Warning
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.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2023 03 02 COURT FILE No.: Gore Bay K17-0047
BETWEEN:
Kina Gbezhgomi Child and Family Services Applicant,
— AND —
J.M., B.C., Zhiibaahaasing First Nation, M’Chigeeng First Nation, and C.S. Respondents
Before: Justice J. Wolfe
Heard on: February 16, 2023 Reasons for Judgment released on: March 2, 2023
Counsel: J. Rachelle Philippe, counsel for the applicant society, Kina Gbezhgomi Child and Family Services Ruth Ambros, counsel for the respondent father, B.C. James Weppler, counsel for the respondent Zhiibaahaasing First Nation Sarah Clarke, counsel for the respondent M’Chigeeng First Nation Lance Talbot, counsel for the respondent C.S. No appearance by or on behalf of the respondent mother, J.M., even though served with notice.
Reasons for Judgment
WOLFE J.:
Nature of the Case:
[1] This is my ruling on the temporary care and custody motion heard with respect to L.L.C., a 5-year-old Indigenous child. The child had been residing with the respondent caregiver C.S. (maternal aunt) since he was 2 months old, pursuant to a Customary Care Agreement (CCA). The parties were working on a plan to transition the child on consent to the care of the respondent B.C. (father) when conflict between the parties arose, leading to the termination of the CCA.
[2] The child has been residing with the father since February 5, 2023. According to the father and M’Chigeeng First Nation who the father is a Band Member of, this placement was made with the agreement of all parties as part of the afore-mentioned transition, but the maternal aunt and Zhiibaahaasing First Nation unilaterally disrupted the plan. The maternal aunt and mother are Band Members of Zhiibaahaasing. According to Zhiibaahaasing and the maternal aunt, she only agreed to the child visiting the father and the father has withheld the child since then.
[3] It is not disputed that the CCA was a valid one until it was terminated. It is not disputed that there were no concerns with maternal aunt’s care of the child for the five years he resided with her.
[4] The Applicant Kina Gbezhgomi Child and Family Services (Kina) initiated a Protection Application under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA) in order to address the issue of legal custody. The Application seeks a protection finding pursuant to s. 74 (2) (b) (i) and (ii) and a disposition of six months supervision order with the father. On the first appearance of February 10, 2023, the child was placed on a temporary supervision order with the father on a without prejudice basis and the matter was adjourned for the hearing.
[5] Kina, the father and M’Chigeeng, seek an order maintaining the child with father on a supervision order. The maternal aunt and Zhiibaahaasing seek an order returning the child to her care.
Summary of Decision
[6] For reasons that follow, I find that An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (Federal Act) applies and alters the method of analysis at s. 94 hearings under the CYFSA given its paramountcy over provincial legislation. This method of analysis starts with the national standards as set out in sections 10 through 17 of the Federal Act, requiring first consideration of the parents, and so on, as set out in s. 16 as opposed to the person who had charge prior to the intervention as set out in the CYFSA. Further, to the extent that there is any conflict, best interests must be understood in accordance with the definition set out in s.10 of the remedial Federal Act, read mindful of its purpose and intent.
[7] I find that in applying that method of analysis in this case, I do not need to make a finding about who had charge at the time of the intervention given that in applying the national standards, it is in the best interests of the child to be placed with the father, with contact to the maternal aunt. Furthermore, given there are no protection concerns, this placement does not require supervision of Kina Gbezhgomi Child and Family Services and the matter would properly be heard as an application under the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) application which is also subject to the Federal Act.
Analysis
The Federal Act applies and has paramountcy
[8] At a temporary care and custody hearing under s.94 of the CYFSA, a Court is asked to make decisions at a very early stage in a child protection proceeding about the placement of a child or children until the application can be considered in full. Given the timeliness of such hearings, the evidentiary rules are somewhat softened pursuant to r. 14 (17) of the Family Law Rules, O. Reg. 114/99 (Family Law Rules). In this case, affidavits were filed by all parties, with the exception of the mother who did not participate.
[9] The relevant portions of section 94 state as follows:
94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) 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;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable and probable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be adequately protected by an order under clause 2 (a) or (b).
[10] It is a two-part test. The court must first consider whether the child can be returned to the person who had charge prior to society intervention under Part V of the CYFSA (with or without a supervision order) before it can consider whether to place the child with any other person. More than one person can be found to have had charge prior to intervention.
[11] Charge is a legal term defined not in the CYFSA but rather in the common law. It is fact specific. In s. 94 hearings, charge is a finding upon which the rest of the analysis depends.
