Ontario's top court stays decision in case involving Indigenous child in need of protection

Appeal raises questions on proper evaluation of best interest in placement of Indigenous children

Ontario's top court stays decision in case involving Indigenous child in need of protection
Jessica Gagné is lawyer for the appellants.

In a case involving a 6-year-old Indigenous child in need of protection, an appeal judge has stayed a Superior Court decision to remove the child from the care of a family pending final determination on appeal.

In M.L. and. D.L. v. Dilico Anishinabek Family Care, Dilico Anishinabek Family Care placed a child in the applicants care eight days following the child’s birth. Dilico planned to terminate the placement so the child could be with her mother’s family at Berens River First Nation in Manitoba.

Court of Appeal Justice David Paciocco wrote that the appeal will raise important questions about the proper evaluation of best interests in the placement of Indigenous children who have been apprehended and will invite close consideration of the effect of out-of-court customary care agreements.

Dilico says its decision serves the child’s best interests by preserving her links to her Indigenous culture, family, and community. However, the appellant argued that it is in the child’s best interests that she remains in their care. Accordingly, they launched a custody application pursuant to the Children’s Law Reform Act.

Jessica Gagné, the lawyer for the appellants M.L. and. D.L, says this case is about who can decide what's in the child’s best interests.

"My clients want a court to decide what is in her best interest. So, it all really comes down to is the determination of the child’s best interest a matter for the first First Nation to decide outside of the court process? Or is the child entitled to have a neutral independent decision maker decide what is in her best interest?”

Dilico took the position that as foster parents within the meaning of s. 2 of the Child, Youth and Family Services Act (CYFSA), the applicants are prohibited by the Child, Youth and Family Services Act, s. 102, and Family Law Rules, s. 7(4) from applying for or obtaining custody of the child and brought a motion to strike the custody application on this basis. 

The applicants argued 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 because the CYFSA does not provide for out-of-court customary care agreements and maintains that Dilico’s customary care plan is not in the child’s best interests as required by the CYFSA.

The child was placed in the care of Dilico under a short temporary care agreement signed between Dilico and the child’s parents. Dilico placed the child in the care of the applicants while maintaining contact with her biological family.

Under the CYFSA, children’s aid societies are obligated to reasonably pursue a customary care plan for Indigenous children in need of protection and placed into extended care through a plan for customary care, an adoption, or custody order. However, Dilico did not pursue these mechanisms but instead developed a customary care plan for the child outside the court system.

On March 3, 2020, an Ontario Court of Justice judge agreed with the applicants and dismissed Dilico’s motion. She ruled that the applicants were entitled to continue their custody application and awarded them interim custody. Dilico appealed the motion judge’s order to the Superior Court of Justice. On September 7, Justice Newton of the Ontario Superior court released an appeal decision, setting aside the applicants’ custody application and 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. The Association of Native Child and Family Services Agencies of Ontario and the Nishnawbe Aski Nation were also granted intervenor status and supported Dilico’s legal position.

The appeal court stay order assures that the child is not removed from the applicants’ care pending the final determination of Justice Newton’s appeal decision.

Dilico did not oppose a conditional stay requiring the child to continue to reside with the applicants pending the final appeal determination but requested that the conditional stay maintain their role as the child’s legal guardian.

The appeal court stay order suspended Dilico as guardian to determine the child’s custody placement, ordered that the child shall not be removed from the physical care or control of the applicants pending the final determination of this appeal and suspended the obligation of the applicants to participate with Dilico in developing a plan of care for the child. Justice Paciocco also ordered an appeal expedition to resolve the case urgently for the child’s best interests.

Gagné told Law Times that this might be one of the first cases to consider the interplay between s. 7 of the charter and s. 35 of the Constitution, the Aboriginal right to self-governance section.

This case is interesting because it involves the s. 7 rights of an Aboriginal child to have a court or a neutral, impartial decision-maker decide what is in her best interest versus the s. 35 self-governance right of a First Nation to govern their child welfare matters, Gagné says.

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