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: October 15, 2018

Court File No.: Sault Ste. Marie File No. 251/13

Between:

Children's Aid Society of Algoma, Applicant

— AND —

J.R. and D.S., Respondents

Before: Justice John Kukurin

Heard: October 10, 2018

Reasons for Judgment Released: October 15, 2018

Counsel

Jennifer Mealey — counsel for the applicant society

Shadrach McCooeye — counsel for the respondent father, D.S.

Lynn Tegosh — counsel for the respondent mother, J.R.

KUKURIN J.:

Introduction

[1] This is a decision under s.90(2)(b) of the Child, Youth and Family Services Act (CYFSA) on the statutory identification determination required by this subsection.

[2] The child's H. is now age 6 years and is the subject of a Status Review Application. She was earlier identified in a previous Child Protection Application brought under the Child and Family Services Act (CFSA) as not being an Indian or a native child. That identification finding is now more or less meaningless.

[3] Section 12 of Ontario Regulation 157/18 provides:

O. Reg 157/18 S.12. Despite any determination made under clause 47 (2) (c) of the old Act in respect of a child who is the subject of a proceeding mentioned in subsection 11 (1) of this Regulation or a proceeding commenced under Part V of the Act, the court shall, as soon as practicable, determine under clause 90 (2) (b) of the Act whether the child is a First Nations, Inuk or Métis child and, if so, determine the child's bands and First Nations, Inuit or Métis communities

[4] This requires the court to make a determination of the child's First Nation, Inuit or Metis (FNIM) status under s.90(2)(b) of the CYFSA even though a CFSA identification finding was earlier made for the same child.

Identification Findings – Step 1 – Is the child FNIM?

[5] The identification findings are different under the CYFSA than they were under the CFSA. The rules that apply to such identification findings are also different. Moreover, they are found mainly in regulations made under the CYFSA rather than in the CYFSA statute itself. These regulations require a two step procedure. The first is to determine if the child is a FNIM child. The second is to identify the child's band if the child is found to be a First Nation child.

[6] The Inuit and Metis findings for a child are currently of little or no consequence, since a pre-requisite for such findings is that the child is a member of or identifies with an Inuit community or a Metis community. However, the only Inuit community or Metis communities recognized under the CYFSA, or any regulations made under it, are those that are listed by the Minister pursuant to s. 68 CYFSA. The minister has listed none to date. Accordingly, this (and any similar identification findings) are only concerned with whether the child is a First Nation child.

[7] The first Regulation is O. Reg 155/18 and, specifically s. 1:

S.1. A child is a First Nations, Inuk or Métis child for the purposes of the Act if,

(a) the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;

(b) the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or

(c) it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,

(i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or

(ii) there is a connection between the child and a band or a First Nations, Inuit or Métis community

[8] There is no evidence that the child identifies herself with any First Nation.

[9] There is evidence that the mother of the child identifies the child as a First Nation child. She does so through her verbal statement through her counsel to the court to that effect. The mother also states that the child identifies with her (ie the mother's) First Nation which is the Michipicoten First Nation. The mother states that she, herself, is seeking "Indian" status through the federal Indian Affairs department to whom she has submitted an Application, and is seeking to become shown on the band membership list of Michipicoten Band. Moreover, the child's mother states that her father, who is the child's maternal grandfather, is a member shown on the band membership list of Michipicoten Band. From this information, it is evident that the child's identification with Michipicoten Band by the mother of the child is primarily through the child's maternal family ties [1] which are, from the child's point of view, familial, and not necessarily active ties. In other words, the child identifies with Michipicoten First Nation because her mother does and her maternal grandfather does, just as a child might identify with its mother's and its maternal grandfather's religious denomination or political preference, and not necessarily because the child is active in such denomination or political party. Accordingly, the child is a First Nation child pursuant to O. Reg. 155/18 s.1(a) because the child's parent, i.e. the child's mother, identifies the child as a First Nation child.

[10] If I am incorrect in this finding, the child is also a First Nation child pursuant to O. Reg 155/18 section 1(c). This provision has a pre-requisite that the court is unable to determine whether the child is a First nation child under clauses (a) or (b) of s.1 of this regulation. If such be the case, (namely, if my finding under O. Reg. 155 /18 s.1(a) is incorrect), all that the court requires is "information" that demonstrates that a relative of the child or a sibling of the child identifies as a First Nation person. For the subject child in this case, the court has information that she has both a relative, namely her paternal grandfather, as well as a half sibling, her sister S., who are on the membership lists as members of bands. The fact that these persons are members is more than sufficient for me to infer that they "identify" with their respective bands. The fact that their bands are not the same for the grandfather and the half sibling is irrelevant to the judicial finding that the child is a First Nation child. I am still dealing with this first step in the identification finding.

[11] "Relative" in respect of a child is defined as including a grandfather. [2] A half sibling is not described by statutory or regulatory definition. A dictionary definition of a sibling includes someone who shares both parents or one parent. I accept that a half sibling is a "sibling" as that term is used in O. Reg. 155/18. Accordingly, the child is a First Nation child under s.1(c)(i) of O. Reg 155/18.

