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.

AMENDED ENDORSEMENT AUGUST 27, 2025

This Amended Endorsement now includes the Respondent, P.B. and Counsel, A. Katz

CITATION: HCFS v. B.M., 2025 ONSC 4862

COURT FILE NO.: 376/24

DATE: 2025-08-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hamilton Child and Family Supports, Applicant

AND:

B.M., Respondent

P.B., Respondent

BEFORE: THE HONOURABLE MADAM JUSTICE T. LAW

COUNSEL:

• K. Mikalski, Counsel, for the Applicant
• T. Hammond-Grant, Counsel, for the Respondent B.M.
• A. Katz, Counsel for the Respondent, P.B.

HEARD: August 11, 2025

ENDORSEMENT

Background and Facts

[1] This matter came before me at a settlement conference. The child at the centre of this proceeding is H.M, who is currently one year old. She is identified as a Métis child.

[2] The mother of H.M. is B.M. She identifies as Métis. In or about July 2021, B.M. was charged with second-degree murder following an altercation with a person who died. She was convicted of manslaughter. B.M. gave birth to H.M. while incarcerated.

[3] After giving birth to H.M., B.M. agreed to place H.M. with P.B., the child's maternal step-grandmother. B.M. signed a Voluntary Services Agreement which formalized this arrangement. It is unclear if anyone received independent legal advice regarding the agreement.

[4] H.M was residing with P.B. when she came into the care of Hamilton Child and Family Supports ("the Society") on March 26, 2024. She was removed from P.B.'s care due to concerns about drug use and the condition in the home.

[5] B.M. was incarcerated at Grand Valley Institution. She began to have access with H.M. starting in mid-2024. Those visits went well. After her release in early February 2025, B.M. continued to have access, which increased in length and frequency. The level of supervision has also substantially decreased, such that by September 2025, her access will be changing to a more normalized social setting within the community. Since B.M. was released, the Society has been slowly and responsibly increasing B.M.'s access to ensure that appropriate parenting supports and supervision are in place.

[6] B.M. has also made substantial progress with the child protection concerns to date. The Society's materials reflect that B.M. attended at treatment to address her mental health issues and substance use. She has been compliant with all parole conditions. She currently resides at Ellen Osler community residential facility. She will be connecting with the Hamilton Regional Indian Center for parenting programs.

[7] The main issue is that, at present, B.M. is unable to have H.M. in her care because other residents at Ellen Osler have conditions not to be around children. Efforts are actively being made by Ellen Osler to assist B.M. with finding another place to live. There are also concerns about B.M.'s ability to receive financial assistance through Ontario Works or the Ontario Disability Support Program due to the status of her parole.

[8] In short, the Society has indicated it would like to return H.M. to B.M.'s care, however, more time is needed. As of August 2025, H.M. has been in care for 16 months.

Statutory Framework

[9] According to s.122 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 ("CYFSA"), a child younger than 6 years old cannot remain in society care for more than 12 months. H.M.'s time in care has exceeded that length. However, an extension of time of six months may be granted pursuant to s.122(5) if it is in the child's best interests to do so.

[10] Importantly, H.M. is a Métis child, and as such, is entitled to the benefit of the provisions in An Act respecting First Nations, Inuit and Métis children, youth, and families, S.C. 2019, c. 24 ("the Federal Act"). There are no time limits set out in the Federal Act.

[11] The issue for the court is how s.122 of the Child, Youth and Family Services Act should be interpreted in light of principles outlined in the Federal Act.

Reconciliation and the Truth and Reconciliation Commission

[12] It is my view that a broad and liberal interpretation of s.122 is integral to the reconciliation work that was called for by the Truth and Reconciliation Commission of Canada ("the TRC") with respect to child welfare. In its Final Report, the TRC exhorts all child welfare participants to reduce the number of First Nations, Inuit, and Métis children in care by considering and understanding the legacy of the residential school experience on children, caregivers, and their communities. The fourth Call to Action from the Final Report, calls on courts to "take the residential school legacy into account in their decision making."

[13] It is important to note that the preamble of the Federal Act specifically acknowledges the Calls to Action proposed by the TRC. The preamble also recognizes the harmful legacy of residential schools and the importance of reuniting First Nation, Inuit, and Métis children with their families and communities. It is through this framework, along with the purposes and principles set out in the Federal Act, that s.122 should be interpreted. In my view, a strict interpretation of s.122 as sometimes adopted by courts to require unusual or exceptional circumstances, would be inconsistent with the recommendations of the TRC and would exacerbate the barriers to family reunification.

The provisions of the Federal Act and the Child, Youth and Family Services Act are to be given large and liberal construction which gives effect to the aim of ending historic discrimination and child removal

Remedial Nature of the Legislation

[14] Prior to discussing the interpretation of s.122 more specifically, it is important to understand the remedial nature of both the CYFSA and the Federal Act.

