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Indigenous - First Nations, Inuit and Métis children, youth and families, An Act Respecting (FNIMCYFA)

. K.R. v Children’s Aid Society of London and Middlesex

In K.R. v Children’s Aid Society of London and Middlesex (Div Court, 2023) the Divisional Court critically considers the trial judge's treatment of the federal "Act Respecting First Nations, Inuit and Metis Children, Youth and Families":

[46] The most significant of these is the Appellant mother’s claim that the trial judge did not properly consider and apply An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, S.C. 2019, c. 24 (the “Federal Act”). I disagree. The trial judge’s reasons on both the question of whether the Children were in need of protection and his disposition analysis reference the Federal Act and apply it to the facts. The trial judge properly instructed himself as to the requirements of the Federal Act (see, inter alia, para. 17 of his reasons). Finally, the trial judge also criticized the Society (at para. 106) for its delay in trying to obtain help from the First Nation and other Indigenous organizations. All of these factors demonstrate that the trial judge was alive to the requirements of the Federal Act and to the importance of the Children’s Indigenous heritage. He was entitled to make findings of fact and apply those facts to the law, which he did. There is no reversible error.

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[57] The trial judge’s reasons on access are relatively brief. The trial judge identified the decision in Kawartha-Haliburton Children’s Aid Society v. M.W. 2019 ONCA 316, (2019) 432 D.L.R. (4th) 497 as confirming that, even after being placed in Society care, a child can still have a meaning and beneficial relationship with a parent and that preserving that relationship justifies access. The trial judge also stated that the Federal Act needed to be taken into account.

[58] However, he did not grapple with either the significance of the Federal Act’s provisions with respect to access or the circumstances that already existed on the ground at the time of trial. In failing to address either of these issues, the trial judge erred in law and made a palpable and overriding error in respect of the access that he ordered.

[59] The concerns with the trial judge’s reasons start with section 17 of the Federal Act, which provides as follows

17 In the context of providing child and family services in relation to an Indigenous child, if the child is not placed with a member of his or her family in accordance with paragraph 16(1)(a) or (b), to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each such member of his or her family are to be promoted.

[60] This provision emphasises that the ties to the child’s family members are to be promoted. It is a requirement that must be fulfilled in deciding access subject to the best interests of these Children.

[61] While the trial judge considered the Federal Act in detail in his analysis of the other issues, he did not consider it sufficiently in making his decision to reduce access from weekly to bi-monthly. This failure is magnified by the fact that the level of access that existed at trial was being successfully maintained. In these circumstances, if the trial judge was going to reduce the access, it was incumbent on him to both ground the decision on the facts as he found them and then provide an adequate explanation as to why the access should be reduced despite the important role of promoting ties to family where Indigenous children are not placed with a family member, as set in the Federal Act. I agree with the Children’s Lawyer that the Federal Act must be integral to determining the level of access in this case.

[62] The Respondents note that the fresh evidence suggests that the current reduced access is not going smoothly. As noted by the Children’s Lawyer, change may mean that issues arise and this does not necessarily result in the need for or justification of reduced access. Promoting attachment and emotional ties to the Children’s Indigenous mother and siblings may need a period of transition. Further, the Appellant mother’s fresh evidence suggests that there are steps that the Society and the foster mother could be taking to assist with the process. .

[63] Having regard for the imperatives under the Federal Act and the evidence before him about the current access, I reluctantly conclude that the trial judge erred in reducing the access that was already ongoing.

[64] The trial judge erred in law in failing to give full effect to the provisions of the Federal Act on the subject of access. Based on the facts as the trial judge found them, the legislative imperative of s.17 of the Federal Act and bearing in mind the fresh evidence as it has been presented to us, there does not appear to be basis to reduce the access below what existed at the time of trial.

. Children’s Aid Society of London and Middlesex v. T.E.

In Children’s Aid Society of London and Middlesex v. T.E. (Ont CA, 2023) the Court of Appeal considered the child protection regime involving indigenous children, including relevant provisions of the federal "First Nations, Inuit and Métis children, youth and families (An Act respecting)":

[32] The federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, s. 13 (the “Federal Act”) provides:

In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child,

(a) the child’s parent and the care provider have the right to make representations and to have party status; and

(b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations. [Emphasis added.]

