



WARNING

Prohibitions under the
Child, Youth and
    Family Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this
    decision:

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 childs parent or foster parent or a member of
    the childs family.

Prohibition re identifying person
    charged

87(9)
The
    court may make an order prohibiting the publication of information that has the
    effect of identifying a person charged with an offence under this Part.

Transcript

87(10)
No
    person except a party or a partys lawyer shall be given a copy of a transcript
    of the hearing, unless the court orders otherwise.



Offences re publication

142 (3)
A
    person who contravenes subsection 87 (8) or 134 (11) (publication of
    identifying information) or an order prohibiting publication made under clause
    87

(7) (c) or subsection 87 (9), and a
    director, officer or employee of a corporation who authorizes, permits or
    concurs in such a contravention by the corporation, is guilty of an offence and
    on conviction is liable to a fine of not more than $10,000 or to imprisonment
    for a term of not more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: M.L. v. B.T., 2021 ONCA 683

DATE: 20211004

DOCKET: M52822 (C69821)

Paciocco
    J.A.

BETWEEN

M.L.
    and D.L.

Appellants/Applicants

and

B.T., D.C.
    and Dilico Anishinabek Family Care

Respondents/Respondents

Jessica Gagn
é
, for the
    appellants/applicants, M.L. and D.L.

Edward R. Van Voort, for the
    respondent, D.C.

Katherine Hensel, for the respondent,
    Dilico Anishinabek Family Care

Heard: September 29, 2021 by
    videoconference

ENDORSEMENT

OVERVIEW

[1]

This is a custody dispute between the
    applicants, M.L. and D.L., and the respondent, Dilico Anishinabek Family Care (Dilico).
    The custody dispute concerns J.T., a child in need of protection, whom Dilico placed
    in the applicants care more than six years ago, eight days after J.T.s birth.
    Dilico intends to terminate the placement so that J.T. can be placed with her
    mother, D.C.s, family, in the Berens River First Nation in Manitoba. In
    proposing this placement, Dilico is attempting to ensure that J.T.s best
    interests are served by preserving her links to her Indigenous culture, family,
    and community. However, D.L. and M.L believe that it is in J.T.s best
    interests that she remains in their care. Accordingly, they launched a custody
    application pursuant to the
Childrens Law Reform Act
, R.S.O. 1990, c.
    C.12.

[2]

On September 7, 2021, Newton J. of the Ontario
    Superior Court of Justice released an appeal decision that sets aside the applicants
    custody application and paves the way for Dilico to remove J.T. from the
    applicants care, and to pursue their intended placement of J.T with her
    mothers family.

[3]

The applicants now bring a motion before me to
    stay the appeal judges decision pending the final determination of their
    appeal. Dilico does not oppose a conditional stay that would require J.T. to
    continue to reside with the applicants pending that determination, but requests
    that the conditional stay maintain their role as the legal guardian of J.T. The
    applicants ask for supplementary relief as well, which Dilico does not oppose.
    D.C. did not participate in this motion. J.T.s father, B.T., was served with
    the applicants custody application, but has not responded.

[4]

For the reasons that follow, I am ordering a
    stay of the appeal decision, an order that will assure that J.T. is not removed
    from the applicants care pending the final determination of the appeal.
    However, I am also imposing conditions in J.T.s best interests that will
    satisfy some of Dilicos concerns. Finally, I make additional orders for
    associated relief, described below.

MATERIAL FACTS

[5]

J.T., an Indigenous child, was born in Thunder
    Bay in late 2015. Her case was referred to Dilico at the time of her birth. J.T.
    was apprehended by Dilico with the consent of her mother, D.C., and her father,
    B.T, when she was one day old. When J.T. was eight days old, she was placed in
    the care of Dilico pursuant to a short temporary care agreement signed between
    Dilico and J.T.s parents. Dilico  then placed J.T. in the care the applicants,
    M.L. and D.L., while maintaining contact with her biological family.

