Alberta (CYFEA, Director) v NL, 2020 ABPC 118

This is a decision with respect to ordering costs against the Director of child and family services in Alberta, which is relatively unusual and difficult to obtain. While it is not per se an “Aboriginal law” case, the Court considered the overrepresentation of Indigenous children in protection as a factor in favour of issuing an order for costs under s. 24(1) of the Charter

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A Permanent Guardianship Order was determined as not warranted for a child apprehended by the Director of child and family services in Alberta. The Court orders the child to be returned to the mother [“NL”] over a period of three months pursuant to a Supervision Order. This was necessary because the child had been in the custody of the Director for a period of almost 2 years, and not because of any concern about the mother’s ability to care for the child. Counsel for the mother asks the Court for costs against the Director.

As background, concerns were enough for the Director to properly apply for an apprehension order in 2017 due to numerous medical difficulties that caused concern for health and medical professionals. As well, NL at the time did not seem to be taking the appropriate measures that were suggested. Although there had been previous concerns with respect to NL’s care of her other children in the past, none of the children had been apprehended and issues with respect to drinking, partnership issues and so on, always seem to be resolved and did not appear to be an insurmountable situation. Another issue regarding NL’s care for the child was that medical appointments were located in Red Deer, approximately one hour away from her residence by car. NL does not have a car or driver’s license.

There does not appear to have been any investigation into whether NL was suffering from postpartum depression or at least the anxiety brought on by having the child’s medical problems added on to the fact that she was caring for another child, age three, who had her own medical difficulties. It appears that the medical and psychological experts assumed that what they termed as NL’s passivity or lack of affect, was a personality defect rather than a situational reaction to the stressful situation she found herself in.

The foster mother gave evidence to the child’s present circumstances. She has been the foster parent for the child since he was apprehended at approximately four months of age. The child is a typical energetic, curious, active two-year-old and does not appear to have any difficulty eating, sleeping or anything else out of the ordinary. She is regularly in contact with NL and they share information on the child’s progress and any changes that are necessary with respect to his sleeping eating or activity patterns. This evidence exposes the Director’s evidence as being out of date, yet still having been used to pursue a permanent guardianship order. There was also no evidence before the Court of the child having FASD, nor did the Director provide any evidence that this concern was pursued at all since apprehension.

Effectively nothing was done with respect to re-uniting this family during the whole time the chlid was in care. This is in direct conflict with the Director’s mandated obligations under the CYFEA. Medical information should have been updated to show the child was still in need or the child should have been returned to the mother.

The difficulty in dealing with the question of costs in child protection matters is that there are a number of cases both in Provincial Court and The Court of Queen’s Bench which take differing views with respect to the Provincial Court’s jurisdiction to award costs against the Director in a child protection matter. One may assume that costs is not an issue for child protection litigants because through Legal Aid they get “free” lawyers. This is not actually the case in Alberta as new clients are required to sign documentation acknowledging that they will repay any amounts billed by counsel, prior to counsel taking on their matter. This Court can see no reason why child protection litigants, a significantly large proportion of whom are Indigenous women and men, should be denied court costs in instances of the Director’s failure to carry out its mandate under the CYFEA.

Having found that there is conflicting case law; and having found that the CYFEA remains silent with respect to this issue and thereby creating an apparent conflict; the Court finds that the Respondent’s rights ensured by the Charter pursuant to section 7 and 15 have been infringed or denied. This in turn leads to the Court to considering an appropriate remedy. Section 24 of the Charter states “(1) Anyone whose rights or freedom’s, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. The Court finds that the appropriate remedy for the respondent in this case is an award of damages against the Director in an amount equal to the legal fees the Respondent is required to repay to Legal Aid Alberta.

