First Nation A. v. A.B., 2020 BCPC 279

Citation: First Nation A. v. A.B. 2020 BCPC 279 Date: 20201118 File No: F-1744 Registry: Pemberton and North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: Baby A., born [omitted for publication] BETWEEN: FIRST NATION A. APPLICANT AND: A.B. (FATHER) and S.B. a.k.a. S.W. (MOTHER) PARENTS AND: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH REGARDING THE FIRST NATION A.’S APPLICATION FOR INCLUSION OF ITS CULTURAL PLAN IN A SECTION 41(1)(

d) CFCSA ORDER Counsel for the Director: C. LeBeau No one appearing for the Mother: S.B. Counsel for the Father: R.J.M. Yalowsky First Nation A. Representative: K. Hargitt Dates of Hearing: September 23, 2019 Counsel for the Director K. Diehl Counsel for the Father, A.B. A. Yalowsky Counsel for the Mother, S.B. A. Prkacin

First Nation A Representative K. Hargitt September 24-26, 30, 2019; October 1, 2019; November 19-21, 25-26, 2019 Counsel for the Director K. Diehl Father (In Person) A.B. Counsel for the Father, A.B. A. Yalowsky Mother (in person) S.B. Counsel for the Mother, S.B. A. Prkacin First Nation A Representative K. Hargitt January 24 and 31, 2020 Counsel for the Director K. Diehl Father (in person) A.B. Counsel for the Father, A.B. A. Yalowsky Mother (in person) S.B. Counsel for the Mother, S.B. A. Prkacin First Nation A Representative K. Hargitt August 18, 2020 Counsel for the Director C.

Le Beau (by phone) Counsel for the Father, A.B. A. Yalowsky (by phone) First Nation A Representative K. Hargitt (by phone) Places of Hearing: Pemberton and North Vancouver, B.C. Date of Judgment: November 18, 2020 A Corrigendum was released by the Court on December 24, 2020. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION: [ 1 ] The first issue that this decision addresses is whether a Provincial Court judge can order that the views and preferences of an Indigenous group be included in an order made under section 41(1)(

d) of the Child, Family and Community Services Act , (“ CFCSA ”), when not recommended by the Director of Child and Family Services, (“the Director”). [ 2 ] Issues that arise, in the circumstances of this case, within that overarching question, are: i. Am I functus ? ii. Does section 41(3) of the CFCSA preclude such a step? iii.

Does the new federal legislation, An Act respecting First Nations, Inuit and Metis children, youth, and families , S.C. 2019, c. 24 (“the Federal Act ”) impact a Provincial Court judge’s jurisdiction? [ 3 ] If the answer to the overarching first issue is “yes,” the next question is: Is it in Baby A’s best interests to include the Cultural Plan, or some part of it, in the

section 41 CFCSA order and, if “yes,” which parts? BACKGROUND: i. History of removals in this family [ 4 ] On May 8, 2018, Baby A, (then three months old), was removed from her parents’ care by the Director.

Baby A’s parents are both members of the First Nation A and live on the First Nation A reserve, at [omitted for publication], about two hours north of Vancouver. [ 5 ] Since her removal, Baby A has lived in a non-Indigenous foster home in Squamish, over an hour south of [omitted for publication]. [ 6 ] In 2000, when Baby A’s mother, S.B., was a child, S.B. and her siblings were removed from their parents’ care in [omitted for publication] for a period of time and placed in the same foster home as Baby A was placed in 2018 – non-Indigenous and away from the First Nation A community.

Ministry of Child and Family Development (“MCFD”) documents relating to S.B.’s time in care note: “Foster home doesn’t meet cultural needs, but regular visits with family,” as at October, 2000. [ 7 ] S.B.’s father, K.J., was placed in foster care when he was a child; there is a reference to the belief that he was abused while in care. [ 8 ] I set this history out, as it illustrates the disconnection from community experienced within this one family and sets part of the factual framework for the issues in this case.

ii. History of proceedings [ 9 ] On July 9, 2019, the Director filed an application for a continuing custody order under section 41(1)(

d) of the CFCSA in relation to Baby A. [ 10 ] Under

section 39 of the CFCSA , the First Nation A became a party to the proceeding. Baby A’s mother, S.B. and her father, A.B., both participated and were both represented by counsel. [ 11 ] Ms. Hargitt is the designate representative of the First Nation A; she attended and participated in the continuing custody order application hearing. Ms. Hargitt is trained as a social worker; she is not legally trained. She explained that the First Nation A does not have the financial means to fund legal counsel in a case such as this. Such a submission is consistent with the backdrop of poverty that permeated the evidence at the hearing. [ 12 ] The hearing of the Director’s

section 41 CFCSA application took place in Pemberton and North Vancouver over the last half of 2019 and early 2020. During the evidentiary portion of that application, Ms. Hargitt advised of the First Nation A’s intention to seek the inclusion, by reference or incorporation by some means, of a Cultural Plan in any order made by the court under

section 41 of the CFCSA in relation to the child. [ 13 ] During closing submissions in relation to the Director’s

section 41 CFCSA application, Ms. Hargitt made the current application on the First Nation A’s behalf, specifically seeking the inclusion of a Cultural Plan drafted by the First Nation A in any order made as a result of the Director’s

section 41 CFCSA application. No objection was taken to the Nation’s application by any of the other parties. [ 14 ] On June 30, 2020 I delivered Reasons for Judgment, granting the Director’s section 41(1)(

d) CFCSA application. In those reasons, I addressed the current application as follows: [273] The entering of the order is adjourned to permit the [First Nation A] to submit a Cultural Plan and for counsel to provide brief written submissions stating their position with regard to such a plan’s being appended to or referred to, or incorporated by reference, in the order. [274] If need be, a date to settle the order will be set to address the issue. While I am mindful of the further delay that this occasions, in the context of an already lengthy process, I am of the view that such a plan, for reference, is likely in Baby A’s best interest, having regard to subsections 10(3) (a), (

d) and (

f) of the Federal Act , and the fact that the current Plan of Care envisages Baby A’s leaving the [First Nation A’s] territory. [ 15 ] The Federal Act referred to in paragraph 274 is An Act Respecting First Nations, Inuit and Metis Children, Youth and Families , S.C. 2019, c. 24 , which came into force on January 1, 2020. [ 16 ] On July 31, 2020 the Cultural Plan prepared by the First Nation A was filed with the Court. Written submissions were filed by the Director, by the Nation and by A.B.’s counsel.

