WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (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.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma Ms. J. Mealey, for the applicant

— And —

J.R. L. Tegosh, for the mother

J.R.

D.T.J.

L.P., G[…] Band Representative

Nogdawindamin Family and Community Services R. Parise for Nogdawindamin (Motion Respondent)

Heard: April 26, 2016

Judge: Kukurin J.

Decision

[1] Introduction

This is a decision on a motion by the Applicant Children's Aid Society of Algoma (hereinafter referred to as "Algoma CAS"), seeking an order that substitutes Nogdawindamin Family and Community Services (hereinafter referred to as "Nogdawindamin CAS") as the applicant in the child protection proceeding in which this motion is brought.

[2] Multiple Motions

There are a number of identical motions brought in a number of other child protection cases, the facts of which proceedings are not completely identical. A portion of these Reasons applies to all of these motions; another portion of these Reasons is specific to the particular case in which the motion is brought.

Background

[3] Creation and Designation of Native Children's Aid Societies

Children's Aid Societies are created by a designation by the Minister of Children and Youth Services (hereinafter referred to as the "Minister") under the Child and Family Services Act. The impetus for these transfer motions arises from the fairly recent designation by the Minister of Nogdawindamin, a native agency operating within Ontario for many years, as a children's aid society. This designation as a society was made effective April 1, 2017 and was made pursuant to s.15(2) of the Child and Family Services Act (hereinafter the "CFSA"). The designation empowers Nogdawindamin CAS to perform those functions that are statutorily set out as functions of societies in the CFSA statute subject to any restriction or prohibition that the Minister may set out in his designation. Nogdawindamin, as an agency, had provided services for many years in the Sudbury to Sault Ste. Marie corridor which is located in Northern Ontario, and which includes the North Shore area of Lake Huron/Georgian Bay. These services have been provided primarily, but not exclusively, to aboriginal persons in this fairly extensive geographical area. The Nogdawindamin agency has established an enviable reputation for its excellent work and its programs in assisting those for whom its services have, for the most part, been invaluable and perhaps otherwise unobtainable.

[4] Aboriginal Peoples and Native Societies

Aboriginal persons in Canada include the First Nation peoples, Inuit and Métis. These are recognized by Canada, and by Ontario in particular for purposes of this decision, to have needs that may be better served, in the area of child protection and child welfare, by children's aid societies that are "native" societies. These native societies are established specifically to provide services to aboriginal people. They have aboriginal elements within their structures that espouse aboriginal heritage, culture and values perhaps more so than do generic societies. There seems to be an underlying assumption that they are better able to provide services to aboriginal peoples, and/or that aboriginal peoples prefer that child protection services be from such native societies, than from more generic ones. Native societies have been established in parts of Ontario where there is a significant aboriginal population. Nogdawindamin CAS is merely the most recent incarnation.

[5] Territorial Jurisdiction Changes

Each of these native societies is designated to provide services as a society for a defined geographical area, and for defined persons within one or more defined geographical areas. Before the emergence of these native agencies, the territorial jurisdiction was vested in a non-native agency. This was the case with Nogdawindamin CAS, although its geographical designation covers such a large area that it was two non-native agencies that formerly had territorial jurisdiction: CAS of Algoma in the west, and CAS of the Districts of Sudbury and Manitoulin (hereinafter referred to as "Sudbury-Manitoulin CAS") in the east. The designation of Nogdawindamin CAS as a children's aid society required that some territorial jurisdiction of these non-native societies be taken away from them and be vested in Nogdawindamin CAS. Hence, there are companion designations to that of Nogdawindamin CAS that do precisely that. These take away jurisdiction formerly held by Algoma CAS and Sudbury-Manitoulin CAS, and also by Kina Gbezhgomi Child and Family Services. In summary, the changes required when a new native agency is created are twofold:

(a) To define the native society's areas of jurisdiction; and

(b) To divest these areas from the territorial jurisdiction of the society or societies who formerly had territorial jurisdiction in those areas.

[6] Complexity of Transfer Process

To do this is no mean feat. In fact, it is quite complicated, and is so by many factors.

[7] Non-Geographical Nature of Designation

Firstly, a native society's designation is typically not just geographical. It does not just define an area of land and the location of that area or areas. It is also a personal designation with respect to persons who fall within the designated jurisdiction.

[8] Complexity of Aboriginal Identity

Secondly, this is complicated by the fact that aboriginal persons do not all fall within neat categories. Some are living on a reserve. Some are off reserve. Some flit back and forth, often for employment or other valid purposes. Some are on a reserve other than one that is a named reserve for a particular society's designation. Some are married to aboriginal partners. Some marry non aboriginal partners. Some do not marry at all but still have 'spousal' partners with whom they have children. These may be aboriginal or non aboriginal partners. Some have had a succession of partners, which may include aboriginal partners or non aboriginal partners. In short, there may be a variety of aboriginal persons in a child protection case, and there may even be some question whether the person is, in fact, aboriginal at all.

