WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re identifying child.

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

87.— (9) Prohibition re identifying person charged.

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

142.— (3) Offences re publication.

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

Court Information

Ontario Court of Justice

Date: 2018-07-04

Court File No.: Sault Ste. Marie File No. 87/17

Between:

Children's Aid Society of Algoma, Applicant

— AND —

A.B., R.S., B.D., Respondents

Before: Justice John Kukurin

Heard on: June 27, 2018

Reasons for Judgment released on: July 4, 2018

Counsel

• Jennifer Mealey — counsel for the applicant society
• No one — for the respondent mother, A.B.
• Eric McCooeye — for the respondent father, R.S.
• Trevor Simpson — counsel for the respondent added party, B.D.

KUKURIN J.:

Introduction

[1] This is a decision on identification of the child T. pursuant to s.90(2) of the Child, Youth and Family Services Act (the CYFSA). The child was identified on May 18, 2017 under s.47(2) of the former statute, the Child and Family Services Act (the CFSA) which was replaced on April 30, 2018 by the present statute. The identification with respect to a child's Indian or native status under the former CFSA is different than the identification required under the CYFSA. As a result, it has become necessary to re-identify the child under the current CYFSA.

[2] The CYFSA no longer refers to Indians or native persons. Rather, it treats aboriginal persons as a distinct group of this country's population and divides the aboriginal population into three subgroups: First Nation, Inuk and Metis.

[3] The CYFSA, in s.90(2)(b), requires the court to identify the child as being a child of one of these groups:

S.90 (2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child's bands and First Nations, Inuit or Métis communities;

First Nation, Inuit, Metis Communities

[4] There is no explicit definition of a First Nations child, nor of an Inuit child, nor of a Metis child contained in the CYFSA.

[5] However, there are definitions of First Nations, Inuit and Metis communities. The statutory definition is exhaustive; only those that fit within the definition qualify.[1] The definition is in s.2(1) CYFSA:

S. 2 (1) In this Act

"First Nations, Inuit or Métis community" means a community listed by the Minister in a regulation made under section 68

[6] To date, there is only one community listed by the Minister under s.68. It is an Inuit community, and that designation is not in force until July 1, 2019 in any event.[2] Accordingly, a child cannot currently be identified as being a First Nations child or an Inuit child or a Metis child by virtue of:

(a) either being a member of, or

(b) by virtue of identifying with, any such communities

for the reason that no communities now exist for s.90(2)(b) identification purposes.

[7] The method of identification is of some importance. The CYFSA does not define what being a "member" means in relation to these communities. Nor does it define what "identifies" means with respect to these communities. However, the CYFSA uses these two words in setting out how a child is determined to fall within the category of a First Nation child, an Inuit child or a Metis child for purposes of, among other things, a s.90(2)(b) identification finding. These words are found in s. 2(4) of the CYFSA:

S. 2 (4) In this Act, a reference to a child's or young person's bands and First Nations, Inuit or Métis communities includes all of the following:

1. Any band of which the child or young person is a member.
2. Any band with which the child or young person identifies.
3. Any First Nations, Inuit or Métis community of which the child or young person is a member.
4. Any First Nations, Inuit or Métis community with which the child or young person identifies.

Member of a Band

[8] Subsection 2(4) does not restrict itself to a First Nation, Inuit or Metis community. It also refers to any "band" of which a child is a member. The word "band" is also defined in s.2(1) CYFSA. The CYFSA definition simply refers to a definition that is found in the federal Indian Act in its own s.2(1):

CYFSA (RSO) s.2(1) — "band" has the same meaning as in the Indian Act (Canada);

Indian Act (RSC) s.2(1) – "band" means a body of Indians

(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,

(b) for whose use and benefit in common, moneys are held by Her Majesty, or

(c) declared by the Governor in Council to be a band for the purposes of this Act; (bande)

[9] The mandate in s.90(2)(b) imposed on the court is to determine whether a child who is the subject of a child protection proceeding is or is not, a First Nation, or Inuit or Metis child. It is only if the child is identified as one of these that the court is mandated to go further and to identify the child's "child's bands and First Nations, Inuit or Métis communities".

