WARNING
This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, 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 NO.: FC-17-FO000399-0000
DATE: 2020-10-14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant
AND
C.E., Respondent
M.E., Respondent
N.C., Respondent
L.B. and T.B., Respondents
BEFORE: The Honourable Madam Justice J. Walters
COUNSEL: Sarah Clarke, for the Applicant
Brent Balmer, for the Respondent N.C.
Walter Wintar, for the Respondent C.E.
Andrew Kania, for the Respondent M.E.
Charlotte Murray, for the Respondents L.B. and T.B.
HEARD: August 18 and 21, 2020
THE HONOURABLE MADAM JUSTICE J.D. Walters
REASONS FOR DECISION
Overview
[1] The Children’s Aid Society of the Regional Municipality of Waterloo (“the Society”) has brought a Status Review Application dated July 6, 2020, and Notices of Motion dated June 5, 2020, and July 6, 2020. In its Notice of Motion dated July 6, 2020, at paragraph 2(a), the Society seeks an Order vacating the statutory finding made on April 16, 2019, in relation to the First Nations, Inuk and Métis identification of the child, C.E. (D.O.B. […], 2017), and at paragraph 2(b), the Society seeks an order finding that the child C.E. is a First Nations child under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”).
[2] On July 20, 2020, the following parties were added to this proceeding on consent: M.E. (maternal grandfather); N.C. (paternal aunt); and L.B. and T.B. (foster parents).
[3] The following material was filed and made exhibits during the hearing:
(a) Affidavit of D.G. sworn June 5, 2020;
(b) Affidavit of N.C. sworn July 31, 2020;
(c) Affidavit of M.E. sworn August 12, 2020;
(d) Affidavit of T.B. sworn August 12, 2020;
(e) Reply Affidavit of D.G. sworn August 17, 2020;
(f) C Family History Genogram.
[4] The Respondent mother, C.E. (“mother”), did not file any material. The mother did not attend the hearing in person but was represented by Mr. Wintar. At the outset of the hearing, Mr. Wintar advised that he was not taking a position, but attended the hearing as he is interested in the outcome.
[5] Despite the suspension of normal court operations as a result of COVID-19, the matter was heard in person on August 18 and 21, 2020, at the Kitchener Courthouse, on the request of counsel, during a Zoom court appearance in July 2020. All counsel and parties attended in person except for Charlotte Murray, counsel for the foster parents, L.B and T.B. Arrangements were made to accommodate Ms. Murray’s request on August 13, 2020, to attend virtually. It was not possible to have Ms. Murray, or her client, attend by Zoom video-conference due to the court’s limitations, however, arrangements were made to attend by telephone. When it was time for T.B. to give evidence, she was sworn in over the telephone and was cross-examined in the same manner. This all occurred with the consent of the parties.
[6] When the hearing commenced, there was concern voiced by counsel who attended the hearing in person that the number of individuals in the courtroom should be restricted due to COVID-19 protocols. It was agreed that each of the parties who had attended court to give evidence in person would remain outside of the courtroom until they were called to testify and only their counsel would remain inside the courtroom. Ms. Murray, who attended by telephone, agreed that her client would only call into the hearing when it was her turn to testify.
[7] Prior to the hearing, it was agreed that the parties’ evidence in chief would be by affidavit and each affiant would be present in court for cross-examination. The parties attended court to be cross-examined orally, except for T.B., who was examined by telephone. The following persons attended the hearing and were presented for cross-examination:
(i) Danielle Glass (society witness);
(ii) N.C. (paternal aunt); and
(iii) M.E. (maternal grandmother).
[8] When each witness was presented for cross-examination, their affidavits were each marked as Exhibits by the court.
[9] T.B.’s evidence was provided by teleconference with consent.
Facts
[10] The child was born on […], 2017, to her mother, C.E., and her father, G.C. The child was removed from the care of her parents at birth and taken to a place of safety. She was placed in foster care and has lived with the foster parents, LB. and T.B., since her birth.
[11] The father died in May 2018.
[12] On April 16, 2019, in default of any answers being filed by the mother, the father being deceased, and on the review of the Affidavit of Naomi Muzamhindo, sworn April 4, 2019, Rogers J. made an Order pursuant to an Amended Child Protection Application dated September 18, 2018.
[13] Rogers J.’s Order provides that the child is not a First Nations, Inuk or Métis child. The Order places the child in extended Society care with no right of access to the child by the parties.
[14] Following the Order of Rogers J., the Society began to plan for the child’s permanency.
[15] The Society completed an adoption home study on the foster parents and were considering the foster parents’ plan to adopt the child.
[16] The Society staff traced the child’s Indigenous heritage during the summer of 2019. During that time, the paternal aunt also put forward a plan to care for the child. In October 2019, the Society took the position that the child should be placed in a home with an Indigenous caregiver. The Society was no longer willing to pursue the foster parents’ plan to adopt the child. The Society’s counsel wrote a letter to counsel for the foster parents dated October 28, 2019, advising that the Society had approved the paternal aunt’s adoption plan. The Society further advised that it was refusing the application of the foster family to adopt the child.
[17] The foster parents disagreed with the Society’s position to refuse its application to adopt the child and pursued an Application under s. 192 of the CYFSA for the review of their decision with the Child and Family Services Review Board (“CFSRB”).
[18] On March 6, 2020, the CFSRB released a hearing report, a copy of which is attached to the Affidavit of D. Glass, sworn June 5, 2020. In that report, the Algonquins of Greater Golden Lake First Nation was added as a party to the proceeding.
[19] The CFSRB released a hearing report on May 22, 2020. In that report, it is revealed that there was no agreement among the parties that the child is First Nations, Inuk or Métis. At paragraph 10 of the CFSRB report it is written:
The Society shall forthwith return to court for a review of the court’s previous finding pertaining to the Child’s indigenous status. It anticipates that it will be able to have this matter before the court in approximately 3 weeks (by mid-June, 2020). The Society undertakes that ME and NC shall be added as parties to this proceeding on consent, and the Applicants are entitled to notice as the child’s long-term foster parents. The Society will provide all parties with a copy of the court’s decision/determination immediately on receipt.
