COURT FILE NO.: 1508/19
DATE: 2021-10-18
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 Family 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.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Catholic Children’s Aid Society of Hamilton
Applicant
– and –
M.P., J.L., J.B., and F.B.
Respondents
S. Edwards, Counsel, for the Applicant
A. Macdonald, Agent, for M.P.
Self-Represented Respondents, J.B. and F.B.
J.L., not in attendance
R. Charko, Counsel, for the Office of the Children’s Lawyer
HEARD: September 21, 2021
JUDGMENT
The honourable madam justice L. Bale
OVERVIEW
[1] A focused hearing on the issue of the First Nations, Inuk or Métis findings of the three subject children E.G.L. (age 15), E.M.L. (age 13) and S.A.M. (age 7) was heard on September 21, 2021, in the context of a motion for summary judgment brought by the Society.
[2] The Society is ultimately seeking a Final Order which finds the children in need of protection, and places the children in the custody of relatives, pursuant to s. 102 of the Child, Youth and Family Services Act, such that:
a. The children E.G.L. and E.M.L. be placed in the care of their maternal great-aunt, with access to the Respondent mother and Respondent father in the discretion of the maternal great-aunt.
b. The child S.A.M. be placed in the care of her paternal grandmother and step-grandfather, with access to the mother in the discretion of the grandparents.
c. The children shall have regular and frequent access to each other as arranged by their caregivers.
[3] The parties cannot agree on the preliminary issue of First Nations, Inuk or Métis identification findings.
BACKGROUND
[4] The parents of the children E.G.L. and E.M.L. are M.P. (the Respondent mother), and J.L. The Respondent mother has filed an Answer and Plan of Care and has been participating in this litigation. J.L. has not filed an Answer and did not attend this focused hearing.
[5] The parents of the child S.A.M. are M.P. and M.K. M.K. is deceased.
[6] J.B. and F.B. are the paternal grandmother and step-grandfather (collectively referred to as paternal grandparents) of S.A.M. The paternal grandparents filed an Answer and Plan of Care and have been actively participating in this litigation.
[7] The children, E.G.L. and E.M.L., resided with their paternal grandmother (not J.B.) from May 2019 to February 2020. In February 2020, E.G.L. and E.M.L. were moved to the kinship home of the maternal great-aunt, where they have resided to date.
[8] The child, S.A.M., has been residing in the kinship home of her paternal grandparents since May 2019.
POSITION OF THE PARTIES
[9] Initially, the Society sought an Order by way of summary judgment that the children were not First Nations, Inuk or Métis children. The court declined to make that finding by way of summary judgment, pursuant to this court’s endorsement of August 11, 2021. A focused hearing on the issue of First Nations, Inuk or Métis findings was ordered.
[10] For purposes of the focused hearing, the Society filed an updated Affidavit which further explored the children’s potential Indigeneity. At that time, the Society revised its position to request a finding that the children are First Nations children and there is no band or community identified at this time.
[11] The Respondent mother asserts that all three children are First Nations children. She agrees that they have no identified band or community at this this time.
[12] The paternal grandparents take no position with respect to identification findings regarding the children E.G.L. and E.M.L., but object to a First Nations, Inuk or Métis finding in relation to the child S.A.M.
[13] The Office of the Children’s Lawyer consents to a finding that E.G.L. and E.M.L. are First Nations children, with no identified band or community, and takes no position with respect to First Nations, Inuk or Métis findings in relation to the child S.A.M.
THE FACTS
[14] This matter first came before the court on August 9, 2021 for purposes of a summary judgment motion. The information with respect to First Nations, Inuk or Métis identification at that time was as follows:
a. The Society’s Evidence
[15] In or around October 2019, this matter was transferred to the Hamilton Catholic Children’s Aid Society from the Family and Children’s Services of Frontenac, Lennox, and Addington. The children had been residing with kin in the Hamilton area since May 2019. During her initial involvement with the Society, the mother denied any First Nations, Inuk or Métis heritage.
[16] She filed an Answer and Plan of Care in November 2019 in which she did not identify herself or any of the children as First Nations, Inuk or Métis persons.
[17] It appears that the Respondent mother began accessing services through the Hamilton Regional Indian Centre in 2020 (“HRIC”). It is unclear how the mother became connected with the HRIC. The Society was first notified that the Respondent mother may have an Indigenous connection in June 2020 when a representative of the HRIC advised a Society worker that she was working with the mother. The HRIC could only advise that the mother might have an Indigenous grandmother, but she had no other information about her background.