[12] The Federal Act provides guidance to courts on its relationship to provincial legislation such as the CYFSA in section 4:
For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act (emphasis added).
[13] In Simcoe Muskoka Child, Youth and Family Services v. S.H. et al., 2022 ONSC 1868, the Ontario Superior Court held that while the CYFSA is not inconsistent with Federal Act, the Federal Act has provisions “that augment and are more robust than the provisions of the CYFSA. One such area is placement of children” (at para .43). The Court found that it must consider and apply s. 16 of the Federal Act when considering an Indigenous child’s placement on a temporary basis under the CYFSA (at para. 44).
[14] In Children’s Aid Society of London and Middlesex v. T.E., 2021 ONSC 788 (“T.E.”), the Court found at para. 17:
The application of provincial child protection legislation is not affected as long as it does not conflict with, or is not inconsistent with, the Federal Act: Federal Act s. 4. When assessing the best interests of a child, the following must be considered: the principle of cultural continuity, s. 9(2); the principle of substantive equality, s. 9(3); best interests considerations of Indigenous children, s. 10; and priority of placement, s. 16: Huron-Perth Children's Aid Society v. A.C., 2020 ONCJ 251, para. 30.
[15] The Court agreed that the Federal Act applies at every stage of a child protection hearing including when the court is determining temporary orders under s. 94 of the CYFSA. I adopt the reasoning in these decisions and find that the national standards set out in ss. 10 to 17 of Federal Act apply to and take priority to the extent that the provisions in the CYFSA are inconsistent with the Federal Act in temporary care and custody hearings under s. 94 of the CYFSA.
The relationship between s.10 and s.16 of the Federal Act
[16] Section 16 of the Federal Act sets out a priority placement, or ladder, for decision-makers when placing an Indigenous child:
16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:
(a) with one of the child’s parents;
(b) with another adult member of the child’s family;
(c) with an adult who belongs to the same Indigenous group, community or people as the child;
(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or
(e) with any other adult.
(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.
(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.
(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with
(a) a person referred to in paragraph (1) (a), if the child does not reside with such a person; or
(b) a person referred to in paragraph (1) (b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1) (a)
[17] In enacting the section as it has, Parliament has instructed motions judges to consider a parent of the child as a first option in any placement decision.
[18] Given the priority placement is to be considered “to the extent that it is consistent with the best interests of the child”, understanding how best interests are defined in terms of national standards under the Federal Act is key. Section 10 reads:
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.
(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.
(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.
(4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.
[19] In T.E., the Superior Court confirmed the reasoning of Neill, J. in Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251, which held:
Considering the provisions of both the Child, Youth and Family Services Act and Bill C-92, An Act respecting First Nation, Inuit and Métis children, youth and families, the best option is to have these children returned to the care of a parent, but only if that is in the best interest of the children [s.101 Act; s. 16 (1) (a) Bill C-92]. Both Acts make it clear that the primary or paramount consideration is what is in the best interests of the children.
[20] Best interests in the Federal Act and CYFSA are not in conflict and in fact, when read in the remedial way both Acts are intended, are harmonious.
[21] Section 1 of the CYFSA sets out best interests as a paramount purpose. It reads:
1 (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.
[22] The CYFSA also makes specific reference to Indigenous peoples in s. 1 (2) 6:
1 (2) 6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.
[23] Further, as the Court discussed in and D.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240 (Dilico), customary care as provided in the CYFSA, “is the preferred approach for Indigenous children” as evinced by s. 80 which states a society is required to make all reasonable efforts to pursue a plan for customary care (at para. 35). These special references to Indigenous children, families and Nations in both federal and provincial legislation are important.
