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: 2020-03-03

Court File No.: FO-17-0158-00

Parties

Between:

M.L. and D.L. Applicants

— AND —

B.T., D.C., and Dilico Anishinabek Family Care Respondents

Before the Court

Justice D.J. MacKinnon

Motion Heard on: December 3, 2019

Decision on Motion Released on: March 3, 2020

Counsel

Marco Pasquale Frangione — counsel for the applicants

Edward Van Voort — counsel for the respondent, D.C.

Kristi Burns — counsel for Dilico Anishinabek Family Care on behalf of Berens River First Nation

MACKINNON J.:

INTRODUCTION

[1] This case considers the jurisdiction of the Child, Youth and Family Services Act (CYFSA) and the Children's Law Reform Act (CLRA) in relation to an out-of-court customary care agreement.

BACKGROUND

[2] J.A.T. is just over four years old. She was apprehended at one day of age. She has lived with the Applicants (D.L. and M.L.) in Thunder Bay since she was eight days old. The Applicants are Indigenous. The biological parents, mother D.C., who is Indigenous, and father B.T., who is non-Indigenous, live in Thunder Bay. J.A.T. has a close relationship with her full sister, W.C., who is a Crown Ward and has lived nearly all of her life with another family in Thunder Bay.

[3] The mother D.C. has eight other children in long term placements in Manitoba. This history in Manitoba was one of the reasons for J.A.T.'s apprehension, along with the alcohol, drug, and lifestyle issues of the parents. No protection application was brought by the agency at the time of apprehension. The child and D.C. are on the band list of Berens River First Nation, which is a community about 850 miles away from Thunder Bay in northern Manitoba.

[4] B.T., is the father of J.A.T. and her sister W.C. He has participated in the same lifestyle as the mother. In regard to the agency and caregivers, his behaviour has been at times confrontational. He was engaged in the early stages in access and planning. His involvement with the overall process has not been consistent and he has not been involved in this court proceeding.

[5] There was a short Temporary Care Agreement signed between the agency and the parents which expired February 2, 2016 when J.A.T. was four months old.

[6] Since September 2018, Dilico Anishinabek Family Care has signed a series of short term (six month) customary care agreements with the D.C. and Berens River First Nation. All of the customary care agreements have the same terms. No agreements have been provided to the court for the period from February 2, 2016 to September of 2018.

[7] The evidence of the Applicants is that they kept requesting that the agency determine a permanency plan for the child, but this did not occur. The biological parents' access was not consistent and the Applicants say that they were told by a worker from the agency that they would have a good chance to keep J.A.T. long term as the parents were not likely to resume care.

[8] A text from an agency worker to M.L. said that there was no talk of reintegration of the parents and child at an agency meeting. The agency in argument of this motion emphasizes that the Applicants were told that there would not be any long-term placement, as the intention of the agency is always to return children to their parents or family, and that the First Nation did not believe in adoption.

[9] Even though the Applicants told the agency that the biological parents were drinking, the child was sent for overnight visits in September of 2017. During a visit the mother D.C. was drinking and left the child with other inebriated strangers. She was charged with abandonment and breach of probation. There was no further access by the parents for about six months.

COURT PROCEEDINGS

[10] The Applicants brought their claim for custody under the CLRA in June of 2017. The mother filed an Answer in which she sought custody but did not dispute jurisdiction under the CLRA.

[11] The protection application of the agency was issued on September 29, 2017. There was no service on the parents or the caregiving family filed for the protection application. The application of the caregivers under the CLRA was stayed upon the commencement of the protection application, pursuant to s.57.2 of the CFSA as it then was.

[12] In November of 2017, D.L. and M.L. brought a motion to be added as parties in the child welfare proceeding. The matter was adjourned a number of times for discussions between the parties and awaiting a medical condition of the mother to be resolved.

[13] The matter came before the court in Thunder Bay a year later on October 2, 2018. The Applicants' counsel requested to set a date for argument of the motion to be added as parties. The agency filed an affidavit to which was appended a customary care agreement signed between the First Nation, the mother and the agency. The agency requested to be allowed to withdraw the protection application. The agency told the presiding justice the following:

…Basically, the purpose of the customary care arrangement is for Dilico to take on care of the child. They have placed the child in the care of this foster parent, who now is asking to be added as a party. So, the customary care arrangement is for the society and the First Nation and the parent to work together toward reunification with the child. [1]

[14] When asked by the court about the fact that the child had lived with the foster family for her whole life, the agency said:

However, yes, but these parents have had significant access over time, and the mother still has access with this child. The goal obviously, is for this child to be able to return to her mother's care. [2]

[15] The plan by the agency, articulated to the court, was to return the child to her mother. The endorsement reads, "A customary care agreement filed motion request by foster parent denied and leave to withdraw is granted." The transcript shows that there was no argument of the "party" motion. Of course, upon withdrawal of the protection application there was no proceeding for the motion to attach to.

[16] The protection application was withdrawn without adjudication of the merits of the case. There were no findings or disposition made by the court.

