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.

(8) Prohibition re identifying child.

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

(9) Prohibition re identifying person charged.

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

142.— (3) Offences re publication.

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

Court Information

Ontario Court of Justice

Date: 2019-04-10

Court File No.: Sault Ste. Marie 226/18

Between:

Children's Aid Society of Algoma Applicant,

— AND —

A.W. and B.S. Respondents

Before: Justice J.P. Condon

Heard on: March 26, 2019

Reasons for Judgment released on: April 10, 2019

Counsel

• John Rossi — counsel for the applicant Children's Aid Society of Algoma
• Shadrach McCooeye — counsel for the respondent A.W.
• Murdoch Carter — counsel for the respondent B.S.
• Sarah Bujold — counsel for Nogdawindamin Family and Community Services
• Darlene Corbiere — Band Representative for the Batchewana First Nation

Part One – Introduction

[1] The Children's Aid Society of Algoma (the Society) has brought a motion (Volume 1, Tab 12) in relation to the child, L.M.W.S., born […], 2018 seeking the following relief:

1. An order determining whether the child, L.M.W.S., born […], 2018, is a First Nation's child and, if so, whether the child identifies with the Batchewana First Nation.

2. In the event that the child, L.M.W.S., is found to be a First Nation's child and to identify with the Batchewana First Nation:

   (a) An order adding Batchewana First Nation as a party respondent to this proceeding.

   (b) An order transferring the conduct of the application/proceeding to Nogdawindamin Family and Community Services as applicant and which proceeding shall continue as though commenced by Nogdawindamin Family and Community Services.

   (c) An order amending the title of proceedings so as to remove the Children's Aid Society of Algoma as applicant and substituting Nogdawindamin Family and Community Services as applicant.

   (d) An order that the order of Justice J.P. Condon dated December 21, 2018 continue as it relates to the child, L.M.W.S., born […], 2018, with the Children's Aid Society of Algoma replaced by Nogdawindamin Family and Community Services.

   (e) An order transferring the interim care of the child, L.M.W.S., born […], 2018, from the Children's Aid Society of Algoma to Nogdawindamin Family and Community Services.

   (f) An order removing John Rossi as counsel of record and appointing Sarah Bujold as counsel of record for Nogdawindamin Family and Community Services.

[2] When the motion was heard, counsel for the applicant Society and each respondent parent made submissions. Counsel for Nogdawindamin Family and Community Services (Nogdawindamin) also made submissions. The band representative of the Batchewana First Nation (Batchewana FN) also made submissions. The last two submissions had the consent of the parties and it was appropriate that they be heard given the potential ramifications of the outcome of the motion.

[3] The decision was reserved and the following are the Reasons for Judgment arising from that motion.

Part Two – Background

[4] The respondents, A.W. and B.S., are the biological parents of L.M.W.S., born […], 2018.

[5] On December 18, 2018, the child was removed from the care of the mother and the father by the Society without a warrant and the child was brought to a place of safety.

[6] On December 20, 2018 the Society brought a protection application and that application was before the court on December 21, 2018. On that date, I made an interim without prejudice order placing the child in the temporary care and custody of the Society. The order also provided the parents with access to the child. That access order contained a mandatory minimum number of hours of access for the child and the parents and also contained multiple terms and conditions applicable to the parents during the exercise of any access.

[7] The interim without prejudice order made on December 21, 2018 continues to be in effect.

[8] That order contains the following paragraph:

The child is identified as L.M.W.S., born […], 2018. The child is not First Nations, Inuit or Métis. The child was removed from the care of the mother and father and brought to a place of safety on December 18, 2018 at Sault Ste. Marie, Ontario.

[9] It is noted that, on that date, the parents were assisted by duty counsel. I point that out not to direct any criticism at the duty counsel (because there is no such criticism to be directed) but to note that each parent is now represented by counsel.

[10] In addition to the protection application, the Society also brought a motion, pursuant to which the interim without prejudice order was made, and that motion was accompanied by the affidavit (Volume 1, Tab 3) of the Society's Child Protection Worker Jane Parniak. This affidavit contained the following paragraph:

6. I have been advised that neither the mother or the father are Indigenous, Metis or Inuit, nor do they identify with the Indigenous culture. The Society understands that the child is not registered with a First Nation Community and that the child does not identify with any First Nations, Metis or Inuit community.

[11] Paragraph 8 of Ms. Parniak's affidavit makes reference to another child of the father. That child was three years old when the father moved to Alberta. The child remained in her mother's care. That child is now 20 years old. There is no mention of whether that child identifies with any First Nations, Inuit or Métis community.

[12] Both parents were present in court on December 21, 2018. Neither parent provided any indication that this identification of the child (which also appeared in the protection application and the affidavit referred to above) was not accurate.

[13] The evolution of the information and evidence that brought about this motion by the Society is not lengthy and bears being repeated or recreated in these Reasons.

