Stay order allowed, Indigenous minor allowed to remain with caregivers pending appeal: court

Serious issues must be resolved before reuniting child with family members and Indigenous community

Stay order allowed, Indigenous minor allowed to remain with caregivers pending appeal: court
The most important consideration is still the best interest of the child

The Court of Appeal for Ontario stayed pending appeal an order of the Ontario Superior Court of Justice that allowed the removal of a minor from their caregivers to be reunited with family members in her community.

In M.L. v. B.T., 2021 ONCA 683, the respondent parents of an eight-day-old child entered into a short temporary care agreement with the respondent Dilico Anishinabek Family Care (Dilico). Instead of choosing a remedy under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 Sched 1, Dilico chose to develop customary care plans outside the court system, placing the child in the care of the appellants.

Months later, Dilico proposed a permanency plan to reunite the child with her family in the Indigenous community. However, the appellants instituted custody proceedings over the child, believing that it was in her best interest to remain with them. Dilico opposed, stating that the appellants were “foster parents” and are thus prohibited from applying for custody of the child. In response, the appellants claim that they are not foster parents but “care providers,” and that the customary care agreements are invalid and are not in the best interest of the child.

The Ontario Court of Justice dismissed Dilico’s motion, ruling that the appellants were entitled to continue their custody application. Dilico appealed the order to the Ontario Superior Court of Justice, which set aside the motion judge’s decision and struck down the appellant’s application for custody.

On appeal, the appellants filed a motion to stay the appeal judge’s pending final determination of their intended appeal. Dilico does not oppose the conditional stay, recognizing that it will not be in the best interest of the child to be removed from her current residence only to have her return should the appellants ultimately succeed on appeal.

Citing three factors required for consideration, the Court ruled that a stay of the appeal judge’s decision was in the interest of justice.

First, the Court recognized that there are serious issues to be tried, particularly on the proper evaluation of the best interests in the placement of Indigenous children similarly situated and the effect of the out-of-court customary care agreements. Second, considering the extreme care and close bond between them, both the appellants and the child would suffer irreparable harm without final determination of the questions identified, said the Court. Lastly, the appellants would suffer great harm if the stay was refused as opposed to the harm experienced by Dilico and the other respondents should the stay be ordered.

Nevertheless, the law is clear that in determining the best interest of an Indigenous child, courts must “consider the importance … of preserving the child’s cultural identity and connection to community,” said the Court. Thus, the Court imposed conditions on the stay order pending appeal, including the respondents’ supervised access to the child, and ordered that this appeal be expedited.

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