WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:

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.

(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 of Appeal for Ontario

Date: 20220323 Docket: C69821

Huscroft, Trotter and Coroza JJ.A.

BETWEEN

M.L. and D.L. Appellants

and

B.T. and D.C. Respondents

and

Dilico Anishinabek Family Care Respondent

Counsel: Jessica Gagné, for appellants No one appearing for the respondents B.T. and D.C. Katherine Hensel and Kristie Tsang, for the respondent Dilico Anishinabek Family Care Caterina E. Tempesta, Ian M. Ross, Maureen Bulbrook and Lauren M. Conti for the Office of the Children’s Lawyer Sarah Clarke and Alessandra Catalano for the intervener Association of Native Child and Family Services Agencies of Ontario Asha James and Amanda Micallef for the intervener Nishnawbe Aski Nation

Heard: January 13, 2022 by video conference

On appeal from the judgment of Justice W. Danial Newton of the Superior Court of Justice, dated September 7, 2021.

Huscroft J.A.:

Overview

[1] J.T. is a six-year-old Indigenous child and a member of the Berens River First Nation in Manitoba. She has been cared for by the appellants, M.L. and D.L., in Thunder Bay since she was eight days old. The question raised by this case is whether the appellants are entitled to bring an application under the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”) for parenting orders for J.T.

[2] The motion judge held that they were so entitled and dismissed Dilico Anishinabek Family Care’s (“Dilico”) motion to strike their application. The appeal judge overturned the motion judge’s decision, holding that the appellants were “foster parents” and, as a result, were precluded from bringing a parenting/custody application under the CLRA. The appeal judge also held that there was a valid customary care agreement and authorized Dilico to make placement decisions concerning J.T. without judicial oversight. Dilico plans to place J.T. with her maternal great aunt, R.C., in Berens River.

[3] The Office of the Children’s Lawyer (“OCL”) was appointed to represent J.T.’s interests, and two organizations were granted intervener status in this appeal. Fresh evidence applications have also been brought by the OCL and Dilico.

[4] I conclude that the appellants are entitled to bring their application under the CLRA and that the appeal judge erred in concluding otherwise.

[5] In short, Dilico acted without legal authority under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (“CYFSA”) by maintaining de facto guardianship of J.T. following the expiry of the last of several temporary care agreements it entered. The care agreements entered subsequently, on which Dilico relies, were not consented to by all parties and are not valid customary care agreements.

[6] The appellants are the only caregivers J.T. has ever known. They must be party to the decision about her best interests. The appellants are entitled to bring their CLRA application with Dilico and Berens River First Nation as parties to that application, along with J.T.’s maternal great aunt and the OCL. The best interests of J.T. will be determined by the court in accordance with the relevant statutory and constitutional requirements.

[7] I would allow the appeal for the reasons that follow.

Background

[8] J.T. is a six-year-old child with special needs. Her biological mother, D.C., is a member of the Berens River First Nation of Manitoba but resides in Thunder Bay, Ontario. J.T.’s biological father, B.T., also resides in Thunder Bay but is not Indigenous.

[9] J.T. has a full biological sister, W.C., who is in extended care and lives in a long-term foster placement in Thunder Bay. J.T. and W.C. know that they are sisters and have a close and loving relationship. The sisters have regular contact and visit with each other at least monthly.

[10] J.T. has a loving relationship with her biological mother, D.C., but D.C. has never parented J.T. and realizes that she cannot care for her as a parent. D.C. wants J.T. to live with her maternal great aunt, R.C., who lives in the Berens River First Nation. R.C. also cared for another of J.T.’s sisters. Dilico has for some time planned to remove J.T. from the appellants’ care and place her with R.C.

[11] J.T. has lived with the appellants M.L. and D.L. since she was eight days old. She has a loving relationship with them. They are the only caregivers she has ever known. She considers them to be her parents. D.L. is a status member of the Couchiching First Nation, which, he says, is an Ojibway community like Berens River First Nation. M.L. is not Indigenous.

[12] J.T. was born in Thunder Bay. The hospital made a referral to Dilico, which apprehended J.T., executed a Temporary Care Agreement with her biological parents D.C. and B.T., and placed her in the care of the appellants. At the outset, the appellants cared for J.T. as “foster parents” pursuant to a Temporary Care Agreement executed between the biological parents and Dilico. However, this agreement expired on February 20, 2016.