[17] The Applicants then revived their application under the CLRA which included a motion for interim custody. The agency, having an interest in the CLRA matter, was granted status to bring this motion to strike the application of the L. family. The agency offers a permanency plan for J.A.T. Berens River First Nation provided the name of an aunt of the mother of the child as a potential placement in the First Nation. A half sister of J.A.T., S.C. who is thirteen years of age, is also in the care of the aunt.

[18] The agency questions the ideology of the Indigenous caregivers in the affidavit of Michael Domingos, service manager, who says the following:

Further, the Application by M.L. and D.L., J.A.T.'s foster caregivers, for custody of J.A.T. calls into question their understanding of First Nation cultural traditions, and the special role of foster parents within customary care and the best interests of this First Nation's child. [3]

[19] The interim motions first came before Justice M. Bode on September 20, 2019, who provided guidance to the parties and determined, in a detailed decision, that temporary care of J.A.T. should be granted to the Applicant caregivers without prejudice until full argument could be heard, and that the caregivers could enroll her in school in Thunder Bay.

POSITIONS OF THE PARTIES

[20] The relief sought in this motion by Dilico Anishinabek Family Care is that the application of D.L. and M.L. under the CLRA should be struck. There are a number of arguments the agency puts forth in support of this position:

1. Customary care is a creation of the CYFSA and the foster parents can only participate through the CYFSA;

2. J.A.T. is in customary care and the agency has legal guardianship, which should not be interfered with;

3. The court should show deference in regard to decisions related to placement, made by a mandated agency;

4. The Applicants are "foster" parents under the CYFSA and should not be allowed to proceed under Rule 7(4) of the Family Law Rules;

5. Only the parties to the customary care agreement can challenge the terms of that contract.

[21] The Applicants respond that the failure of the agency to proceed with a permanency plan for J.A.T. forced them to commence their Application. They argue that it is in the best interests of J.A.T. to remain with them and not to be moved to a placement in Berens River First Nation.

[22] There is a motion by the Applicants for interim custody of J.A.T. under the CLRA. At this point, I do not have to make a final decision or disposition in regard to J.A.T.

ISSUES

[23] In order to make the necessary decision at this interim stage of this case, a number of questions must be answered:

1. Does this customary care agreement bring the matter of J.A.T.'s custody under the Child, Youth and Family Services Act?

2. Are the Applicants "foster" parents and prohibited from bringing this Children's Law Reform Act action under the Rules, specifically Rule 7(4)?

3. Should the court show deference to the decision of the agency in regard to the placement of J.A.T.?

ANALYSIS

1. Does this customary care agreement bring the matter of J.A.T.'s custody under the Child, Youth and Family Services Act?

a. The Origin of Customary Care

[24] Dilico has argued that customary care is a creation of statute, namely the CYFSA, and that, as such, the matter is within the jurisdiction of the Act.

[25] The materials filed by the agency set out the history of customary care. Indigenous people have historically cared for their own children in a traditional manner. Family structures, roles and beliefs may be very different from that of Europeans. There may be differences between Indigenous communities and groups themselves, so that the approaches to questions related to children are grounded in traditions and cultures which can vary. Communities and Indigenous groups always cared for their children in accordance with their beliefs and customs. [4]

[26] When this system has been overridden by state action, such as in the case of residential schools and the "60's scoop", the results have been devastating for those children, as we are all aware from the work of the Truth and Reconciliation Commission chaired by Justice (now Senator) Murray Sinclair.

[27] As the slow process of the awakening of the Canadian public to these harms has occurred, child welfare legislation has been amended to begin to recognize not only the inherent right of Indigenous people to self-govern in child welfare, but that it is essential to the health of Indigenous children.

[28] The preamble in the current version of child welfare legislation in Ontario, recognizes that First Nation Inuit and Metis people have their own laws and have distinct cultural, political and historical ties to the province, and that there should be respect for the traditions and customs of various communities. The province commits to Indigenous people that, "wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions."

[29] Customary care is defined in the CYFSA:

"customary care" means the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child's parent, according to the custom of the child's band or First Nations, Inuit or Métis community; ("soins conformes aux traditions")

[30] The legislature has confirmed through the preamble, that the care of children in a traditional manner by Indigenous people (FNIM) is rooted in self-government and is a method of care which incorporates culturally specific practices. It was not created by statute but recognized by the CYFSA.

b. The Use of Customary Care in the CYFSA

[31] The CYFSA directs in s.80 that customary care should be considered by agencies in planning for FNIM children:

Customary care

s. 80 A society shall make all reasonable efforts to pursue a plan for customary care for a First Nations, Inuk or Métis child if the child,

(a) is in need of protection;

(b) cannot remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part or, where there is an order for the child's custody that is enforceable in Ontario, of the person entitled to custody under the order; and

(c) is a member of or identifies with a band, or is a member of or identifies with a First Nations, Inuit or Métis community.

