British Columbia (Children and Family Community Service) et al, 2021 BCPC 179

Citation: British Columbia (Children and Family Community Service) et al 2021 BCPC 179 Date: 20210713 File No: [Omitted for publication] Registry: Prince Rupert 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: N.K.P.R.W. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT A.D.R. and S.M.J.W.

PARENTS CFCSA Matter - Restriction on Access, s. 3.2 Provincial Court Act File No: [Omitted for publication] Registry: Prince Rupert IN THE MATTER OF THE FAMILY LAW ACT , S.B.B. 2011 c.25 BETWEEN S.M.J.W. APPLICANT AND A.D.R. RESPONDENT RULING ON ADJOURNMENT APPLICATION, TEMPORARY CUSTODY ORDER AND MERGER OF ACTIONS OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Director: J. Fitzmaurice Counsel for the Mother: A. Lax Counsel for the Father: A. Roth

Place of Hearing: Prince Rupert , B.C. Date of Hearing: July 13, 2021 Date of Judgment: July 13, 2021 [ 1 ] A three-day Protection Hearing was scheduled to begin in this matter on July 13, 2021, regarding six-year old N.K.P.R.W. (the “Child”). [ 2 ] On the morning of July 13, 2021, before the Protection Hearing began, Mr. Roth, counsel for S.M.J.W. (the “Father”), made an application for an adjournment of the Protection Hearing , relying upon the Director’s failure to comply with s. 38(1) of the CFCSA .

I granted the Father’s request for an adjournment of the Protection Hearing , with reasons to follow. [ 3 ] Furthermore, pursuant to ss. 60(3) and 60(4) of the CFCSA , I made a “without prejudice” temporary custody order pursuant to s. 41(1)(

b) of the CFCSA , leaving the Child with his maternal aunt J.I. (the “Aunt”), in [omitted for publication], BC, with reasons to follow. [ 4 ] Finally, upon the application of Mr. Lax, counsel for A.D.R. (the “Mother”), I ordered that the associated Family Law Act (“ FLA ”) matter be heard with together with this CFCSA matter, with reasons to follow. [ 5 ] These are my reasons. Brief Background [ 6 ] The Mother is the biological mother of the Child. She is an Indigenous woman, from the [omitted for publication] Nation. The Father is the biological father of the Child.

He is an Indigenous man, from the [omitted for publication] Nation. Accordingly, the Child is Indigenous. [ 7 ] In August of 2019, the Mother was living in Prince Rupert, BC with the Child and her eight-year-old son J.S.W.R. The Father, who is the biological father of the Child and a stepfather to J.S.W.R., was residing in Greater Vancouver. The Ministry of Children and Family Development (“MCFD”) became involved with the Mother, the Child and J.S.W.R. At the Mother’s request, the Child and J.S.W.R. were placed on a safety plan with the Aunt in the [omitted for publication] community of [omitted for publication].

The Mother did not want the MCFD to include the Father in the children’s care at this point. The Mother told the MCFD that she had fled her relationship with the Father due to intimate partner violence, an allegation that the Father denies. At some point, the safety plan was converted into an Extended Family Program (“EFP”) agreement. [ 8 ] In September of 2019, the Father relocated to Prince Rupert as his mother had passed away and he was to inherit the family house. The Father applied for guardianship of his 16 year-old brother S.K.W. through the FLA .

S.K.W. had also expressed a desire to live with the Father in their mother’s home. The Father subsequently also applied for guardianship of his stepson J.S.W.R. and the Child through the FLA . [ 9 ] In February of 2020, the MCFD became aware that the Father was applying for guardianship of the Child and J.S.W.R. The MCFD opened a case file for the Father in order to assess his ability to parent the Child and J.S.W.R. The Father met with a child safety worker and completed an interview for the MCFD’s Strengths and Needs Assessment .

The child safety worker requested that the Father participate in a parenting program. The child safety worker also reviewed the Father's criminal and MCFD history, including the allegation of intimate partner violence towards the Mother. [ 10 ] In March of 2020, two social workers from Northwest Inter-Nation Family and Community Services (“NIFCS”) interviewed the Child and J.S.W.R. During the interview, J.S.W.R. alleged concerns about the Father's methodology of disciplining him.

There were no disclosures of concerns regarding the Child, but the Child was apparently difficult to interview due to his age, speech delay and lack of attention. [ 11 ] Due to the ongoing Covid-19 pandemic, the Father was unable to visit with the Child or J.S.W.R. in [omitted for publication].

