WARNING

The court hearing this matter directs that the following notice should 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 File and Parties

Court File No.: 8/19 Date: June 25, 2019 Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society Applicant

— And —

D.M., S.P. and B.K. Respondents

Counsel:

• Natalia Peart for the Applicant Society
• Jotan Foster for the Respondent, D.M.
• Christopher Knowles for the Respondent, S.P.
• B.K. on his own behalf

Ruling on Motion

BONDY J.:

Background

[1] Before me is a motion seeking a finding related to whether the subject children are First Nation, Inuit or Metis children as required under s. 90(2) of the Child Youth and Family Services Act (hereinafter described as "CYFSA"). The motion also seeks an order or finding that the subject child is not connected to, engaged with, any First Nation, Inuk or Metis community. (my italics)

[2] The subject children in this application under the CYFSA are S.M.M. (hereinafter described as "S"), born […], 2014, and S.P.P. (hereinafter described as "S.H."), born […], 2018.

[3] The children's mother is D.M. Having reviewed the supporting affidavit filed, she claims she has no First Nations, Inuit or Metis status nor does she identify as such. According to D.M. she does not identify either child as being First Nations, Inuit or Metis.

[4] S's father is B.K. I made a finding after inquiry by affidavit that he is a statutory parent as that term is defined under the CYFSA on April 30, 2018.

[5] S.H.'s alleged father is S.P. I say "alleged" as the Applicant Society has not moved to prove that claim with the filing of Affidavit evidence at this point. The affidavit before me claims he is not First Nations, Inuit or Metis. He does not self-identify nor does he identify S.H. as a First Nations, Inuit or Metis child.

[6] On the assumption that S.P. is a statutory parent of S.H. and that S.H. has no First Nations, Inuk or Metis status, this ruling then addresses the issue of Metis status for S alone.

Analysis of the Evidence

[7] I have reviewed the affidavit filed by the Society. I have the following comments:

(a) B.K. asserts he is a Metis but also deposes that he does not identify as a Metis. He asserts he identifies as an African American however I would note he resides in Windsor, Ontario, Canada. I assume he means he is an African Canadian;

(b) No other identifying information is provided to support B.K.'s claim that he is a Metis;

(c) B.K. asserts that S's relatives, namely her grandmother (his mother) and great aunt (his aunt) identified as Metis persons but were not connected to any such community. Both are now deceased. No other information is provided to support these claims;

(d) B.K. deposes that he does not identify S as Metis; and

(e) D.M. concludes that S is too young for meaningful discussions about this matter. I do not know B.K.'s position on S's ability to have meaningful discussions. S will be 5 years of age in August of this year. The affidavit does not disclose if either D.M. or B.K. have attempted to discuss the issue with S.

Critical Gaps in the Evidence

[8] Regarding the first finding that the Society seeks, namely, that S is a Metis child, it seems to me that there is critical information missing in order for me to make the finding sought.

[9] First, on what basis does B.K. claim that he is Metis? Surely there is some basis to his claim, but the Affidavit offers none.

[10] Second, can the child S claim she is Metis by virtue of her ancestry? Once again, the Affidavit offers no explanation and I do not know the source or basis of S's father's claim.

[11] Third, why is it that B.K. does not identify S as a Metis child if he is a Metis? Does subparagraph (a) of s. 1 of O. Reg. 155/18 apply? It reads that:

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; …

[12] Fourth, does subparagraph (b) of s. 1 of O.Reg. 155/18 subparagraph (b) apply? S. 1 of O. Reg. 155/18 (b) reads as follows:

(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 Metis communities; …

[13] Fifth, is this a case where subparagraph (c) of s. 1 of O. Reg. 155/18 might apply? Subparagraph (c) reads as follows:

…. or

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

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

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

[14] Sixth, as there are no listed Metis communities pursuant to s. 2(1) and s. 58 of the CYFSA and O.Reg. 159/18 what is meant by the term "community" in s. 1 of O. Reg. 155/18?

Relevant Case Law

[15] Catholic Children's Aid Society of Toronto v. S.T. 2019 ONCJ 207 may provide some guidance to the questions posed above. Sherr J. canvassed the relevant statutory and regulatory provisions under the CYFSA and developing jurisprudence relating to the determination as to whether a child is a First Nations, Inuk or Metis child. Sherr J. found that the Court's inability to name a child's band and First Nations, Inuit or Metis communities does not negate the initial determination that the child is a First Nations, Inuk or Metis child as any interpretation to the contrary would lead to the result that a Metis child cannot be identified as such because there are no listed communities. (See paragraphs 43 and 44 of S.T. and sections 2(1) and 68 of the CYFSA and O. Reg. 159/18).