[13] There is considerable uncertainty surrounding the nature, number, and circumstances of the various care agreements that were signed following the expiry of the Temporary Care Agreement concerning J.T.’s care in February 2016. Not all the relevant agreements were before the lower courts, and the validity of some of those agreements is disputed.

[14] It is clear, however, that the appellants did not sign all the care agreements. J.T.’s biological father did not sign any of the care agreements following the expiry of the first Temporary Care Agreement in 2016.

[15] In June 2017, the appellants started an application under the CLRA for a parenting order for J.T., with reasonable parenting time on reasonable notice for D.C. and B.T. Dilico responded by starting a protection application under the CYFSA, which had the effect of automatically staying the appellants’ CLRA application pursuant to s. 103 of the CYFSA.

[16] The appellants brought a motion to be added as parties to Dilico’s protection application, but Dilico was granted leave to withdraw that application and it did not proceed. J.T. remained with the appellants and they revived their CLRA application.

[17] In July and August 2018, for the first time, Dilico and Berens River First Nation executed an agreement with D.C. only. It is not clear whether Dilico made any attempt to obtain B.T.’s consent to this agreement. Neither B.T. nor the appellants are signatories to that agreement. The agreement does not identify a customary caregiver. J.T. remained in the care of the appellants.

[18] The appellants attempted to continue with their application for a parenting order under the CLRA. In November 2018, Dilico brought a motion to strike their application, arguing that the appellants were “foster parents” and, as such, were precluded from party status on any parenting application for J.T.

[19] In 2019, while their CLRA application was pending, the appellants brought an emergency motion to prevent Dilico from sending J.T. to Manitoba. Justice Bode granted the motion and ordered that J.T. continue to reside with the appellants on a temporary basis.

Decisions Below

The Motion Decision

[20] The motion judge dismissed Dilico’s motion to strike the appellants’ CLRA application. She rejected Dilico’s claim to legal guardianship of J.T., noting that guardianship was not granted by a court and was not otherwise legally substantiated. The motion judge also rejected Dilico’s argument that the appellants’ application under the CLRA could not proceed because of the existing care agreement, finding that the agreement constituted an “out-of-court” agreement that did not have a nexus with the CYFSA.

[21] The motion judge rejected Dilico’s argument that the appellants were “foster parents,” and so were prohibited from being parties to any application regarding J.T. by r. 7(4) of the Family Law Rules, O. Reg. 114/99 (“FLRs”). The motion judge found that the appellants were customary caregivers, not foster parents, and were therefore not covered by r. 7. The motion judge added that even if the appellants were foster parents, she would have exercised her discretion to allow them to bring their application pursuant to r. 7(5).

[22] The motion judge rejected Dilico’s argument that she should defer to its placement decisions. The out-of-court care agreement was not a CYFSA matter, and there was no statutory basis for Dilico to make the placement decision. Moreover, the evidence showed that Dilico had considered factors other than the best interests of the child in deciding to move J.T. The motion judge ordered that the appellants’ parenting order application under the CLRA could proceed.

The Appeal Decision

[23] The appeal judge allowed the appeal. He found that the motion judge erred in law in concluding that “out-of-court” care agreements did not fall under the scope of the CYFSA. The appeal judge concluded that customary care agreements were an important and preferred component of the CYFSA, and the absence of the biological father’s signature did not invalidate the customary care agreements in this case.

[24] The appeal judge stated that he was “very sympathetic” to the appellants’ plight and to their decision to seek decision-making responsibility given Dilico’s actions and its delay in dealing with J.T.’s care. Nevertheless, he struck the appellants’ CLRA application and prohibited them from being parties in a case involving decision-making responsibility or parenting time in respect of J.T.

Court of Appeal Motion Decisions

[25] Justice Paciocco stayed the appeal judge’s order pending the disposition of this appeal. He also appointed the OCL to represent J.T.’s interests. Subsequently, the Association of Native Child and Family Services Agencies and the Nishnawbe Aski Nation were granted permission to intervene.

Issues on Appeal

[26] The appellants raise two issues on this appeal. First, did the appeal judge err in concluding that the care agreements provide Dilico and Berens First Nation with the authority to make legal decisions as to J.T.’s best interests without review by a court of law? Second, did the appeal judge err in determining that the appellants were “foster parents” and therefore barred from party status on any application regarding parenting orders for J.T.?

