WARNING

The court hearing this matter direct that the following notice be attached to the file:

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.

Court File and Parties

Court File No.: FC-25-CP4

Date: 2026-02-11

Superior Court of Justice - Ontario

RE: Children's Aid Society of Ottawa, Applicant

AND: K.L.C. and B.C., Respondents

Before: The Honourable Mr. Justice Marc Smith

Counsel: Tara MacDougall, Counsel for the Applicant Kristen Robins and Michael Chun, Counsel for the Respondent KC

Heard: January 19, 2026

Reasons for Decision

M. SMITH J

Overview

[1] This hearing was focused on the issue of statutory findings, specifically, whether the children in this matter meet the definition of Indigenous under the Child, Youth and Family Services Act, S.O. 2017, c. 14, Sched. 1 ("CYFSA") and An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (the "Federal Act").

[2] Pursuant to s. 90(2)(b) of the CYFSA before determining whether the children are in need of protection, the court shall determine whether the children are First Nations, Inuit or Métis children and, if so, the children's bands and First Nations, Inuit or Métis communities.

[3] The Respondent mother takes the position that the children meet the definition of being Indigenous under both the CYFSA and the Federal Act.

[4] The Children's Aid Society of Ottawa (the "Society") agree that the children meet the definition under the CYFSA, and it does not take a position on the Federal Act application.

[5] For reasons that follow, I conclude that the children meet the definition of being Indigenous under both the CYFSA and Federal Act.

Brief Facts

[6] The family consists of the Respondent mother, K.L.C., the father, B.C., and five children: A.C. (age 9), M.C. (age 6), E.C. (age 2), and twins J & J (age 1).

[7] B.C. is A.C.'s birth father but has never been involved in his life. He is ethnically Jamaican.

[8] D.S. (now deceased) was M.C.'s birth father.

[9] D.S. regarded A.C. as his own son, and A.C.'s full legal name reflects this by including D.S.'s family name.

[10] The fathers of E.C. and the twins J & J are unknown.

[11] The Respondent mother grew up identifying as First Nations. Since childhood, she was told by her mother that she was Indigenous and that her birth father was Cherokee. She has little knowledge of her birth father. She was raised by her non‑Indigenous maternal grandfather, who did not assist her in exploring her heritage. To her knowledge, she is not a member of any band or Indigenous community.

[12] The Society has accepted and respected the Respondent mother's self-identification and has provided culturally appropriate services, ensuring that she is connected to those services in Ottawa.

[13] Over the past several years, the Respondent mother and her children have been welcomed into and involved with the Indigenous community. They have participated in cultural activities, including pow wows and other Indigenous events, and they receive services and supports from multiple Indigenous organizations, such as the Odawa Native Friendship Centre, The Ontario Native Women's Association, the Makonsag Indigenous-Led Child Care, the Odawa Native Friendship Centre's Sweetgrass daycare program, and its Healthy Babies Healthy Children program.

[14] D.S. was of First Nation and Métis ancestry. His mother, L.B., and his aunt, A.B., have confirmed and explained their Indigenous heritage and have provided historical documentation, including Métis Ancestor's genealogical charts, death certificates, a membership card of the East Coast First People's Alliance, a Certificate of Aboriginal Status, and an 1861 Canadian Census record tracing their family lineage over several generations, beginning with the parents of L.B. and A.B.

Legal Principles

[15] The definition of a First Nations, Inuk or Métis child is contained in s. 1 of O. Reg. 155/18, under the CYFSA.

[16] The evidentiary threshold for determining whether a child is First Nations, Inuit or Métis is low, and the court must adopt a broad approach in making this finding. However, there must be an evidentiary foundation to make that finding: Catholic Children's Aid Society of Toronto v. S.T., 2019 ONCJ 207, at paras. 35, 37 and 38.

[17] The evidentiary foundation required in these circumstances was recently addressed in Children's Aid Society of Ottawa v. K.L.C., 2025 ONSC 6581, a decision involving the same family in the context of a temporary care and custody motion. In that case, MacEachern J. provides a helpful and succinct summary of the governing principles at para. 27.

27 Several decisions have considered the evidentiary basis for findings under s.90(2) of the CYFSA that a child is First Nations, Inuit or Métis [see Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516; CAS v. C.E., M.E., N.C., L.B. and T.B, 2020 ONSC 6314; Catholic Children's Aid Society of Toronto v. S.T., 2019 ONCJ 207; CCAS v. M.P. et al., 2021 ONSC 6788], summarized as follows:

a. There must be an evidentiary basis for the finding.

b. The evidentiary basis for the finding can be:

    i. that the child identifies as a First Nation, Inuk or Métis child or a parent identifies the child as a First Nations, Inuk or Métis child (O. Reg. 155/18 ss. 1(a)) or

    ii. that the child is a member of or identifies with a band or community (O. Reg. 155/18 ss.(b)) or

    iii. if it cannot be determined under (a) or (b) but "there is information that demonstrates that" a relative or sibling identifies as a First Nations, Inuk or Métis person or the child has a connection with a band or community (O. Reg.155/18 ss. 1(c)).

