JB v Ontario (Child and Youth Services), 2020 ONCA 198

Appeals dismissed. Although the performed hair follicle testing for suspected drug and alcohol abuse was flawed, and were used in child protection proceedings, it is plain and obvious that the appellants’ claims cannot succeed against the various Children’s Aid Societies and Ontario for failure to disclose a reasonable cause of action.

Indigenous Law Centre
Indigenous CaseWatch Blog

The Motherisk Drug Testing Laboratory [“MDTL”], housed in the Hospital for Sick Children [“SickKids”] in Toronto, performed hair follicle testing for suspected drug and alcohol abuse. These results were used in family and criminal cases as well as in child welfare investigations and proceedings. It became evident that some of the test results, used in child protection proceedings, were flawed. At issue in this appeal is the potential liability of various Children’s Aid Societies [collectively “CAS”], the Ontario government [“Ontario”] and certain named workers arising from the unreliable test results.

Family members of children who were the subject of protection proceedings, sued the CAS and Ontario for damages, as a result of the faulty test results, for negligence, negligent investigation and supervision, negligent and/or intentional infliction of mental distress, bad faith, breach of fiduciary duty of care, misfeasance in public office and breaches of s 7 of the Charter. Six of those claims are the subject of this appeal.

The motions judge determined that the family members’ claims disclosed no reasonable cause of action and were bound to fail, because the CAS owed a duty of care to the children, not to the parents or family members (Syl Apps Secure Treatment Centre v BD, 2007 SCC 38). While Ontario owes a duty to the public at large, there is no relationship of proximity that would ground a duty of care to the appellants in these cases.

The Court agrees with the decision of the motions judge that it is plain and obvious that the appellants’ claims against the CASs and against Ontario cannot succeed for failure to disclose a reasonable cause of action.

British Columbia (Child, Family and Community Service) v MJK, 2020 BCPC 39

Application dismissed. It is in the best interests of the child to remain in the custody of her foster parents than with her biological father, as she is connected to the biological mother’s First Nations cultures and is fluent in their language.

Indigenous Law Centre CaseWatch Blog

The Director of Child, Family & Community Service [“Director”] has a continuing custody order made by this Court for a 6 year old child. The biological father, applies to set aside that order. However, there is no application before the Court to appoint him or anyone else to be the child’s guardian, and it is not clear who would be.

A biological parent is a guardian if and only if the biological parent “regularly cared for the child” (Family Law Act). The father has never had day-to-day care of the child, and so is not her guardian. The father’s application was opposed by the biological mother. Sadly, however, she recently died of a drug overdose and was unable to participate in the hearing. As well, the Director opposes the application. Three First Nations participated in the hearing, the Homalco and Klahoose First Nations, of which the mother was a member, and the Wuikinuxv First Nation, of which the father is a member.

The Federal Statute recognizes and affirms the right of First Nations to enact their own laws in relation to child custody and protection. None of the Wuikinuxv, Klahoose and Homalco First Nations have exercised that right. On an application to set aside a continuing custody order, the issue is not whether the child is in need of protection. Rather, the issues are: 1) whether there has been a significant change in the relevant circumstances since the continuing custody order was made; and 2) if so, whether cancellation of the continuing custody order is in the child’s best interest (Director of Child, Family & Community Service v AI, 2005 BCPC 620).

The father has clearly made significant progress with his substance abuse and anger- management issues, however, there is always a risk of relapse with every recovering addict and there is a history of violent behaviours. The Court is not in a position to quantify the risk of future family violence initiated by the father, but it is considered to be a real risk, which should not be ignored. Each of the governing statutes emphasizes the importance of fostering the child’s connection to, and participation in, the cultures of the First Nations of which she is a member.

