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: 2025-03-05
COURT FILE No.: Chatham 92/18-0003
BETWEEN:
Linck Child, Youth, and Family Supports
Applicant,
— AND —
Walpole Island First Nation, AF, PH, TI, BAF
Respondents
Before Justice M. Vickerd
Heard on November 27, 2024
Reasons for Judgment released on March 5, 2025
Nicole Powers — counsel for the applicant society
Crystal George — counsel for the respondent WIFN
Christa Yu — counsel for the respondent AF
Stephen J. Andari — counsel for the respondents PH and CH
Margaret Vicente — counsel for the respondent BAF
No appearance by or on behalf of TI, even though served with notice.
Overview
[1] The Walpole Island First Nation (“WIFN”) advances a motion seeking orders relating to disclosure from Linck Child, Youth and Family Supports. Specifically, WIFN seeks orders:
a. Requiring caregiver/maternal grandmother to disclose all children’s aid society agencies that she has had involvement within the course of her being a parent or caregiver;
b. Requiring Linck to disclose the family of origin file of caregiver/maternal grandmother as it pertains to all referrals, investigations, verified protection concerns and court documents/continuing record;
c. Requiring Linck to disclose the entire unredacted kinship assessment of caregiver/maternal grandmother, all case notes from all workers involved in the file, all supervision/case planning notes, all requests for funds, including all Jordan’s Principle Applications, in order to care for the children;
d. Requiring Linck to disclose the entire unredacted child protection file; and
e. Costs for the motion.
[2] In consideration of the motion, I have reviewed the following pleadings filed by the parties: WIFN’s Notice of Motion dated September 12, 2024; Affidavit of band representative D. Cryle sworn September 12, 2024; Linck’s Notice of Motion dated September 12, 2024; Affidavit of society worker J. Pickering sworn September 12, 2024; Affidavit of BAF (maternal grandmother) sworn October 22, 2024; and Reply Affidavit of D. Cryle sworn November 22, 2024.
Background
[3] There are four subject children of this Child Protection Application, ages 9, 6, 4, and 1 year.
[4] The three youngest children share one father, TI, and are members of the Walpole Island First Nation (WIFN).
[5] The WIFN’s motion is advanced within the context of a Child Protection Application commenced in November 2013. In its Application, Linck requests an order for placement of the oldest child in the care of her father and stepmother and placement of the youngest three children in the care of their maternal grandmother – both placements to be subject to supervision by the society for a period of six months. Linck also requests orders for access between the children and their mother, father and between siblings. Linck argues that the order for disclosure should not be made as: the WIFN has not advanced an alternate plan for its children other than placement with the maternal grandmother; WIFN has not shown that the records sought are relevant; and kinship records are confidential and that if the disclosure is granted, it could have a potential chilling impact on other caregivers who wish to present plans for children involved in child protection proceedings.
[6] The Respondent AF is the mother of all the children. She is non-Indigenous. In the context of the Application, AF requests return of the children to her care. In relation to the current motion, she supports the Society’s position.
[7] The Respondent BAF is the maternal grandmother of the children. BAF has care of the youngest three children (who are members of WIFN). In the context of the Application, BAF supports the order sought by the Society if the mother cannot care for the children. In relation to the current motion, she aligns her position with that of Linck. She has provided sworn evidence in response to the motion confirming that:
- she has no child protection history as a parent;
- she had involvement with a child protection agency from 2006 to 2017 when her niece and nephew were placed into her care;
- she does not have a criminal record or any outstanding criminal charges.
[8] This evidence satisfies a portion of the relief claimed by WIFN.
[9] The Respondent PH is the father of the oldest child only. CH is his partner. In the context of the Application, PH wishes his daughter to remain in his care without further intervention by Linck. In relation to the current motion, they take no position as the child in their care is not a member of the WIFN.
[10] The Respondent TI is the father of the three youngest children. TI has not filed an Answer and is in default in this proceeding. He attended court in the past and advised that he wishes his children placed into his care. TI is a registered member of the WIFN.
[11] On November 9, 2023, the Society restricted the mother’s care of the children and required her to leave the home of the maternal grandmother where the children were residing. By interim order of November 14, 2023, the oldest child was placed into the care of her father and stepmother PH and CH. The three youngest children were placed into the care of their maternal grandmother BAF. The mother AF and the father TI were granted access to the children by the same orders. Sibling access was also ordered.
