COURT FILE NO.: FS-20-0062-00AP

DATE: 2021-09-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.L. and D.L.

M. Frangione, for the Respondents /Applicants

Respondents for this Appeal /Applicants

and

B.T., D.C.

Respondents for this Appeal/Respondent

and

Dilico Anishinabek Family Care

Appellant for this Appeal/Respondent

and

Nishnawbe Aski Nation

Intervener

and

Association of Native Child and Family Services Agencies of Ontario

Intervener

E. Van Voort, for D.C.

No-one appearing for B.T., Respondents

K. Hensel and Z. Thoms, for Dilico Anishinabek Family Care, Appellant/Respondent

A. Matthews, for intervener Nishnawbe Aski Nation

S. Clarke and A. Catalano, for intervener Association of Native Child and Family Services Agencies of Ontario

HEARD: March 30, 2021 and June 3, 2021, by videoconference at Thunder Bay, Ontario

Mr. Justice W. D. Newton

RESTRICTION ON PUBLICATION

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(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.

Appeal

Overview

The Parties

[1] The appellant, Dilico Anishinabek Family Care (Dilico), is an Indigenous children’s aid society under the Child, Youth and Family Services Act, 2017[^1] (CYFSA).

[2] The child, J.T., at the centre of this appeal, was born in November 2015 and is now almost six years old. She was apprehended at one day of age and has lived with the respondents M.L. and D.L. in Thunder Bay since she was eight days old.

[3] D.C. is J.T.’s mother. She is a member of the Berens River First Nation. Berens River First Nation is located approximately 270 km north of Winnipeg, Manitoba. D.C. resides in Thunder Bay.

[4] B.T. is J.T.’s father. He is not Indigenous. He resides in Thunder Bay. He has cohabited with D.C. at times but, according to D.C., he does not reside with her permanently. He did not participate in this appeal or in the proceedings under appeal although it appears he was served with notice of the proceedings.

[5] The Association of Native Child and Family Services Agencies of Ontario (Association) is an organization representing Indigenous Child and Family Services Agencies serving 90% of the First Nations communities in Ontario.

[6] Nishnawbe Aski Nation (NAN) is a political territorial organization representing the interests of 49 member First Nations. It is not affiliated with Dilico and its member First Nations have their own children’s aid society.

[7] The Association and NAN were granted intervener status by order of Fitzpatrick J. dated October 29, 2020.

The Appeal

[8] Dilico appeals the order of MacKinnon J. dated March 3, 2020[^2] dismissing Dilico’s motion to strike the application by M.L. and D.L. for custody of J.T. under the Children’s Law Reform Act, 2017[^3] (CLRA).

The Facts

Procedural History

[9] This matter has a somewhat complicated procedural history.

[10] An interim decision of Bode J. of the Ontario Court of Justice dated September 12, 2019[^4] sets out the facts and procedural steps prior to the motion before MacKinnon J.

[11] Bode J. noted that M.L. and D.L. were foster parents for Dilico having completed their training as foster parents in 2015 and having signed a care service agreement with Dilico on October 21, 2015. Bode J. also noted that the agreement between the parties provided that M.L. and D.L. are foster parents for J.T., as that term is used in the CYFSA, and that J.T. had been living with M.L. and D.L. since November 2015 pursuant to the alternative care agreements signed by Dilico, M.L. and D.L., Berens River First Nation, J.T.’s mother and Dilico.

[12] In August 2017 M.L. and D.L. brought an application under the CLRA seeking custody of J.T. They named J.T.’s mother and father, but not Dilico, as respondents. When Dilico discovered the CLRA application, Dilico brought a CYFSA protection application in October 2017 and, consequently, the CLRA application was stayed.

[13] M.L. and D.L. claimed party status in the CYSFA application and their motion to be added as parties was dismissed. The same day, Dilico filed a customary care agreement in support of their request for leave to withdraw their protection application and Kunnas J. permitted Dilico to withdraw the protection application.

[14] M.L. and D.L. responded by seeking to reactivate their application for custody under the CLRA. In turn, Dilico brought its motion for orders declaring that Dilico was a person with an interest in the case, declaring that M.L. and D.L. were prohibited from being parties in a case involving the custody and/or access of J.T., and striking the application.

[15] The motion before Bode J. was an emergency motion to prevent Dilico from moving J.T. to Berens River First Nation prior to the determination of Dilico’s motion. Bode J. granted the motion and, on a temporary, without prejudice basis, ordered that M.L. and D.L. have care and control of J.T. and allowed them to register J.T. in school pending the result of the motion.

[16] In coming to his conclusions, Bode J. queried whether the customary care agreements were binding and effective in that:

a. only one parent had signed;

b. the documents all purported to be short-term temporary agreements but covered virtually every one of J.T.’s four years;

c. the documents were “standard form” documents which asserted that J.T. was in need of protection but no information as to why J.T. was in need of protection was provided; and

d. there was no information that would permit the court to determine whether the preconditions for a valid consent under s 21(2) of the CYFSA[^5] exist.[^6]

Evidence on the Motion

[17] Dilico’s motion was finally heard on December 3, 2019.

[18] On the motion, evidence from M.L. and D.L. consisted of affidavits from M.L. and the foster mother of J.T.’s sister who resides in Thunder Bay and is also in care.

[19] Evidence on the motion from Dilico consisted of affidavits from Meghan Gagliardi, a child protection worker with Dilico, Michael Domingos, a family services manager with Dilico, Michelle Marie, another child protection worker with Dilico, and D.C., J.T.’s mother.