[27] The fundamental question can be stated more simply: are the appellants entitled to proceed with their CLRA application? If they are, then this matter must be returned to the court of first instance to determine a plan of care that is in J.T.’s best interests.

[28] Whether the appellants are entitled to proceed with their CLRA application is a question of law, reviewable on a standard of correctness.

Discussion

[29] I begin by considering the CYFSA and its treatment of customary care. I then turn to consider whether judicial oversight is required by the legislation. Finally, I will address whether the appellants are entitled to pursue their CLRA application.

The CYFSA is engaged

[30] All parties agree that the inability of J.T.’s biological parents to care for her directly engages the CYFSA.

[31] The paramount purpose of the CYFSA, set out in s. 1(1), is to promote the best interests, protection, and well-being of children. The CYFSA sets out additional purposes that apply to all children in s. 1(2), such as supporting the autonomy and integrity of the family unit, using the least disruptive course of action, and individualizing services to a child in a manner that:

i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment;

ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;

iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression;

iv. takes into account a child’s or young person’s cultural and linguistic needs;

v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests; and

vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

[32] Importantly, s. 1(2) of the CYFSA includes an additional purpose distinct to First Nations, Inuit and Métis peoples: wherever possible, they should be entitled to provide 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.

[33] “Customary care” plays an important role in meeting this purpose as well as meeting the other purposes of the CYFSA, including its paramount purpose to promote the best interests, protection, and well-being of children.

Customary care under the CYFSA

[34] What is “customary care”? The concept is defined in s. 2(1) of the CYFSA as “the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community”. I note the use of the word “person” and not “agency” in this definition.

[35] Customary care is the preferred approach for Indigenous children. Section 80 of the CYFSA requires a society to “make all reasonable efforts” to pursue a plan for customary care for a First Nations, Inuk or Métis 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 Métis community.

[36] The practice of customary care arose as an alternative to court-related processes and court-ordered care, so that First Nation children and youth can be both protected from health and safety concerns while remaining strongly connected to their culture and communities.

[37] Customary care agreements encourage the parties to resolve issues concerning a child’s care in a culturally sensitive and appropriate manner, by agreement rather than child protection proceedings. As the intervener Association of Native Child and Family Services Agencies points out, customary care is an essential practice for First Nations in partnership with Indigenous child and family services agencies. Although the tenets of customary care differ from nation to nation, at its core the concept envisages a child’s care as a collective responsibility.

[38] Like any agreement, customary care agreements require informed and voluntary consent: see s. 21 of the CYFSA. The child’s legal parents (in most cases the biological parents), the proposed alternative caregivers, the child welfare agency, and a representative of the First Nation must all agree that the child is in need of protection, and they must all agree to the terms and conditions of the proposed plan for care: see Ministry of Children and Youth Services, Formal Customary Care: A Practice Guide to Principles, Processes and Best Practices (Queen’s Printer for Ontario, 2013) (“MCYS Guide”).

[39] Customary care does not operate outside judicial oversight. As Justice Wolfe noted in Kina Gbezhgomi Child and Family Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F. (3 March 2021), Gore Bay, K-16-0028-3 (Ont. C.J.), at para. 60, the courts may become engaged where there is evidence of bad faith or improper procedure:

I find that the CYFSA does not include statutory timelines that need to be strictly enforced by courts regarding customary care. In choosing that path, the parties to a [customary care agreement] agree that it is in the child(ren)’s best interests to avoid adversarial child protection proceedings in Canadian courts. This is subject to evidence of bad faith or improper procedure which could render placements made out of court invalid. [Emphasis added.]

[40] Under the CYFSA, the court plays an essential role in reviewing the decisions of child welfare agencies acting on their initial determination that a child is in need of protection. Judicial oversight ensures the child welfare agency acts within its authorized role, that statutory timelines are met, and that procedural protections exist for all parties, especially the parents who are often vulnerable: Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R., at paras. 68-69.

Judicial oversight is required

[41] The agreement in this case was not a typical customary care agreement. In essence, Dilico seeks to rely on the legislative preference for customary care agreements to urge non-interference by the court, despite having failed to provide care that satisfies the definition of customary care under the CYFSA.

