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.

(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.

Ontario Court of Justice

Date: 2023 03 09 Court File No.: Sarnia, Ontario 15/20

BETWEEN:

Sarnia-Lambton Children’s Aid Society Applicant,

— AND —

B.L.G. and D.L.F. Respondents

Before: Justice M. Vickerd

Heard on: December 6, 2022 Reasons for Judgment released on: March 9, 2023

Counsel: D. Cunningham, counsel for the Applicant Society C. George, Band Representative for the responding party to motion L. Unrau, counsel for Aamjiwnaang First Nation No appearance by or on behalf of Respondents B.L.G. and D.L.F. (in default).

VICKERD J.:

Overview

[1] The Applicant Sarnia-Lambton Children’s Aid Society (“SLCAS”) advances a motion seeking an order to add Aamjiwnaang First Nation (“AFN”) as a party to this proceeding.

[2] The responding party to the motion, AFN seeks to have the motion dismissed, with costs. The AFN opposes any order adding it as a party in this proceeding.

[3] This motion is advanced within the context of a Status Review Application.

Background

[4] The subject child of this Status Review Application is “LFG” born […], 2018.

[5] Aamjiwnaang is a First Nation located near Sarnia, Ontario.

[6] The child’s parents are the Respondents B.L.G. and D.L.F.

[7] The Respondent mother is not Indigenous.

[8] The Respondent father is a status member of the Aamjiwnaang First Nation pursuant to section 6(2) of the Indian Act.

[9] Given that the child’s mother is non-Indigenous, he is not eligible for status or Aamjiwnaang membership.

[10] LFG was taken to a place of safety from his mother’s care. He has resided in the care of his maternal grandmother since January 17, 2020, pursuant to court order.

[11] On March 9, 2021, in the originating child protection proceeding, Madam Justice A.E. McFadyen made findings regarding the child’s identity as required under section 90(2) of the Act. Further, she made a finding that LFG and his siblings are children in need of protection under the Child, Youth and Family Services Act (the “CYFSA”) specifically sections 74(2)(a)(i), 74(2)(b)(i), 74(2)(b)(ii) and 74(2)(h). On the same day, an order was made placing LFG into the care and custody of his maternal grandmother, G.Q., for a period of six months subject to the supervision of the SLCAS on terms. The same order contained a provision for access between LFG and each of his parents.

[12] In relation to the findings regarding the child’s identity, Madam Justice A.E. McFadyen found that:

The child [LFG] is a First Nation, Inuk, or Metis person within the meaning of the legislation (Aamjiwnaang First Nation, however he is not eligible for membership)

[13] The current Status Review Application was issued August 24, 2021. The Applicant Society seeks an order placing the child into the custody of his maternal grandmother pursuant to section 102 of the Act, with access to be provided to the Respondent parents.

[14] Neither parent has filed an Answer in this Status Review Application.

[15] In November 2021, SLCAS advanced a first motion to add AFN as a party to this litigation. C. George deposes that there was no consultation by SLCAS with the Band prior to this motion. After the motion was advanced and consultation undertaken, the motion was withdrawn by SLCAS on March 8, 2021.

[16] The SLCAS advanced a second motion to add AFN as a party (the current motion) initially returnable on July 5, 2022 seeking an order to add AFN as a party in this proceeding.

[17] Discussions between the SLCAS and AFN about the issue of the Band’s participation in planning for LFG, occurred prior to the advancement of the current motion.

[18] In an email dated December 16, 2021 from Band Representative C. George to Andrea Dalziel, SLCAS Director of Services (appended as Exhibit “F” to the Affidavit of C. George sworn November 17, 2022), she addresses several concerns about the Society’s failure to consult with the Band and failure to abide by terms of AFN’s protocol. Specifically, she writes of the SLCAS workers management of this file, and others:

. . . . . .have had an extreme negative impact on service delivery to Aamjiwnaang First Nation members, staff, and myself. The impact includes exposure to racism, lack of services being delivered in a culturally safe manner, or in any manner, inaccurate notes, inaccurate court documents, and the numerous hours it takes me to document all of this, not to mention the spiritual and emotional impact I consistently experience having to go through all of this.