S.B. did not participate in the Nation’s application, but counsel advised that S.B. supports the Nation’s application and does not disagree with A.B.’s position. [ 17 ] Oral submissions were made on August 18, 2020 and I reserved my decision. [ 18 ] I will note here that the delay occasioned in deciding this novel issue will not likely arise in other cases, once the jurisprudence in relation to the Federal Act develops. [ 19 ] The Director opposes the inclusion of any part of the Cultural Plan in the

section 41 CFCSA order for the reasons discussed below; the other parties seek its inclusion. THE CULTURAL PLAN: [ 20 ] The Cultural Plan filed in this matter contains the following introductory paragraph: The purpose of this cultural plan is to preserve and maintain [Baby A’s] cultural identity through connections with her parents, extended family, culture and community. It is believed that the development and incorporation of a cultural plan is in the best interests of the child. [ 21 ] The Plan outlines Baby A’s family of origin, including her parents and grandparents and sibling.

It summarizes circumstances relating to her, including her placement with the non-Indigenous foster family following her removal and for many months thereafter and identifies as a “long-term plan” a reunification of Baby A with her family through a placement with her paternal grandmother. During the evidentiary portion of the hearing, the Director’s Plan of Care also envisaged Baby A residing with her paternal grandmother. [ 22 ] The Cultural Plan states that it was developed in collaboration with Baby A’s parents, her paternal grandmother, the First Nation B and First Nation A and MCFD.

On July 28, 2020 her parents, grandmother and a representative of the First Nation A and of MCFD all signed the Cultural Plan.

A representative of the First Nation B signed it on July 15, 2020. (Baby A has familial connection with the First Nation B, in addition to the First Nation A). [ 23 ] The Cultural Plan sets out actions agreed to be taken by the paternal grandmother, as well as the child’s biological parents, to ensure the child’s connection with the First Nation A and First Nation B cultures. [ 24 ] The Plan also sets out the First Nation A’s agreement to, at a minimum, annually update the paternal grandmother of upcoming community events and to assist her in planning visits to the Nation for family connection and participation in cultural and community events.

This agreement on the part of the First Nation A addresses the fact that the paternal grandmother lives in the First Nation B community.

[ 25 ] The Cultural Plan provides an agreement on the part of the First Nation B that if Baby A ever lives outside its territory, the Nation will invite her to (

i) any cultural events held in the Big House; (ii) any homecoming celebration (held in July); (iii) any family potlaches or feasts held in Bella Bella, and to engage in regular communication between that Nation and her. [ 26 ] It provides for Baby A’s caregiver’s, (identified as Baby A’s paternal grandmother), agreement to do a number of things to ensure Baby A’s continued connection with the First Nation A community and culture and that of the First Nation B, including: (

i) maintaining contact with people identified as First Nation A and First Nation B community and family; (ii) facilitating a minimum of four visits a year with her biological parents; (iii) taking Baby A to First Nation A and First Nation B cultural events; (iv) agreeing to share with the child materials about the First Nation A and First Nation B culture and encouraging her to learn about her cultural identity; (

v) encouraging the child to learn the [omitted for publication] language, as early as possible and to bring the child to the First Nation A community at least once a year; (vi) permanently reside in B.C., unless otherwise agreed by the parents and grandparents and both nations; (vii) enrol her in a public school unless otherwise agreed to by her parents and the First Nation B and First Nation A; (viii) ensure that her status registration and membership with the First Nation A is completed within twelve months after the permanent transfer of guardianship; (ix) maintain contact with the First Nation A representative and; (

x) at a minimum, provide the representative with an annual written update on Baby A’s health, education, interests and well-being. [ 27 ] Finally, the Cultural Plan includes agreement by MCFD to provide financial support to permit Baby A to visit the First Nation A at least once per year and provides for financial support for matters relating to her relocation to the First Nation B community and staying in touch with her parents, as well as MCFD being open to an annual review of the Cultural Plan, or as needed, and supporting Baby A’s connection with both the First Nation A and First Nation B. [ 28 ] The Cultural Plan describes the First Nation A’s logo, the Nation’s history, language and traditional territory, as well as the Nation’s governance.

Included in the Cultural Plan are photographs, including photos of Baby A with her mother and other family members. THE ISSUES: Issue No. 1: Can the First Nation A’s Cultural Plan be incorporated in some manner into the Order resulting from the Director’s section 41(1)(

d) CFCSA application, although not recommended by the Director? [ 29 ] As outlined above, this requires deciding the following: i. Am I functus ? ii. Does the language of s. 41(3) of the CFCSA preclude the inclusion? iii. What is the effect of the Federal Act , if any, with regard to this Court’s jurisdiction in relation to this application? [ 30 ] I will address those questions in turn. Issue No. 1 (i): Am I functus ? The Parties’ Positions: The Director [ 31 ] Ms.

LeBeau, counsel for the Director, says that although the continuing custody order has not been entered, since I have delivered Reasons for Judgment, (which include a finding that the child was in need of protection and that a continuing custody order be granted under section 41(1)(

d) of the CFCSA ), I have fulfilled my duty and I am functus . [ 32 ] Counsel notes that under section 40(3)(

b) of the CFCSA , I could have adjourned the section 41(1)(

d) hearing to permit the calling of further evidence relating to the inclusion of the Cultural Plan, but I did not do so; given this, there is no jurisdiction to require further evidence be adduced after the order has been granted under

section 41 of the CFCSA . [ 33 ] She says that nothing arises from the fact that a physical order reflecting my Reasons for Judgment has not yet been entered. [ 34 ] Further, she notes that Rule 7(1) of the Provincial Court (Child, Family and Community Service Act) Rules, (“the Rules ”), provides that the effective date of an order is the day that it is made and that, in this case, I made the order the day I delivered my Reasons for Judgment. This supports the view that I am functus . The First Nation A