[15] Both the CYFSA and the Federal Act must be understood to be remedial in nature. Section 10 of the Interpretation Act, R.S.O. 1990, c. I.11, provides that every Act of the Ontario Legislature "shall be deemed to be remedial" and every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit": Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at para. 22. This interpretive approach applies to the CYFSA, while a similar provision, Section 12 of the federal Interpretation Act, R.S.C., 1985, c. I-21, applies to the Federal Act.

[16] Multiple courts have confirmed that the CYFSA and the Federal Act are remedial legislation as it relates to First Nations, Métis and Inuit children: see Children's Aid Society of Ottawa v. J.H., 2022 ONSC 5514 at para. 7, and Kina Gbezhgomi Child and Family Services v. J.M., 2023 ONCJ 93 at para. 29. In Kina Gbezhgomi Child and Family Services v. J.M., Wolfe J. explained the significance of the remedial nature of both pieces of legislation:

[29] …I find the Federal Act and CYFSA are remedial legislation aimed at ending the historic discrimination and unilateral approaches of Canada that led to disparate and negative outcomes for Indigenous people in child protection proceedings. In other words, the concept of "harm" in a child protection proceeding must include a broader notion of the inherent harm in removing Indigenous children from their parents, families and communities. Motions judges are the gatekeepers in this regard and must be ever mindful of this intention in order to avoid defaulting to a standard CYFSA method of analysis that doesn't recognize this distinction between Indigenous and non-Indigenous families. [emphasis added]

[17] Wolfe J. was tasked with considering the proper test to use at a temporary care and custody hearing involving an Indigenous child. It should be noted that while Section 94 of the CYFSA sets out a specific test to be considered at temporary care and custody hearings, as in this case, the Federal Act explicitly does not. Ultimately, Wolfe J. found that given the remedial nature of the Federal Act, and the doctrine of paramountcy, the Federal Act's best interests test which includes a priority of placement, applies.

[18] In Children's Aid Society of London and Middlesex v. T.E., 2021 ONSC 788, the court also had the opportunity to consider what the "best interests of the child" means for the Indigenous child given the passage of the Federal Act. Tobin J. noted that the Federal Act's primary and paramount consideration is the best interests of children, which should permeate every stage of a child protection hearing: paras. 19-23. This concept of the "best interests of the child" must, however, include the principle of cultural continuity at s.9(2); the principle of substantive equality at s.9(3); best interests considerations of Indigenous children at s.10; and priority of placement at s.16 of the Federal Act: para. 17.

[19] In Simcoe Muskoka Child, Youth and Family Services v. S.H., 2022 ONSC 1868, Krause J. also considered the interpretation of the CYFSA in light of the principles set out in the Federal Act. As Justice Krause stated at para. 43:

[The Federal Act] is federal legislation specifically proclaimed to address the provision of services to Indigenous children and their families involved in the child welfare system. As federal legislation it has paramountcy over the CYFSA if the CYFSA is inconsistent with the [the Federal Act]. [The Federal Act] also applies if it addresses issues not covered in the CYFSA or is more robust. The CYFSA is not inconsistent with [the Federal Act]. However, the [Federal Act] has provisions that augment and are more robust than the provisions of the CYFSA. [emphasis added]

[20] These interpretive principles were also echoed by Madsen J. in Children's Aid Society of the Niagara Region v. S.S. and T.F., 2022 ONSC 744 at paras. 63-65:

[63] The Federal Act operates as minimum standard. See section 4. Where standards under the CYFSA surpass or exceed those in the Federal Act, the CYFSA will apply. Where standards set out in the Federal Act surpass or exceed those in the CYFSA, the Federal Act will apply.

[64] The duality of the legislative context applies to each and every aspect of the legal framework in this case: the applicable best interests standard; the assessment of services required and provided by the Society; the hierarchy of placement options and the assessment of competing plans of care; and the determination regarding the children's ongoing contact with family members. That these children are First Nations children is relevant and central to every part of the analysis, and cannot be merely an afterthought.

[65] Among the purposes of the Federal Act are to contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. The Federal Act is to be interpreted in accordance with the principle of the best interests of the child, the principle of cultural continuity, and that of substantive equality. Cultural continuity is seen as essential to the wellbeing of each child. The Federal Act recognizes that children's best interests are often promoted when a child lives with members of his or her family, and when the culture of the group to which the child belongs is respected; and, that services provided to a child and the family must be provided in a manner that does not contribute to cultural assimilation. Consideration of children's views and preferences in the decisions that affect them, without discrimination, comprises part of the concept of substantive equality. [Emphasis by Madsen J.]

