in need of protection and placed into extended care pursuant to s. 101(3) of the CYFSA , this can be accomplished through “a plan for customary care”, “an adoption”, or “a custody order under subsection 116(1)”: CYFSA, s. 112(3). Dilico did not pursue these mechanisms, however, choosing instead to develop a plan of customary care for J.T. outside of the court system.
[7] When J.T. was four months old, Dilico executed the first of a series of six-month “customary care agreements”. These short term customary care agreements were executed by D.C., as well as the band to which D.C. belongs, the Berens River First Nation in Manitoba. J.T. is now registered as a member of Berens River First Nation.
[8] Each of the customary care agreements executed by the parties have the same terms. Specifically, the customary care agreements provide that Dilico is the legal guardian of J.T. during the duration of the agreements. In addition, they provide that Dilico is entitled “to assume the duties of parent of the child”, and to “have the rights and responsibilities as parents of the child for the purposes of the child’s care”.
[9] Dilico submits that its long-term plan was to use these customary care agreements as a mechanism for working towards reunification of J.T. with her Indigenous family and community. It now proposes a permanency plan for J.T. to live with D.C.’s aunt, R.C, in the Berens River First Nations.
[10] M.L. and D.L., who evidently care deeply for J.T., believe that it is in J.T.’s best interest to remain with them. In June 2017, they instituted custody proceedings under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which Dilico and D.C. opposed. Specifically, Dilico took the position that as “foster parents” within the meaning of s. 2 of the CYFSA, the applicants are prohibited by CYFSA, s. 102, and Family Law Rules, O. Reg. 114/99,s. 7(4) from applying for or obtaining custody of J.T. Dilico brought a motion to strike the custody application on this basis.
[11] The applicants submitted, in response, that they are not foster parents, but “care providers” as defined in An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, s. 1. They contended further that the customary care agreements are invalid. Their objections to the validity of the agreements include the claim that the CYFSA does not provide for out-of-court customary care agreements. They also maintained that Dilico’s customary care plan is not in J.T.’s best interests as required by the CYFSA and argue that it is in her best interest to remain with them. The applicants asked for the dismissal of Dilico’s motion, and for interim custody.
[12] On March 3, 2020, a judge of the Ontario Court of Justice agreed with the applicants and dismissed Dilico’s motion. She ruled that the applicants are entitled to continue their custody application, and awarded them interim custody, subject to these material terms:
A Children’s lawyer shall be appointed for [J.T.] or a social work investigation requested.
[Dilico] shall facilitate services for the child, but shall not make decisions about the child without the consent of her caregivers or order of the court.
The mother D.C. and the father B.T. shall be entitled to supervised access.
If R.C. becomes a party, she is entitled to access.
The access exercised by D.C., B.T. and R.C. shall be on the following conditions:
a. The access of the parents and great aunt shall not, in combination, exceed 48 hours per month.
b. There shall not be any overnight access at this time.
c. All access shall be in Thunder Bay.
d. No other individuals other than supervisors, the [Office of the Children’s Lawyer] or an agreed third party shall attend the access visits.
e. The parents and great aunt shall propose a schedule for the next two months which may be agreed by the Applicants or the matter of the schedule can be addressed with the court.
f. R.C. shall refrain from having the child refer to her as mother or mom.
- The current customary care agreement and the Alternative Care Agreement shall be stayed pending further order of the court. No other customary care agreements shall be signed regarding [J.T.] and no other proceedings shall be commenced without leave of the court.
[13] Dilico appealed the motion judge’s order to the Ontario Superior Court of Justice. The Association of Native Child and Family Services Agencies of Ontario, and the Nishnawbe Aski Nation were granted intervenor status and took legal positions that buttressed Dilico’s legal position.
[14] On September 7, 2021, the appeal judge allowed the appeal, agreeing with Dilico that: (1) the motion judge erred in concluding that “Out-of-Court Customary Care Agreements” are not creations of the CYFSA, which must be given priority to court-ordered options; (2) the motion judge committed palpable and overriding error in finding that the applicants were not “foster parents” within the meaning of s. 2 of the CYFSA, and in exercising discretion to permit them to apply for custody contrary to the spirit of the legislation; and (3) erred in not deferring to Dilico’s placement decision. He set aside the motion judge’s decision, struck the applicant’s application for custody, and prohibited the applicants from being parties in a case involving the custody of or access to J.T.
THE ISSUES
[15] The applicants now bring this motion pursuant to Rule 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to stay the judge’s decision pending the final determination of their intended appeal. Dilico does not oppose a conditional stay that will require that J.T. reside with the applicants pending appeal. Responsibly, Dilico recognizes that it would not be in J.T.’s best interests to remove her from the applicants’ residence and care, only to have to return her if the applicants ultimately succeed on appeal. They contend, however, that the status quo includes their authority as J.T.’s legal guardian, which is not being respected. They also contend that this authority is required to maintain J.T.’s ties to her Indigenous family, culture and community. They request that the order of this court preserves their guardianship, including their decision-making authority. The applicants oppose this request, arguing that Dilico’s guardianship derives from an invalid customary care agreement and should not be maintained by this court pending the final determination of the appeal.