[18] In February 2021, the file was transferred to an Indigenous Team worker at the Society and shortly thereafter the Respondent mother advised the Society that her paternal grandmother was Indigenous, and that her family was from the Sudbury area. This was new and different information than had previously been provided.
[19] In February 2021, the Respondent mother was arrested and charged with first degree murder. She has remained in custody to date.
[20] In April 2021, the Respondent mother filed an Answer and Plan of Care to the Society’s Amended Application. In that Plan of Care, she identified the children as First Nations, Inuk or Métis children.
[21] In or around June 2021, the Respondent mother advised another Society worker that she and her children were “half” Indigenous on her father’s side. She did not have further details, but advised that she wanted to continue working with the HRIC and advised that she was looking into further information. The Society noted that it was difficult to assess the mother’s information as it was often vague and contradictory.
[22] This was the extent of the Society’s information as to the First Nations, Inuk or Métis identity of the mother and the children when this matter came before the court on the summary judgment motion in September 2021.
b. The Respondent Mother’s Information
[23] The Respondent mother filed no Affidavit materials for the summary judgment motion. In submissions she advised the court that:
a. She self-identifies as Indigenous;
b. She believes her paternal great-grandmother held Indigenous status. She believes her paternal great-grandmother may have been an Ojibway person from the Sudbury area, potentially of the Eagle clan;
c. The mother is actively engaged with the HRIC and works with an Indigenous court worker in her criminal matter;
d. She is working towards a plan of release from custody that involves placement at Thunder Woman Healing Lodge Society and trauma-based counselling;
e. The father of E.G.L. and E.M.L. is Indigenous through his mother’s side.
c. Office of the Children’s Lawyer
[24] The OCL advised that he had not held any discussions with the children as to Indigeneity to date.
d. The Information of the Paternal Grandparents of S.A.M.
[25] The paternal grandmother advised the court that they have had many discussions about ancestry with the Respondent mother over the years, and until recently there had never been any assertion that the mother or the child S.A.M. had any Indigenous connection. The paternal grandfather advised the court that he would be honoured to learn that his granddaughter was of Indigenous descent, however, he did not believe this to be the case. They have had the privilege of attending powwows at the Six Nations Reservation numerous times, but the Respondent mother has never accepted their invitation to join. The paternal grandfather acknowledges having previously heard the suggestion that the children E.G.L. and E.M.L. had Indigenous lineage through their father, but this identification had never been extended to the Respondent mother or the child S.A.M. The paternal grandparents expressed willingness to complete any necessary steps that might assist in determining this issue.
e. The Information of the Maternal Great-Aunt
[26] The maternal great-aunt is not a party to this proceeding, but is the kin caregiver to the children E.M.L. and E.G.L. The maternal great-aunt advised the court that E.G.L. and E.M.L. had a long-standing awareness of their Indigenous ancestry through their father’s family. The maternal great-aunt advised that both children are proud of this information and that the child E.G.L. has voluntarily participated in the Native Youth Advancement with Education Hamilton (“NYA:WEH”) Aboriginal program at her school.
[27] On the basis of this information, the court was not prepared to deal with the issue of First Nations, Inuk or Métis findings on summary judgment, and a focused hearing on this issue was scheduled. All parties were invited to call oral evidence at the focused hearing. The court requested further information from the Society and the OCL with respect to the children’s views relating to Indigenous self-identification. The following additional information was provided at the focused hearing:
f. The Society’s Supplementary Evidence
[28] The Society filed an updating Affidavit. No party sought to cross-examine the Affiant Society worker. The additional information ascertained on the identification issue as presented by the Society at the focused hearing is as follows:
a. A meeting with E.G.L. and E.M.L., revealed that:
a. Both children indicated that they identified as Indigenous;
b. They had not participated in any cultural activities related to their background;
c. E.G.L. had been enrolled in the NYA:WEH program at her school – although participation difficulties arose due to COVID-19. She indicated an intention to re-enroll this year;
b. Information provided to a Society worker from J.L., father of E.G.L. and E.M.L., includes:
a. J.L. identifies as “Aboriginal”. He has been aware of his Indigeneity all of his life;
b. He is of Ojibway (First Nations) descent on his father’s side. His mother was Irish;
c. His paternal grandmother may have been part of Six Nations;
d. He does not have status;
e. He engaged in Indigenous programing during a previous period of incarceration;
f. As a result of his lineage, he believes E.G.L. and E.M.L. to be Indigenous;
g. The Respondent mother, to his knowledge, is Slovenian. He does not believe the Respondent mother to be “Aboriginal at all”;
c. During a meeting with the Respondent mother, the mother reiterated that:
a. She self-identifies as Indigenous;
b. She believes she is a descendent of the Eagle clan in the Sudbury area (through her paternal great-grandmother), but had no additional information;
c. She hoped to secure a release from custody into the community through an Indigenous Lodge in Toronto and to apply for Indigenous housing;
d. The mother would not sign a consent permitting the Society to speak with her contact at the HRIC – she would ‘consider’ this request.
