W A R N I N G
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.
COURT FILE NO.: FS-21-25-AP
DATE: 2023-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
R. J.
Marco Frangione, for the Applicant (Respondent on Appeal)
Applicant (Respondent on Appeal)
- and -
A. L.
Luke Ruberto, for the Respondent (Appellant)
Respondent (Appellant)
HEARD: March 7, 2022, at Fort Frances, Ontario via Zoom
Regional Senior Justice B. R. Warkentin
Reasons on Appeal
[1] The issues in this appeal deal with the custody and care of S.L., a child born in 2014. She is now almost 9 years old. She was six years old on February 13, 2020, when the application was commenced by the respondent on appeal, R.J.
[2] S.L. is the biological daughter of the appellant, A.L. A.L., S.L and R.J. are members of the Couchiching First Nation. The biological father of S.L., D.M. is also a member of Couchiching First Nation. D.M. has not participated in this litigation and has had very little or no involvement in S.L.’s life.
[3] A.L. appeals the temporary order of the motions judge, Justice P. Joubert in the Ontario Court of Justice dated July 26, 2021. She also seeks to have R.J.’s application dismissed in its entirety.
[4] On July 26, 2021, the motions judge made the following temporary orders in which R.J. was granted:
a) Unsupervised telephone and video access with S.L., a minimum of once weekly;
b) Unsupervised in-person access with S.L., a minimum of once weekly for at least six hours; and
c) Overnight access with S.L., a minimum of twice monthly from Fridays after school to Sundays at 5:00 p.m.
[5] The motions judge also made an order at the request of R.J. seeking the involvement of the Office of the Children’s Lawyer.
[6] The Appellant has submitted that the motions judge erred by:
a) Failing to consider how customary care arrangements impact the best interests analysis and the rights of the parties;
b) Failing to show deference to the ongoing customary care arrangements of Couchiching First Nation;
c) Misinterpreting, relying on, and failing to distinguish the case of D.A. v G.H., 2021 ONCJ 95;
d) Failing to provide sufficient reasons for determining that the access (parenting time) ordered was in the child's best interests;
e) Failing to strike improper reply evidence of the respondent;
f) Relying upon Rule 7(4) of the Family Court Rules to make an order for parenting time, in favour of the non-parent respondent; and/ or
g) Failing to make the access (parenting time) order on a without prejudice basis.
[7] In this appeal, A.L. also seeks an order that the application in the OCJ be stayed or in the alternative that a new application be commenced in the Superior Court of Justice (SCJ) to determine R.J.’s claims. Counsel for A.L. argued that the OCJ does not have jurisdiction to hear cases where federal legislation in engaged, particularly the recent federal legislation called: An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24.
[8] A.J. also seeks costs for the proceedings in both the OCJ and on appeal.
Background Facts and History of the Litigation
[9] The appellant was sixteen when S.L. was born. After S.L.’s birth, A.L. and S.L. lived together in a foster home. A.L. was unprepared to be a mother, was financially insecure and was struggling with substance abuse issues. The foster care placement broke down after approximately four months and A.L. became homeless.
[10] A.L. recognized that she required help and sought assistance from the Couchiching First Nation (CFN), Weechi-it-te-win Family Services (WFS) and its subsidiary Couchiching Community Care Program (“CCP”) in September 2014 to find a home for S.L. while A.L. addressed her issues. At this time, it was acknowledged by WFS, A.L. and CFN that S.L. was a child in need of protection.
[11] CFN and WFS contacted R.J., a biological cousin of A.L. and a member of CFN. R.J. agreed to provide care for S.L. as a customary caregiver. A.L and R.J. entered into a customary care agreement (CCA), with CFN and WFS.
[12] As part of the CCA plan, A.L. maintained a relationship with S.L. In the early years, her involvement with S.L. was more modest because A.L. was addressing her own needs as a teenager with substance abuse issues. It was CFN and WFS that determined the access schedule between S.L. and A.L. R.J. did not have input.
