Court File and Parties
Court File No.: FC-22-00000035-0000 Date: 2025/11/21
WARNING
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(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 Children's Aid Society of the Regional Municipality of Waterloo, Applicant
– and –
R.C and J.C, Respondents
Counsel:
Diane Sousa, Counsel for the Applicant
Respondent R.C, Self-Represented Patrick Brohman, Counsel for the Respondent J.C
Office of the Children's Lawyer
Jean LeDrew Metcalfe, Counsel for Child H.C.
HEARD: July 2, 2025
The Honourable Justice F. Wood
Reasons for Judgment
[1] In January 2020, the Federal Government implemented An Act respecting First Nations, Inuit and Métis children, youth and families (S.C. 2019, c. 24) (the "Federal Act"), in response to its international obligations towards Indigenous Peoples and in response to the Truth and Reconciliation Commission. In 2017, the Ontario government overhauled its child protection legislation, and enacted the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (" CYFSA ").
[2] Together, these pieces of legislation recognize the historical and ongoing negative impact of policies and laws in Canada on Indigenous families. They represent a concerted and coordinated effort to remedy a legacy of racism which has resulted in the overrepresentation of Indigenous families in the child protection system, lasting intergenerational trauma and loss of cultural identity amongst Indigenous children taken into care.
[3] Significantly, in every Application brought under the CYFSA , the court is tasked with ascertaining whether the child is a first Nations, Inuk or Metis child before proceeding further. Such a recognition creates important obligation for child protection agencies and seeks to create a framework within which the child's cultural identity and heritage is honoured and protected. In this case, despite the age of this proceeding, that never occurred. That is the issue now before the court.
[4] The within Application concerns H.C., [name and birthdate redacted]. H has been in the care of the Children's Aid Society of the Regional Municipality of Waterloo (the "Society") since November 2022. For several months in 2022, he was in the care of R.B., with whom the Society now proposes to place him as kin caregiver. Otherwise, he has been in the care of foster parents. At the time of argument of this motion, H wished to remain in the care of the foster parents with whom he was residing at that time. The court has been advised by all parties, however, that those foster parents have since withdrawn, and H has been placed with another foster parent. Particulars are not known.
[5] The Office of the Children's Lawyer, on behalf of H, objects to his placement with R.B.
[6] When this motion first came before the court, it became apparent that the Society and the OCL were arguing based on conflicting understandings of H's Indigenous identity for the purposes of the governing legislation. The Society framed its argument pursuant to the CYFSA whereas the OCL relied on the Federal Act . As argument progressed, it became clear that there had never been a formal finding as required by the CYFSA , despite the age of the case. The matter was adjourned to allow for fulsome argument to be made on that point.
Facts
[7] H [name and birthdate redacted] . He has been in care since he was 3 years of age. In its original Application, the Society identified H as an Indigenous child. But no further investigation was done until May 2025. After further investigation, the Society provided the following history:
a. H's maternal family advised the Society that H may have Indigenous heritage, but a genealogy expert retained by the Society was unable to find any conclusive evidence of this;
b. No genealogy has been conducted on the paternal side, but H's biological father does not identify as Indigenous;
c. H has a half-sibling, D. D and his biological father self-identify as Indigenous. A finding that D is a First Nations child was made on based on his self-identification in these proceedings.
d. H has a half-sibling, A. A's biological father is a member of the Yellow Quill First Nation in Saskatchewan. It is not known whether A self-identifies as Indigenous.
e. H enjoys a close bond with D, and there is an existing order for twice-monthly access between the siblings to be facilitated by the Society.
[8] It is not disputed that neither of H's biological parents are able to care for him. The options available for H are either to be placed with R.B. or to continue in foster care. H's preference was to continue to live with D and R, who had been his foster parents for much of the period from November 2022 to May 2025.
[9] If the CYFSA applies, the court can order that H be placed in the Society's care but cannot order that he be placed with any particular foster parents. By contrast, if the Federal Act applies, the court has broader discretion with respect to placement orders.
Analysis
[10] Section 90(2) of the CYFSA requires a court to determine "whether the child is a First Nations, Inuk, or Metis child, and, if so, the child's bands and First Nations, Inuit or Metis communities" before it goes on to make any further orders. The Society and OCL agree on this point. They also agree that section 1 of Regulation 155/18 sets out the framework for the determination of whether a child falls within the CYFSA definition. They disagree about the proper approach to be taken in making that determination.
[11] 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 21of 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. (Ontario Regulation 155/18)
[12] In the circumstances of this case, the parties agree that neither (a) nor (b) apply. The Society argues that the court is able to make a determination about H's status as a First Nations child pursuant to sections 1(a) and (b) and that the analysis ends there. It argues that clause (c) only comes into play if there remains a question about the child's indigeneity after an assessment under clauses (a) and (b). The OCL, on the other hand, argues that the preferred approach once it has been determined that neither (a) nor (b) apply is to simply move to an assessment under clause (c).
[13] Both parties rely on CAS of Algoma v C.A., 2018 ONCJ and CCAS of Hamilton v M.P ., 2021 ONSC 6788 as supporting their positions. In Algoma , Justice Kukurin wrote at paragraph 43:
As determinations of whether L.A. is a First Nations child cannot be determined under clauses (a) or (b) of O. Reg 155/18, the court has to look for any information, firstly, that any relative or sibling of the child L.A. identifies as a First Nation person. There is such information.
[14] Read alone, that sentence appears to support the Society's position that resort is had to clause (c) only when there is uncertainty after an analysis of clauses (a) and (b). Reading the entire decision, however, it becomes clear that regardless of the language he used, Justice Kukurin found that L.A. did not meet the criteria of either of the first two arms of the definition.