g. The Respondent Mother
[29] The Respondent mother declined to call any evidence at the focused hearing. She did not elaborate upon the information provided at the original summary judgment hearing date.
h. Supplementary Information from the Office of the Children’s Lawyer
[30] The Office of the Children’s Lawyer advised that, as a result of interviews with E.G.L. and E.M.L., it became clear that: (a) E.G.L. very clearly identifies as Indigenous, (b) E.M.L. also identifies as Indigenous, but is not engaged in services/organizations as her sister is. Inquiries were not made of S.A.M. as a result of her age and level of maturity.
i. Supplementary Evidence of the Paternal Grandfather of S.A.M.
[31] The paternal grandfather was the only party who chose to give viva voce evidence under oath at the focused hearing. The paternal grandfather advised the court that, in his time with the Respondent mother, he got to know her quite well. They had many discussions about religion and the world, most recently in or around the fall of 2020. At times, he was taken aback by racist commentary made by the Respondent mother, including negative sentiments expressed towards Indigenous people. The mother proudly represented to him that she was only of European descent.
[32] As a result of the paternal grandparents’ historic discussions with the Respondent mother and her family, it is the paternal grandfather’s understanding that her family is of strong Slovenian descent. This information was elaborated upon to him through the maternal great-aunt, who was discussing information received through a family ancestry website. There was no indication of their family having any Indigenous ancestry. He acknowledged previous discussions which suggested that the children E.G.L. and E.M.L. had Indigenous ancestry through their father however advises that there were never any such discussion in relation to the child S.A.M. He does not believe S.A.M., at age 7, has ever been exposed to the suggestion of such ancestry or has ever contemplated this topic.
[33] The paternal grandfather does not believe that the child S.A.M. has any Indigenous ancestry. He emphasized that he would be proud of that ancestry if that were the case – however, he values truth and is concerned that the court is being misled. He believes that the mother’s self-identification is opportunistic – she is making false claims in order to take advantage of supports, programs, and considerations within the justice system that were not intended for her benefit. He is concerned that these untruths may lead the court to make an inappropriate identification finding in relation to the child S.A.M. that, although not harmful to her, would not be meritorious.
j. Maternal Great-Aunt
[34] The maternal great-aunt was present for the focused hearing and was offered the opportunity to provide evidence to the court. She declined.
LAW AND ANALYSIS
[35] At the outset, it is important for the court to pause and reflect upon the rationale behind, and the significance of First Nations, Inuk or Métis findings in child protection proceedings. There is little dispute that child protection proceedings have historically had and, in present-day, continue to have a disproportionately negative impact upon Indigenous families. The lasting legacy of racist laws, policies, and initiatives, including but not limited to the residential school and the ‘Sixties-Scoop’ experiences, have evolved into a child welfare system where Indigenous families are grossly over-represented in child protection proceedings and Indigenous children are disproportionately placed in foster care: see the final report of the Truth and Reconciliation Commission of Canada: Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015) at pages 138-139. Sadly, the complex consequences of this intergenerational trauma: prevalence of poverty, mental health issues, substance abuse, domestic violence and involvement in the criminal justice system - to name but a few - are regular features of a typical daily child protection docket in Ontario family courts.
[36] The preamble of the Child, Youth and Family Services Act (“CYFSA”) specifically acknowledges that:
a. 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.
b. 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.
c. Services to children and families should, wherever possible, help maintain connections to their communities.
d. The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.
e. 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.
f. Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.
g. 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.
h. 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.
i. 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.
j. 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.
[37] Subsection 90 (2) of the CYFSA sets out that the court must make specific statutory findings before determining whether a child is in need of protection. It reads as follows:
Child's name, age, etc.