[ 35 ] The First Nation A made its intention to apply for inclusion of the Cultural Plan in any resulting

section 41 CFCSA order long before the actual application, which was brought during closing submissions in relation to the Director’s section 41(1)(

d) application. Oral applications are permissible under the Rules; see: Rule 1(2) – (4). [ 36 ] The current application was raised without objection; was argued and remains outstanding before the court. Given that the application remains to be decided, the First Nation A says that the court’s jurisdiction continues until determination of the issue is made. [ 37 ] Further, the Nation says that the Federal Act provides this court with the jurisdiction to adjudicate the matter. A.B. (The Father) [ 38 ] A.B. disagrees with the Director’s view that the Court is functus , noting that the order in this matter has not yet been entered. [ 39 ] Regarding the Director’s arguments that (

i) unless resort was had to section 40(3) of the CFCSA , further delay was not authorized and (ii) that under Rule 7(1) the order takes effect on the day it was made, unless ordered otherwise, Mr. Yalowsky notes that the Reasons for Judgment clearly contemplate delay of entering the order, citing paragraphs 272 and 273, which read as follows: [272] For the reasons above, the Director’s application is granted: a continuing custody order pursuant to section 41(1)(

d) of the CFCSA will be entered in this matter in two weeks’ time, on July 14, 2020. [273] The entering of the order is adjourned to permit the [First Nation A] to submit a Cultural Plan and for counsel to provide brief written submissions stating their position with regard to such a plan’s being appended to or referred to, or incorporated by reference, in the order. [ 40 ] He says that the impact of paragraphs 272 and 273 is that either (

i) the effect of the order was delayed or (ii) that the relief granted took effect upon pronouncement of the Reasons for Judgment but the issue of the form of the order remained outstanding and was adjourned. The result, either way, he argues, is that I am not functus. Discussion: [ 41 ] The First Nation A made the application for inclusion of the Cultural Plan, orally, as permitted by the Rules. No objection was taken to the current application or to its proceeding by way of oral application. As mentioned, Ms. Hargitt is a social worker, not a lawyer; the applicant Indigenous group is the only party to the Director’s

section 41 CFCSA application not represented by legal counsel. It is not surprising that the matter proceeded by oral application and there is no suggestion that it was improperly framed or does not merit consideration, having been made. [ 42 ] The First Nation A’s application clearly remains outstanding until this decision; this leads me to the view that I am not yet functus . [ 43 ] The current application relates to the language of any order resulting from the Director’s

section 41 CFCSA application. Paragraph 274 of the Reasons for Judgment specifically refers to the settling of the order’s terms, as a result of the First Nation A’s application. Rule 7(5) provides for the settling of orders, which, invariably, results in some delay in the entering of an order. [ 44 ] In my view, I have jurisdiction to deal with this current application: it relates to the wording of the

section 41 CFCSA order, and was raised during submissions, before Reasons were given and is specifically provided for in those Reasons. [ 45 ] With regard to section 40(3) of the CFCSA, I agree with Ms. LeBeau that as a judge of an inferior Court, my authority to make orders is limited by statute and ancillary rules and regulations; however, I disagree that this means that I lack authority to hear and rule on the First Nation A’s application, because I did not rely on section 40(3) of the CFCSA . [ 46 ] Section 40(3) of the CFCSA reads as follows: Section 40(3) If the court finds that the child needs protection, it (

a) must consider the plan of care presented by the director, and (

b) may hear any more evidence the court considers necessary to help it determine which order should be made under

section 41. [ 47 ] Section 40(3) of the CFCSA was not an appropriate basis upon which to adjourn the

section 41 proceeding to deal with the current application: I did not need to hear further evidence to decide which order should be made under section 41(1) of the CFCSA . Further, the Cultural Plan is not properly characterized as “evidence”, but is, rather, the very document that the Nation seeks be included in the resulting

section 41 CFCSA order, its aim being to ensure the Nation’s’ continued participation with the child and ensure her continued connection to her First Nation A and First Nation B culture. [ 48 ] Turning to Rule 7(1), it states: R. 7(1) An order takes effect on the day it was made by a judge unless the judge orders otherwise. [ 49 ] The Reasons for Judgment provide for a delay in the entering of the section 41(1)(

d) CFCSA order. The delay in entering the resulting order was required to permit the First Nation A’s application – then before the Court - to be considered: this required submission of the actual Cultural Plan; submissions by counsel and a decision by me. Obviously, given the scheduling timeline set out above and the date of this decision, two weeks was highly optimistic. That acknowledged, practically speaking, the First Nation A’s application could only be addressed after the court stated what type of order under

section 41 of the CFCSA resulted from the Director’s application.

[ 50 ] I ordered that the physical order not be filed to permit me to deal with this application with regard to the wording of the section 41(1)(

d) CFCSA order. If the Director had sought that terms and conditions be attached to the order under section 41(3) of the CFCSA , the effect would have been the same: delay in filing the order until the wording was resolved. [ 51 ] I note that in R. v.

Garcha, 2000 BCCA 550 , the Court concluded that it is functus once a decision has been made and the resulting order entered ; that has not yet happened here: We are all of the view that, in the circumstances of this case, when the conviction appeal was heard and dismissed on the merits and the order dismissing the appeal has been entered , this Court does not have jurisdiction to re-open the appeal, (my underlining). ( See, also: R. v. Hummel , 2003 YKCA 4 ). [ 52 ] Further, with regard to Rule 7(1), there seems to be a question as to whether “order” in Rule 7(1) includes reasons for judgment.

While “order” is defined in the BC Supreme Court Act and in the BC Court of Appeal Act to include “judgments” and “decrees,” there is no such definition in the CFCSA, the Rules or the Provincial Court Act .

Given this, it seems arguable that the word “order”, in Rule 7(1), does not include “judgments.” If that is the case, then given that no order has yet been made, (in contrast to “judgment rendered”), Rule 7(1) would not apply. [ 53 ] In all of the circumstances of this case, I am not persuaded that Rule 7(1) precludes the process engaged in here. [ 54 ] Finally, as discussed below in relation to the impact of the Federal Act on the current application, I have concluded that the Federal Act provides this court with jurisdiction additional to that of the CFCSA ; consequently, if I am wrong and have no remaining jurisdiction under the CFCSA , I am satisfied that I have jurisdiction to consider the Nation’s application under the Federal Act , and to make the order sought, if appropriate under that legislation.