[32] A court, making a final order in regard to an Indigenous child, is directed to consider customary care as a permanency plan in s.101(5). Customary care is an alternative disposition by a court under the CYFSA, and a society must make reasonable efforts to secure a customary care placement for a child. The statute contemplates that the plan can be used by the court as an alternative disposition. This type of customary care agreement falls squarely within the Act.

[33] In this case, the customary care agreements were not presented as possible dispositions after an examination of the merits of the case and protection findings. It was entered into outside of the court process.

c. Out-of-Court Customary Care Agreements

[34] The protection application in this case was withdrawn from the court before the interim care, findings or disposition stages. A customary care agreement had been signed.

[35] The Ministry of Children and Youth Services published a Guide in 2013 titled, "Formal Customary Care – A Practice Guide to Principles, Processes and Best Practices". The Guide was provided in the materials filed on this motion by the agency and there was reliance on this Guide by the agency. The Guide outlines customary care agreements formalized by an agency without the involvement of courts and sets out the steps:

To summarize, the following are five Ministry requirements for Formal Customary Care:

1. A child is believed to be in need of protection and requires placement with alternative caregivers in order to be safe;

2. The First Nation issues a BCR declaring that the child will be cared for pursuant to the custom of the First Nation and as specified in a Formal Customary Care Agreement;

3. A subsidy is paid to the child's caregivers by the CAS;

4. The placement is supervised by the CAS or a CAS designate; and

5. Customary caregivers who are in receipt of a subsidy from a CAS must meet the same licensing standards as a foster home.

[36] This is the system which is seen in our courts every day and which the judge responded to in J.A.T.'s case in 2018. An agency proceeds to conclude a customary care agreement outside of court, and the protection application is withdrawn without further consideration. These are out-of-court customary care agreements.

d. Characteristics of the Out-of-Court Customary Care Agreement

[37] By withdrawing their protection application from the court, the agency chose this "Formal Customary Care" system.

[38] Under the system espoused by the Ministry, the decision whether the child is in need of protection is made by the agency and the signatories to the agreement. The determination that the child must be kept in care for his/her own safety, is made by the agency and the signatories. The tradition for care in the First Nation, which varies by community, is implemented by the agency. The customary caregivers are paid a subsidy. A court under the CYFSA is not the decision-maker.

[39] Out-of-court customary care is enacted by the signing of a document called a Customary Care Agreement. The agency has argued that the agreement is a contract which cannot be challenged except by its signatories. J.A.T. is provided care pursuant to such an agreement.

i. Duration of the Out-of-Court Customary Care

[40] In this case there are a number of customary care agreements which have been signed by the biological mother, D.C., Dilico and Berens River First Nation. Most of the agreements filed on this motion have been redacted. They are called Short Term Customary Care Agreements.

[41] The agreements note that the "Short Term" agreements are limited to 6 months for a total period not greater than 12 months, when a "Long Term" customary care agreement "shall" be signed. There have been at least six "Short Term" consecutive agreements each of six months duration in relation to J.A.T. There was no evidence as to the mechanism that forces a review of these continuous temporary agreements or ensures that they move to Long Term agreements.

ii. Legal Guardianship in the Out-of-Court Customary Care

[42] Dilico has argued that they have legal guardianship of J.A.T., and that the application under the CLRA should be disallowed on this basis. The customary care agreements signed each contain the following clauses:

Legal Guardianship

The parties agree that the child is in the care of Dilico Anishinabek Family Care and that Dilico is the legal guardian of the child for the duration of this agreement.

The parents/caregivers agree and authorize Dilico to be the authorized representative to assume the duties of parent of the child, and have the rights and responsibilities as parents of the child for the purposes of the child's care. The parents/caregivers agree and authorize Dilico to carry out the parental duties for the child, such as related to education, medical, social, recreation, culture and travel.

[43] When asked in argument the source of their legal guardianship, the agency made it clear that their authority came from the Declaration of the First Nation. At the end of the customary care agreement is the "First Nation Declaration of Customary Care". Not all of the Declarations have been signed. The Declaration states:

In making this Declaration, the Berens River First Nation is exercising its inherent authority and responsibility for its children and is taking action in compliance with the Child, Youth and Family Services Act of Ontario, 2017.

[44] And further:

Declaration of Customary Care: The First Nation hereby declares that the above named child(ren) are to be cared for in accordance with the custom of the First Nation and are placed in the care and custody of Dilico Anishinabek Family Care. Dilico Anishinabek Family Care is guardian of the child, and as such shall supervise the child's placement(s), provide support to the child(ren) and the caregivers, provide a subsidy for the placement, and support parent(s) to access and complete services as needed.

[45] "Legal" guardianship in this case was not granted by a court. It appears that the First Nation in this agreement exerts its inherent authority over children and declares that the agency is the legal guardian of the child. The "legal" guardianship is recognized and acknowledged by the signatories.

[46] There is no statutory provision which substantiates that the First Nation has legal guardianship of children on a band membership list, as of right or by contract or agreement.

iii. Consents in the Out-of-Court Customary Care Agreement

[47] The father B.T. signed the Temporary Care Agreement that ended in February of 2016. He is not a signatory to any of the subsequent customary care agreements.