[13] As part of the CCA, R.J. received financial compensation from CFN for acting as a caregiver to S.L. By placing S.L. with R.J., CFN and WSF ensured that the care and supervision of S.L. both met S.L.’s protection needs and ensured S.L. would be raised according to the customs of the CFN. The actual CCA document has not been produced in this litigation and it is not clear if the document still exists.
[14] Between 2014 and 2019, A.L. actively sought assistance and worked to resolve her substance abuse issues and gain maturity. As time passed, A.L. sought more time with S.L. By 2019, A.L. had addressed her substance abuse issues and was receiving increased access with S.L. with the support and assistance of WFS.
[15] In early 2020, A.L. began to work with CFN and WFS towards reunification with S.L. with the plan that S.L. would be returned to her primary care. A.L. understood from discussions she had with WFS that S.L. would be returned to her care in the fall of 2020.
[16] In February 2020, R.J. initiated an application in the Ontario Court of Justice (OCJ) under the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (CLRA) seeking sole custody of S.L. A.L. responded to the application and argued that R.J., as a customary caregiver, is not a proper party and therefore does not have the right to commence a proceeding under the CLRA. It was her position that R.J.’s application should be dismissed for want of jurisdiction.
[17] A.L has also argued that in the face of a CCA, the court has no jurisdiction to intervene.
[18] One of the issues in this proceeding has been the status of the CCA. The parties submitted that the term of the CCA ended in 2018. There was significant argument on whether the CCA did terminate in 2018 or whether it continued based upon agreement or acquiescence, in the absence of a written CCA.
[19] Because there is no record of the CCA, the actual term of the CCA is based upon the evidence supplied by the parties to the CCA. That evidence was that the term ended in 2018, but that the CCA may have continued beyond 2018. There were also three temporary orders in this proceeding where the judge commented on the expiry of the CCA in 2018. Regardless of whether the term of the CCA expired in 2018 or later, the evidence clearly demonstrated that the CCA ended at some point prior to October 2020.
[20] In October 2020, A.L. obtained a letter from WFS that confirmed that S.L. was no longer in its care and that its protection file and the customary care file regarding S.L were closed. In spite of that information, R.J. refused to return S.L. to A.L. as directed by WFS and instead brought an emergency motion seeking temporary sole custody of S.L.
[21] By the fall of 2020, when the emergency motion occurred, S.L. was six years old and had been in the primary care of R.J. for almost her entire life.
[22] R.J. initiated this proceeding in the OCJ in February 2020 in which she sought sole custody of S.L. pursuant to the provisions of the CLRA. R.J. was living near or on the CFN at the time and A.L. resided in Atikokan, approximately an hour away. A.L. retained counsel and obtained regular access with S.L. Everything became more challenging during this period because of the COVID-19 pandemic. For a brief period, the access visits between A.L. and S.L were suspended due to the pandemic.
[23] In October 2020, when A.L. obtained the letter from WFS that S.L. was no longer in its care and the CCA file had been closed, R.J. refused to return S.L. to A.L. and brought an emergency, ex-parte motion seeking temporary sole custody. Justice Gibson declined to hear the motion on an ex-parte basis and directed that both A.L. and the WFS be served.
[24] R.J.’s motion proceeded on October 23, 2020, before Gibson J. At that motion WFS attended and informed the court that their customary care file regarding S.L. was indeed closed.
[25] One of the submissions made on behalf of R.J. at that motion was that because the WFS no longer had legal authority over S.L. the court should resolve the motion based upon what was in the best interests of S.L. pursuant to the provisions of the CLRA, having regard to the fact that S.L. had been in R.J.’s care since shortly after her birth.
[26] After considering the submissions of counsel for R.J. and A.L., Gibson J. ordered that S.L. “be placed with her mother [A.L.] until further order of this court on a without prejudice basis, with reasonable access to the applicant [R.J.].”
