



WARNING

This is a case under the
Child, Youth and Family
    Services Act, 2017
and subject to subsections 87(8) and 87(9) of this
    legislation.
These subsections and subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the
    consequences of failure to comply, read as follows:

87
(8)
Prohibition re identifying child
 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.

(9)
Prohibition
    re identifying person charged
 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.

142
(3)
Offences re publication
 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., 2022 ONCA 240

DATE: 20220323

DOCKET: C69821

Huscroft, Trotter and Coroza
    JJ.A.

BETWEEN

M.L. and D.L.

Appellants

and

B.T. and D.C.

Respondents

and

Dilico Anishinabek Family Care

Respondent

Jessica Gagné, for appellants

No one appearing for the respondents
    B.T. and D.C.

Katherine Hensel and Kristie Tsang, for
    the respondent Dilico Anishinabek Family Care

Caterina E. Tempesta, Ian M. Ross,
    Maureen Bulbrook and Lauren M. Conti for the Office of the Childrens Lawyer

Sarah Clarke and Alessandra Catalano
for the intervener Association of Native Child and
F
amily

Services

Agencies

of

Ontario

Asha James and Amanda Micallef for the
    intervener Nishnawbe Aski Nation

Heard: January 13, 2022 by video conference

On appeal from the judgment of Justice W.
    Danial Newton of the Superior Court of Justice, dated September 7, 2021.

Huscroft J.A.:

OVERVIEW

[1]

J.T. is a six-year-old Indigenous child and a
    member of the Berens River First Nation in Manitoba. She has been cared for by
    the appellants, M.L. and D.L., in Thunder Bay since she was eight days old. The
    question raised by this case is whether the appellants are entitled to bring an
    application under the
Childrens Law Reform Act
, R.S.O. 1990, c. C. 12
    (
CLRA
) for parenting orders for J.T.

[2]

The motion judge held that they were so entitled
    and dismissed Dilico Anishinabek Family Cares (Dilico) motion to strike
    their application. The appeal judge overturned the motion judges decision,
    holding that the appellants were foster parents and, as a result, were
    precluded from bringing a parenting/custody application under the
CLRA
.
    The appeal judge also held that there was a valid customary care agreement and
    authorized Dilico to make placement decisions concerning J.T. without judicial
    oversight. Dilico plans to place J.T. with her maternal great aunt, R.C., in
    Berens River.

[3]

The Office of the Childrens Lawyer (OCL) was
    appointed to represent J.T.s interests, and two organizations were granted
    intervener status in this appeal. Fresh evidence applications have also been
    brought by the OCL and Dilico.

[4]

I conclude that the appellants are entitled to
    bring their application under the
CLRA
and that the appeal judge erred
    in concluding otherwise.

[5]

In short, Dilico acted without legal authority
    under the
Child, Youth and Family Services Act, 2017
, S.O. 2017, c.
    14, Sch. 1 (
CYFSA
) by maintaining
de facto
guardianship of J.T. following the expiry of the last of several temporary care
    agreements it entered. The care agreements entered subsequently, on which
    Dilico relies, were not consented to by all parties and are not valid customary
    care agreements.

[6]

The appellants are the only caregivers J.T. has
    ever known. They must be party to the decision about her best interests. The
    appellants are entitled to bring their
CLRA
application with Dilico and
    Berens River First Nation as parties to that application, along with J.T.s
    maternal great aunt and the OCL. The best interests of J.T. will be determined
    by the court in accordance with the relevant statutory and constitutional
    requirements.

[7]

I would allow the appeal for the reasons that
    follow.

BACKGROUND

[8]

J.T. is a six-year-old child with special needs.
    Her biological mother, D.C., is a member of the Berens River First Nation of
    Manitoba but resides in Thunder Bay, Ontario. J.T.s biological father, B.T.,
    also resides in Thunder Bay but is not Indigenous.

[9]

J.T. has a full biological sister, W.C., who is
    in extended care and lives in a long-term foster placement in Thunder Bay. J.T.
    and W.C. know that they are sisters and have a close and loving relationship.
    The sisters have regular contact and visit with each other at least monthly.

[10]

J.T. has a loving relationship with her
    biological mother, D.C., but D.C. has never parented J.T. and realizes that she
    cannot care for her as a parent. D.C. wants J.T. to live with her maternal
    great aunt, R.C., who lives in the Berens River First Nation. R.C. also cared
    for another of J.T.s sisters. Dilico has for some time planned to remove J.T.
    from the appellants care and place her with R.C.