Evidence on behalf of M.L. and D.L.

M.L.

[20] On August 29, 2019, M.L. swore an affidavit in support of an urgent motion to prevent Dilico sending J.T. to Berens River First Nation. She described herself as J.T.’s foster mother and that J.T.’s primary home has only ever been in Thunder Bay. She deposed that her husband has an “Indigenous background” and that he is a registered Metis and a non-status member of Couchiching Frist Nation.

[21] She stated that J.T. has a sister who resides in Thunder Bay and that the sisters see each other regularly. She also stated that J.T. has young friends and neighbours that she is close to.

[22] She said that she registered J.T. in school in Thunder Bay in May 2019 and that she was told by Dilico agents that J.T. would be registered for school in Manitoba in the fall of 2019. She described that J.T. came back from a weeklong visit to Berens River First Nation “extremely irritable and looking frightened.” She also expressed concern over J.T.’s hygiene while at Berens River.

[23] In a subsequent affidavit sworn October 23, 2019, M.L. also stated that she was told by an alternative care worker, Ms. Copenace of Dilico, that adoption or legal custody “would be an option for our family.” By the summer of 2017, as neither biological parent had been presenting a plan for care of J.T., she and her husband decided to seek custody of J.T.. M.L. was critical of how Dilico had handled access in the past including failing to advise them in advance and failing to introduce access gradually.

[24] With respect to J.T.’s father, M.L. stated that he had made it “perfectly clear” that he does not consent to J.T. being moved out of the province. She referenced a series of text messages with Ms. Blundeau at Dilico in which it is alleged that Ms. Blundeau said that “he doesn’t want her moving away or anything.”

[25] She stated that J.T. has developed a close relationship with her sister, W.T., who is 11. The sister has asked permission, when she is older, to babysit J.T..

L.C.

[26] L.C. is a foster parent with Dilico and foster parent to W.C., J.T.’s sister, who is now 11.

[27] Her foster daughter was placed with her when she was two weeks old and L.C. has been the only caregiver since then. She said that the parents, D.C. and B.T., have only visited her foster daughter three times between April and May 2017 in the 11 years that she has had W.C. in her care. The visits were not a positive experience for W.C. and it is reported that she told her foster mother that she would “run away if she ever had to go back”. After a visit with her biological mother and her biological great-aunt from Berens River First Nation, whom Dilico is proposing to care for J.T., it is alleged that W.C. told her foster mother that she did not want to see them again. It is also alleged that W.C. has told her foster mother that she gets “very uncomfortable” when Dilico workers visit because she believes that the Dilico workers are “going to take her away.”

[28] She deposed that M.L. and D.L. contacted her in early 2016 to arrange visits between the sisters and that the sisters’ relationship is “remarkable”.

Evidence on behalf of Dilico

Meghan Gagliardi

[29] On September 29, 2017, Meghan Gagliardi deposed that there is a child welfare history in Manitoba with respect to J.T.’s mother who has eight children in care in Manitoba. She noted substance abuse as “an historical concern.”

[30] J.T. was born on November 18, 2015 and, on November 19, 2015, a child welfare referral was directed to Dilico from the hospital. The referral indicated that the mother was not prepared for the baby. Due to the referral, no alternative caregivers and “historical child welfare history”, J.T. was placed in the care of Dilico with the consent of the parents by temporary care agreement. The agreement was developed in January 2016. The plan was agreed to by the mother but not by the father initially. Subsequently, the father signed the service plan.

[31] Ms. Gagliardi stated that, on February 16, 2016, the foster parent, M.L., mentioned that she was hoping for a long-term placement of J.T. and Ms. Gagliardi said that the child service worker reviewed the policy on working with families and reunification. Ms. Gagliardi reviewed the access visits by J.T.’s mother which were sporadic. Between July and November 2016 there were no access visits. Dilico conducted an unannounced home visit with J.T.’s mother in September 2016 and it was noted that “reunification was spoken about however due to the lack of commitment from (the parents) it was not possible at this time.” The mother signed a temporary care agreement and service plan at that time. Access by the parents continued. Home visits by the child service worker noted appropriate parenting by the parents. Unsupervised sleepovers began in July 2017. Ms. Gagliardi’s affidavit ended with the statement that Dilico received a child protection referral on September 20, 2017 which is being investigated.

Michael Domingos

[32] On November 16, 2018, Mr. Domingos described the Mikinaak Model of Customary Care followed by Dilico as a:

traditional practice of raising a child within a First Nation, where all members of the family, extended family, relatives and community are involved. Traditional Customary Care practices are influenced and determined by the culture of the parents. Customary Care extends beyond the family to the community in which the child is raised.

Customary Care requires a child’s First Nation community to be involved in his/her placement within Dilico. Where a First Nation community has stated that Dilico is to care for the child on its behalf, the ongoing planning for the child requiring a out of home care is to be undertaken jointly between the First Nation community and Dilico.

[33] The Customary Care agreement in place at that time was for the period from June 29, 2018 to December 29, 2018. It was not signed by the father.

[34] On June 28, 2019, Mr. Domingos provided a supplementary affidavit. He deposed that there had been two additional Customary Care Agreements since his last affidavit. As before, these were not signed by the father.

[35] He deposed that J.T.’s great aunt who resides in Berens River First Nation had indicated a willingness to care for J.T. on a permanent basis. This great aunt has care of one of J.T.’s half siblings. He noted that the great aunt has had access visits with J.T. in Thunder Bay. He further deposed that both parents are in agreement with this plan although there is nothing in writing from the father confirming this. He states that both parents have attended case conferences and have expressed their desire for J.T. to be placed into the care of her great aunt.