[48] There is no explanation by the agency for his absence from these agreements. He was involved in the efforts of the parents to meet the requirements of the agency in the first year of J.A.T.'s life. He had access until the summer of 2019. It appears that he may have attended one of the access visits when J.A.T. was meeting with the Berens River relatives in a hotel. He continues to live with the mother in Thunder Bay.

[49] The Guide sets out the individuals who should sign the customary care agreement:

Formal Customary Care is facilitated through a Formal Customary Care Agreement (FCCA). Signatories to the agreement include:

1. a representative of the First Nation with whom the child is registered or eligible for membership;

2. the child's biological parents (where one or both are available);

3. the caregivers with whom the child will reside;

4. a representative of the CAS that will be providing a subsidy to the caregiver; and

5. the child, where the child is older than 12 years of age.

[50] It contains no other details on the rights of the signatories.

[51] The CYFSA in s.22 (2) requires the consent of parents to voluntary placements under that Act:

Consent to residential care: child younger than 16 or in society's care

s.22 (2) A service provider may provide residential care to a child,

(a) if the child is younger than 16, with the consent of the child's parent; and

(b) if the child is in a society's lawful custody, with the society's consent, except where this Act provides otherwise.

[52] There is no evidence of consent to any of the out-of-court customary care agreements by the father. Neither the father nor the caregivers are signatories to the agreements. This is an important issue as the agency takes the position that only the signatories have any right to question the terms of the agreement and that others should be excluded from reviewing or criticizing the agreement, including the court.

[53] My concern is that there appear to be no requirements by the agency that the parents both must sign. Neither of the parents in this case have ever had the child in their custody. Each parent has had access. In this case, only one parent, equally situated, has signed. In addition, there is no evidence that the agency investigated the non-Indigenous family of J.A.T. for placement purposes.

[54] The customary care agreements used by the agency raise more questions about the underlying structure of these agreements:

1. How does one become a signatory to the agreement? Is it by invitation or as of right?

2. Is there a remedy for a parent who does not wish to have the child under customary care with a First Nation?

3. If, as in this case, there is one FNIM parent and a non-Indigenous parent, are the wishes of the FNIM parent given more weight?

4. Is there a process to ensure that requirements for consent, like those set out in s.21 of the CYFSA, are part of these outside customary care agreements?

5. Is there arbitration by an independent body if one or both of the parents disagree with the actions of the agency?

[55] The consent of a parent under the CYFSA can only be dispensed with in prescribed circumstances. In regard to the father of J.A.T., his consent to the customary care agreement has not been presented, there is no waiver of consent, and his consent was not dispensed with.

[56] Michael Domingos in his affidavit says that B.T. was in attendance at agency case conferences but did not always participate. He reports that both parents consented to the use of customary care agreements.

[57] The Applicant, M.L., states the following in her affidavit of October 23, 2019:

81. B.T. has made it perfectly clear he does not consent to J.A.T. being moved out of province. I therefore question the legal authority, as well the persuasiveness of the 'biological family's' unanimity to place J.A.T. out of district when her biological father has never consented…

[58] Attached to the same affidavit are texts between M.L. and a Dilico worker, Danielle Blundeau, which confirm that the father does not consent to J.A.T. being moved from Thunder Bay. In relation to the move, the worker says:

DB Dad said he doesn't like it either.

ML Then why is he agreeing? That is crazy. He can stop this.

DB Oh weird! Yes he said he dorsent(sp) want her moving away or anything

ML OMG! What the hell is he doing then?

DB Not sure he said they don't listen to him.

[59] The CYFSA and the Family Law Rules have established procedures that preserve the fundamental rights of the parents to participate in the process. The Act situates the court as the fair and independent arbiter of the issues that arise in child welfare cases. A court application is served on the parents and they have an opportunity to challenge the case of the agency. The applicant must prove service on a parent or have service dispensed with. Parents must be treated the same.

[60] In the case of Children's Aid Society of Brant and R.P., 2019 ONCJ 649, Justice Hilliard determined that the consent of the parent to a customary care agreement had been withdrawn and that the agency failed to bring the matter before the court within five days. In that case the mother had agreed to the customary care agreement upon the threat that a protection application would be commenced by the agency if she refused. In his comments, Justice Hilliard says:

Capitulation in the circumstances of children being out of one's care cannot be equated to ongoing consent to and agreement with children remaining in care. In this case, the respondent mother's uncontradicted evidence is that she articulated to representatives from Ogwedeni:deo on more than one occasion that she was not consenting to her children remaining in care.

[61] The absence of the father from the documents does not equate with ongoing consent to the plan of the agency or the customary care agreement. In the out-of-court customary care agreements in this case, there do not appear to be the same safeguards of parental rights as found in the CYFSA.

[62] In light of the powerlessness of parents such as these, it is critical that a system offer an avenue for relief for those affected adversely by the exercise of powers by the agency, and a forum of review by an independent body.