[14] On January 25, 2019, the mother, with the assistance of her counsel, filed an answer and plan of care for the child. This document has an addendum in which the mother responded to paragraph 4 of the Society's protection application as follows:

B. [S.] found out he has some family which has aboriginal connections. His Aunt, B.C. has done a family tree which suggested some aboriginal heritage for B. [S.]. I practice traditional aboriginal teaching including smudges, and attending Pow Wow's. I made medicine wheels and dream catchers, and I follow the traditional aboriginal teachings. I would say that I have an association with the Batchewana First Nation on that basis.

[15] The mother also filed an affidavit (Volume 1, Tab 6), dated January 25, 2019. In paragraph 14 of that affidavit, the mother set out the same information (although she indicated that she was responding to paragraph 6 of the affidavit of Jane Parniak).

[16] Then, on February 27, 2019, the Society brought the motion that is before this court. That motion was accompanied by the affidavit (Volume 1, Tab 13) of Madieson Oliver, Child Protection Worker with the Society, who stated the following:

INFORMATION RELATED TO INDIGENOUS HERITAGE

3. The father and mother indicated to the Society upon the Society's involvement that neither the mother nor the father are Indigenous, Metis or Inuit, nor do they identify with the Indigenous Culture. The Society, at that time, understood that the child was not eligible for registration with a First Nation Community, and that the child did not identify with any First Nations, Metis or Inuit community.

4. On January 25, 2019, the Society received a responding affidavit from the mother that indicated that the father may have aboriginal heritage. The mother did not provide the Society with further details with respect to the father's heritage. The mother indicated that the mother practices various traditional aboriginal teachings and self identifies with an association with Batchewana First Nation on that basis.

5. Further to my inquiry, on January 31, 2019, I received a telephone call from the Nogdawindamin Family and Community Services reporting that Nogdawindamin Family and Community Services believe that the father is eligible for status with Batchewana First Nation.

6. On February 1, 2019, I met with the father who indicated that the father had not spoken with Batchewana First Nation, but that it was just brought to the father's attention by a family member that there may be an affiliation with the Batchewana First Nation for the father's maternal side.

7. Further, on February 1, 2019, I spoke with Batchewana First Nation Band Rep. for Child Welfare, Darlene Corbiere, who confirmed that the father has Batchewana First Nation affiliation and that the father will be actively pursuing registration.

8. On February 5, 2019, I faxed Nogdawindamin Family and Community Services an Interagency Referral requesting the redirect of the file to Nogdawindamin Family and Community Services due to the father's affiliation with Batchewana First Nation.

9. On February 6, 2019, I met with the mother, father and Batchewana First Nation Band Rep. for Child Welfare, Darlene Corbiere. Darlene Corbiere indicated that the mother and father would be supported by Batchewana First Nation during the Society's involvement due to the father's affiliation with Batchewana First Nation, and further indicated that the father is actively pursuing registration. Darlene Corbiere indicated that Batchewana First Nation would be seeking the Society's file disclosure and asked that the Society add Batchewana First Nation as a party. I indicated that I had consulted with the Society's Legal Department and Director of Resources with respect to Batchewana First Nation as a party earlier in the week, and that the Society intends to bring a Motion forward as soon as possible. I further indicated that the Society completed an Interagency Referral requesting the redirect of the file to Nogdawindamin Family and Community Services due to the father's affiliation with Batchewana First Nation. I indicated that I would provide Batchewana First Nation with updates as soon as they become available to me.

10. On February 7, 2019, the Society's Intake Department received correspondence from Batchewana Band Representative for Child Welfare, Darlene Corbiere, seeking disclosure regarding the mother, father and child, L. [M.W.S.]'s involvement with the Society.

11. On February 11, 2019, I telephoned Nogdawindamin Family and Community Services with respect to the status of the Society's Interagency Referral. Nogdawindamin Family and Community Services indicated that they would contact the Society with an update as soon as possible.

12. On February 12, 2019, I received voicemail from Connie Deluco, Telephone Screener with Nogdawindamin Family and Community Services, indicating that Connie Deluco would be emailing me Nogdawindamin Family and Community Services acknowledgment of the Society's request, but that Nogdawindamin Family and Community Services would be reviewing the file completely prior to accepting the transfer. Later, on this date, I received the email with this acknowledgment.

13. On February 15, 2019, I received an email from Annmerrie Roberts, Telephone Screener with Nogdawindamin Family and Community Services, seeking file disclosure of the purposes of reviewing all of the material file prior to Nogdawindamin Family and Community Services accepting the file transfer.

14. On February 15, 2019, I received an email from Darlene Corbiere, Batchewana First Nation Band Rep. for Child Welfare, indicating that, at this time, Batchewana First Nation does not have the confirmation of the father's status.

15. On February 19, 2019, I telephoned Darlene Corbiere, Batchewana First Nation Band Rep. for Child Welfare. Darlene Corbiere indicated that upon further review of the father's affiliation with Batchewana First Nation, the father's affiliation is distant and the father may not be eligible for status. Darlene Corbiere indicated that Batchewana First Nation would not be able to provide confirmation of the father's status until next week or the following. I asked that Batchewana First Nation contact the Society as soon as they received confirmation. Darlene Corbiere asked that the Society proceed with working with the family without Batchewana First Nation's involvement until further notice.