Michelle Marie

[36] On August 16, 2019, Ms. Marie deposed that she had reviewed records maintained by Dilico and that, as a result of a review of those records, she stated that the great aunt and other family members from Berens River First Nation have had access with J.T. on six occasions between April and August 2019. Two of those visits included a half sibling.

[37] Further, she deposed that J.T. is a registered member of Berens River First Nation and that J.T. has a status card.

[38] With respect to J.T.’s sister in Thunder Bay, Ms. Marie indicated that Dilico intended to facilitate access between J.T. and her sister through the great aunt.

[39] On September 4, 2019, Ms. Marie deposed that the purpose of the proposed visit to Berens River First Nation was for an extended visit with her great aunt and that J.T. was not being relocated or discharged from Dilico’s care.

[40] Attached as exhibits to Ms. Marie’s affidavit were copies of the Alternative Care Service Agreements signed by M.L. and D.L. each year from 2015 to 2018. Ms. Marie emphasized that the agreement states that: “Services provided by the Alternative Caregivers fall under the Foster Care Licensing requirements set forth by the Ministry of Community and Social Services/Children’s Services.” She also noted that the responsibilities of the alternative Caregivers include respecting the child’s ties “to his natural, extended and First Nations origins and to cooperate and be supportive of visits between natural family, extended family, First Nation and the child.” Another exhibit was the schedule of the payments made by Dilico to M.L. and D.L. for the care of J.T. of approximately $1,000 per month with a cumulative total to that date of over $44,000.

[41] On October 11, 2019, Ms. Marie deposed to the history with J.T.. As noted, J.T.’s mother has eight children who are permanent wards of the Winnipeg Child and Family Services and two children currently in Dilico’s care, J.T. and her sister, W.C., who is a Crown Ward without access. She reviewed various case notes on file with Dilico and provided details of the interactions between Dilico, the foster parents and the natural parents.

D.C.

[42] D.C. is J.T.’s mother. In her affidavit dated October 29, 2019, she stated that she has worked cooperatively with Dilico since J.T. was removed from her care in 2015. She advised that she is represented by counsel who is assisting her in the custody application brought by the foster parents. She deposed that she was represented when she signed the recent Agreement for Customary Care and that she understood the nature of the agreement, signed the agreements voluntarily and was given an opportunity to receive legal advice about signing the agreements.

[43] She said that she would not have signed any voluntary agreement or customary care agreement with Dilico if she understood that it could mean that the foster parents would use the agreements to try to gain custody of J.T. or to control decisions about where J.T. would live without input from her or her First Nation. She confirmed that she is not in agreement with an order placing J.T. with the foster parents or preventing Dilico from relocating J.T. to Berens River First Nation.

[44] She stated that her hope was that J.T. would have transitioned to her aunt’s care by then. She deposed that she has numerous aunts, uncles, and cousins residing in Berens River and that her sister and her children reside there. She estimated that she has at least 200 relatives in that community.

[45] Her affidavit is silent with respect to whether she is living with J.T.’s father and his wishes, if any, with respect to J.T.’s care. In her answer, delivered September 27, 2017, she states that J.T.’s father does not permanently reside with her.

The Order under Appeal

[46] The interim order provided that:

1. The Applicants, M.L. and D.L. shall be entitled to continue with their application under the Children’s Law Reform Act. The motion to strike is dismissed.

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

3. The great aunt shall be entitled to be added to the Children’s Law Reform Act application as a Respondent by serving written notice of her desire to do so upon the Applicant within 7 days. Should she do so, she shall be served with the Application by the L family and shall have thirty days to file an answer on the Applicants and each parent.

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

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

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

7. If the great aunt becomes a party, she is entitled to access.

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

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

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

c. All access shall be in Thunder Bay.

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

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

f. The great aunt shall refrain from having the child refer to her as mother or mom.

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

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

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

Reasons of the Motion Judge

[47] In her description of the background of the case, the motion judge referred to the applicants as Indigenous which is not consistent with the evidence before me which described only D.L. as a registered Metis and a non-status member of Couchiching First Nation. No information is before me as to how M.L. self-identifies.

[48] The motion judge noted that Dilico’s prior announced intention to the court as at October 2018, on the withdrawal of the protection application, was to work toward reunification with J.T. and her parents. With the filing of the Customary Care Agreement the protection application was withdrawn with no finding or disposition made by the court.

[49] The position of the parties as set out by the motion judge were:

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

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

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

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

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

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

[21] The Applicants respond that the failure of the agency to proceed with a permanency plan for J.T. forced them to commence their Application. They argue that it is in the best interests of J.T.to remain with them and not to be moved to a placement in Berens River First Nation.[^7]

[50] The motions judge identified the following issues:

1. Does this customary care agreement bring the matter of J.T.’s custody under the CYFSA?

2. Are the Applicants “foster” parents and prohibited from bringing this CLRA action under the Rules, specifically Rule 7(4)?

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

4. Does this customary care agreement bring the matter of JT’s custody under the CYFSA?

[51] In her comprehensive analysis of this issue, the motion judge acknowledged the history of customary care with Indigenous groups caring for their children in accordance with their beliefs and customs and noted:

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

[52] The motion judge distinguished Customary Care Agreements as an alternative disposition by a court under the CYFSA and a Customary Care Agreement entered into outside of the court process. She described the latter as follows:

…the decision whether the child is in need of protection is made by the agency and the signatories to the agreement. The determination that the child must be kept in care for his/her own safety, is made by the agency and the signatories. The tradition for care in the First Nation, which varies by community, is implemented by the agency. The customary caregivers are paid a subsidy. A court under the CYFSA is not the decision-maker.[^8]

[53] She noted that there have been at least six “Short Term” consecutive agreements each of six months duration in relation to J.T..