Furthermore, due to an ongoing personality conflict with the Aunt, the Father was unable to communicate with the boys. [ 12 ] The Father obtained a permanent guardianship order for his brother S.K.W. on July 23, 2020. [ 13 ] On August 4, 2020, upon the application of the Father in the FLA matter between himself and the Mother, I made an order that the Father and the Mother are the joint guardians of the Child.

I made a further order pursuant to rule 20(3) of the Provincial Court (Family) Rules (as they then were), that the Child shall not be removed from [omitted for publication] or Prince Rupert without further order of the court or the express written permission of the Father. [ 14 ] On August 14, 2020, the Father informed the MCFD that he had been granted guardianship of the Child and he requested the MCFD’s assistance in picking the Child up from the Aunt in [omitted for publication]. [ 15 ] On August 17, 2020, the MCFD received a report alleging the sexual abuse of J.S.W.R. by the Father.

The child safety worker contacted the Royal Canadian Mounted Police (“RCMP”) and reported the MCFD's concerns. Someone at the RCMP told the child safety worker that the RCMP would investigate the matter. The child safety worker contacted the Father and asked him to hold off picking up the Child from [omitted for publication] as there was a current RCMP investigation involving him. Furthermore, the child safety worker told the Father that the MCFD would have to remove the Child from his care if he picked up the Child before the RCMP investigation cleared him.

The Father told the child safety worker that he would discuss the situation with his lawyer. [ 16 ] On August 27, 2020, the Father and his previous legal counsel appeared before me at a Family Case Conference in relation to the FLA matter. The Mother appeared on her own behalf. At the conclusion of the Family Case Conference, the Father and the Mother agreed to an interim consent court order with a number of conditions, including:

I. Effective September 1, 2020, the Child shall reside with the Father. II. The Father shall provide to the Prince Rupert RCMP his plans for travelling to [omitted for publication] to pick up the Child, including dates for the ferry and where he will be staying. III. A copy of the order shall be provided by counsel for the Father to the MCFD so that the MCFD is aware of the order. IV. The Mother shall be entitled on three clear days’ notice to bring an application to the court to vary or cancel the order. V.

The Father shall have all parental responsibilities for the Child, with the Mother having reasonable contact with the Child at dates and times agreed to between the parties. [ 17 ] Unaware of the ongoing MCFD and RCMP investigation of the alleged sexual abuse of J.S.W.R. by the Father, I granted the interim consent court order. [ 18 ] The MCFD became aware of the interim consent court order the following day, August 28, 2020.

The child safety worker contacted the Father on September 1, 2020, and again let him know that if he picked the Child up before the RCMP completed their investigation of him and the alleged sexual abuse of J.S.W.R., the MCFD would remove the Child from his care. The Father again told the child safety worker that he would discuss the matter with his lawyer. [ 19 ] The MCFD requested that the Father enter into an EFP agreement placing the Child in the care of the Aunt, where the Child and J.S.W.R. were already living.

The Father declined, as he wanted the Child to reside with him. [ 20 ] On September 9, 2020, a delegate of the Director filed a written Presentation Report with the Court stating the Child had been removed in accordance with s. 30 of the CFCSA because the Child has been, or is likely to be, sexually abused or exploited by his parent (the Father). In the Presentation Report , the delegate of the MCFD recommended the following terms and conditions: I.

The Director must have direct and private, announced and unannounced access with the Child, and direct, announced and unannounced access to the Child's residence or any place in which he may be cared for, as often as the Director deems necessary to ensure the Child's safety. II. The Aunt will not allow any direct or indirect contact between the Child and the Father except as explicitly permitted and arranged by the Director. III.

The Director may remove the Child if any of the terms are breached. [ 21 ] Also in the Presentation Report , the delegate for the MCFD stated that the Child's views on the interim plan have been considered, his parents have not been involved in the development of the plan, and the Indigenous community has been involved in the development of the plan. [ 22 ] The matter appeared in Prince Rupert court on September 10, 2020, and was adjourned to October 1, 2020. [ 23 ] On October 1, 2020, the matter was adjourned to October 15, 2020. [ 24 ] On October 15, 2020, the matter was adjourned to October 29, 2020. [ 25 ] On October 29, 2020, the matter was adjourned to November 19, 2020. [ 26 ] On November 29, 2020, the matter was adjourned to February 4, 2021. [ 27 ] The Presentation Hearing finally proceeded in front of me on February 4, 2021.