[20] The Society commenced a Status Review Application which claims that the child is an Indigenous child and requests an Order for custody of the child to the paternal aunt, who the Society attests identifies as Indigenous. The Society also brought a motion requesting that the parties involved in the CFSRB hearing be added to the court proceeding, as well as an Order vacating the statutory finding made on April 16, 2019, in relation to the First Nations, Inuk and Métis identification of the child. The Society requests an Order that the child be found to be a First Nations child pursuant to the CYFSA.
[21] On August 18 and 21, 2020, the trial of the issue was held.
[22] The issue for the court to decide is whether the finding made on April 16, 2019, regarding the child’s First Nation status can be varied at the commencement of a Status Review Application and replaced with a finding that she is a First Nations child.
The Society’s Position
[23] The Society takes the position that Rogers J.’s Order of April 16, 2019, can be varied, and seeks a finding that the child is a First Nations child under the CYFSA.
[24] The Society concedes that there is no specific provision in the CYFSA that provides the Court with the authority to vary a First Nations, Inuk or Métis finding, but argues that a contextual and purposive interpretation of the legislation supports the Court’s ability to revisit the issue should new evidence arise.
[25] The starting place is the principle of statutory interpretation, and the Society relies on the Supreme Court of Canada case, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] S.C.R. 559, which requires an examination of the language of the statute within the greater context of the legislation.
[26] In this case, one must review the preamble and the unique considerations under the CYFSA for First Nations, Inuk and Métis children.
[27] The Society’s position is based on the legislative intent of the CYFSA, with reference to the Truth and Reconciliation Commission’s (“TRC”) very first Calls to Action, which focused directly on child welfare, which it called “the residential school system of our day”. The TRC called on governments to enact child welfare legislation which “affirms the right of Aboriginal governments to establish and maintain their own child welfare agencies” and “requires all child welfare agencies and courts to take the residential legacy into account in their decision making”.[^1]
[28] The enactment of the CYFSA reflects an important step towards reconciliation and the promise to not 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. When the CYFSA was introduced for second reading in February 2017, these important principles were embraced and importantly included in the new legislation:
The proposed legislation acknowledges the unique relationship between Ontario and indigenous peoples and references 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 stigmatising 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 Métis children and families”. It also requires societies to make all reasonable efforts to pursue a plan for 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))
[29] The Society argues that the timing of a First Nations, Inuk or Métis determination is not set in stone. As parents and families learn more about their heritage, new information may come to light after a judicial determination has already been made. The CYFSA does not bar a re-examination of that finding, and it is the Society’s submission that such a change in circumstances requires reconsideration of the issue.
The Paternal Aunt’s Position
[30] The paternal aunt supports the Society’s position. She argues that the test to be applied in making a finding that the child is a First Nation’s child is set out in s. 1 of Ontario Regulation 155/18 (General Matters Under the Authority of the Lieutenant Governor in Council).
[31] The paternal aunt is related by blood to the child on the father’s side. She is the child’s biological aunt.
[32] The paternal aunt gave evidence in this case regarding her own heritage. The paternal aunt self-identifies as Indigenous.
[33] Section 1(c)(i) of Ontario Regulation 155/18 provides that a child is a First Nations, Inuk or Métis child for the purposes of the Act if, ... where it cannot be determined under clause (a) and (b) whether the child is a First Nations, Inuk or Métis child but there is evidence that demonstrates that, (i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person.
[34] The paternal aunt’s evidence is that the child is a First Nations child because she has a relative who identifies as a First Nations person.
The Maternal Grandfather’s Position
[35] The maternal grandfather takes the position that the child is not a First Nations child.
[36] Rogers J.’s Order dated April 16, 2019, found that the child is not a First Nations, Inuk or Métis child.
[37] The maternal grandfather agrees that the test to determine if a child is a First Nations child is set out in s. 1 of Ontario Regulation 155/18.
[38] The maternal grandfather argues that there are only two ways in which the child may be identified as a First Nations child, in this case namely through a relative or through a connection between the child and a band or a First Nations community.
[39] Although the paternal aunt’s evidence is that she has First Nations heritage, the maternal grandfather argues that heritage is different from self-identifying as Indigenous. The maternal grandfather argues that the paternal aunt could have self-identified at any time when she was involved with the Society, going back as far as May 2009. There is nothing in the Society’s records to support her claim today that she is Indigenous.
[40] The maternal grandfather argues that the paternal aunt is only now indicating that she is Indigenous in order to improve her chances of adopting the child.
The Foster Parents’ Position
[41] The foster parents agree with the maternal grandfather’s position that the child’s First Nations, Inuk or Métis finding cannot be changed.
[42] The foster parents’ position is that the Society has the onus of establishing both a legal and evidentiary basis to set aside the finding made by Rogers J. on April 16, 2019, that the child is not a First Nations, Inuk or Métis child.
[43] The foster parents argue that the Society failed to meet its onus.
[44] The foster parents argue that the statutory provisions regarding “identification” findings are set out in s. 90(2) of the CYFSA. Specifically, these provisions state that the court must, as soon as practicable, and in any event before determining whether a child is in need of protection, 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.
[45] The CYFSA contains no provision by which to “vary” or “amend” these findings once made.
[46] In the present case, the finding was made at the Society’s request approximately 21 months after the Protection Application was commenced. The original Order of Rogers J. was not appealed.
[47] The Society has commenced a Status Review. The foster parents argue that the original Order being reviewed is presumed to be correct and cites Children’s Aid Society of Hamilton v. C.G., 2013 ONSC 4972, at para. 299 to support this position.
[48] The foster parents also rely on the decision of Court J. in Kenora-Patricia Child and Family Services v. M.(A.), (2004) 2004 CanLII 56654 (ON SC), 3 R.F.L. (6th) 368 (Ont. S.C.), at para. 37, where the following observations are made:
The administration of justice relies on the certainty of judgments that have not been appealed, stayed, or terminated. If parties are permitted to reach back through time to recast their cases, notwithstanding that they have been adjudicated and then to alter their trial strategy accordingly, the authority of any court’s order will be destroyed. Litigation could proceed endlessly without conclusion.
[49] The Society has been involved with this family since 2017.
[50] The Society’s evidence before Rogers J. when it sought and obtained the finding that it now seeks to vary, made in a proceeding of which N.C, the paternal aunt, was aware and in which she did not seek to participate, consisted primarily of the affidavit evidence of their social worker, Naome Muzamhindo, sworn April 4, 2019.