[6]

Under s. 80 of the
Child, Youth and Family
    Services Act
, 2017, S.O. 2017, c. 14, Sched 1, (
CYFSA
) childrens
    aid societies are obligated to make reasonable efforts to pursue a plan of
    customary care for Indigenous children. After a child is found to be in need of
    protection and placed into extended care pursuant to s. 101(3) of the
CYFSA

, this can be accomplished through a plan for customary care, an
    adoption, or a custody order under subsection 116(1):
CYFSA
, s.
    112(3). Dilico did not pursue these mechanisms, however, choosing instead to
    develop a plan of customary care for J.T. outside of the court system.

[7]

When J.T. was four months old, Dilico executed the
    first of a series of six-month customary care agreements. These short term customary
    care agreements were executed by D.C., as well as the band to which D.C.
    belongs, the Berens River First Nation in Manitoba. J.T. is now registered as a
    member of Berens River First Nation.

[8]

Each of the customary care agreements executed
    by the parties have the same terms. Specifically, the customary care agreements
    provide that Dilico is the legal guardian of J.T. during the duration of the
    agreements. In addition, they provide that Dilico is entitled to assume the
    duties of parent of the child, and to have the rights and responsibilities as
    parents of the child for the purposes of the childs care.

[9]

Dilico submits that its long-term plan was to
    use these customary care agreements as a mechanism for working towards
    reunification of J.T. with her Indigenous family and community. It now proposes
    a permanency plan for J.T. to live with D.C.s aunt, R.C, in the Berens River
    First Nations.

[10]

M.L. and D.L., who evidently care deeply for J.T.,
    believe that it is in J.T.s best interest to remain with them. In June 2017,
    they instituted custody proceedings under the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12, which Dilico and D.C. opposed. Specifically, Dilico took the
    position that as foster parents within the meaning of s. 2 of the
CYFSA
,

the applicants are prohibited by
CYFSA
, s. 102, and
Family Law
    Rules
, O. Reg. 114/99,s. 7(4) from applying for or obtaining custody of
    J.T. Dilico brought a motion to strike the custody application on this basis.

[11]

The applicants submitted, in response, that
    they are not foster parents, but care providers as defined in
An Act
    respecting First Nations, Inuit and Métis children, youth and families
,
    S.C. 2019, c. 24, s. 1. They contended further that the customary care
    agreements are invalid. Their objections to the validity of the agreements include
    the claim that the
CYFSA

does not provide for out-of-court
    customary care agreements. They also maintained that Dilicos customary care
    plan is not in J.T.s best interests as required by the
CYFSA
and
    argue that it is in her best interest to remain with them. The applicants asked
    for the dismissal of Dilicos motion, and for interim custody.

[12]

On March 3, 2020, a judge of the Ontario Court
    of Justice agreed with the applicants and dismissed Dilicos motion. She ruled that
    the applicants are entitled to continue their custody application, and awarded
    them interim custody, subject to these material terms:

4.       A Childrens lawyer shall be appointed for [J.T.] or a
    social work investigation requested.

5.       [Dilico] shall facilitate services for the child, but shall
    not make decisions about the child without the consent of her caregivers or
    order of the court.

6.       The mother D.C. and the father B.T. shall be entitled to
    supervised access.

7.       If R.C. becomes a party, she is entitled to access.

8.       The access exercised by D.C., B.T. and R.C. shall be on the
    following conditions:

a. The access of the parents and great aunt shall not, in
    combination, exceed 48 hours per month.

b. There shall not be any overnight access at this time.

c. All access shall be in Thunder Bay.

d. No other individuals other than supervisors, the [Office of the
    Childrens Lawyer] or an agreed third party shall attend the access visits.

e. The parents and great aunt shall propose a schedule for the next
    two months which may be agreed by the Applicants or the matter of the schedule
    can be addressed with the court.

f. R.C. shall refrain from having the child refer to her as mother
    or mom.