16. Legal Services has advised me that the matter is set for Temporary Care Hearing on March 26, 2019 at 3:00 p.m. before Justice Condon. The Society is concerned that if the child is found to identify as a First Nation's child and with an association with Batchewana First Nation, that Batchewana First Nation needs to be added as a party and this matter transfer to Nogdawindamin as soon as possible and sufficiently in advance of the Temporary Care Hearing date that is already set.

[17] The temporary care and custody hearing remained scheduled for hearing on March 26, 2019. However, due to the issue of the identification of the child and for other reasons, it did not proceed. Instead, the focus of that court time was on this motion.

[18] The next evidence on the issue was in the affidavit (Volume 1, Tab 24) of Madieson Oliver, dated March 21, 2019, which states:

43. On January 31, 2019, I received a telephone call from Denise Richer with Nogdawindamin Family and Community Services. Denise Richer asked that I return her telephone call as she had questions with respect to the family's indigenous affiliation and would like to look [at] a possible Customary Care Agreement. Later on this date I received another telephone call from Denise Richer inquiring if the file would be transferring to Nogdawindamin Family and Community Services as the father's Batchewana First Nations Worker, Darlene Corbiere, indicated to Nogdawindamin Family and Community Services that the father is eligible for status and intends on registering with Batchewana First Nation. I indicated that I could not discuss the mother or father's involvement with Nogdawindamin as I do not have consents on file. I inquired about the Batchewana First Nation Worker's name and indicated that I would need to get consents from the mother and father to speak with Batchewana first nation. I indicated that I would return her telephone call.

44. On January 31, 2019, I telephoned the father. I indicated that in speaking with the Worker at Nogdawindamin Family and Community Services with respect to T.H.'s Kinship Assessment, the Worker indicated that she believed that the father is eligible for status with Batchewana First Nation and wanted to discuss the possibility of a Customary Care Agreement. The father indicated that he could not recall if he had spoken with anyone with Batchewana First Nation as "he is bad with names", but believed that there is some family lineage with Batchewana First Nation. The father then inquired if I had received documentation from Batchewana First Nation or Nogdawindamin Family and Community Services. I indicated that to my knowledge the Society has not received any documentation, the father further indicated that he believes the Society should have received something by now. I indicated to the father I was confused if the father had met or spoken with anyone yet. I inquired what documentation the father was referring to and he did not provide me with a response. It was unclear what documentation the father was referring to as I clarified that he was not referring to the mother's affidavit or T.H.'s Kinship Assessment. I indicated that the Society was not aware that there was any indigenous status as the mother and father had indicated that there was none prior to my involvement. I indicated that I received the mother's affidavit last week that indicated that the mother there was some indigenous affiliation with the paternal family and the mother self identifies with Batchewana First Nation as the mother practices similar teachings and customs but did not provide the Society with further details. I indicated to the father that it is crucial that we meet as soon as possible in order for the father and mother to sign consents so that the Society can follow up with Batchewana First Nation and speak with the Worker. The father indicated that it was not until recently in speaking with a family member that they suggested the father may have status but that he did not follow up with Batchewana First Nation yet. The father indicated that he would be following up with Batchewana First Nation. I provided the father with Darlene Corbiere's contact information. The father and I scheduled an office visit for the following day at 9:00 a.m.

45. On February 1, 2019, the father and mother did not attend scheduled office visit. I left a voicemail for the mother asking that she return my telephone call as they missed scheduled office visit this morning. I indicated that I would be leaving the office shortly as I had other appointments. I indicated that I would be returning to the office around 1:00 p.m. but that I also had other appointments in the office this afternoon. I asked that they return my telephone call to reschedule.

46. Late on this date the father attended the office unannounced. … I inquired if the father had spoken with anyone at Batchewana First Nation yesterday or today with respect to status of affiliation. The father indicated that he had not. The father indicated that a cousin had brought this to the father's attention when they learned of the Society's involvement. I asked the father to contact Batchewana First Nation as soon as possible. The father inquired why the Society is responding so quickly with respect to the father possibly having status as he has not had any contact with the Society in two weeks. I explained to the father that the Society's court proceedings indicate that the child is not registered with a first nation community and that the child does not identify with any first nations. I explained that the Society will need to follow up with Batchewana First Nation. I explained that there is an indigenous child welfare agency that services seven first nations. I explained that the Society will need to take various steps to inquire if the father is eligible to be serviced by Nogdawindamin Family and Community Services…. The father indicated that he would contact Batchewana First Nation later today. I further indicated that I would also be following up with them on Monday. …

47. On February 1, 2019, I received a telephone call from Band Rep Darlene Corbiere indicating that the father has affiliation with Batchewana First Nation and that the father may be eligible for status. I inquired further details but was only provided that the father's maternal family has affiliation. …

48. On February 5, 2019, I faxed Nogdawindamin Family and Community Services an Interagency Referral requesting the redirect of the file to Nogdawindamin Family and Community Services due to the father's affiliation with Batchewana First Nation.

49. On February 7, 2019, I attended Batchewana First Nation for scheduled visit with Band Rep Darlene Corbiere and the mother and the father. [It is noted that another representative of the Batchewana First Nation was also present at this meeting but is not identified by name in Ms. Oliver's affidavit.] ….

