Decisions of the Court of Appeal

WARNING

Section 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 may apply:

Prohibition re identifying child

87(8) 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.

COURT OF APPEAL FOR ONTARIO

CITATION: Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149

DATE: 20230306

DOCKET: COA-22-CV-0074

Pepall, van Rensburg and Benotto JJ.A.

BETWEEN

Children’s Aid Society of London and Middlesex

Applicant (Respondent)

and

T.E., J.G., and L.D. (on behalf of Oneida Nation of the Thames)

Respondents (Respondents)

Jessica Gagne, for the appellant, T.M.[1]

Randolph C. Hammond, for the respondent Children’s Aid Society of London and Middlesex

A. Julia P. Tremain, for the respondent T.E.

Katherine Hensel, Debra Snider and Kristie Tsang, for the respondent J.G.

Nicole Hill-Dolson, for the respondent L.D. (on behalf of Oneida Nation of the Thames)

Tammy Law, for the respondent O.T.

Sarah Clarke, for the intervenor Association of Native Child and Family Services Agencies of Ontario

Heard: December 16, 2022

On appeal from the order of Justice Paul J. Henderson of the Superior Court of Justice, dated August 5, 2022.

Benotto J.A.:

[1]          This is an appeal from an order dismissing a protection proceeding in relation to a two-year-old First Nations child.[2]

[2]          The appellant is the child’s kin caregiver. The respondents are the child’s biological parents, the child’s aunt, and the Oneida Nation of the Thames (“Oneida”). The Children’s Aid Society of London and Middlesex (the “Society”) has been involved with the child since her birth and commenced protection proceedings when she was two months old.

[3]          Following a series of unsatisfactory placements, when the child was about six months old, the child was placed with the appellant, who was to act as kin caregiver. An order was made granting the appellant temporary custody under the supervision of the Society.

[4]          Several months later, the appellant brought a motion seeking to be added as a party to the protection proceedings. At about the same time, the biological father brought a motion seeking to have the proceedings withdrawn because the respondents were planning to sign a customary care agreement with the child’s aunt (O.T.). By the time the motions were heard, the Customary Care Agreement (the “CCA”) had been signed. It did not include the appellant, nor did it make any provision for her continued access to, or involvement with, the child.

[5]          The motion judge, relying primarily on the CCA, dismissed the proceedings as having been settled. He rejected the appellant’s motion to be added as a party to the proceedings. She appeals.

[6]          For the reasons that follow, I would allow the appeal.

[7]          The motion judge erred by dismissing the protection proceedings. The appellant was a statutory party. Because she was excluded from the CCA, the proceedings were not resolved on consent. Nor was there an analysis as to the impact of her exclusion on the best interests of the child.

FACTS

[8]          The child was born on September 30, 2020, to parents T.E. (mother) and J.G. (father). The mother’s heritage is Chippewa First Nation of the Thames, but she currently does not have status. However, she was traditionally adopted through the Oneida long house. The father is Oneida, with status. The child, through her parents, identifies as First Nation and her band is Oneida.

[9]          The Society became involved shortly after the child’s birth because the biological parents presented a variety of concerns: adult conflict, homelessness, drug and alcohol abuse, and mental health issues. Under Society supervision, the child was placed with a succession of relatives.

[10]       On November 20, 2020, the Society formally commenced protection proceedings. The child was moved around, with none of the placements lasting, until January 27, 2021, when the Society apprehended and placed the child with the appellant as a foster placement. The appellant was a foster parent through Eagle’s Nest and a member of the Serpent River First Nation, which is an Anishinaabe First Nation. She has family who are members of Oneida. The parents knew the appellant and were content with the placement.

[11]       The child remained with the appellant for 12 days as a foster placement until February 8, 2021, when Tobin J. placed the child in the joint care of the parents, subject to the Society’s supervision and on the condition that the child reside with a certain named relative. This arrangement broke down, and the parents – who were happy with the care the appellant had provided – contacted the appellant, asking her to resume care. On April 9, 2021, the appellant picked up the child and cared for her. On April 14, 2021, on motion by the Society, the child was placed in the care of the Society and continued to live with the appellant. On June 11, 2021, on motion by the father, Sah J. ordered that the appellant, as kin caregiver, have temporary care and custody of the child under the supervision of the Society. The child remained with the appellant until December 24, 2021. At this point, the child was less than 15 months old, having spent more than eight months, that is, more than half of her life, in the appellant’s care. She thrived there and calls the appellant her “mom”.

