WARNING

This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both

Court File and Parties

COURT FILE NO.: FA-20-25-0000 DATE: 20220429

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of Waterloo Region Applicant – and – G.J.F.L. and B.J.L. – and – S.F.L. – and – S.L. – and – K.S. and W.S. Respondents

Counsel: Eric Smith, for the Applicant Leanne Way, for the Respondents G.J.F.L. and B.J.L. Self-Represented Brent Balmer Patrick Brohman

HEARD: March 30, 2022

THE HONOURABLE MADAM JUSTICE PICCOLI

Reasons for Decision

[1] The Applicant, the Children’s Aid Society of Waterloo Region (the “Society”), has brought a summary judgment motion, dated November 19, 2021, seeking an order pursuant to Rule 16(12)(a) of the Family Law Rules, O. Reg. 114/99 that:

a. The Openness Application brought by the Society may proceed under s. 194 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”);

b. In the alternative, that the Openness Application brought by the Society may proceed under s. 197 of the CYFSA.

[2] The court has been directed to and has read the following material:

a. The Openness Application of the Society, issued September 29, 2020;

b. Society’s Notice of Motion, dated November 19, 2021;

c. Affidavit of Danielle Glass, dated April 23, 2020

d. Affidavit of Tecla Jenniskens, dated November 19, 2021;

e. Affidavit of W.S., dated December 9, 2021;

f. Affidavit of S.L., dated January 6, 2021;

g. Reasons for Judgment, dated November 30, 2018;

h. Factum of the Society, dated March 25, 2022;

i. Factum of K.S. and W.S., dated March 24, 2022; and

j. Factum of S.L., dated March 24, 2022.

[3] At my request, the Notices of Intention to Place these children for adoption were provided to the court at the break and I have also read those notices. In addition, I have read the Order of Justice Braid, dated September 22, 2020.

[4] On consent of all parties, the court was also provided with and read an email exchange between Danielle Glass (Reconciliation Lead with the Society) and Alisha Kaba (Acting Manager, Métis Child, Youth and Family Services (“CYFS”) Project), dated March 25, 2022.

[5] At the commencement of the motion, I requested that each party provide their position. All parties agreed that the Openness Application cannot proceed under s. 194 of the CYFSA.

[6] The question remains whether the Openness Application can proceed under s. 197 of the CYFSA.

Background Facts

[7] The children who are subject of this application are G.J.F.L., born [...], 2015, and B.J.L., born [...], 2016 (collectively “the children”).

[8] The parties agree that the children in this proceeding are Métis.

[9] S.F.L. is the biological mother of the children.

[10] J.E. is the biological father of G.J.F.L. S.M. is the biological father of B.J.L. Neither of them is participating in the Openness Application.

[11] S.L.(gm) and D.F. are the children’s maternal grandparents.

[12] S.L. is the former step maternal great-grandmother of the children. She was previously in a relationship with the children’s maternal great grandfather, R.L.

[13] K.S. and W.S. are the adoptive parents of the children.

[14] The children have a stepbrother, D., who resides with his mother, S.F.L.

[15] D.L. is the maternal aunt of the children.

[16] The children have each been in the care of the Society since birth.

[17] On November 1, 2016, the children were moved to the “foster-to-adopt” home of K.S. and W.S.

[18] Rogers J. presided over a 23-day trial which took place between May 8, 2017, and March 7, 2018.

[19] On May 9, 2017, the second day of the trial, Rogers J. made a finding that the children were in need of protection pursuant to subsection 37(2)(b-i) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). On the same date, Her Honour found that the children were not “Indian or native persons” in the language of the former legislation.

[20] On April 30, 2018, the relevant provisions of the CYFSA came into force.

[21] On November 30, 2018, Rogers J. made an order placing G.J.F.L. and B.J.L. in the extended care of the Society, with no right of access by any of the parties.

[22] On December 27, 2018, S.L. appealed the decision of November 30, 2018.