50. On February 11, 2019, I telephoned Nogdawindamin Family and Community Services with respect to the status on the Society's Interagency Referral. Nogdawindamin Family and Community Services indicated that they would contact the Society with an update as soon as possible.

51. On February 15, 2019, I received an email from Darlene Corbiere, Batchewana First Nation Band Rep. for Child Welfare, indicating that, at this time, Batchewana First Nation does not have the confirmation of the father's status.

52. On February 19, 2019, I telephoned Darlene Corbiere, Batchewana First Nation Band Rep. for Child Welfare, with respect to the mother's "You and your baby" programming at Algoma Public Health. Darlene Corbiere indicated that upon further review of the father's affiliation with Batchewana First Nation, the father's affiliation is distant and the father may not be eligible for status. Darlene Corbiere indicated that Batchewana First Nation would not be able to provide confirmation of the father's status until next week of the following week. I asked that Batchewana First Nation contact the Society as soon as they receive confirmation. Darlene Corbiere asked that the Society proceed with working with the family without Batchewana First Nation's involvement until further notice.

53. Later on this date [February 19, 2019] I telephoned the father.… I further indicated to the father that Darlene Corbiere indicated to me that for the time being Batchewana First Nation would no longer be working with the family until they could confirm the father's eligibility for status and that the Society could proceed with working with the family without their involvement. I indicated that I would meet the father at Algoma Public Health tomorrow at 1:15 p.m.

[19] Darlene Corbiere has provided a brief affidavit (Volume 1, Tab 15) dated March 4, 2019, which states:

1. I am a member of the Batchewana First Nation and I am Child Welfare Band Representative for the First Nation for the purposed of proceedings under the Child, Youth and Family Services Act involving the First Nation's members.

2. I have been asked by the court to provide an affidavit on the process of identifying a Batchewana First Nation (BFN) member or affiliate.

3. On February 14, 2019 our Team Assistant, Lisa Boissoneau, who is trained in membership, checked if the following names are eligible for Batchewana First Nation membership:

   (i) B.S. D.O.B. [Redacted] (ii) C.S. (maiden name J.) D.O.B. [redacted]

4. Lisa Boissoneau then contacts Crown-Indigenous Relations and Northern Affairs Canada in Toronto, ON., either by way of telephone, male, fax or email and in this particular case contact was made by email.

5. As a result there were no eligible names from our request.

6. I have not found the community connection to Batchewana First Nation.

[20] On March 26, 2019, at the outset of the hearing of this motion the father provided a new affidavit (Volume 1, Tab 27), dated March 26, 2019 which states the following:

1. I am the Respondent father in the above noted proceedings and, as such, have knowledge of the matters to which I, hereinafter, depose.

2. I have reviewed the Affidavit of Darlene Corbiere, dated March 4, 2019. I understand that they believe that I am not eligible for membership to the Batchewana First Nation. My maternal grandfather was aboriginal and I self-identify as an Aboriginal person with the Batchewana First Nation. It is important to me that my daughter understands and learns my heritage.

3. I make this Affidavit in support of L.'s return to the mother's and my care and for no improper purpose.

[21] All parties advised the court that there was no other evidence on this issue to be provided at the time of the hearing of this motion.

Part Three – The Law

[22] Section 90 of the Child, Youth and Family Services Act, 2017 (CYFSA) states:

Child protection hearing

90 (1) Where an application is made under subsection 81(1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 101.

Child's name, age, etc.

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

(a) the child's name and age;

(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; and

(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

[23] Section 101 of the CYFSA reads in part:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

First Nations, Inuk or Métis child

(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child's extended family if it is possible or, if it is not possible,

(a) in the case of a First Nations child, another First Nations family;

(b) in the case of an Inuk child, another Inuit family; or

(c) in the case of a Métis child, another Métis family.

[24] Ontario Regulation 157/18 states in part:

Effect of determination under s. 47(2)(c) of old Act

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.

[25] This transitional provision does not apply to this proceeding since it has been brought under the CYFSA only. However, I have included it as a further indication of the priority to which this determination in relation to any child should be made.

[26] Ontario Regulation 155/18 states in part:

Interpretation, First Nations, Inuk or Métis child

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.

[27] Section 21 of Ontario Regulation 156/18 states:

Determination of bands, communities with which child identifies

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:

22. 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.

23. 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.

[28] Section 2(1) of the CYFSA states:

Definitions

2 (1) In this Act "band" has the same meaning as in the Indian Act (Canada);

and

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

[29] Ontario Regulation 159/18, entitled List of First Nations, Inuit and Métis Communities, is under the subsection 68(1) of the CYFSA. It does not come into force until July 1, 2019.

[30] Section 2(1) of the Indian Act, R.S.C. 1986, c. I-5 states:

Definitions

2 (1) In this Act,

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 )

Band List means a list of persons that is maintained under section 8 by a band or in the Department; ( liste de bande )

[31] The Batchewana First Nation is one of the bands on that list and it is identified in a number of federal regulations, including but not only SOR/97-138, entitled Indian Bands Counsel Election Orders.