I made an order pursuant to s. 35(2)(

d) of the CFCSA that the Child be placed in the interim custody of someone other than his parents, namely, the Aunt, under the Director’s supervision, with terms and conditions. At the conclusion of the Presentation Hearing , I adjourned the parties to the Judicial Case Manager’s Office to fix a three-day Protection Hearing . The parties attended the Judicial Case Manager’s Officer virtually and the fix date for the Protection Hearing was adjourned to March 11, 2021. [ 28 ] On February 24, 2021, a delegate of the Director filed an Application For An Order seeking a six month temporary custody order placing the Child in the custody of the Aunt, under s. 41(1)(

b) of the CFCSA . Terms of the Protection Order sought were: I. The Director must have direct and private, announced and unannounced access with the Child, and direct, announced and unannounced access to the Child's residence or any place in which he may be cared for, as often as the Director deems necessary to ensure the Child's safety. II. The Aunt will not allow any direct or indirect contact between the Child and the Father except as explicitly permitted and arranged by the Director. III.

The Director may remove the Child if any of the terms are breached. [ 29 ] While the Mother consented to the terms of the proposed Protection Order , the Father did not. [ 30 ] On March 11, 2021, the fix date for the Protection Hearing was adjourned to March 15, 2021. [ 31 ] On March 15, 2021, the fix date for the Protection Hearing was adjourned to June 10, 2021. [ 32 ] On June 10, 2021, three-days were set aside for the Protection Hearing , beginning on July 13, 2021.

[ 33 ] On July 9, 2021, and contrary to the ten-day notice requirement set out in s. 38 of the CFCSA , counsel for the Director advised Mr. Roth that the Director was going to amend their February 24, 2021 Application For An Order , the hearing of which was set to begin July 13, 2021. The Director would now be seeking a s. 41(1)(

a) CFCSA supervision order in favour of the Mother. [ 34 ] At the start of court on July 13, 2021, counsel for the Director formally amended their application. Accordingly, the Director is no longer seeking an order pursuant to s. 41(1)(

b) of the CFCSA . Instead, the Director is now seeking a s. 41(1)(

a) CFCSA supervision order in favour of the Mother. Not surprisingly, the Mother is in agreement with the Director, while the Father opposes the granting of the s. 41(1)(

a) CFCSA supervision order and wants the Child to reside with him as per the August 27, 2020 FLA interim consent court order that the Mother agreed to. Application to Adjourn [ 35 ] The father takes the position that he has been prejudiced by the Director’s failure to comply with s. 38 of the CFCSA , which reads: Notice of protection hearing 38

(1) At least 10 days before the date set for a protection hearing, notice of the time, date and place of the hearing must be served as follows: (

a) on the child, if 12 years of age or over; (

b) on each parent; (

c) if the child is a First Nation child, on a designated representative of the First Nation; (c.1) if the child is a Nisg̱ a'a child, on a designated representative of the Nisg̱ a'a Lisims Government; (c.2) if the child is a Treaty First Nation child, on a designated representative of the Treaty First Nation; (

d) if the child is not a First Nation child, a Nisg̱ a'a child nor a Treaty First Nation child but is an Indigenous child, on a designated representative of another Indigenous community that has been identified by (a) (

i) the child, if 12 years of age or over, or (b) (ii) the parent who at the time of the child's removal was apparently entitled to custody, if the child is under 12 years of age; (d.1) on any party to the proceeding in which the court made the existing order about the child; (d.2) on a person who has an interim order for custody of the child under section 35 (2) (d); (

e) on any other person the court considers appropriate.

(2) The notice must specify the orders the director intends to request and include a copy of any plan of care the director intends to present to the court, unless the parent and any other person entitled to notice agree to wait until a later date for that information. [ 36 ] The Father says that: 1. The landscape of the Protection Hearing has been completely altered due to the Director's decision to change from seeking a temporary custody order placing the Child in the custody of the Aunt for a period of six months, to seeking a supervision order placing the Child in the custody of the Mother for six months. 2.

The parenting responsibilities and residency of the Child were settled by the August 27, 2020 FLA interim consent court order. 3. When the Director was seeking a s. 41(1)(

b) CFCSA temporary custody order, the essential arguments were going to be over a. the allegations of J.S.W.R. having been sexually abused by the Father, and b. how that allegation relates to the Director’s delegate’s belief that the Child has been, or is likely to be, sexually abused or exploited by his parent (the Father). 4.