[42] As noted above, the CYFSA defines “customary care” at s. 2(1) as “the care and supervision of a First Nations, Inuk or Métis child by a person” (emphasis added). Dilico acknowledges that J.T. has been with a family for the past six years who could not and did not provide her with care and supervision according to the custom of the Berens River First Nation.

[43] On Dilico’s own account, then, it appears not to have complied with the requirement in s. 80 of the CYFSA to “make all reasonable efforts to pursue a plan for customary care” for J.T.

[44] Dilico asserts that, as a child welfare agency, it had and continues to have legal guardianship of J.T. and that this legal guardianship constitutes a form of customary care. I do not agree. The provision of care and supervision to an Indigenous child by a child welfare agency does not conform to the definition of customary care. As noted above, customary care must be provided by a person. Dilico is a child welfare agency and is distinct from Berens River First Nation.

[45] The court requires evidence about the customs of Berens River First Nation to make a culturally-informed decision consistent with the CYFSA: Kina Gbezhgomi Child and Family Services, at para. 58. There is scant evidence in this regard. Dilico filed an undated letter from Berens River First Nation that refers to raising children within the First Nation, where all immediate family members and extended family are involved. Given that J.T. has been in Thunder Bay in the appellants’ care for six years, this is clearly not what happened here.

[46] There were many additional deficiencies in Dilico’s approach. Although J.T.’s biological father signed the Temporary Care Agreement that ended in February 2016, the motion judge found that he did not sign any of the subsequent care agreements. Dilico offered no explanation for this. One of the agreements, dated 2018, was not even signed by J.T.’s biological mother. The most recent agreement in evidence was not signed by Berens River First Nation. None of the care agreements specify the person(s) who will care for J.T. None of the agreements are signed by the caregivers.

[47] Setting out terms and expectations for care in customary care agreements is prudent: it reduces the chances of future disagreements and provides a mechanism for addressing any disagreements that may arise, and in this way furthers the goal of keeping disputes out of the court system.

[48] If a society seeks to rely on a customary care agreement to resolve protection proceedings out of court, the agreement must be carefully prepared and have the consent of all the parties. Otherwise, the child loses the protection of the processes and timelines set out in the CYFSA without assurances of the intended benefits.

[49] In this case, Dilico acted without statutory authority, without the legal parents’ consent, and without the timely involvement of Berens River First Nation. The agreements it made are not valid customary care agreements and have understandably led to confusion and delay.

[50] Section 80 of the CYFSA contemplates continued court oversight to promote the goals of customary care and the child’s best interests: see for example Ogwadeni:deo v. P.E., 2020 ONCJ 145; Children’s Aid Society of Brant v. R.P., 2019 ONCJ 649 and D.A. v. G.H. and Dilico Anishinabek Family Care, 2021 ONCJ 95. The best opportunity for this oversight would have been when Dilico sought to withdraw the child protection application despite not having a valid customary care agreement for J.T.

The appellants are entitled to pursue their CLRA application

[51] Having determined that court oversight is appropriate, the question remains whether the appellants are entitled to proceed with their application. As I will explain, the appellants’ ability to pursue a CLRA application is not tied to whether they are considered “foster parents” or “customary caregivers”. Further, in the absence of a valid customary care agreement, the appellants are not precluded from bringing a CLRA application.

(a) Nothing turns on whether the appellants are characterized as “foster parents” or “customary caregivers”

[52] J.T. calls the appellants “mom” and “dad”, and they have acted in that capacity since she was born. The motion judge found that the appellants were not foster parents but also that, even if they were, she would have allowed their application to proceed.

[53] Much has been made of the distinction between “foster parents” and “customary caregivers” on this appeal. But in my view, nothing turns on it. The appellants are necessary parties under either the CYFSA or CLRA regardless of how they are characterized.

[54] Both foster parents and customary caregivers can be made parties to a proceeding under the CYFSA: see A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601; Kina Gbezhgomi Child and Family Services. Both can also bring a CLRA application in the absence of any ongoing child protection proceeding or valid customary care agreement: C.G.W. v. M.J. et al (1981), 34 O.R. (2d) 44 (C.A.); J.E.O. v. M.D., 2020 ONSC 6106. The court has the discretion to add these individuals as parties to a child protection proceeding or determine whether their CLRA application may proceed.