[51] Ms. Muzamhindo swore that:
Over the last few months I have made my inquiries of G.C.’s family members regarding their indigenous heritage. It was very difficult to obtain any concrete information related to a Band or community. Finally, after much research, some information came forward regarding a family member (Marlene Lapierre) possibly being connected to the Algonquins of Pikwakanagan First Nation.
On March 12, 2018 I spoke with Jan Leroux, Manager of Lands, Estate and Membership for the Algonquins of Pikwakanagan First Nation, who informed me that they had no record of Marlene Lapierre.
[52] The foster parents argue that the Society has not been able to establish in its evidence a direct link to a band or Indigenous community.
[53] The foster parents argue that the Society is relying solely on the paternal aunt’s self-identification as a First Nations person to establish a new finding for the child. They go on to argue that the court should not accept the paternal aunt’s self-identification as her position has been “fluid” over the years and cite three specific examples of where she has shown inconsistency.
[54] One such inconsistency is that the paternal aunt’s self-identification is recent. While working with the Society between 2009 and 2017, she never identified as a First Nations person. The paternal aunt denies ever having been asked by the Society if she is Indigenous, but the Society’s records indicate to the contrary.
[55] The foster parents point out that the Society’s records reflect that when asked about this issue in the spring of 2018, the paternal aunt advised that “a great grandmother may have been connected to a community “up north” but that neither she nor her siblings had sought contact and they were not interested in pursuing the issue”.
[56] The foster parents ask the court to dismiss the Society’s motion.
Society Reply
[57] The Society in its reply argues that a child’s identity is not static or an event that can be attributed to a specific moment in time. Identity as an Indigenous person is immutable, whether or not that child or their family possesses all of their own familial history and knowledge about their connection to a particular community: see Catholic Children’s Aid Society of Hamilton v. H.(G.) 2016 ONSC 6287, 83 R.F.L. (7th) 299, at paras. 51, 76, 77, and 79; Catholic Children’s Aid Society of Toronto v. S.T., 2019 ONCJ 207, at para.36.
[58] The CYFSA contains no specific provisions to review a finding regarding a child’s Indigenous identity in the same way the Act contains specific provisions regarding a status review application. However, when the CYFSA is examined through the lens of the contextual and purposive approach to statutory interpretation, it is clear that when new information comes to light regarding a child’s heritage, it is incumbent on the court to re-examine a previous finding: see Bell ExpressVu Limited Partnership v. Rex, at para 30.
[59] The Society relies on the Children’s Aid Society of Hamilton v. B.C. (mother) and D.C. (father), 2019 ONSC 4229, where the court varied its own First Nations finding on a status review application when the mother, for the first time, advised the Society worker that her late father was a First Nations individual: see paras. 60-70. While the previous Order had been made under the old Child and Family Services Act, R.S.O. 1990, c. C.11, the court was prepared to accept this evidence and the testimony of other family members to support a change in the child’s First Nations finding.
[60] The Society argues that one of the overarching purposes of ushering in the changes to the CYFSA, as well as the passing of An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“Federal Act”), was to reduce the number of Indigenous children in care. Indigenous children are overrepresented in the child welfare system due to significant issues of colonialism, systemic racism and the devastating legacy of the residential school system and the Sixties Scoop: see First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada, 2016 CHRT 2 (Can. Human Rights Trib.).
[61] The goal of redressing this overrepresentation is at risk of being rendered meaningless if the court cannot identify Indigenous children within the system. Given that the residential school system and the modern day child welfare system have functioned to sever ties between children, their families and communities, it is logical to allow children and families to re-examine their identification under the CYFSA, with a proper evidentiary foundation as articulated in the case law, to ensure that those children are not denied the protections and rights afforded to them.
[62] The Society posits that the multiple unique provisions for Indigenous children must also be considered when questioning whether a statutory finding regarding a child’s identity can be re-examined. The Society argues that in order to give meaning to those provisions, there must be a recognition that a child’s immutable identity is open to reconsideration in light of new and material evidence. Otherwise, the promises and commitments made to redress the inequalities experienced by Indigenous children in the child welfare system are at risk of being undermined.
[63] The Society takes the position that as of January 1, 2020, under the Federal Act, all child and family services agencies, including the Society, must now apply substantive rules to the services and supports they provide to Indigenous children and their families. These substantive rules, referred to as minimum standards, layer on top of the CYFSA and are meant to complement and bolster the rights of Indigenous children, families and communities. The Society references Mi’kmaw Family and Children Services v. D.P., 2020 NSSC 96, at para. 41, where Murray J. reiterated how the Act will function as follows:
As of January 1, 2020, both C-92 and the Children and Family Services Act apply to children and family services matters for Indigenous Families.
[64] The Society takes the position that these important and unique provisions are rendered meaningless if the Court is constrained by its previous finding without the benefit of the new information and evidence related to the child’s heritage.
The Law
[65] Statutory provisions regarding “identification” findings are set out in s. 90(2) of the CYFSA. Specifically, the court must, as soon as practicable, and in any event before determining whether a child is in need of protection, 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.
[66] The CYFSA contains no provisions by which to “vary” or “amend” these findings once made.
[67] As the Act contains no express authority by which to make a fresh determination, the principles of statutory interpretation require that we examine the language of the provision within the greater context of the legislation. It is well accepted that a statute’s preamble may be used to resolve any ambiguities and uncertainties.
[68] The preamble of the CYFSA states:
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-centered.
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 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.
Honoring 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.
[69] As recently noted by Blishen J. in CAS v. N.P., 2019 ONSC 893, at para. 10, a child’s identification as First Nations, whether or not they are a member of a band or First Nations community, is important given the unique considerations available to First Nations children under the CYFSA:
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.
In considering the purposes of legislation, paragraph 6 ss.1(2) of the CYFSA provides that First Nations, Métis 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.
Pursuant to section 74 (3) of the CYFSA, the importance of preserving a First Nation 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.
In addition, under section 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.
[70] The CYFSA also requires that if a First Nations child is in the care of the Society, the Society must, wherever possible, choose a placement with the child’s extended family, or if that is not possible, with another family of a similar First Nations’ ancestry: see CYFSA, s. 109(2)(d).