[63] There is no explanation why the caregivers' signatures are not required by Dilico, as recommended by the Guide. It would seem as though having the caregivers sign the agreement would make their commitment to the parents and First Nation personal and make this agreement seem more community related. It would also, in writing, commit the caregiver to the goals of the customary care agreement.

iv. Principles of the Out-of-Court Customary Care Model

[64] Dilico argued that their model of care called Mikinaak Model of Customary Care is a complete code for the care of children outside of the CYFSA. That code was not provided to the court in argument. Some of the characteristics of the care model described by the agency in their materials and arguments are as follows:

1. Each First Nation deals with customary care differently.

2. Dilico receives its direction and authority to deal with the child from the First Nation through the Declaration and is accountable to the First Nation.

3. A key consideration of the Mikinaak Customary Care Model is "re-assessment, reunification and repatriation" [6]

4. Children in customary care are "not in care" under the CYFSA. [7]

5. "Best interests" of the child is not the test to be applied. [8]

6. Culture, community and language are the predominant needs of a child. [9]

7. Culture, community and language cannot be acquired through visits but only through immersion in a life in the community. [10]

8. Customary care is not bound by any timelines, as recovery by the parents is a lifelong journey and the goal is always to return children to their parents regardless of when this occurs. [11]

[65] In his affidavit of November 16, 2019, Michael Domingos, family services manager for Dilico says:

The ability of First Nations people to enter into Customary Care Agreements prevents the imposition of Western beliefs, perspectives and traditions on First Nation peoples whose child-care traditions are well-established, and is a fundamental purpose of customary care. [12]

[66] In argument on this motion, Ms. Burns for the agency stated the following:

Best interests is not in fact the test and I would extend that to a case where the parties are exercising customary care… that this is customary care at work…that yes an agency, a First Nation and a biological parent are suggesting that no finding in need of protection is necessary…they do know the best interests of the child…that this decision should be made by the parties to that agreement.

[67] The agency also argued that it would be "absurd" to require that there be findings by a court before moving to a customary care agreement.

[68] The Guide from the Ministry says that a finding is necessary before a customary care agreement is entered into. The language of the customary care agreements in this case show that the signatories agree that the child is in need of protection. The difference in fact is that the findings in an out-of-court customary care agreement are made by the signatories including the agency, not a court or independent body.

[69] The CYFSA and the CLRA both base decision-making on the best interests of the child. They are child-centred. The needs of the child dictate the outcome.

[70] The out-of-court customary care system assumes, and the agency argued, that the First Nation knows what is best for the child and will make decisions for the child.

[71] J.A.T. had never lived in Berens River First Nation, visited there, or had a visit from any family members from that community until the spring of 2019. The visits were in anticipation of a placement change to Berens River. J.A.T. is virtually unknown there. Her parents and sister live in Thunder Bay.

[72] The plan of the agency to require the child to move to Berens River First Nation is based on a general policy to have band members raised in the community. This is a community objective. The "re-assessment, reunification, repatriation" focus of the Mikinaak Model of Customary Care of Dilico fits with this view of care.

[73] The agency also suggested that because it was the will of the mother D.C. to have the child taken to her aunt's home in Berens River First Nation, that her wish must be followed by any decision-makers. In cases under the CYFSA, the wishes of a parent are considered but are not mandatory directives, as Dilico suggests in regard to this situation. There appears to be no other reason to remove the child from her current home except the wishes of the mother and the First Nation and the position that culture and language are the predominant needs of J.A.T.

v. Nexus between the CYFSA and the Out-of-Court Customary Care

[74] There are no provisions in the CYFSA for review of out-of-court customary care agreements. The agency need not explain to anyone why certain individuals are parties while others are not. There is no court oversight in regard to other issues such as the use of Short Term as opposed to Long Term agreements.

[75] Customary care agreements can be presented at the disposition stage of a CYFSA proceeding. There is no method for the subsequent commencement of a proceeding under the CYFSA, particularly after the five day hard cap for a proceeding. There is no provision that allows the revival of a proceeding which has been withdrawn, as it was in this case.

[76] Does this out-of-court customary care agreement bring this matter within the jurisdiction of the CYFSA? I conclude that this out-of-court customary care agreement is not a creation of the CYFSA and does not fall within the jurisdiction of the Act.

[77] Out-of-court customary care in this case differs from the legislated system of the CYFSA in all aspects. The decision-makers are the parties to the agreement, not the court. J.A.T. is not considered to be a child in care and the statutory time limits requiring a permanency plan do not apply. The authority and direction to the agency come from the First Nation.

[78] The most important distinction between the CYFSA and the customary care regime in effect by the agency is philosophy. This is the real contest between the caregivers and the agency in J.A.T.'s case. The caregivers have been speaking to the issue of best interests, and the agency acts on the aspirations of the First Nation. The CYFSA time lines for children in care address the needs of children for stability and certainty; the customary care model focuses on the needs of the parents for time to deal with their life issues.