The child has been an active participant in the Klahoose and Homalco cultures since she was 13 months old. Those cultures are fully-integrated aspects of her day-to-day life. She is fluent in their common language, and knows many of the traditional songs and dances by which the cultures are transmitted from generation to generation. She visits often with her maternal grandfather, with whom she speaks the language and participates in cultural activities. She engages in traditional food-gathering and preserving activities as part of her day-to-day life. The statutes do not allow the Court to prefer father’s interests at the expense of the child’s. The Court is of the opinion that the child’s best interests are served by remaining in her present placement, and that the application should be dismissed for that reason.

RR v Vancouver Aboriginal Child and Family Services Society (No 4), 2020 BCHRT 22

West Coast LEAF’s application to intervene granted in part in a complaint of alleged discrimination, as it can contribute a unique and helpful perspective regarding the social context of Indigenous people in child welfare.

Indigenous Law Centre CaseWatch Blog

RR filed a complaint of discrimination against Vancouver Aboriginal Child and Family Services Society [“Society”] alleging that its decision to deny her custody and restrict access to her children amounts to discrimination on the basis of her race, ancestry, color, and mental disability. West Coast LEAF applied to intervene in the complaint under s 22.1 of the Human Rights Code [“Code”] stating it could assist the Tribunal to situate the complaint in its broader social context as well as interpreting both the Code and the Child, Family and Community Services Act in a manner consistent with the Charter and international law. RR supported the intervention, the Society opposed it.

Neither party raised issues related to Charter values, and in the view of the Tribunal, none arose in the complaint. Rather, this case involved an application of s 8 of the Code to the facts of this case, within a framework well known to human rights law and therefore the application to make submissions about Charter values was denied. Second, this complaint did not require the Tribunal to interpret s 8 or apply it in a novel circumstance and therefore that application was denied as well.

A different conclusion was reached for the remaining three proposed submissions. Based on the Tribunal specifically identifying the need to have full regard to the social context of Indigenous people in child welfare, the first two submissions concerned the social context underlying the complaint. West Coast LEAF had a unique and helpful perspective to bring to the Tribunal established through their demonstrable expertise in equality.

The application of West Coast LEAF to intervene was granted as follows: it had leave to make oral submissions during the opening, not to exceed 10 minutes; it had leave to file written submissions at the close of the hearing; the scope of the submissions was limited to the issues identified above; and it did not have standing to take part in any procedural matters before the Tribunal without leave.

MCW v BC (Director of Child, Family and Community Service), 2019 BCPC 289

An Indigenous mother’s application to restrict access visits organized by the Director with community members that are not the foster family is dismissed.

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The Director in this matter has applied for a continuing custody order [“CCO”] with respect to four children of Indigenous heritage, that were placed in the Director’s temporary care. The biological mother seeks to prohibit the Director from permitting persons that are related to the children and are connected to an Indigenous community, from having access to the children, for fear that the children may be traumatized now that they are used to their non-Indigenous foster family.

MCW is the biological mother of five children. All of her children’s lives have been subjected to temporary placement and interim orders, including orders of supervision while in the care of their mother intermittently. The foster parents of the four youngest children have remained supportive of the mother and have provided the children a loving environment. While the mother is supportive of transferring custody of her children to the foster parents, there has been resistance from the Lake Babine Nation, as they are opposed to Indigenous children being placed in non-Indigenous homes. The Ministry, along with assistance from the Lake Babine Nation, attempted to cultivate a relationship between one of the children and her half-sister. The mother described the removal of one of her children to spend time with the half-sister as traumatic, and feared the Ministry was attempting to break up the four youngest children. The Director submitted that facilitating visits between the two siblings did not constitute abuse or harm. Cultivating this connection is part of the Director’s obligation to maintain or facilitate contact with the extended family of a child in care.

Due to the contentions MCW had surrounding these proceedings, she filed an application for an order restricting access to the children. The mother relied on ss 2(a) and 98(1)(c) of the Child, Family and Community Service Act [“CFCSA”]. The Director referenced Bill C-92 to justify the CCO. Bill C-92 establishes that, when determining the best interests of an Indigenous child, primary consideration is given to the child’s physical, emotional and psychological safety, security and well-being and emphasizes Indigenous children’s right to stay with their families and communities and grow up immersed in their cultures.