[55] The appeal judge erred in concluding that r. 7 of the FLRs precluded the appellants, as “foster parents”, from applying for parenting orders for J.T. under the CLRA. Rule 7(4) is concerned only with who must be named as a party:

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 decision-making responsibility, parenting time or contact with respect to a child.

2. A child protection case.

[56] Rule 7(4) does not limit who may be named as parties in the types of cases listed. It specifies who must be named. Rule 7(5) permits the court to add appropriate people as parties. Thus, in Valoris Pour Enfants et Adultes de Prescott-Russell, at para. 20, this court stated that “both r. 7(4) and s. 39(3) of the CFSA preserve the court’s discretion to add a foster parent as a party to a child protection proceeding”, albeit adding that care must be taken in exercising the discretion to add a foster parent.

[57] Similarly, even a caregiver who ultimately disputes the terms of a formal customary care agreement could give written notice to terminate the agreement and bring a CLRA application to have that dispute adjudicated in the child’s best interests. This was the approach recognized by Justice Kurke in J.E.O. v. M.D., at para. 57:

The [customary care agreement] is based on the voluntary participation of all parties, including the appellant. There are provisions that allow for regular review and discussion of aspects of the plan of care, to permit modification over time. Importantly, the appellant has it in her power to collapse the [customary care agreement] by giving written notice of her intention to do so. That would permit a reconsideration of protection issues, if necessary, but could remove one barrier blocking the appellant’s ability to seek custody of L.A.D.

[58] In that case, the court declined to lift a stay of the appellant customary caregiver’s CLRA application for sole decision-making responsibility and parenting time for the child, despite the appellant having signed a valid customary care agreement with the mother, father, Wikwemikong Unceded Indian Reserve, Kina Gbezhgomi Child and Family Services, and the Children’s Aid Society. The signatories to the customary care agreement agreed to various roles and responsibilities set out in detail, in addition to mechanisms for review and termination of the customary care agreement. Very few of those features are present in the agreement in this case.

[59] The court in J.E.O. v. M.D. specifically distinguished the circumstances in that case from the motion judge’s decision in this case, in which the court had concerns about the customary care agreement. As J.E.O. v. M.D. held, a court’s decision not to exercise its discretion to stay CLRA parenting order proceedings may be informed by issues such as voluntariness of participation by parties to a customary care agreement, the improper exclusion of necessary parties, review procedures, the right to terminate the agreement, the desirability of a longer-term placement, whether the customary care agreement is genuinely intended to foster the intention of the legislature or has been put in place for some collateral and impermissible purpose, or other such issues.

(b) The CLRA provides an alternative avenue in the absence of an avenue under the CYFSA

[60] The CYFSA is the primary legislation in any case involving a child in need of protection, and it applied to J.T. from the outset. If Dilico had not withdrawn its child protection application, or the court had reviewed the validity of the purported customary care agreement and not permitted Dilico to withdraw the application, the appellants could have sought party status under the CYFSA. Absent a proceeding under the CYFSA initiated by a child protection society, the CLRA was the only avenue open to the appellants.

[61] If J.T. were in temporary care, she would have been subject to the statutory timelines at s. 122 of the CYFSA with a view to permanency planning. Various review mechanisms under the CYFSA, including ss. 115 and 116, as well as ss. 109(7) and (8), would have been engaged. Subsection 109 provides:

(7) If a child is in extended society care under an order made under paragraph 3 of subsection 101(1) of clause 116(1)(c) and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (8).

(8) A foster parent who receives a notice under clause (7) (a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal. [Emphasis added.]

[62] Review by the Child and Family Services Review Board was not available to the appellants because of Dilico’s approach. J.T. was neither a “child in care”, nor a child who had the benefit of a timely consideration of a potentially viable customary care plan with extended family that, according to the MCYS Guide, would have seen her placed in her First Nations community at a young age.

[63] In the absence of a valid customary care agreement, nothing in either the CYFSA or the FLRs precludes the appellants from commencing a proceeding under the CLRA to determine what is in a child’s best interests. Indeed, the right to apply to a court for a parenting order respecting decision-making responsibility and parenting time under s. 21(2) of the CLRA is very broad: “[a]ny person other than the parent of a child, including a grandparent, may apply to a court for a parenting order respecting decision-making responsibility with respect to the child” (emphasis added), and the court has the discretion to permit such an application to proceed.