[32] Subsections 2(3) and 2(4) of the CYFSA states:

Member of child's or young person's community

(3) For the purposes of this Act, the following persons are members of a child's or young person's community:

1. A person who has ethnic, cultural or creedal ties in common with the child or young person or with a parent, sibling or relative of the child or young person.

2. A person who has a beneficial and meaningful relationship with the child or young person or with a parent, sibling or relative of the child or young person.

Interpretation, child's or young person's bands and First Nations, Inuit or Métis communities

(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.

[33] One other feature of the CYFSA is its lengthy Preamble, which includes the following:

Paramount purpose and other purposes

Paramount purpose

1 (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.

3. Services to children and young persons should be provided in a manner that,

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

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

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

   iv. takes into account a child's or young person's cultural and linguistic needs,

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

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

4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.

5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

Part Four – The Positions of the Parties

[34] The Society has taken no position on its own motion. Counsel for the Society simply asked the court to consider all of the evidence before it. The Society did not have any further evidence to provide. It was pointed out that none of the evidence states specifically that the child identifies with the Batchewana First Nation or any other First Nation or community.

[35] The mother's position is that s. 90(2) of the CYFSA sets out a two-stage process for analysis of the issue. Counsel for the mother indicated that there was no other evidence to be offered on her behalf.

[36] The father's position was that he agreed generally with the positions taken by the Society and the mother. It has also been asserted by the father that, since the child cannot speak for herself, the father has done so and identifies the child as being affiliated with the Batchewana First Nation.

[37] Batchewana First Nation Band Representative Darlene Corbiere submitted that her affidavit indicates that the father is not eligible for membership with the Batchewana First Nation. However, that does not exclude the possibility of affiliation. Batchewana First Nation believes that the father is affiliated with that First Nation.

[38] Nogdawindamin Family and Community Services has taken no position on the outcome of the motion. However, counsel for Nogdawindamin encouraged the court to exercise caution in this case and generally regarding what constitutes sufficient evidence for a finding that a child is affiliated with a First Nation. The question to be asked is – What level or amount of evidence is required by the court to make a determination of whether a child is affiliated with a First Nation?

Part Five – Analysis

[39] The preamble of the CYFSA is intended to be inclusive, as opposed to exclusive or limited. It is intended to facilitate broad interpretations in order to recognize cultural, hereditary and traditional connections, particularly in relation to First Nations families who, in past generations in Ontario and Canada, might have been reluctant to or discouraged from disclosing their First Nations roots.

[40] In Children's Aid Society of Ottawa v. N.P., 2019 ONSC 893, Justice J.A. Blishen wrote the following:

9 Under the CYFSA, it is possible for a child to identify as First Nations and not be a member of a band or a First Nations Community. Overall the CYFSA is more inclusive in dealing with individuals who identify as Indigenous.

10 A child's identification as First Nations, whether or not a member of a band or First Nations community, is important as there are many considerations under the CYFSA with respect to First Nations children. For example:

1. The preamble to the legislation recognizes the importance of a child identifying with or belonging to a First Nation or a community and emphasizes the importance of ensuring, whenever possible, that care and services for children be in accordance with their distinct cultures, heritages and traditions.

2. In considering the purposes of the legislation, paragraph 6 ss. 1 (2) of the CYFSA provides that First Nations, Metis and Inuit children are entitled wherever possible, to services provided in a manner that recognizes their cultures, heritages, traditions, connections to their communities, and the concept of the extended family.

3. Pursuant to s. 74 (3) of the CYFSA, the importance of preserving a First Nations child's cultural identity and connection to community is a specific stand-alone consideration in determining what order is in the child's best interests.

4. In addition, under s. 101 (5) of the CYFSA, when determining the appropriate disposition for a First Nations child, unless there is a substantial reason for placing the child elsewhere, the child shall be placed with a member of the extended family, if possible or, if not, with another First Nations family.

[41] It is clear that a broader interpretation of the relevant statutes and regulations should be applied. Furthermore, as Justice J. Kukurin pointed out in Children's Aid Society of Algoma v. C.A., C.P. and the Batchewana First Nation, 2018 ONCJ 592, s. 21 of O. Reg. 156/18 directs the court to accept hearsay evidence on this issue.

[42] This does not mean that all rules of evidence and some standard of proof do not apply.

[43] In Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, in considering the issue of identification of an indigenous child under the provisions of the Child and Family Services Act, the precursor to the CYFSA, the Court of Appeal said the following:

53 Courts recognize the pervasive effects of the historical and continuing harms to First Nations families. This does not, however, automatically exempt Indigenous children from the access provisions for Crown wards under the Act. The legislation makes clear that the circumstances of each individual child must be considered in their entire context.

[44] The Court of Appeal then went on to say:

58 I recognize that Indigenous membership has expanded to include self-identification. However, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The appeal judge erred by ordering access based on nothing but the parents' self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child. He then again ignored the requirements of s. 59(2.1). I turn to that issue now.

[45] Careful consideration of the evidence before this court is required.