[11]

J.T. has lived with the appellants M.L. and D.L.
    since she was eight days old. She has a loving relationship with them. They are
    the only caregivers she has ever known.  She considers them to be her parents.
    D.L. is a status member of the Couchiching First Nation, which, he says, is an
    Ojibway community like Berens River First Nation. M.L. is not Indigenous.

[12]

J.T. was born in Thunder Bay. The hospital made
    a referral to Dilico, which apprehended J.T., executed a Temporary Care
    Agreement with her biological parents D.C. and B.T., and placed her in the care
    of the appellants. At the outset, the appellants cared for J.T. as foster parents
    pursuant to a Temporary Care Agreement executed between the biological parents
    and Dilico. However, this agreement expired on February 20, 2016.

[13]

There is considerable uncertainty surrounding
    the nature, number, and circumstances of the various care agreements that were
    signed following the expiry of the Temporary Care Agreement concerning J.T.s
    care in February 2016. Not all the relevant agreements were before the lower
    courts, and the validity of some of those agreements is disputed.

[14]

It is clear, however, that the appellants did
    not sign all the care agreements. J.T.s biological father did not sign any of
    the care agreements following the expiry of the first Temporary Care Agreement
    in 2016.

[15]

In June 2017, the appellants started an application
    under the
CLRA
for a parenting order for J.T., with reasonable parenting
    time on reasonable notice for D.C. and B.T. Dilico responded by starting a protection
    application under the
CYFSA
, which had the effect of automatically
    staying the appellants
CLRA
application pursuant to s. 103 of the
CYFSA
.

[16]

The appellants brought a motion to be added as
    parties to Dilicos protection application, but Dilico was granted leave to
    withdraw that application and it did not proceed. J.T. remained with the
    appellants and they revived their
CLRA
application.

[17]

In July and August 2018, for the first time,
    Dilico and Berens River First Nation executed an agreement with D.C. only. It
    is not clear whether Dilico made any attempt to obtain B.T.s consent to this
    agreement. Neither B.T. nor the appellants are signatories to that agreement.
    The agreement does not identify a customary caregiver. J.T. remained in the
    care of the appellants.

[18]

The appellants attempted to continue with their
    application for a parenting order under the
CLRA
. In November 2018,
    Dilico brought a motion to strike their application, arguing that the
    appellants were foster parents and, as such, were precluded from party status
    on any parenting application for J.T.

[19]

In 2019, while their
CLRA
application
    was pending, the appellants brought an emergency motion to prevent Dilico from
    sending J.T. to Manitoba. Justice Bode granted the motion and ordered that J.T.
    continue to reside with the appellants on a temporary basis.

DECISIONS BELOW

The Motion Decision

[20]

The motion judge dismissed Dilicos motion to
    strike the appellants
CLRA
application. She rejected Dilicos claim
    to legal guardianship of J.T., noting that guardianship was not granted by a
    court and was not otherwise legally substantiated. The motion judge also rejected
    Dilicos argument that the appellants application under the
CLRA
could not proceed because of the existing care agreement, finding that the
    agreement constituted an out-of-court agreement that did not have a nexus
    with the
CYFSA
.

[21]

The motion judge rejected Dilicos argument that
    the appellants were foster parents, and so were prohibited from being parties
    to any application regarding J.T. by r. 7(4) of the
Family Law Rules
,
    O. Reg. 114/99 (
FLR
s). The motion judge found that the appellants
    were customary caregivers, not foster parents, and were therefore not covered
    by r. 7. The motion judge added that even if the appellants were foster
    parents, she would have exercised her discretion to allow them to bring their
    application pursuant to r. 7(5).

[22]

The motion judge rejected Dilicos argument that
    she should defer to its placement decisions. The out-of-court care agreement was
    not a
CYFSA
matter, and there was no statutory basis for Dilico to
    make the placement decision. Moreover, the evidence showed that Dilico had
    considered factors other than the best interests of the child in deciding to
    move J.T. The motion judge ordered that the appellants parenting order application
    under the
CLRA
could proceed.

The Appeal
    Decision

[23]

The appeal judge allowed the appeal. He found
    that the motion judge erred in law in concluding that out-of-court care
    agreements did not fall under the scope of the
CYFSA
. The appeal judge
    concluded that customary care agreements were an important and preferred
    component of the
CYFSA
, and the absence of the biological fathers
    signature did not invalidate the customary care agreements in this case.