I have already had to deal with the lack of consultation with your Indigenous team manager Margaret Price. Two of your three Indigenous managers at your agency have not followed the protocol with Aamjiwnaang First Nation, nor have they fulfilled your legal obligation to consult with Aamjiwnaang First Nation. Avery Petersen has since moved off of the Indigenous Team, by choice not by reassignment, yet he is still impacting on Aamjiwnaang First Nation files by repeating the same behaviour.

This clearly emphasizes your Agency’s deep rooted systemic racism. Additionally, the impact continues to this day as your Agency allows these 2 managers to deal with Aamjiwnaang First Nations files; each and every time their involvement results in an issue that I then have to remedy, if I can. Your proposal to review the protocol and closely supervise your workers and managers falls short. The type of change necessary is systemic. Part of that change is having managers on the Indigenous Team that all follow the protocol of the Aamjiwnaang First Nation and properly consult with Aamjiwnaang First Nation.

[19] After that date, SLCAS Director of Services, Jennifer Thrasher, sent an email on April 12, 2022 to the Band Representative C. George seeking to have further discussions about the child and the Band’s participation in this file. The Band Representative C. George deposes in her Affidavit sworn November 17, 2022 that she did not respond to Ms. Thrasher’s email as she “had other matters that required my attention and the CAS was otherwise clearly apprised of Aamjiwnaang’s position on the matter.”

[20] In response to notice of the current motion, C. George sent an email to SLCAS’ legal counsel dated July 5, 2022 (attached as Exhibit I to the Affidavit of C. George sworn November 17, 2022) in which she writes:

Both motions were brought without your client consulting me and without my consent.

This is extreme and I would ask that you consider withdrawing this motion yet again today.

I will not be attending court at 3:15pm today on this matter as you know and have known Aamjiwnaang First Nation is not consenting to be added as a party.

[21] Ultimately the motion was adjourned for argument, with AFN retaining counsel and filing pleadings.

Positions

[22] The Society asserts that the AFN should be added as a party to this proceeding as required by the provisions of the CYFSA. Essentially, the SLCAS seeks to rectify an omission made in the first order addressing the findings for the child under section 90(2) of the Act. The SLCAS submits that in advancing this motion, its intent is not to burden the AFN with an obligation to participate in this child protection proceeding, but to comply with the provisions of the CYFSA.

[23] The AFN opposes the request that it be added as a party and takes the position that the Society misconceives the nature of a First Nation’s participation under the CYFSA, fails to respect Aamjiwnaang’s sovereignty and autonomy as a First Nation and the motion constitutes a waste of judicial resources. The AFN asserts that a First Nations’ participation under the Act “is an entitlement and not an imposition.”

[24] AFN further asserts that it should not be a party to this proceeding, advancing that AFN has limited capacity and resources which limit its ability to engage on every child welfare matter that “comes its way.” AFN asserts that it must prioritize which matters it can engage on and the extent of that engagement.

[25] Further, AFN notes that although the Respondent father is a member of AFN, his children are not eligible for membership or status under the Indian Act. AFN also points out that the Respondent father does not reside on-reserve and there is no evidence that he has sought Aamjiwnaang supports or services for any of his children. In summary, AFN states that it does not have a connection to this child and is not in a position to advise on his best interests or participate in a plan of care on LFG’s behalf.

Analysis

Court’s Authority to Add a Party

[26] Family Law Rule 7 (O. Reg. 114/99), identifies parties to a family court proceeding in Ontario.

[27] Rule 7(5) allows that the court “may order that any person who should be a party shall be added as a party and may give directions for service on that person” (O. Reg 114/99).

[28] The Application of Family Law Rule 7 in child protection proceedings is confirmed in the recent cases of: Children’s Aid Society of Algoma v. T.M., 2021 ONCJ 640 and Durham Children's Aid Society v JS, 2022 ONSC 2535.