[23] On January 27, 2020, S.L. agreed to abandon her appeal on the basis that the Society would institute proceedings for an Openness Application.

[24] On January 27, 2020, the Society informed the court that they would be filing a motion regarding the children’s First Nations, Inuk or Métis (“FNIM”) status in the underlying proceeding that resulted in the extended society care order. The Society also informed the court they would be filing an Openness Application.

[25] On September 22, 2020, Braid J. granted an order amending the statutory findings to reflect that G.J.F.L. and B.J.L. are FNIM children. No specific band or community was identified in this order.

[26] The Society’s Openness Application was issued on September 29, 2020. The Openness Application was brought under s. 194 and s. 197 of the CYFSA. The Society did not name an Indigenous Band nor the Métis Nation of Ontario as Respondents on the Application.

[27] The Mother, S.F.L., is from the Mattawa Métis line. She and the children are eligible for Métis citizenship.

[28] In late 2019 and early 2020, efforts were made to determine if there was an ancestral link to the Wolinak First Nation Band. These efforts were because of a phone call with P.F. (the children’s maternal grandfather’s brother) in April 2019 whereby he indicated that he had a membership with the Métis Nation of Ontario through his mother and that through his paternal side of the family he was related to an Abenaki Band, namely the Wolinak First Nation Band. He was in the process of determining if he would be eligible for status. Following phone calls with Katharina from the Wolinak First Nation, it was decided that P.F. would contact Katharina directly. The research was inconclusive as to whether P.F. was from the Wolinak First Nation Band. His grandmother (the children’s great-great-grandmother) may have connection to the Odanak First Nation, but this was not explored.

[29] On November 20, 2020, the Society served notice by email to the Métis Nation of Ontario of its intention to place the children for adoption. On the same date, the children were served through their legal counsel. Neither the Wolinak First Nation Band nor the Abenaki First Nation band were given notice. The Society states it did not know where to give notice.

[30] On December 21, 2020, the children were placed for adoption with K.S. and W.S. The children were formally adopted by K.S. and W.S. on October 28, 2021.

[31] The first appearance on the Society’s Openness Application was on December 1, 2020. The matter was adjourned to January 19, 2021. A settlement conference occurred on February 25, 2021. The matter was then adjourned to May 18, 2021. At this appearance, the matter was adjourned to August 12, 2021, for a trial management conference and to allow a healing circle to take place in the interim.

[32] At the August 12, 2021 appearance, it was agreed that trial management conference was premature. There was ongoing circle mediation occurring between S.L. and K.S. and W.S. (the adoptive parents). Additionally, the procedural issue of whether the Openness Application could proceed under either or both s. 194 and s.197 of the CYFSA needed to be addressed.

[33] It is undisputed that the adoptive parents have an excellent relationship with the children’s mother, S.F.L., and have come to an agreement with her in regard to openness. There is no dispute that the adoptive parents also have an excellent relationship with S.F.L.’s extended family including the children’s maternal aunt, D.L.; maternal grandmother, S.L.(gm) (and her partner T.); maternal grandfather, R.L. (and his partner V.); and biological maternal great grandmother, F.L. Visits occur three to four times annually, often in the context of Indigenous activities and events.

[34] The adoptive parents do not have a good relationship with S.L.

[35] There was much said in the adoptive father’s affidavit about why an openness order should not be made as it relates to S.L. There is also significant detail of all of the steps taken by the adoptive parents to ensure the children are connected to their heritage (both before and after the introduction of the federal legislation). The adoptive parents’ lawyer indicates that, although this is not the hearing of the Openness Application, the facts should be considered by the court when determining whether to allow the Applicant an adjournment of the openness hearing to provide proper service of the documents to the Métis community which he points out has an office close to the courthouse.

[36] There is no dispute that the adoptive parents have gone to great lengths to ensure the children’s cultural connection. All parties agree that the adoptive parents are excellent parents to these children.