[71] Self-identification is a common avenue by which children are identified as First Nations, Inuit or Métis under the CYFSA.
[72] There are three principles that can be gleaned from the case law when considering identification by self-determination: see Catholic Children’s Aid Society of Toronto v. S.T., 2019 ONCJ 207, at paras. 35-38; Children’s Aid Society of Hamilton v. B.C. (mother) and D.C. (father), at para. 67. These principles are as follows:
a) There must be an evidentiary basis to the self-identification, and the underpinning of any self-identification right is that it must be made in good faith;
b) The evidentiary basis is low, but must be reliable and credible;
c) The court is to take a broad view in interpreting if a child is First Nations, Inuk or Métis. This is an approach that is consistent with the statements made in both the preamble and purposes section of the Act.
[73] Madsen J. writes in Children’s Aid Society of Hamilton v. B.C. (mother) and D.C. (father), at para. 70, that the onus is on the Society to conduct the investigation on the issue of heritage. For the Society, this has been an ongoing project – the Act does not absolve the Society from its duty to investigate just because an Existing Society Care order has been made.
[74] Although Madsen J. provides instructional analysis on how to make late-stage identity findings under s. 90(2) of the Act, this case was a transitional case, decided pursuant to the express authority provided for by Ontario Regulation 157/18 (Transitional Matters), which required the court to determine a child’s First Nations, Inuk or Métis identity despite any determination made under the predecessor legislation. Evidently, this is not the case here, as Rogers J.’s order was made under the CYFSA.
[75] In J.F.(M). v. Children’s Aid Society of Metropolitan Toronto, [1981] O.J. No. 1730 (Ont. Ct. Gen. Div.), the court dealt with the question of whether a child who had previously been found to be Protestant could be re-identified as Catholic. Although this case is dated and was made under The Child Welfare Act, S.O. 1978, c. 85, the provisions considered are analogous to both s. 90(2) and ss.113-115 of the CYFSA.
[76] At paras. 44-50 of the decision, Beaulieu J. interprets the purpose of status review applications, and holds that the court is not precluded from addressing a change in circumstances relevant to a child’s religion. A child’s First Nations, Inuk or Métis identity is of comparable (or arguably greater) importance as a child’s religious identity would have been at the time this decision was written. The following commentary at paras. 44-49 is particularly instructive:
44 I've had the opportunity of reviewing those authorities as well as others presented by counsel for the Catholic Children's Aid Society for which I am grateful. At this stage, the view of this court is that the Finding of religious status does not go to jurisdiction; that the Findings of age, name, religious affiliation, place of detention under Section 28(1) are Findings meant to assist in the determination of appropriate placements, as distinguished from Findings that would oust the Court's jurisdiction on a status review. [Emphasis Added.]
45 This Court's interpretation of the Application for a Status Review means simply that. It is an Application to review the Status of the individual before the Court, and “status” includes the elements of the religious affiliation just as it would age, name, etc. [Emphasis added.]
46 It would seem to me rather incongruous that if , as a result of a change of circumstance with respect to the element of age or name or any of these matters that are mentioned in 28 (1), the court were precluded from dealing with the matter of status review, the whole operation of the child welfare proceedings, particularly with its great emphasis on the welfare and best interest of the child, the general purposes of the child welfare legislation would easily be frustrated. [Emphasis added.]
47 In coming to that conclusion, I am also aware of the Act that Section 28 (1) refers to those findings, being made prior to a finding that the child was in need of protection, but, as it relates specifically to the religious finding, it is clear, from my reading of that section, that it is to be made subject to section 44.
48 Section 44, particularly section 44 (3), refers to the considerations being those that are deemed to be proper in all of the circumstances. I do not see anything in the general part of section 44, particularly section 44 (3) that would preclude the court from dealing with a change in that element of status that pertains to religious affiliation on a status review application. [Emphasis added.]
49 Section 37, which is the section that deals with the status review, provides that, in addition to having the authority to terminate an order under section 37 (2)(d), the court can specifically
“…make such further order…”
as it deems
“…necessary in the best interests of the child…”.
Obviously, in my view, such further order is not restricted to issues exclusive of a change of name, a change of age, the change of religious affiliation. This would not reflect today's social and family climate and the various relationships that are formed, changed or terminated. In any event, the finding of a changed religious affiliation, on a status review application, can still be made prior to the finding that the child is still in need of protection, in which case wardship of some kind or supervision may be ordered; The same change or correction regarding age and or name could presumably also be entered prior to that finding and further appropriate order on status. [Emphasis added.]
[77] As noted by Beaulieu J., religious findings are relevant to the issue of placement, and speak to the best interests of a child.
[78] In Catholic Children’s Aid Society of Hamilton v. S. (B.L.), 2014 ONSC 5513, at paras. 83-84, Pazaratz J. summarized the law on status review applications as follows:
[83] This is a status review application pursuant to section 64 of the Act.
a. In a Status Review Hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made.
b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. [Emphasis added.]
c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.) [Emphasis added.]
d. Secondly, the court must consider the best interests of the child.
e. The analysis must be conducted from the child’s perspective.
[84] Pursuant to s. 65 of the Act, the legal issue to be determined on this Status Review Application is what order is in the child’s best interest.
[79] As noted by Reid J. in Children’s Aid Society of Hamilton v. K.D., 2019 ONSC 3675, at para 24, while Pazaratz J.’s analysis dealt with the Child and Family Services Act, s. 115 of the CYFSA contains the same legislative provisions and thus the test remains relevant under the new legislation.
[80] The test makes clear that the child’s status pertains to their need for protection. It follows that it is the original protection order that is presumed to be correct, and the role of the court is to review the circumstances underlying the original order and any new circumstances that have arisen in the interim.
[81] In Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516, at paras. 32-33, and 35-36, Hardman J. explicitly stated that a finding under s. 90(2)(b) is not a declaration of status, and described it instead as a finding made for the purpose of promoting the best interests of a child:
[32] 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. [Emphasis added.]
[33] 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.
[35] 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 Nation, Inuit or Métis heritage particularly through his or her cultural community.
[36] 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”.