Who is a Party in a Child Protection Proceeding?

[29] Party status in child protection proceedings is addressed in Section 79(1) of the CYFSA which provides:

79 (1) The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child’s parent.

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

[30] Justice V.A. Starr in Halton Children's Aid Society v MM, 2016 ONCJ 237 confirmed that the inclusion of a child’s First Nation, Inuk or Metis community as a formal party in child protection proceedings functions as a “safeguard” to ensure participation by communities with interests in their children:

There are safeguards to ensure that all, including the Indian and native communities across the province who have a communal interest in the outcomes of its children, can participate in the proceedings to protect those interests and to ensure that the objectives and special provisions of the Act are fulfilled. One safeguard is the inclusion within the definition of party, a representative chosen by the child's band or native community as a party to a proceeding under Part III [see subsection 39(1)4]. A second safeguard is found in the Family Law Rules. Subrules 8(5) and (6) of the Family Law Rules require that the child's Band or native community be served with the application at first instance, when the application is made.

Finding of a Child’s Connection to a First Nation

[31] In order to address party status under section 79(1) 4., the statutory provisions regarding “identification” findings for a child must be addressed. As set out in section 90(2) of the CYFSA:

90(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.

[32] A child’s identification as a First Nation’s child is critically important in any child protection proceeding. Justice Blishen in Children's Aid Society of Ottawa v NP, 2019 ONSC 893 at paragraph 10 confirms that:

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.

Children's Aid Society of Ottawa v NP, 2019 ONSC 893

[33] Justice Hardman in Bruce Grey Child and Family Services v. A.B.-C. 2018 ONCJ 516 confirms that the finding under section 90(2) is not a declaration of status but it is a finding for the purpose of promoting the best interests of the child:

I think that it is important to recognize that a finding under subsection 90(2) (b) is NOT a declaration of status. It is a "finding" by the court for a specific purpose, that purpose being to "promote the best interests, protection and well-being of children" (CYFSA subsection 1(1)). That purpose is promoted through the service of appropriate parties so that interested parties can participate in finding child-focused solutions.

It is somewhat similar to a court in the Ontario Court of Justice finding a person a parent for the purpose of ordering child support under the Family Law Act (FLA) but not as a general declaration of that person's status as a parent.

This finding ensures that a First Nations, Inuit or Métis community with connection to the child is recognized as a party and participant in the decision-making around that child. With the recognition comes the expectation that that community may be able to help the society, parents and court make a plan addressing the best interests of that child.

It would appear that the intention of the amended finding is to help maintain and emphasize a child's connection with his or her First Nations, Inuit or Métis heritage particularly through his or her cultural community.

Given the fact that the finding is made to ensure the right interested parties are served, there appears to be an underlying expectation that there be some identifiable connection between the child or his or her family and that particular cultural community. Indeed, notice in subsection 79(1)4 is given to "a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities".

Bruce Grey Child and Family Services v AB, 2018 ONCJ 516

Is this Child “LFG” a First Nations, Inuk or Metis Child ?

[34] A finding was made by Madam Justice McFadyen on March 9, 2021 that LFG is a First Nation’s child. No party seeks to dispute this finding.

The Identification of the Child’s Band

[35] After a finding is made that a child has a connection to a First Nation, the next step is to identify the child’s bands, First Nations, Inuit or Métis communities, if possible.

[36] The crux of AFN’s counsel legal argument is that there is no evidence for the Motion which supports a finding that the child’s Band is AFN. It argues that the existence of a connection is not sufficient to establish that the Band has standing in this proceeding. Counsel pointed the court to sections of the CYFSA and associated Regulations to supports it argument.

[37] In this matter, Madam Justice A.E. McFadyen included in her order of March 9, 2021 a notation identifying the Aamjiwnaang First Nation is the child’s Band. Further, she confirmed in the same order that the child is not eligible for membership. Thus, she identified and confirmed the child’s band to be AFN despite his eligibility status.