Issue No. 2 (ii): Can the Cultural Plan be included in the terms of the order if it is not recommended by the Director? Director’s position [ 55 ] The Director says that the provisions of the Cultural Plan amount to “terms or conditions” within the meaning of section 41(3) of the CFCSA ; given this, the Cultural Plan cannot be attached to the continuing custody order without the Director’s recommendation. In this case the Director does not recommend the inclusion, therefore, no order can be made to include the Cultural Plan, in any way, in the section 41(1)(

d) CFCSA order. [ 56 ] Counsel says that support for this statutory

interpretation can be found by contrasting the language of section 41(3) of the CFCSA (which permits the attachment of terms recommended by the Director, only,) to section 55(6) of the CFCSA , (which allows the court to attach terms which it concludes are reasonable). She says that given that the Director does not recommend the inclusion of the Cultural Plan in the order, there is no jurisdiction to include it. [ 57 ] Counsel observes that as a statutory Court, I have no inherent jurisdiction and obtain my power only under the statute or rules.

First Nation A [ 58 ] The First Nation A says, in essence, that applying the Director’s approach would have the practical effect of placing supremacy of the CFCSA over the Federal Act and that this is not right. A.B.’s Position [ 59 ] Mr. Yalowsky, for A.B., describes the Cultural Plan as First Nation A’s planning desires for Baby A and says that the court has jurisdiction to attach the plan to the

section 41 order. The purpose for referencing the Cultural Plan is to make that plan known; it does not bind the Director, but it makes clear what the Nation wanted for Baby A, at this point in time, to maintain her cultural connection. Because of that, Mr. Yalowsky says that the provisions of the Cultural Plan do not amount “terms or conditions” within the meaning of section 41(3) of the CFCSA .

As a result, it is not necessary that the Director recommend that the Cultural Plan form part of the order for inclusion of the plan. [ 60 ] He observes that the Court may lack the jurisdiction to compel the Director to comply with the provisions of the Cultural Plan, however. Discussion: [ 61 ] I agree with Director’s counsel that section 41(3) of the CFCSA makes it clear that, under that section, the court can only attach those terms and conditions recommended by the Director to a section 41(1)(

d) CFCSA order. [ 62 ] Ms. LeBeau says that the Cultural Plan amounts to “terms and conditions” to implement the Plan of Care. [ 63 ] Social worker Sheila Reid testified about the Director’s Plan of Care during the hearing of the Director’s application. It envisaged the Director placing Baby A with her paternal grandmother, to reside in the First Nation B community in Bella Bella. A written Plan of Care was filed with the section 41(1)(

d) CFCSA application on July 9, 2019. It includes the following, with regard to preserving Baby A’s cultural connection: i. Baby A will remain connected with her parents, extended family and the First Nation A through supervised visitation and participation in cultural events. ii. The First Nation A will be served with a copy of the court documents and will continue to be consulted with in all stages of planning for Baby A.

iii. Regular visits with parents and extended family; ensure that she is able to attend cultural events in her community and the family is encouraged to include their cultural practices during visits; iv. Baby A will continue to have access with her parents and extended family at the discretion of the Director in collaboration with the First Nation A; v.

The Director continues to explore all extended family and community members in both [omitted for publication] and Bella Bella in search of a permanent, stable placement for Baby A. [ 64 ] The Cultural Plan specifies means by which Baby A would remain connected with the First Nation A and First Nation B, including means independent of her relationship with her parents, and identifies her language and the timing and nature of specific cultural events.

I agree that these parts of the Cultural Plan are fairly described as “terms or conditions” of implementing the Plan of Care. [ 65 ] I also agree that the plain reading of subsection 41(3) of the CFCSA supports the Director’s position that, absent the Director’s recommendation, terms and conditions cannot be attached to a

section 41 CFCSA order. Section 41(3) provides: s. 41(3) The court may attach to an order under this

section any terms or conditions recommended by the director to implement a plan of care. [ 66 ] The specific reference to the Director in section 41(3) excludes anyone other than the Director being able to recommend terms or conditions with regard to implementing Baby A’s Plan of Care under the section. [ 67 ] I agree with Ms.

Le Beau that there is further support for the Director’s position when one considers the different language in section 41(3) of the CFCSA , (“terms and conditions recommended by the Director,”) and the broader language in section 55(6) of the CFCSA . [ 68 ] Furthermore, the Director’s position is consistent with the approach taken by Judge Giroday in M. (R.A.) , [1998] BCJ No. 2208 ; (see: paragraph 53). [ 69 ] In light of the above, I agree that under subsection 41(3) of the CFCSA , the First Nation A’s Cultural Plan can only be included in the

section 41 CFCSA order if the Director recommends it. Given that the Director does not recommend it, I have no authority to grant the First Nation A’s application under the provincial legislation. Issue No. 3 (iii): What is the effect of the Federal Act , if any, with regard to this Court’s jurisdiction in relation to this application?

The Parties’ Positions: The Director [ 70 ] The Director says that it is aware of its obligations under the Federal Act and that the appropriate recourse for any prospective breach by the Director of the Federal Act is by way of judicial review in the Supreme Court. [ 71 ] The Director says, in effect, that the Federal Act has no impact on this court’s jurisdiction in relation to Indigenous children, and that that jurisdiction is prescribed by the CFCSA and Rules .

The First Nation A [ 72 ] The First Nation A relies on section 10(4) of the Federal Act in support of this court’s having the power under the Federal Act to include the Cultural Plan in the section 41(1)(

d) CFCSA order, as the Cultural Plan has been crafted in consultation with and is, ultimately, consistent with the oral tradition of, the First Nation A. [ 73 ] The Nation also says that attaching the Cultural Plan to the CFCSA order, in some manner, is in Baby A’s best interests, as it makes known the agreed plan for preserving Baby A’s cultural identity and connections to the First Nation A and First Nation B.