Facilitating visits between the one child and her half-sister fell squarely within the Director’s legislated rights, duties and responsibilities as her custodian and guardian. While the visits got off to a rocky start, the submissions that the transitions were then trouble-free were accepted. The visits did not constitute the type of explosive, abusive, or intimidating conduct that s 98 of the CFCSA was intended to target. Accordingly, the mother’s application for an order restricting the access to her children was dismissed.

Nogdawindamin and AW, BS and BFN, 2020 ONSC 40

Appeal granted. Findings of Indigenous heritage requires more than a simple statement of self-identification from an applicant. The need for an evidentiary foundation of connection is a prerequisite for any finding under s 90 of the Child, Youth and Family Services Act.

Indigenous Law Centre – CaseWatch Blog

This is an appeal by the Batchewana First Nation [“Batchewana”] on an order of a motions judge that determined on an interim basis, whether a child in need of protection had an Indigenous background as per s 90 of the Child, Youth and Family Services Act [“Act”].

This Court agrees with Batchewana’s position that the motions judge erred when he decided that, based upon the evidence before him, the child in question had sufficient connection to Batchewana so as to be affiliated with the First Nation for purposes of the Act. Batchewana has not found a community connection of the child to the First Nation. The concern is that the motion judge’s decision could open the floodgates for any claimant to effectively acquire band status or other benefits.

There is considerable precedent to suggest that findings of Indigenous heritage require more than a simple statement from an applicant (Catholic Children’s Aid Society of Toronto v ST, [2019] OJ No 1783; Bruce Grey Child and Family Services v ABC, 2018 ONCJ 516; Children’s Aid Society of the Regional Municipality of Waterloo v CT, [2017] OJ No 6324 (ONCA); Children’s Aid Society of Ottawa v KF, 2015 ONSC 7580). Indigenous membership has expanded to include self-identification, however, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to them.

In this instance, the evidence relied upon by the motions judge does not meet the necessary threshold. The only evidence is the self-identification of the father, that is found to be insufficient evidence as per the case law. The need for an evidentiary foundation is a prerequisite for any finding under s 90 of the Act. Were this not the case, it is conceivable that numerous people coming before the courts could self-identify as a member of Batchewana, leaving the band with insufficient resources to assist those in need, which constitutes an error in law (Housen v Nikolaisen, 2002 SCC 33). Appeal granted. The matter is remitted to the Ontario Court of Justice for a new hearing.

FB v RB, 2019 ABPC 204

Application denied. Considering the history of the family, the grandparents of child are granted daily care. The child’s mother has restricted parenting time. The father is allowed no contact unless via a safe visitation facility.

Native Law Centre CaseWatch Blog

This action involved the guardianship and parenting of a child. The grandparents of the child obtained court orders for guardianship. The parents were granted a Parenting Order in 2016, giving them daily care of their child, all decision-making powers, and gave the mother parenting time with the child at the discretion of the grandparents. The mother, however, applied under s 34(2) of the Family Law Act [“Act”], to vary the 2016 Parenting Order, asking that the child be transitioned to her day to day care.

The issues before this Court was whether it had the jurisdiction to make a variation order of the 2016 Parenting Order. If so, what allocation of parenting time, guardianship powers, entitlements, and responsibilities were in the best interests of this child. S 34(3) of the Act determines that the Court can only make a variation order if there has been a material change in the needs or circumstances of a child since the making of a Parenting Order. Additionally, the Court can only consider the best interests of a child as set out in s 18 of the Act, as determined by reference to any change in a child’s needs or circumstances. An existing custody order may be varied on an interim basis in emergent circumstances, but it should not be lightly disturbed as stability and certainty are primary considerations for a child’s best interests (Carey v Hanlon, 2007 ABCA 391).