[38] None of the Society, the Respondents or the AFN has sought to vary this finding nor appealed that Order.

First Nations’ Party Status

Socio-Legal Framework

[39] In considering the submissions of the parties to the motion, it is important to examine the legal framework of the participatory rights of First Nations in child protection matters.

[40] In 1985, the Ontario legislature enacted reform to the provincial child welfare regime which included addressing the treatment of Indigenous children. The reform was advanced by the 1982 report titled The Children’s Act: Consultation Paper. In that paper, a recommendation was made that:

… we are recommending that the chief of a status Indian child’s band be entitled to notice and legal standing in child protection proceeding involving a status Indian. This type of requirement currently exists in British Columbia legislation and seems to be an appropriate means of ensuring that a court is aware of the cultural aspects of a case. (page 101)

[41] The legislature’s response to the 1982 Consultation Paper was the enactment of the Child and Family Services Act, (the “CFSA”) which came into force in 1985. This new legislation recognized party state for “a representative chosen by the child’s band or native community” providing that

39 (1) The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child’s parent.

4. Where the child is an Indian or a native person, a representative chosen by the child’s band or native community.

[42] The successor legislation, the Child, Youth and Family Services Act was introduced through Bill 89 in 2017. The explanatory note provides that whereas the preceding Act refers throughout to Indian and native children and gives certain rights of notice and participation to a representative chosen by the child’s band or native community, the new Act refers to First Nations, Inuit and Metis children and young persons, and gives rights of notice and participation to a representative chosen by each of the child and young person’s bands, and First Nations, Inuit, or Metis communities. It is further noted that all references to a child’s or young person’s bands, and First Nations, Inuit or Metis communities in the new Act include any band for which the child or young person is a member or identifies with.

[43] The current child protection legislation, the CYFSA, was enacted to replace the Child and Family Services Act. The new Act encompassed many changes including the removal of stigmatizing and archaic language, changing the criteria for access to children in extended care, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to their communities. Kawartha-Halliburton Children’s Aid Society v. M.W. 2019 ONCA 316, [2019] O.J. No. 2029 ONCA 316, 24 RFL (8th) 32, 432 DLR (4th) 497, [2019] 4 CNLR 143, 2019 CarswellOnt. 5927.

[44] The CYFSA broadened the definition of who is recognized as an Indigenous child. The new legislation confirms a commitment by the government to preserving children’s cultural identity and connection to community. Therefore, any child who identifies as First Nations, Métis or Inuit, has a family member who identifies or if there is a connection between the child and a band, is now recognized as First Nations, Métis or Inuit.

[45] When the CYFSA was introduced for second reading in February 2017, important principles were embraced and included in the new legislation as confirmed by Justice Walters:

The proposed legislation acknowledges the unique relationship between Ontario and Indigenous peoples and refences the United Nations Declaration on the Rights of Indigenous Peoples and Jordan’s principle. It acknowledges that First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada with their own laws and distinct, political and historical ties to Ontario.

The proposed legislation expands and modernizes language that is out of date and stigmatizing by replacing it with a more inclusive term, as well as allowing for self-identification. It repeals terms like “Indian” and “native” and replaces them with “First Nations, Inuit and Metis children and families.” It also requires societies to make all reasonable efforts to pursue a plan of customary care for First Nations, Inuit and Métis children and youth in need of protection. As much and as often as possible, we will honour the traditions of indigenous communities, including customary care, by supporting efforts to keep children close to home and all of that is familiar. (Bill 89, Supporting Children, Youth and Families Act, 2017, 2nd reading, Ontario Legislative Assembly, Official Reporter of Debates (Hansard), 42-2 No 44 (22 February 2017) at 2324 (Hon. Sophie Kiwala)).