(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,
(a) the child's name and age;
(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child's bands and First Nations, Inuit or Métis communities; and
(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.
[38] The definition of a First Nations, Inuk or Métis child is contained in s. 1 of Ontario Regulation 155/18, General Matters Under the Authority of the Lieutenant Governor in Council under Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. This definition reads as follows:
Interpretation, First Nations, Inuk or Métis child
- A child is a First Nations, Inuk or Métis child for the purposes of the Act if,
(a) the child identifies themself as a First Nations, Inuk or Métis child or a parent of the child identifies the child as a First Nations, Inuk or Métis child;
(b) the child is a member of or identifies with, as determined under section 21 of Ontario Regulation 156/18 (General Matters Under the Authority of the Minister) made under the Act, one or more bands or First Nations, Inuit or Métis communities; or
(c) it cannot be determined under clause (a) or (b) whether the child is a First Nations, Inuk or Métis child but there is information that demonstrates that,
(i) a relative or sibling of the child identifies as a First Nations, Inuk or Métis person, or
(ii) there is a connection between the child and a band or a First Nations, Inuit or Métis community.
[39] Sections 21 and 22 of Ontario Regulation 156/18, General Matters Under the Authority of the Minister are relevant to s. 1(b):
Determination of bands, communities with which child identifies
The bands or First Nations, Inuit or Métis communities with which a First Nations, Inuk or Métis child identifies, if any, are determined in accordance with the following rules:
If the views of the child can be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifies are any bands or First Nations, Inuit or Métis communities with which the child indicates that they identify.
If the views of the child cannot be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifies are any bands or First Nations, Inuit or Métis communities that a parent of the child indicates are bands or communities with which the child identifies.
Requirements to be listed as a First Nations, Inuit or Métis community
The Minister shall not list a community as a First Nations, Inuit or Métis community for the purposes of the Act unless the following requirements are met:
The community must be a community of either First Nations, Inuit or Métis peoples with shared culture, heritage and traditions.
The community must have established a representative governing body.
The community’s representative governing body must have requested that the Minister list the community in the regulation.
[40] The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at para. 80. These special rights and considerations include, but are not limited to, an expanded definition of family, consideration of alternative forms of dispute resolution, notice and party status to identified bands and communities, additional best interest considerations and residential placement options including customary care. All of these special considerations are targeted at acknowledging and protecting community-held rights for Indigenous children involved in the child welfare system.
[41] Canadian courts have struggled for many years with the complexities of assigning labels to Indigenous persons and their communities, and in defining the qualifications and criteria for membership in such groups. In R. v. Powley, the Supreme Court of Canada was asked to consider the ‘membership test’ for Métis persons asserting rights under s. 35 of the Constitution Act. In that case, the court emphasized three broad factors of identity for purposes of claiming those rights: self identification, ancestral connection, and community acceptance: 2003 SCC 43 at para. 30. More recently, in the context of determining whether particular individuals or communities were non-status Indians or Métis and therefore “Indians” under the Constitution Act, in Daniels v. Canada (Indian Affairs and Northern Development), the Supreme Court of Canada has opined that “[c]ultural and ethnic labels do not lend themselves to neat boundaries”: 2016 SCC 12 at para. 17. Instead, determining the Indigenous standing of individuals or communities must be a “fact-driven question to be decided on a case-by-case basis”: at para. 47.
[42] The statutory findings requirement of s. 90(2)(b) of the CYFSA requires the court to assign a ‘label’ of First Nations, Inuk or Métis identity to children in child protection proceedings, if applicable.
[43] In Children’s Aid Society of Algoma v. C.A., the court endorsed a broad view in interpreting a child’s connectivity to bands or communities, in keeping with the spirit of inclusiveness embodied in the CYFSA when dealing with Indigenous peoples: 2018 ONCJ 592 at para. 44.
[44] However, in Bruce Grey Child and Family Services v. A.B.-C., the court opined that, while the definition of a child as a First Nations, Inuk or Métis child for the purposes of the Act should not be interpreted narrowly, a suggestion or casual assertion of a possible connection to an unidentified community is not enough: 2018 ONCJ 516 at para. 41.
[45] It is that delicate balance which is at issue in this case.