S 18(2)(b) provides a non-exhaustive list of the needs and circumstances of a child that the Court must consider. Accordingly, for s 34(3) of the Act, a change in the needs or circumstances of a child has occurred if there has been a material change in any of the needs or circumstances listed in s 18(2)(b). The Court determined that there was a material change in the needs or circumstances of the child in this matter concerning the ability and willingness of the mother to care and meet the needs of the child. There was, however, a pending criminal proceeding regarding an allegation of sexual assault against the father, which is a circumstance affecting the safety and well-being of the child, which was afforded greater weight.

Kawartha-Haliburton Children’s Aid Society v MW, 2019 ONCA 316

Appeal allowed. The Divisional Court erred by applying the wrong framework for access, including the special considerations for Indigenous children, and misstated the approach to summary judgement in child protection matters.

Native Law Centre Case Watch

The Applicant requests access to three of her children in extended care. Her children were apprehended in 2015 by the Respondent, Kawartha-Haliburton Children’s Aid Society, pursuant to the Child and Family Services Act, [“CFSA”]. The appropriateness of the extended care order is not disputed. The mother, however, did not agree to a no-access provision when she consented to a summary judgement motion for Crown wardship. The motion judge made the children Crown wards and denied the mother access to them. The mother appealed to the Divisional Court. By this time, the CFSA was about to be replaced with the new Child, Youth and Family Services Act, 2017 [“CYFSA”]. The major changes to the child protection legislation made pursuant to the CFYSA, such as the transition provisions of the new legislation, the new test for access to children in extended care, the special considerations for Indigenous children, and the proper approach to summary judgment in child protection matters are central to this appeal.

The transitional provisions of the CYFSA required that, at the date it came into force, all cases not “concluded” would be considered under the new Act. This court determines that the word “concluded” is to be taken in the ordinary sense of the word and a decision under reserve means the case is not concluded. Also, the children are First Nations as defined in the CYFSA. They and their family members identify as First Nation with the Curve Lake First Nation. In this matter, the transitional provisions of the CYFSA apply, so that the test for access was pursuant to the new Act that was to replace the CFSA. The criteria for access to children in extended care has been changed by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community. The record was insufficient to satisfy the new test pertaining to the children’s Indigenous heritage (Catholic Children’s Aid Society of Hamilton v GH, TV and Eastern Woodlands Metis of Nova Scotia, 2016 ONSC 6287 [“GH”]). The Act is remedial legislation and should be interpreted liberally especially for Indigenous children. By applying the transitional provisions to cases under reserve, thereby not “concluded”, these children would not be caught in a legislative void.

The CYFSA changed the considerations for access. The test for access to a Crown ward under the old Act was strict. The onus was on the person seeking access to establish that the relationship was meaningful and beneficial. There was a presumption against access and opportunities for adoption were prioritized over other considerations. Under the new Act, the court shall not make the access order unless it is satisfied that it is in the best interests of the child. It is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. The Divisional Court did not properly address the issue of the sufficiency of the record because it applied the old Act.

The Divisional Court also erred by misapplying the key principles regarding the use of summary judgment to the specific circumstances of child protection proceedings (Hryniak v Mauldin, 2014 SCC 7 [“Hryniak”]). Hryniak’s fairness principle requires that exceptional caution is needed for summary judgment in the child protection context by reviewing the Charter implications of child protection proceedings. Child protection litigation engages the Charter rights of both parents and children (New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46). The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. Women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings (G(J)). The cautious approach to summary judgment in child protection has long been recognized by lower courts and by this court (Children’s Aid Society of Halton (Region) v A (KL) (2006), 216 OAC 148).

The proper approach to summary judgment in child protection proceedings must exercise caution and apply the objectives of the CYFSA, including the expanded best interests of the child test. This court sets aside the motion judge’s order and refers this matter back to the Superior Court on an expedited basis to determine the question of access pursuant to the CYFSA.