[54] In response to Dilico’s argument that they have legal guardianship of J.T. by the terms of the Customary Care Agreement, she noted that guardianship was not granted by a court and that there is no statutory provision which substantiates that the First Nation has legal guardianship of children on a band membership list as of right or by contract or agreement.[^9]

[55] The motions judge noted that the father had signed the Temporary Care Agreement that ended in February 2016 but had not signed any of the subsequent Customary Care Agreements. She noted that the father may have attended one of the access visits when J.T. was meeting with her relatives from Berens River. She also noted the conflicting evidence as to the father’s wishes with respect to his daughter being moved out of province and noted that the father’s consent had not been dispensed with under the CYFSA. She stated:

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

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

[56] In analyzing the relationship between what she described as “Out–of–Court Customary Care” and the CYFSA, the motion judge concluded that “Out–of–Court Customary Care” is not a creation of the CYSFA and does not fall within the jurisdiction of the Act because the decision-makers are different, the philosophies are different, and there is a lack of sufficient substantive and procedural safeguards. She stated that under the CYFSA the decision-maker is the court and not the parties to the agreement. As to philosophy, she stated that the caregivers speak to the issue of best interests and that the agency acts on the “aspirations of the First Nation.”[^10] She noted the lack of “process and procedures” in the CYSFA to deal with Out-of-Court Customary Care Agreements.

2. Are the Applicants “foster” parents prohibited from bringing this CLRA action under the Rules, specifically Rule 7(4)?

[57] Rule 7(4) of the Family Law Rules[^11] provides as follows:

Parties In Cases Involving Children

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

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

2. A child protection case.

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

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

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

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

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

[59] After reviewing the foregoing sections, the motion judge noted:

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

[60] In determining that M.L. and D.L. were not foster parents the motion judge reviewed the definition of “residential care[^12]” and “member of the child’s community[^13]” in s. 2 and s. 2(3) of the CYFSA. She concluded:

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

[61] In determining that M.L. and D.L. were not foster parents, the motion judge also distinguished the funding models. She noted that under s. 71 of the CYFSA, where a First Nation declares that a child has been cared for under customary care, a society may grant a subsidy to the person caring for the child. Caregivers in Formal Customary Care arrangements receive, from a children’s aid society, a supplement equivalent to that received by a foster parent[^14].

[62] The motion judge also referenced Bill C-92: An Act Respecting First Nations, Inuit and Metis children, youth and families, which came into effect January 1, 2020 in determining that M.L. and D.L. were not foster parents. She noted that a “care provider” is:

a person who has primary responsibility for providing the day to day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs[^15].

[63] She also noted that care providers have the right to make representations and have party status, as do the parents, in a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child.[^16]

[64] Accordingly, she found that M.L. and D.L. were not foster parents but were customary care givers or care providers and, as such, not prohibited by Rule 7(4) from bringing an application under the CLRA.

[65] Alternatively, the motion judge stated that, if she were wrong with respect to her conclusion, she would exercise her discretion under Rule 7(5) to allow M.L. and D.L. as parties. In support of the exercise of her discretion to permit the applicants as parties, the motions judge relied upon s. 21 and s. 62 (3) of the CLRA. Section 21 allows a parent or any other person to apply to the court for an order respecting custody or access. Section 62(3) includes as parties to an application for custody the person who had “actual care” of the child immediately before the application. The motions judge concluded:

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

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

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

[66] The motion judge concluded that the court should not show deference to the decision of Dilico as she had determined that, as this was an out-of-court customary care agreement, it was not a CYFSA matter, that there is no statutory authority to make the placement decision, and that there were factors other than the best interests of J.T. which Dilico applied in making their decision.

[67] The motion judge therefore allowed the CLRA application to proceed as:

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

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

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

d. Deference cannot be given to the placement decision of the agency as it is based on principles other than the best interests of the child.[^17]

[68] She stated that parents, caregivers and the great aunt are entitled to a full hearing of the plans that they propose for J.T..

Motion for Fresh Evidence on Appeal

[69] Ms. Marie from Dilico swore an affidavit dated June 16, 2020. From her review of the records she gave an update with respect to J.T. since the motion before MacKinnon J.. She deposed that M.L. and D.L. have taken steps to restrict Dilico’s access to J.T. including objecting to Dilico’s attendance at J.T.’s medical appointments, limiting the number of visits by Dilico and the Berens River relatives and refusing services for J.T. facilitated by Dilico.

[70] After the release of the decision under appeal in March 2020, M.L. advised Dilico by text message which stated that:

just letting you know that the court order suspended all agreements with the agency. We do not require any other supports as J.T. is not in care and we are not foster parents. The agency is required to continue financials supports until it is resolved, and that is all. We just want to be left alone. I do appreciate you reaching out.

[71] M.L. also refused the mandated 90 day agency visits.

[72] Although not new evidence, Ms. Marie provided further evidence about J.T.’s father’s expressed wishes. She deposed that she was present at a case conference meeting which included the foster parents, their lawyer, J.T.’s natural parents, representatives from Berens River First Nation, J.T.’s great aunt and others. Her notes of that meeting are not precise with respect to the father’s intentions. She stated that J.T.’s father told her repeatedly that “he will not sign any documents prepared by Dilico, including, temporary care agreements, customary care agreements, court documents, service plans or any other document.”