Now that the Director is presumptively saying that the Mother, who has relocated to Burnaby, is “the parent apparently entitled to custody” and that her residence is preferable to that of the Aunt and or the Father, he has another major hurdle that needs to be prepared for and argued as part of the Protection Hearing . 5. He remains of the view that the Child should be returned to live with him. 6. The result is that the case he needs to meet has changed, such that he needs more time to prepare. [ 37 ] I am in agreement with the Father.

The landscape has changed and it would be unfair of the court to force the Father to proceed to the Protection Hearing without adequate time to prepare. Accordingly, I find that the Director has not complied with s. 38 of the CFCSA to the prejudice of the Father. The only fair and just remedy in the circumstance is to grant an adjournment of the Protection Hearing . Adjournment granted. What to do until the Protection Hearing is settled on its Merits?

[38] Given that: I. The Father continues to deny any wrongdoing or sexual abuse in relation to J.S.W.R., II. No criminal charges have been laid or apparently will be laid in response to the allegation that the Father sexuallyabused J.S.W.R., III. The Father continues to deny the allegation of the Director’s delegate that the Child has been, or is likely to be,sexually abused or exploited by the Father, IV.

Notwithstanding the August 27, 2020 FLA interim consent court order that the Child reside with the Father, theDirector now takes the position that the Mother is the parent apparently entitled to custody of the Child and that therefore a s. 41(1)(a)CFCSA supervision order in her favour is preferable to that of the Father, V. The Father remains committed to the Child residing with him, VI. The Father remains opposed to the court making an order that the Child be returned to the Mother pursuant to a s.41(1)(

a) CFCSA supervision order, VII. The Aunt continues to be willing to look after the Child and J.S.W.R., VIII. The Mother has told the court that if the court orders the Child to remain with the Aunt until completion of theProtection Hearing, she will continue to have J.S.W.R. reside with the Aunt pursuant to an EFP agreement, and IX. Remarkable progress has been made by the Child and J.S.W.R. since August of 2019, while living in [omitted forpublication] with the Aunt.

What is to be done with regard to the Child until the completion of the Protection Hearing on its merits? [39] The Director and the Mother say that utilizing the powers given to this court in ss. 60(3) and 60(4) of the CFCSA, the courtshould make a “without prejudice supervision order” pursuant to s. 41(1)(

a) of the CFCSA in favour of the Mother. [40] In contrast, the Father says that utilizing the powers given to this court in ss. 60(3) and 60(4) of the CFCSA, the court shouldmake a “without prejudice temporary custody order” pursuant to s. 41(1)(

b) of the CFCSA, keeping the Child with the Aunt. The Fatherappreciates that until the allegations against him are decided by the court, it is not realistic to expect the court to order the return of theChild to him as set out in the August 27, 2020 FLA interim consent order.

An Act respecting First Nations, Inuit and Métis children, youth and families [41] A recent piece of federal legislation known as

An Act respecting First Nations, Inuit and Métis children, youth and families (the“ARFNIM”) has the potential to change for the better the circumstances of Indigenous children in care or otherwise subject to theattention and intervention of the MCFD. [42] An early critic of the ARFNIM, Kylee Wilyman, issued a warning and argues for a holistic approach to the issue of Indigenouschildren in care in A Nation of Hollow Words:

An Act respecting First Nations, Inuit and Métis children, youth and families, 20202076: … Historically, the best interests of the child have been framed by colonial courts which have failed to recognize the significance ofcultural continuity. Indigenous groups have argued that cultural continuity and family connection should be recognized as fundamentallyimportant to Indigenous child wellbeing rather than simply considerations to be balanced with other interests.

As the legislation stands,there is still a risk that Canadian courts will continue assessing “best interests” without regard for Indigenous laws and traditions,especially given that Indigenous laws are not paramount over the sections dealing with the best interests of the child. Ensuring thatcultural continuity is recognized as fundamental to the wellbeing of Indigenous children will be critical to preventing yet another“scoop.” When Indigenous children are raised apart from their families, they are stripped of their identity, culture, and language.