[27] In his endorsement, Gibson J. commented that the dispute between R.J. and A.L. was regrettable and “does not look well for their ability to compromise in the spirit of doing what is in the best interests of [S.L.].” He made several helpful observations regarding the purpose of CCA’s as follows:
a) At the “heart of customary care agreements in First Nations communities is the recognition that while children are best served by being in the immediate care of their biological parent, the community has an important role to play in supporting both parents and children when parents are struggling.”
b) That parents in need of assistance should “not be discouraged from seeking assistance by the thought that if they show any vulnerability, they will lose custody of their children altogether.”
c) That deep attachments are formed between the caregiver and the child placed in their care and that community members may be reluctant to come forward to assist in fulfilling a vital role in providing a healthy and supportive environment for vulnerable children if those attachments are not respected.
d) That caregivers and parents must recognize their respective roles within a customary care agreement, and both must support the transition of the child to ensure the child is able to benefit and reach their full potential.
[28] In February 2021, R.J. brought another motion seeking specified access to S.L. and the involvement of the Office of the Children’s Lawyer (OCL) to represent S.L. and report to the court. Justice Joubert heard this motion on April 27, 2021. He released his decision on July 26, 2021 and made the following temporary orders:
a) Unsupervised telephone and video access between R.J. and S.L., a minimum of once weekly;
b) Unsupervised in-person access between R.J. and S.L., a minimum of once weekly for at least six hours;
c) R.J. to have overnight access with S.L., a minimum of twice monthly from Fridays after school to Sundays at 5:00 p.m., and
d) A request be made to the Office of the Children’s Lawyer seeking their involvement.
[29] On August 6, 2021, counsel for A.L. filed a Notice of Appeal of the order of Joubert J. and sought an interim stay of the terms of that order.
[30] The stay motion was heard in the Superior Court of Justice before Justice J. Fregeau on August 26, 2021. Fregeau J. refused to stay the temporary order; however, he found that the order of Joubert J. should be varied on a without prejudice basis pending the disposition of the appeal. He rendered his decision on September 1, 2021.
[31] In reaching his decision, Fregeau J. noted that R.J. did not dispute the premise that family reunification is the long-term goal of customary care agreements. He also found that the process of family reunification was well underway for S.L. and her family, and that bonds had already been established that are consistent with S.L.’s short and long-term best interests.
[32] Fregeau J. did acknowledge the importance of some level of contact between R.J. and S.L. as also being in S.L.’s best interests, but that the level of contact between a customary caregiver should not be such that it “puts the fragile bond between [S.L.] and her biological family at risk.” He noted that the overriding factor in the motion for a stay is the best interests of the child.
[33] Fregeau J. varied the order of Joubert J. as follows:
a) R.L.’s overnight, weekend access as ordered (para 1(c)) was deleted;
b) The involvement of the OCL, (para 4) was deleted;
c) The order was without prejudice pending the determination of the appeal; and
d) Costs of the motion were reserved to the judge hearing the appeal.
[34] In essence, the order of Fregeau J. provided R.J. with the following time with S.L.:
a) Unsupervised telephone and video access, a minimum of once weekly; and
b) Unsupervised in-person access, a minimum of once weekly for at least six hours.
[35] The appeal proceeded before me on March 7, 2022. Prior to the appeal, various case conferences were held to discuss the evidence and issues to be argued on the appeal as well as the timing of the appeal. Counsel noted that a similar case, (M.L. et al v. B.T. et al 2021 ONSC 5887) regarding the role of caregivers and the jurisdiction of the court as it pertained to CCA’s was pending before the Ontario Court of Appeal (OCA).
[36] Counsel proposed that they proceed with argument on the appeal as scheduled however, this court should refrain from rendering a decision until the decision of the OCA was rendered. This appeal proceeded on that basis with the caveat that once the OCA’s decision was rendered, counsel would provide additional written submissions as to the effect of the OCA’s reasons on the position they were taking in this appeal.
