2021 ONCJ 425, 2021 ONCJ 425

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. ONTARIO COURT OF JUSTICE CITATION : Windsor-Essex Children’s Aid Society v. A.D., 2021 ONCJ 425 DATE : June 29, 2021 COURT FILE NO. : 478/16 BETWEEN: Windsor-Essex Children’s Aid Society

Applicant, — AND — A.D. Respondent, D.R. Respondent, J.Re. Respondent, H.C. Respondent. Before Justice M. Vickerd Heard on March 3, 2021 Released on June 29, 2021 M. Hurley............. Counsel for the Applicant, Windsor-Essex Children’s Aid Society P. Rowley........................................................................ Counsel for the Respondent, A.D. M. Vicente....................................................................... Counsel for the Respondent, D.R. C. Sweet......................................................................... Counsel for the Respondent, J.Re. C.

Sweet.......................................................................... Counsel for the Respondent, H.C. D. Sandor.............................................. Counsel for the Office of the Children’s Lawyer VICKERD, J.: RULING ON MOTION OVERVIEW

[ 1 ] The Respondent mother A.D. advanced a motion seeking an order varying the statutory findings made under subsection 90(2) by Justice D.W. Phillips on April 27, 2017 for the children, K.Re., born […], 2014, and A.Re., born […], 2016, for a finding that the children are Métis persons. [ 2 ] The Respondent A.D. motion was addressed by teleconference due to the COVID-19 pandemic.

All counsel and parties were present save for the Respondent J.Re. [ 3 ] The Respondent A.D.’s motion is advanced within the context of the Windsor-Essex Children’s Aid Society’s (“W.E.C.A.S.”) Status Review Application. [ 4 ] The Respondent mother’s partner, the Respondent D.R., supports her request. The Office of the Children’s Lawyer representing both subject children also supports the order sought. The Windsor-Essex Children’s Aid Society does not oppose the relief sought.

The Respondents, J.Re. and H.C. take no position on the Respondent mother’s motion. [ 5 ] The Court has received and reviewed the following pleadings and orders: the Order of Justice D.W. Phillips, dated April 27, 2017, the Notice of Motion of the Respondent A.D., dated February 16, 2021; the Affidavit of A.D., sworn February 16, 2021; and the Affidavit of D.R., sworn February 2, 2021. [ 6 ] As well, the Court had the benefit of oral submissions from all parties to the motion.

BACKGROUND [ 7 ] The subject children of this Status Review Application are: K.Re. (DOB […], 2014) and A.Re. (DOB […], 2016). [ 8 ] The mother of the children is A.D. The father of the children is J.Re. [ 9 ] The mother is in a relationship with the Respondent D.R. They have two children of their relationship: “L.” (DOB […], 2018) and “I.” (DOB […], 2019). There are separate child protection proceedings relating to each of those children. “L.” and “I.” are presently in the care of the Respondents A.D. and D.R. pursuant to interim orders. [ 10 ] The Respondent father is in a relationship with H.C.

They have one child of their relationship: E.Re. H.C. also has a son who resides with them, B.L. [ 11 ] The child protection proceedings concerning the children, K.Re. and A.Re., have been ongoing since 2016. Several orders have been made that the children, K.Re. and A.Re., are in need of protection. The last order was made by Justice Hardman on November 25, 2019. That order provided that the children K.Re. and A.Re. shall be placed into the care of the Respondent mother and her common law spouse, D.R., for a period of six months subject to supervision by the W.E.C.A.S. on terms and conditions.

The Respondent father and his partner were granted access with the children to occur each Monday from 8:15 a.m. to Thursday after school (or 4:00 p.m. when there is no school). That order was made on consent, based upon a Statement of Agreed Facts. [ 12 ] It is clear from a review of the multiple Statement of Agreed Facts, which supported prior orders and appended as exhibits to the Society’s Affidavit, that the child protection issues historically have been: a. Mental health concerns for the Respondent mother; b. Home environment issues in the parents’ homes; c.

Lack of follow-through with services by Respondent mother; and

d. Ongoing conflict between the parents relating to custody and access issues. [ 13 ] In the context of this Status Review Application proceeding, an interim order was made on September 22, 2020 placing the children, K.Re. and A.Re., into the care of the Respondent J.Re. and H.C., with access to the Respondents A.D. and D.R. ANALYSIS [ 14 ] There are two issues to be examined for the current motion: 1. Authority of the Court to revisit the statutory findings made by Justice D.W. Phillips on April 27, 2017; and 2.

If the Court has authority to revisit the statutory findings, are the children, K.Re. and A.Re., children of a First Nation, Inuk or Métis community? 1. Authority of the Court to Revisit the Statutory Findings made on April 27, 2017 [ 15 ] The first issue to be addressed is whether the Court has jurisdiction to revisit the statutory findings made previously by Justice D.W.