[79] I am not confident that the process of arriving at an agreement includes sufficient substantive and procedural safeguards. The difference in philosophy, objectives and procedures between out-of-court customary care and the CYFSA, and the lack of process and procedures in the CYFSA to deal with out-of-court customary care, lead me to the conclusion that the out-of-court customary care agreement is not a part of the CYFSA.

[80] The Court of Appeal in C.G. et al v. Catholic Children's Aid Society of Hamilton-Wentworth (1998), 40 O.R. (3d) 334, dealt with an application under the CLRA by foster parents. The foster parents had provided care to four Crown ward siblings, two of which had aged out. There was an allegation about the foster father and the home was closed and the children removed. In its decision to dismiss the CLRA application of the foster parents, the court reinforced that the Child and Family Services legislation was an exhaustive code for the, "supervision, custody, access, wardship and adoption" as established by the Court of Appeal in the case of C.G.W. v. M.J. (1981), 24 R.F.L. (2d) 342.

[81] The Province of Ontario in the Guide to Formal Customary Care sanctioned out-of-court customary care agreements. There is a lack of nexus between these customary care agreements by Dilico and process in the CYFSA. The customary care evidenced in J.A.T.'s case is actualized by agreements, not court orders based on best interests. The customary care implemented by Dilico is based on the expression of self-government by First Nations and the desire to repatriate any children related to their community.

[82] The proliferation of customary care agreements outside of the CYFSA has created a parallel system of child welfare by customary care. The claim in C.G. et al and the C.G.W. cases that the CYFSA is an exhaustive code related to child welfare in this province, can no longer be accurate.

2. Are the Applicants "foster" parents and prohibited from bringing this Children's Law Reform Act action under the Rules, specifically Rule 7(4)?

[83] One of the arguments made is that the Applicants are "foster parents" as defined by the Child, Youth and Family Services Act (the "Act") and thus prohibited under Family Law Rule 7(4) from applying for custody. Rule 7(4) says:

Parties In Cases Involving Children

(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:

1. A case about custody of or access to a child.

2. A child protection case.

3. A secure treatment case (Part VII of the Child, Youth and Family Services Act, 2017). O. Reg. 114/99, r. 7 (4) ; O. Reg. 298/18, s. 7 (1, 2); O. Reg. 535/18, s. 1

[84] Foster care is defined in s.2 of the CYFSA:

"foster care" means the provision of residential care to a child, by and in the home of a person who,

(a) receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and

(b) is not the child's parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),

and "foster home" and "foster parent" have corresponding meanings; ("soins fournis par une famille d'accueil", "famille d'accueil", "parent de famille d'accueil")

[85] On an initial review, the current situation may fit into this definition. The Applicants provide care to J.A.T. for payment, are not her parents and she is not placed for adoption with them. The Applicants signed an Alternative Care Agreement with Dilico for providing this service.

[86] In determining if J.A.T. is in "foster care", consideration must also be given to the definition of "residential care" found in s.2 of the CYFSA, a term used in defining foster care:

"residential care" means boarding, lodging and associated supervisory, sheltered or group care provided for a child away from the home of the child's parent, other than boarding, lodging or associated care for a child who has been placed in the lawful care and custody of a relative or member of the child's extended family or the child's community; ("soins en établissement")

[87] A member of the community is defined in s.2(3):

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.

[88] The Applicants are Indigenous and have an ethnic and cultural tie to J.A.T. They have a beneficial and meaningful relationship with J.A.T. as her caregivers and family at this point. This definition would suggest that they are part of her community. As such J.A.T. would not be considered to be in "residential care" and the Applicants would not be providing residential care as required to meet the definition of foster care.

[89] While foster parents receive compensation for care under the Act, customary care parents have a different funding model which is set out in s.71:

Subsidy for customary care

71 If a band or First Nations, Inuit or Métis community declares that a First Nations, Inuk or Métis child is being cared for under customary care, a society or entity may grant a subsidy to the person caring for the child.

[90] In the "Guide to Formal Customary Care" of the Ministry of Children and Youth Services, it says that, "Caregivers in FCC (Formal Customary Care) arrangements receive, from a CAS, a subsidy equivalent to that received by a foster parent. Formal Customary Care arrangements are supervised by the CAS; supervision is often carried out by a First Nation Family Services worker in collaboration with the CAS."

[91] Berens River First Nation declared that J.A.T. was being cared for under customary care. In those circumstances it appears that there is a subsidy which may be paid to the customary care parents but is not mandatory. The Act specifically distinguishes customary caregivers from foster parents by their form of payment.

[92] The agency has also stipulated that J.A.T. is considered "not in care" while being cared for under customary care so that the time restraints of the Act do not apply to children in customary care. This is confirmed by the Guide issued by the Ontario government which says, "Children placed in Formal Customary Care arrangements are not subject to the same time constraints because they are not legally 'in care'." The agency in this case has made the argument that J.A.T. is "not in care" for the purposes of the Act.