This trauma isthen passed down from one generation to the next, contributing to the propagation of the high number of Indigenous children in thesystem. Parliament has attempted to recognize these facts in the

preamble of the Act, as well as in its focus on preventativecare, substantive equality, and improvement of socioeconomic conditions. While achieving substantive equality is a laudable goal,Indigenous communities are currently faced with a multitude of problems and struggle to provide basic services such as clean drinkingwater, education, and housing. The federal government needs to recognize that, to keep its promises, it must shift its colonial view ofchildren’s rights as an individualistic framework to one that appreciates the centrality of community and connectedness.

A holisticapproach to community development and engagement will be necessary moving forward, but the concept is still a foreign one to ourlegislatures. Indigenous children deserve better. Will the status quo continue, or will we be able to meet the challenge as a society? [43] Since the ARFNIM is only 18-month’s old, case law interpreting and applying the ARFNIM is minimal.

Nevertheless, it is myhope that the ARFNIM will result in increased cultural sensitivity and awareness of the unique needs and history of Indigenous childrenby all those who deal with decisions that affect the lives of Indigenous children. [44] Provincial Court judges across Canada deal with the vast majority of child apprehension and protection cases.

I am of the opinionthat the ARFNIM provides the Provincial Court of British Columbia with jurisdiction in addition to that of the CFCSA. [45] Although an Alberta decision, I am in agreement with Judge O’Gorman’s conclusion in the first two sentences of paragraph 11 inDB (Re), 2021 ABPC 140, that

[11] The Federal legislation, ARFNIM , would apply to Provincial Court proceedings involving Indigenous children. This would impact the considerations involved in determining the best interests of the child, specifically, the importance for the child of having an ongoing relationship with their family and with the Indigenous group to which they belong and of preserving the child’s connection to their culture. [ 46 ] I am also in agreement with my sister Judge Smith’s detailed analysis of the ARFNIM (what she refers to as the “ Federal Act ”) in the decision of First Nation A. v. A.B. , 2020 BCPC 279 .

Although Judge Smith decided a much different issue than what is before the court in the present case, her analysis of the ARFNIM principles is relevant to the present case, including her conclusion in paragraph 54 that the ARFNIM provides the Provincial Court of British Columbia with jurisdiction additional to that of the CFCSA . [ 47 ] Of note from First Nation A. v. A.B. for purposes of the present case are the following excerpts: 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). ….. [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). ….. [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). …..

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). ….. [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))…. [ 48 ] The factors in 10(3) of the ARFNIM are: Factors to be considered

(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;

(

b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life; (

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; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

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; (

g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and (

h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. [ 49 ]

Section 13 of the ARFNIM states: 13 In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child, (

a) the child’s parent and the care provider have the right to make representations and to have party status; and (

b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations. [ 50 ]

Section 16 of the ARFNIM states: Priority 16

(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (

a) with one of the child’s parents; (

b) with another adult member of the child’s family; (

c) with an adult who belongs to the same Indigenous group, community or people as the child; (

d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (

e) with any other adult. Placement with or near other children

(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child. Customs and traditions

(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption. Family unity

(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with (

c) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or (

b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a). [ 51 ] C.C., on behalf of the [omitted for publication] Nation, has provided the court with some insight from the [omitted for publication] Nation and an update as to the current status of the Child and his brother J.S.W.R.

I did not hear from a representative of the [omitted for publication] Nation. [ 52 ] Based on the limited information that I have been provided, which essentially amounts to: I. the various affidavits that have been filed and that I have had the opportunity to read over the past calendar year, II. today’s submissions by counsel, III. today’s update from Ms. Carr on the current status of the Child and J.S.W.R., and

IV. the Aunt is willing and able to continue caring for the Child and J.S.W.R., [ 53 ] I conclude that the Child and J.S.W.R. are doing really well right now with the Aunt. [ 54 ] When I look at the provisions of the CFCSA combined with sections 9, 10 and 16 of the ARFNIM , the primary consideration for the court remains the best interest of the Child.