Positions of the Parties

Dilico

[73] Dilico asks the order of the motion judge be set aside, that M.L. and D.L.’s application for custody of J.T. under the CLRA be struck and that M.L. and D.L. be prohibited from being parties in a case involving the custody or access to J.T..

[74] Dilico raises three grounds of appeal:

(a) the motion judge erred in law in failing to give sufficient weight to the importance of preserving J.T.’s cultural identity and connection to her Indigenous community with reference to ss. 9 and 10 of Bill C-92[^18] and s 74(3) of the CYFSA;

(b) the motion judge incorrectly applied or failed to apply s. 80 and s. 101 of the CYFSA in finding that no deference was owed to decisions of Dilico and the First Nation as expressed in the customary care agreement and fundamentally misconstrued the place of customary care agreements in the CYFSA; and

(c) the motion judge erred in law finding that M.L. and D.L. were not “foster parents” under the CYFSA.

D.C.

[75] D.C. did not file a factum but allied herself with Dilico in argument. Her wish is that J.T. be placed with her aunt in Berens River.

The Interveners

Association of Native Child and Family Services Agencies of Ontario

[76] The Association argues that the fundamental error by the motion judge was the “binary construction” of customary care agreements in distinguishing two types: “in court” and “out-of-court”. The Association described the issues on this appeal as:

a. whether the motion judge erred in failing to identify that customary care agreements are directly connected to the CYFSA;

b. whether the motion judge erred in failing to identify that customary care reflects the First Nation’s inherent jurisdiction; and

c. whether there should be a re-examination of customary care on an evidentiary record.

[77] The Association takes no position on the placement of J.T. and submits that the appeal should be allowed and this matter remitted to the Ontario Court of Justice for a “full hearing on the issue of customary care and its meaning within the context of this case.” Alternatively, the Association asks that the appeal be allowed.

Nishnawbe Aski Nation

[78] NAN argues that permitting the motions judge’s decision to stand “risks effective erasure of First Nation’s inherent rights over the care and protection of their children.” NAN defines the issues as;

a. whether a customary care agreement is an expression of inherent jurisdiction by First Nations over the care of children;

b. whether such inherent jurisdiction is recognized in statute; and

c. whether such inherent jurisdiction is owed deference.

M.L. and D.L.

[79] M.L. and D.L. ask that the appeal be dismissed arguing that the motion judge was correct in all her conclusions. With respect to any conclusion or inference with respect to the wishes of J.T.’s father, they argue that the evidence is either hearsay or at best inconclusive.

[80] While acknowledging the importance of culture and community, M.L. and D.L., following Bill C-92, and in particular s. 10(2), argue that the motion judge was correct as “primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being.”

The Law

The Statutes

The CYFSA

[81] The Preamble to the CYFSA includes the following:

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

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.

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. [Emphasis added.]

[82] Section 1(1) describes that the “paramount purpose” of the Act “is to promote the best interests, protection and well-being of children” but other purposes are recognized, including:

Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. [Emphasis added.]

[83] Best interests of the child, under S. 74(3) include:

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c)

[84] Customary care is made a priority for children’s aid societies:

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

(a) is in need of protection;

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

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

[85] When a court finds that a child is in need of protection, community, extended family or another First Nation family placements are to be considered under s. 101:

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

First Nations, Inuk or Métis child

(5) Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible,

(a) in the case of a First Nations child, another First Nations family;

(b) in the case of an Inuk child, another Inuit family; or

(c) in the case of a Métis child, another Métis family.

[86] The Act provides that foster parents are not eligible for custody under the CLRA:

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2017, c. 14, Sched. 1, s. 102 (1).

[87] An Act respecting First Nations, Inuit and Métis children, youth and families[^19] came in to force on January 1, 2020 while the motion decision was under reserve. The motion judge sought and received submissions on this Act. The preamble of this Act includes these recognitions:

Whereas Parliament recognizes the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services;

Whereas Parliament affirms the right to self-determination of Indigenous peoples, including the inherent right of self-government, which includes jurisdiction in relation to child and family services;

[88] In section 8 the Act affirms the inherent right of self-government, which includes jurisdiction in relation to child and family services.

[89] The core of the Act is “best interests of the child” and I set out the relevant sections in full:

9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

Principle — cultural continuity

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

Best interests of 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.[Emphasis added.]

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.

The Agreements

The Alternative Care Service Agreement

[90] The Alternative Care Service Agreements signed annually by M.L. and D.L. to the date of the motion includes the following statement:

Services provided by Alternative Caregivers fall under the Foster Care Licensing requirements set forth by the Ministry of Community and Social Services/Children’s Services.

[91] The agreement sets out the roles, responsibilities and obligations of the alternate caregivers and Dilico. Included in the responsibilities of Dilico was the requirement “to involve the alternate caregivers in the support of the child, when the child in care is returning home.”

[92] With respect to financial arrangements, the agreement provides that “Dilico will pay for services provided by Alternative Caregivers at a level and in a manner consistent with Ministry requirements.”

The Customary Care Agreement

[93] The Mikinak Agreement for Customary Care – Short Term states that it is for “short-term customary care” and that the “initial agreement for Customary Care – Short Term will have a maximum time limit of 12 months.”

[94] The term was set at six months with the last agreement being entered into on June 29, 2019 with an end date of December 29, 2019. The agreement provides that Dilico is the legal guardian of the child for the duration of the agreement. Case conferences are scheduled. The agreement provides that it is to be reviewed prior to the identified end date in order to plan for the return of the child to the care of the parents/caregivers.