[82] If the purpose of a s. 90(2)(b) finding is to promote the best interests of the child, it follows that the child’s identity could be revisited at a status review hearing under the second branch of the test, i.e. the consideration of the child’s best interests.
[83] The foster parents argue that such findings should not be relitigated, and cite Kenora-Patricia Child and Family Services v. M.(A.) to support their position. However, in this case, the parents were appealing the refusal of a judge to set aside a protection finding, as opposed to appealing the original order itself. It was this indirect challenge of the original order that the court held to be a collateral attack, and within this context that the court stated the following at para. 37:
[37] The administration of justice relies on the certainty of judgments that have not been appealed, stayed, or terminated. If the parties are permitted to reach back through time to recast their cases, notwithstanding that they have been adjudicated and then to alter their trial strategy accordingly, the authority of any court order will be destroyed. Litigation could proceed endlessly without conclusion.
[84] This decision confirms that a status review hearing is not an opportunity to re-hear the existing protection order, but it does not necessarily follow from this reasoning that the court is precluded from revisiting the child’s identification.
[85] Beaulieu J.’s commentary in L.C. v. Catholic Children’s Aid Society of Metropolitan Toronto, at para. 56, provides further support for the notion that while a judge cannot relitigate the protection finding, they are permitted to examine any change in circumstances that affect the best interests of the child:
[56] Using s.57(3) as a Guide is, in my view, essentially and effectively consistent with Mr Justice Lerner’s decision in Children's Aid Society of Ottawa v. G. M. and R.M. (1978), 1978 CanLII 1524 (ON SC), 20 O.R. (2d) 378, 3 R.F.L. (2d) 226 (Ont.Div.Ct.) [hereinafter G.M. and R.M.] and Madam Justice MacDonald’s (in Cidalia (Gen Div.)) view of the status review judge’s role with respect to events that preceded the original finding of the need for protection. The status review judge is precluded from relitigating the issue of the need for protection. The judge is not precluded from examining and revisiting factors which existed at the time of the original disposition in order to assess the present circumstances having regard to the events that have occurred since the original finding. The factors that existed at the time of the original order are, therefore, not being relitigated, but may be instructive and help the trier of fact to determine the changes in the circumstances of the parents and or the child as they relate to the determination of the child's best interests. See G.M. and R.M., supra; Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.) (December 14, 1992), [unreported], (Ont.Ct. (Gen.Div.)), E. Macdonald J. [hereinafter Cidalia (Gen.Div.), rev’d on other grounds Cidalia (C.A.), supra. [Emphasis added.]
[86] The purpose of a status review is discussed in Children’s Aid Society of Waterloo Region v. N (B.T.), 1995 CanLII 3844 (Ont. C.J.) where Katarynych J. stated:
The purpose of a status review is to measure the effectiveness of the intervention that a court had imposed through the plan of care that it had applied at its last disposition. The plan of care serves as the court’s benchmark for measuring the effectiveness of its last order and for deciding what further protective intervention is needed, if any. In that process, the court has to focus firmly on the viability of the child’s return to his or her original caregiver or, failing that, the child’s care by members of the extended family or community.
[87] While the law is clear that a protection finding, i.e. the child’s status, cannot be relitigated at a status review, the law does not preclude revisiting the child’s identity if a change of circumstances arises and it is in the child’s best interests to do so.
The Evidence
[88] I will now review the evidence in this case.
[89] The affidavit of Naome Muzamhindo dated April 4, 2019, attached as Exhibit “A” to the Affidavit of the foster parent, sets out the information in the Society’s possession at the time the Order of Rogers J. was made on April 16, 2019.
[90] The affidavit of Ms. Muzamhindo was filed in support of the amended protection application. It sets out brief information about the Society’s efforts to determine if the child could be identified as a First Nations’ child.
[91] Paragraphs 42-44 of Ms. Muzamhindo’s affidavit provide the only reference to the information that the Society had in its possession at the time of Rogers J.’s Order regarding the child’s First Nations, Inuk or Métis status.
Over the last few months I have made inquiries of G.C.’s family members regarding their indigenous heritage. It was very difficult to obtain any concrete information related to a Band or community. Finally, after much research, some information came forward regarding a family member (Marlene Lapierre) possibly being connected to the Algonquins of Pikwakanagan First Nation.
On March 12, 2018 I spoke with Jan Leroux, the Manager of Lands, Estate and Membership for the Algonquins of Pikwakanagan First Nation informed me that they had no record of Marlene Lapierre.
I am aware that the Society’s Cultural Navigators have developed a plan with T.B., to ensure that the child will be connected to her heritage throughout her life. T.B. has committed to this plan with enthusiasm.
[92] Following Rogers J.’s Order, the Society continued to research the child’s heritage. Ms. Glass, who is the Society’s reconciliation lead, filed two affidavits dated June 5, 2020, (filed as Exhibit “1”) and August 17, 2020, (filed as Exhibit “2”) and attended the hearing to be cross-examined on her affidavits.
[93] In her evidence, Ms. Glass attests that it is her role to understand the child’s genealogy and continue uncovering the links to her First Nations family members. It is also her role to help the Society shift its practice in working with Indigenous families pursuant to commitments made by the Ontario Association of Children’s Aid Societies as a result of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.
[94] Ms. Glass deposes that the Society continued to investigate the child’s First Nations heritage following Rogers J.’s Order.
[95] Ms. Glass testified that she has been working on this file since 2018, but that she did not do the research regarding the child’s heritage. Her role is to act as a consultant for workers when they have issues on Indigenous files. Her view, as set out at paragraph 7 of her June 5, 2020, affidavit, is that the child’s rights as a First Nations child should be protected, as provided for under the CYFSA. She swears that “the Society continues to be involved in permanency planning for the child and it is important that such planning be guided by the unique protections and rights afforded to First Nations children in order to ensure that decisions are made in her best interests”.
[96] Ms. Glass testified that Mike Desgrosseiller is the Society’s Volunteer Family Records Searcher. It is through Mr. Desgrosseiller’s work that the child’s heritage was traced, and a family tree was created, a copy of which was made Exhibit “1 a ” in the trial. Ms. Glass testified that Mr. Desgrosseiller is unable to testify directly regarding the work he has done on the file as he is on a leave of absence from work as a result of a terminal diagnosis of his child.