A.B.’s position [ 74 ] A.B. says that attaching or referencing the Cultural Plan in the continuing custody order is in Baby A’s best interests, for the same reasons as the First Nation A. [ 75 ] He says that no jurisdictional issue exists in the court’s making such an order, but observes that enforcing such terms might be difficult. Discussion: [ 76 ]

Section 9 of the Federal Act requires that the Act be interpreted and administered in accordance with certain principles. Before considering the effect of

section 9 here, I think it helpful to consider the practical context in which this litigation arises as well as some of the background to the Federal Act . The practical context [ 77 ] With regard to the practical context, the Federal Act relates, in particular, to Indigenous children and their welfare. In British Columbia, it is the CFCSA and Rules which comprise the provincial statutory scheme in relation to all children’s welfare in the province, including Indigenous children.

[ 78 ] The CFCSA Rules define “court” as the Provincial Court, (except where otherwise provided for in the CFCSA and Rules, which is rare). As a result, it is this court that hears most, if not all, child protection cases at first instance. Given this, it is the Provincial Court that will, for the most part, be interpreting and administering the Federal Act , in relation to Indigenous children and child protection issues in British Columbia. [ 79 ] Unlike a superior court, this court does not have inherent jurisdiction, nor does it have parens patriae jurisdiction; see: S. v. S., 2004 BCPC 354 .

Consequently, if a Provincial Court judge finds that in interpreting and administering the Federal Act (as required by

section 9), an order should be made in relation to an Indigenous child, if that order is not authorized by the CFCSA or Rules, the jurisdiction to make the order must come from the Federal Act . Unless the Federal Act confers such power to the Provincial Court, the Provincial Court judge would have no means by which to administer the Federal Act as mandated by the provisions of that statute. [ 80 ] If, in interpreting and administering the Federal Act , a Provincial Court judge concluded that an Indigenous child’s best interests under

section 10 of the Federal Act required that a step be taken – which step was not authorized by the CFCSA or Rules – the court’s ability to administer the Federal Act in accordance with

section 9 would be stymied, absent jurisdiction conferred by the Federal Act upon the inferior court to order the requisite step.

A Provincial Court judge’s having no jurisdiction to make orders necessary to administer the Federal Act as prescribed could not have been intended and supports the conclusion that the Federal Act confers jurisdiction to this court in certain circumstances in relation to Indigenous children. [ 81 ] In this case, as discussed below, I have concluded that it is in Baby A’s best interests under subsection 10(3) of the Federal Act and is, as well, in alignment with sections 9(1) and (3) of the Federal Act , that the First Nation A’s views and preferences regarding appropriate terms and conditions for the

section 41 CFCSA order be considered and that some of those proposed terms and conditions, in fact, be attached to the

section 41 CFCSA order. [ 82 ] While this result is not provided for in the provincial legislation, the Federal Act is paramount in cases of conflict or inconsistency. (See:

section 4 of the Federal Act , discussed below). [ 83 ] I am fortified in my conclusion that the Federal Act confers jurisdiction for this court to order the inclusion of the terms and conditions requested by the First Nation A, in administering the Federal Act in accordance with the

section 9 principles, when I consider the alternate result: the provincial Director would have the only voice in relation to recommended terms and conditions for the implementation of a Plan of Care for an Indigenous child; her Indigenous Nation would have none. [ 84 ] In my respectful view, that outcome would be incongruent with the Federal Act ’s

preamble, which includes: Whereas Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices, (underlining added). [ 85 ] The importance of Indigenous peoples having a role in child and family services involving Indigenous children is clear in the Federal Act , (see: UN Declaration; the Federal Act

Preamble, (above); subsections 8(

a) and 9(3)(

d) of the Federal Act) . To conclude that the provincial Director has the only voice that a court hears when it comes to suitable terms and conditions to be attached to a section 41(1)(

d) CFCSA order in relation to an Indigenous child’s Plan of Care seems to be a continuation of colonial practices, for want of a better phrase. Such a result is inconsistent with the

preamble of the Federal Act . The background to the Federal Act [ 86 ] This leads me to a consideration of the background to the Federal Act : having come into effect on January 1, 2020, there are few judicial cases considering it. [ 87 ] The following appears in the Hansard record from June 3, 2019 in relation to the then-proposed act: Separating indigenous children from their families is not just something that happened in the past. This is something that occurs every day, to this very day. In fact, it is a worsening problem.

More indigenous children are in care now than at the height of the operation of residential schools. In terms of hard numbers, more than 52% of children in foster care in Canada are indigenous, yet they represent less than 8% of the population. Studies show that the average indigenous child in foster care may live with anywhere between three and 13 different families before turning 19 years old. This is unacceptable and it has to stop. I think we can all agree that the current system needs to change. As parliamentarians, we must act.

We believe in a system where indigenous peoples are in charge of their own child and family services, something we recognize should have been the case all long. Indigenous families are currently bound by rules and systems that are not their own and do not reflect their cultures, their identities, their traditions, their communities or their ways. No wonder they have not worked. This bill sets out to change that, (underlining added). [ 88 ] As mentioned at the outset of these Reasons, Baby A was removed when she was three months old.

She was placed in a non- Indigenous foster home, in a different community over an hour’s drive from the First Nation A’s reserve. Baby A’s mother had lived in this same foster home, when she was a child, for a time. The evidence at the hearing established that the Director had sought safe and appropriate care within the First Nation A, but at least on a temporary basis, the non-Indigenous foster family was the best place for the baby.

I note that resources were put in place, to the extent possible, to reduce the logistical barriers to the baby’s family spending time with her, by the Director with a view to maintaining her connection with her culture and family of origin. [ 89 ] I mention this evidence with regard to Baby A’s placement because it illustrates the reality that, given the large number of Indigenous children in care as described in the Hansard extract, until that changes, there is a likelihood that other Indigenous children, like Baby A, will be placed with non-Indigenous caregivers.

That being so, the step being proposed here by the First Nation A – to include terms in the continuing custody order that identify and thus preserve Baby A’s Indigenous heritage – by identifying the Nations to which she belongs, by identifying the language which is hers, and by providing specific ways to transmit the Nations’ culture – is

consistent with the purposes of the Federal Act , described below. [ 90 ] Returning to the

preamble of the Federal Act , it also provides: Whereas Parliament affirms the need: to respect the diversity of all Indigenous peoples, including the diversity of their laws, rights, treaties, histories, cultures, languages, customs and traditions (underlining added). [ 91 ] The First Nation A’s application to have its Cultural Plan attached in the

section 41 CFCSA order arises against a historic backdrop of loss of culture, loss of identity, loss of traditions and communities and language, through the decades of Residential Schools, (specifically recognized in the beginning of the Federal Act ), as well as through the “Sixties Scoop” (see: Brown v. Canada (Attorney General) , 2017 ONSC 251 at paragraphs 6 and 7 ) and displacement arising from colonialism ( see: R. v Ipeelee , 2012 SCC 13 at paragraph 60 ).