[95] A renewal agreement for Customary Care – Short Term is to be entered into prior to the expiry of the initial agreement and is to have a maximum time limit of 12 months. An agreement for Customary Care – Long Term is to be entered into “when the path indicates that the child will not return to the care of the parents/caregivers and … it has been determined that the permanency of Customary Care – Long Term is required to ensure the well-being and safety of the child.”

Case Law

[96] Both Dilico and M.L. and D.L. rely upon J.E.O. v. M.D.[^20] a recent decision of Kurke J. who upheld a motion judge’s decision to stay a foster parent’s/customary care provider’s application for custody under the CLRA because a customary care agreement was in place. As Kurke J. noted:

Philosophically, there exists a tension between customary care and individual custody, as made evident by the facts of this case. How is a court to resolve this tension? Where do the best interests of the child lie in such circumstances?[^21]

[97] The facts in J.E.O. are similar to, yet different from, the present case. The mother in the J.E.O. case had issues similar to J.T.’s mother with a number of children in care. The customary care provider was married to the child’s paternal great uncle and the child’s First Nation had passed a Band Council Resolution that the child would be in the care of J.E.O.. All parties, including both parents, had signed the customary care agreement. All parties acknowledged that the terms and purposes of the agreement had been explained to them and that they had a reasonable opportunity to obtain legal advice before signing. The agreement provided that J.E.O., who was a member of the same first nation, was a “customary care provider.”

[98] Kurke J. took a purposive approach to statutory interpretation acknowledging the primacy of child welfare legislation. For him, the question was: “did the legislature intend that CCAs be considered placements that further the purposes of child welfare legislation?”[^22]

[99] In reviewing the CYFSA, Kurke J. noted that the legislature has “provided clear guidance that a society is to “make all reasonable efforts” to put in place a plan of customary care in priority to other options under the Act, where the First Nations, Inuit or Métis children are involved.”[^23]

[100] In reaching his conclusion, Kurke J. observed:

[47] 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.

[101] He concluded that;

Nothing would more fundamentally undercut the provisions of the CYFSA that relate to the protection of Indigenous children, or the principles enunciated in the legislature in that regard, than the ability of an individual to bring a custody application under the CLRA that could result in a court order that would collapse a CCA.”[^24]

[102] However, he ended with the following caveat referencing the decision under review:

[58] However, in other circumstances, where issues arise over such things as: the voluntariness of participation by parties to a CCA; the improper exclusion of necessary parties; review procedures; the right to terminate the CCA; the desirability of a longer-term placement; or whether the CCA is genuinely intended to foster the intention of the legislature or has been put in place for some collateral and impermissible purpose; or other such issues, a court might well not exercise its discretion to stay custody proceedings that have been brought under the CLRA: see, e.g., M.L. v. B.T. and Dilico Anishinabek Family Care, [2020] O.J. No. 989 (C.J.).

[103] Dilico also relies upon the unreported decision of J.O. v. M.D.[^25] a decision of Humphrey J. of the Ontario Court of Justice. Dilico advises that this decision is under appeal also. In that case, J.O. brought an application under the CLRA seeking custody of the child. The Indigenous child and family service organization brought a motion to stay the custody application due to the existence of a Customer Care Agreement involving the child. In concluding that the custody application should be stayed Humphrey J. noted:

10. It is noteworthy that the duty of the society to make reasonable efforts to pursue the plan of customary care of a First Nation’s child makes no mention of the commencement of the proceeding as a prerequisite for so doing. This provision is antecedent to the sections of the act that deal with the commencement of a child protection proceeding. It would therefore seem that a plain reading of section 80 would mandate Children’s Aid Societies, bands and other interested parties to resolve child protection concerns by agreement wherever possible thus obviating the need to commence proceedings. Thus, any such agreement is a complete code for the resolution of child protection in appropriate circumstances and should be given deference. [Emphasis added.]

[104] Justice Humphrey noted that there was nothing in the material before him to suggest that the customary care agreement was not entered into freely and voluntarily.

[105] M.L. and D.L. rely upon another decision of the motion judge released after her decision in this case.

[106] In D.A. v. G.H.[^26] the child had been placed by Dilico with D.A.. About three years later, D.A. brought an application for custody/access in response to an allegation of inadequate supervision by D.A.. Previously D.A. had brought her application under the CYFSA and in defending the CYFSA application Dilico had argued that the child was not under the CYFSA but in customary care. In fact, neither the mother nor the First Nation had signed a customary care agreement for the first several years of the placement. The mother did not sign anything for the first five years and there was some question as to whether she signed it at all or while under duress. The First Nation did not, through Chief and Council, declare that Dilico had guardianship and did not sign the declaration.

[107] The motion judge referenced Justice Kurke’s decision in J.E.O. and quoted paragraph 47 of that decision that speaks to the spirit of the CYFSA and Indigenous children as I did above but went on to describe the analysis that CLRA applications for custody would “undercut” the provisions of the CYSFA as “problematic.”[^27]

[108] However, since she had concluded that Dilico was not operating under the customary care agreement, she dismissed Dilico’s application to strike D.A.’s application for custody/access under the CLRA.

Analysis

The Standard of Review

[109] The standard of review is as set out in Housen v. Nikolaisen:[^28]

a. for questions of law the standard of review is correctness;

b. for questions of fact, palpable and overriding error; and

c. for questions of mixed law and fact, the standard varies. Where a legal principle can be extracted from the question of mixed law and fact, the standard for that question is correctness. Where the issue is the application of correct legal principles to the facts, the standard is palpable and overriding error.