[9] Legislative Imprecision

A third complication arises from the imprecision in the language or wording of the legislation as to whom the Child and Family Services Act is intended to apply. This is compounded by the imprecision of the description of the person(s) in the society's ministerial designation as to whom the native society has jurisdiction to act as a society. This is even further complicated by jurisprudence, which is ever evolving, in the area of aboriginal rights, in many areas of the law, not only in, but certainly including child protection law. Much of this is Charter based challenges to the constitutionality of federal or provincial legislation.

[10] Evidentiary Challenges

A big fourth factor is evidentiary in nature. This often stems from the inability of a person to establish his or her aboriginal status or ties to the satisfaction of the court. This may arise because of lack of adequate effort, or lack of resources, or lack of access to information. In some cases, it may be due to bureaucratic red tape, or maybe outright bungling. The end result may be that there is evidence of some tie to an aboriginal community or to other aboriginal persons, but not sufficient evidence to establish the person as a formal member of that community. One significant historical circumstance that fuels this inadequacy is the oral tradition of many, if not most aboriginal groups, which does not accord well with the evidentiary onus insisted on by child protection courts, which do not have such oral historical underpinnings. Moreover, oral memories and records tend to die out over time, or at least become less reliable, as older generations pass away, or as aboriginal members leave their traditional ways, whether by choice or by force of circumstances.

[11] Imprecision in Ministerial Designations

Finally, there may be some justifiable criticism with the actual wording of the ministerial designations and the interpretation of these designations. Words used include, for example, "members" in relation to Indian bands. However, who is a band "member" is not defined either in the designation itself or in the CFSA. Who may be a band "member" may mean different things to different people. Indian bands even differ among themselves as to their individual criteria for membership. There is also the concept of being a 'non-status band member' in some circles. In addition, the Nogdawindamin CAS designation does not specify whether it is the child who is the subject of the child protection proceeding, or whether it is a biological parent of that child, or a non-biological but statutory parent of that child, or an aboriginal half sibling of that child, that is the determining factor that establishes the native society's authority to provide society services. Finally, there is the term "families" used in the designation which is not defined and could lead to a great many interpretations.

[12] Multiple Children in Child Protection Cases

Apart and aside from jurisdictional issues is the reality of child protection litigation in Ontario. This litigation is governed by Part 3 of the CFSA, and partly also by the Family Law Rules (hereinafter referred to as the "Rules") that apply in Ontario's family courts to such proceedings. Although the CFSA refers to a "child" in its Part 3 provisions, and not to "children", in fact, many, if not most, child protection cases involve families with multiple children. The applicant society, in such cases have carriage of the proceedings and very seldom start individual applications for each child in the family. Rather, they tend to lump all of the children together, and to rely on grounds for a finding that may or may not apply to each child, and to name as party respondents in the case, persons or entities that may or may not be proper parties in the proceeding that applies to each individual child. The tendency appears to be to leave it to the court to mentally compartmentalize what evidence applies to which child and which family, and what the relationships are between a child and the parties in the case. Occasionally, the evidence is deficient and courts also may tend to lump children together in their determinations and in their decisions, perhaps without justification.

[13] Transfer Motions and Court Orders

The end result of the interplay of all of the foregoing is a minefield of pitfalls and potential non compliances with the CFSA statute or the Rules. This is particularly the case when there is a request for a transfer of the carriage of an already existing case to a different society as the applicant in the proceeding. These requests are made by transfer motions, as in the several cases before me. These are necessary because in each proceeding which has already been commenced, there is an order that has already been made that is either interim (temporary) or final and that almost invariably places some protection obligation on the society having carriage. The only mechanism for transferring the obligation of this society to another society is another order of the court. Hence the resort to the court seeking this order. The order sought on such transfer motions also includes provisions for a change of solicitors and a change in the title of the proceeding.

[14] Expected Decline in Transfer Motions

These motions are expected to abate in numbers as the new society becomes established more firmly and commences future proceedings on its own. The flurry of transfer motions applies to cases already ongoing on the birth day (effective date of designation) of Nogdawindamin CAS.

The Designation

[15] Minister's Powers of Designation

As mentioned the power to designate a children's aid society is found in the CFSA specifically in s.15(2). The Minister may impose terms and conditions on the designation. He may also vary, remove or amend the terms and conditions or impose new ones at any time. More fundamentally, the Minister may amend a designation to take away one or more of the functions of the society as set out in s.15(3) CFSA. Finally, the Minister may change the geographical area in which the society has territorial jurisdiction.