In reaching my decision in the present case, I have paid particular attention to and applied each of the factors enumerated in s. 10(3) of the ARFNIM . [ 55 ] While I appreciate how far the Mother says she has come in her life since August of 2019, which is apparently accepted by the Director but disputed by the Father -- who maintains that he is the preferred parent to have the primary parenting responsibility for the Child and that the Child should reside with him -- without the evidence and argument that is to be presented at the Protection Hearing , including: 1. the direct examination and cross-examination of witnesses; 2. the flushing out of the allegations against the Father; and 3. the views of the relevant First Nations (should they wish to be heard), the court is not in a position to conclude that a “without prejudice interim supervision order” in favour of the Mother pursuant to s. 41(1) (

a) of the CFCSA is in the best interest of the Child at this time. [ 56 ] In making my decision, I am mindful of the hierarchy in s. 16(1) of the ARFNIM that requires placement of the Child with one of his parents, before considering the placement of the Child with his Aunt, unless the specific exception as provided for in s. 16(1) of the ARFNIM is present. [ 57 ] On the whole of the evidence known to the court at this time, I am satisfied on a balance of probabilities that the specific exception in s. 16(1) of the ARFNIM exists.

That is: the placement of the Child with one of his parents before the completion of the Protection Hearing is not consistent with the best interests of the Child. Simply put, I have no confidence, based upon the affidavits, submissions of counsel and other information that has been made available to me, that disrupting the Child’s remarkable progress while residing with his Aunt over the past 23 months, before a full Protection Hearing is completed, is in the Child’s best interest.

Furthermore, I am not satisfied that the court currently has sufficient and reliable evidence before it to allow for a determination if either the Mother or the Father is currently an acceptable parent to have parental responsibilities for the Child. [ 58 ] The court’s concern is for the Child, who has, as C.C. told the court today, done very well in the 23 months that he has been living in [omitted for publication].

He is at the top of his class as a six-year-old, he is physically in great shape, he is mentally in good shape, he is surrounded by members of the [omitted for publication] Nation, and he is enjoying his time with his brother J.S.W.R. Should the court interfere with the Child’s living arrangements before a determination is made at a Protection Hearing , the Child will be negatively affected and perhaps placed into a dangerous situation.

The uncertainty of what the Child’s life will be like if removed from [omitted for publication] and the Aunt pending a determination after a Protection Hearing requires the court to conclude that it is not in the Child’s best interest at this time that he be removed from the care of the Aunt. Therefore, I am not satisfied that it is in the best interest of the Child to remove him from the temporary custody of the Aunt at this time.

The result may be different when the Protection Hearing has concluded and this court has had an opportunity to review all the circumstances, hear from all the witnesses under oath, and receive argument of counsel. [ 59 ] I know that my decision breaks the Mother’s heart. I know that my decision is not what the Father wants in the long term.

However, when I take into consideration: 1. all the evidence and legal argument made thus far in the unique circumstances of the present case, 2. the good job the Aunt and the [omitted for publication] Nation are doing with the Child and his brother, 3. the uncertainty as to either the Mother’s or the Father’s ability to look after themselves, never mind the Child, and 4. my decision is not a permanent solution, it is the best result for the Child. [ 60 ] My goal and primary responsibility, this court's goal and primary responsibility, is to protect the best interest of the Child now and moving forward.

The best way to accomplish this goal is to wait for the conclusion of the Protection Hearing before deciding which parent, if either, should have parenting responsibility for and primary residence with the Child. [ 61 ] C.C., on behalf of the [omitted for publication] Nation, has offered and is in a position to reach out to the family worker in [omitted for publication] to facilitate and supervise contact between the Father and the Child. The Director is supportive of this arrangement. [ 62 ] The result is my decision that maintaining the status quo pursuant to s. 16(1)(

b) of the ARFNIM and s. 41(1)(

b) of the CFCSA is in the best interest of the Child. [ 63 ] Accordingly, utilizing the authority given to me by ss. 60(3) and 60(4) of the CFCSA , I make a “without prejudice” order pursuant to s. 41(1)(

b) of the CFCSA that the Child be placed in the temporary custody of the Aunt, a person other than his parents, under the Director's supervision, for a period of six months or until completion of the hearing of the Director’s application for a Protection Order , whichever occurs first, on the following terms and conditions: 1. The Aunt will allow indirect contact between the Father and the Child and, with the Director’s permission, supervised direct contact

between the Father and the Child. For greater certainty, by indirect contact the court is referring to face-to-face social media contact, email, FaceTime, telephone and such, to be allowed between the Father and the Child. In-person contact will be as allowed by the Director and facilitated by the family worker in [omitted for publication]. 2. The Aunt will allow unsupervised indirect and direct contact between the Mother and the Child. [ 64 ] Finally, I make a stand-alone order that the corresponding FLA action be heard at the same time as the Protection Hearing in this matter. _____________________________ The Honourable Judge D. Patterson Province of British Columbia