[24] In R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court addressed legislative intent in understanding the relevance of specific reference to Indigenous people, and held that in the context of sentencing, the methodology is necessarily different in light of special constitutional relationship between Indigenous people and Canada as well as the unique history of colonization:
The next question is the meaning to be attributed to the words “with particular attention to the circumstances of aboriginal offenders”. The phrase cannot be an instruction for judges to pay “more” attention when sentencing aboriginal offenders. It would be unreasonable to assume that Parliament intended sentencing judges to prefer certain categories of offenders over others. Neither can the phrase be merely an instruction to a sentencing judge to consider the circumstances of aboriginal offenders just as she or he would consider the circumstances of any other offender. There would be no point in adding a special reference to aboriginal offenders if this was the case. Rather, the logical meaning to be derived from the special reference to the circumstances of aboriginal offenders, juxtaposed as it is against a general direction to consider “the circumstances” for all offenders, is that sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non‑aboriginal offenders. The fact that the reference to aboriginal offenders is contained in s. 718.2 (e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction. (at para. 37, emphasis added)
[25] Relying on the context and legislative history, the Court stated that what the inclusion of s.718.2 (e) did was “alter the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender” (at para. 33, emphasis added). Similarly, in Ewert v. Canada, [2018] 2 SCR 165, 2018 SCC 30, the Court found that specific reference to Indigenous people in the Corrections and Conditional Release Act, S.C. 1992, c. 20, was remedial and imposed a positive burden on Correctional Service Canada to ensure their practices, including in assessing risk, do not perpetuate discrimination against Indigenous persons (at paras. 54-58, 66).
[26] Applied to the child protection context, there is meaning in singling out Indigenous children, families and communities in both the Federal Act and CYFSA. It necessarily alters the method of analysis in assessing risk and determining placements of Indigenous children.
[27] In order to understand why Parliament chose to single out Indigenous children, families and Nations, the Preamble of the Federal Act is instructive in explaining its “purport and object” per s. 13 of the Interpretation Act (R.S.C., 1985, c. I-21). It reads:
Whereas the Government of Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples;
Whereas Canada ratified the United Nations Convention on the Rights of the Child and the International Convention on the Elimination of All Forms of Racial Discrimination;
Whereas Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices;
Whereas Parliament recognizes the disruption that Indigenous women and girls have experienced in their lives in relation to child and family services systems and the importance of supporting Indigenous women and girls in overcoming their historical disadvantage;
Whereas Parliament recognizes the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services;
Whereas the Truth and Reconciliation Commission of Canada’s Calls to Action calls for the federal, provincial and Indigenous governments to work together with respect to the welfare of Indigenous children and calls for the enactment of federal legislation that establishes national standards for the welfare of Indigenous children;
Whereas Parliament affirms the right to self-determination of Indigenous peoples, including the inherent right of self-government, which includes jurisdiction in relation to child and family services;
Whereas Parliament affirms the need to respect the diversity of all Indigenous peoples, including the diversity of their laws, rights, treaties, histories, cultures, languages, customs and traditions,
to take into account the unique circumstances and needs of Indigenous elders, parents, youth, children, persons with disabilities, women, men and gender-diverse persons and two-spirit persons,
to address the needs of Indigenous children and to help ensure that there are no gaps in the services that are provided in relation to them, whether they reside on a reserve or not,
to eliminate the over-representation of Indigenous children in child and family services systems, and
to enact legislation for the benefit of Indigenous children, including First Nations, Inuit and Métis Nation children;
Whereas the Government of Canada is committed
to working in cooperation and partnership with Indigenous peoples to support the dignity and well-being of Indigenous children and youth and their families and communities, as well as the achievement of their full potential, and to respecting, strengthening and building on the accomplishments of Indigenous peoples in this regard,
to achieving reconciliation with First Nations, the Inuit and the Métis through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership, and
to engaging with Indigenous peoples and provincial governments to support a comprehensive reform of child and family services that are provided in relation to Indigenous children;
And whereas the Government of Canada acknowledges the ongoing call for funding for child and family services that is predictable, stable, sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities;
[28] The Preamble in the CYFSA states:
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.
[29] Following the Supreme Court’s decision in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 (“Rizzo”), which held that s. 10 of the Interpretation Act provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”, I find the Federal Act and CYFSA are remedial legislation aimed at ending the historic discrimination and unilateral approaches of Canada that led to disparate and negative outcomes for Indigenous people in child protection proceedings. In other words, the concept of “harm” in a child protection proceeding must include a broader notion of the inherent harm in removing Indigenous children from their parents, families and communities. Motions judges are the gatekeepers in this regard and must be ever mindful of this intention in order to avoid defaulting to a standard CYFSA method of analysis that doesn’t recognize this distinction between Indigenous and non-Indigenous families.
[30] The decision of the Quebec Court of Appeal in Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 supports this finding as it relates to the Federal Act. The Court in that case examined the context and legislative intent leading to the enactment of the Federal Act at length. It described how Canada’s assimilative and colonial policies, laws, and practices have contributed to the dramatic overrepresentation of Indigenous children in child welfare systems in Canada. I take judicial notice of this fact.