[12] Also of note is the fact that in the interim order made November 14, 2023, and confirmed on March 8, 2024, terms include an obligation for consultation with WIFN about: care of the children; participation in agency visits with the family; and, arrangements for access.
[13] Despite the length of time that this proceeding has been outstanding, no findings have been made that the children are in need of protection.
[14] On November 19, 2023, WIFN made a request for disclosure of Linck’s files on the Society’s standard form.
[15] On December 14, 2023, WIFN received disclosure from Linck in electronic form. The disclosure included records such as: Intake Notes; Ontario Safety Assessments; Investigation Summaries; and workers’ Contact Logs.
[16] The disclosure provided by Linck to WIFN contained extensively redacted portions. An example of this disclosure appended by WIFN as an Exhibit to its pleadings is a CPIN Investigation Summary dated January 30, 2020, in which it is noted that the alleged victim is AI and the Alleged Maltreater is TI. This document has the “allegation Type” noted as “1.5 Child Fatality” and the “allegation Descriptor” and “F-Child Fatality-Undetermined.” The entire portion related to “Verification Comments” is redacted, with the redacted portion equivalent to half the page. A second CPIN Investigation Summary has similar information but with the Alleged Maltreater identified as AF. Similarly, one third of this document has been redacted. Further, the Investigation Summary has redacted from it the names of two “participants” and their relationship type, genders, birth dates and addresses. As noted in the Affidavits, the disclosure is generally highly redacted with the removal names of persons who made disclosures and their contact information.
[17] WIFN also notes that it has not received all case notes or contact notes from Linck’s file - for example, the notes of Sandy Pepper, past kin worker, and the current kin worker.
[18] A particular concern noted by WIFN in support of its request for unredacted disclosure is BAF’s ability to act protectively of the children due to allegations that she has permitted AF to attend her visits with the children in an intoxicated state.
Analysis
[19] The disclosure issues to be determined are governed by the Family Law Rules, O. Reg. 114/99. The primary objective of the Rules is to: enable the court to deal with cases justly (Rule 2(2)). Dealing with cases “justly” includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
Family Law Rules O. Reg. 114/99, r. 2 (3).
[20] Family Law Rules 19 and 20 are directly applicable to the current motion. Family Law Rule 19(6.1) provides a court with authority to order a society to give another party an Affidavit listing documents that are,
(a) relevant to any issue in the case; and
(b) in the control of, or available on request to, the Office of the Children’s Lawyer or the children’s aid society. O. Reg. 383/11, s. 5 (3); O. Reg. 69/15, s. 7 (4).
Family Law Rule 19(6.1)
[21] Thereafter, a party receiving the Affidavit of Documents is entitled to
(a) examine any document listed in an affidavit served under subrule (8), unless it is protected by a legal privilege; and
(b) receive, free of charge, a copy of any document that the party is entitled to examine under clause (a). O. Reg. 114/99, r. 19 (9).
Family Law Rule 19 (9)
[22] If a party does not follow this rule there are consequences confirmed in Rule 19(10) which may apply in addition to the powers of the Court under subrule 1(8) or (8.1). These consequences may include:
(a) order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge;
(b) order that a document favourable to the party’s case may not be used except with the court’s permission; or
(c) order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order.
[23] If a party claims that a document is protected by legal privilege, the court may on motion, examine the document and decide the issue (Rule 19(4)). In this matter, the Society has not asserted legal privilege over documents sought by WIFN.
[24] Family Law Rule 20(3) also addresses the obligation of disclosure and the right to questioning. Family Law Rule 20(3) provides that:
20 (3) In a child protection case, a party is entitled to obtain information from another party about any issue in the case,
(a) by questioning the other party, in which case the party shall serve the other party with a summons to witness (Form 23) by special service in accordance with subrule 6 (4); or
(b) by affidavit or by another method, in which case the party shall serve the other party with a request for information (Form 20)
[25] Notably, information obtained by this method is to be kept confidential and only to be used in the proceeding unless the court orders otherwise (Family Law Rule 20(24)).
[26] Justice Baker in the case of Children’s Aid Society of Brant v. N.M.P., 2016 ONCJ 266 addresses a motion advanced by the First Nation seeking disclosure of records from the Brant Society concerning the added party and caregiver to the children. The request of the First Nation was opposed by the Society on policy grounds with concerns that the kin caregiver provided information during the kin assessment on the understanding that it would be kept confidential. Justice Baker’s decision remains an important case.