c. Evidence of self-identification must include evidence that supports that self-identification has been made in good faith and that there is a reasonable basis for the self-identification.

d. The court is to take a broad view in interpreting if a child is First Nations, Inuk or Métis. This is an approach consistent with the statements made in both the preamble and the purposes section of the CYFSA.

e. The purpose of the finding must be taken into account when determining the appropriate evidentiary basis to be met. For most purposes under the CYFSA, the evidentiary basis will be low, but it must be reliable and credible.

f. Concepts of identity are not static and may change and evolve over time based on many factors.

g. Several courts have held that a suggestion or casual assertion of a possible connection to an unidentified community is not enough to meet the test under the CYFSA. More evidence is required to assess the reasonableness of the self-identification as Indigenous. What will be considered a reasonable basis for self-identification will be unique to the circumstances of each case.

h. A hearing, with oral evidence and cross-examination, may be required for a court to make a final order of statutory findings under s.90(2) of the CYFSA.

[18] Section 1 of the Federal Act states that "Indigenous peoples had the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982."

[19] Section 35(1) of the Constitution Act, 1982, states that "In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada."

[20] In 2003, the Supreme Court of Canada recognized the constitutional protection of the Métis community and their harvesting rights under s. 35(1) of the Constitution Act, 1982. The Court articulated criteria for determining whether an individual is a proper member of a Métis community for the purpose of asserting Métis rights. These criteria include: (i) self-identification should be long standing and not adopted solely to claim rights or benefits; (ii) ancestral connection to a historic Métis community, whether through birth, adoption, or other means; (iii) acceptance by the contemporary Métis community, shown through factors such as community involvement, recognition by Métis organizations, etc.: R. v. Powley, 2003 SCC 43 at paras. 31 to 33.

[21] Some courts have considered the Powley criteria in the child protection context. In Children's Aid Society of Ottawa v. K.L.C., at paras. 32 and 33, MacEachern J. concluded that the Federal Act establishes a somewhat more stringent threshold for statutory findings than the CYFSA. She concluded that the appropriate test to be applied under the Federal Act is as follows:

a. There must be an evidentiary basis for the finding.

b. There must be evidence of self-identification, similar to that required under the CYFSA, including evidence that supports the self-identification has been made in good faith and that there is a reasonable basis for the self-identification.

c. There must be evidence of ancestral connection to a historic Indigenous community, by birth, adoption or other means.

d. Evidence of being accepted by a modern Indigenous community with a demonstrable ancestral connection to the historic community may be a relevant factor supporting a finding that a child is Indigenous. Still, the absence of this connection is not fatal to such a finding.

e. In keeping with the purpose of the Act, the evidentiary basis required to meet the test is low but must be reliable and credible.

f. The factors to establish that a child is Indigenous will vary from case to case, taking into consideration all of the circumstances of the child, including the impact that colonial policies have had on disconnecting the child from their communities, culture and families.

[22] Other courts have found it inappropriate to bring the Powley criteria into child protection cases. In British Columbia (Child, Family and Community Service) v. W. and H., 2022 BCPC 2016, at para. 60, the court declined to apply the Powley criteria in child protection proceedings because it "would increase inequities, further disadvantage Indigenous children and families, hinder reconciliation, and drive a further wedge between Indigenous persons and their ability to stay connected with their Indigenous heritage, a right we now recognize."

Analysis

[23] I was urged by the Respondent mother to find that a determination of Indigenous identity under the CYFSA should automatically result in finding an Indigenous identity under the Federal Act as well.

[24] I disagree.

[25] While it is logical to adopt a similar and broader approach to determining Indigenous identity given that both the provincial and federal statutes share common themes, such as affirming their commitment to reconciliation and recognizing the historical and ongoing harmful impacts of Canadian laws and policies on Indigenous families, the two legislative schemes nonetheless remain distinct in important ways.

[26] The distinction was clearly and accurately articulated by MacEachern J. in Children's Aid Society of Ottawa v. K.L.C., at paras. 28 to 32, which I summarize as follows:

i. The Federal Act does not specify what constitutes an Indigenous child. Rather, it adopts the meaning of Indigenous peoples as set out in s. 35(2) of the Constitution Act, 1982. This constitutional framework, interpreted by the Powley decision, rests on self-identification, ancestral connections, and community acceptance.

ii. The CYFSA, through O. Reg. 155/18, ties the definition of Indigenous child to self-identification, and relative/sibling connection.

iii. The Federal Act reflects a significantly stronger connection to s. 35 of the Constitution Act, 1982, than the CYFSA. This is evident in its reliance on the constitutional definition of Indigenous peoples, its overreaching purposes of affirming Indigenous communities' jurisdiction over child and family services, and its commitment to implementing aspects of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law.

[27] I would add that the rights afforded under s. 35 of the Constitution Act, 1982 are collective rights, not to individuals in isolation. These rights must be community anchored.