[12]       As reflected in the October 20, 2021 endorsement of the court, Oneida took the position that the child was not eligible for a customary care agreement.

[13]       On November 12, 2021, there was an incident in the appellant’s home when the child became entangled in a window blind cord while the appellant was in the shower. The child was rushed to the hospital and made a full recovery. The matter was investigated, and the child was returned to the appellant a few days later. There is no evidence that the appellant was negligent, and the Society had no protection concerns. The parents, however, were upset. There were accusations and counter-accusations. Regrettably, some appeared on social media. This spilled over into arguments about Christmas visiting arrangements. Ultimately, it was agreed that the child would have extended access with the biological parents over Christmas. The child was to stay with the child’s aunt (O.T.), the half-sister of the biological mother. The extended access was to take place from December 24, 2021, until January 20, 2022, when there was to be a scheduled court appearance.

[14]       Unfortunately, the January 20, 2022, court appearance did not proceed as planned. It was adjourned three times and was not heard until April 22, 2022. Meanwhile, the child remained with the aunt, in accordance with the terms of the extended access. On April 1, 2022, Price J. varied the order of Sah J. on a “without prejudice basis”, to maintain the child’s placement with the aunt. The appellant had weekly overnight access.

[15]       During this adjournment period, motions were exchanged. On February 3, 2022, the appellant served a motion to be added as a party to the protection proceedings. On February 6, 2022, the biological father served a motion seeking the dismissal of the protection application as “withdrawn”.[3] He based his claim on the fact that a customary care agreement with the aunt (O.T.), was going to be signed.

[16]       On or about February 23, 2022, Oneida, the biological parents, the Society, and the aunt signed the CCA. It contemplated a three-month interim agreement, placing the child in the care of the aunt, with a minimum of six hours per week with the biological parents. It made no provision for access or contact with the appellant.

[17]       It is unclear what changed in the four months between October 21, 2021, when the child was deemed ineligible for a customary care agreement, and February 23, 2022, when the CCA was signed.

[18]       The two motions were ultimately heard on April 22, 2022, by Henderson J. On August 5, 2022, he released his Endorsement, allowing the father’s motion to dismiss the child protection proceedings as withdrawn and dismissing the appellant’s motion to be added as a party.

DECISION BELOW

[19]       The motion judge first considered the father’s motion to dismiss, then turned to the appellant’s motion to be added as a party.

[20]       In granting the father’s motion, the motion judge gave considerable weight to the CCA, which he described as a well considered document that addressed in detail relevant concerns and the parties’ duties. He recognized that customary care is the preferred approach for First Nations children and that there is presumptive confidence that a customary care agreement is in the child’s best interests. He referred to federal and provincial legislation confirming this.

[21]       The motion judge found no “technical defects” in the CCA. Relying on M.L. v. Dilico Anishinabek Family Care, 2022 ONCA 240, 468 D.L.R. (4th) 58, he concluded that it was a valid agreement. The child was doing well in the aunt’s care and the Society had no concerns. He was satisfied that both Oneida and the Society would maintain oversight and provide support to the aunt. He therefore, allowed the father’s motion to dismiss the proceedings as withdrawn.

[22]       After making this determination, the motion judge dismissed the appellant’s motion to be added as a party. He considered the discretion afforded to the court by r. 7(5) of the Family Law Rules, O. Reg. 114/99, which provides that the Court “may order that any person who should be a party shall be added as a party”. He considered: (1) whether the addition of the appellant as a party was in the best interests of the child; (2) whether it would delay or prolong the proceedings; (3) whether it was necessary to determine the issues; and (4) whether the appellant was capable of putting forward a plan that was in the child’s best interests: see A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, 139 O.R. (3d) 220.

[23]       The motion judge concluded that to add the appellant as a party would add considerable time to the proceedings – it would change a resolved proceeding into a protracted, conflicted proceeding. Oneida and the parents made it clear that they oppose access. To the extent that the appellant wanted relief, the motion judge noted that she could begin a new proceeding and apply for access under the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The appellant’s motion to be added as a party was dismissed.

[24]       The Society took a contradictory position on the motions. On the basis that there were no protection concerns with either the aunt or the appellant, the Society consented to both motions. The motion judge referred to this as a “perplexingly ambivalent” position:

… if I hold for the father, [the appellant’s] motion is moot; if I hold for [the appellant], the father’s motion is moot.