[16] Paragraph 1 – Territorial Jurisdiction on Reserves

In the designation of Nogdawindamin CAS, the Minister has exercised several of these options. Firstly, he has created a territorial jurisdiction (in paragraph 1) in which this society may provide services. This consists of seven named (7) First Nations bands which are located on ten (10) named reserves located along the North Shore (and in the case of one of these bands, also includes a reserve on the shore of Lake Superior).

[17] Paragraph 2 – Off-Reserve Members in Sudbury District

In addition to the territorial jurisdiction on these reserves, the Minister has given Nogdawindamin CAS jurisdiction to provide services to certain persons who are described as members of the bands of these reserves who are off-reserve but within the District of Sudbury, subject to certain exceptions that are specifically named. This paragraph (paragraph 2) of the designation is of no applicability in this decision as the Algoma CAS has no jurisdiction over persons anywhere in the District of Sudbury.

[18] Paragraph 3 – Off-Reserve Members in Algoma District

The Minister's designation gives to Nogdawindamin CAS jurisdiction to provide services to certain persons who are "members of the bands of the reserves" which are specified in paragraph 1 of the designation, but who are off-reserve and in the District of Algoma. Again this is subject to certain defined exceptions (which are reserves of M[...] First Nation). This is a personal designation that is relevant to the transfer motions before this court, as the Algoma CAS otherwise has jurisdiction over such persons.

[19] Paragraph 4 – Other First Nations, Inuit and Métis

Finally, the designation of Nogdawindamin CAS gives it the right to provide services as a children's aid society to other persons who are described as "Other First Nations, Inuit and Métis children and families within the District of Algoma...". This is also subject to certain exceptions for person on reserves of M[...] First Nation.

[20] Problems with "Members" Definition

The "personal" designation of the Minister in paragraph 3 of his designation of Nogdawindamin CAS creates several problems. The first is the Minister's use of the term "members of the bands", which, taken literally, means the persons whose names are on the band membership registers for such bands. While this should simplify determining whether an off-reserve person is a member of one of these seven bands (or First Nations), in practice, it is not. And it is not for a number of possible reasons. The individual may never have applied for membership in the band, even though entitled to do so. The band may have denied to such applicant, membership in the band for a number of reasons, not the least of which is that he or she did not meet that band's criteria for membership. The individual may already be a registered member of another band, not listed among the seven in the designation, and may have been denied dual membership. Or an individual may be an infant too young to apply and whose parents have not yet applied on his or her behalf. Sometimes, the band membership list could simply be in error leaving out a name that should be on it. Regardless of why a person is not a member of these seven listed bands, he or she may claim to be a member, or claim to be entitled to be a member. For some individuals, the band may acknowledge that he or she is a member of the band, but is not able to be shown on the band membership register and is considered an informal or non-status band member. This term poses a problem for the court. What determines whether a person off-reserve within Algoma District is a band member of one of the seven listed bands?

[21] Criteria for Other First Nations, Inuit and Métis Category

There is another category of persons with respect to whom Nogdawindamin CAS has authority pursuant to its ministerial designation to provide services as a children's aid society. This category includes other First Nation, Inuit and Métis children and families within Algoma District. This category is not defined by membership or non-membership in a First Nation or Indian band. The criteria that apply to persons in this category are:

(a) They cannot be members of the seven First Nations listed in paragraph 1.

(b) They must be aboriginal (First Nation, Inuit or Métis)

(c) They must be within the District of Algoma (except the M[…] reserves).

(d) They must be either of

(i) the child who is the subject of the child protection case before the court; or

(ii) a member of the family of that child.

[22] Discretion in Designation

The Minister, by his description of this category of persons, has established a population that could potentially vary between being quite numerous to one that is quite restricted in size. The Minister has left more than deserved or desired discretion in deciding to whom this category of persons is actually meant to apply.

[23] Examples of Ambiguity

For example, there may be persons who are card carrying members of a First Nation other than a First Nation who is listed in paragraph 1 of the Nogdawindamin CAS designation. The First Nation may be located elsewhere in Ontario, or in a neighbouring province or territory, or even in a neighbouring country. There are also such persons who do not have membership cards from these other First Nations but claim to be members or 'connected' or 'associated'. This association or connection could be anything - from having a grandfather who is or was a member of one of these First Nations, to participating in traditional practices such as smudging ceremonies or sweat lodges, or otherwise following First Nations practices and customs.

[24] Undefined Terms: "First Nations Child" and "Families"

To further complicate the criteria for inclusion in this category, the Minister refers to First Nations "children and families" within Algoma District. A 'First Nations child' is not defined in the designation, nor in the CFSA. However, "Indian" is defined in the CFSA as having the same meaning as it has in the federal Indian Act. And child is defined in the CFSA in terms of age only. First Nations "families" is a term that is not defined at all, either in the designation or in the CFSA. In fact, the CFSA defines "extended family" and also "relative" which only confuse what is intended to be meant to be included in the First Nations "families" referred to in the designation. The word "families" could be interpreted very broadly or very narrowly. I consider this from a judicial perspective, of course. But it is a word that is subject to interpretation by the parties in a child protection proceeding, and its interpretation is relevant to a transfer motion. The parties may well be adverse in interests on the issue of transfer and will interpret the meaning of "families" in a way that advances their respective positions.