[28] Therefore, I concur with the reasoning of MacEachern J. that the CYFSA and the Federal Act establish different tests for determining whether a child is First Nations, Inuit or Métis. While each call for a relatively low evidentiary threshold, the Federal Act is more stringent.

[29] With respect to the evidentiary requirement when determining whether a child is First Nations, Inuit or Métis under either the CYFSA or the Federal Act, the standard is the same: the determination must rest on a reliable and credible evidentiary foundation.

Statutory findings under the CYFSA

[30] The Society concedes that the children meet the definition of Indigenous under the CYFSA, due to the Respondent mother's self-identification as well as M.C.'s paternal heritage.

[31] Based on the evidentiary record before me, I conclude that the Respondent mother's self-identification has been made in good faith and for no improper purposes.

[32] Therefore, I find that the children are Indigenous within the scope of the CYFSA and this child protection proceeding.

Statutory findings under the Federal Act

[33] Based on the circumstances of this case, I am satisfied that there is an evidentiary basis for finding that the children meet the definition of Indigenous under the Federal Act.

Self-identification

[34] The Respondent mother self-identifies as being an Indigenous woman since childhood. She explains that given the unfortunate circumstances of her childhood, including that she has never known her father and was raised primarily by her maternal grandfather because her biological parents faced challenges that prevented them from caring for her, this is the extent of the information she is able to provide regarding her Indigenous ancestry.

[35] Despite being unable to provide the court with further particulars, which is through no fault of her own, the Respondent mother has always understood herself to be Indigenous through her father and she firmly believes that she has an ancestral connection.

[36] The timing of the Respondent mother's self-identification is of no concern. I find that she been self-identifying long before her legal indigeneity has become an issue in this children protection proceeding.

Ancestral connection

[37] There is no uncertainty with respect to M.C.'s ancestral connection:

i. M.C.'s father, D.S. had both First Nation and Métis heritage.

ii. Because of D.S.'s death, his indigeneity has come from his mother, L.B., and his aunt, A.B. They have done and presented extensive research about their family tree and background, supported by historical records.

iii. The documentary evidence that speaks to D.S.'s indigeneity includes, amongst others, a document from Canada Census from 1861 identifying his relatives as "Native", Métis Ancestor's genealogical charts, death certificate of L.B. and A.B.'s great great great great grandfather identified as Micmac, and A.B.'s Canadian Métis Counsel Card.

iv. L.B. and A.B.'s research efforts reveal that in D.S.'s family, there is an ancestral connection to persons who identify as First Nation (Micmac) and Métis.

[38] In terms of the other children, their ancestral connection flows in the following manner:

i. A.C.'s connection to D.S. because of the role that he played in the child's life.

ii. The indigeneity of A.C., E.C. and the twins J & J flows through their mother who has First Nation heritage as well as their sibling M.C. who has a clearly established Indigenous lineage.

[39] In sum, I find that the children's ancestral connection to an Indigenous community has been established.

Acceptance by an Indigenous community

[40] I find that the Respondent mother's uncontroverted evidence confirms an acceptance by the modern Indigenous community.

[41] I accept the Respondent mother's evidence that she and her family have, for several years, been accepted within and engaged with the modern Indigenous community. As noted earlier, during this time, they have regularly participated in Indigenous activities and cultural events.

[42] The Respondent mother has established community relationships through the use and support of Indigenous community services. They participate in the following Indigenous programming and services:

i. E.C. has been enrolled in the Odawa Native Friendship Centre's Sweetgrass daycare program since September 2025.

ii. The twins J & J are enrolled in the Makonsag Indigenous-Led Child Care program.

iii. The Respondent mother has received support from the Odawa Native Friendship Centre's Healthy Babies Healthy Children program to assist her in learning about the children's care and their nutrition.

iv. The Respondent mother, E.C. and the twins J & J attend drop-in programs at the Odawa Native Friendship Centre.

v. The Respondent mother attends weekly meetings with a worker at the Ontario Native Women's Association.

[43] While additional evidence directly from her Indigenous community would have been preferable, I do not believe that it is fatal nor necessary in this case because I have no reason to doubt the Respondent mother's evidence, which I accept without hesitation.

[44] In my view, the evidence clearly establishes that the Respondent mother and her children are connected to, and have been accepted by, the modern Indigenous community in Ottawa. The Respondent mother has actively strengthened and maintained her Indigenous heritage by engaging with multiple Indigenous‑based organizations, participating in culturally grounded programs, and regularly attending community events and activities. Her sustained involvement demonstrates a meaningful and substantive connection to a modern Indigenous community. I am satisfied that she has a real, ongoing, and culturally rooted relationship with the Indigenous community in Ottawa.

[45] Therefore, the children meet the definition of Indigenous under the Federal Act.

Disposition

[46] For these reasons, I conclude that the children meet the definition of being Indigenous under both the CYFSA and Federal Act.

M. Smith J

Released: February 11, 2026