[37] The OCA released its decision in M.L. et al v. B.T. et al on March 23, 2022. (M.L v. B.T. 2022 ONCA 240.) As agreed, counsel provided written submissions on the effect of the OCA decision on the following dates:
a) Counsel for A.L. provided written submissions on May 30, 2022;
b) Counsel for R.J. provided written submissions on June 22, 2022; and
c) Counsel for A.L. provided Reply submissions on June 29, 2022.
[38] A date was set in September 2022 for additional oral submissions. However, due to the court’s schedule, and with the consent of the parties, that date was adjourned to November 30, 2022. Shortly before the hearing date, counsel informed the court that they did not wish to make oral submissions and asked the court to render its decision. The court was also informed that Mr. Ruberto was no longer representing A.L. She is now represented by Julia Tremain.
Ontario Court of Appeal Decision in M.L. v. B.T.
[39] The question before the OCA in M.L. v. B.T. was whether the appellants, M.L. and D.L., who in that case were the caregivers of an Indigenous child, were entitled to bring an application under the CLRA for parenting orders regarding the child in their care. In that case, Dilico Anishinabek Family Care (“Dilico”), the Aboriginal child protection agency involved was a respondent.
[40] The OCA also heard from counsel for the Office of the Children’s Lawyer (OCL), who had been appointed to represent J.T.’s interests in the court application, and from interveners, Association of Native Child and Family Services Agencies of Ontario and Nishnawbe Aski Nation. The biological parents, B.T. and D.C., did not appear at the appeal and did not participate in the litigation.
[41] M.L. v. B.T. involved a six-year-old Indigenous child, J.T. who had been in the care of M.L. and D.L. for her entire life. In that case, the dispute was not with the biological parents, but with Dilico that claimed that the customary care agreements entered into by the parties with Dilico authorized Dilico to make all placement decisions concerning J.T. without judicial oversight. Dilico had planned to remove J.T. from M.L. and D.C.’s care and place her with a maternal great aunt. M.L. and D.C objected and commenced an application under the CLRA. Dilico responded by commencing a child protection proceeding under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (“CYFSA”).
[42] The OCA concluded that the appellants (M.L. and D.C.) were entitled to bring their application under the CLRA. In reaching that conclusion, the OCA found that Dilico was acting without legal authority under the CYFSA by maintaining de facto guardianship of J.T. following the expiry of the last of several temporary care agreements it entered. The court also found that the most recent CCA was invalid because not all parties had provided their consent. The court found that Dilico had acted without statutory authority and as such the agreements it made were not valid.
[43] In reaching that decision, the court commented at para 48 that:
“If a society seeks to rely on a customary care agreement to resolve protection proceedings out of court, the agreement must be carefully prepared and have the consent of all the parties. Otherwise, the child loses the protection of the processes and timelines set out in the CYFSA without assurances of the intended benefits.”
[44] While the background facts in M.L. v. B.T. differed from the facts in this appeal, the findings of the OCA are applicable to the issues in this appeal.
[45] The OCA held that the appellants were the only caregivers the child had ever known and as such they must be parties to the decision about her best interests. The OCA determined that the appellants were entitled to bring their CLRA application, to include Dilico and other interested parties, and that the best interests of the child would be determined by the court in accordance with the relevant statutory and constitutional requirements. The OCA then held that the application must therefore be returned to the court of first instance (the OCJ, in that case as in this case) to determine a plan of care in the child’s best interests.