[27] In Justice Baker’s decision which was made under the auspices of section 74 of the Child and Family Services Act, she synthesizes the principles extracted from case law to that point. Justice Baker writes:
22 Depriving all other parties, other than the Children's Aid Society, of evidence that has the potential to be quite relevant and which is not subject to privilege, is completely contrary to the principles of fundamental justice.
23 In any case, the paramount objective of the Statute of furthering the best interests, protection and wellbeing of children as set out in Section 1, would require that the best possible evidence before the court. Litigation is an adversarial process. If the Society elects not to produce evidence solely within its purview, then the court would be deprived of the benefit of relevant evidence.
24 At the same time, however, the Society is quite right that it is important that the privacy interests of the kin be weighed in the balance. This is because the Society records presumably contain some very sensitive information about the kin. Some may be relevant, some may not.
25 The disclosure of such information could potentially create a chilling effect on individuals willing to put forward a plan for children.
26 Moreover, there is a potential for the fact-finding process to be derailed by spurious, time consuming and unmeritorious fishing expeditions into kin records.
27 I concur with Justice McLaren that the determination must be made on a case-by-case basis, but the issue is, how are the competing interests to be weighed?
[28] Accounting for those principles, Justice Baker determines the test to be applied as follows:
40 I must first determine if the First Nation has demonstrated on a balance of probabilities, that the kin records are likely relevant. If so, then the court must examine them with a view to determining whether the record should be produced to the parties in whole, or in part.
41 In making this determination, the court must weigh the probative value of the records against the potential prejudice to the privacy interest of the person about whom the records are maintained, as well as general public policy interests.
42 Should the court orders records be disclosed, it has the authority to make orders of terms of release, such as prohibitions on further dissemination.
[29] Ultimately in applying this test to the motion before her, Justice Baker determined that the First Nation met its onus to demonstrate that the kin records of both potential caregivers are likely relevant, and a copy shall be produced to the court. She then adjourned the matter to permit the court’s review and to enter into a stage two analysis to weigh the probative value of each record against the potential prejudice of release.
[30] Since Justice Baker’s decision, important developments have occurred in the socio-legal framework that are applicable to the current motion.
[31] First, the current child protection legislation, the Child, Youth and Family Services Act, 2017, was enacted to replace the Child and Family Services Act (CFSA). The new Act encompassed many changes impacting Indigenous children and families 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). The new legislation confirms a commitment by the government to preserving children's cultural identity and connection to community. When the CYFSA was introduced for second reading in February 2017, important principles were embraced and incorporated in the new legislation as confirmed by Justice Kurke:
It is apparent that the spirit that animates the CYFSA with respect to First Nations, Inuit and Metis children is a recognition that these communities are unique, have a special relationship with Ontario, and should be given the first opportunity to offer protection to their own children and families in line with their own community values, customs and heritage. To give effect to this sentiment, community-based child protection must be given priority to court-ordered options under the CYFSA that would see children taken from their communities and stripped of their heritage, traditions, and cultural identities.
JEO v MD, [2020] OJ No 4420
[32] For the current motion, the preamble and unique considerations of the CYFSA for First Nations, Inuk and Métis are important as the three youngest children are members of the WIFN. In the Preamble of the CYFSA, the following statements are made:
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.
[33] The particular sections which apply to the current disclosure motion are found in Part X of the CYFSA. This section of the Act addresses the obligations of the Ministry of Children and Youth Services. Sections 285 through 332 of the CYFSA deal with the collection, use and disclosure of personal information by service providers. Significantly,
- Section 286 provides that the Society may not disclose personal information about an individual unless it has the individual's consent or the disclosure is necessary for a lawful purpose or the collection, use or disclosure without the individual’s consent is permitted or required by the Act.
- Section 287 provides that, for the purpose of providing a service, the Society may not disclose more personal information than is reasonably necessary to provide that service. But, subsection (3) provides that this section does not apply to personal information that a service provider is required by law to collect, use or disclose.