[46] At the outset, the issues for determination in this case can be narrowed in scope, by agreement of all parties that there is no known connection between any of the children and any band or First Nations, Inuk or Métis community and none of the three children are members of or identify with the Inuit Tapiriit Kanatami community, which is the sole band or community that has been established on the list of First Nations, Inuk or Métis communities as per s. 1(b) of Regulation 155/18.
[47] The analysis of whether these children are First Nations, Inuk or Métis children is therefore focused upon s. 1(a) of the Regulation and the court must consider: (a) whether the children themselves self-identify as First Nations, Inuk or Métis persons, and (b) whether a parent identifies the children as a First Nations, Inuk or Métis person. If, after consideration of these questions, the court finds that the issue cannot be determined, the court must then consider whether a relative or sibling of the children identifies as a First Nations, Inuk or Métis person under s. 1(c)(i).
[48] The CYFSA came into force on April 30, 2018. At this time the concept of self-identification was formally introduced into child welfare legislation in Ontario by enactment of Regulation 155/18. Since that time there has been little judicial consideration of the concept of self-identification. However, in Catholic Children’s Aid Society of Toronto v. S.T., 2019 ONCJ 207 the Honourable Mr. Justice Sherr did identify the potential for abuse:
To just say that anyone, no matter how incredulous their claim may be, can put their hand up and have this claim accepted without question would be an open invitation to persons to abuse the administration of justice. It could cause considerable harm to children by delaying decisions affecting them and would be disrespectful to the First Nations, Inuit and Métis persons the Act is intended to include. The underpinning of any self-identification right is that is must be made in good faith: para. 35.
[49] I endorse this view. It would be offensive to Indigenous people to permit non-Indigenous persons to appropriate the considerations and safeguards under the CYFSA that are intended to acknowledge historic injustices and redress present-day disadvantages that they do not share. Surely, something more than a simple self-declaration of identity is needed.
[50] In my view, in considering the reasonableness of an individual’s self-identification under the CYFSA, it is helpful to return to the Supreme Court’s analysis in R. v. Powley, wherein the court reviewed the concepts of self-identification, ancestral connection, and community acceptance: see paras. 30-34. It is obvious that a finding of First Nations, Inuit or Métis identity under the CYFSA requires a much lower threshold test than a person seeking to invoke a right under s. 35 of the Constitution Act, however, by analogy, in the context of child welfare proceedings it may be appropriate to consider the following:
a. The timing of the individual’s self-identification: Belated claims should be viewed with caution. Admittedly, the timing of self identification claims is inherently difficult to assess: self-identity reflects an individual’s own definition or perception of themselves – there is no requirement that an individual must publicly broadcast this understanding to others. However, notwithstanding this complexity, it is not inappropriate to consider evidence of past statements or representations made to others, physical participation or involvement in cultural activities or events, or any other evidence that an individual has historically embraced Indigenous cultures, heritages, or traditions as part of their identity in support of a claim based primarily upon self-identification.
b. Evidence of an ancestral connection: In considering the reasonableness of a person’s claim of Indigenous self-identification, it is appropriate to consider whether there is any ancestral connection to an Indigenous band or community. There is no minimum ‘blood quantum’ threshold, however an individual’s claim of self-identification would certainly be bolstered by reliable evidence of familial connection, however remote.
c. Evidence of community acceptance: Formal band membership is not a requirement of community acceptance. Many Indigenous persons have been displaced from their communities, are unable to identify their bands or communities, and should not be deprived of the opportunity to reconnect with their culture and heritage: Catholic Children’s Aid Society of Toronto v. S.T. at para. 44. However, evidence of inclusion in other Indigenous organizations, events, provision of services, etc. could lend support to an individual’s claim of self-identification under the CYFSA. Likewise, one could also envision scenarios where Indigenous communities and organizations object to or reject an individual’s claim of Indigeneity, and that lack of community acceptance may be considered by the court.
[51] This is certainly not intended to be an exhaustive list of factors that may be considered in assessing the reasonableness of self-identification as Indigenous under the CYFSA: identity is not a static concept. Each case must be decided on its own unique facts.
[52] In assessing the circumstances of each case, the court must be open to a wide range of information which does not necessarily comply with traditional rules of evidence: see R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507 (SCC) at para. 68, Children’s Aid Society of Algoma v. C.A. at para. 18, Catholic Children’s Aid Society of Toronto v. S.T. at para. 36. While at the same time, the rules of evidence cannot be completely abandoned – the claims must still be established on the basis of persuasive information: Mitchell v. M.N.R., 2001 SCC 33 at para. 39.