[24]

The appeal judge stated that he was very
    sympathetic to the appellants plight and to their decision to seek decision-making
    responsibility given Dilicos actions and its delay in dealing with J.T.s
    care. Nevertheless, he struck the appellants
CLRA
application and
    prohibited them from being parties in a case involving decision-making
    responsibility or parenting time in respect of J.T.

Court of Appeal Motion Decisions

[25]

Justice Paciocco stayed the appeal judges order
    pending the disposition of this appeal. He also appointed the OCL to represent
    J.T.s interests. Subsequently, the Association of Native Child and Family
    Services Agencies and the Nishnawbe Aski Nation were granted permission to
    intervene.

ISSUES ON APPEAL

[26]

The appellants raise two issues on this appeal.
    First, did the appeal judge err in concluding that the care agreements provide
    Dilico and Berens First Nation with the authority to make legal decisions as to
    J.T.s best interests without review by a court of law? Second, did the appeal
    judge err in determining that the appellants were foster parents and
    therefore barred from party status on any application regarding parenting
    orders for J.T.?

[27]

The fundamental question can be stated more
    simply: are the appellants entitled to proceed with their
CLRA
application? If they are, then this matter must be returned to the court of
    first instance to determine a plan of care that is in J.T.s best interests.

[28]

Whether the appellants are entitled to proceed
    with their
CLRA
application is a question of law, reviewable on a
    standard of correctness.

DISCUSSION

[29]

I begin by considering the
CYFSA
and
    its treatment of customary care. I then turn to consider whether judicial
    oversight is required by the legislation. Finally, I will address whether the
    appellants are entitled to pursue their
CLRA
application.

The
CYFSA
is engaged

[30]

All parties agree that the inability of J.T.s
    biological parents to care for her directly engages the
CYFSA
.

[31]

The paramount purpose of the
CYFSA
, set
    out in s. 1(1), is to promote the best interests, protection, and well-being of
    children. The
CYFSA
sets out additional purposes that apply to all
    children in s. 1(2), such as supporting the autonomy and integrity of the
    family unit, using the least disruptive course of action, and individualizing
    services to a child in a manner that:


i.

respects a childs or young persons need for
    continuity of care and for stable relationships within a family and cultural
    environment;


ii.

takes into account physical, emotional,
    spiritual, mental and developmental needs and differences among children and
    young persons;


iii.

takes into account a childs or young persons
    race, ancestry, place of origin, colour, ethnic origin, citizenship, family
    diversity, disability, creed, sex, sexual orientation, gender identity and
    gender expression;


iv.

takes into account a childs or young persons
    cultural and linguistic needs;


v.

provides early assessment, planning and
    decision-making to achieve permanent plans for children and young persons in
    accordance with their best interests; and


vi.

includes the participation of a child or young
    person, the childs or young persons parents and relatives and the members of
    the childs or young persons extended family and community, where appropriate.

[32]

Importantly, s. 1(2) of the
CYFSA
includes an additional purpose distinct to First Nations, Inuit and Métis
    peoples: wherever possible, they should be entitled to provide 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.

[33]

Customary care plays an important role in
    meeting this purpose as well as meeting the other purposes of the
CYFSA
,
    including its paramount purpose to promote the best interests, protection, and
    well-being of children.

Customary care under the
CYFSA

[34]

What is customary care? The concept is defined
    in s. 2(1) of the
CYFSA
as the care and supervision of a First
    Nations, Inuk or Métis child by a person who is not the childs parent,
    according to the custom of the childs band or First Nations, Inuit or Métis
    community. I note the use of the word person and not agency in this
    definition.

[35]

Customary care is the preferred approach for
    Indigenous children. Section 80 of the
CYFSA
requires a society
    to make all reasonable efforts to pursue a plan for customary care for a
    First Nations, Inuk or Métis child if the child:

a.

is in need of protection;

b.

cannot remain in or be returned to the care and custody of the
    person who had charge of the child immediately before intervention under this
    Part or, where there is an order for the childs custody that is enforceable in
    Ontario, of the person entitled to custody under the order; and

c.

is a member of or identifies with a band, or is a member of or
    identifies with a First Nations, Inuit or Métis community.