PARTIES ON THE APPEAL

[25]       The appellant kin caregiver appeals the order of August 5, 2022. The biological parents, the aunt, Oneida, and the intervenor, the Association of Native Child and Family Services Agencies of Ontario, respond.

[26]       The Society does not oppose the appeal. It explained that it had consented to both motions and was taking no position on the appeal.

ISSUES ON APPEAL

[27]       The issues are:

1.    Did the motion judge err in refusing to grant party status to the appellant?

2.    Did the motion judge err by determining the motion to dismiss before considering the issue of party status?

3.    Did the motion judge err by dismissing the protection proceedings?

ANALYSIS

1.    Did the motion judge err in refusing to grant party status to the appellant?

[28]       Party status in child protection proceedings can arise in one of two ways: (i) pursuant to r. 7(5) of the Family Law Rules; or (ii) by way of provincial or federal statutes, which both define party status. The Family Law Rules provide a discretionary approach. The statutes are not discretionary: if a person is a “parent”, as defined by either statute, the court has no jurisdiction to find otherwise. (See Catholic Children’s Aid Society of Toronto v. D.L., 2014 ONCJ 587, 51 R.F.L. (7th) 251, at para. 21.)

[29]       The motion judge looked only to the discretionary pathway to party status under the Rules. He did not address the provincial and federal legislation.

[30]       The provincial legislation, the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, (the “CYFSA”) sets out the criteria for party status in a child protection application. Section 79 (1) of the CYFSA states:

The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child’s parent.

4. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities. [Emphasis added.]

[31]       Section 74 (1) of the CYFSA defines “parent” as follows:

“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children’s Law Reform Act.

2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7 (2) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.

3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.

4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.

5. An individual who has lawful custody of the child.

6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.

7. An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.

8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children’s Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force. [Emphasis added.]

[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”.

[34]       The appellant submits that she is entitled to statutory party status under both the provincial and the federal legislation. From June 11, 2021 onwards, she had “lawful custody of the child” by virtue of Sah J.’s temporary care and custody order. That custody order was varied on a “without prejudice” basis by Price J. and, at the same time, the appellant was provided with regular, court-ordered access. In this way, the appellant met either or both of the definitions of “parent” under s. 74(1) of the CYFSA. Although the CYFSA excludes foster parents, once the appellant became the child’s kin caregiver, she was no longer a foster parent.

[35]       The appellant submits that she also has statutory entitlement to party status pursuant to s. 13 of the Federal Act, which applies specifically to First Nations, Inuit and Métis children since she meets the definition of a “care provider”.

[36]       The respondents submit that the appellant is not a “parent” within the meaning of the CYFSA. They submit that she was a “foster parent” within the meaning of the CYFSA. They also submit that the designation of parties must be decided at the outset of the application or during a status review. The appellant did not have lawful custody of the child, nor was she a care provider at the outset of the application or at the time of a status review. Otherwise, anyone who was the subject of a temporary custody or access order would qualify as a statutory parent, which would be problematic. The respondents rely on Durham Children’s Aid Society v. J.S., 2022 ONSC 2535, at para. 72, where the court held:

If the status as “parent” may change over the life of a protection application as temporary placements change, there could end up being a situation where there are multiple “parents”, including even persons who are no longer providing temporary care.

[37]       This, the respondents say, would create a “dangerous precedent” for child protection proceedings and add too many parties for vulnerable parents to respond to.

[38]       The respondents also submit that since the concept of “kin caregiver” is absent from the CYFSA, the definition of “parent” cannot be said to include kin caregivers.

[39]       For the Federal Act, the respondents submit that the appellant was not a “care provider” as defined because the appellant does not belong to Oneida. Although the appellant is Indigenous, in order to have provided day to day care for the child, “in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs”, she would have to belong to Oneida.

Decision on party status

[40]       Section 74(1) of the CYFSA provides that a “parent” includes: (i) an individual who has lawful custody of the child; and (ii) an individual who has a right of access to the child. At the time of her motion for party status, the appellant qualified under both criteria. She had an order for temporary custody, as well as an order for access.

[41]       While the Act does not expressly include kin caregivers as parents, s. 37(1) specifically excludes only foster parents. Kinship service occurs when a child or youth is placed in the home of an approved kin but the child does not have “in-care” status.[4] Unlike foster parents, kin caregivers are generally known to the biological family. It is considered less intrusive for children because they are not being placed with strangers. “By granting custody to the kin care providers, they become the ‘custodial parents’ for the child”: SMCYFS v. D.D., 2021 ONSC 1994, at paras. 41 and 47.