[31] The Court explained that the various Commissions (i.e. Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission (“TRC”), the Viens Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls), the Human Rights Tribunal decisions and under-funding of Indigenous child welfare, the UNDRIP, and the many law suits and settlements which all led to the collaborative work in developing the Federal Act give the context for defining its purpose: to remedy the harm the state has brought upon Indigenous children, families and Nations, and require decision making regarding the placement and care of Indigenous children to be done in accordance with principles of substantive equality in order to mitigate this harm, including placements of a child outside their immediate family being used only as a last resort (at paras. 11 to 31).
[32] Further, as a matter of statutory interpretation, Parliament’s decision to include priority placement and best interests under the broader category of national standards must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo at para. 21, citing Elmer Driedger in Construction of Statutes (2nd ed. 1983). In other words, they must be read in concert with each other in order to meet the overriding purposes set out in ss. 8 and 9 of the Federal Act which read:
8 The purpose of this Act is 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.
9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.
(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:
(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;
(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;
(c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;
(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and
(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.
(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts:
(a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs;
(b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;
(c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;
(d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and
(e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.
[33] Read together, mindful of the primary purpose of the Federal Act, the inference is that safe placements with a parent as a first choice are in Indigenous children’s best interests and meets the objective of the Federal Act. Family and cultural continuity is essential to remedy the decades of harm that resulted from children being ripped from the loving arms of their parents to attend residential and day schools under threat of law, as well as the notorious growing overrepresentation of Indigenous children in care. It requires a unique and contextualized approach.
[34] Given the Federal Act has paramountcy, a determination of when the intervention occurred in the context of an application brought following the termination of a CCA, an analysis of who had “charge” as defined in law under the provincial legislation is of less relevance for a child who is Indigenous. First consideration will always be given to the parent in accordance with the priority placement scheme subject to a best standards analysis as set out in the Federal Act. There is a presumption created by statute that it is in an Indigenous child’s best interests to be placed with a parent wherever possible.
Application of principles in this case
[35] Given my analysis above, it is not necessary to determine who had charge since regardless of whether it was the father, the mother or the maternal aunt, I would still have to first consider the father under s. 16 of the Federal Act at a temporary care and custody hearing, subject to the best interests test. Best interests understood in the manner described above requires that I consider if there are any protection concerns with the placement to the parent. It also requires that I consider the risk of harm to the child, family and Nations by undermining the intention behind CCA which was to provide culturally safe care for the child while the parents healed from the impacts of Canada’s colonial legacy, mindful of Parliament’s clear intention to provide a hybrid legal mechanism that steers matters away from the systemic discrimination that may be perpetuated in child welfare proceedings. Finally, it requires I consider if this will promote this child’s physical, emotional, psychological and cultural safety, security and wellbeing while promoting an ongoing relationship with their family and community consistent with the provisions of the Federal Act.
[36] I find it is in the best interests of this child to be placed with the father pending a trial or hearing of this Application. There are no concerns about his ability to care that prevent this. While it is true that the child has lived with the maternal aunt for almost his entire five years of life, this is not a bar to finding it is still in his best interests to be returned to a parent. In R.J. v. A.L., [2023] O.J. No. 514, the Superior Court affirmed a decision to return a child to a parent after six years and gave positive acknowledgment of the following observations of Gibson, J. regarding customary care:
a) At the "heart of customary care agreements in First Nations communities is the recognition that while children are best served by being in the immediate care of their biological parent, the community has an important role to play in supporting both parents and children when parents are struggling."
b) That parents in need of assistance should "not be discouraged from seeking assistance by the thought that if they show any vulnerability, they will lose custody of their children altogether."
c) That deep attachments are formed between the caregiver and the child placed in their care and that community members may be reluctant to come forward to assist in fulfilling a vital role in providing a healthy and supportive environment for vulnerable children if those attachments are not respected.
d) That caregivers and parents must recognize their respective roles within a customary care agreement, and both must support the transition of the child to ensure the child is able to benefit and reach their full potential.
[37] Similarly, in Kina Gbezhgomi Child and Family Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F. (unreported, but relied upon in Dilico on issue of judicial oversight of CCA in cases of bad faith on part of societies)., Kina was granted leave to withdraw a protection application after the successful reunification of a child with considerable needs after a 14 year period in someone else’s care pursuant to a CCA. In that case, the Court found that where a custom of a First Nation provides for the option of a long-term CCA recognizing that healing colonial trauma doesn’t always follow a neat timeline, courts should defer to this exercise of self-determination and not be rigid in its analysis of how much time has passed and how that may contribute to risk of harm. This is in recognition of the legal pluralism inherent in customary care.