[25] Conditions on Designation

There are also "conditions" that the Minister may attach to a designation. He has done so with respect to the designation of Nogdawindamin CAS to act as a children's aid society. The conditions are set out in lettered paragraphs (a) and (b) following paragraph 4 of the designation. These are further qualified "for clarity" by the final paragraph in the designation. These conditions are more properly temporally based prohibitions on providing services as a children's aid society. In other words, Nogdawindamin CAS cannot now exercise its society functions in its otherwise specified jurisdiction, but may be able to do so in the future when the Minister removes the condition (prohibition).

[26] Condition (a) – Consultation with Dilico Ojibway

Paragraph (a) restricts Nogdawindamin CAS from providing children's aid society services under paragraph 3 of the designation within a limited geographical area (defined in metes and bounds description) until "... such time as the appropriate consultation and coordination has occurred ..." between Nogdawindamin CAS and Dilico Ojibway Child and Family Services, an existing native society having territorial jurisdiction over lands and persons located in Thunder Bay District to the north west of Algoma District.

[27] Condition (b) – Consultation with First Nations, Inuit and Métis Communities

Paragraph (b) restricts Nogdawindamin CAS from providing children's aid society services under paragraph 4 of the designation until "... such time as the appropriate consultation and coordination has occurred ..." between Nogdawindamin CAS and First Nations communities other than those seven listed in Paragraph 1 of the designation, Inuit communities and Métis communities.

[28] Clarification of Conditions

By way of clarifying what this consultation and coordination entails and when this has been concluded, the Minister has added a final paragraph that confirms that Nogdawindamin CAS is fully designated to provide children's aid society functions under paragraphs 1 and 2 of the designation. However, under paragraphs 3 and 4, it will be able to provide these services "... only upon the removal of the conditions by the Minister."

[29] Conditions Not Met

Although not referred to in the evidence filed on these transfer motions, it was conceded by all parties and their representatives, legal and otherwise, who appeared on these motions, that neither condition (a) which refers to Paragraph 3 or condition (b) which refers to Paragraph 4 of the designation have been met. More precisely, there was unanimity that the Minister has not removed these conditions.

[30] Current Limitations on Nogdawindamin CAS

Accordingly, Nogdawindamin CAS is unable to provide children's aid society services for those persons described in paragraph 4 of the designation. It also cannot do so for those persons who are subject to the prohibition in paragraph 3 of the designation at this time. This means that it is unable to fulfill any of the functions of a society set out in s.15(3) of the CFSA for such persons at this time. These functions include virtually all that the applicant in these transfer motions, namely the Algoma CAS, wishes to be transferred to Nogdawindamin CAS including the carriage of the applications in which these motions are brought.

[31] Paragraph 2 Not Applicable

Paragraph 2 deals with band members who are in the District of Sudbury. This does not include anyone in the transfer motions before me which are all limited to the jurisdiction of Algoma CAS which is Algoma District. Accordingly, this eliminates such persons from consideration in the transfer motions.

[32] Paragraph 4 Not Yet in Effect

In addition, the personal designation of persons for whom Nogdawindamin CAS is designated to provide children's aid society services, and otherwise exercise its societal functions, pursuant to paragraph 4 of the designation, troublesome as paragraph 4 is in deciding who is in and who is out, is not yet in effect. This also eliminates for the time being such persons from consideration in the transfer motions.

[33] Remaining Applicable Paragraphs

This leaves paragraph 1, which is phrased in terms of geography of the seven listed First Nations, and paragraph 3 with the exception of the listed M[...] First Nation reserves, and with the temporary prohibition relating to providing society services in the lands in the description of the part of Algoma District in condition (a). The main issue in these transfer motions is determining whether persons in the proceeding which are sought to be transferred fall within paragraphs 1 or 3 of the designation.

The Law

[34] Definition of "Indian"

The CFSA is provincial legislation. However, it refers the federal statute's definition of who is an "Indian" under the Indian Act, R.S.C. 1985, c. I-5 (i.e., a person who is registered as an Indian or is entitled to be registered as an Indian under the Indian Act), and incorporates that definition as the provincial definition in the CFSA.

[35] Court's Obligation to Identify Indian Children

The CFSA requires the court to make identification findings with respect to each child who is the subject of a child protection application. These findings include,

"S.47(2)(c) whether the child is an Indian or native person, and if so, the child's band or native community;"

[36] Band Representative as Party Respondent

When a child is found to be an Indian child or a member of a native community, then a representative chosen by the child's band or native community is a party respondent in the proceeding.