[37] It is also clear that the ongoing litigation conflict with both the Society and S.L. has taken a toll on K.S. and W.S. and that this entire proceeding is affecting the stability of the adoptive home.

[38] This motion is focused on a narrow question of law. While the Court commends the adoptive parents on their clear commitment to respecting the children’s heritage, and appreciates the negative impact of the ongoing litigation, these points are simply not relevant considerations in determining the legal issue the court has been asked to determine in this motion.

Position of the Parties

[39] It is the Society’s position that the Openness Application must proceed under s. 197 on its merits.

[40] The Society argues that the issues, raised by the adoptive parents (K. S. and W. S.) and by S.L. (former step maternal great-grandmother) should not prohibit the openness hearing from proceeding on its merits. This is particularly so when the matter involves children with Indigenous heritage because of the additional considerations arising for Indigenous children engaged with the child welfare system.

[41] The adoptive parents and S. L. raise the following issues:

1. the unidentified band was not provided with notice under s. 197(2) of the CYFSA;

2. the Métis Nation of Ontario was not served with the application pursuant to s. 197(7) of the CYFSA; and

3. the Notice provided to the Métis Nation was sent by fax and not as is required by s. 197(4). [1]

[42] The Society asks the court to: (1) make an order for substituted service validating service by fax upon the Métis Nation of Ontario; (2) make an order dispensing with service on any band or nation; or (3) allow them an adjournment to serve the material.

[43] The Society submits that a dismissal of its Openness Application of these Indigenous children at this stage goes against the vary fabric of the remedial sections of the CYFSA and the purpose and principles set out in the federal legislation. [2] An openness order is essential to ensure that they maintain a relationship with S.L. and their Métis culture, heritage, and identity. They submit that it is certainly not in the best interests of these children to dismiss the application outright — it must proceed on its merits.

[44] S.L. agrees with the position of the Society as to the available options for the Court to remediate the service issue. She argues that the Society did not take sufficient steps to identify a band and that she believes an appropriate band to be First Nation Abenaki (Wolinak First Nation). This community was not served with the material, which she states is mandatory before adoption. She points out that there is no order of the court dispensing with service. She notes that if this court orders that the openness proceeding cannot proceed because of lack of service, this will likely impact the adoption which she asserts would not be in the best interests of the children. She argues that the legislation does not require the Métis Nation of Ontario to be served with the Openness Application or to be a party to the litigation. From her perspective, the most important triable issue is the nature of her future relationship with the children who deserve an answer in this long-standing litigation.

[45] The Office of the Children’s Lawyer (“OCL”) takes no position with the stated failure to comply with the notice provisions in the legislation. The OCL has been unable to confirm that the children have a relationship with S.L. The OCL states there is currently no indication that they have any significant or meaningful relationship with her. The OCL advises that the adoptive parents and maternal family, including Mother have a strong and positive relationship, and that this protects the children’s right to exposure to their Métis culture. The OCL is not concerned that the children will lose their culture. The OCL does not consent to an openness order between the children and S.L.

[46] The adoptive parents also oppose an openness order between the children and S.L. It is their position that the Openness Application cannot proceed as the Society failed to serve the Métis Nation with the Openness Application, failed to serve it properly with the Notice of Intention to Place, and failed to give notice to the unidentified band. It is their further position that this court should not exercise its discretion in allowing an adjournment to allow for proper service for the following reasons:

a. this matter has been going on for five years;

b. the children need permanency and stability;

c. the ongoing litigation is causing great stress for the adoptive parents; and

d. the children are being exposed to their culture through the adoptive parents, and through their mother, half brother, maternal aunt, grandparents and great-grandfather (in total, four generations).