1. Does this customary care agreement bring the matter of J.T.’s custody under the CYFSA?

[110] In concluding that “Out–of–Court Customary Care” are not creations of the CYSFA and not within the jurisdiction of the Act, the motion judge erred in law.

[111] As argued by Dilico and the Association and as confirmed by Kurke J in J.E.O. and Humphrey J. in J.O., customary care agreements are important and preferred components of the CYFSA. I conclude, as did Kurke J. that “community-based child protection must be given priority to court-ordered options.[^29]”. That conclusion is consistent with the philosophy of the CYFSA and the federal statute that recognizes the jurisdiction of First Nations in relation to child and family services that First Nations care for their own children, whenever possible. As NAN argues, permitting the motion judge’s decision to stand “risks effective erasure of First Nation’s inherent rights over the care and protection of their children.”

[112] In both J.E.O. and J.O., unlike this case, both parents had signed the agreement. The motion judge correctly identified the “powerlessness” of parents in these situations. The evidence as to the father’s wishes is hearsay and inconclusive. The mother’s wishes are clearly-stated and her affidavit allays any concerns with respect to the validity of her consent. While

J.T.’s father eventually signed the initial service agreement, he did not sign any of the Customary Care Agreements. However, the evidence is that the father had been involved in meetings with Dilico and, subsequently with Dilico and the Beren’s River relatives. I note the frequency of visits with J.T.’s sister. I also note that he appears to have been served with the motion and appeal materials but did not participate. I note the absence of any reference to his agreement or lack of agreement in the mother’s affidavit. Given the circumstances of this case, while I agree that clear consent of both parents is usually required, I conclude that the absence of the consent of J.T.’s father does not, in these circumstances, invalidate this customary care agreement.

2. Are the Applicants “foster” parents prohibited from bringing this CLRA action under the Rules, specifically Rule 7(4)?

[113] In concluding that the applicants were not “foster” parents, I conclude that the motion judge made a palpable and overriding error.

[114] M.L. and D.L. signed alternative care agreements which provided as follows:

Services provided by Alternative Caregivers fall under the Foster Care Licensing requirements set forth by the Ministry of Community and Social Services/Children’s Services.

With respect to financial arrangements, the agreement provides that “Dilico will pay for services provided by Alternative Caregivers at a level and in a manner consistent with Ministry requirements.”

[115] There was no evidence before the motion judge to conclude that the funding model was different under customary care to allow a distinction to be made with foster parents.

[116] The analysis that M.L. and D.L. were not foster parents because they were members of J.T.’s community is also flawed because there is no evidence to support the finding that M.L. and D.L. were “Indigenous and have an ethnic and cultural tie” to J.T.. There is no evidence with respect to M.L.’s identification and the bald statement that D.L. is a registered Metis and a non-status member of Couchiching Frist Nation cannot support, without further evidence, that the applicants have “an ethnic and cultural tie” to J.T.. The conclusion that M.L. and D.L. were not foster parents because they were not providing residential care as members of J.T.’s community is not supported. By agreeing to be foster parents, M.L. and D.L. cannot become members of J.T.’s community. That result is contrary to the spirit of the CYFSA and the federal Act which seeks to avoid the damaging consequences of, for example, the “60s scoop.”

[117] The motion judge concluded that, in the alternative, she would exercise her discretion under Rule 7(4) to name M.L. and D.L. as parties in the custody application. She reached that conclusion by referencing s. 62(3) of the CLRA which provides that a person who had “actual care and upbringing of the child immediately before the application” are parties to a custody application. That conclusion ignores their role as foster parents.

[118] Bode J. had these comments[^30] about the ability of foster parents to apply for custody in the preliminary motion:

[24] Foster parenting involves a particular combination of contractual arrangements, and parental commitments to provide for a child’s physical, psychological and emotional needs. Foster parents have to provide a high level of care for the child all the while knowing that, in the very large majority of cases, at some stage in the child’s life the child will move to another family. Foster parents frequently find themselves caught in a difficult dilemma. As they devote their time, energy and love to raising a foster child they almost inevitably develop a very close bond with the child. They do so knowing that in all likelihood that bond won’t be a permanent parent child bond. And they do so knowing that part of their obligation as foster parents is to ready the child and support the child during its transition from their home to a permanent home.

[25] The distinct nature of the foster parent’s relationship with the children they care for has been the subject of both legislation and judicial comment. The legislation has, both under the old CFSA and under the current CYFSA, recognized the significant difference between traditional parenting and foster parenting by restricting the involvement of foster parents in Court child protection proceedings.

[26] The child protection legislation doesn’t completely close the door on foster parents becoming parties in a child protection proceeding but it does significantly restrict the type of cases where that may occur. The policy considerations for limiting the involvement of foster parents in child protection cases is discussed by the Ontario Court of appeal in C.G. and v. the Catholic C.A.S. of Hamilton 1998 CanLII 3391 (ON CA), 1998 40 O.R. (3D) 334 and in other decisions of this court.

[119] As Bode J. noted, the question for me is whether the same policy considerations apply when the placement is the result of a customary care agreement as opposed to a court order. Given the emphasis of the CYFSA and the federal Act that First Nations retain decision-making authority with respect to their children and that, if possible, a child should be placed with extended family or, alternatively, another family of their community, allowing foster parents to veto the will of the First Nation and, in this case, the natural mother, would be contrary to the spirit of the legislation. Accordingly, I conclude that the motion judge erred in the exercise of her discretion to allow the foster parents to proceed with their custody application under the CLRA.