The Plan, as discussed below, in the First Nation A’s view, contains specific means to guard against such future loss to Baby A. [ 92 ] The purposes of the Federal Act include: i. affirming the inherent right of self-government, including jurisdiction in relation to child and family services, (see: subsection 8(a)), and ii. contributing to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples , (see: subsection 8(c); and, see, in particular,

Article 13, and, as well, Articles 8 and 9 of the Declaration). [ 93 ] The First Nation A’s having a voice with regard to proposed terms and conditions for the Plan of Care of this First Nation A child is consistent with these two legislated purposes of the Federal Act : it is consistent with the notion of an inherent right of self- government in relation to child and family services and, in practical terms, the Cultural Plan provides a means of transmission of language and culture consistent with the UN Declaration.

Section 9 of the Federal Act [ 94 ] Turning to

section 9 of the Federal Act , it requires that the Federal Act be “interpreted and administered” in accordance with the following principles: ss. 9(1): the best interests of the child; ss. 9(2): cultural continuity, and ss. 9(3) substantive equality. ss. 9(1) of the Federal Act – best interests [ 95 ] Baby A’s best interests must be considered, in interpreting and administering the Federal Act in relation to this application; this engages consideration of

section 10 of the Federal Act , headed “Best interests of Indigenous child.” [ 96 ] Because Baby A is an Indigenous child and this case relates to her apprehension, her best interest is of paramount consideration, pursuant to section 10(1) of the Federal Act : s. 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 interest of the child must be the paramount consideration , (underlining added). [ 97 ] Baby A is a child of the First Nation A; the granting of the continuing custody order does not change that nor would a permanent transfer of custody under

section 54.01 of the CFCSA . The Cultural Plan which the Nation seeks to have attached to the

section 41 CFCSA order conveys the Nation’s views and preferences, to be considered in decisions that affect the child, going forward.

It is a step which the Nation says, in effect, is required to secure Baby A’s cultural continuity, which is essential to her well-being. [ 98 ] Subsection 10(2) of the Federal Act establishes that first consideration must be given to a child’s safety, security and well-being, and also requires consideration of the importance, for the child, to have “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 child’s connections to his or her culture.” [ 99 ] A non-exhaustive list of factors to be considered in assessing a child’s “best interests” is found in both the CFCSA and the Federal Act.

However, the Federal Act list is more expansive than the CFCSA list, with a clear focus on cultural continuity for the child and connection to his or her Indigenous group, with eight factors which must be considered, (see: ss. 10(3)(a) – (h)). I have particular regard to three of the eight “best interest” factors set out in subsection 10(3) of the Federal Act relevant to this application: Section 10(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including: (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; … (

d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs, and

… (

f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs. [ 100 ] I note that in British Columbia (Child, Family and Community Service) v. S.H., 2020 BCPC 82 (see: paragraph 126) and Michif CFS v. C.L.H. and W.J.B. , 2020 MBQB 99 (see: paragraph 33), the courts have concluded that the “best interests” principle in the Federal Act applies to all stages of proceeding in child protection cases involving Indigenous children.

Such a conclusion is consistent with applying the best interests test in considering the appropriate terms and conditions to be attached to an order resulting from the Director’s

section 41 CFCSA application in relation to an Indigenous child. ss. 9(2) of the Federal Act - Cultural continuity [ 101 ] The second principle that the Federal Act must be interpreted and administered in accordance with is “cultural continuity.” [ 102 ] Cultural continuity, within the meaning of subsection 9(2) of the Federal Act , is reflected in five concepts, two of which are particularly relevant to this application: ss. 9(2)(

a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people, and ss. 9(2)(

b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity. ss. 9(3) of the Federal Act - Substantive equality [ 103 ] The third principle is “substantive equality.” [ 104 ] Substantive equality, within the meaning of subsection 9(3) of the Federal Act , includes the following: (

d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act , including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people, (underlining added).

Interpreting and administering the Federal Act - Discussion [ 105 ] In considering subsection 9(2) of the Federal Act on this application, I note that the Cultural Plan: i. identifies the language of Baby A’s family: the [omitted for publication] language, and identifies a means for its transmission to the child; ii. identifies traditional ceremonies including a First Nation A annual celebration of children and First Nation B homecoming celebration, both in the summer; iii. makes known First Nation B cultural events including those held in the Big House, family potlatches and feasts; iv. provides for contact with both the First Nation A and First Nation B; v. provides for contact with her parents and visits to both communities, if not living there; vi. requires her registration and membership with the First Nation A. [ 106 ] This is not a complete description of the Cultural Plan, but it illustrates that the plan provides practical means to ensure Baby A’s cultural continuity, which is essential to her well-being, ( s. 9(2) (

a) of the Federal Act ); knowing what language is hers is important information, particularly against a historic backdrop of assimilation and loss of language, (s. 9(2)(b)); knowing that there are summer ceremonies, to look for and attend when possible, is important for this child, going forward, (s. 9(2)(b)). [ 107 ] While the Director is Baby A’s guardian as a result of the section 41(1)(

d) CFCSA application being granted, decisions taken in relation to Baby A going forward will affect her, as an Indigenous person within the meaning of subsection 9(3)(

d) of the Federal Act , and will likely effect the First Nation A and First Nation B “Indigenous group[s],” also within the meaning of subsection 9(3) (

d) of the Federal Act as First Nation A, in particular, is the community from which she has been removed. Thus, while

section 1 of the CFCSA defines “guardianship” as including “all the rights, duties and responsibilities of a parent,” with regard to an Indigenous child such as Baby A, this definition must now be interpreted in a manner that is consistent with the principles in the Federal Act .