[93] In the federal Bill C-92: Act Respecting First Nations, Inuit and Metis children, youth and families, which came into effect January 1, 2020, a "care provider" is defined as, "a person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child's parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs." The Applicants fit this definition as they provide day to day care to J.A.T. and are not her parents. In s.13 of the Act it also states that:

s.13 In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child,

(a) The child's parent and the care provider have the right to make representations and to have party status; and

(b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations.

[94] Interestingly, the federal statute grants the care provider party status in a child and family services matter, but not the Indigenous governing group such as the First Nation.

[95] In consideration of all of these factors, I find that the Applicants are not foster parents but are customary caregivers or care providers. They are not prohibited by Rule 7(4) from bringing an application under the CLRA.

[96] Even if I were wrong in this assessment, I would exercise my discretion under Rule 7(5) to allow them as parties.

[97] The CLRA in s.21 sets out that the Applicants can apply for custody of J.A.T.:

Application for custody or access

21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21 ; 2016, c. 23, s. 3 ; 2016, c. 28, s. 1 .

[98] The CLRA establishes the right of the caregivers to apply for custody as "any other person". Further, the CLRA also establishes persons who are parties to an application:

Parties

s.62(3) The parties to an application under this Part in respect of a child shall include,

(a) the child's parents;

(b) a person who has demonstrated a settled intention to treat the child as a child of his or her family;

(c) a person who had the actual care and upbringing of the child immediately before the application; and

(d) any other person whose presence as a party is necessary to determine the matters in issue. R.S.O. 1990, c. C.12, s. 62 (3) ; 2016, c. 23, s. 14 .

[99] The caregivers have demonstrated a settled intention to treat J.A.T. as a member of their family, had actual care and upbringing of her prior to bringing the application and in my estimation, their knowledge of J.A.T. and their perspective of her needs would compel their approval as parties.

[100] Finally, J.A.T. needs a full hearing of her needs in an appropriate forum where the test is her best interests. The court cannot commence a protection application under the CYFSA. The remaining appropriate forum is that found in the CLRA.

3. Should the court show deference to the decision of the agency in regard to the placement of J.A.T.?

[101] Dilico Anishinabek Family Care is mandated by the Province of Ontario as a child welfare agency. The argument put forward by them is that there should be deference to their decision to change the placement of J.A.T. from the L. family to the aunt in Berens River. That deference would be shown, they argue, by dismissing the application of the L. family.

[102] In the C.G. case previously cited, the Court of Appeal cited with approval the comments of Lord Wilberforce in A. v. Liverpool City Council, [1981] 2 All E.R. 385, where the court said:

It was suggested that, as the local authority is put effectively in the position of the natural parent (see s.24(2) of the 1969 Act) the High Court must have the same power in the interest of the infant, to review and control its actions, as it undoubtedly has over those of the natural parent. But I can see no parallel between the responsibilities of a natural parent and those entrusted by Parliament by statute to a public authority possessed of the necessary administrative apparatus to form and to carry out, necessary against the wishes of the natural parent, its discretionary decisions. In my opinion Parliament has marked out an area in which, subject to the enacted limitations and safeguards, decisions for the child's welfare are removed from the parents and from supervision by the courts.

[103] This case stands for the proposition that, where the agency has the position of the natural parent, that such a statutory position is beyond the supervision of the courts and that there is deference to the decisions of the agency in regard to placement.

[104] The main distinction between the C.G. case and the case at bar is that the court in C.G. had determined a final order of Crown wardship after the matter had proceeded through court. In other words, the status of the child had been vetted and determined by the court and there was an existent court order. The agency is requesting that their decision for placement is to be given equal deference. As I have said earlier, the assurance mechanisms inherent in the process under the CYFSA and in fact the Family Law Rules are not evident in the out-of-court customary care system.

[105] For the reasons given earlier, J.A.T.'s case is not a CYFSA matter. The mother, the agency and the First Nation have determined that the care of J.A.T. shall be based on a customary care agreement. Should there be deference to this decision of the signatories? The customary care agreements are similar to other custody and access agreements and do have a binding authority on the parties to the agreement. They are not binding on other entities with an interest. The absence of the signature and consent of the father impacts on the weight to be given to the out-of-court customary care agreement.

[106] Secondly, the fact is that the agency has not articulated any urgent need of the child requiring a change of placement except for the wishes of the First Nation and the mother. The wishes of the mother must be considered but cannot be given deference. The evidence suggests that she has not been able to demonstrate her commitment to the best interests of the child during access visits. Further information in regard to the needs of the child can be thoroughly canvassed at trial, but is not before the court on this motion.

[107] The issue in regard to the First Nation is more difficult. Ordinarily there should be deference to the decisions of democratically elected bodies within their area of authority. The concept of self-government is one to be respected. Given the facts in this case, the First Nation has an interest in this child and a right to participate, but there is no statutory authority to make the placement decision.