9.       The current customary care agreement and the Alternative
    Care Agreement shall be stayed pending further order of the court. No other
    customary care agreements shall be signed regarding [J.T.] and no other
    proceedings shall be commenced without leave of the court.

[13]

Dilico appealed the motion judges order to the
    Ontario Superior Court of Justice. The Association of Native Child and Family
    Services Agencies of Ontario, and the Nishnawbe Aski Nation were granted
    intervenor status and took legal positions that buttressed Dilicos legal
    position.

[14]

On September 7, 2021, the appeal judge allowed
    the appeal, agreeing with Dilico that: (1) the motion judge erred in concluding
    that Out-of-Court Customary Care Agreements are not creations of the
CYFSA
,
    which must be given priority to court-ordered options; (2) the motion judge
    committed palpable and overriding error in finding that the applicants were not
    foster parents within the meaning of s. 2 of the
CYFSA
, and in
    exercising discretion to permit them to apply for custody contrary to the
    spirit of the legislation; and (3) erred in not deferring to Dilicos placement
    decision. He set aside the motion judges decision, struck the applicants
    application for custody, and prohibited the applicants from being parties in a
    case involving the custody of or access to J.T.

THE ISSUES

[15]

The applicants now bring this motion pursuant to
    Rule 63.02(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,

to stay the judges decision pending the final determination of their
    intended appeal. Dilico does not oppose a conditional stay that will require
    that J.T. reside with the applicants pending appeal. Responsibly, Dilico
    recognizes that it would not be in J.T.s best interests to remove her from the
    applicants residence and care, only to have to return her if the applicants
    ultimately succeed on appeal. They contend, however, that the
status

quo

includes their authority as J.T.s legal guardian, which is
    not being respected. They also contend that this authority is required to
    maintain J.T.s ties to her Indigenous family, culture and community. They
    request that the order of this court preserves their guardianship, including their
    decision-making authority. The applicants oppose this request, arguing that Dilicos
    guardianship derives from an invalid customary care agreement and should not be
    maintained by this court pending the final determination of the appeal.

[16]

The applicants also seek orders for the
    admission of fresh evidence, the representation of J.T. on appeal by the Office
    of the Childrens Lawyer, and leave to file an extended factum.

ANALYSIS

[17]

I am persuaded that a stay of the appeal judges
    decision pending the final determination of an appeal from that decision is in
    the interests of justice. The three factors required for consideration of such
    a stay, recently described by this court in
UD Trading Group Holding PTE.
    Limited v. TransAsia Private Capital Limited
, 2021 ONCA 279, at para. 29,
    each point in that direction.

[18]

First, a preliminary assessment of the merits of
    the case reveals that there are serious issues to be tried. Dilico agrees that
    this is so. Indeed, this appeal will raise important questions about the proper
    evaluation of the best interests in the placement of Indigenous children who
    have been apprehended, and it will invite close consideration of the effect of
    out-of-court customary care agreements.

[19]

Second, D.L. and M.L. have a tremendous
    emotional investment in their relationship with J.T. and will suffer
    irreparable harm if they lose their caregiving role without further and final
    determination of the serious questions I have identified. More importantly, all
    indications are that J.T. is being extremely well cared for and has closely
    bonded with D.L. and M.L. I agree entirely with the responsible and sensitive
    recognition by Dilico that it is not in her best interests to terminate her
    placement with D.L. and M.L., given that such outcome could be reversed as the
    result of this legal action. J.T. requires a stable interim care placement pending 
    final determination of what her ultimate placement will be.

[20]

Third, I am persuaded that based on the harms I
    have identified, D.L. and M.L., and J.T., will suffer greater harm if I refuse
    to grant a stay, than Dilico, D.C., other members of J.T.s family or her
    Indigenous community will experience if I order a stay.