[16] In Bruce Grey Child and Family Services v. A.B. – C. 2018 ONCJ 516 Hardman J. found that the definition [of First Nations, Inuit and Metis] should not be interpreted narrowly, but not made casually either. She found there must be an evidentiary basis for the finding. (See paragraph 49).

[17] Kukurin J. in Children's Aid Society of Algoma v. C.A. 2018 ONCJ 592 found that the spirit of the Act is more inclusive when it deals with aboriginal persons. (See paragraph 44).

[18] Justice Kathleen Baker said in the Children's Aid Society of Brant v. S.G. [2018] ONCJ 958 that as a society we have to be vigilant that these protections (referring to the determination of whether a child is First Nations, Inuit or Metis child) have not been legislated for naught (paragraph 45).

The Society's Contradictory Requests

[19] Regarding the second finding sought, that S has no connection to or engagement with any First Nations, Inuit or Metis community, that begs the question that if S is a Metis by her ancestry, where is the authority in the CYFSA or its related regulations to ask that I make that finding. The question of "connection" to a First Nations, Inuit or Metis community is usually engaged when the analysis under subsection (c) (i) and (ii) of section 1 of O. Reg. 155/18 is triggered. That section is engaged when it cannot be determined under subclause (a) or (b) of s. 1 of O. Reg. 155/18 whether a child is Metis. I note that the Society wants me to find that S is a Metis child, but then to engage in this further analysis for purposes unknown.

[20] Hardman J. in A.B. – C. found that the evidence on any motion should be sufficient (my italics) for a child to fall within the definition of a First Nations, Inuk or Metis child as set out in Ont. Reg. 155/18. (Paragraph 49). The affidavit before me appears shy of sufficient; it contains bald assertions that S's father is Metis and that unnamed relatives identified as Metis but curiously again, were not connected to any such community. And as Justice Sherr said in S.T. "to just say that anyone, no matter how incredulous their claim may be, can put their hand up and have this claim accepted without question would be an open invitation to persons to abuse the administration of justice…. The underpinning of any self-identification right is that it is made in good faith." (Paragraph 35).

[21] Moreover, the Society's request seems to be contradictory. On the one hand, they seek a finding that S is a Metis child. Then there is the further request that she has no connection or engagement with any First Nations, Inuit or Metis community. Does "having no connection or engagement with a FNIM community" mean S is not a Metis? Does a failure to connect or engage with a Metis community change or compromise one's historic ancestry as a Metis? Moreover, if S's father is in fact Metis, does his lack of self-identification in any way restrict or dictate the Court's findings relating to S? Has anyone attempted to ascertain S's wishes or preferences as to self-identification?

Legislative Intent and Reconciliation

[22] To repeat what I mentioned in paragraph 15 of this ruling, according to Sherr J. in S.T. the inability to name a Metis community should not negate an initial determination that a child is a Metis child.

[23] I agree with Sherr J. in S.T. that the new legislative provisions are an opportunity for First Nations, Inuit and Metis children to reignite lost connections with their culture and heritage.

[24] Further, to seek a finding that a Metis child has no connection or engagement with a Metis community seems to be contrary to the preamble, purposes and objectives of the CYFSA including its important recognition of Canada's commitment to the United Nations Declaration on the Rights of Indigenous Peoples and the spirit of reconciliation that the Government of Ontario has to working with First Nations, Inuit and Metis peoples. (See Preamble to CYFSA.)

[25] Justice Baker in S.G. provides critical direction for all Children's Aid Societies relating to their obligations under section s. 90 (2) of the CYFSA. She said:

(a) The early determination of whether a child is First Nation and the appropriate native community is a particular priority for a number of reasons. First, it triggers an obligation by the Society to meet the child's cultural needs. Second, if there is an identifiable native community, that community is a party to the proceeding and service is required (para 35);

(b) It is now widely recognized that the "Sixties Scoop" perpetuated an injustice on Aboriginal communities, families and children. That was a significant driver to the amendments of the governing legislation that requires early identification, participation of native communities in proceedings and priority for placements of First Nation, Inuk and Metis children that are congruent with the child's heritage (para 44); and

(c) … It is the court's hope that [all involved] will put into place measures to ensure that necessary training and protocols are reviewed and updated to ensure that these requirements are met in every case (paragraph 45).

Decision

[26] This motion should be adjourned. I need better evidence to determine whether S is a Metis child and how and why. I need to know if a lack of self-identification by her father compromises her ancestral right. I need to know what her grandmother and aunt's self-identification claim was based on. I need to know if S has any preferences or wishes regarding this issue. I need to know why her father chooses not to have her identify as Metis. I need to know why the Society seeks a finding that S has no connection or engagement with a Metis community. If S is found to be a Metis child, I expect the Society to use reasonable efforts to locate a name for notice and service.

Released: June 25, 2019

Sharman Bondy Justice