[46] O. Reg. 156/18 does set out a two-stage process for determining the band, First Nations, Inuit or Métis community or communities (not being restricted to one) with which the child might identify must be considered. In this case, given that there has been no assertion that the child might identify or be affiliated with any Inuit or Métis community, no further reference will be made to either of those communities within these Reasons.

[47] The first stage under s. 21 of O. Reg. 156/18 is to determine whether "the views of the child can be ascertained". It is noted that the child has not yet reached her first birthday. There is no evidence that any of the participants in the hearing of this motion actually ascertained the views of the child or attempted to so. While it was submitted on behalf of the father that he was expressing the views of the child because she is not able to do so at her young age, the evidence does not support that assertion. The father's affidavit (Volume 1, Tab 27) does not set out any effort on his part to ascertain the child's views.

[48] The second stage calls for an examination of the "bands or First Nations … that a parent of the child indicates are bands or communities with which the child identifies". There is no evidence from the mother that the child identifies with any band, First Nation or community.

[49] The father has asserted that he self-identifies "as an Aboriginal person with the Batchewana First Nation." The father then went on to say, in his affidavit, "it is important to me that my daughter understands and learns my heritage." This evidence does not state that the child identifies with the Batchewana First Nation by way of the father.

[50] The Batchewana First Nation, by way of Band Representative Darlene Corbiere has also provided an affidavit. As noted earlier, the affidavit does not indicate that any effort has been made to ascertain the views of the child. Nor does the affidavit indicate that, by indirect evidence, the child identifies with Batchewana First Nation.

[51] This evidence, or lack of evidence, is not determinative of the issue because there is more evidence and other legislation to consider.

[52] Subsection 2(3) of the CYFSA assists in defining members of a young person's community. Article 1 of that subsection indicates that the person who has an ethnic, cultural or creedal ties in common with the child or the parent or relative of the child is a member of the child's community. I take this to include relatives of either parent such as grandparents or great-grandparents of the child. In this case the father has provided affidavit evidence that his "maternal grandfather was aboriginal". The use of the past tense verb "was" implies that the maternal great-grandfather of the child is no longer alive. For that reason, I find that the late paternal grandfather is not part of the child's community in the present tense.

[53] Subsection 2(3) Article 2 speaks of a person who has a beneficial and meaningful relationship with the child. The words "beneficial and meaningful" are used nine times in the CYFSA. However, those words are not defined by the CYFSA. There is jurisprudence in relation to these words and the Child and Family Services Act (CFSA). It is noted that the use of the phrase in the CFSA did not appear specifically as part of the identification process regarding the child.

[54] While this proceeding has been brought about by questions regarding the quality of the care being provided by the parents for the child, it is noted that the interim without prejudice order provides the parents and the child with access to each other. In its protection application and initial motion, the Society sought an order that each parent have access with the child. The access that was ordered continues. There has been no motion by the Society to terminate that access for either parent and the Society has not asserted that the access by either parent has been detrimental to the child. This indicates that there is some beneficial and meaningful relationship between each parent and the child. Accordingly, while it may seem intuitive, this supports a finding that each parent is a member of the child's community.

[55] Subsection 2(4) of the CYFSA speaks of the child's band or First Nations. It sets out four alternate criteria:

(a) The first criterion is whether the child is a member of any band. In the case at hand, there is no evidence that the child is a member of any band.

(b) The second criterion is self-identification by the child with any band. As noted earlier, none of the parties involved in the motion has provided evidence that the child's self-identification has occurred, which is not surprising, given the child's youthful age.

(c) The third criterion is whether the child is a member of any First Nations community. There is no evidence that the child is a member of the Batchewana First Nation, which is the only community identified as relevant in this proceeding.

(d) As for the fourth criterion, this also involves self-identification by the child with a First Nations community. Again, there is no evidence of self-identification by the child with the Batchewana First Nation or any other First Nations community.

[56] Ontario Regulation 155/18 also provides criteria to be considered in this identification process. The three criteria set out in s. 1 are reproduced earlier in this decision in paragraph 26. The first criterion has two parts to it. The first part Involves self-identification by the child. As noted already in these Reasons, there is no evidence of self-identification by the child. The second part involves identification by either parent of the child as a First Nations child. In this case, neither parent has identified the child in that way.

[57] The criteria set out in subsection 1(b) speaks of the child's membership in a band or First Nations community. Again, there is no evidence the child is a member of the Batchewana First Nation or any other First Nations community.

[58] Subsection 1(c) is applicable if identification of the child cannot be determined under either clause (a) or (b) "but there is information that demonstrates that (i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person". Regarding a sibling of the child, there is evidence that the father has an older child, who is now an adult. There is no evidence that this sibling of the child who is the subject of this proceeding identifies as a First Nations person. Thus this criterion is not met.

[59] Each parent is a relative of the child. In the evidence before the court, each parent has provided evidence that she or he self-identifies as an aboriginal person. Further consideration of this evidence must be given.