Children’s Aid Society of the Regional Municipality of Waterloo v. C.E. 2020 ONSC 6314

[46] In this case, the preamble and unique considerations of the CYFSA for First Nations, Inuk and Métis are important as, if the child is confirmed to be of Indigenous heritage, care and services provided to them under the child protection legislation must be done with recognition and deference to their community’s distinct culture, heritage, and tradition and with the aim of preserving his connection to his community.

[47] As confirmed by Justice Walters in Waterloo v. C.E, above:

The enactment of the CYFSA reflects an important step towards reconciliation and the promise not to repeat the irreparable harms that the child welfare system perpetuated against Indigenous children and their families. It also embraces the principle of self-identification, recognizing that Indigenous children, families and communities have the fundamental right to declare for themselves who they are.

The preamble of the C.Y.F.S.A. provides:

The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard.

The Government of Ontario is committed to the following principles:

Services provided to children and families should be child centred.

Children and families have better outcomes when services build on their strengths. Prevention services, early intervention services and community support services build on a family’s strengths and are invaluable in reducing the need for more disruptive services and interventions.

Services provided to children and families should respect their diversity and the principle of inclusion, consistent with the Human Rights Code and the Canadian Charter of Rights and Freedoms.

Systemic racism and the barriers it creates for children and families receiving services must continue to be addressed. All children should have the opportunity to meet their full potential. Awareness of systemic biases and racism and the need to address these barriers should inform the delivery of all services for children and families.

Services to children and families should, wherever possible, help maintain connections to their communities.

In furtherance of these principles, the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.

With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

[48] Also, in respect of the current motion. I have considered the federal legislation, Act Respecting First Nations, Inuit and Metis Children, Youth and Families S.C. 2019, c. 24. At present both the federal An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, and provincial legislation the Child, Youth and Family Services Act, apply to children and family services matters for Indigenous Families as confirmed by Murray J. in Mi’kmaw Family and Children Services v. D.P. 2020 NSSC 96 at para 41.

[49] The purpose of the federal legislation is found in section 8, which is noted as to:

(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;

(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and

(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

[50] There is an emphasis in the federal legislation on best interests of the child. The best interests’ consideration for Indigenous children is addressed in section 10 which provides:

Best Interest of the Indigenous Child

10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional, and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

Factors to be considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including

(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[51] The federal legislation also provides that child and family services are to be provided to an Indigenous child in a manner that:

(a) takes into account the child’s needs, including with respect to his or her physical, emotional and psychological safety, security and well-being.

(b) takes into account the child’s culture;

(c) allows the child to know his or her family origins; and

(d) promotes substantive equality between the child and other children.

[52] The obligation to provide notice to a child’s Indigenous governing body before taking any significant measures in relation to the child is also adopted in the federal legislation, at section 12(1):

12 (1) In the context of providing child and family services in relation to an Indigenous child, to the extent that doing so is consistent with the best interests of the child, before taking any significant measure in relation to the child, the service provider must provide notice of the measure to the child’s parent and the care provider, as well as to the Indigenous governing body that acts on behalf of the Indigenous group, community or people to which the child belongs and that has informed the service provider that they are acting on behalf of that Indigenous group, community or people.

[53] The notice obligations support meaningful consultation about a child’s care with his community and especially when there is litigation as confirmed in section 13 of this Act:

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.

In summary, both provincial and federal legislation confirm the importance of engaging with a child’s First Nation when making decisions about the child’s care and in his best interests.

CYFSA and Provision for Party Status

[54] Parties to child protection litigation are identified in section 79(1) as set out above and includes:

In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities. (subsection 79(1) 4.)

[55] The language of this section is mandatory- the representative of a child’s band or first nation is a party. There is no room for discretion.

[56] Justice Kukurin in CAS of Algoma v. A.B. 2018 ONCJ 452 confirms that:

The biggest consequence of finding a child to be a First Nation child is that a band representative from the child’s band becomes a statutory party. (paragraph 40)

Participation of Aamjiwnaang First Nation

[57] The AFN asserts that the First Nation’s participation under the CYFSA is an entitlement for the band and not an imposition. It argues that an “entitlement” is “exercised by and for the entitled.” It points out that the legislative history shows a Band’s participation to be a right or entitlement and that the Society misconstrues the purpose of the current legislation. It further argues that to add the band against its wishes would be paternalistic and damaging to the relationship between a First Nation and child protection agency.