[46] In reaching those conclusions, the OCA made the following comments and findings:
a) The inability of the biological parents to care for the child directly engages the CYFSA;
b) The Court reviewed the purposes of s. 1(2) of the CYFSA and noted that the section includes “an additional purpose distinct to First Nations, Inuit, and Métis peoples: wherever possible, they should be entitled to their own child and family services… in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of extended family.” (para 32);
c) “Customary care” plays an important role in meeting this purpose as well as meeting the other purposes of the CYFSA, including its paramount purpose to promote the best interests, protection, and well-being of children.” (para 33);
d) Customary care agreements require informed and voluntary consent (s. 21 of the CYFSA) of the child’s biological parents, the proposed alternate caregiver, the applicable child welfare agency, and a representative of the First Nation as to the terms and conditions of the proposed plan of care (para 38);
e) That the ability of a caregiver to pursue a CLRA application is not tied to whether they are considered “foster parents” or “customary caregivers”. And, in the absence of a valid CCA, the caregivers are not precluded from bringing a CLRA application. The court has the discretion to add both foster parents and customary caregivers as parties to a child protection proceeding or to determine whether their CLRA application may proceed. Rule 7(5) of the Family Law Rules, O. Reg. 114/99 permits the court to add appropriate people as parties (paras 51, 54 and 56); and
f) Absent a proceeding under the CYFSA initiated by a child protection agency, the CLRA is the only avenue open to the appellants, (para 60).
Applicability of An Act respecting First Nations, Inuit and Métis children, youth and families
[47] Counsel for A.L. has asked this court to consider the applicability of An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24. This federal legislation received royal assent in June 2019 (the “federal Act”).
[48] It was Counsel for A.L.’s position that the OCJ has no jurisdiction over child protection proceedings where the federal Act is engaged. Counsel for A.L. seeks an order permanently staying R.J.’s application in the OCJ and requiring R.J. to commence a fresh proceeding to the Superior Court of Justice (SCJ) on the grounds that it is the SCJ that has jurisdiction to hear proceedings dealing with federal legislation.
[49] In considering this submission, a review of the principles and purposes of the federal Act is helpful.
[50] The federal Act outlines standards for the delivery of Indigenous child and family services.
[51] The federal Act has three purposes that are set out in s. 8. They are to:
a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;
b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and
c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
[52] The key principles of the federal Act are the best interests of the child, cultural continuity, and substantive equality (s. 9).
[53] In particular, the federal Act establishes a procedure permitting First Nations to assert jurisdiction over child and family services, effectively displacing provincial child protection laws. That procedure includes: the First Nation providing notice of the intention to exercise jurisdiction and a request to enter into a tripartite coordination agreement with federal and provincial authorities. Absent notice or a request to enter into a tripartite coordination agreement, the CYFSA continues to govern. (M.L. v. B.T. at para 70.)
[54] Of note, the federal Act provides that “[f]or greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act” (s. 4).
Standard of Review on Appeal and Analysis
[55] An appeal of a temporary order of the Ontario Court of Justice lies to the Superior Court of Justice pursuant to s. 40 of the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 40.
[56] The standard of review in family proceedings is:
a) On questions of law, the standard is that of correctness;
b) On questions of fact, the standard is whether the motions judge made a palpable and overriding error when finding or applying matters of fact; and
c) On questions of mixed law and fact, the standard varies. Where a legal principle can be extracted from the question, the standard is correctness. Where it is a question of application of correct legal principles to the facts, the standard is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235; Conceicao v. Abraham, 2021 ONSC 2330 at para 32.
[57] At issue in this appeal are questions of law: the correctness of the temporary decision of Justice Joubert.
[58] A.L. has included additional relief as part of her appeal. She now seeks a complete stay of R.J.’s application under the CLRA. In the alternative, A.L. seeks to require R.J. to bring a new application in the SCJ. Her counsel argued that it is the SCJ that has jurisdiction over the matters that engage the federal Act.
[59] In hindsight, it is unfortunate that this appeal was argued prior to the decision of the OCA in M.L. v. B.T. In the moment, it seemed prudent to make best use of the court’s time, particularly since court time in the early months of 2022 was in short supply due to backlogs related to the COVID-19 pandemic. At that time there was no indication when the OCA would be releasing its decision in M.L. v. B.T.
[60] Had this court known the findings of the OCA when this appeal was argued, it is likely the issues on appeal would have been significantly narrowed or would have been resolved. Notwithstanding this set of circumstances, the result is the same, albeit after a significant delay.