[97] In cross-examination, Mr. Kania asked Ms. Glass for proof in the Society’s documentation that the paternal aunt is Indigenous. Ms. Glass testified that as the reconciliation lead for the Society, she is aware that it was common child welfare practice that workers did not ask the right questions about someone’s heritage. In her experience, if these questions were not asked, the answers would not be offered and thus would not be documented. One of her responsibilities is to consider best practices and remedy the workers’ historic failure to identify families as First Nations. To help address this discrepancy, Ms. Glass prepares cheat sheets for workers at the screening or intake stage of a case to ensure that they are asking parents the proper questions about heritage and identity and capturing their answers in the Society’s records.
[98] Ms. Glass testified that given concerns that Societies were not accurately capturing clients’ identities, a new provincial tool was created for workers called identity-based data collection. Workers are now expected to capture this information. In Ms. Glass’ experience, workers’ failure to identify families as First Nations have led to some people having severed connections with their communities. They say things along the lines of, “no I am not Indigenous, but my grandmother is.” Ms. Glass also testified that it is well known that Indigenous people have had to live with a fear of apprehension.
[99] Ms. Glass also testified to the importance of the TRC. She further advised that there are a lot more supports in place now with respect to child welfare for Indigenous families.
[100] In the Society’s records, the paternal aunt is identified as Caucasian. Ms. Glass indicated that it is not unusual for workers to identify someone incorrectly in their records. As stated above, workers have not been good at asking questions or capturing data when it comes to Indigenous families.
[101] Ms. Glass testified that she has relied on the work completed by Mr. Desgrosseiller, but also on the self-identification of the paternal aunt in their planning for the child.
[102] Ms. Glass has also spoken with Greater Golden Lake representatives about the child. They are participating in the CFSRB hearing.
[103] I accept Ms. Glass’ testimony as it relates to her involvement in this file from 2018 to present. I accept her evidence regarding her role to help correct the workers’ history of capturing data around Indigeneity. I also accept Ms. Glass’ testimony on her experience of working with Indigenous families who did not wish to self-identify out of a fear of having their children taken away from them. Ms. Glass referred in her affidavits and in her oral testimony to the history of the child welfare system in working with Indigenous families and cited the Ontario Association of Children’s Aid Societies call to action, as well as the TRC. I found Ms. Glass to be credible, experienced and knowledgeable in her work with Indigenous families in the child protection system. I also accept Ms. Glass’ insight into the problems child protection workers have faced in documenting families’ Indigenous heritage.
[104] The paternal aunt filed an affidavit dated July 31, 2020, which was made Exhibit “4” in the hearing. She supports the Society’s position that the child is Indigenous. The paternal aunt is the sister of the child’s father.
[105] In the paternal aunt’s affidavit, she swears that she is Anishnabek Ojibwe from Pikwakanagan First Nation Reservation, formally called Golden Lake Band. In April 2019, she applied for membership to her Band, but she has not yet received approval.
[106] The paternal aunt is asking the court to acknowledge both her and the child’s birth right to be acknowledged as First Nations people. She attests that it is hurtful that she has to attend court to prove her race and her ancestry and fight for the child’s birth right given the history and struggles of First Nations people in Canada.
[107] The paternal aunt deposes that she first advised a Society worker that she was Indigenous in June of 2018. The worker did not, to her knowledge, document the information. When cross-examined on this issue, the paternal aunt confirmed that she told the worker about her history in June 2018, but she is not aware of what the worker wrote down.
[108] In April 2019, the paternal aunt had withdrawn her plan to care for the child. She was not involved when the Society went to court to obtain the finding that the child is not First Nations, Inuk or Métis. She did not renew her wish to care for the child until May 25, 2019.
[109] Regarding her own self-identification, the paternal aunt’s evidence at para. 7 of her affidavit is that “…since my early childhood, I have been learning my heritage through my family as we have been attending Powwow’s up north where we grew up. In school we were taught to speak and sing “Oh Canada” as well as basic conversation like “miigwetch” (thank you) and “boozhoo/pooshoo” (welcome/hello). When growing up my brother and I had our grandfather and grandmother who provided our teachings and told us stories until they passed on. Currently, I talk to elders, spiritual healers while listening to teachings and journal what I have been learning to pass down the teachings to my daughter as well as my niece (the child).”
[110] The paternal aunt’s evidence at paras. 8 and 9 of her affidavit set out how the Society worker, Mr. Desgroseiller volunteered his time to help research her family’s Indigenous heritage. The paternal aunt attests that “this helped to put all the pieces of my lineage together within my Indigenous roots that I was missing from my own personal research.”
[111] The paternal aunt, in her affidavit at Exhibit “B”, filed a family tree that she created which shows her lineage back to Angeline Jacko, the person from whom she and the Society believe she gains her Indigeneity.
[112] In the paternal aunt’s oral evidence, she testified that she made the family tree from documents that she gathered with help from the Society. The paternal aunt testified that the documents upon which the chart was based are at her home and include birth certificates. She did not bring them to court with her.
[113] The paternal aunt testified that her great great great grandmother lost her status due to marriage.
[114] Mr. Kania questioned the paternal aunt about the length of her involvement with the Society and the paternal aunt testified that her involvement goes back to 2009. Mr. Kania asked the paternal aunt if the workers had asked her if she was First Nations. She said no. When Mr. Kania asked the paternal aunt why she didn’t advise them she answered, “I didn’t know I needed to tell them”.
[115] Mr. Kania questioned the paternal aunt on her commitment to the child because she had withdrawn her plan to care for her previously. He referred the paternal aunt to an email she had sent to T.B., dated March 27, 2020, where the paternal aunt writes, “I sent it to my lawyer and 4 CAS workers. They will do what they need to do. They are not happy that I sent it to you and told me to think it over and keep fighting for her. But it doesn’t feel right to do that anymore. What feels right is you adopting her and we keep visiting on the regular so she knows who we are.” In answer to this email, the paternal aunt testified that she had sent the email as a result of a discussion with the foster parents in the park, where they advised her that she was hurting the child and that she should stop fighting for custody. She advised that she thought it over and decided to put a plan forward to care for the child.