[64] In this case, there is no question that the appellants – the only caregivers J.T. has ever known – have relevant information that would assist the court in determining her best interests. Moreover, as the motion judge found, it is clear from s. 62(3) of the CLRA that if any other person had brought an application, the appellants would be required to be parties by virtue of their involvement with J.T. That subsection provides as follows:

(3) The parties to an application under this Part [decision-making responsibility, parenting time, contact and guardianship] in respect of a child shall include,

(a) the child’s parents;

(b) a person who has demonstrated a settled intention to treat the child as a child of his or her family;

(c) a person who had the actual care and upbringing of the child immediately before the application; and

(d) any other person whose presence as a party is necessary to determine the matters in issue.

[65] As the motion judge found, paragraphs (b), (c), and (d) undoubtedly apply to the appellants.

[66] There is therefore no basis for precluding CLRA proceedings or the appellants’ participation in them. In all the circumstances of this case, the appellants’ CLRA application must be permitted to proceed to determine J.T.’s best interests.

The relevance of the federal legislation

[67] Having concluded that provincial laws and regulation permit the appellants’ CLRA application, it is necessary to consider the relevance of the federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“the federal Act”), which received royal assent in June 2019.

[68] The federal Act establishes national minimum standards for child and family services delivery for all Indigenous children and families. The Act has three purposes, as set out in s. 8:

(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;

(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and

(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

[69] The key principles of the federal Act, set out in s. 9, are the best interests of the child, cultural continuity, and substantive equality. The Act provides, at s. 4, that “[f]or greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act”.

[70] The federal Act permits First Nations to displace provincial child protection laws in accordance with the procedure outlined in the Act: notice may be given of the intention to exercise jurisdiction and a request may be made to enter into a tripartite coordination agreement with federal and provincial authorities. Berens River First Nation has not sought to exercise jurisdiction in accordance with this procedure. It has neither given notice nor made a request to enter into a tripartite coordination agreement. As a result, the CYFSA continues to govern.

[71] Dilico argues that the protections for Indigenous children that have been incorporated in the CYFSA and adopted in the national standards do not exist under the CLRA, so the appellants cannot proceed under that Act. The interveners similarly argue that the CLRA cannot provide a route by which the national standards are evaded.

[72] This argument rests on a misunderstanding. CLRA proceedings would neither evade nor undermine the national standards. A court applying the CLRA will be required to apply the national standards in deciding the appellants’ application.

[73] The CLRA, at ss. 24(1) and (2), requires that parenting orders be made based on the best interests of the child:

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Section 24(3) then sets out a non-exhaustive list of factors related to the circumstances of the child, which include, at subparagraph (f), “the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage”.

[74] In deciding the appellants’ CLRA application, the court will have to interpret these provisions to incorporate the national standards set out in the federal Act and the CYFSA in a manner that harmonizes the legislation.

Fresh Evidence Applications

[75] The OCL, as counsel for J.T., brought a motion for fresh evidence. The evidence consists of an affidavit from an OCL clinician and purports to contain the most up-to-date information regarding J.T.

[76] Given the analysis above, the OCL’s proposed fresh evidence is not relevant to whether the appellants are entitled to bring their claim. I would not admit it. It will be for the court hearing the CLRA application to consider the evidence concerning J.T. to determine her best interests according to the relevant statutory and constitutional principles.

[77] Dilico has also brought a motion for fresh evidence. Dilico submits that the fresh evidence reveals further interactions between the appellants and Dilico and is directly relevant to the question of whether the appellants are “foster parents”.

[78] For the reasons set out above, whether the appellants are “foster parents” is not relevant to whether the appellants are entitled to bring their claim. Accordingly, I would not admit Dilico’s fresh evidence either.

Conclusion

[79] I would dismiss the fresh evidence motions and allow the appeal, thus permiting the appellants’ application under the CLRA to proceed.

[80] I would also reinstate the order of Justice MacKinnon dated March 3, 2020, pending the CLRA hearing.

[81] The appellants are entitled to costs of the appeal and the proceedings below from the respondents. The parties may make brief submissions up to three pages in length within 30 days following this decision. The OCL and the interveners are not responsible for costs and shall pay their own costs of the appeal.

Released: March 23, 2022 “G.H.” “Grant Huscroft J.A.” “I agree. Gary Trotter J.A.” “I agree. S. Coroza J.A.”