[10] This is an interesting legislative direction as the initial task imposed by s.90(2)(b) does not mention a child's band. It only requires the court to determine if the child is a First Nation, Inuit or Metis child. It is abundantly clear that the Inuit and Metis communities are distinct from First Nation communities. Moreover, Inuit and Metis communities do not have "bands" which comprise those communities, at least not the kinds of "bands" that are defined in the CYFSA. Accordingly, it appears that only if a child is identified as a First Nation child does the further identification requirement arise, namely, to identify the child's band or bands.

[11] This presumes, of course, that a "band" is synonymous with "First Nation", or at least that a First Nation is comprised of one (or more) "band". There is no definition of a "First Nation" in the CYFSA, nor for that matter in the federal Indian Act. I assume that a "First Nation" is a "band" by another name. Accordingly, when a court is directed by the statute to determine if a child is a First Nation child, I take this to be a direction to determine if the child is an Indian band child.

[12] The peculiar thing about "bands" is that they must all have a "band list" on which is to be entered the name of every person who is a member of that band.

Indian Act RSC — S. 8 There shall be maintained in accordance with this Act for each band a Band List in which shall be entered the name of every person who is a member of that band

[13] The band list is maintained either by the band itself, or if it has not yet assumed control of its membership, by the Registrar appointed under the Indian Act to maintain membership lists for such bands.

[14] It should theoretically be relatively simple to determine if a child is a member of a particular band. Simply ask the person in the band office who is tasked with maintaining the band membership list if the child's name is on the band list. If it is not, the child is not a member.

[15] While this is a logical approach, it is not necessarily a fair approach. Some children who are the subject of a child protection proceeding may be entitled to become members of a band but are not yet entered on the band membership list for a variety of reasons.[3] Why is not all that important, but the net result is that the child who may be entitled to band membership will lose out on all of the benefits that the CYFSA offers to children who are band members, benefits that the statute does not make available to others.

[16] The membership criteria of one band are not necessarily the same as the criteria to be a member of a different band. In fact, the court does not know what are the criteria for membership for any particular band. Nor does the court know whether a child who does not happen to be on a band list as a band member meets all of the criteria for membership of that band.

[17] The court acts on evidence. It relies on the parties to introduce that evidence in the case before it. With respect to membership, that evidence should be relatively easy to obtain and place before the court. Membership means that the name of the child is on the membership list of the band. Entitlement to membership in a band is not equivalent to, or a substitute for, membership. Being a member means actual membership. While this may seem a very restricted approach to the identification of a child as a First Nation child, it is in line with the actual wording of the legislation. This legislation gives no other guidance on who a member of a band actually is except someone that is on the band's list of members.

[18] This was not the case with the former CFSA where a child could be identified as an Indian child on the basis of that child's entitlement to be registered as a member of a particular band, which in turn was often based on that child's entitlement to be registered as an Indian person with the Department of Indian Affairs and Northern Development. The definition of an "Indian" under the CFSA had the same meaning as in the federal Indian Act. The Indian Act definition is:

S.2(1) "Indian" means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.

[19] Registration under the Indian Act meant registration in the Indian Register.

S.2(1) "registered" means registered as an Indian in the Indian Register.

The Indian Register is basically a listing kept in the Department of Indian Affairs and Northern development under s.5(1) of the Indian Act:

S.5 (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act.

[20] However, not every person who is entitled to be registered as an Indian has his or her name in the Indian Register. Section 5(5) provides:

S.5(5) The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar.

[21] Accordingly, a child could be identified under the CFSA as an Indian child if his or her name was registered in the federally kept Indian Register, either as a registered Indian person, or as a person entitled to be registered as an Indian. This was the customary approach to identification of a child under s.47(2) CFSA.