[116] Ms. Murray reviewed with the paternal aunt where she grew up - she was born in Sturgeon Falls and lived there until she was nine years old. When Ms. Murray asked the paternal aunt about her involvement with her Indigenous community, given that she lived three to four hours away from the Pikwakanagan reserve, the paternal aunt testified that she grew up with her family around and stated “just because we didn’t live on reserve doesn’t mean we weren’t native. We still had powwows and smudged daily with our grandmother.”
[117] Ms. Murray questioned the paternal aunt on her relationship with her father. The paternal aunt advised that she was not close to her father as he and her mother had separated when she was young, but she maintained her connection with her grandparents. She also testified that she did reconnect with her father when she was an adult.
[118] Ms. Murray questioned the paternal aunt on her membership in a Band. The paternal aunt testified that she has received letters from Greater Golden Lake, but that she is not an official member of that Band.
[119] I accept the evidence of the paternal aunt to be credible and trustworthy. She testified that she identifies as First Nations. She stated that a person need not live on a reserve or formally be a member of a band to identify as First Nations. She described her upbringing as one where she was connected to her culture through her grandparents. She testified that she recently applied to be a member of a Band, the Algonquins of Greater Golden Lake First Nation, but that she has not yet received confirmation from them in writing to say she is a member. A letter dated November 5, 2019, was filed into evidence to acknowledge receipt of the paternal aunt’s application from the Band Chief, Connie Mielke. There is also a letter from the Band Chief dated March 10, 2020, that is written to all the members. The paternal aunt testified that she received that letter in the mail and she provided a copy to the Society.
[120] I found the paternal aunt to be honest and sincere in her answers. It is evident to me from her testimony that she loves the child and she struggles with making the right decision for her. She has withdrawn her plan for the child once before as a result of her own struggles with whether it would be best to remove her from the foster parents. The fact that the paternal aunt has withdrawn her plan previously has no impact on the issue before me. The paternal aunt’s comments speak to the very issues that the legislature was trying to address in the preamble.
[121] The maternal grandfather filed an Affidavit that was marked as Exhibit “3”. The maternal grandfather deposes that he supports the child being adopted by the foster parents. He attests that there is an ongoing CFSRB matter as a result of the Society reneging on the foster parent’s application to adopt the child. He also swore that the Society is supporting the paternal aunt’s plan to adopt the child. The maternal grandfather supports the foster parents’ position.
[122] The maternal grandfather, in paragraph 9 of his August 12, 2020 affidavit, states that “…it is noteworthy that nowhere in the aforesaid notes and records is there any mention of the paternal aunt’s identification with or link to a First Nation and in at least three instances, N.C. is specifically identified as non-Indigenous. At paragraph 10 it states, “in addition, my personal view, having interacted with the paternal aunt and witnessing her lifestyle, is that she does not identify as an Indigenous individual. It is clear to me that she is simply using this argument to bolster her legal case to adopt the child.”
[123] During the maternal grandfather’s oral evidence, Ms. Clarke, counsel for the Society, asked him if he was a party to the CFSRB proceeding, to which he replied “yes”. The maternal grandfather confirmed that he has counsel for that process as well. Ms. Clarke asked the maternal grandfather if the Algonquins of the Greater Golden Lake Band was added as a party to the CFSRB hearing to which he also replied “yes”. Ms. Clarke asked the maternal grandfather if an appeal of the decision to add the Band had ever been filed, to which he responded “no”.
[124] I do not accept the maternal grandfather’s position that the paternal aunt is only identifying as Indigenous to improve her legal argument. The maternal grandfather is not an Indigenous person and has not provided the court with any evidence that he understands what it is to identify as a First Nations person. I give no weight to the maternal grandfather’s evidence.
[125] The final witness in this matter was Ms. Murray’s client, the foster mother. She testified by telephone on consent of the parties. The foster mother’s affidavit was filed as Exhibit “5”.
[126] In the foster mother’s affidavit, she deposes that shortly after the child was placed in her care, she was advised by a Society worker that the child may have a connection with a First Nations’ community. At paragraph 5 of her affidavit, she states, “[s]hortly after the child was placed in our home we were advised by Ms. Shannon Simmons that the child might have a connection to a First Nations community through a great grandmother and that the issue was being investigated.”
[127] The foster mother’s evidence is that the paternal aunt has been inconsistent in her intentions to put forward a plan to care for the child as well as her First Nations connections.
[128] The foster mother attests the following at paragraph 17 of her affidavit, “the paternal aunt has recently asserted that she has long identified as a First Nations person. This is inconsistent with the representations made to the Society according to its notes and records. It is also inconsistent with her communications with me. The paternal aunt has never inquired of me about my understanding of First Nations culture or offered any input regarding what measures she thinks should be taken to ensure the child’s future connection to any First Nation culture.”
[129] Questions were asked of the foster mother regarding her home study that was completed in March 2019. At page 82 of the home study, filed as an Exhibit to the maternal grandfather’s affidavit, it is written, “[t]he foster parents express interest in supporting the child’s connection with all aspects of her heritage, which includes her Indigenous heritage and also her Scottish and her French heritage. T.B. has invested in a homeschooling curriculum specific to the Native community for her children. While in the process of adopting their daughter cultural/education training was offered by Native Child and Family Services. They were involved with Elder Pauline Shirl in cultural seminars, such as medicine teachings. They learned how to access traditional teachings, how to pray and smudge, and how to prepare traditional foods….”.
[130] In re-examination by Ms. Murray, the foster mother indicated that there was no Indigenous community identified for the child when she signed the home study on April 4, 2019. The foster mother also testified that she was not aware that the paternal aunt was involved in planning for the child.
[131] The foster mother’s own evidence is contradictory. In the Society’s affidavit material, it is noted that the foster parents accept that the child has Indigenous heritage and that they will ensure that she is exposed to that heritage if she is adopted by them. In her evidence at trial, the foster mother indicated only that the paternal aunt has not been consistent in her desire to put forward a plan for the child. The foster mother directed the court to the lack of documentary evidence in the Society’s records regarding identification of the paternal aunt as Indigenous or her membership in a Band.
[132] I do not accept the foster mother’s evidence that the paternal aunt is not Indigenous. The foster mother was advised by a worker in 2018 that the child has Indigenous heritage. She agreed that she would ensure that the child is exposed to this heritage when adoption planning discussions were had with her. She cannot now come to court and say the child is not Indigenous because of inconsistencies in the Society’s records.