- Section 292(1) provides that the Society may, without the consent of the individual, disclose personal information about him or her that has been collected for the purpose of providing a service: if, among other things,
- (f) subject to section 294, for the purpose of complying with,
- (i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or
- (ii) a procedural rule that relates to the production of information in a proceeding;
- (g) if the service provider believes on reasonable grounds that the disclosure is necessary to assess, reduce or eliminate a risk of serious harm to a person or group of persons; or
- (h) if permitted or required by law or by a treaty, agreement or arrangement made under an Act or an Act of Canada, subject to the requirements and restrictions, if any, that are prescribed
- (f) subject to section 294, for the purpose of complying with,
- Section 292(1) provides that the Society may, without the consent of the individual, disclose personal information about an individual to another society or to a child welfare authority outside of Ontario if the information is reasonably necessary to assess, reduce or eliminate the risk of harm to a child.
- Section 292(3) provides that the Society may disclose personal information that has been collected for the purpose of providing a service if the information is reasonably necessary for a prescribed purpose related to a society's functions under subsection 35(1).
[34] In relation to section 292(3), above, the Society’s functions under section 35(1) include:
35 (1) The functions of a children’s aid society are to,
(a) investigate allegations or evidence that children may be in need of protection;
(b) protect children where necessary;
(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;
(d) provide care for children assigned or committed to its care under this Act;
(e) supervise children assigned to its supervision under this Act;
(f) place children for adoption under Part VIII (Adoption and Adoption Licensing); and
(g) perform any other duties given to it by this Act or the regulations or any other Act.
[35] Also, relevant to the current disclosure motion, is section 72 of the CYFSA which mandates that
A society, person or entity that provides services or exercises powers under this Act with respect to First Nations, Inuit or Métis children or young persons shall regularly consult with their bands and First Nations, Inuit or Métis communities about the provision of the services or the exercise of the powers and about matters affecting the children or young persons, including,
(a) bringing children to a place of safety and the placement of children in residential care;
(b) the provision of family support services;
(c) the preparation of plans for the care of children;
(d) status reviews under Part V (Child Protection);
(e) temporary care agreements under Part V (Child Protection);
(f) society agreements with 16 and 17 year olds under Part V (Child Protection);
(g) adoption placements;
(h) the establishment of emergency houses; and
(i) any other matter that is prescribed.
[36] Given the foregoing, I find that when the disclosure sections of Part X of the CYFSA are read in the context of the entirety of the Act, including the Preamble, the paramount and other purposes and the Society’s functions (section 35) as well as its duty of consultation (section 72), the court has authority to grant the order sought for disclosure of the society’s files to the WIFN. I further find that I have authority to place restrictions on the use of the disclosure in accordance with the provisions of Family Law Rule 20(24), section 87(8) of the CYFSA, and section 293(9) of the CYFSA.
[37] Second, since Justice Baker’s decision, above, federal legislation was enacted which has direct applicability to the current motion — An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, S.C. 2019, c. 24. At present both the federal Act and provincial legislation the CYFSA 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. The Ontario Court of Appeal confirmed in ML v Dilico Anishinabek Family Care, [2022] OJ No 1324 that the federal Act establishes national minimum standards for child and family services delivery for all Indigenous children and families, with the Act having three purposes, as set out in s. 8:
(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.
[38] Further, the Ontario Court of Appeal finds that
69 The key principles of the federal Act, set out in s. 9, are the best interests of the child, cultural continuity, and substantive equality. The Act provides, at s. 4, that "[f]or 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".
70 The federal Act permits First Nations to displace provincial child protection laws in accordance with the procedure outlined in the Act: notice may be given of the intention to exercise jurisdiction and a request may be made to enter into a tripartite coordination agreement with federal and provincial authorities. Berens River First Nation has not sought to exercise jurisdiction in accordance with this procedure. It has neither given notice nor made a request to enter into a tripartite coordination agreement. As a result, the CYFSA continues to govern.
[39] 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.
[40] 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.
[41] 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.
[42] 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 federal 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.
[43] This federal Act has a direct impact on the current motion as it mandates a society’s consultation with a First Nation regarding its children. In order for meaningful consultation to occur or to make informed representations about its young community members to occur, the First Nation must be deeply apprised of all relevant evidence concerning its children. This is the only way that the paramount consideration of best interests of Indigenous children can be fully addressed.