[36]

The practice of customary care arose as an
    alternative to court-related processes and court-ordered care, so that First
    Nation children and youth can be both protected from health and safety concerns
    while remaining strongly connected to their culture and communities.

[37]

Customary care agreements encourage the parties
    to resolve issues concerning a childs 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
    childs care as a collective responsibility.

[38]

Like any agreement, customary care agreements
    require informed and voluntary consent: see s. 21 of the
CYFSA
. The
    childs legal parents (in most cases the biological parents), the proposed
    alternative caregivers, the child welfare agency, and a representative of the
    First Nation must all agree that the child is in need of protection, and they
    must all agree to the terms and conditions of the proposed plan for care: see
    Ministry of Children and Youth Services,
Formal Customary Care: A Practice
    Guide to Principles, Processes and Best Practices
(Queens Printer for
    Ontario, 2013) (MCYS Guide).

[39]

Customary care does not operate outside judicial
    oversight. As Justice Wolfe noted in
Kina Gbezhgomi Child and Family
    Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F.
(3 March
    2021), Gore Bay, K-16-0028-3 (Ont. C.J.), at para. 60, the courts may become
    engaged where there is evidence of bad faith or improper procedure:

I find that the
CYFSA
does not
    include statutory timelines that need to be strictly enforced by courts
    regarding customary care. In choosing that path, the parties to a [customary
    care agreement] agree that it is in the child(ren)s best interests to avoid
    adversarial child protection proceedings in Canadian courts.
This is subject to evidence of bad faith or improper procedure
    which could render placements made out of court invalid.
[Emphasis
    added.]

[40]

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:
Winnipeg Child
    and Family Services v. K.L.W.
, 2000 SCC 48, [2000] 2 S.C.R. 519;
Kawartha-Haliburton
    Childrens Aid Society v. M.W.
, 2019 ONCA 316, 432 D.L.R., at paras.
    68-69.

Judicial oversight is required

[41]

The agreement in this case was not a typical
    customary care agreement. In essence, Dilico seeks to rely on the legislative
    preference for customary care agreements to urge non-interference by the court,
    despite having failed to provide care that satisfies the definition of
    customary care under the
CYFSA
.

[42]

As noted above, the
CYFSA
defines
    customary care at s. 2(1) as the care and supervision of a First Nations,
    Inuk or Métis child
by a person
 (emphasis added).
    Dilico acknowledges that J.T. has been with a family for the past six years who
    could not and did not provide her with care and supervision according to the
    custom of the Berens River First Nation.

[43]

On Dilicos own account, then, it appears 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.

[44]

Dilico asserts that, as a child welfare agency,
    it had and continues to have legal guardianship of J.T. and that this legal
    guardianship constitutes a form of customary care. I do not agree. The
    provision of care and supervision to an Indigenous child by a child welfare
    agency does not conform to the definition of customary care. As noted above,
    customary care must be provided by a person. Dilico is a child welfare agency
    and is distinct from Berens River First Nation.

[45]

The court requires evidence about the customs of
    Berens River First Nation to make a culturally-informed decision consistent
    with the
CYFSA
:
Kina Gbezhgomi Child and Family Services
,
    at para. 58. There is scant evidence in this regard. Dilico filed an undated
    letter from Berens River First Nation that refers to raising children within
    the First Nation, where all immediate family members and extended family are
    involved. Given that J.T. has been in Thunder Bay in the appellants care for
    six years, this is clearly not what happened here.

[46]

There were many additional deficiencies in
    Dilicos approach. Although J.T.s biological father signed the Temporary Care
    Agreement that ended in February 2016, the motion judge found that he did not
    sign any of the subsequent care agreements. Dilico offered no explanation for
    this. One of the agreements, dated 2018, was not even signed by J.T.s
    biological mother. The most recent agreement in evidence was not signed by
    Berens River First Nation. None of the care agreements specify the person(s)
    who will care for J.T. None of the agreements are signed by the caregivers.

[47]

Setting out terms and expectations for care in
    customary care agreements is prudent: it reduces the chances of future
    disagreements and provides a mechanism for addressing any disagreements that
    may arise, and in this way furthers the goal of keeping disputes out of the
    court system.

[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.

[49]

In this case, Dilico acted without statutory
    authority, without the legal parents consent, and without the timely
    involvement of Berens River First Nation. The agreements it made are not valid
    customary care agreements and have understandably led to confusion and delay.