S. 47 (2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(c) whether the child is an Indian or a native person and, if so,

the child's band or native community

[22] Because the CFSA imported the same definition of Indian into its provisions, entitlement to be registered as an Indian person (in the Indian Register), as opposed to actual registration as an Indian person, was a second way in which a child could be identified as an Indian child under the CFSA. In fact, this was often done in the past. A child was often identified as an Indian child because it was a child that was found to have been 'affiliated' with a particular Indian band. I assume that 'affiliation' was synonymous with 'entitlement to be a member" of a band.

[23] The foregoing tortuous explanation is necessary because the CYFSA is different than the CFSA. It does not expressly use "entitlement" to be registered anywhere, in any register or list, as an alternative criterion for a child being identified as a First Nation child. The CYFSA does not import the definition of "Indian" in its provisions. In fact, Part V, dealing with "Child Protection" nowhere even mentions the word "Indian". The CYFSA does not import the concept of "entitlement" to be registered into its provisions. As far as being a member of a First Nation, or of a band, entitlement to be on the band membership list has no statutory basis for being an equivalent for being an actual member. Nor does the word "affiliation".

[24] While this may lead to unfairness in some cases, in fact, in many cases, the legislature has to draw the line somewhere in terms of membership as a pre-requisite for the s.90(2)(b) finding. The courts must follow the legislation.

[25] The bottom line is that to be a member of a band under the CYFSA, a child's name must be listed on the band's membership list as a band member.

Band with Which a Child Identifies

[26] The reference mentioned in s.2(4) CYFSA is not restricted solely to "membership" as a test to determine if a child is a First Nation child. It also includes:

Any band with which the child or young person identifies

[27] The word "identifies" is even more of a challenge for a court.

(a) Firstly, no definition in the CYFSA exists for the word "identifies". Often, there is little evidence from which the court can infer with which band a child identifies.

(b) Secondly, it is possible for a child to identify with more than one band.

(c) Thirdly, a child may identify with a band other than a band of which the child is a formal member (i.e. on the band list as a member).

(d) Fourthly, depending on the interpretation of "identifies", the child may be unable to identify because of, for example, his or her age or geographical constraints.

(e) Fifthly, it is possible that a child with absolutely no aboriginal antecedents, and who will never be granted band membership, may identify with a particular band.[4]

[28] The word "identifies" is usually seen attached to the word "with". This is how it is used in the CYFSA. The object of the identification by a child is with a "band" or "bands". It is clear that, statutorily and grammatically, the subject who must be doing the 'identifying with' is the child.

[29] From a dictionary perspective, the words "identify ... with" are the intransitive form of the verb. The dictionary meaning is "to show oneself to be committed to ..." or "to think of oneself as being one with (another person) ..."[5] The Thesaurus connotations of "identify ... with" include "relate, associate, connect, ally, link, bind, tie, couple, bring into relation with, coincide with, side with, be at one with, be involved with, sympathize with and empathize with."[6]

[30] Accordingly, for a child to identify with a band, the child must be articulating (i.e. indicating) his or her identification with the band, or must be engaging in some active behaviour, or must be expressing some opinions or sentiments from which this identification can be inferred. This would be a fact driven determination apart from the child verbalizing the band's name with which he or she identifies. It would be difficult to do without evidence.

[31] The statute may not be all that helpful. However Ont. Reg. 156/18 made under the CYFSA and entitled "Determination of bands, communities with which child identifies" provides considerable guidance to the court. It provides in s. 21:

S. 21. The bands or First Nations, Inuit or Métis communities with which a First Nations, Inuk or Métis child identifies, if any, are determined in accordance with the following rules:

1. If the views of the child can be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifies are any bands or First Nations, Inuit or Métis communities with which the child indicates that they identify.

2. If the views of the child cannot be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifies are any bands or First Nations, Inuit or Métis communities that a parent of the child indicates are bands or communities with which the child identifies.