[21]

Having said that, the law is clear that as an
    Indigenous child, J.T.s best interests require that attention is paid to specific
    considerations, which affect both the irreparable harm and greater harm
    considerations discussed above. Subsection 74(3) of the
CYFSA

obligates
    courts, when determining the best interests of Indigenous children, to
    consider the importance  of preserving the childs cultural identity and
    connection to community. The preamble to the
CYFSA
makes clear how
    important it is in the spirit of reconciliation to care for Indigenous
    children in accordance with their distinct cultures, heritages and traditions.
    Section 10 of
An Act respecting First Nations, Inuit and Métis children,
    youth and families

removes any doubt that an ongoing relationship between
    the family and the childs Indigenous community is of central concern. Specifically,
    s. 10 provides:

10(1) The best interests of the
    child must be a primary consideration in the making of decisions or the taking
    of actions in the context of the provision of child and family services in
    relation to an Indigenous child, and, in the case of decisions or actions
    related to child apprehension, the best interests of the child must be the
    paramount consideration.

(2) When the factors referred to in
    subsection (3) are being considered, primary consideration must be given to the
    childs physical, emotional and psychological safety, security and well-being,
    as well as the importance, for that child, of having an ongoing relationship
    with his or her family and with the Indigenous group, community or people to
    which he or she belongs and of preserving the childs connections to his or her
    culture.

[22]

I do not disregard the fresh evidence confirming
    D.L.s Indigenous status, proof that was not available before the appeal judge.
    However, I agree with Dilico that the stay I order must make meaningful
    provision that enables Dilico to take reasonable steps to nurture J.T.s
    connection to her Indigenous culture, her family and her community, pending the
    final determination of the appeal. I therefore impose conditions on the stay I
    am ordering, and in recognition that this may not be adequate, I will also be
    ordering that this appeal be expedited.

DISPOSITION

[23]

The Order of Newton J. of the Ontario Superior
    Court of Justice dated September 7, 2021, Court File No. FS-20-0062-00AP, is
    stayed pending appeal. The following conditions apply:

1.       The
    most recent customary care agreement and the alternative care agreement shall remain
    in effect pending further order of the court. However, any authority that Dilico
    had as guardian to determine J.T.s custody placement is suspended, and J.T. shall
    not be removed from the physical care or control of D.L. and M.L. pending the
    final determination of this appeal. The obligation of D.L. and M.L. to
    participate with Dilico in developing a Plan of Care for the child in care is
    also suspended.

2.       The
    mother D.C. and the father B.T. and R.C. shall be entitled to supervised access
    to J.T., in Thunder Bay, on the following conditions:

a. The
    access of the parents and great aunt shall not, in combination, exceed 48 hours
    per month.

b. There shall not be any overnight access at this time.

c.

No other individuals, other than supervisors, the Office of the
    Childrens Lawyer or an agreed third party shall attend the access visits.

d.

R.C. shall refrain from having the child refer to her as mother or
    mom.

[24]

I am not prejudging the contested validity of the
    recent customary care agreement and the alternative care agreement by ordering
    that they be in effect pending the appeal. These agreements, the terms of which
    have been agreed to by the applicants, provide a mechanism for ensuring that J.T.
    continues to receive services, and that her needs as an Indigenous child are
    attended to pending the completion of the appeal.

[25]

As indicated, I am also ordering that this
    appeal be expedited. It is in J.T.s interest to have this matter resolved urgently
    and there is no impediment to having an appeal proceed quickly. The applicants
    are requesting a second appeal and the bulk of the required documentation and
    argument is already available.

[26]

The applicants request for an order admitting
    fresh evidence is premature. That motion must be brought before the panel
    hearing the appeal.

[27]

If intervenors are permitted to participate in
    the appeal, the applicant shall be permitted to file a factum exceeding 30
    pages, not to exceed 45 pages.

[28]

Pursuant to s. 89(3.1) of the
Courts of
    Justice Act
, R.S.O 1990, c. C.43, the Office of the Childrens Lawyer may
    act as legal representative for J.T.

[29]

Within 10 days of the release of this decision,
    the parties may provide costs submissions in writing not to exceed 3 pages,
    supported by bills of costs.

David
    M. Paciocco J.A.


