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Caregivers can proceed with custody application for Indigenous child in need of protection: ONCA

Dilico failed to provide satisfactory customary care under the Child, Youth and Family Services Act.


PHOTO: Jessica Gagné is the appellant’s lawyer


The Court of Appeal for Ontario has allowed custody proceedings over a 6-year-old Indigenous child in need of protection after the trial judge erred in determining her best interests without considering the Child, Youth and Family Services Act’s relevant statutory and constitutional requirements and precluding the appellants from applying for parenting orders.

In M.L. and D.L v. Dilico Anishinabek Family Care, the court wrote that Dilico sought to rely on the legislative preference for customary care agreements to urge non-interference by the court, despite failing to provide satisfactory customary care under the CYFSA.

The court highlighted deficiencies in Dilico’s approach, noting that none of the care agreements specify who will be taking care of J.T or was signed by the caregivers. The appeal court wrote that Dilico acted without statutory authority, without the legal parents’ consent, and without the timely involvement of Berens River First Nation.

Although J.T.’s biological father signed the Temporary Care Agreement that ended on Feb. 15, 2016, he did not sign any subsequent care agreements. The court wrote that Dilico did not explain this discrepancy. In addition, J.T’s biological mother did not sign one of the 2018 care agreements, and Berens River First Nation did not sign the most recent care agreement.

Dilico argued that, as a child welfare agency, it continues to have legal guardianship of J.T., which constitutes a form of customary care, but the court disagreed.

A child welfare agency’s provision of care and supervision to an Indigenous child does not conform to the customary care definition because a person must provide it. “Dilico is a child welfare agency and distinct from Berens River First Nation,” the court wrote.

“Dilico acknowledged that J.T. had been with a family for the past six years who could not and did not provide her with care and supervision according to the customs of the Berens River First Nation. On Dilico’s own account, then, it appeared not to have complied with the requirement in s. 80 of the CYFSA to ‘make all reasonable efforts to pursue a plan for customary care’ for J.T.”

The child’s biological parents, the proposed alternative caregivers, a child welfare agency, and a First Nation representative must all agree that the child needs protection and the terms and conditions of the proposed plan for care, wrote the court. “The care agreements entered into subsequently, on which Dilico relied, failed to meet these requirements, and therefore were not valid customary care agreements.”

Law Times previously reported that Dilico Anishinabek Family Care planned to terminate J.T’s placement with the appellants so she could be with her mother’s family at Berens River First Nation in Manitoba after being in the applicants’ care since she was eight days old. However, the appellant argued that it was in the child’s best interests that she remained in their care and launched a custody application under the Children’s Law Reform Act (CLRA).

Referencing the definition of foster parents under s. 2 of the CYFSA, Dilico argued that s. 102 of the CYFSA and Family Law Rules s. 7(4) prohibits applicants from applying for or obtaining custody of the child and brought a motion to strike the custody application.

An Ontario Court of Justice judge agreed with the applicants and dismissed Dilico’s motion. However, a Superior court judge set aside the applicants’ custody application upon appeal, paving the way for Dilico to remove the child from the applicants’ care to pursue their intended placement of the child with her mother’s family.

Appeal court Justice David Paciocco stayed the order to ensure the child remained with the applicants’ pending the current ruling.

The new decision allowed the appeal, permitting the appellants’ application under the CLRA and reinstating the Ontario Court judge’s order.

The lawyer for the appellants, Jessica Gagné, says the decision confirms that when the state intends to move a child after six years spent in one home, the child’s de facto parents are entitled to have the matter heard and decided by a judge.
“The fact that the Children’s Aid Society [Dilico Anishinabek Child and Family Care] has argued otherwise for the past four years demonstrates a clear desire to avoid judicial oversight and scrutiny of the decisions they make for children and families, and ought to concern everyone.”

Gagné says it is fundamental to our democracy that state actions are subject to oversight by the judiciary to ensure compliance with laws and Charter rights.

She says the decision, to an extent, endorses the concept of the “out of care customary care agreements” for Aboriginal children, which perpetuates the unlawful differential treatment of Aboriginal children and non-Aboriginal children in Ontario.

The “out of court customary care agreement” concept is a recent invention of Aboriginal child welfare services with a primary purpose to evade permanent planning timelines in the CYFSA for Aboriginal children, she says. “The child in this case, who is now six years old, would have otherwise been entitled to a permanent placement four years ago.”

For differential treatment between children based on race to be lawful, Gagné says it should be enacted through democratically passed laws either by a First Nations government exercising its inherent jurisdiction or provincially and as of right now, there are no such laws.

“The ONCA appears to reason that having recourse to the courts when things go wrong with these agreements is enough, but it is not enough. Given that the constitutional rights of children and parents are at play, this practice should, at minimum, have its basis in written laws.”


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