[32] This regulation requires the court to determine the band, or bands, with which a child identifies from what the child "indicates", but this is contingent on whether the views of the child are ascertainable. While it may be trite, it is also dependent on the evidence of the child's indication being before the court, as well as sufficient evidence that the child's views are ascertainable. In this regard, a Voice of the Child report, or the position of the child's legal representative may be of great assistance. The up side is that the indications of a child whose views are ascertainable relating to with which band he or she identifies is determinative in terms of a s.90(2)(b) identification. There does not seem to be any room for a contrary or a contradictory position on this point from any other person or party (including the band itself).

[33] If, however, the child's views are not ascertainable, then a "parent" of the child may indicate the band or bands with which the child identifies. That indication is again determinative for purposes of a s.90(2)(b) identification.[7]

[34] This is not that difficult to obtain. One need only to ask the parent. But problems are not only foreseeable, but realistically inevitable. Biologically speaking, every child has two parents. These parents may differ in their indications as to with which band/bands the child identifies. Luckily, the CYFSA seems to contemplate that a child may identify with more than one band.

[35] However, the CYFSA has an expanded definition of who is a "parent" and, as Ont. Reg. 156/18 is made pursuant to the CYFSA, it is logical to assume that the statute's definition of "parent" is the same as the one that applies in Ont Reg 156/18. There may be many statutory parents of a child in a child protection case.[8]

[36] It would not be appropriate to limit the indication of with which band the child identifies to only the child's biological parents. That indication may be made by anyone who is a parent to the child, even a non-biological parent. If made, they are equally determinative.

Summary

[37] In summary, I suggest the following steps may be followed by a society which starts a child protection application for a child. When there are multiple children who are the subjects of the application, these steps would apply to each.

• Check Regulation 159/18 to determine if the Minister has made any changes to the list of First Nation, Inuit or Metis communities.[9]

• Check with the 'parents' whether the child's name is on any band membership list as a member of that band.

• Check with the person at the band office to corroborate if the information from a parent as to the child's being on that band's membership list is correct.

If the information is correct, that is determinative that the child is a member of that band. However, the society should also proceed as set out below:

1. Decide if the child's views on with which band the child identifies are ascertainable.

2. If ascertainable, ask the child its indication of with which band s/he identifies.

3. If any indication of identification with a band is given by the child, that indication is determinative. The society need go no further.

4. If unascertainable, look to the child's parents.

   (a) Determine who are the child's biological parents.

   (b) Determine who else are parents of the child by virtue of the CYFSA.

   (c) Ask each of the 'parents' for his or her indication of with which band(s) the child identifies (preferably in writing by a standard form affidavit. This would be much more credible and reliable than the same information being provided to the court by a society worker relating what the child's parent indicated to him or her).

   (d) If any indications of a child's identification with a band are given by any of the parents, those are determinative of the child's identification with a band. (even if multiple bands are identified)

   (e) If no indication is given by each of the 'parents', then the child does not identify with any band.

5. Any parent may also ascertain the child's views, and seek to provide this in evidence to the court directly. If unascertainable, they can indicate to the court directly the band with which the child identifies. This will be determinative as well (regardless of whether it is true or not).

[38] The society is the logical party to be tasked with providing the court with the information that the court requires to fulfil its mandate under s.90(2)(b) CYFSA. The society is the applicant and is always a party. It is the society that is statutorily required to investigate situations that involve the protection of children. It should know from its investigations who the children's bioparents are, and who the statutory parents are. The society has child protection workers on the front line and these are the persons in touch with the children and the parents, the persons who can generally provide the 'indications' that are needed by the court. The society also names the parties in its application and is, or should be, aware of who qualify as parents. The society actually has no say on the child's identification with a band. All that a society can do is to provide to the court what a child indicates or what a parent indicates to be the band or bands with which the child identifies.

[39] Following the legislation and the relevant regulations will result in a finding under s.90(2)(b) CYFSA that the child is, or is not, a First Nation child. The onus is on the court to identify the child. The onus is on the society first, and the respondent parents second, to provide the information to the court to enable it to do its job. Ultimately, if the information is not forthcoming, the court must still identify the child but must do so in the negative. The default position is that a child is not a First Nation child. Only, and if at least one of the requirements (member or identifies) is shown to exist to the satisfaction of the court, can the court make a finding that the child is a First Nation child, and state the name of the band of which the child is a member or with which the child identifies.