In my view, such an approach is consistent with both the paramountcy of the Federal Act and section 91(24) of the Constitution Act 1867 , (UK), 30 & 31 Victoria, c. 3 . [ 108 ] I am of the view that the combined effect of subsections 9(1) – (3) and 10(1) and (3) of the Federal Act in the circumstances of this case is to require a consideration of the Cultural Plan, as it includes factors related to Baby A and her cultural and linguistic heritage, (s. 10(3)(a)); the means to preserving her cultural identity and connections to the language and territories of the Indigenous groups to which she belongs, (s. 10(3)(a)), which, under subsection 9(2) of the Federal Act is essential for her well-being. [ 109 ] Having considered all of the above, I find that including portions of the Cultural Plan relevant to the principles set out in section 9(1) and (2) of the Federal Act is in Baby A’s best interests within the meaning of

section 10 of the Federal Act . [ 110 ] I am, as well, of the view that considering the Cultural Plan and attaching those portions is consistent with the principle in

subsection 9(3) of the Federal Act . [ 111 ] While the Director is required, under

section 50.01 of the CFCSA to make reasonable efforts to, at least annually, involve the First Nation’s designated representative in planning for the child’s needs, the Federal Act provides for the Indigenous group’s input to the Court about what should be included in an order requiring the implementation of a Plan of Care of the Indigenous child. The Cultural Plan put forward in this case is more expansive and detailed than the annual “reasonable efforts” to obtain input under

section 50.01 of the CFCSA ; it includes information specific to Baby A’s language and heritage which, if included in the order, has no risk of being lost. [ 112 ] Given my conclusion that under the Federal Act I must consider the First Nation A’s views and recommendations and where satisfied it would be in Baby A’s best interests to do so, include them in the section 41(1)(

d) CFCSA order, an obvious conflict arises with section 41(3) of the CFCSA , given that subsection’s restrictive wording, discussed above. [ 113 ] Under

section 4 of the Federal Act , to the extent that the court attaching terms and conditions recommended by the Indigenous group to a section 41(1)(

d) CFCSA order conflicts with section 41(3) of the CFCSA, the Federal Act prevails. [ 114 ] If that were not so, despite the new Federal Act , the only way an Indigenous group’s views and preferences could be known by the Court in relation to an Indigenous child would remain contingent on the provincial Director’s decision to put those views and preferences forward as recommendations under section 41(3) of the CFCSA . Such an

interpretation would mean that the Federal Act was mere window-dressing: meaningless in implementation, as nothing would have changed, given that the Director would remain the ultimate decision-maker with regard to which recommendations would be before the Court for the implementation of the Plan of Care in relation to the Indigenous child. Issue No. 2: Is it in Baby A’s best interests to include the Cultural Plan, or some part of it, in the

section 41 order? Director’s Position [ 115 ] Director’s counsel says that even if legally permissible, it would not be in Baby A’s best interests to include any part of the Cultural Plan in the section 41(1)(

d) CFCSA order: Counsel notes that as a result of the section 41(1)(

d) CFCSA order, the Director is Baby A’s guardian, (see: s. 50(1)(

a) of the CFCSA ); Ms. LeBeau says that incorporating the Cultural Plan into the order would have the effect of fettering the guardian’s permanency planning and other guardianship duties. She notes that this particular Cultural Plan actually identifies who the child should live with and where, both the providence of her guardian, the Director. [ 116 ] Counsel says that although the Director’s Plan of Care as described in the evidentiary portion of the Director’s

section 41 CFCSA application envisaged a similar placement for Baby A as set out in the Cultural Plan, recent events have led the Director to now reconsider portions of that Plan of Care, including with whom Baby A should reside.

These fast-occurring changes illustrate, in a practical way, that potentially hampering the decision-making of the child’s sole guardian, by attaching the Cultural Plan to the order, is not in her best interests. [ 117 ] Finally, counsel points to the Director working collaboratively with the First Nation A in planning for the child, since her removal and states that the Director will continue to do so. Counsel observes that the Director is aware of its statutory duties under

section 50.01 of the CFCSA and with the provisions of the Federal Act which now also bind it. Given these provisions, counsel say that attaching the Cultural Plan, in any manner, is unnecessary and not in Baby A’s best interests. The First Nation A [ 118 ] The First Nation A says that subsections 10(2) of the Federal Act and subsections (3)(a), (c), (

d) and (

f) of the CFCSA identify the importance of cultural continuity and list the factors to be considered in assessing Baby A’s best interest. The Nation says that preserving the child’s cultural identity and connections to the language, territory and people of both the First Nation A and First Nation B is in her best interests and should be acknowledged and prioritized in the court order. Ms. Hargitt says that such a result would also be in accord with subsection 9(2) (a) –(

e) of the Federal Act , as well as subsections

section 3 of the CFCSA . A.B.’s position [ 119 ] Counsel for A.B. says that including the Cultural Plan in the order would be in Baby A’s best interests, as it makes known the plan in place for preserving her cultural identity and maintaining her connection to the First Nation A and First Nation B customs, traditions, languages and heritage. [ 120 ] He says that incorporating the Cultural Plan into the

section 41 CFCSA order is consistent with the principle set out in

section 3(

b) of the CFCSA that Indigenous people should be involved in the planning and delivery of services to Indigenous families and children. Further, he says that it is consistent with subsections 10(2) of the Federal Act and

section 50.01 of the CFCSA , which requires the Director to make reasonable efforts to involve, at least on an annual basis, the First Nation A in respect of planning for her needs. Discussion: [ 121 ] As discussed above, as a result of granting the continuing custody order under section 41(1)(

d) of the CFCSA , the Director is Baby A’s sole personal guardian, with the rights, duties and responsibilities of a parent. [ 122 ] I agree with Director’s counsel that Baby A’s best interests require her guardian, in large part, to be unhindered in decision- making with regard to some issues, including with whom she will be placed. [ 123 ] However, as discussed above, that role is already circumscribed, to a limited degree, with regard to Indigenous children, under the provincial legislation: the CFCSA requires the Director to “make reasonable efforts” to involve the First Nations representative at least once annually in the planning for an Indigenous child in care, (see: s. 50.01 of the CFCSA ).