[16] The applicants also seek orders for the admission of fresh evidence, the representation of J.T. on appeal by the Office of the Children’s Lawyer, and leave to file an extended factum.
ANALYSIS
[17] I am persuaded that a stay of the appeal judge’s decision pending the final determination of an appeal from that decision is in the interests of justice. The three factors required for consideration of such a stay, recently described by this court in UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279, at para. 29, each point in that direction.
[18] First, a preliminary assessment of the merits of the case reveals that there are serious issues to be tried. Dilico agrees that this is so. Indeed, this appeal will raise important questions about the proper evaluation of the best interests in the placement of Indigenous children who have been apprehended, and it will invite close consideration of the effect of out-of-court customary care agreements.
[19] Second, D.L. and M.L. have a tremendous emotional investment in their relationship with J.T. and will suffer irreparable harm if they lose their caregiving role without further and final determination of the serious questions I have identified. More importantly, all indications are that J.T. is being extremely well cared for and has closely bonded with D.L. and M.L. I agree entirely with the responsible and sensitive recognition by Dilico that it is not in her best interests to terminate her placement with D.L. and M.L., given that such outcome could be reversed as the result of this legal action. J.T. requires a stable interim care placement pending final determination of what her ultimate placement will be.
[20] Third, I am persuaded that based on the harms I have identified, D.L. and M.L., and J.T., will suffer greater harm if I refuse to grant a stay, than Dilico, D.C., other members of J.T.’s family or her Indigenous community will experience if I order a stay.
[21] Having said that, the law is clear that as an Indigenous child, J.T.’s best interests require that attention is paid to specific considerations, which affect both the “irreparable harm” and “greater harm” considerations discussed above. Subsection 74(3) of the CYFSA obligates courts, when determining the best interests of Indigenous children, to “consider the importance … of preserving the child’s cultural identity and connection to community”. The preamble to the CYFSA makes clear how important it is “in the spirit of reconciliation” to care for Indigenous children “in accordance with their distinct cultures, heritages and traditions”. Section 10 of An Act respecting First Nations, Inuit and Métis children, youth and families removes any doubt that an ongoing relationship between the family and the child’s Indigenous community is of central concern. Specifically, s. 10 provides:
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.
(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.
[22] I do not disregard the fresh evidence confirming D.L.’s Indigenous status, proof that was not available before the appeal judge. However, I agree with Dilico that the stay I order must make meaningful provision that enables Dilico to take reasonable steps to nurture J.T.’s connection to her Indigenous culture, her family and her community, pending the final determination of the appeal. I therefore impose conditions on the stay I am ordering, and in recognition that this may not be adequate, I will also be ordering that this appeal be expedited.
DISPOSITION
[23] The Order of Newton J. of the Ontario Superior Court of Justice dated September 7, 2021, Court File No. FS-20-0062-00AP, is stayed pending appeal. The following conditions apply:
The most recent customary care agreement and the alternative care agreement shall remain in effect pending further order of the court. However, any authority that Dilico had as guardian to determine J.T.’s custody placement is suspended, and J.T. shall not be removed from the physical care or control of D.L. and M.L. pending the final determination of this appeal. The obligation of D.L. and M.L. to “participate with Dilico in developing a Plan of Care for the child in care” is also suspended.
The mother D.C. and the father B.T. and R.C. shall be entitled to supervised access to J.T., in Thunder Bay, on the following conditions:
a. The access of the parents and great aunt shall not, in combination, exceed 48 hours per month.
b. There shall not be any overnight access at this time.
c. No other individuals, other than supervisors, the Office of the Children’s Lawyer or an agreed third party shall attend the access visits.
d. R.C. shall refrain from having the child refer to her as mother or mom.
[24] I am not prejudging the contested validity of the recent customary care agreement and the alternative care agreement by ordering that they be in effect pending the appeal. These agreements, the terms of which have been agreed to by the applicants, provide a mechanism for ensuring that J.T. continues to receive services, and that her needs as an Indigenous child are attended to pending the completion of the appeal.
[25] As indicated, I am also ordering that this appeal be expedited. It is in J.T.’s interest to have this matter resolved urgently and there is no impediment to having an appeal proceed quickly. The applicants are requesting a second appeal and the bulk of the required documentation and argument is already available.
[26] The applicants’ request for an order admitting fresh evidence is premature. That motion must be brought before the panel hearing the appeal.
[27] If intervenors are permitted to participate in the appeal, the applicant shall be permitted to file a factum exceeding 30 pages, not to exceed 45 pages.
[28] Pursuant to s. 89(3.1) of the Courts of Justice Act, R.S.O 1990, c. C.43, the Office of the Children’s Lawyer may act as legal representative for J.T.
[29] Within 10 days of the release of this decision, the parties may provide costs submissions in writing not to exceed 3 pages, supported by bills of costs.
“David M. Paciocco J.A.”