[53] In my view, this means that, in the context of hearings on First Nations, Inuk or Métis findings, although the threshold level of admissible information or evidence may be low, before a court can make a finding that a child is a First Nations, Inuk or Métis child, the court must be satisfied, on a balance of probabilities, that the child qualifies as such under s. 1 of O. Reg. 155/18.
A. E.G.L. and E.M.L.
[54] I am satisfied that the children E.G.L. and E.M.L. qualify as First Nations children on the strength of their own self-identification under s. 1(a) of O. Reg. 155/18 under the Child, Youth and Family Services Act. On the evidence before me, I find that their Indigenous identity has formed part of their long-standing perception of selves since birth. I accept the uncontroverted evidence that they have an ancestral connection to the First Nation people through their biological father. While there is little information of community acceptance, I believe that E.G.L.’s registration in the NYA:WEH program at her school lends further credibility to her self-identification and also reflects a measure of community acceptance of her identity.
[55] There shall be a finding that E.G.L. and E.M.L. are First Nations children and there is no band or community identified at this time.
B. S.A.M.
[56] The issue of identification findings with respect to the child S.A.M. is far more complex.
[57] There is no evidence before the court that S.A.M. self-identifies as Indigenous. S.A.M. has no Indigenous ancestry through the paternal side of her family, as is the case with her half-siblings.
[58] As a result of S.A.M.’s age, it is the Respondent mother’s standalone identification of S.A.M. as Indigenous that would normally cause the court to make a finding under s. 1(a) of the Regulation. However, the court must consider the position of the Respondent paternal grandparents – that the mother’s declaration of S.A.M.’s Indigeneity is an extension of her own questionable self-identification. As discussed above, the court must therefore assess whether this self-identification is a good faith claim, grounded in persuasive and reliable information, before making such a finding.
[59] The features of the Respondent mother’s information which could lead to a finding that S.A.M. is a First Nations child are that:
a. The mother has identified S.A.M. as a First Nations, Inuk or Métis child;
b. The mother self-identifies as Indigenous;
c. The mother believes that her Indigeneity arises from lineage through her paternal great-grandmother;
d. The mother is working with the Hamilton Regional Indian Centre. This relationship began after these child protection proceedings were commenced, but before she was charged with a serious criminal offence.
e. The mother advises that she has an Indigenous court worker with respect to her criminal proceedings.
[60] The features of the Respondent mother’s information which could cast doubt upon the good-faith nature of her identification are that:
a. It appears that the first time that there was any suggestion by the Respondent mother to any person that S.A.M. is an Indigenous child was in approximately June 2020.
b. With respect to S.A.M.’s purported ancestral connection (i.e. through her maternal great-great grandmother):
i. The mother’s information is inconsistent with previous information shared by the Respondent mother to family members, to Society workers, and in her previous court documents;
ii. The mother’s information is not supported by any other person or any other type of corroborating information (written, oral or otherwise);
iii. The mother’s information is directly challenged by information shared by the Respondent father of E.G.L. and E.M.L., and by the paternal grandparents of S.A.M. – who are not related parties;
iv. The mother does not provide any explanation as to how she became aware of her purported lineage in recent years.
c. The mother has made past statements and representations to others with respect to feelings towards ancestry and culture that counter her present-day claims of self-identity.
d. There is no evidence that the mother was ever involved in any cultural activities or events, groups, etc. which embraced Indigenous cultures, heritages, or traditions as part of her identity, prior to her involvement in the legal (child protection) system.
e. The mother did not provide consent for the Society to speak to her contact at the Hamilton Regional Indian Centre, leaving the other parties to speculate as to why she declined to share details of this important association.
f. The mother offered no explanation for the late disclosure to any person of her own self-identification as Indigenous, or her belief that S.A.M. is Indigenous.
g. The mother did not cross-examine nor provide any evidence in response to the very concerning evidence of S.A.M.’s paternal grandparents.
[61] The court was not given an opportunity to openly assess the credibility of any party at the focused hearing other than the Respondent paternal grandfather, who provided viva voce evidence and was cross-examined under oath. I found the paternal grandfather to be respectful in his evidence towards Indigenous people and their culture, respectful towards the parties and court process, and focused upon the best interests of the child and the pursuit of truth. The paternal grandfather did not attempt to denigrate any other party or stray into irrelevant areas – he simply remained focused on the issue of S.A.M.’s identification. I found the paternal grandfather’s evidence to be straightforward and compelling. He impressed the court as a credible witness and his evidence was not challenged or undermined by any other party.