[ 124 ] The Cultural Plan reflecting the First Nation A’s views and preferences with regard to how to implement the Plan of Care with regard to Baby A includes provisions which, on balance, do not unduly fetter that guardianship role when Baby A’s best interests, within the meaning of the Federal Act , are considered, having particular regard to matters of cultural continuity, ensured connection with both the First Nation A and First Nation B, as well as meaningful participation in cultural events which are identified by time of year and location (for example, First Nation A’s children’s celebration in July and First Nation B Big House events). [ 125 ] As a result, I agree with the First Nation A and A.B. that inclusion of some parts of the Cultural Plan, in the

section 41 CFCSA order, is in Baby A’s best interest, and that they can be included without adversely impacting her best interests by impeding her guardian in its ability to make the decisions necessary to fulfil that role. CONCLUSION: [ 126 ] The First Nation A’s application is granted, in part. [ 127 ] Before turning to the terms and conditions which shall be included in the

section 41 CFCSA order, I will briefly address several portions of the Cultural Plan which I have concluded should not be included, having regard to several factors, particularly Baby A’s best interests; the need for her guardian to exercise its role and the jurisdiction of this court, particularly with regard to terms which would require financial expenditures by the Director: i. Minimum yearly visits to the First Nation A and First Nation B’s territories. [ 128 ] The Director has expressed an intention to ensure that that occurs, as I understand it, and to fund such visits.

An order with regard to the funding of such obvious means of cultural connection is not authorized by the Federal Act , as I read it: while there is reference to an acknowledgement of the “ongoing call for funding for child and family services” in the Federal Act ’s

preamble, and a recognition of the impoverished circumstances of so many Indigenous children, often only really brought to light in protection cases (see: s. 15 of the Federal Act ), neither give this court the authority to make such an order. ii. Baby A to have ongoing connection with her biological parents. [ 129 ] I found Baby A’s parents to have harmed her gravely. It is up to her guardian, who must guard her best interests – of which her safety is paramount – to assess whether such contact is appropriate now or in the future. In my view, it would not be in the child’s best interests to incorporate such a requirement into the section 41(1)(

d) CFCSA order. iii. Child’s Placement. [ 130 ] Similarly, no term or condition will be included that would restrict Baby A’s guardian, the Director, with regard to her placement. I note that that placement will now be guided by

section 16 of the Federal Act , which may give the Nations some comfort. (See, also: ss. 70(1.1) and 71(3) of the CFCSA ). iv. Child’s School. [ 131 ] Finally, I have not included the proposed requirement that Baby A’s caregiver enrol her in a public school when she is school age; this is recommended in the Cultural Plan, with the proviso “unless otherwise agreed to by the parents, First Nation B and First Nation A.” Baby A’s needs at the time of her attending school cannot be predicted and that choice is in the clear purview of her guardian.

If the term was proposed in response to the history of Indigenous children attending private (often religious) Residential Schools, I note that that is provided for in subsection 3 (c.1) of the CFCSA . [ 132 ] The terms of the Order as a result of the Director’s application under

section 41 of the CFCSA and the First Nation A’s application herein are: THIS COURT ORDERS: 1. Pursuant to section 41(1)(

d) of the CFCSA , Baby A shall be placed in the continuing custody of the Director. 2. Pursuant to sections 9 and 10 of the Federal Act , the following terms and conditions shall be attached to the section 41(1)(

d) CFCSA order to implement the Plan of Care in relation to Baby A: a. the Director shall ensure that Baby A’s status registration and membership with the First Nation A is completed within 12 months after the permanent transfer of guardianship; b. the Director, or the person having care of Baby A, shall: i. Establish and maintain contact with Kristin Nelson Hargitt, Team Lead/Social Worker of First Nation A (or other named First Nation A Representative) to provide Baby A with cultural continuity, including by the following means: a.

Obtain, at least annually, updates on cultural events occurring in the First Nation A community; b. Assist with planning visits to the First Nation A for the child’s participation in cultural and community events and for family connection, and provide to the First Nation A Representative, at least annually, a written update on Baby A’s health, education, interests and well-being. ii. Establish and maintain contact with a member of the First Nation B who is informed about cultural events including those held in the Big House; July homecoming; family potlatches or feasts; iii.

Make best efforts to take Baby A to cultural events of the First Nation A and First Nation B;

iv. Establish and maintain contact with people identified as First Nation A and First Nation B community members and family by telephone, letters, pictures, electronic communication and in person; v. Ensure that the child is encouraged to learn about the First Nation A and First Nation B cultures and her cultural identity, as her developmental stages permit, by sharing related materials with her about these cultures, which may include information relating to the Nations’ histories, traditional territories and means of governance; vi.

Ensure that Baby A’s education includes sharing with her reading materials in the [omitted for publication] language, as her developmental stages permit, as early as possible. __________________________ The Honourable Judge L. Smith Provincial Court of British Columbia CORRIGENDUM – Released December 24, 2020 [1] On the cover page of my Reasons for Judgment dated November 18, 2020, the style of cause should reflect the name of the mother as follows: S.B. a.k.a.

S.W. (MOTHER) [2] On the cover page, the dates of hearing and corresponding counsel/participants have been amended as follows: Dates of Hearing September 23, 2019 Counsel for the Director K. Diehl Counsel for the Father, A.B. A. Yalowsky Counsel for the Mother, S.B. A. Prkacin First Nation A Representative K. Hargitt September 24-26, 30, 2019; October 1, 2019; November 19-21, 25-26, 2019 Counsel for the Director K. Diehl Father (In Person) A.B. Counsel for the Father, A.B. A. Yalowsky Mother (in person) S.B. Counsel for the Mother, S.B. A. Prkacin First Nation A Representative K.

Hargitt January 24 and 31, 2020 Counsel for the Director K. Diehl Father (in person) A.B. Counsel for the Father, A.B. A. Yalowsky Mother (in person) S.B. Counsel for the Mother, S.B. A. Prkacin First Nation A Representative K. Hargitt August 18, 2020 Counsel for the Director C. Le Beau (by phone) Counsel for the Father, A.B. A. Yalowsky (by phone) First Nation A Representative K. Hargitt (by phone) Places of Hearing Pemberton and North Vancouver, B.C. Date of Judgment November 18, 2020 _________________________ The Honourable Judge L. Smith Provincial Court of British Columbia