[44] The third notable event since Justice Baker’s decision in the socio-legal landscape for the current motion is the UN Declaration on the Rights of Indigenous Peoples adopted by the General Assembly on September 13, 2007. This declaration is referenced in both the CYFSA and the federal Act confirming its role in child protection law. Justice Gordon in CNL v GAM, [2023] OJ No 2500, addressing a custody dispute makes reference to the provincial and federal acts, confirming that they must be considered within the context of the Declaration, writing that:
The best interests test must address the rights of Indigenous children which include the recognition of equality and a unique heritage, culture and language that must be allowed to continue as well as a relationship within an Indigenous community. The Indigenous child is allowed and encouraged to learn and participate in his or her heritage, culture, traditions and language and to preserve the acquired identity of the community or nation to which he or she belongs. Accordingly, the best interests test takes into consideration the whole of the child in its many complex origins, all of which are important. The legislative changes reflect an attempt to overcome hundreds of years of oppression caused by colonialism, as well as the negative consequences from the residential school program, and work towards meaningful reconciliation.
[45] The Declaration sets a universal framework of minimum standards for the survival, dignity, wellbeing and rights of the world's indigenous peoples. It explicitly confirms the right of first nations to remain distinct and pursue their own priorities in economic, social and cultural development. Most importantly for this motion, the Declaration explicitly encourages cooperation between States and Indigenous peoples. The Articles of the Declaration which bear the most relevance for the current motion are:
Article 7 which provides:
a. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.
b. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.Article 19 which confirms:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
[46] This Declaration bears relevance for the current motion when there is a context between a First Nation requesting information from a child protection agency about its Indigenous children.
[47] For the current motion, I have also considered the Calls to Action identified in the Truth and Reconciliation Commission, 2015. This report was commissioned with the purposes of redressing the legacy of residential schools and advancing the process of Canadian reconciliation. Justice Wolfe in Kina Gbezhgomi Child and Family Services v. M.A., 2020 ONCJ 414, makes reference to the impact of colonization on Canadian Indigenous families and the findings made in the Truth and Reconciliation Commission Report, writing:
42 Indigenous families have felt the negative and sometimes fatal impacts of colonization most acutely in the dismantling of Anishinaabe laws and kinship structures. This intentional disruption to the transmission of culture was achieved through the removal of Indigenous children into the residential school system, and now through the disproportionate removal of Indigenous children from their families through the child welfare system (see: Honouring the Truth, Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of Canada, 2015). This overrepresentation is well known, and I am entitled to take judicial notice of not only the statistics in relation to this, but also the alienation, disempowerment and frustration that Indigenous families and communities feel when it comes to child welfare.
[48] In relation to child welfare, the following points are adopted at the first Call to Action:
We call upon the federal, provincial, territorial, and Aboriginal governments to commit to reducing the number of Aboriginal children in care by:
i. Monitoring and assessing neglect investigations.
ii. Providing adequate resources to enable Aboriginal communities and child-welfare organizations to keep Aboriginal families together where it is safe to do so, and to keep children in culturally appropriate environments, regardless of where they reside.
iii. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the history and impacts of residential schools.
iv. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.
v. Requiring that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers.
[49] In the context of this child protection application, the Society has placed the children of the WIFN community into the care of a non-Indigenous family member, the maternal grandmother. In order to give effect to the principles in the Truth and Reconciliation Commission Calls to Action, as well as the principles found in the federal Act and the CYFSA, the status of the First Nation in this child protection proceeding is elevated to more than just a litigant or mere respondent. WIFN is not just a respondent or institutional litigant in this child protection proceeding. It should be regarded as a partner with the society in caring for the children. The Society has enhanced obligations when planning for Indigenous children which includes meaningful consultation with the child’s community. To facilitate a First Nation’s participation in planning for its children, the Nation should have all information about the children which is available to the Society.
[50] Linck’s argument that file disclosure should be restricted as WIFN has not offered any other plan for care of its children is not helpful. The WIFN may not have concerns about the current caregiver for the children as it does not have all the information upon which to make a good and informed decision. Limited information restricts the ability of the WIFN to form enlightened positions about its children. The rights accorded to a First Nation are undermined if it is limited in planning for its children because it does not have all the relevant information regarding its children. As noted by Justice Tellier in Highland Shores Children's Aid Society v TS, [2019] OJ No 5056, referring to Justice Baker’s decision, above,
The decision begins with a reminder that: "It was unequivocally established in New Brunswick, Minister of Health and Community Services v. G.J., [1999] 3 SCR 46, that child protection proceedings are state actions that engage the protection of section 7 of the Canadian Charter of Rights and Freedoms." The court goes on to say that this same Charter right should accrue to any added party and that depriving all parties, other than the Children's Aid Society, of evidence that has the potential to be quite relevant and which is not subject to privilege, is completely contrary to the principles of fundamental justice. Accordingly"the paramount objective of furthering the best interests, protection and well-being of children requires that the best possible evidence be before the court."