NC v Kunuwanimano CFS and Fort Albany First Nation, 2019 CFSRB 7

The decision of the Respondent to refuse the adoption of three Indigenous children placed in the Applicant’s care is confirmed under s 192 of the Child, Youth and Family Services Act.

Native Law Centre Case Watch

The Applicant requested a review pursuant to s 192 of the Child, Youth and Family Services Act, [“Act”]. This application refers to a decision made in favour of the Respondent, Kunuwanimano Child and Family Services, [“KCFS”] who refused the Applicant’s application to adopt three children who were placed in her care for two years. The children were apprehended from the care of their parents by the North Eastern Ontario Child and Family Services and made Crown Wards without access for the purpose of adoption. The children’s mother, who is deceased, and their father have membership with the Fort Albany First Nation [“FAFN”]. The children’s files were transferred to the KCFS, an Indigenous child welfare agency and were subsequently placed in a foster home. After three years the foster home could no longer care for the children due to uncontrollable circumstances. The children were then placed in the care of the Applicant and remained in her care for almost two years until their abrupt removal.

The Child and Family Services Review Board’s [“CFSRB”] determination is made in accordance with the expanded definition of the test for the best interests of the child set out in s 179(2) of the Act. In addition to giving prominence to the child’s views and wishes, as well as the recognition of Indigenous cultures and connections to their community, the preamble of the Act also acknowledges that children are individuals with rights to be respected and voices to be heard.

SV, who is the most recent placement for the children, is a member of the Moose Cree First Nation and grew up alongside the children’s father. The evidence is clear that SV has strong connections to the children’s community and cultural heritage. Her practices are traditional in her home where the children are introduced to hunting and fishing and that this was consistent with a way of life, rather than simply an activity. She has taken significant measures to connect the children to their extended family with whom she is well acquainted.

In contrast, the Applicant has no significant ties to the children’s First Nations community or extended family. The Applicant knows very little about the cultural practices of the children’s Indigenous community, or the Illilu people. It was clear that she cares deeply for the children and wishes to adopt all three of them. Her evidence, supported by report cards and the agency’s own documents, was that they were well-cared for in her home and had developed a bond with her and her family. The views and wishes of the children also confirmed the strong bond that the children have with the Applicant. The abrupt removal of the children from her care was traumatic for her and also for the children.

The CFSRB, however, is also mindful of the view of family and community that is expressed by the FAFN and the emphasis on customary care alternatives for Indigenous children under the Act. It is also through the current placement that the children are reconnecting with their father, albeit not as a primary caregiver. While SV is not a direct relation to the children, it is clear that she has strong historical and current connections to the children’s extended family and is committed to facilitating their relationships with family as much as possible. The Applicant simply cannot offer the same commitment and ease of connection to family as SV.

Of considerable importance to our determination is the connection between the siblings. They have always been together and expressed a wish to remain that way. The CFSRB finds that to separate the Children at this time would not be in their best interests and along with all the above factors, favours confirmation of the Respondents’ position. The CFSRB, however, is also of the view the children were not given the opportunity to properly say good-bye to the Applicant and suggested that the KCFS facilitate an acknowledgement and contact to bring some finality to these unresolved feelings.

BC (Director of Child, Family and Community Services) v Beauchamp et al, 2019 NWTSC 19

Judicial review allowed. The Director did not receive the minimum notice of the custom adoption application of a Métis child. The decision of the Commissioner must be quashed and the certificate for adoption vacated.

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The Applicant, the British Columbia Director of Child, Family and Community Services [“Director”] has applied for a judicial review of the decision of the Respondent, Custom Adoption Commissioner Mary Beauchamp [“Commissioner”]. She issued a Custom Adoption Certificate [“Certificate”] that recognizes the adoption of a Métis child by the Respondents [“Foster Parents”] in accordance with Aboriginal customary law.