S.39 (1) The following are parties to a proceeding under this Part:

1. The applicant.
2. The society having jurisdiction in the matter.
3. The child's parent.
4. Where the child is an Indian or a native person, a representative chosen by the child's band or native community.

[37] Importance of Identifying Indian Children

The CFSA is replete with provisions that apply to an Indian child involved as the subject of a child protection application. Naturally, it is very important to identify such children as they may be entitled to be treated differently under the CFSA than children who are not Indian children.

[38] Non-Ethnic Definition of Indian Child

What is clear from the CFSA is that it circumscribes who is an Indian or native child and does so with meanings that are not necessarily ethnic in origin. In many cases, the child in a case is not a card carrying status Indian (under the Indian Act), nor a card carrying member of an Indian band. Nevertheless, such a child may be identified as an Indian child by reason of being entitled to be registered. In some cases, the child may be entitled to be registered with two different bands (maternal and paternal), at least until such time as he or she chooses to be registered with one of them. The CFSA and the courts treat such child as an Indian child in child protection cases. It appears the children's aid societies, for the most part, consider children in the same way when they commence child protection applications.

Arguments on the Transfer Motions

[39] Overview of Arguments

On the transfer motions before me, arguments were presented by several counsel in connection with each child protection proceeding. However, I heard only three arguments on the general issue of whether the court should make the order sought.

[40] Nogdawindamin CAS Position – No Court Authority

The main contention of this argument was that "There is no authority for the Court to engage in the process of adjudicating on which 'Society' should be the responsible Society..." The argument presented indicated that the court has no role under Part 1 of the CFSA (except perhaps in the case of a Charter issue). It is under Part 1 that the Minister is authorized to designate societies, to limit them to functions within a specified territory, or for specified persons, to impose conditions on those designations, and to amend those territories, persons, designations and conditions. That is part of ministerial discretion for which the Minister is accountable to the legislature, not to the courts.

[41] Nogdawindamin CAS Position – Liaison and Dialogue

The Algoma CAS and Nogdawindamin CAS, according to these submissions, have already considered which of the outstanding cases should be transferred to Nogdawindamin CAS by Algoma CAS. The criterion applied by the local directors of these two societies appears to be one that applies the common sense principle of avoiding duplication of services. If one child in a case is identified as Indian and another is not, why have two societies each provide services to their mother? This, it is argued, is not a matter of jurisdiction. Rather it is a "process of liaison and dialogue to allocate which agency would best provide the services that they are both mandated to provide"

[42] Nogdawindamin CAS Position – Universal Duty

There is a further element of this submission, namely, that every society has the duty to fulfil the functions of a society, and that this is a duty that applies to all families and children in Ontario. In short, a society anywhere in Ontario may apprehend a child anywhere in Ontario and place that child in a place of safety. Presumably, what happens thereafter has to be done by a society which may not be the one which effected the apprehension.

[43] Nogdawindamin CAS Position – Notification Only

As for why these transfer motions are brought at all, it is argued that it is merely to provide "notification" to the court and to the other parties, not to adjudicate which is the responsible society in the proceeding in which the transfer motion is brought. There is no authority for the court to do so.

[44] Court's Response – Algoma CAS as Moving Party

I have to disagree with the majority of this argument. Firstly, it is the Algoma CAS which is the moving party in these transfer motions. It is the society asking for the transfer order. I presume that the reason it is doing so is that it is of the belief that only a new court order can divest it of its obligations under the current court order which created such obligations in the case. The inference I draw is that Algoma CAS does not agree with the submissions of Nogdawindamin CAS on this point.

[45] Court's Response – Territorial Limitations

Secondly, every society has a designation. While that of Algoma CAS was not provided on these motions, it is not unreasonable to assume that its territorial jurisdiction is limited geographically to the District of Algoma. It would be somewhat remarkable if, as was suggested, Algoma CAS could apprehend a child in Windsor (Essex County). For Nogdawindamin, the Minister has also placed geographical limits on this society in terms of where it can exercise its society functions. These are limited to portions of the District of Sudbury and the District of Algoma. I disagree that Nogdawindamin CAS can, for example, apprehend a child anywhere else in Ontario.

[46] Court's Response – Jurisdiction as Fundamental Question

Moreover, a society is a party by statute in a proceeding under Part 3 of the CFSA but only if it is "the society having jurisdiction in the matter." This begs the question of how this jurisdiction is to be determined and by whom. The court has recognized oversight over how a society fulfills its functions in child protection proceedings under Part 3. Whether it has jurisdiction is a fundamental question in any child protection proceeding it starts. If the court does not have the authority to rule on jurisdiction, then who does?