ANALYSIS
[133] This case is about a three year old girl who has been in the care of her foster parents since shortly after her birth. On April 16, 2019, a finding was made that she is not First Nations, Inuk or Métis. The Society now seeks to vary that finding on a Status Review Application as a result of new evidence.
[134] After having reviewed the case law, as well as the evidence presented in this case, I agree with the Society’s position.
[135] A child’s identity must be fluid, especially one who is placed in the care of the Society at birth.
[136] It is incumbent on the Society to work with parties in a proceeding and determine whether a child is a First Nations, Inuk or Métis child. Section 90(2)(b) of the CYFSA says that the Court shall determine this information before a protection finding is made. The Society argues that the timing of a First Nations, Inuk or Métis determination is not set in stone. As parents and families learn more about their heritage, new information may come to light after a judicial determination regarding a First Nations, Inuk or Métis finding has already been made. The CYFSA does not bar a re-examination of that finding and, in light of the legislature’s commitments to reconciliation, the court may reconsider this issue.
[137] Ms. Glass testified that historically workers have not known how to ask questions about heritage and would simply avoid the subject. As a result, the Society’s records do not accurately reflect whether a child is in fact Indigenous.
[138] When the Act was amended in 2017, it was done in consultation with various community members, including Indigenous groups, to ensure that meaningful changes were made to both the language and the processes contained within the Act regarding Indigenous people.
[139] The preamble to the CYFSA confirms the importance of a child’s heritage and sets out the government’s commitments to First Nations and Indigenous people if they are to become involved with child protection agencies.
[140] If we are to rely only on workers who are not properly trained or given the proper tools to obtain and document this information, children will rarely be identified as First Nations children, or as in this case, will be identified at a late stage in the proceedings.
[141] The history of residential schools and the Sixties Scoop speaks to how important this issue is. The TRC and the Missing and Murdered Indigenous Women reports are two recent examples of public documents which remind us of the injustice and violence that colonialism has wreaked on our nation’s Indigenous communities. Expecting Indigenous people to come forward as Indigenous without trepidation, especially while they are being told that there are protection concerns with children in the care of their family members, is unreasonable and further impacts the ability and desire of Indigenous people to be forthright with Society workers. It takes time to build trust and it takes time to unlearn past bad behavior.
[142] The obligation is completely on the Society to investigate this issue quickly in order to ensure that a child is obtaining all the benefits and services available to them. When new information is uncovered regarding a child’s possible identity as a First Nations child, it should be considered.
[143] As evidenced in Ms. Muzamhindo’s affidavit sworn April 4, 2019, the Society had previously identified some information about this child’s heritage, but at the time it was not enough to pursue a finding that she is First Nations.
[144] The Society continued to investigate the child’s heritage while planning for her permanency and they have now determined that the child is a First Nations’ child. This determination is based primarily on the paternal aunt’s self-identification. In Catholic Children’s Aid v. S.T., Sherr J. reviewed the guiding principles in relation to identification of First Nations, Inuk and Métis children.
[145] Sherr J. cited the following principles from the case law:
There must be an evidentiary basis for finding a child is a First Nations, Inuk or Métis child. The evidence should be sufficient for the child to fall within the definition of a First Nations, Inuk or Métis child as set out in Ont.Reg.155/18. (Bruce Grey, at para 49.)
The court should take a broad view interpreting if the child has a connection to a Band or a First Nations, Inuit or Métis community under the regulation. This seems to be in accordance with the spirit of the Act which tends to be more inclusive when it deals with aboriginal peoples. (Children’s Aid Society of Algoma v. C.A., at para 44.)
It is now widely recognized that the “Sixties Scoop” perpetuated an injustice on Aboriginal communities, families and children. That was a significant driver to the amendments of the governing legislation that require early identification, participating of native communities in proceedings and priority placement of First Nation, Inuk and Métis children that are congruent with the child’s heritage. (Children’s Aid Society of Brant v. S.G., 2018 ONCJ 958, at para. 44.)
[146] In J.F.(M.) v. Children’s Aid Society of Metropolitan Toronto, Beaulieu J. found that a court is not precluded from addressing a change in circumstances relevant to a child’s religion. As stated earlier in this decision, a child’s First Nations, Inuk or Métis identity is of comparable (or arguably greater) importance as a child’s religious identity would have been at the time this decision was written.
[147] The CYFSA includes a preamble that sets out basic principles that includes the Government’s commitment to Indigenous peoples. The significant changes that have been made to the CYFSA, as well as the addition of the preamble, demonstrates the importance of a First Nations, Inuk or Métis finding, as the Act is applied differently to Indigenous children. To deny a child this opportunity because a Society worker did not ask the right questions or failed to document the proper information before a protection finding was made cannot be what the legislature intended.
[148] The paternal aunt testified that she identifies as a First Nations person. I found the paternal aunt to be articulate and brave in her testimony. She clearly loves this child and is conflicted by the position she has taken. In her testimony, she said she is aware that her plan involves removing the child from the only home she has known and that this is difficult for her. She acknowledges however, that her heritage is important, and the child should have the benefit of it. I agree.
[149] The threshold for a child to be found to be a First Nations child is low. A person related to the child need only demonstrate that they identify as a First Nations, Inuk or Métis person.
[150] Having considered the evidence before me, I find that it is in the interests of justice that the court reconsider the issue of the First Nations finding and re-identify this child as First Nations. The issue of the child’s identity is fluid and should be addressed afresh on a Status Review Application.
[151] Children who are identified as Indigenous receive special services pursuant to the CYFSA. It would be unjust for a child to be excluded from those services simply because the Society did not complete the work that was required in order to properly identify a child.
Orders Granted
[152] This court orders the following:
The child, C.E., is a First Nations child under the CYFSA.
This matter shall return before me on October 20, 2020 at 3:50 p.m. to determine next steps.
J.D. Walters J
Released: October 14, 2020
[^1]: Canada, Truth and Reconciliation Commission, Canada’s Residential Schools: The Legacy, vol 5 (Montreal:McGill-Queen’s University Press, 2015), quoted at p.4, Book of Authorities of the Applicant (“BOA”), Tab 13.