In 2013, a Métis child was apprehended the day after her birth by child protection authorities in British Columbia. She was placed in foster care of the pursuant to a family care home agreement they entered into with the Director. The Director was granted legal custody of the child through a continuing care order [“CCO”] dated July 6, 2015 by the BC Provincial Court. The Director has removed the child from the former Foster Parents care and placed her in an Ontario home to be with her biological siblings.

The Foster Parents submitted a petition to the court to adopt the child which was dismissed. A second petition was submitted asking for the same relief, but it was dismissed on the grounds of res judicata. Another petition was subsequently submitted, among various relief was adoption of the child, but also a reference to Aboriginal customary adoption. Again, the petition was dismissed as an abuse of process. The Foster Parents then submitted a fourth petition [“Petition #4”] but this submission was fundamentally different than the previous petitions. It stated that the child had already went through an Aboriginal customary adoption. It was dismissed as an abuse of process, but is now under appeal at the British Columbia Court of Appeal. That court presently has its decision on hold as it awaits the decision of this judicial review.

One of the Foster Parents is Métis and is a member of the British Columbia Métis Federation. Sometime after their former foster child was removed from their care, they moved to the Northwest Territories. They then met with the Commissioner who subsequently issued the Certificate recognizing that the child was adopted in accordance with Aboriginal customary law in 2013.

The Aboriginal Custom Adoption Recognition Act [“Act”] was enacted to recognize Aboriginal custom adoptions. The Act provides a process for individuals who have adopted a child in accordance with Aboriginal customary law to apply for a certificate recognizing the adoption. The certificate does not create an adoption but recognizes that an adoption has already taken place (Bruha v Bruha, 2009 NWTSC 44 [“Bruha”]). Custom adoption commissioners are appointed by the Minister on the basis that they already have knowledge and understanding of Aboriginal customary law in the community or region in which they reside. A custom adoption commissioner is simply recognizing that a custom adoption has taken place, however, the importance of the decision and the impact from it is significant. Once a commissioner is satisfied that the information required is complete and in order, a certificate is issued that a custom Aboriginal adoption has taken place. It is then filed with the court as a court order which permits the adoptive parent(s) to obtain a new birth certificate for the child. There is no appeal process provided under the Act. The decision of the custom adoption commissioner is final, subject only to judicial review (Bruha).

While the Act is intentionally vague about the process to be followed in recognizing an Aboriginal customary adoption, it does contemplate some form of notice. Given the implications of the decision of a custom adoption commissioner and the legitimate expectations of interested parties, the duty of procedural fairness requires, at a minimum, that interested parties receive notice of the application.

Custom adoption is a concept that has evolved over time and has adjusted to changing social conditions. There has been an evolution regarding who is involved in the process, who can adopt Aboriginal children, and how this process occurs (Kalaserk v Strickland, 1999 CanLII 6799 (NWTSC)). While the position of Director is created by the Child, Family and Community Service Act, she is the sole legal guardian as the CCO is still in place. The Director was an interested person and clearly entitled to notice of the application before the Commissioner. To allow the Certificate to stand would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. If the Certificate was allowed to continue it would result in an abuse of process and therefore must be vacated.

BC (Director of Child, Family and Community Services) v LM, 2019 ONCJ 205

Restraining order granted preventing the Respondents from contact with a child they claim to have customarily adopted. Decision as to other matters on reserve.

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The British Columbia Director of Child, Family and Community Services [“Director”], requested a restraining order against the Respondents [“Foster Parents”] pursuant to s 35 of the Children’s Law Reform Act. This interim and without prejudice order restrains the Foster Parents from communicating or coming near their former foster child, her school and any other place where the child may reasonably be expected to be. Further procedural relief was granted, including a sealing order and a publication ban.