[42]       Kin caregivers are not foster parents. “Foster parent” is defined in the CYFSA:

“foster care” means the provision of residential care to a child, by and in the home of a person who,

receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and

is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),

and “foster home” and “foster parent” have corresponding meanings; (“soins fournis par une famille d’accueil”, “famille d’accueil”, “parent de famille d’accueil”) [Emphasis added]

[43]       The defining feature of foster parent is that they receive compensation for caring for the child. In Windsor-Essex Children’s Aid Society v. D.L.H., 2015 ONCJ 310, Tobin J. at para. 21 said: “A foster parent, by definition, is one who receives compensation for caring for a child.” Except for the 12 days in January 2021 when the child was with the appellant in foster care, she neither received nor requested any financial assistance from the Society for the child’s care.

[44]       Although the motion judge referred to the appellant as a foster parent, she was a kin caregiver, not a foster parent.

[45]       As this court noted in Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114:

… the principle of statutory interpretation known as the presumption of implied exclusion (sometimes referred to as expressio unius est exclusio alterius) precludes such an approach. The principle of implied exclusion presumes that "to express one thing is to exclude another" and accordingly, when a statutory provision refers to a particular thing, but is silent with respect to other comparable things, that silence reflects an intention to exclude the unmentioned items … In other words, "legislative exclusion can be implied when an express reference is expected but absent". [Citations omitted.]

[46]        Since the statute is silent with respect to “other comparable things”, in this instance, foster parents, and only foster parents, are excluded from the definition of “parent”, and therefore from party status, under the CYFSA. The appellant is not a foster parent. She is therefore not excluded. As for the suggestion that status as a “parent” can only be determined at the start of the application or on status review, nothing in the statute suggests a time restriction of any kind.

[47]       The concern expressed in J.S. that “there could end up being a situation where there are multiple “parents”, including even persons who are no longer providing temporary care” is in my view misplaced.

[48]       The decision in J.S. conflicts with another decision of the Superior Court[5] and requires the court to ignore the clear words of the statute. The definition of “parent” in s. 74 (1) of the CYFSA is in the present tense – it references a person who has lawful custody, as well as one who has lawful access.

[49]       The CYFSA does not call for retrospective consideration to include persons who are no longer providing care. Individuals entitled to party status have custody and/or access at the time of the motion to be added as a party. Consequently, no “floodgate” issue arises.

[50]       Moreover, the CYFSA must always be considered in the context of its paramount purpose: to promote the best interests, protection and well-being of children: s.1(1). Granting the kin caregiver party status provides the court with current, relevant information about the child and their care.

[51]       In denying the appellant party status, the motion judge erred in considering only discretionary party status under rule 7(5) of the Family Law Rules and not the statutory entitlement to party status under the CYFSA.

[52]       The appellant, who, at the time of the motion, had “lawful custody of the child”, an order for access to the child, and was not a “foster parent”, met the definition of “parent” in s.74(1) of the CYFSA and so had a statutory entitlement to party status pursuant to s.79(1). Although the motion judge commented that the appellant did not file a plan of care, she did file Form 35.1 under the Family Law Rules indicating her plan of care for the child and included a vulnerable sector check.

[53]       I have concluded that the appellant was entitled to party status, pursuant to the CYFSA. It is, therefore, not necessary to address the respondents’ submissions that for the appellant to qualify as a “care provider” under the Federal Act, she must be a member of the same band.

[54]       I would allow the appeal of the motion judge’s dismissal of the appellant’s motion for party status and order that the appellant is a party to the child protection proceeding.

2.     Did the motion judge err by determining the motion to dismiss before considering the issue of party status?

[55]       The child protection proceeding should not have been dismissed before determining who the parties were. Had the appellant’s party status been recognized, the motion judge could not have concluded that the proceedings had been resolved on consent. However, given my conclusions that the appellant was a statutory party and that the CCA had to be evaluated by the court before dismissing the protection proceeding, nothing turns on the order of determination.

3.    Did the motion judge err by dismissing the protection proceeding?

[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.

Decision on dismissal of proceedings

[73]       The appellant and the respondents take contradictory but equally binary approaches to the issue of customary care agreements. I neither completely agree nor disagree with either. Instead, I prefer a nuanced approach.