[21] In other words, where there is ambiguity or inconsistency in the CYFSA, the court must interpret such ambiguity consistently with the principles set out in the Federal Act which, in turn, are aimed at ending the historic discrimination against First Nation, Inuit, and Métis peoples. This historic discrimination has been found to have led to disparate and negative child welfare outcomes and cultural assimilation. Of particular importance to this analysis is the Federal Act's definition of "best interests of the child," which prioritizes placement with family and community, the principle of cultural continuity, and the principle of substantive equality.

Section 122 Should Be Interpreted and Applied in a Liberal and Generous Manner

[22] Due to the remedial nature of the Federal Act and its paramountcy, s.122 must be interpreted in a manner that addresses the historic discrimination and negative child welfare harms faced by First Nation, Inuit, and Métis peoples. When applying the Federal Act's definition of "best interests of the child" and the principles of cultural continuity and substantive equality to s.122 of the CYFSA, it is clear that the provision should be interpreted in a large and liberal manner. In this particular case, a large and liberal interpretation of s.122 would permit the granting of an extension of time to enable the Society to explore a return of H.M. to her mother.

[23] In Windsor-Essex Children's Aid Society v. B.D., 2022 ONCJ 284, Vickerd J. set out the traditional test to consider for an extension of timelines under s.122(5), at para. 21:

1. The decision to extend must be made in accordance with the child's best interests.
2. The decision to extend must be viewed from the child's perspective.
3. The factors in subsection 74(3) of the CYFSA must be considered.
4. The court must be satisfied, balancing the factors set out in subsection 74(3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule "for the child's sake." [emphasis added]

[24] There are conflicting opinions as to how strictly s.122(5) should be interpreted. Some courts have adopted an inflexible approach to this section, suggesting that any extension of time pursuant to s.122(5) must be exercised only in "exceptional" cases. See e.g. CCAS v. N.B., 2010 ONSC 615. Others, like Vickerd J. in Windsor-Essex Children's Aid Society v. B.D., emphasize that there must be "unusual" circumstances. This is not the approach I would take, particularly when applied to First Nation, Inuit and Métis children.

[25] A remedial approach to interpreting s.122(5) must focus on whether the approach assists in achieving the overarching objectives of the Federal Act. Specifically, the question that must be asked is: "does the extension of time assist with the goal of ensuring that the First Nation, Inuit, and Métis child is placed with a parent, family, or community to the extent that it is consistent with the best interests of the child as set out in the Federal Act?" If the answer to this question is "yes", then the extension should be granted.

[26] Rather than seeing an extension of time as an "exceptional" circumstance for First Nation, Inuit, and Métis children, the realities of the impact of residential schools and Canada's assimilative policies, should be considered. As a result of generations of dislocation and isolation, many First Nation, Inuit, and Métis communities are fractured, with members dispersed all over Canada. Many communities have members who struggle every day with social problems such as poverty and addictions, brought on by generations of assimilative harm and discrimination. All of these harms take time to address. A strict adherence to the timelines set out in the CYFSA only work against First Nation, Inuit, and Métis communities, not for them.

[27] As stated by Wolfe J. in Kina Gbezhgomi Child and Family Services v. J.M., healing colonial trauma does not always follow a neat timeline, and as a result, court should not be rigid in its analysis of how much time has passed and how that may contribute to risk of harm. While Wolfe J. was speaking about the successful reunification of a child after a substantial number of years in someone else's care pursuant to a customary care agreement, this principle should be applicable to all other First Nation, Inuit, and Métis child welfare cases, including this one.

An Extension of Time Should Be Granted in This Case

[28] An extension of time in this case is consistent with the Federal Act's emphasis on cultural continuity and substantive equality. The Society requires time to reintegrate H.M. into B.M.'s care. This is the placement that most directly connects H.M. to her Métis heritage and culture. In addition, the principle of substantive equality means that a reintegration of mother and child should not be thwarted because of structural issues such as housing and poverty. The evidence provided is that B.M. is working well with the Society and working towards reunification. To allow timelines set out in the CYFSA to disrupt this process would be contrary to the principles expressed in the Federal Act.

[29] Finally, an extension of time is consistent with s.16(3) of the Federal Act which states that there must be ongoing reassessment as to whether it would be appropriate to place the children with the child's parents or family. In this case, this subsection is directly inconsistent with the timelines set out at s.122 and is therefore paramount. The Federal Act is clear that family unity takes priority, and that service providers have an obligation to assess family plans. The continued assessment of B.M. falls directly within this provision and the timelines cannot apply to make this obligation meaningless.

[30] For the reasons set out above, an extension of time of six months pursuant to s.122(5) of the CYFSA is granted.

Law J.

Released: August 26, 2025