[47] Court's Response – Court's Authority to Determine Jurisdiction

The argument that the court has no authority to make the kind of transfer order being sought belies the fact that that is precisely the kind of order that is being sought from the court. The contention of Nogdawindamin CAS suggests that the court should make these transfer orders as an imprimatur of the decisions of the local directors of these two societies as to which cases get transferred. Unfortunately, the only information I have as to why these local directors decided as they did was because of reasons of efficiency and avoidance of duplication of functions. While these may be valid reasons, they are not the only considerations for why a transfer should or should not be made. There are other parties to these child protection proceedings besides the society and they may have equally valid reason to oppose the transfer sought.

[48] Court's Response – Jurisdictional Analysis Required

The argument of Nogdawindamin CAS did not deal with the jurisdictional issue that is presented by the designation under which this society obtained its authority to function as a society. This is the main crux of these transfer motions. If Nogdawindamin CAS does not have the jurisdiction to be the applicant society in a particular child protection case, then regardless of the pro's and con's for a transfer, it cannot be the applicant society. The court's function is not merely "notification"; it is firstly to determine if that jurisdiction exists, and to do that for each child in the proceeding, and if it does exist, to decide whether the proceeding should be transferred. I do not agree that an automatic transfer is always warranted. Moreover, the court should act on actual sworn evidence that is admissible.

[49] Algoma CAS Position

The argument of Algoma CAS was based on avoiding duplication of functions and the efficiency of the proceeding if a transfer was made. It too failed to consider the designation of the Minister and the jurisdictional issues to which it gave rise.

[50] Respondents' Position – Limited Evidence

There was only one argument made on behalf of the Respondents in the child protection cases in which these transfer motions arose. There was no evidence filed by any respondent on the motions themselves.

[51] Respondents' Position – Jurisdictional Analysis

The argument dealt primarily with the Minister's designation of Nogdawindamin CAS, and in particular, the restrictions contained in the conditions in that designation. There was a consensus that the Minister was acting within his authority under the CFSA in making this designation and imposing the conditions that he imposed. However, it is up to the court, according to these submissions, to determine whether Nogdawindamin has the jurisdiction to act as the applicant society in each individual case, based on the interpretation of the Minister's designation, and on the facts of each case. While the designation clearly anticipates an expanded jurisdiction of Nogdawindamin CAS in the future, the argument posed was that this expanded jurisdiction did not exist at present, and the present jurisdiction should determine whether or not a proceeding is transferred.

[52] Respondents' Position – Caution Regarding Untested Organization

These submissions touched on the interpretation of the word "members" and what that should mean for purposes of these transfer motions. It also pointed out, by way of examples, areas where an order giving the new society carriage of a child protection proceeding effectively transfers to Nogdawindamin CAS discretion previously entrusted by way of existing orders to Algoma CAS. They caution that the court should not lightly place such level of trust in an untested organization with no track record as a children's aid society.

[53] Internal Transfer of Files

One other matter that is common to all of these child protection files and to the transfer motions is the fact that Algoma CAS has already transferred the child protection "files" to Nogdawindamin CAS starting from approximately May 2016. The child protection workers on all of these cases are now Nogdawindamin CAS workers. The responsibility for the entirety of child protection services has been case managed by Nogdawindamin CAS personnel. In short, Algoma CAS has internally divested itself of these proceedings although it is still the named applicant and still has obligations imposed by court order or orders made in these cases. This internal transfer process pre-dated the date of April 1, 2017 which is the date that Nogdawindamin CAS effectively became a children's aid society.

Current Motion

[54] The Child S.R.

The current motion to transfer is brought in a status review proceeding that involves the child S.R., age 2. This child was identified pursuant to s.47(2) CFSA as an Indian child. She is apparently either a formal member of G[…] First Nation, or is entitled to be a member.

[55] Father's Status

S.R.'s father is D.T.J. who is an Indian person whose name is on the band membership list for G[…] band. It is, presumably through her father, that S.R. is entitled to be (an Indian registered under the Indian Act and entitled to be) a band member of G[…] band. There is no evidence of the location of the residence of the father D.T.J.. However, his address for service in the name of the proceeding is shown as Sault Ste. Marie.

[56] Mother's Status

S.R.'s mother is J.R.. She is not an Indian person under either the Indian Act or the CFSA. However, the evidence filed by the society indicates that J.R. "has First Nation heritage but is not eligible to be registered with M[...] First Nation". It also describes J.R. as "non-status but associated with M[...] First Nation". There is no evidence of J.R.'s residence other than her address in the name of the case which places it in Sault Ste. Marie. How she may be "associated" with M[...] First Nation or how she has First Nation heritage is not set out in the evidence.

[57] Band Representative as Party

Because S.R. is an Indian child, there is a band representative from G[…] First Nation band who is, by statute, a party respondent in this case.