[47] The mother of the children, S.F.L., has not filed any material. Despite that, she attended on the hearing date of the motion and put forward her position. She also asserts that there is no need for an openness order as between S.L. and the children. She states that S.L. is not family. S.L. separated from S.F.L.’s great grandfather years ago, when S.F.L. was only 10 years of age. S.L. has not seen the children in years. S.F.L. also states that an openness order would not be in the best interest of the children whose lives are ever changing and who need the flexibility to grow and partake in activities. S.F.L. notes the amazing relationship she has with the adoptive parents and with the remainder of her family. The family respects and appreciates the adoptive parents and the children’s need for flexibility because “life happens”. S.F.L. wants the children to enjoy themselves. The entire family — biological maternal and adoptive — engage in cultural activities with the children.

[48] For the reasons that follow, this court orders that the Openness proceeding shall proceed under s. 197 of the CYFSA, and that the trial management conference and the openness hearing shall be expedited.

Identification of the Children

[49] In O. Reg. 155/18, at para. 1 the following guidance is provided for identifying a child who is FNIM:

Interpretation, First Nations, Inuk or Métis child

1. 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.

[50] The children’s identification is Métis.

[51] The Society outlines the attempts it made to engage the Métis Nation of Ontario, who were contacted on several occasions (January 23, 2020 by email, February 7, 2020 letter by fax, April 8, 2020 follow up email, April 15, 2020 by email) to determine their position with respect to the children. The Society says that no response was received. They point to a letter, dated December 12, 2018, on an unrelated matter which indicates that the Métis Nation of Ontario will not participate as a party in CYFSA proceedings but can offer access to programs and structure.

[52] On March 25, 2022, Ms. Kaba of the Métis Nation of Ontario responded to Ms. Glass’ email regarding the children and stated (my emphasis):

Hi Danielle,

Thanks for reaching out.

MNO should not be receiving any legal documentation at this time as it is not listed as a community in the CYFSA; however, it can still support clients as needed, and, with their consent.

If you can let me know the area that the client is located in, I can provide the contact information for an MNO, Métis Family Wellbeing Worker in their area. The process is one that is client driven and voluntary, so we would wait for the client to connect with the worker should they require any support.

You are welcome to connect with the worker directly, they will just require client consent to discuss any specifics.

I have also included a couple of appendices that outline the types of supports available through MNO’s Healing & Wellness and Community Wellbeing branches as well as link below that summarizes the full suite of services available through the various branches at the MNO.

• https://www.metisnation.org/programs-and-services/

Please let me know if you require any more information; I hope this is helpful and thank you again for reaching out to support your client.

[53] It may be that the paternal ancestors of D.F. and P.F. were connected with the Wolinak First Nation or Band. However, there is not enough information before this court to make a finding that the children are connected to either of the Wolinak First Nation or the Abanaki Band. As previously stated, all parties agree these children are Métis.

The Law

(a) Summary judgment

[54] Rule 16(12)(a) of the Family Law Rules states:

Motion for summary decision on legal issue

(12) The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

[55] The question of law is: Can the Society proceed with its Openness Application under s.197(1) of the CYFSA without having served the Métis community or the unidentified band? For the reasons that follow, I find that, as a matter of law, the Openness Application may proceed without notice being given where no band or nation is identifiable for service purposes. Given my answer to that question, the remaining issues regarding service are moot.

(b) Distinction between identifying a child for a finding under s. 90 and for serving notice under section 197(2)

[56] Section 90 of the CYFSA states:

Child protection hearing

90 (1) Where an application is made under subsection 81 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 101.

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.

[57] In Windsor-Essex Children’s Aid Society v. E.W., 2019 ONSC 3404 (varied in 2020 ONCA 682, but not on this point) Verbeem J. made it clear the identification stage at s. 2(4) of the CYFSA is not the provision used for identification purposes. Instead, the provisions of O. Reg 155/18 made pursuant to the CYFSA prescribe the criteria by which the determination is made under s. 90(2)(b).