RF v Kina Gbezhgomi Child and Family Services, 2020 ONCJ 366

Counsel for a foster parent in a child protection matter was removed from the record based on his prior representation of the child protection agency respondent. The Court took into account the overall negative relationship between Indigenous peoples and the justice system in relation to the need to respect an Indigenous person’s choice of counsel, but held that intervention is necessary in clear cases of conflict in order to mitigate this crisis of confidence. 

Indigenous Law Centre – CaseWatch Blog

An Anishinaabe child [“NLJ”], a registered band member of Wiikwemkoong Unceded Territory [“Wiikwemkoong”], was removed at birth from the care of her parents by the Children’s Aid Society of Oxford County [“CAS”] and a protection application commenced. The child has significant physical needs that require specialized care both at home and at school. NLJ was placed with the applicant [“RF”] on this protection application proceeding, and who was, at that time, a recognized foster home and the placement was monitored by the CAS. The file was ultimately transferred to Kina Gbezhgomi Child and Family Services [“KGCFS”] and the applicant continued to provide a foster placement for NLJ.

NLJ was made a crown ward under the Child and Family Services Act and remained in RF’s care. Wiikwemkoong passed a Band Council Resolution which provided that NLJ remain in the home of RF pursuant to a Customary Care Agreement. Wiikwemkoong and KGCFS have a “Joint Protocol” [“Protocol”] with respect to the provision of child protection services, which includes Customary Care. The Protocol outlines the relationship between Wiikwemkoong and KGCFS and their inherent right to be involved in decision making on child protection issues.

Mr. Parisé was the primary lawyer retained by the respondent society, KGCFS, for child protection matters when the Customary Care Agreement was finalized. Because of the Protocol, KGCFS is necessarily a party to that agreement. In 2016, the Crown Wardship Order was terminated following a status review application commenced by KGCFS. The existence of the Customary Care Agreement was the basis for the application. Of note, Mr. Parisé was counsel for KGCFS at the time and counsel of record in that proceeding.

The child remained in the home of RF under this Agreement until 2019 when NLJ was removed by KGCFS and placed in another customary care home. The Customary Care Agreement between KF, Wiikwemkoong, KGCFS, and the biological parents of NLJ was terminated sometime thereafter. It was at this time that Mr. Parisé started acting as counsel of record for RF. Mr. Parisé represented RF who filed a status review which was ultimately dismissed without prejudice to the applicant bringing an application under s 81(4) of the Child, Youth and Family Services Act [“CYFSA”]. RF then filed a protection application. KGCFS brought a motion to remove Mr. Parisé as counsel of record a month later, which was the first time the issue of potential conflict was raised with the Court.

On March 16, 2020, the Office of the Chief Justice released a Notice to the Public ordering the suspension of normal court operations in light of the COVID-19 pandemic. As a result, RF’s application was adjourned, and with it, KGCFS’s motion. Subsequently, the Customary Care placement was revoked when the respondent mother withdrew her consent but did not seek custody at that time. NLJ no longer had a customary care placement and KGCFS commenced their own protection application without naming RF as a party. After dealing with the initial removal to a place of safety, the court remanded both matters to the same date to be spoken to in order to deal with jurisdictional issues arising out of the fact that there are now two separate child protection applications dealing with the same child, and which do not have all the same parties. The parties on both applications agreed that this motion would need to be heard first before other substantive issues could be addressed.

The jurisdiction to remove counsel is found in the inherent right of the court to determine “to whom it will give an audience” and that the threshold for court intervention should be high (Windsor-Essex Children’s Aid Society v BD, 2013 ONCJ 43). The test that the courts have developed for determining if counsel should be removed is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur (MacDonald Estate v Martin, [1990] 3 SCR 1235 [“MacDonald”]).

Counsel of choice is a foundational principle in the Canadian justice system. It is well established that a litigant should not be deprived of their counsel of choice without good cause. However, this principle is not absolute. The issue in this motion is whether a lawyer who acted on behalf of a society on a child protection file can now represent one of the other parties in a subsequent protection application. The Court determines in this case, that the conflict is one which should disqualify the lawyer from continuing to act on the matter and the lawyer be removed from the record. The courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.