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

[120] The motion judge concluded that the court should not show deference to the decision of Dilico as she had determined that, as this was an out-of-court customary care agreement, it was not a CYFSA matter, that there is no statutory authority to make the placement decision, and that there were factors other than the best interests of J.T. which Dilico applied in making their decision.

[121] As I have concluded that a customary care agreement is pursuant to the CYFSA and that Dilico, therefore, had the authority to make the placement decision, the motion judge erred in not deferring to the decision of Dilico acting under the authority of J.T.’s First Nation. The determination of J.T.’s best interests is for the First Nation.

Conclusion

[122] Dilico’s appeal is allowed and the order of the motion judge dated March 3, 2020 is set aside. M.L. and D.L.’s application for custody of J.T. is struck. M.L. and D.L. are prohibited from being parties in a case involving the custody or access to J.T..

[123] Dilico does not seek costs.

[124] Although successful on the appeal, I make the following comments with respect to Dilico’s handling of J.T.’s placement under the customary care agreement.

[125] I am very sympathetic to the plight of M.L. and D.L.. This decision is in no way a criticism of their ability to parent J.T.. There is nothing before me to suggest that they do not love J.T., that they have failed in any way in parenting J.T. to date, or that they would not be loving, supportive, and conscientious parents.

[126] I am critical of Dilico’s failure to make it clear, and in writing, to M.L. and D.L. that, as foster parents, they were not entitled to seek custody of J.T. and further, in allowing ambiguous information with respect to M.L. and D.L.’s right to seek custody to be provided by Dilico staff.

[127] I recognize that placement decisions are difficult particularly when there is a possibility of reunification with the natural family. It is always easy to criticize the actions of others with the benefit of hindsight. However, in the circumstances, given D.C.’s child protection history with eight children in care in Manitoba and J.T.’s sister in care in Thunder Bay, steps should have been taken earlier than 2019, when J.T. had been in care of M.L. and D.L. for over three years, for placement with extended family. I am sympathetic to M.L. and D.L. decision to apply for custody in 2017 given that no other placement plan appeared to be forthcoming after almost two years.

[128] I thank counsel for all parties for their clear, comprehensive and helpful submissions in this difficult case.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: September 7, 2021

COURT FILE NO.: FS-20-0062-00AP

DATE: 2021-09-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.L. and D.L.

Respondents for this Appeal /Applicants

and

B.T., D.C.

Respondents for this Appeal/Respondent

and

Dilico Anishinabek Family Care

Appellant for this Appeal/Respondent

Nishnawbe Aski Nation

Intervener

and

Association of Native Child and Family Services Agencies of Ontario

Intervener

APPEAL

Newton J.

Released September 7, 2021

[^1]: SO 2017, c 14.

[^2]: M.L. v. B.T. and Dilico Anishinabek Family Care, 2020 ONCJ 123

[^3]: SO 2017, C. 14

[^4]: Unpublished M.L. v. B.T. and Dilico Anishinabek Family Care, FO -17-0158-00, September 12, 2019

[^5]: Elements of valid consent or agreement, etc.

(2) A person’s consent or withdrawal of a consent or participation in or termination of an agreement under this Act is valid if, at the time the consent is given or withdrawn or the agreement is made or terminated, the person,

(a) has capacity;

(b) is reasonably informed as to the nature and consequences of the consent or agreement, and of alternatives to it;

(c) gives or withdraws the consent or executes the agreement or notice of termination voluntarily, without coercion or undue influence; and

(d) has had a reasonable opportunity to obtain independent advice.

[^6]: Unpublished M.L. v. B.T. and Dilico Anishinabek Family Care, FO -17-0158-00, September 12, 2019 at para. 22.

[^7]: 2020 ONCJ 123.

[^8]: 2020 ONCJ 123 at para. 38.

[^9]: 2020 ONCJ 123 at para. 45-46.

[^10]: 2020 ONCJ 123 at para. 78.

[^11]: O Reg 114/99.

[^12]: “residential care” means boarding, lodging and associated supervisory, sheltered or group care provided for a child away from the home of the child’s parent, other than boarding, lodging or associated care for a child who has been placed in the lawful care and custody of a relative or member of the child’s extended family or the child’s community;

[^13]: Member of child’s or young person’s community

(3) For the purposes of this Act, the following persons are members of a child’s or young person’s community:

1. A person who has ethnic, cultural or creedal ties in common with the child or young person or with a parent, sibling or relative of the child or young person.

2. A person who has a beneficial and meaningful relationship with the child or young person or with a parent, sibling or relative of the child or young person.

[^14]: 2020 ONCJ 123 at para. 89 and 90.

[^15]: S.C. 2019, c. 24 s. 1.

[^16]: s. 13

[^17]: 2020 ONCJ 123 at para. 112.

[^18]: An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24

[^19]: S.C. 2019, c. 24.

[^20]: 2020 ONSC 6106

[^21]: 2020 ONSC 6106 at para. 3.

[^22]: 2020 ONSC 6106 at para. 37.

[^23]: 2020 ONSC 6106 at para. 42.

[^24]: 2020 ONSC 6106 at para. 49.

[^25]: J.O. v. M.D. et al. (16 May 2019), Sudbury D27-18 (OCJ) per Humphrey J.

[^26]: 2021 ONCJ 95.

[^27]: 2021 ONCJ 95 at para. 78.

[^28]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8, 10, 25 and 36

[^29]: 2020 ONSC 6106 at para. 47.

[^30]: Unpublished M.L. v. B.T. and Dilico Anishinabek Family Care, FO -17-0158-00, September 12, 2019.