[50]

Section 80 of the
CYFSA
contemplates continued
    court oversight to promote the goals of customary care and the childs best
    interests: see for example
Ogwadeni:deo v. P.E.
, 2020 ONCJ 145;
Childrens
    Aid Society of Brant v. R.P.
, 2019 ONCJ 649 and
D.A. v. G.H. and
    Dilico Anishinabek Family Care
, 2021 ONCJ 95. The best opportunity for
    this oversight would have been when Dilico sought to withdraw the child
    protection application despite not having a valid customary care agreement for
    J.T.

The appellants are entitled to pursue their
CLRA
application

[51]

Having determined that court oversight is
    appropriate, the question remains whether the appellants are entitled to
    proceed with their application. As I will explain, the appellants ability to
    pursue a
CLRA
application is not tied to whether they are considered
    foster parents or customary caregivers. Further, in the absence of a valid
    customary care agreement, the appellants are not precluded from bringing a
CLRA
application.

(a)

Nothing turns on whether the appellants are
    characterized as foster parents or customary caregivers

[52]

J.T. calls the appellants mom and dad, and
    they have acted in that capacity since she was born. The
motion judge
    found that the appellants were not foster parents but also that, even if they
    were, she would have allowed their application to proceed.

[53]

Much has been made of the distinction between foster
    parents and
customary caregivers on this appeal. But in my view, nothing turns on it. The
    appellants are necessary parties under either the
CYFSA
or
CLRA
regardless of how they are characterized.

[54]

Both foster parents and customary caregivers can
    be made parties to a proceeding under the
CYFSA
: see
A.M. v. Valoris
    Pour Enfants et Adultes de Prescott-Russell
, 2017 ONCA 601;
Kina
    Gbezhgomi Child and Family Services
. Both can also bring a
CLRA
application in the absence of any ongoing child protection proceeding or valid
    customary care agreement:
C.G.W. v. M.J. et al
(1981), 34 O.R. (2d) 44
    (C.A.);
J.E.O. v. M.D.
, 2020 ONSC 6106. The court has the discretion
    to add these individuals as parties to a child protection proceeding or
    determine whether their
CLRA
application may proceed.

[55]

The appeal judge erred in concluding that r. 7
    of the
FLR
s precluded the appellants, as foster parents, from
    applying for parenting orders for J.T. under the
CLRA
. Rule 7(4) is
    concerned only with who must be named as a party:

In any of the following cases, every
    parent or other person who has care and control of the child involved, except a
    foster parent under the
Child, Youth and Family Services Act
, 2017,
    shall be named as a party, unless the court orders otherwise:

1.

A case about decision-making responsibility, parenting time or contact
    with respect to a child.

2.

A child protection case.

[56]

Rule 7(4) does not limit who may be named as
    parties in the types of cases listed. It specifies who
must
be named. Rule 7(5) permits the court to add appropriate people as parties.
Thus, in
Valoris Pour Enfants et Adultes de Prescott-Russell
,
    at para.
20, this court stated that both r. 7(4) and
    s. 39(3) of the
CFSA
preserve the courts discretion to add a foster
    parent as a party to a child protection proceeding, albeit adding that care
    must be taken in exercising the discretion to add a foster parent.

[57]

Similarly, even a caregiver who ultimately
    disputes the terms of a formal customary care agreement could give written
    notice to terminate the agreement and bring a
CLRA
application to have
    that dispute adjudicated in the childs best interests. This was the approach
    recognized by Justice Kurke in
J.E.O. v. M.D.
, at para. 57:

The [customary care agreement] is based on the
    voluntary participation of all parties, including the appellant. There are
    provisions that allow for regular review and discussion of aspects of the plan
    of care, to permit modification over time. Importantly, the appellant has it in
    her power to collapse the [customary care agreement] by giving written notice
    of her intention to do so. That would permit a reconsideration of protection
    issues, if necessary, but could remove one barrier blocking the appellants
    ability to seek custody of L.A.D.

[58]

In
that
    case,
the court declined to lift a stay of the appellant customary
    caregivers
CLRA
application for sole decision-making responsibility and
    parenting time for the child, despite the appellant having signed a valid
    customary care agreement with the mother, father, Wikwemikong Unceded Indian
    Reserve, Kina Gbezhgomi Child and Family Services, and the Childrens Aid
    Society. The signatories to the customary care agreement agreed to various
    roles and responsibilities set out in detail, in addition to mechanisms for
    review and termination of the customary care agreement. Very few of those
    features are present in the agreement in this case.