On June 22, 2018, the Foster Parents became aware of the child’s school she was attending in Ontario. They approached the child in the playground and provided the issued credentials of their status as child protection representatives for the BC Métis Federation’s child protection service. The school staff went into lockdown and called the police. The child was traumatized from the experience, but the Foster Parents insisted they were not the source of the trauma and that the school overreacted. The Director has brought this application to the Court as a result from this event, but also the prior history involving the parties, as she is afraid the Foster Parents will attempt another apprehension.

When the child was born in 2013, she was removed from the care of her birth parents the day after her birth. She was then placed with the Foster Parents under a Family Home Care Agreement. Eventually a continuing custody order [“CCO”] was established on July 6, 2015. A CCO is analogous to an order of Crown Wardship in the province of Ontario, and conferred lawful custody of the child with the Director. It is deemed to be an order of the court and is enforceable as such. The Director has the authority to remove a child under the Child, Family and Community Service Act, if she has reasonable grounds to believe that the child needs protection and there is no other measure available. Since the Director removed the child from the Foster Parent’s care, the child has resided in Ontario in a non-Métis adoptive home with her biological sisters.

The Foster Parents brought three subsequent petitions since 2015 for the adoption of the child. The first one was dismissed, the second was also dismissed on the grounds of res judicata. The third petition sought various declarations, including another order to adopt the child, but had a reference to custom adoption as well as an order for certiorari quashing the transfer of the child to Ontario for adoption. On the denial of that application, the birth parents, the Foster Parents, and the BC Métis Federation, filed a fourth petition [“Petition #4”] for a declaration that the Foster Parents have already adopted the child by way of a custom adoption.

This application was inconsistent with the prior petitions advanced by the Foster Parents, considering there is recognition of custom adoption under s 46 of the Adoption Act. The Foster Parents claimed they were unaware until very recently that their actions constituted a valid Aboriginal custom adoption which could be recognized by the courts. The court, however, did not accept these submissions and determined Petition #4 was an abuse of process and should be struck.

On the appeal of AS v BC (Director of Child, Family and Community Services), new evidence disclosed that a custom adoption commissioner [“Commissioner”] in the Northwest Territories [“NWT”], pursuant to s 2 of the Aboriginal Custom Adoption Recognition Act, had issued a custom adoption certificate. It declared that the Foster Parents adopted the child by way of Aboriginal custom adoption in 2013 which is deemed to be an order of that court. Through this, the Foster Parents obtained pursuant to the Vital Statistics Act, a British Columbia birth certificate for the child listing them as her parents. The Director had no knowledge of the proceedings in the NWT or the issuance of the BC birth certificate and filed an originating notice for judicial review in the Supreme Court of the Northwest Territories [“NWT Supreme Court”].

The British Columbia Court of Appeal [“BCCA”] stayed the appeal of S(A) v BC (Director of Child, Family and Community Services) to await the judicial review decision of the NWT Supreme Court that is on reserve. In the meantime, there is an interim, without prejudice order prohibiting the use of the NWT custom adoption certificate or its associated documents such as the BC birth certificate, by any party to gain access or custody to the child.

To decide such matters in this application at this time, while the NWT Supreme Court’s decision, the BC Court of Appeal’s decision, and the ultimate fate of Petition #4 is unknown, would be inappropriate and an abuse of process. It undermines the credibility of the courts if a judicial tribunal hears the same evidence in a different trial on the same issues, as there is potential for conflicting results (Children’s Aid Society of Ottawa (City) v M(G)).

The Foster Parents have clearly demonstrated that they are not prepared to wait for their claims to be fully adjudicated in a court of law, and will resort to self-help remedies without notification to the courts. On a balance of probabilities, the Director has reasonable grounds to fear for the safety of the child in her lawful custody and is granted the restraining order. The order made is without prejudice to the Foster Parents right to seek its termination or to vary it once the decisions of the two other courts have been released and the fate of Petition #4 becomes known.