[58] In Catholic Children’s Aid Society of Toronto v. S. T., 2019 ONCJ 207, Sherr J. canvassed the relevant statutory and regulatory provisions under the CYFSA and developing jurisprudence relating to the determination as to whether a child is a FNIM child. He found that the court’s inability to name a child’s band and First Nations, Inuit or Metis community does not negate the initial determination that the child is FNIM, as any interpretation to the contrary would lead to the result that a Métis child cannot be identified as such because there are no listed communities: see paras. 43 and 44.

[59] Section 90(2)(b) is framed in two parts. Once it is found that the children are FNIM, the second part of the statutory finding that must be made is to identify the child’s band and First Nations, Inuit or Métis community. There may be more than one band or community: see Children’s Aid Society of Algoma v. C.A., 2018 ONCJ 592 at para. 19.

[60] In this case, although there is no order setting out to which band or community the children belong, it is undisputed that the children are Métis.

[61] Section 197(2) of the CYFSA states:

Openness order — band and First Nations, Inuit or Métis community

197 (1) This section applies where a society intends to place a First Nations, Inuk or Métis child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) for adoption.

Notice

(2) In the circumstances described in subsection (1), the society shall give notice to the following persons:

1. A representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

2. The child.

[62] It is a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities that is to be provided with notice. There is no doubt that the children are Métis. However, there is insufficient evidence that the children belong to any other band or community.

[63] Section 68 of the CYFSA authorizes the Minister of Ministry of Children, Community and Social Services to establish a list of Indigenous communities for the purposes of the Act. As of this date, there are no First Nations or Métis communities that have been listed: only one community has been listed, namely Inuit Tapiriit Kanatami, pursuant to O. Reg. 159/18.

[64] This court does not have the authority to create a community for the child, or to otherwise connect the child to a community that is not listed in the regulations. Subsection 2(1) of the CYFSA is clear that a First Nations, Inuit or Métis community means a community listed by the Minister in a regulation made under that section. Only the Minister can designate by regulation the Métis communities: see Catholic Children’s Aid Society of Toronto v. S.T., at para. 40.

[65] At para. 45 of Catholic Children’s Aid Society of Toronto v. S.T., Sherr J. summarizes that the situation as follows:

When the child’s bands and First Nations, Inuit or Metis communities can be identified, the CYFSA sets out rights regarding notice, participation and consultation with those bands and communities, including:

a) Notice and participation in a protection proceeding. See: subsection 79 (1), subsections 113 (4) and (5) and section 115 of the Act.

b) Notice and participation around adoption and openness. See: sections 186 and 187, subsection 192 (2) and section 197 of the Act.

c) Notice and party standing in society access applications and the ability to initiate access applications under section 104 of the Act.

d) The society shall make all reasonable efforts to pursue a customary care plan for the child, under section 80 of the Act, if a finding in need of protection is made and the child cannot remain with or be returned to the person who had charge of the child before society intervention.

e) The right to participate in alternative dispute resolution processes See: subsections 17 (2) and (4) of the Act.

f) The right to participate in Review Board cases. See: subsection 66 (4) of the Act.

g) The right to initiate an appeal. See: section 121 of the Act.

h) The right to consultation at all stages of the case. See: sections 23 and 25 to 29 of Ontario Regulation 156/18 and sections 72 and 73 of the Act.

[64] Sherr, J. goes on to state that if a child’s bands and First Nations, Inuit or Métis communities cannot be identified, the rights are not activated. This is entirely logical: statutory rights cannot exist in a vacuum, they must be assigned to an entity or an individual. However, many other additional considerations still apply to First Nations, Inuit and Métis children in the CYFSA and its regulations. These include:

a) In assessing a child’s best interests under subsection 74(3) of the Act, the court shall 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 other considerations set out in subsection 74(3).

b) The same best interests test applies on an adoption application. See: subsection 179(2) of the Act.

c) Subsection 101(5) of the Act sets out that 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 society intervention, that 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,

i. in the case of a First Nations child, another First Nations family;

ii. in the case of an Inuk child, another Inuit family; or

iii. in the case of a Métis child, another Métis family.