[58] Status Review Proceeding

The case in which this motion is brought is a status review case. The child S.R. was found to be a child in need of protection on March 11, 2016 and was placed in the care and custody of her mother, J.R., subject to a 12 month supervision order, and with access to her father. There is no evidence of where the access of the father, if any, takes place. Nor is there any of where the mother's access takes place. It is, however, all supervised. The present status review was commenced on April 26, 2017 and seeks an order placing the child with K.S., subject to a 12 month supervision order. K.S. is the paternal grandmother of a half sibling (H.S.) of S.R., but is not a member of S.R.'s family, extended family and is not a relative of S.R.. There is no evidence as to whether K.S. is an aboriginal person or where she lives.

[59] Nogdawindamin CAS Jurisdiction – Paragraph 1

Does Nogdawindamin CAS have the jurisdiction under its designation to carry out its mandate as a children's aid society in this case? G[…] First Nation is one of the seven listed First Nations in Paragraph 1 of the designation. The G[…] reserve is also listed as a reserve in paragraph 1 in which Nogdawindamin CAS has jurisdiction to act as a society and to carry out its society functions. That jurisdiction is exclusive because whatever jurisdiction Algoma CAS formerly had on the G[…] reserve was removed by the Minister by an amendment to its own designation as a society. This should be sufficient to meet the jurisdictional hurdle in this transfer motion.

[60] Residence of Parties

However, what evidence is there that there will be any children's aid society function carried out on the G[…] reserve? Where the child S.R. presently resides is unknown as the society has not mentioned this in its evidence on this transfer motion. She was residing with her mother J.R., who does not reside on the G[…] reserve. Nor does the father, D.T.J.. Nor does K.S., the paternal grandmother of H.S. (S.R.'s half sister) with whom it is the Algoma's society's intention to place S.R.. Everyone in this case appears to reside off reserve, except perhaps the G[…] Band representative.

[61] Indian Child Status and Special Protections

Notwithstanding this tenuous tie with the G[…] reserve, the fact remains that S.R. has been identified as an Indian child with G[…] First Nation as her Indian band for membership purposes. Given this status, regardless of where children's aid society services will actually be delivered, S.R. is entitled to all of the special, and in some cases, preferential treatments that the CFSA provides to Indian children and Indian families. The CFSA specifically provides in paragraph 5 of subsection 1(2) that services to Indian children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. Algoma CAS is as bound by this declaration of recognition as is Nogdawindamin CAS. However, as a native children's aid society, it is not a difficult inference that Nogdawindamin CAS is better able to provide such services than is a non native agency such as Algoma CAS. This is particularly so should G[…] reserve become a more prominent venue for delivery of society services in the future than it appears to be at present. Algoma CAS does make a point that it no longer has jurisdiction to provide society services on the G[…] reserve. Moreover, this declaration recognizes that Indian and native people should be entitled to provide their own child and family services, wherever possible. The designation that gave Nogdawindamin CAS status as a children's aid society is a governmental statement that this possibility has materialized in the areas of its jurisdiction.

[62] Paragraph 2 Not Applicable

Paragraph 2 of the designation does not apply in this case as no one is in Sudbury District.

[63] Paragraph 3 Potentially Applicable

Paragraph 3 of the designation may also apply in the case of the father if he is, in fact, living off reserve. It may apply to S.R. as well if "member" means actually on the band membership list, and her name is on that list. The evidence is vague.

[64] Paragraph 4 Not Applicable

Paragraph 4 does not apply to the father or to the child as they are not aboriginals "other" than those First Nations listed in paragraph 1 of the Nogdawindamin CAS designation. As for the mother, she is not, according to the evidence, a First Nation member, and not an Indian person. Moreover there is no evidence that she is Inuit or Métis. Her "association" with M[...] First Nation, or her "non status" with this First Nation, does not bring her within the boundaries of paragraph 4 of the designation of Nogdawindamin CAS. This paragraph is currently inoperative in providing any jurisdiction.

[65] Decision

For the reasons set out above, the motion claim of the Algoma CAS to transfer this status review case to Nogdawindamin CAS is granted. An order will go in the form provided as a draft order.

Released: May 31, 2017

Signed: Justice John Kukurin

Appendix A-1, Designation and Designation Amendments, follows.

Footnotes

[1] The Minister is authorized to approve agencies for the provision of services short of services that would be within the scope of a children's aid society. This authorization is provided under s.8(1) of the Child and Family Services Act. S. 8 (1) Where the Minister is satisfied that an agency is, with financial assistance under this Part and the regulations, financially capable of establishing, maintaining and operating a service and that its affairs are carried on under competent management in good faith, the Minister may approve the agency to provide that service.

[2] S. 15 (2) The Minister may designate an approved agency as a children's aid society for a specified territorial jurisdiction and for any or all of the functions set out in subsection (3), may impose terms and conditions on a designation and may vary, remove or amend the terms and conditions or impose new terms and conditions at any time, and may at any time amend a designation to provide that the society is no longer designated for a particular function set out in subsection (3) or to alter the society's territorial jurisdiction. R.S.O. 1990, c. C.11, s. 15 (2).