[61] The OCA decision in M.L. v. B.T. has resolved the question of jurisdiction of the court regarding the court’s oversight of CCA’s.
[62] The OCA held that the court retains a supervisory role over CCA’s. While the parties on appeal before the OCA argued that a caregiver under a CCA was not the same as a foster parent in non-Indigenous child protection proceedings, the OCA found that the terms are interchangeable, and nothing turns on that terminology. (M.L. v. B.T. at paras 51 and 54.)
[63] The OCA held that both caregivers under a CCA and foster parents under the CFSYA, may seek the intervention of the court under the CYSFA, if applicable. The OCA also held that in the absence of a proceeding under the CYFSA initiated by a child protection society, the CLRA is the only avenue open to the caregivers under a CCA and they are not precluded from bringing a CLRA application. (M.L. v. B.T. at para 60.) The OCA also confirmed that foster parents and caregivers, may be added as parties to both child protection proceedings and to CLRA proceedings.
[64] The central issue in M.L. v. B.T. was whether Dilico had the authority to unilaterally move a child from one customary caregiver to another caregiver without a valid CCA to which all parties, including the First Nation and the biological parents had agreed. It was not a case where the child was no longer a child in need of protection, nor was it a situation where the biological parents were seeking reunification.
[65] Notwithstanding the different fact situations, the findings of the OCA apply to this case.
[66] As in M.L. v. B.T., there was no valid or continuing CCA for S.L. by October 2020 (and possibly as early as 2018). As such, the only avenue open to R.J., was to commence an application under the CLRA.
[67] The court, in its temporary orders, considered the objectives of CCA’s including the role of a customary caregiver and the importance of family reunification with the biological parents once the child in question was no longer in need of protection.
[68] The court also noted that notwithstanding the unique nature of CCA’s in child protection proceedings, the best interests of the child remained a significant factor in the court’s analysis. These temporary orders align with the subsequent decision of the OCA in M.L. v. B.T. For example, Gibson J., when ordering the removal of S.L. from R.J.’s primary care and placing her with A.L., recognized the delicate balance between a caregiver and the importance of the reunification process. Fregeau J. found that some level of contact between R.J. and S.L. was in S.L.’s best interests, but that the level of contact between a customary caregiver should not be such that it “puts the fragile bond between [S.L.] and her biological family at risk.”
[69] Part of the consideration of S.L.’s best interests in all the temporary orders included continued parenting time between R.J. and S.L. All those orders held that continued access was necessary in order to aid in the transition.
Conclusion
[70] The OCA decision in M.L. v. B.T. dealt with the jurisdiction of the courts and confirmed the court’s authority to oversee disputes such as these. R.J.’s application was therefore properly commenced under the CLRA because there was no proceeding from a child protection agency under the CSFYA.
[71] It is now approximately 1.5 years since the temporary order of Joubert J. was issued. That order was never fully implemented because it was varied by Fregeau J. in September 2021.
[72] At this stage, the order of Joubert J. is stale and there is nothing to be gained by considering whether that temporary order on its face, should be upheld or stayed. S.L.’s circumstances, by virtue of the passage of time, will have changed.
[73] The appeal to stay that order would have been denied had the OCA decision in M.L. v. B.T. been available in the summer of 2021. It is questionable whether there even would have been an appeal of that order had the OCA reasons in M.L. v. B.T. been available in 2021.
[74] For clarity in this appeal, I find that due to the passage of time and the fact that the Joubert J. order was varied before it was implemented, that order as varied by Fregeau J. shall continue until further order of the court.
[75] The remainder of the Joubert J. order is stayed.
[76] The test remains the best interests of the child, having regard to all the factors identified above.
[77] There is therefore no basis for precluding or staying R.J.s application under the CLRA. The application must be able to proceed. The best interests of S.L. will be determined by the court in accordance with the relevant statutory and constitutional requirements.
Should this Proceeding be Transferred to the Ontario Superior Court?