d) Section 109(2)(d) of the Act provides that when the child is in interim or extended society care, the child shall be placed, if possible, with a member of the child’s extended family or, if that is not possible,

i. in the case of a First Nations child, another First Nations family,

ii. in the case of an Inuk child, another Inuit family, or

iii. in the case of a Métis child, another Métis family;

e) Section 112 of the Act provides that if the child is in extended society care, the society is required to assist the child in developing a positive, secure and enduring relationship within a family through one of the following:

i. a plan for customary care,

ii. an adoption, or

iii. a custody order under subsection 116 (1).

f) Section 124 of the Act provides for continuing care and support of the child once he or she turns 18 in prescribed circumstances.

g) Sections 3 to 6 of Ontario Regulation 156/18 set out specific requirements for the servicing of the child, by child protection agencies. It includes obligations to make inquiries, provide information, identify resource persons and offer culturally appropriate services. In particular:

i. Section 3(2) of the regulation states that when providing services to the child and the child’s family, a service provider shall take into account the child’s cultures, heritages, traditions, connection to community and the concept of the extended family.

ii. Section 4(3) of the regulation requires the society to inform the child and the child’s family about its obligations under subsection 3 (2) of the regulation.

iii. Section 4(5)(b) of the regulation requires the society to ask the child what information the child has about their cultures, heritages, traditions, connection to community and the concept of the extended family the child wishes to have the service provider take into account in relation to any aspect of providing services to the child and the child’s family.

h) Section 6 of O. Reg. 156/18 sets out service requirements for a First Nations, Inuk or Métis child.

[65] I am mindful that the absence of a regulation that is both in effect and that identifies First Nations, Inuit and Métis communities for the purposes of the CYFSA in accordance with s.68 effectively frustrates the ability to represent such communities and can deprive them from making important contributions to all aspects of child protection proceedings. This result is difficult to reconcile with the preamble of the CYFSA which provides in part:

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

The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.

[66] But it remains, based on the way that the CYFSA is structured, this determination is a function of the exercise of ministerial discretion as opposed to judicial discretion: see Catholic Children's Aid Society of Toronto v. S.T., 2019 ONCJ 207, at paras. 39-40. Any functional failure in this regard is thus created by the operation of the statute itself. It falls within the parameters of the legislative branch of government, not the judicial branch. Thus, it cannot — and should not — be remediated by an exercise of judicial discretion.

[67] As Ms. Kaba pointed out in her email, the Métis Nation of Ontario is not a listed community and cannot become involved. Accordingly, formal service and notice to the Métis community is not required in order for the Openness Application to proceed. Of course, it is important to involve the Métis community in planning for these children, whether or not formal notice is required. The Society has made numerous attempts to engage the Métis community, and the community has been clear in its position that it will provide service but will not get involved in the court matter. Services have in fact been accessed by the adoptive parents.

[68] The Openness Application must advance on its merits.

Orders Granted:

1. The Openness Application of the Children’s Aid Society of the Regional Municipality of Waterloo issued September 29, 2020, shall proceed under s. 197 of the CYFSA.

2. The trial management conference is set for May 16, 2022 at 10:00 a.m.

3. The hearing of the openness application is to be expedited.

Piccoli, D., J.

Released: April 29, 2022

COURT FILE NO.: FA-20-25-0000 DATE: 20220429 ONTARIO SUPERIOR COURT OF JUSTICE The Children’s Aid Society of Waterloo Region Applicant – and – G.J.F.L. and B.J.L. – and – S.F.L. – and – S.L. – and – K.S. and W.S. Respondents REASONS FOR DECISION Piccoli, J.

Released: April 29, 2022

[1] Note that this last issue came to the parties’ attention following the Court’s request to view the Notices.

[2] An act respecting First Nations, Inuit and Métis children, youth and families, R.S.C. 2019, hereinafter “the federal legislation”.