[74]       Under the CYFSA, the goal for all children is for them to remain with or be reunited with their families. As stated in s.1(2)(1), “While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent”. For First Nations, Inuit and Métis children, this includes extended families, communities, culture, and traditions. Further, it is recognized that First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services. That is why, even though there is no direct statutory provision for customary care agreements, they are an important vehicle by which parties resolve issues relating to First Nations, Inuit and Métis children in care. As this court said in Dilico, at para. 37:

Customary care agreements encourage the parties to resolve issues concerning a child’s care in a culturally sensitive and appropriate manner, by agreement rather than child protection proceedings. As the intervener Association of Native Child and Family Services Agencies points out, customary care is an essential practice for First Nations in partnership with Indigenous child and family services agencies. Although the tenets of customary care differ from nation to nation, at its core the concept envisages a child’s care as a collective responsibility.

[75]       I do not agree with the appellant that an agreement reflecting a plan for customary care represents an attempt to bypass the legislative framework. Instead, it is the preferred approach for First Nations, Inuit and Métis children in care.

[76]       However, the court’s role is not eliminated. In every child protection case, the courts have an obligation to promote the best interests of the child. This is made clear by the very first provision in the CYFSA, which confirms that the “paramount purpose of [the] Act is to promote the best interests, protection and well-being of children”.

[77]       A focus on the best interests of the child applies to every hearing before the court in a child protection proceeding. When all parties to a proceeding participate and agree to a plan for customary care, absent evidence to the contrary, the court is entitled to presume that the customary care agreement reflects the child’s best interests. But all parties must agree.

[78]       I do not agree that judicial supervision of customary care agreements is limited to “technical” defects in an agreement. This is a misreading of Dilico. Dilico stressed the need for all parties to participate in the plan for customary care. It also emphasized, at para. 40, the court’s essential role:

Under the CYFSA, the court plays an essential role in reviewing the decisions of child welfare agencies acting on their initial determination that a child is in need of protection. Judicial oversight ensures the child welfare agency acts within its authorized role, that statutory timelines are met, and that procedural protections exist for all parties, especially the parents who are often vulnerable … [Emphasis added, citations omitted.]

The court further noted, at para. 48:

If a society seeks to rely on a customary care agreement to resolve protection proceedings out of court, the agreement must be carefully prepared and have the consent of all the parties. Otherwise, the child loses the protection of the processes and timelines set out in the CYFSA without assurances of the intended benefits. [Emphasis added.]

[79]       Here, the appellant was not involved in the customary care plan, nor was she a party to the CCA. Importantly, her court-ordered access was summarily terminated.

[80]       The intention of the respondents to completely cut the appellant out of the child’s life was made clear to the motion judge. It was also made clear by the fact that a contested motion before this court was required to re-instate weekly overnight access pending appeal. On October 5, 2022, Harvison Young J.A. said, as follows:

What is clear at this point is that both [the appellant] and [the aunt] love this child and [the child] has spent time with both during [the child’s] almost three-year old life. For that reason, maintaining this stability pending the appeal is in the best interests of [the child] and I so order.

[81]       The motion judge did not address why, after the appellant’s extensive involvement with the child, this abrupt termination was in the child’s best interests. Nor did the motion judge determine whether the ongoing exclusion of the appellant from the child’s life was in the child’s best interests. When considering the best interests of the child, the court is required to consider “the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity”: see CYFSA, s. 74 (3).

[82]       The child was in the aunt’s care for “an extended access visit”. Although the breakdown in communication occurred before the Christmas access visit, there was no explanation as to why it was in the child’s best interests to have contact with the appellant unilaterally terminated. The breakdown was between the adults, not between the appellant and the child.

[83]       The matter was not resolved on consent because all parties had not participated in the CCA. Further, given the exclusion of the appellant from the proceeding, there was no analysis of whether and how the CCA was in the child’s best interests. For these reasons, the motion judge erred by dismissing the protection proceeding.

[84]       In light of this conclusion, I do not need to address the issue of s. 20 of the Federal Act set out in paragraphs 62 and 63 above.

CONCLUSION

[85]       I would allow the appeal, reinstate the proceeding before a different judge and grant the appellant party status to the proceeding. The issue before the court, with the benefit of the appellant’s participation, will be whether the currently proposed CCA or some other arrangement is in the child’s best interests.

[86]       The parties, other than the intervenor and the Society, may make brief submissions with respect to costs of the appeal, limited to three pages, within 15 days of the release of these reasons.

Released: March 6, 2023 “S.E.P.”

“M.L. Benotto J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. K. van Rensburg J.A.”