[59]

The court in
J.E.O. v. M.D.
specifically distinguished the circumstances in that case from the motion
    judges decision in this case, in which the court had concerns about the
    customary care agreement. As
J.E.O. v. M.D.

held, a courts
    decision not to exercise its discretion to stay
CLRA
parenting order
    proceedings may be informed by issues such as voluntariness of participation by
    parties to a customary care agreement, the improper exclusion of necessary
    parties, review procedures, the right to terminate the agreement, the
    desirability of a longer-term placement, whether the customary care agreement
    is genuinely intended to foster the intention of the legislature or has been
    put in place for some collateral and impermissible purpose, or other such
    issues.

(b)

The
CLRA
provides an alternative avenue in the absence of an avenue under
    the
CYFSA

[60]

The
CYFSA
is the primary legislation in
    any case involving a child in need of protection, and it applied to J.T. from
    the outset. If Dilico had not withdrawn its child protection application, or
    the court had reviewed the validity of the purported customary care agreement
    and not permitted Dilico to withdraw the application, the appellants could have
    sought party status under the
CYFSA
. Absent a proceeding under the
CYFSA
initiated by a child protection society, the
CLRA
was the only avenue
    open to the appellants.

[61]

If J.T. were in temporary care, she would have
    been subject to the statutory timelines at s. 122 of the
CYFSA
with a
    view to permanency planning. Various review mechanisms under the
CYFSA
,
    including ss. 115 and 116, as well as ss. 109(7) and (8), would have been
    engaged. Subsection 109 provides:

(7) If a child is in extended
    society care under an order made under paragraph 3 of subsection 101(1) of
    clause 116(1)(c) and has lived continuously with a foster parent for two years
    and a society proposes to remove the child from the foster parent under
    subsection (6), the society shall,

(a) give the foster parent at
    least 10 days notice in writing of the proposed removal and of the foster
    parents right to apply for a review under subsection (8).



(8) A foster parent who receives a
    notice under clause (7) (a) may, within 10 days after receiving the notice,
apply to the Board in accordance with the regulations for a
    review of the proposed removal.
[Emphasis added.]

[62]

Review by the Child and Family Services Review
    Board was not available to the appellants because of Dilicos approach. J.T.
    was neither a child in care, nor a child who had the benefit of a timely
    consideration of a potentially viable customary care plan with extended family
    that, according to the MCYS Guide, would have seen her placed in her First
    Nations community at a young age.

[63]

In the absence of a valid customary care
    agreement, nothing in either the
CYFSA
or the
FLR
s precludes
    the appellants from commencing a proceeding under the
CLRA
to
    determine what is in a childs best interests. Indeed, the right to apply to a
    court for a parenting order respecting decision-making responsibility and
    parenting time under s. 21(2) of the
CLRA
is very broad: [
a]ny person
other than the parent of a child, including
    a grandparent, may apply to a court for a parenting order respecting
    decision-making responsibility with respect to the child (emphasis added), and
    the court has the discretion to permit such an application to proceed.

[64]

In this case, there is no question that the
    appellants  the only caregivers J.T. has ever known  have relevant
    information that would assist the court in determining her best interests.
    Moreover, as the motion judge found, it is clear from s. 62(3) of the
CLRA
that if any other person had brought an application, the appellants would be
    required to be parties by virtue of their involvement with J.T. That subsection
    provides as follows:

(3) The parties to an application
    under this Part [decision-making responsibility, parenting time, contact and
    guardianship] in respect of a child shall include,

(a) the childs parents;

(b) a person who has demonstrated
    a settled intention to treat the child as a child of his or her family;

(c) a person who had the actual
    care and upbringing of the child immediately before the application; and

(d) any other person whose
    presence as a party is necessary to determine the matters in issue.

[65]

As the motion judge found, paragraphs (b), (c),
    and (d) undoubtedly apply to the appellants.

[66]

There is therefore no basis for precluding
CLRA
proceedings or the appellants participation in them. In all the circumstances
    of this case, the appellants
CLRA
application must be permitted to
    proceed to determine J.T.s best interests.

The relevance of the federal legislation

[67]

Having concluded that provincial laws and
    regulation permit the appellants
CLRA
application, it is necessary to
    consider the relevance of the federal legislation,
An Act respecting First
    Nations, Inuit and Métis children, youth and families
, S.C. 2019, c. 24 (
the
    federal Act
), which received royal assent in June 2019.