[12] If I am not correct in this alternative finding, I still find the child to be a First Nation child under s.1(c)(ii) of O. Reg 155/18. This requires only "information" that demonstrates that there is a "connection" between the child and a Band. This does not mean that this connection must be reciprocal between the band and the child. In this case, there is considerable information that the child is a sibling of her half sister S. and a daughter of her mother, both of whom have ties to different bands. This is while the child was either living with her mother, or having access to her mother and contact with her sister. The word "connection" is not defined in the CYFSA or in any regulation made thereunder. Nor is it quantified or qualified in any way. It could conceivably be a very weak connection. I have sufficient information, particularly in the mother's most recent affidavit that the child's half sister is back in the care of their mother. I have information that the mother exercises access to the child and that the half sister has contact with the child. That is sufficient connection. Accordingly, I find that the child is a First Nation child under O. Reg 155/18 s.1(c)(ii).

Identification Findings – Step 2 – What is the Child's Band?

[13] Once a finding is made that the child is a First Nation child, the court must then identify the child's First Nation band or bands. The identification of the band(s) of a child found to be a First Nation child is dealt with by both the CYFSA statute as well as by O. Reg. 156/18. Subsection 2(4) of the CYFSA statute deals with references in the CYFSA to a child's band.

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

It is only fitting that a child's band(s) be identified first by reference to the statute if that is possible.

[14] There is regulatory guidance, at least with respect to determining with which band a First Nation child identifies. This is in O. Reg. 156/18:

O. Reg 156/18 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.

[15] In the present case, the child is not a member of any band.

[16] In the present case, the child is not a member of a First Nation, Inuit or Metis community.

[17] In the present case, the child does not identify with a First Nation, Inuit or Metis community as none of these currently exist for purposes of identification of a child under s.90(2)(b) CYFSA.

[18] The sole manner in which the child's band can be determined is by determining the band with which the child identifies.

[19] Fortunately, section 21 of O. Reg. 156/18 provides the rules for making such determination.

[20] In the present case, the child has not indicated any band or bands with which she identifies. Whether she is able to give such indication at age six years is not a question that this court can answer on the basis of the current evidence. So far as is known, no one has ever asked her. Moreover, she has no OCL counsel representing her, and there is no Voice of the Child Report in existence or contemplated. In short, her views seem to be unascertainable on this point.

[21] If it is correct that the child's views are not ascertainable, the court has to look at the parents of the child to see if they have given any indication of the band or bands with which the child identifies.

[22] Although it is not a clear cut and unequivocal indication, the mother has provided what I infer to be a sufficient indication that the child identifies with the Michipicoten band which, as I had previously mentioned, is the band of which the child's maternal grandfather is a member. It is also the band, of which the mother of the child aspires to be a member. It is clearly the band with which the child's mother identifies, and who does so vicariously or by unofficial proxy for the child.

[23] Accordingly, pursuant to s.21(2) of O. Reg 156/18, I find that the child's band is the Michipicoten band.

[24] The only other question is whether a finding can be made that the child's band is also another band. The only other reasonable candidate would be the Garden River band. This is the band of which the child's half sister, S. is a registered member, a fact confirmed by her Garden River membership card filed in this proceeding. S.'s biological father is the person through whom S. has First Nation status and membership, and he is not the same person as the biological father of the child H.

[25] Unfortunately or fortunately, depending on one's viewpoint, the rules regarding determination of the band of a First Nation child are fairly clear. Only a parent is able to give the indication required by s.21(2) of O. Reg. 156/18. The child has only two parents in this case. The father has given no indication of any band with which the child identifies. The mother's indication is that the child identifies with the Michipicoten band, for the reasons stated above. She does not indicate that the child identifies with the Garden River band. At most, she attests to the fact that the child's half sibling identifies with Garden River band. The reasons that the child identifies with the Michipicoten Band are not reasons that the court finds would support an inference that the child identifies with the Garden River band. In short, on the information before the court, the child's only connection with the Garden River band appears to be that she has a half sister who is a member of that band. That is not enough.

[26] Accordingly, the child H. is found to be a First Nation child and her band is identified as the Michipicoten band. A band representative from the Michipicoten band is a statutory party in the case involving H. and should be added as a party respondent. Exhibit 1 will be the affidavit evidence of the mother sworn October 10, 2018 and filed on this identification hearing.

Released: October 15, 2018

Signed: "Justice John Kukurin"

Footnotes

[1] In O. Reg 156/18 there is section 2 which deals with a child's identity characteristics:

S. 2. In this Regulation, a reference to a child's identity characteristics means a reference to the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity, gender expression or cultural or linguistic needs.

This provision applies to this regulation only, and only applies to any reference to a child's identity characteristics in this regulation. There is no reason to export this section or its application to the CYFSA statute or to any other regulation made under that statute, especially when the parameters of its applicability are so clearly spelled out.

[2] CYFSA S.2 (1) "relative" means, with respect to a child, a person who is the child's grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption; ("membre de la parenté")