[15] In CCAS of Hamilton v M.P. Justice Bale wrote at paragraph 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).
[16] As with Algoma , this clause on its face appears to support the Society's approach. The particular argument being made in this case, however, was not before Justice Bale.
[17] Two other decisions support the OCL's approach. In Children's Aid Society of the Regional Municipality of Waterloo v. C.E , et al., 2020 ONSC 6314 , Justice Walters was faced with a request to change a previous finding that a child was not a First Nations, Inuk or Métis child for the purposes of the CYFSA . In a very thorough decision, Walters J found that it was appropriate to vary a previous finding that a child was not Indigenous based upon new evidence that the child's aunt self-identified as Indigenous. She wrote:
[149] The threshold for a child to be found to be a First Nations child is low. A person related to the child need only demonstrate that they identify as a First Nations, Inuk or Métis person.
[18] The OCL also relies on Children's Aid Society of Toronto v. I.L ., 2023 ONCJ 213 . In that case, the court determined that it could only find the child to be a FNIM child pursuant to section 1(c), based upon the self-identification of the child's paternal grandmother.
[19] Both of the above decisions apply a broader, purposive approach to the interpretation of the Regulation. Such an interpretation is consistent with the approach taken by Justice Sherr in Catholic Children's Aid Society of Toronto v. S.T. and B.F ., 2019 ONCJ 207 in which he supported taking a broad view in determining if a child is a First Nations, Inuk or Métis child. As with Justice Walters, he found that the evidentiary threshold for such a finding should be low.
[20] A determination of whether a child should be found to be First Nations, Inuk or Métis must be made having regard to the overarching purpose of the legislation which is set out in its preamble and 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
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.
[21] Employing a broad view which focusses on inclusivity rather than exclusion, is consistent with the aims of the legislation. While many courts have quite rightly pointed to risks of lowering the evidentiary bar too low, the same risk does not apply to statutory interpretation. For example, in CCAS of Hamilton v M.P., Justice Bale noted that:
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.
[22] What her Honour was considering there, though, was what evidence was required to establish that a person's self-identification was adequate to make a finding of Indigenous identity under the CYFSA . Her concerns in that regard are valid. That, however, is not at issue here. None of the parties have called into question D's self-identification or that of his father. There is no dispute that D's self-identification is appropriate. The question here is one of statutory interpretation.
[23] The Society's interpretation of the Regulation is, in my view, contrary to the overarching purpose of the legislative amendments. Given the CYFSA's express recognition of the erasure of Indigenous identity by colonial systems, it would be ironic if the Regulation were read in a restrictive manner whereby a child could be denied an appropriate finding based on their parents' inability or unwillingness to make the appropriate identification, but where other family members do identify as First Nations, Inuk or Métis.
[24] Amendments to the CYFSA were made with the express intent of removing colonial definitions of who could and could not be considered Indigenous. There was a recognition both that previous definitions were imposed and often inappropriate and also that because of historic wrongs, proving Indigenous ancestry is often difficult.
[25] The question, then, is whether section 1(c)(i) applies to H. In Algoma , Justice Kukurin considered the definition of 'sibling' and concluded that it includes full siblings, half siblings and siblings by adoption.
[26] Adopting this definition, in CCAS of Hamilton v. M.P ., Justice Bale wrote that:
"Sibling relationships are often the most powerful and long-standing connections in a child's life; this is not simply as a result of their shared biology . . . Had the Legislature intended the court to more closely scrutinize the specific nature of the sibling relationship for the purpose of First Nations, Inuk, or Metis identification findings, there would have been specific direction to do so." (Paras. 65-66)
[27] CCAS of Hamilton v. M.P., et al involved similar circumstances as are present here. Although there was serious doubt about the mother's identification of the youngest child as Indigenous, the fact that two half siblings and their biological father self-identified as Indigenous was sufficient to make a finding with respect to the youngest child.
[28] Therefore, I find that H is a First Nations child for the purposes of the CYFSA and this child protection proceeding.
[29] There is currently no band or First Nations community identified for H.
Impact on Placement
[30] Having found that H is a First Nations child, the Federal Act is engaged. While the Federal Act and the CYFSA accord in many respects, section 16 of the Federal Act sets out a priority of placement in relation to First Nations, Inuk or Métis children. Specifically, priority of placement under section 16(1) of the Federal Act is to occur in the following order:
a. With one of the child's parents;
b. With another adult member of the child's family;
c. With an adult who belongs to the same Indigenous group, community or people as the child;
d. With an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or
e. With any other adult.
[31] Section 16(2) goes on to ensure that placement with or near members of the child's family must be considered. And section 17 also contains provisions intended to promote the child's connection with their family members.
[32] The OCL took the position when the motion was first before me, that these provisions, and case law that have interpreted them, allow for the court to make an order placing H with specific foster parents. The CYFSA does not contain similar provisions. Under that legislation, a court can place a child in the care of the Society, but specific placements remain in the discretion of the Society.
[33] Because the issue of H's identity as a First Nations child arose during argument of the temporary care and custody hearing, the interpretation of the Federal Act was not fully argued. Moreover, I have been advised that D and R are no longer able to care for H as his foster parents.
[34] Accordingly, it will be necessary for the TCCH to be returned, for further argument, on a date to be set with the Trial Coordinator. The parties are strongly encouraged to file updating affidavits which focus on the specific issue to be decided rather than a lengthy recitation of the entire chronology of the case.
[35] Orders to go:
H is found to be a First Nations child for the purposes of the CYFSA . There is no band for First Nations Community identified.
The Temporary Care and Custody Hearing is adjourned to December 1, 2025, for further argument.
F. Wood J.
Released: November 21, 2025