Consequences and Repercussions

[40] The biggest consequence of finding a child to be a First Nation child is that a band representative from the child's band becomes a statutory party:

S.79 (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. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.

[41] It would be better if there is to be a band representative, that such band representative is named at the outset as a party. If the identification of whether a child is a First Nation child or not is not done as soon as practicable, and if it turns out that the child does meet the criteria for being a First Nation child, the involvement of a band representative is delayed, and steps are likely to be taken in the proceeding without his or her input.

[42] In fact, the band representative as a statutory party is only one of the features that the CYFSA provides when a child is a First Nation child. There are many provisions that are preferential, or at least different, for First Nation children than for non-First Nation children.[10] One of the more recent features of child protection in Ontario is the designation of "native" children's aid societies which have aboriginal bents to services that they provide. Depending on the designation of a society and the finding under s.90(2)(b) that a child is a First Nation child, it may be that the native society would have jurisdiction rather than a non-native society. Customary care, as another example, would not ordinarily be available for a non-First Nation child.

Application to the Present Case

[43] The Child T. is not quite 14 months old.

[44] She is apparently not on the band membership list of any band. The evidence does not disclose that she is, and suggests strongly that she is not.

[45] Whether she identifies with any band is not ascertainable from T.. She is too young to indicate this.

[46] T.'s mother has advised that T. "may have native affiliation through the lineage of the maternal family" [Tab 8, Vol 3, Para 4(a)]. The mother of T. has not indicated with which band the child T. identifies or that she identifies with any band.

[47] T.'s biological father claims to have no "indigenous affiliation". He refers to his support for "T. being identified as a First Nation child" through the mother's indigenous heritage [Tab 6, Vol.3 Para 1 to 3]. The father does not indicate with which band the child T. identifies or that she identifies with a band at all.

[48] The other respondent is a non-parent added on April 30, 2018 as a party respondent on unopposed motion of the society. She is not entitled to indicate T.'s identification with any band.

[49] Based on the foregoing, my s.90(2)(b) finding is that the child T. is not a First Nation child. It matters not a whit about the mother's aboriginal lineage, or her extended family and whether or not they were ever band members, and, if so, of which band, or the father's support for a finding otherwise. These are irrelevant considerations for such a finding. If the child has any entitlement to be on a band list, one of the parents should have applied long since for membership. Being a member on the band membership list is determinative of being a First Nation child.

[50] All it would take for T. to be identified as a First Nation child is the indication, by either the mother or the father, of the band with which T. identifies, and, perversely, that is whether T. herself does or does not so "identify".

[51] Accordingly, the child T. is found not to be a First nation child. She is not a member of any band. She does not identify with any band on the evidence presented. She is neither a member of, nor identifies with any First Nation, Inuit or Metis community because none currently exist.

[52] This is likely not a popular result. The father's submissions suggested that the prime directive in statutory interpretation is to interpret in an effort to fulfil the purpose of the legislation; it should be interpreted widely and liberally, requiring only a possibility that a child identifies with a band. I presume that this possibility would be based on some evidence of the child's identification with a band. I respectfully disagree. The CYFSA and the regulations made thereunder have already made significant strides in promoting a child's best interests, and preferentially so with respect to aboriginal children. The provisions for the identification of a child under s.90(2)(b) CYFSA is admittedly not as clear cut and concise as anyone would wish. However, where the only requirement as to with which band a child identifies is simply an indication by the child (if ascertainable) or by the child's parent (if unascertainable from the child), I would say that this is a wide enough pre-requisite to cover almost any child. These indications, as I have already indicated, are determinative. While they suggest that a parent may vicariously endow his or her child with that parent's own identification with a band, that seems to be quite in keeping with the CYFSA and the regulation made thereunder. It is not much for a parent to do.