[62] In considering this issue, I am mindful that historically courts have appeared overly-inclusive in approach to ‘membership’ where rules and restrictions on liberties were being imposed upon Indigenous persons and communities, and likewise have appeared to be under-inclusive in approach when being requested to confirm government services or benefits. However, I do not accept that the interpretation of s. 1(a) of the Regulation should be so liberal as to suggest that the court should err on the side of overinclusion. A finding cannot be made simply because there would be no harm to a child in doing so. Societal harm would arise from a dilution of the special considerations and safeguards intended to apply only to First Nations, Inuit and Métis children and their families: Overinclusion through questionable self-identification would dishonour those who have suffered past trauma under the child welfare system, might desensitize the courts to the sanctity and uniqueness of the First Nations, Inuit and Métis identity and culture, and could potentially serve to reduce availability of services and benefits to those Indigenous children that the special provisions of the CYFSA are intended to protect.
[63] After consideration of all of the information and evidence provided by all parties and participants (including the maternal great-aunt), the court is left with lingering concern regarding the veracity of the mother’s claims of Indigenous identity as it pertains to S.A.M. On the strength of the information before the court, I cannot conclude that the Respondent mother’s standalone representation that S.A.M. is a First Nations child is sufficient to make an identification finding on the basis of s. 1(a) of O. Reg. 115/18. Likewise, after consideration of all of the information before the court, I cannot be satisfied on a balance of probabilities that the child S.A.M. is not a First Nations, Inuk or Métis child for the purposes of the CYFSA under this section.
[64] The court must therefore also consider s. 1(c)(i) of the Regulation. That is, as it cannot be determined under s. 1(a) or 1(b) whether S.A.M. is a First Nations, Inuk or Métis child, the court must ask “is there information that S.A.M. has a relative or sibling who identifies as a First Nations, Inuk or Métis person?”. The wording of the regulation is such that, if the answer is ‘yes’, S.A.M. falls into the definition of First Nations, Inuk or Métis child under the Regulation.
[65] E.G.L. and E.M.L. both self-identify as and have now been legally identified as First Nations children under the CYFSA. They are S.A.M.’s biological half-siblings. While I appreciate the paternal grandparents’ concern that the half-siblings’ shared biology is not though the paternal sides of their lineage, I accept and adopt the conclusion of the court in Children’s Aid Society of Algoma v. C.A. wherein the court opined that although "sibling" is not defined within the CYFSA or under the Regulation, it should apply to situations wherein children have the same parents or one parent in common: that the meaning of the term “sibling” under the Regulation should be construed as including full siblings, half siblings, and siblings by adoption: para. 18. I further agree with the court in Algoma that this more expansive view of connectivity to Indigenous communities is consistent with the spirit of inclusiveness reflected in the CYFSA.
[66] Sibling relationships are often of the most powerful and long-standing connections in a child’s life; this is not simply as a result of their shared biology. The importance of maintaining sibling relationships is clearly acknowledged within the CYFSA in multiple forms (e.g. best interests considerations, rights of access, etc.). Had Legislature intended the court to more closely scrutinize the specific nature of the sibling relationship for purposes of First Nations, Inuk or Métis identification findings, there would have been specific direction to do so. As a result, I am satisfied that S.A.M.’s sibling relationship with E.G.L. and E.M.L. is a sufficient basis upon which to conclude that S.A.M. is a First Nations child under s. 90(2)(b) of the CYFSA.
[67] To be clear, this finding is not a declaration of status for any of the children. Rather, 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” under the CYFSA: Bruce Grey Child and Family Services v. A.B.-C.at para. 32.
ORDER
[68] On the basis of the above, the court makes the following finding under s. 90(2)(b) of the Child, Youth and Family Services Act:
- The children E.G.L., born […], 2005, and E.M.L., born […], 2008, and S.A.M., born […], 2013, are First Nations children for purposes of the CYFSA, and there is no band or community identified at this time.
Bale J.
Released: October 18, 2021
COURT FILE NO.: 1508/19
DATE: 2021-10-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Catholic Children’s Aid Society of Hamilton
Applicant
- and -
M.P., J.L., J.B., and F.B.
Respondents
REASONS FOR JUDGMENT
The Honourable Madam Justice L. Bale
Released: October 18, 2021