[51] Therefore, I find that the test developed by Justice Baker in Children’s Aid Society of Brant v. N.M.P., above is necessarily modified by the advent of changes in the law and the recognition that First Nations have an important and unassailable role in planning for care of Indigenous children. I find that there is no need for a First Nation to demonstrate that records requested are relevant, and there is no need for a court to assess probative and prejudicial value to records.
[52] I find that it should not be left to the child protection agency to determine relevancy or privacy interests through redactions to its file disclosure. A child protection agency should not be guarding its files from any First Nation that is invested in protecting the interests of its children and its community. Societies cannot be permitted to continue to act with secrecy through non-disclosure or the tragedies of the past are bound to be repeated. In summary, I find that the proposition that a child protection agency should have all the information relevant to the care of the children, or to be able to determine relevancy, undermines the accountability and transparency required by the current provincial and federal child protection legislation.
[53] In relation to the argument that procedural fairness requirements need to be balanced with the privacy interests of individuals, who may be reporter of concerns, kin, etc., I find that the privacy interests of private individuals who have contact with or care of Indigenous children do not outweigh the very important interests of First Nations in caring for their children. The concern that disclosure to a First Nation may have a chilling effect on those willing to care for first nations children will simply assist in dissuading those caregivers who do not support a child’s heritage and the child’s First Nation’s interest in his/her well-being.
[54] In sum, I find that depriving the WIFN of the full information found in the records of the child protection agency is contrary to the principles found in the CYFSA, the federal Act, the UN Declaration on the Rights of Indigenous Peoples and Calls to Action made by the Truth and Reconciliation Commission, 2015. The paramount objective of the CYFSA and the federal Act of advancing the best interests, protection and wellbeing of children require that the best possible evidence be provided to a First Nation making decisions concerning First Nations, Inuit and Metis children. It should not be left to the Society to determine what evidence, through redacted records, should be considered in relation to the First Nation’s children. I find that full disclosure of the child protection agency’s files to the children’s First Nation is required to mitigate risk of harm to the children and to their community.
[55] Given the foregoing, I find that any information concerning the subject children found in Linck’s file should be available to the Walpole Island First Nation, unfettered and unredacted.
Delay
[56] This Child Protection Application has been outstanding for far too long. No finding has been made that these children are in need of protection. Given the ages of the children and the time spent out of the care of their mother, there is need for this matter to progress to its conclusion to accord with the legislative timelines. I am mindful of the recommendations to avoid delay made by Justice M. Pawagi in the recent decision of Sarnia-Lambton Children’s Aid Society v. N.S., (July 31), 2024 ONCJ 391. Therefore, this proceeding shall be set for trial. It will be addressed at the next Trial Assignment Court. A further settlement conference continuation is set to occur April 28, 2025, at 9:30am in person.
Order
[57] The following order is made:
Within thirty (30) days of this order, Linck Child, Youth and Family Supports shall provide to Walpole Island First Nation, the following disclosure relating to all the subject children of this proceeding in unredacted form:
a. all case notes and emails from the kin home worker Sandra Pepper and the protection worker Jessica Pickering;
b. all emails from the current kin home worker and the current protection worker;
c. all safety assessment, verification notes, supervision notes and internal case conference / meeting notes; and
d. all Jordan’s Principle Applications/requests for funding relating to the subject children.Linck shall allow WIFN counsel to attend at its offices to review the contents of all its files, unredacted, relating to all the subject children as scheduled by WIFN counsel;
This order is made without prejudice to any further motions required to address further disclosure requests which may arise from this order;
The disclosed records shall remain in the possession of WIFN counsel only and shall not be shared with any other party or agency without further court order in accordance with Family Law Rule 20(24), sections 87(8) and 293(9) of the CYFSA;
The disclosed records shall only be used for the purposes of this case.
This matter is added to Trial Assignment Court set for May 5, 2025 at 9:30am to be addressed by hybrid Zoom.
I urge the parties to attempt to settle the issue of costs of this motion promptly on the basis of WIFN’s success. If no agreement is reached, then a schedule for submissions shall be made during the next date.
Released: March 5, 2025
Signed: Justice M. Vickerd