JE and KE v Children’s Aid Society of the Niagara Region, 2020 ONSC 4239

Application for judicial review allowed. The Board’s conclusion to deny adoption by the Applicants was unreasonable. The best interests of the Child, who is identified as Métis, require that she not be uprooted from the only family she has ever known.

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Indigenous CaseWatch Blog

This is a successful application for judicial review from the Child and Family Services Review Board in Ontario [“Board”]. The three year old child in question [“Child”], upon her birth, was apprehended almost immediately by the Children’s Aid Society of the Niagara Region [“the Society”] and she was placed with approved foster parents, KE and JE [“the Applicants”]. KE and JE applied to the Society to adopt the child. DC-G and MG [“the Respondents”] also applied to adopt the Child. Neither family had any biological relationship to the Child although DC-G and MG had previously adopted two of the biological mother’s seven children by different fathers.

The Society’s investigation of the biological father raised the possibility that his paternal grandmother had been associated with Québec Métis. On further enquiry, the paternal grandmother advised the Society that she believed her father had “Indian blood” but this had never been confirmed and her parents were dead.

The Society approved the application of JE and KE and declined the application of DC-G and MG. The Society regarded the continuity of care and averting the risk of harm from disruption by moving the Child to another family, when there were no care-based reasons for doing so, as the dominant and overriding considerations in this case. DC-G and MG brought proceedings before the Board seeking to review the Society’s decision. The Board reversed the Society’s decision and directed the Society to place the child for adoption with DC-G and MG.

The Applicants are white, live in Ontario and are members of a Mennonite Brethren church community. The Respondents are also white, live in Ontario and are members of the Roman Catholic church. Neither faith has a particularly open or positive attitude toward LGBTQ issues, although both sets of parents applying to adopt the Child were clear that they would love and support the Child regardless of her eventual sexual or gender preferences.

It is obvious, given the evidence, that the Child would, as submitted by the Society, wish to remain with the only parents and family she had ever known rather than be uprooted and sent to live with strangers. While the weight to be given to this view would have been up to the Board, it was unreasonable not to consider the Child’s view at all. There was uncontested evidence before the Board that the Child had, over the course of three years living with the Applicants, developed a strong bond with the Applicants, their seven year-old son and the Applicants’ extended family. It was also uncontested that the Child had never met, or knew of the existence of, the Respondents or their adopted children. The Respondents suggested an openness to maintaining a relationship with the foster sibling, but there was evidence of openness on the Applicants part to maintain a relationship with the Child’s half-siblings also, which was not considered.

The Board belittled the Applicants’ efforts to learn about Métis culture as doing the “bare minimum,” but ignored the fact that the Respondents, on the evidence, had done effectively nothing prior to the hearing to learn anything about Métis traditions. In contrast, the Board relied exclusively on the Respondents’ prior involvement with Algonquin culture regarding one of their already adopted children. But, the burden of the Act is to recognize the distinct heritage and culture of Aboriginal peoples. First Nations, Inuit and Métis people are distinct peoples and the Board’s decision failed to recognize this (LE v Simcoe Muskoka Child Youth and Family Services (CFSYA s 192), 2019 CFSRB 86). As well, the Respondents’ education and adoption of Algonquin culture appears to have been developed over time after they had adopted their Algonquin-affiliated child. The Board, in taking the approach it did, held the Applicants to a standard that, by its own terms, was not met by the Respondents.

This Court found that the Board put too much emphasis on one couple’s past support of an Algonquin child that they had adopted. This was seen as “super-weighting” the relevance of Indigenous identity to adoption, which the Court found to be an inappropriate interpretation of Ontario’s current legislation (amended in 2017). It also bears emphasizing, given the Board’s approach to this case, that these mandatory and discretionary factors are not just abstract concepts; the extent of their applicability in a particular case must be rooted in an assessment of the evidence. They also noted that this was relatively unrelated to the alleged Quebec Métis heritage of the Child since the new legislation requires a distinction-based approach.