[38] As in those cases, issues can arise when that transition is difficult on account of the passing of time and bonds formed. I am sympathetic to the maternal aunt and the void that not having the child returned to her full-time care may leave in her life. However, given the required method of analysis described above and the fact that the society has no safety concerns following their re-assessment pursuant to s. 16 (3) of the Federal Act, I find that it is in the child’s best interests to place the child with the father, and further see no need for ordering that this be subject to Kina’s supervision.
[39] That said, I also find that is in the best interests of this child to have continued contact with the maternal aunt who the child has lived with for the vast majority of their life. While there are sadly tensions that have arisen in the past couple of months between the parties, including the First Nations, and while the Court is concerned that the maternal aunt may have made an error in judgment with regard to social media posts which since been taken down in accordance with a court order, I am of the view that she is a capable and loving caregiver who should be given the benefit of the doubt about her ability to follow terms of an order without requirement of police enforcement. Contact with the maternal aunt should occur no less than twice per week and include at least one overnight visit on a weekend to not disrupt the child’s schooling. This contact does not need to be supervised.
[40] Parties are responsible to arranging transportation as follows: the party who is picking up the child is responsible for getting them and exchanges shall occur at times as agreed between the parties. Given either party can face consequences for non-compliance under r. 1 (8) of the Family Law Rules, they are reminded that this order must be followed until the matter is finalized lest they face one or more of these consequences. The rule states:
1 (8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order.
[41] The parties are encouraged to put tensions aside, mindful that their words and actions will be observed by this young child who should not be put in the middle of adults and/or First Nations’ disputes.
Other considerations
The Children’s Law Reform Act is the proper manner of proceeding
[42] In Dilico, the Ontario Court of Appeal held that the paramount purpose of the CYFSA is set out in s.1(1) is to promote the best interests, protection, and well-being of children, and that s.1(2) includes additional purposes distinct to First Nations, Inuit and Métis peoples, and that the Federal Act establishes national minimum standards for child and family services delivery for all Indigenous children and families (at para. 68). In that case, the Court extended the application of the national standards set out in the Federal Act to applications under the CLRA (at para. 71).
[43] In this case, Kina argued that it brought this protection application and this motion because the question of custody had again to be determined following the termination of the CCA. I am persuaded by the maternal aunt that is an issue which depends largely on the facts and may not be the case in some circumstances. The whole point of a CCA is to “encourage parties to resolve issues concerning a child’s care in a culturally sensitive and appropriate manner, by agreement rather than child protection proceedings”: See: Dilico at para. 37 (emphasis added).
[44] I am of the view that a CLRA application is the proper proceeding to address the issues in this case due to the lack of protection concerns. This application should be issued during the adjournment period and made returnable on the return date of this proceeding. I suggest that the parties agree to a temporary order under the CLRA that mirrors this order and then withdraw the CYFSA matter on that date. The parties can even consent to do this by Form 14B motion in both files prior to the return date.
ILA before entering a CCA
[45] In Dilico, the Court held “(l)ike any agreement, customary care agreements require informed and voluntary consent: see s. 21 of the CYFSA” (at para. 38). The facts in this case make it necessary to remark that given the interests at stake, it is clear that all parties to a CCA ought to get independent legal advice prior to agreeing to it. I recognize that resource issues may prevent this for some vulnerable litigants but note that the availability of such advice may be critical to avoid undue stress, anguish and litigation. Parties should be able to enter into these agreements on the basis of informed and voluntary consent, clear about expectations and procedures. One would hope that resources, including access to Legal Aid assistance, would be made available to facilitate this.
Order
[46] As a result of my findings above, the following order is to issue:
On a temporary basis,
The child L.L.C. is to be placed in the care of the respondent father, B.C.
The child is to have contact with the respondent maternal aunt, C.S., at least twice per week and include an overnight visit on one of those visits which should occur on the weekend.
Transportation to visits is to be arranged such that the person picking up the child is responsible for getting them, unless otherwise agreed to be the parties.
The matter is adjourned to give the parties an opportunity to commence a CLRA application, which once filed, is to be put to a date by Court Services when this Protection Application is on the docket.
If the parties consent, they may agree by Form 14B motion in both the CLRA and CYFSA cases to have a temporary parenting order made in the CLRA case that mirrors this order and then have the CYFSA matter withdrawn.
Released: March 2, 2023 Signed: Justice J. Wolfe