[60] In the case of the mother, she has provided evidence that she practices traditional aboriginal teachings, makes medicine wheels and dream catchers and follows traditional aboriginal teachings. The mother's evidence is that she has an "association" with the Batchewana First Nation. Does the mother have any link beyond her personal choice to engage in these aboriginal practices and to adopt aboriginal teachings? If such an additional link exists, it is not set out in the evidence before the court. Does the mother have an association with the Batchewana First Nation beyond her personal affinity to this First Nations community? If that association exists, it is not borne out by the evidence. I note that there is no evidence before this court from the Batchewana First Nation indicating that the mother has any association with that First Nations community. Is there any evidence that the mother has any familial ties with the Batchewana First Nation? There is no evidence that any member of the maternal family has or had links with the Batchewana First Nation.

[61] On this issue, I adopt the approach of the Ontario Court of Appeal taken in Children's Aid Society of the Regional Municipality of Waterloo v. C.T., supra, and find that this identification process requires more than a desire or inclination on the part of a party to be identified with or associated with a First Nations community. For the mother, in this case, I find that the evidence does not support a finding that her identification by "association" with the Batchewana First Nation complies with the meaning or intention of clause (c)(i) of this subsection. Thus, it does not assist in creating an identification link between the child and the Batchewana First Nation.

[62] Regarding the father and the criterion in clause (c)(i), there is evidence that he, as a relative of the child, identifies as a First Nations person. Is there any evidence to support this identification? What level of evidence, beyond a wish or inclination like the mother has, is required under this regulation and the CYFSA? I find that neither the legislation nor the regulation answers this question.

[63] What evidence is there of this identification by the father? The following evidence to be considered:

(a) The Society has provided evidence that when it first intervened with this child, neither parent identified the child as a First Nations person.

(b) The father has an older child. There is no evidence that the father identifies this child as a First Nations person. There is no evidence that the child's mother has identified the child as a First Nations person, even if the father had never turned his mind to this. There is no evidence that the child self-identifies as a First Nations person.

(c) The mother has provided evidence that paternal aunt B.C. did work on a paternal family tree "which suggested some aboriginal heritage for B. [S.]". No evidence has been provided regarding the findings of B.C. or what the mother means by "suggested". Furthermore, there is no affidavit from B.C. or evidence that further efforts were made by either parent to communicate with Ms. C. to obtain what, if any, such information she had compiled.

(d) The father informed the Society that a cousin told him something about a connection with the Batchewana First Nation. There is no evidence that the father has communicated further with the cousin to obtain any of this information. The cousin is not identified and there is no affidavit from the cousin.

(e) The evidence from the Batchewana First Nation, by way of Darlene Corbiere, is that to date the Batchewana First Nation has not found any basis to expect that either the father or the paternal grandmother, C.S., is eligible for obtaining status membership with the Batchewana First Nation. Having said that, the CYFSA and the regulations thereunder have expanded the criteria for identification beyond the requirement of "status" or formal membership in a First Nations community or band.

(f) The affidavit of Darlene Corbiere has also indicated that she has "not found the community connection to Batchewana First Nation". Given the focus of the rest of this affidavit, it is clear that Ms. Corbiere has indicated that she has not found any such connection for the father with the Batchewana First Nation. There is no indication in any of the evidence that any similar analysis or research was done in relation to the mother.

[64] There is at least one further piece of evidence to consider in this portion of the analysis. The father has provided evidence that his "maternal grandfather was aboriginal" and the father self-identifies "as an aboriginal person with the Batchewana First Nation".

[65] It would of assistance to all of the parties and this court if any participant in the motion, particularly the father, had provided additional evidence, such as:

(a) the maternal grandfather's name, date of birth, place of birth, location of residence and more particulars about how the father sees or other family members has seen the maternal grandfather to have been "aboriginal";

(b) the band or which the maternal grandfather was a member, if any, or with which he was associated, affiliated or identified;

(c) the names of siblings of the maternal grandfather, if any, and any band or First Nations community of which any sibling of the maternal grandfather was a member, if any, or with which he or she was associated, affiliated or identified;

(d) the maternal grandmother's name, date of birth, location of residence during her relationship with the maternal grandfather and more particulars about her familial history, including identification, association or membership in any band or First Nations community, if any, including whether it was the same band or First Nations community of the maternal grandfather or otherwise;

(e) particulars about any siblings of the father's mother, C.S., regarding what, if any, identification, association or membership in any band or First Nations community any of the father's maternal aunts or uncles;

(f) what involvement or interaction the father has had in his life with the Batchewana First Nation or any First Nations community; and

(g) any historical information regarding the Batchewana First Nation that would assist the court regarding the issue of understanding its process of identifying persons who are members or who have recognized associations or affiliations with the Batchewana First Nation.

[66] This is a suggestive list of evidence that might be provided to a court on this issue. It is not intended to be either an exhaustive or exclusive list of the potential evidence that could be presented on this issue.

[67] Having said this, it is noted that the CYFSA does not provide a threshold level of linkage required for this identification process. Moreover, as was noted earlier in these Reasons, the preamble of the legislation encourages a broader and more inviting interpretation of First Nations, Inuit or Métis identification. The intent of the legislation, as read by this court, is to avoid creating rigid barriers to identification that would discourage and dissuade persons from self-identifying, as might well have occurred in the past, and to promote self-identification and pride in being a First Nations person, even if such self-identification has not occurred for one or more generations in the past.