[53] It may not be a decision that is palatable to the First Nations either. In this case, I have found T. not to be a First Nation child. However, all that it would have taken was for T.'s mother to indicate that T. identifies with a particular band, and she would be a First Nation child under the identification provisions of the CYFSA. Not only would T. be a First Nation child, but the court would be forced to make a finding that the band indicated by the mother was the "child's band" under s.90(2)(b) CYFSA. I also note that if a band representative is not named as a party by the applicant society, then the identification findings may result in that band representative becoming a party, perhaps unwillingly, and certainly without the opportunity to make any representations to the court on identification of the child. On the other hand, a band representative who is or becomes a party is not obliged to file an Answer and Plan of Care, nor to participate in the case.

Released: July 4, 2018

Signed: "Justice John Kukurin"

Footnotes

[1] I interpret the word "means" as used in the s.2(1) definition of First Nation, Inuit or Metis community at face value, namely that it means that the things it is defining is what follows the word "means", and further that it means only those things and no others.

[2] ONTARIO REGULATION 159/18

S. 1. (1) This Regulation establishes the list of First Nations, Inuit and Métis communities referred to in subsection 68 (1) of the Act.

(2) The following are First Nations, Inuit or Métis communities for the purposes of the Act:

1. Inuit Tapiriit Kanatami

Note: THIS REGULATION IS NOT YET IN FORCE. It comes into force on July 1, 2019.

[3] To become a band member, an application almost invariably has to be made to the band by the person seeking membership. Some such persons are newborns or infants or even young persons who are not aware of their entitlement to apply, or even if they are entitled to membership. The adult persons who have custody of such individuals may decide not to submit an application for them, for one or more reasons known only to themselves. These may include mental inertia, ignorance on their own part of the application process or of the child's entitlement, estrangement from their own band, lack of identification with their own band, and separation from the other bioparent of the child through which bioparent the child may have an entitlement to become a member of that bioparent's band.

[4] For example, a mother may have had a succession of three male partners with each of whom she has had at least one child. The most recent (father 3) may be an aboriginal (First Nation) man. The mother may reside with him and all three of her children on band reserve lands. The entire family could have utilized band services, received benefits while there. It may have observed traditional First Nation customs, have participated in cultural events, maybe even have learned the First Nation language. If the mother is ethnically British, and father 1 is Egyptian and father 2 is Italian, the progeny of their union are not going to qualify as Aboriginal nor as First Nation on the basis of birth family. The older children could arguably claim that they "identify with" the band on whose lands they are residing, as could their parents. They could thus be identified as First Nation children.

[5] The New Lexicon Webster's Encyclopedic Dictionary (Canadian Edition) – Lexicon Publications 1988

[6] Roget's International Thesaurus (Fourth Edition) – Harper & Row, Publishers 1977

[7] What if the child does not indicate with which band it identifies, or the child's views are not ascertainable (because of age, for example), and the parents don't give any indication of with which band the child identifies? Does the inquiry stop there and make a finding that the child is not a First nation child? Or does the court look at evidence of what the child's actual relationship with the band has been historically, and is at present, to decide if this is sufficient for the court to conclude that the child identifies with the band?

[8] S. 74(1) "parent", when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children's Law Reform Act.

2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7 (2) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.

3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.

4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.

5. An individual who has lawful custody of the child.

6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual's family, or has acknowledged parentage of the child and provided for the child's support.

7. An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.

8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children's Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force.

[9] Once the Minister adds to the list of First Nation, Inuit or Metis Communities pursuant to s.68 CYFSA, there will necessarily be more involved in identifying the child under s.90(2)(b) CYFSA. These Reasons are based on there being only the current list, which include none of these communities.

[10] See "Provisions Relating to Indian and Native Children" presented by Justice Joyce L. Pelletier and Justice Katherine Stacy Neil to Ontario Court of Justice education seminar (September 2015) for examples of such provisions. Although the authors were drawing these provisions from the CFSA, many of the same provisions are still in the new CYFSA under different section numbering.