[58] Neither the Society nor this Court can compel the AFN to participate in this litigation concerning LFG. I accept the argument made by AFN’s counsel that:

▪ There is no requirement that a Band actively participate and file an Answer in any child protection proceeding.

▪ The AFN has clearly notified the SLCAS and the Court that it will not file an Answer nor present a plan for care for LFG.

▪ The AFN will not apply resources to respond to this child protection proceeding as LFG is not a band member.

▪ The AFN has limited resources and must apply them as it deems best.

▪ The AFN does not have funding for services to assist LFG who is not a registered Band member.

[59] The right to participate, through party status, does not mandate participation. More specifically, although named as a party, the Band can elect not to file an Answer and not to participate. Despite a finding of party status, the Band is not required to take any action. As noted, by AFN counsel, “Aamjiwnaang, for its part, has unequivocally stated that it will not be participating further in this proceeding regardless of the outcome of the motion.” The fact that the Band declines to provide care planning and/or services for LFG, who has a father that is a registered member of the Band, is a decision of the Band. This court has no authority to review that decision.

[60] As noted by AFN counsel, although Ontario has long recognized the standing of First Nations representatives in child protection proceedings, there are no reported decisions in which a court “forcibly” adds a First Nation as a party. Counsel infers a conclusion from this fact that courts are disinclined to make such orders. I disagree with this conclusion. In fact, there may be a different reason for the lack of case law in this area, namely other First Nations do not oppose party status and such motions are not required.

[61] As well, AFN’s counsel argues in his Factum that the participatory rights entrenched in the child protection legislation “are limited to benefit First Nations and to ensure that courts can be apprised of the ‘cultural aspects of a case” and that they are “certainly not intend to be used to the detriment of First Nations…. by forcing them to participate in proceedings against their will.”

[62] This approach is too narrow. The application of party status to a band in a child protection proceeding is not solely for the benefit of a First Nation and its communal interests in its children, but it is also for the benefit of the child.

Relevance of Band’s Party Status for the Child

[63] The paramount purpose of the Ontario child protection legislation is found in section 1(1) of the CYFSA which is “to promote the best interests, protection and well-being of children .” Similarly, in the federal legislation is provided that the Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

[64] A finding that the AFN is a party to this child protection proceeding has consequences for the child and is in his best interests.

[65] If the band is an added party, if during this proceeding, the Society’s plan for care of LFG changes, it will be required to serve any amended pleadings upon the Respondents, including the Band. In any further child protection litigation, the Band will receive notice of future proceedings. Through party status, the option of participating in future proceedings is preserved. There are many circumstances in which the Band may decide to participate in future proceedings concerning LFG: the Band’s resources improve; the funding structure for non-registered members of the AFN changes; the Respondent father becomes an active member and seeks support from his Band; a future Band representative take a different view of its position; the child’s current caregiver is rendered unable to care for him; or the child may wish to explore his connection with his First Nation community.

[66] The child LFG has an entitlement to all protections, services, preservation of family and community connections and all other entitlements afforded to him under the child protection legislation. These entitlements flow from the finding and perhaps his band’s participation.

[67] I find that to truly honour the to the paramount purpose of the child protection legislation, namely “to promote the best interests, protection and well-being of children” the AFN should be added as a party. What the Band decides to do with its party status is within its purview.

Order

[68] Given the foregoing, an order is made that the representative chosen by Aamjiwnaang First Nation is added as a party in this Status Review Application. The Sarnia-Lambton Children’s Aid Society shall serve the AFN representative with the Amended Status Review Application within twenty (20) days.

Released: March 9, 2023 Signed: Justice M. Vickerd