[78] A.L. argued that this proceeding should be transferred to the SCJ because the OCJ does not have jurisdiction to apply the federal Act. Her counsel submitted that because this is federal legislation its interpretation and application are outside the authority of the OCJ.
[79] In this proceeding, there were no child protection proceedings before the court and no valid CCA that would have engaged the provisions of the federal Act. For this reason alone, that argument must fail.
[80] Counsel for A.L. also argued that the OCJ does not have jurisdiction to hear cases where the federal Act is engaged. Notwithstanding I have already found that the federal Act does not apply to this case, it is incumbent on me to make some comments for future consideration should this issue arise again.
[81] In the Northwest Region, the jurisdiction for all child protection proceedings under the CYFSA are before the OCJ, with a right of appeal of an interlocutory (temporary) order to the SCJ.
[82] In many other regions in Ontario there are Unified Family Courts in the SCJ where all family proceedings are heard, including child protection proceedings under the CYFSA. An appeal of those interlocutory decisions goes to the Ontario Divisional Court.
[83] An appeal from either an SCJ appeal decision or from a Divisional Court decision lies with the OCA.
[84] In those parts of Ontario without a Unified Family Court, it is the judges of the OCJ who have the knowledge and expertise, and the jurisdiction, to hear and determine child protection proceedings under the CYFSA.
[85] Of note, the federal Act provides that “[f]or greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act” (s. 4).
[86] The appeal in the case of M.L. v. B.T. was of a proceeding commenced in the OCJ under the CYFSA and the CLRA. There was an appeal of an interlocutory order to the SCJ. The decision in the SCJ was appealed to the OCA. While the question of the OCJ’s jurisdiction was not at issue in the appeal, the federal Act was considered by the OCA because the proceedings involved an Indigenous child and a First Nations child welfare agency.
[87] Of concern by Dilico and the interveners in M.L. v. B.T. for proceedings under the CLRA was that “the protections for Indigenous children that have been incorporated in the CYFSA and adopted in the national standards do not exist under the CLRA.” The OCA found that this argument was due to a misunderstanding of the law. The OCA held that “[a] court applying the CLRA will be required to apply the national standards” when deciding an application under the CLRA. (at paras 71 and 72.)
[88] The OCA also found that the considerations relating to parenting orders under the provincial and federal statutes, though not identical, are closely related, and that “In deciding the appellants’ CLRA application, the court will have to interpret these provisions to incorporate the national standards set out in the federal Act and the CYFSA in a manner that harmonizes the legislation. (M.L. v. B.T. at para 74.)
[89] The OCA returned the proceeding to the OCJ to determine the issues and required that Dilico and the First Nation be added as parties. It is clear from the OCA decision that it is the court that hears child protection proceedings, in this region the OCJ, that is tasked with interpreting and incorporating the federal Act into their decisions when the federal Act is engaged.
[90] I therefore find that the OCJ, in areas without a Unified Family Court, has the jurisdiction to hear child protection (CYFSA) and CLRA proceedings involving Indigenous children where the federal Act is engaged. I therefore dismiss A.L.’s appeal seeking to stay R.J.’s application and to require R.J. to commence a new application in the SCJ.
[91] R.J.’s application is therefore returned to the OCJ, the court of first instance. Whether R.J.’s application for custody (now sole parenting time) has any further validity is questionable. Subject to an update on S.L.’s circumstances, it appears the only issue is whether it is in the best interests of S.L to maintain a relationship with R.J. and what that should entail.
[92] All other parts of the appeal are dismissed.
[93] If the parties are unable to agree on costs, they shall provide brief written submissions, no longer than 5 pages, together with their Bills of Costs within 30 days.
Regional Senior Justice B. R. Warkentin
Released: February 1, 2023
COURT FILE NO.: FS-21-25-AP
DATE: 2023-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
R.J.
Applicant (Respondent on Appeal)
- and –
A.L.
Respondent (Appellant)
REASONS ON APPEAL
B. Warkentin R.S.J.
Released: February 1, 2023