[68] In that vein, it is also noted that O. Reg. 156/18 promotes the acceptance of hearsay evidence.

[69] Regarding the question of further evidence before this court, as set out earlier in these Reasons, all participants in the hearing of the motion indicated that they had no further evidence to provide to the court. Had there been some prospect of further evidence, delaying this decision for the submission of further evidence is an option that would have been given serious consideration. I make this point only to say that it is the child's best interests not only that this issue be determined as soon as practicable but also to avoid the revisiting of the issue once or more in the same proceeding.

[70] It is also noted that, while the father's affidavit was presented to the court, and the participants in the hearing of the motion, at the outset of the motion. No participant in the motion sought additional time in order to challenge, rebut or even explore further the father's evidence that he self-identifies "as an Aboriginal person with the Batchewana First Nation" and that he seeks to have his daughter understand and learn his "heritage".

[71] I accept the father's evidence regarding his maternal grandfather and his identification as an aboriginal person. Other evidence before this court does not contradict that evidence. It is proof that meet the standard of proof of being on a balance of probabilities. I also accept the father's evidence that he self-identifies as "an aboriginal person with the Batchewana First Nation". While, on the limited evidence before the court, this is a recent awakening by the father, it is not contradicted by any other evidence. Moreover, it appears that the Batchewana First Nation intends to be inviting of the father and, in turn, the child. I find that this evidence also meets the evidentiary standard of proof of being on a balance of probabilities.

[72] I find that, on a balance of probabilities, this evidence is sufficient to establish that the father, who is a relative of the child identifies as a First Nations person and that pursuant to the criterion in Section 1, clause (c)(i) of O. Reg. 155/18, the child, L.M.W.S., is identified as a First Nations person.

[73] As an aside, it is noted that the legislation seeks to have this identification occur as soon as practicable. As the process in this case has shown, the first identification of the child in a proceeding is not conclusive of the issue. It may well be in the child's best interests for the father to learn much more about his First Nations heritage and the paternal family tree so that he can share this information with the child. That same additional information might be of assistance to the Batchewana First Nation as it seeks to know more about the link between it and the father and the child.

[74] It is also noted that this identification process might not be the process or employ the same criteria used by the Batchewana First Nation to determine what involvement it will have with the father, the child or this proceeding. That is not a matter to be determined by the court and is not within the statutory jurisdiction of this court.

[75] On the other hand, given the ruling that the child, L.M.W.S., is a First Nations person, the balance of the Society's motion, including as it relates to the Batchewana First Nation must be dealt with.

[76] It is clear from the evidence and the representations of Darlene Corbiere, on behalf of the Batchewana First Nation that the Batchewana First Nation seeks to be involved in this proceeding. The level of involvement will be determined by the First Nation. Given the finding in relation to the child including the father's identification with the Batchewana First Nation, I find that it is appropriate that the Batchewana First Nation be added as a responding party in this proceeding.

[77] As for the Society's request that consideration be given to adding Nogdawindamin Family and Community Services as a party, it is noted that Nogdawindamin has assumed full responsibility as the child welfare agency for members of the North Shore First Nations. That grouping includes the Batchewana First Nation. For that reason and those set out above, it is appropriate that Nogdawindamin Family and Community Services be substituted, in place of the Children's Aid Society of Algoma, as the Applicant in this proceeding. It is also appropriate that counsel for Nogdawindamin be placed on the record for the Applicant in place of counsel for the Society.

[78] It is also appropriate and in the best interests of the child that the interim without prejudice order, made on December 21, 2018, continue until the hearing of the temporary care and custody motion. Both Nogdawindamin Family and Community Services, as the Applicant, and Batchewana First Nation, as a Respondent, need time to prepare for the hearing of the motion.

Part Six – Disposition

[79] For the reasons set out above, I find that the child, L.M.W.S., born […], 2018, is a First Nation's child/person.

[80] For the reasons set out above, the Children's Aid Society of Algoma's motion is granted and the following orders, which take effect forthwith:

1. An order is made that the Batchewana First Nation is made a party to and respondent in this proceeding.

2. An order is made that Nogdawindamin Family and Community Services is made the applicant. Accordingly, conduct of the proceeding is transferred to Nogdawindamin Family and Community Services and the proceeding shall continue as though it was commenced by Nogdawindamin Family and Community Services.

3. An order is made amending the title of proceedings by removing the Children's Aid Society of Algoma as the applicant and substituting Nogdawindamin Family and Community Services as the applicant.

4. An order is made transferring the interim care of the child, L.M.W.S., born […], 2018, from the Children's Aid Society of Algoma to Nogdawindamin Family and Community Services.

5. An order is made that John Rossi, counsel of record for the Children's Aid Society of Algoma, is removed from the record as counsel for the applicant and Sarah Bujold, counsel for Nogdawindamin Family and Community Services, is noted as counsel of record for the applicant.

Released on April 10, 2019

Justice J.P. Condon Ontario Court of Justice