Appeal Court Considers Role of Foster Parents and Customary Care Arrangements

A six-year old indigenous girl was the focus of the Ontario Court of Appeal’s decision in ML v. Dilico Anishinabek Child and Family Care 2022 ONCA 240 where the court considered whether the child’s caregivers since she was 8-days old could bring a parenting application pursuant to the Children’s Law Reform Act. Dilico had apprehended the child and placed her in the temporary care of the appellants pursuant to a Temporary Care Agreement.

A motions judge had ruled in the appellants’ favour, however, an appeal judge overturned the decision, holding that as “foster parents” they were precluded from bringing the application.  This judge also held that there was a “customary care agreement” in place that authorized Dilico to make placement arrangements with no need for judicial oversight. 

The young girl, JT, was a special needs child whose biological mother, DC, was a member of the Berens River First Nations of Manitoba. Her father, BT, was not indigenous. Both parents resided in Thunder Bay Ontario, as did JT’s caregivers, ML and DL.  JT had a loving relationship with her biological mother, but DC had never parented her, realizing that she could not care for her. DC made it known that she wanted JT to leave the care of the only caregivers she had ever known who she called mom and dad,  ML and DL, and leave Thunder Bay and take up residence with DC’s maternal aunt, RC, who lived in the Berens River First Nation. Dilico was on side with DC’s wishes, hence the application by ML and DL and the subsequent appeals.

ML and DL first brought a parenting application in June 2017, which was met with Dilico filing a protection application under the Child, Youth and Family Services Act, 2017, which led to an automatic stay of ML and DL’s parenting application. ML and DL brought an application to be added as parties to Dilico’s application but Dilico was granted leave to withdraw their application and did so. Meanwhile JT remained with ML and DL.

The Ontario Court of Appeal identified the uncertainty surrounding the nature, the number, and the circumstances of various care agreements signed following Dililco’s apprehension of JT, finding that many of the agreements were not signed by DC, BT or the Berens River First Nation. In July and August 2018 Dilico, Berens River First Nation and DC executed an agreement. It was not clear whether BT was approached to be a signatory. The agreement did not identify a customary caregiver and JT remained in the care of the appellants. 

ML and DL attempted to pick up where they had left off with their parenting application which saw Dilico bring a motion to strike their application, arguing that the appellants were foster parents and thus ineligible to bring an application.  While their parenting application was pending they brought an urgent motion to prevent Dilico from sending JT to Manitoba. That order was made, as well as an order that JT continue to reside with the appellants on a temporary basis. 

The first appeal order was stayed pending the Ontario Court of Appeal’s consideration of the case and an order was made appointing the Office of the Children’s Lawyer to represent JT’s interest. Two intervenors were also permitted to be involved: the Association of Native and Child Services Agencies and the Nishnawbe Aski Nation.

There were two issues on appeal: Whether the appeal judge erred in concluding that the care agreements provided authority for Dilico and Berens First Nation to make legal decisions on behalf of JT without review by the courts and whether the appeal judge erred in determining that ML and DL were foster parents and barred from making a parenting order for JT. 

All parties were in agreement that the inability of JT’s mother to care for her directly engaged Ontario’s  child protection legislation.  Section 1(2) of the Act provides that First Nations, Inuit, and Metis peoples wherever possible should be entitled to provide their own family and child services and that the cultures, heritages, and traditions of indigenous peoples should be respected. 

Customary care  is defined in the legislation as the care and supervision of a First Nations, Inuk or Metis child by a person who is not the child’s parent in accordance with the custom of the child’s band or community. This concept plays a central role in the mandate of section 1 (2) and is the preferred approach for indigenous children as opposed to court-related processes and care.  Courts can become involved in customary care arrangements where there is evidence of bad faith or improper procedure. 

Dilico conceded that the care agreements involving JT were not typical customary care agreements, but nevertheless sought to rely on the legislative preference for customary care, despite placing JT in a home that did not satisfy the definition of customary care nor invoke the customs of the Berens River First Nation. In essence, Dilico did not appear to have complied with the legislation to “make all reasonable efforts to pursue a plan for customary care.” 

The court also pointed out the irregularities in the agreements entered into. Many were not signed by JT’s father, one was not signed by either JT’s mother or father and another one was not signed by the First Nation. The appeal court concluded that the customary care agreements were invalid. 

The court then turned to the issue of the status of the appellants and determined that their ability to apply for a parenting order was not tied to whether they were foster parents or  customary caregivers, noting that while much argument in the courts below focused on whether they were foster parents or customary caregivers, nothing turned on it.  The court cited authority for the proposition that both foster parents and customary caregivers can be made parties to a child protection proceeding.

The court also remarked that the court below had erred in finding that foster parents could not apply for parenting orders. The rule cited by the lower appellate court only dealt with who must be a party to a parenting application and did not limit others who may be added as parties citing AM v. Valoris Pour Enfants et Adultes de Prescott-Russell 2017 ONCA601. The court also stated that section 21(2) of the Children’s Law Reform Act is very broad: “any person…may apply to a court for a parenting order…”. Further, section 62(3) of the Act would require the appellants to be parties by virtue of their involvement with JT. 

The court then turned to consider the relevance of the federal legislation, An Act respecting First Nations, Inuit and Metis Children, Youth and Families SC 2019 c.24, legislation that establishes national minimum standards for child and family services delivery to indigenous children and families. 

This Act permits First Nations to displace provincial child protection legislation, but Berens River First Nation did not seek to enter into a tripartite agreement under the federal legislation and so Ontario’s child protection legislation governed.  Dilico and the intervenors argued that the Children’s Reform Act could not be used to evade the national standards in the federal legislation, but the appeal court found that a court exercising jurisdiction under the provincial custody legislation would be required to apply the national standards in deciding the appellant’s parenting application.     

Consequently, the appeal was allowed and the original order of the motions judge was reinstated pending a fresh hearing pursuant to the Children’s Reform Act.    

In reviewing the litigation history of this case, it is apparent that JT’s caregivers, her only parents, albeit not by biology, continued to advocate on her behalf in the face of a presumably well-funded First Nations community and likeminded intervenors.  To remove a child from the only home she knew and send her to live in a different province with a stranger defies comprehension.   

Lawdiva aka Georgialee Lang

**This article first appeared in The Lawyer’s Daily, a publication of Lexis Nexis Canada.                                                                                                                                                                   

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