[68]

The federal Act
establishes national minimum standards for child and family services delivery
    for all Indigenous children and families. The Act has three purposes, as set
    out in s. 8:

(a) affirm the inherent right of
    self-government, which includes jurisdiction in relation to child and family
    services;

(b) set out principles applicable,
    on a national level, to the provision of child and family services in relation
    to Indigenous children; and

(c) contribute to the implementation
    of the United Nations Declaration on the Rights of Indigenous Peoples.

[69]

The key principles of
the federal Act
,
    set out in s. 9, are the best interests of the child, cultural continuity, and
    substantive equality. The Act provides, at s. 4, that [f]or greater certainty,
    nothing in this Act affects the application of a provision of a provincial Act
    or regulation to the extent that the provision does not conflict with, or is
    not inconsistent with, the provisions of this Act.

[70]

The federal Act
permits First Nations to displace provincial child protection laws in
    accordance with the procedure outlined in the Act: notice may be given of the
    intention to exercise jurisdiction and a request may be made to enter into a
    tripartite coordination agreement with federal and provincial authorities.
    Berens River First Nation has not sought to exercise jurisdiction in accordance
    with this procedure. It has neither given notice nor made a request to enter
    into a tripartite coordination agreement. As a result, the
CYFSA
continues to govern.

[71]

Dilico argues that the protections for
    Indigenous children that have been incorporated in the
CYFSA
and
    adopted in the national standards do not exist under the
CLRA
, so the
    appellants cannot proceed under that Act. The interveners similarly argue that
    the
CLRA
cannot provide a route by which the national standards are
    evaded.

[72]

This argument rests on a misunderstanding.
CLRA
proceedings would neither evade nor undermine the national standards. A court
    applying the
CLRA
will be required to apply the national standards in
    deciding the appellants application.

[73]

The
CLRA
, at ss. 24(1) and (2), requires
    that parenting orders be made based on the best interests of the child:

(1) In making a parenting order or
    contact order with respect to a child, the court shall only take into account
    the best interests of the child in accordance with this section.

(2) In determining the best
    interests of a child, the court shall consider all factors related to the
    circumstances of the child, and, in doing so, shall give primary consideration
    to the childs physical, emotional and psychological safety, security and
    well-being.

Section 24(3) then sets out a
    non-exhaustive list of factors related to the circumstances of the child, which
    include, at subparagraph (f), the childs cultural, linguistic, religious and
    spiritual upbringing and heritage, including Indigenous upbringing and
    heritage.

[74]

In deciding the appellants
CLRA
application, the court will have to interpret these provisions to incorporate
    the national standards set out in
the federal Act
and the
CYFSA
in a manner that harmonizes the legislation.

FRESH EVIDENCE APPLICATIONS

[75]

The OCL, as counsel for J.T., brought a motion
    for fresh evidence. The evidence consists of an affidavit from an OCL clinician
    and purports to contain the most up-to-date information regarding J.T.

[76]

Given the analysis above, the OCLs proposed
    fresh evidence is not relevant to whether the appellants are entitled to bring
    their claim. I would not admit it. It will be for the court hearing the
CLRA
application to consider the evidence concerning J.T. to determine her best
    interests according to the relevant statutory and constitutional principles.

[77]

Dilico has also brought a motion for fresh
    evidence. Dilico submits that the fresh evidence reveals further interactions
    between the appellants and Dilico and is directly relevant to the question of
    whether the appellants are foster parents.

[78]

For the reasons set out above, whether the
    appellants are foster parents is not relevant to whether the appellants are
    entitled to bring their claim. Accordingly, I would not admit Dilicos fresh
    evidence either.

CONCLUSION

[79]

I would dismiss the fresh evidence motions and allow
    the appeal, thus permiting the appellants application under the
CLRA
to proceed.

[80]

I would also reinstate the order of Justice
    MacKinnon dated March 3, 2020, pending the
CLRA
hearing.

[81]

The appellants are entitled to costs of the
    appeal and the proceedings below from the respondents. The parties may make
    brief submissions up to three pages in length within 30 days following this
    decision. The OCL and the interveners are not responsible for costs and shall
    pay their own costs of the appeal.

Released: March 23, 2022 G.H.

Grant
    Huscroft J.A.

I
    agree. Gary Trotter J.A.

I
    agree. S. Coroza J.A.