[33] “Care provider” is defined, in s. 1 of the Act, as “a person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs”.

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[56] The motion judge allowed the father’s motion to withdraw the Society’s protection application. This was procedurally flawed, as only the Society is in a position to withdraw its own application. That said, it is appropriate to decide this issue on the merits.

[57] The motion judge based the decision to dismiss the proceedings on the existence of the CCA. To understand the significance of the CCA, and the positions of the parties, it is necessary to review the concepts which underly a customary care agreement.

[58] Customary care is defined by legislation. Customary care agreements are not.

[59] Section 2 (1) of the CYFSA provides that “customary care” means “the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community”.

[60] As this court confirmed in Dilico, at para. 35, customary care is the preferred approach for a First Nations, Inuk or Métis child in care. This is consistent with federal and provincial legislation, as well as the principles housed in the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3.

[61] Section 80 of the CYFSA directs Societies to make all reasonable efforts to develop a plan for customary care for a First Nations, Inuk or Métis child in need of protection.

[62] Customary care agreements are the agreements that implement the plan for customary care. They are agreements between the parties, a representative of the First Nation, and the Society that set out a plan for the child’s care, in accordance with the objectives of the legislation, rather than through the usual child protection proceedings. Customary care agreements represent a cooperative and community-based approach to the wellbeing of First Nations, Inuit and Métis children in care.

[63] At issue is whether, and to what extent, customary care agreements are subject to court supervision. The appellant says that they are. The respondents, on the other hand, submit that the courts have limited, if any, supervisory role because Oneida has inherent jurisdiction to care for their own children.

[64] Thus, the parties fundamentally differ as to the nature and effect of customary care agreements generally and, specifically, the CCA in this case.

[65] The appellant submits that customary care agreements are an invention designed to circumvent the provisions of the CYFSA and are “now being used to justify where a child resides outside the purview of the courts”. Consequently, issues such as mandatory timelines and a careful analysis of the best interests of the child are completely avoided. The appellant submits that customary care and customary care agreements have been conflated and that the agreements are being used to give the relevant band the unilateral authority to decide where, and with whom, the child resides, outside of the purview of the courts and the necessary best interests analysis.

[66] The appellant says that, if Oneida seeks to exercise inherent jurisdiction, they need to follow the steps necessary to implement self-government, as set out in s. 20 of the Federal Act:

20 (1) If an Indigenous group, community or people intends to exercise its legislative authority in relation to child and family services, an Indigenous governing body acting on behalf of that Indigenous group, community or people may give notice of that intention to the Minister and the government of each province in which the Indigenous group, community or people is located.

Coordination agreement

(2) The Indigenous governing body may also request that the Minister and the government of each of those provinces enter into a coordination agreement with the Indigenous governing body in relation to the exercise of the legislative authority, respecting, among other things,

(a) the provision of emergency services to ensure the safety, security and well-being of Indigenous children;

(b) support measures to enable Indigenous children to exercise their rights effectively;

(c) fiscal arrangements, relating to the provision of child and family services by the Indigenous governing body, that are sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities and to support the capacity of the Indigenous group, community or people to exercise the legislative authority effectively; and

(d) any other coordination measure related to the effective exercise of the legislative authority.

[67] Absent these steps, and those that follow in ss. 21-24, the appellant submits that the community will be left without the rule of law and, therefore, the respondents should be precluded from claiming sole authority over children subject to customary care agreements.

[68] The respondents submit that customary care agreements reflect the inherent right of First Nations to self-government and must be viewed through the lens of the history of residential schools and the need for reconciliation. The agreements must be respected because First Nations must make decisions regarding the care of their own children.

[69] The respondents go further to say that they, not the courts, have jurisdiction over their children. They rely on provincial and federal legislation.

[70] As per s. 1(2) of the CYFSA, one of the purposes of Act is as follows:

First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

[71] Similarly, s. 18 of the Federal Act provides:

(1) The inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.

(2) For greater certainty and for the purposes of subsection (1), the authority to administer and enforce laws includes the authority to provide for dispute resolution mechanisms.

[72] The respondents submit that parties to a customary care agreement have full authority over the care of the child and the court has a minimal supervisory role. Based on these principles, the motion judge was correct to dismiss the proceedings based on the CCA.