Laliberte v Day, 2020 FCA 119

Appeal dismissed. The motion judge made no reviewable error in granting the carriage of a proposed class proceeding to a representative plaintiff on behalf of Métis and Non-Status Indian groups affected by the Sixties Scoop.

Indigenous Law Centre – CaseWatch Blog

The Sixties Scoop was a federal program under which Status Indian, Inuit, Métis, and Non-Status Indian children were taken from their parents and placed in non-Indigenous foster homes or put up for adoption. This appeal concerned the carriage of a proposed class proceeding on behalf of Métis and Non-Status Indians affected by the Sixties Scoop. In the settlement of the Sixties Scoop litigation approved in Riddle v Canada, 2018 FC 901, and Brown v Canada (AG), 2018 ONSC 3429, Status Indian and Inuit Sixties Scoop survivors were only included.

Two motions were brought and heard together in the Federal Court seeking carriage. One motion sought carriage for a proposed representative plaintiff in Day v AG of Canada, represented by two law firms based in Toronto [“Day action”]. In the order under appeal, the Federal Court granted carriage to the plaintiff in the Day action, and stayed the other three actions [collectively as the “LMO action”]. The order was the first contested carriage order issued by the Federal Court. Counsel for the LMO action submit that the motion judge committed both errors of law and palpable and overriding errors of fact in granting carriage to the plaintiff in the Day action.

The motion judge found Mr. Day to be a better representative plaintiff because he reflected the type of circumstances and damage that is common to both the Métis and Non-Status Indian groups and was a textbook claimant and a mirror for both Indigenous components of the litigation. Counsel for the LMO action submits that the motion judge’s treatment of this factor amounted instead to imposing a requirement that the representative plaintiff be typical of the class (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46).

The Court does not agree that in going on to consider Mr. Day’s circumstances and the nature of the damage that he claims, the motion judge improperly imposed a typicality requirement. The motion judge instead treated the dispute as one that would be litigated to its conclusion, and recognized that Mr. Day personified some of the worst consequences of the Sixties Scoop. His circumstances and the damage he claims was an advantageous platform for a claim on behalf of the class.

The factors that may be considered in a carriage motion are not ends in themselves. Rather, they are means of assisting the court, in the unique context of each case, to determine the best interests of the class (Mancinelli v Barrick Gold Corporation, 2016 ONCA 571; Strohmaier v KS, 2019 BCCA 388; and McSherry v Zimmer GMBH, 2012 ONSC 4113). Not only are these factors not exhaustive; they are also not watertight compartments (Quenneville v Audi AG, 2018 ONSC 1530; Winder v Marriott International Inc, 2019 ONSC 5766; and Rogers v Aphria Inc, 2019 ONSC 3698).

One of the comparisons the motion judge drew was between the litigation experience of the two sets of counsel. He found that both have extensive class action experience, both have experience in the Sixties Scoop and residential schools class actions, and both have experience acting for Métis people, but counsel in the Day action have experience acting for Non-Status Indians as well.

The motion judge saw as leap-frogging the addition of Non-Status Indians to the class definition in the LMO action after the carriage motions had been scheduled. In the carriage motion context, “leap-frogging” refers to an attempt by one contender for carriage to improve its position after the motion has been scheduled by taking the benefit of the work of another contender; for example, by a copycat amendment to pleadings (Mancinelli et al v Barrick Gold Corporation et al, 2015 ONSC 2717, affirmed 2016 ONCA 571 [“Mancinelli”]). A rule has been rejected that carriage motions be decided based on a “freeze frame” as of the date the motion is filed, however, the court should be suspicious of conspicuous new activity after the filing of a carriage motion or of any attempts to ‘leapfrog’ a lagging action ahead of a more advanced one (Mancinelli).

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.

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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.

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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.

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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.