[108] Finally, the reason that I cannot show deference to the placement decisions of the agency is because there are factors other than the best interests of J.A.T. which the agency applies in their decision-making, and the court cannot with confidence assume the extent to which the best interests test is used by the agency. The best interests test is a holistic view of the needs of a child and does not focus exclusively on the needs for culture and language. I am not convinced that the process of arriving at an agreement was based on principles related to the needs of J.A.T.

DECISION

[109] The agency seeks that the application of D.L. and M.L. be struck, and that the couple not be allowed to be parties in any case related to custody or access to J.A.T.

[110] The Court of Appeal has made it clear that striking of the application of a party must be the last resort as far as relief. In Kovachis v. Kovachis, 2013 ONCA 663, Laskin J.A. said:

[24] The principle governing this appeal is well established. In any case, but particularly in a family law case, a party's pleading should be struck only in exceptional circumstances, where no other remedy would suffice: see, for example, Percaru v. Percaru 2010 ONCA 92, 265 O.A.C. 121 at paras. 47-48. If a party's pleading is struck, that party "is not entitled to participate in the case in any way": see Rule 10(5)(b) of the Family Law Rules.

[25] The rationale for this principle is obvious. Without one side's participation in the trial, there is a risk the court will not have either enough information or accurate information to reach a just result. If the judgment provides for continuing obligations that can only be varied on changed circumstances, as many family law judgments do, the injustice may be perpetuated.

[111] Most of the cases where striking of the application is applied are cases where a party has refused to comply with orders of the court. That is not the case here. There is a risk that information necessary to review the best plan for J.A.T. would not be present if the application were to be struck. There is nothing in this case, and particularly the behaviour of the Applicants, that calls out for this extraordinary remedy.

[112] The application under the Children's Law Reform Act will be allowed to proceed as:

a. J.A.T.'s case is not a child welfare case under the CYFSA as it involves an out-of-court customary care agreement which lacks the oversight, procedures and principles of the provincial legislation and operates outside of and in parallel to the Act.

b. The applicants are customary caregivers and not "foster parents" under the CYFSA, and entitled to bring this application.

c. Deference cannot be given to the placement decision of the agency in the absence of evidence of procedural fairness mechanisms, in this case related particularly to the consent of the father.

d. Deference cannot be given to the placement decision of the agency as it is based on principles other than the best interests of the child.

[113] In regard to the issue of J.A.T.'s interim care, there has been uncontradicted evidence that she is well cared for and healthy. The relationship of the L. family with this child has been beneficial to her.

[114] Clearly the situation between the agency and the Applicants has deteriorated to a level that will make it difficult for them to work together. They have spent at least two years taking adversarial positions in regard to J.A.T.

[115] I must also consider fairness in allowing access to the Respondent parents and the proposed caregiver from the First Nation, while monitoring J.A.T.'s response to the access. The agency and the Applicants have opposite views of the benefit to J.A.T. of the access to date. I am satisfied that there has been some stress to the child and concerning behaviours as a result of the immediate and lengthy visits with the great aunt and family in both Berens River and Thunder Bay.

[116] The parents, caregivers and R.C., the great aunt, are entitled to have a full hearing of the plans that they propose for J.A.T.

[117] Decisions related to J.A.T. must be based on her best interests. A child is not owned or property. She is entitled to have her integrity as a person centered as the most precious and fragile consideration of all parties.

[118] In consideration of all of these factors, I order on an interim basis as follows:

1. The Applicants shall be entitled to continue with their application under the CLRA. The motion to strike is dismissed.

2. D.L. and M.L. shall have interim custody of J.A.T.

3. R.C. shall be entitled to be added to the CLRA application as a Respondent by serving written notice of her desire to do so upon the Applicants within 7 days. Should she do so, she shall be served with the Application by the L. family and shall have thirty days to file an Answer on the Applicants and each parent.

4. A Children's Lawyer shall be appointed for J.A.T. or a social work investigation requested;

5. Dilico Anishinabek Family Care shall facilitate services for the child, but shall not make other decisions about the child without the consent of her caregivers or order of the court.

6. The mother D.C. and the father B.T. shall be entitled to supervised access.

7. If R.C. becomes a party, she is entitled to access.

8. The access exercised by D.C., B.T. and R.C. shall be on the following conditions:

   a. The access of the parents and great aunt shall not, in combination, exceed 48 hours per month.

   b. There shall not be any overnight access at this time.

   c. All access shall be in Thunder Bay.

   d. No other individuals other than supervisors, the OCL or an agreed third party shall attend the access visits.

   e. The parents and great aunt shall propose a schedule for the next two months which may be agreed by the Applicants or the matter of the schedule can be addressed with the court.

   f. R.C. shall refrain from having the child refer to her as mother or mom.

9. The current customary care agreement and the Alternative Care Agreement shall be stayed pending further order of the court. No other customary care agreements shall be signed regarding J.A.T., and no other proceedings shall be commenced without leave of the court.

10. The matter shall return to the court on a monthly basis for monitoring until further order.

11. The case shall return to the list of the case management judge on the next list day.

Dated at the City of Thunder Bay this 3rd day of March, 2020

Justice D.J. MacKinnon