[3] S.15 (3) The functions of a children's aid society are to,

(a) investigate allegations or evidence that children who are under the age of sixteen years or are in the society's care or under its supervision may be in need of protection;

(b) protect, where necessary, children who are under the age of sixteen years or are in the society's care or under its supervision;

(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

(d) provide care for children assigned or committed to its care under this Act;

(e) supervise children assigned to its supervision under this Act;

(f) place children for adoption under Part VII; and

(g) perform any other duties given to it by this or any other Act. R.S.O. 1990, c. C.11, s. 15 (3).

[4] I use the term "native societies" in only a descriptive manner for convenience of reference, mainly to distinguish them from non-native agencies. It is very clear, even for those who are not aware of their respective ministerial designations, that they are native agencies from their names, which are quite distinctively native in origin. Names such as Payukotayno, Tikanagen, Kina Gbezhgomi and Nogdawindamin are very typical. Some are less so such as Dilico. Some, such as the Native Children's Aid Society of Toronto, are clearly native from the self evident meaning of their name.

[5] S.1 (2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1.

[6] Nogdawindamin Family and Community Services became a society effective April 1, 2017 and follows Kunuwanimano Child and Family Services, effective May 1, 2015, and Kina Gbezhgomi Child and Family Services, effective April 1, 2015

[7] This ousted the jurisdiction of Kina Gbezhgomi C&FS as well as that of Sudbury-Manitoulin CAS in the First Nation reserve of Atikameksheng Anishnawbek at Whitefish Lake #6 and gave it exclusively to Nogdawindamin CAS.

[8] See, for example, Gehl v. Canada (Attorney General), 2017 ONCA 319, [2017] O.J. No. 1943 (ONT CA); Catholic Children's Aid Society of Hamilton v. G.H., [2016] O.J. No. 5233 (Chappel J., Ont SCJ).

[9] The CFSA imposes on the court an obligation to make at least a temporary care and custody order the first time that a child protection case is before the court, and to ensure that a protection order of some kind remains in place throughout the balance of the proceeding. The same applies to a status review proceeding. Although it is possible, it is very rare for a child to be returned and to remain with its care giver and custodian throughout such proceedings with no society obligation judicially imposed by way of one of the available protection orders.

[10] See Appendix A-1 for the Designation of Nogdawindamin Family and Community Services as a children's aid society

[11] First Nations, Inuit and Métis persons are included in the term "Aboriginal" in Canada. It is difficult to imagine who else may fall under that term. See the Constitution Act, 1982

S.35(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. In these Reasons, I deliberately avoid Inuit or Métis as the transfer motions involve only First Nations considerations.

[12] In Sault Ste. Marie, Ontario, there are First Nations people who belong to Indian bands in Michigan, USA but live in Algoma District. The Michigan Chippewa Indians are historically related to the Ontario Ojibway Indians dating back to the days when there was no Canada – USA boundary.

[13] "native person" means a person who is a member of a native community but is not a member of a band, and "native child" has a corresponding meaning;

"native community" means a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services)

The Minister of Children and Youth Services has only designated thirteen (perhaps 14) native communities. See Children's Aid Society of Halton Region v. M.M., 2016 ONCJ 323, [2016] O.J. No. 2897 (Starr J., Ont CJ) at paragraphs 51 to 57 for a judicial overview of what includes a "native community" under the CFSA. In the transfer motions before this court, there is no child who is identified as a member of a native community.

[14] See THE CHILD AND FAMILY SERVICES ACT (Ontario) and REGULATIONS PROVISIONS RELATING TO INDIAN AND NATIVE CHILDREN, Pelletier J. and Neill J. presented at Ontario Court of Justice annual Family Law Conference, September 2015 – which outlines in specific sections of the CFSA, the extensive obligation that arise when child is identified as an Indian child.

[15] The substitution of a new applicant society may have an impact on both parties and children in existing proceedings. For cases with children in foster care, for example, the foster homes may be changed to foster homes of the new society. These may create access difficulties for parents of these children. The child protection workers may change to those of the new society. The access supervisors may change as well. Perhaps these may be changes for the good. But may equally be problematic.

[16] Anecdotally, it appears that she has a family member, possibly her father, who is a band member of M[…] First Nation.

[17] (2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1.

[18] While Algoma CAS no longer has "jurisdiction" on the lands which were removed from its designation contemporaneously with Nogdawindamin CAS being given jurisdiction over those same lands, it should be noted that Nogdawindamin has jurisdiction which is also limited, and the argument may be made that it too is precluded from providing its children's aid society services in areas that are not within the boundaries of its current jurisdiction. For example, if all of the parties are not on G[…] reserve in this case, what authority does Nogdawindamin CAS have to provide services to any of them off this reserve?