Phillips on April 27, 2017. [ 16 ] Statutory provisions regarding “identification” findings are set out in section 90(2) of the Child, Youth and Family Services Act (“ C.Y.F.S.A .”) which provides that the Court: 90(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine, (

a) the child’s name and age; (

b) whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis communities; and (

c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed. [ 17 ] There is no express provision in the C.Y.F.S.A. that provides the Court with the authority to “vary” or “amend” these findings once made, including a First Nations, Inuk or Métis finding. [ 18 ] As the Act contains no express authority permitting the Court to make a fresh determination, the principles of statutory

interpretation require an examination of the language of the

section within the greater context of the legislation. This principle of statutory

interpretation is found in SCC Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42 , [2002] S.C.R. 559. In cases such as this one, a statute’s

preamble may be used to resolve ambiguities and uncertainties within the legislation. As found in the case of Children's Aid Society of the Regional Municipality of Waterloo v CE , [2020] OJ No 5040 , 2020 ONSC 6314 , a conceptual and purposive

interpretation of the child protection legislation supports the court’s ability to revisit the issue based on new evidence. [ 19 ] The

preamble of the C.Y.F.S.A . provides: The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard. The Government of Ontario is committed to the following principles:

Services provided to children and families should be child centred. Children and families have better outcomes when services build on their strengths. Prevention services, early intervention services and community support services build on a family’s strengths and are invaluable in reducing the need for more disruptive services and interventions. Services provided to children and families should respect their diversity and the principle of inclusion, consistent with the Human Rights Code and the Canadian Charter of Rights and Freedoms .

Systemic racism and the barriers it creates for children and families receiving services must continue to be addressed. All children should have the opportunity to meet their full potential. Awareness of systemic biases and racism and the need to address these barriers should inform the delivery of all services for children and families. Services to children and families should, wherever possible, help maintain connections to their communities.

In furtherance of these principles, the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child. With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following: The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario. Where a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra- jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned. Further, the Government of Ontario believes the following: First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being. For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions. [ 20 ] In this case, the

preamble and unique considerations of the C.Y.F.S.A. for First Nations, Inuk and Métis are important as, if the children are confirmed to be of the Métis community, care and services provided to them under the child protection legislation must be done with recognition and deference to their community’s distinct culture, heritage and tradition and with the aim of preserving their

connection to their community. [ 21 ] Justice Blishen in CAS v. N.P., 2019 ONSC 893 , at paragraph 10 provides that: A child's identification as First Nations, whether or not a member of a band or First Nations community, is important as there are many considerations under the CYFSA with respect to First Nations children. For example: 1. The

preamble to the legislation recognizes the importance of a child identifying with or belonging to a First Nation or a community and emphasizes the importance of ensuring, whenever possible, that care and services for children be in accordance with their distinct cultures, heritages and traditions. 2.

In considering the purposes of the legislation, paragraph 6 ss. 1 (2) of the CYFSA provides that First Nations, Metis and Inuit children are entitled wherever possible, to services provided in a manner that recognizes their cultures, heritages, traditions, connections to their communities, and the concept of the extended family. 3. Pursuant to s. 74 (3) of the CYFSA, the importance of preserving a First Nations child's cultural identity and connection to community is a specific stand-alone consideration in determining what order is in the child's best interests. 4.

In addition, under s. 101 (5) of the CYFSA, when determining the appropriate disposition for a First Nations child, unless there is a substantial reason for placing the child elsewhere, the child shall be placed with a member of the extended family, if possible or, if not, with another First Nations family. Children's Aid Society of Ottawa v NP, [2019] OJ No 589 , 2019 ONSC 893 [ 22 ] As confirmed by Justice Walters in Children’s Aid Society of the Regional Municipality of Waterloo v. C.E., [2020] O.J.

No. 5040, 2020 ONSC 6314 : The enactment of the CYFSA reflects an important step towards reconciliation and the promise not to repeat the irreparable harms that the child welfare system perpetuated against Indigenous children and their families.

It also embraces the principle of self-identification, recognizing that Indigenous children, families and communities have the fundamental right to declare for themselves who they are. [ 23 ] When the C.Y.F.S.A. was introduced for second reading in February 2017, important principles were embraced and included in the new legislation as confirmed by Justice Walters in the Waterloo decision , above : The proposed legislation acknowledges the unique relationship between Ontario and Indigenous peoples and refences the United Nations declaration on the rights of indigenous people and Jordan’s principle.

It acknowledges that First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada with their own laws and distinct, political and historical ties to Ontario. The proposed legislation expands and modernizes language that is out of date and stigmatizing by replacing it with a more inclusive term, as well as allowing for self-identification.

It repeals terms like “Indian” and “native” and replaces them with “First Nations, Inuit and Metis children and families.” It also requires societies to make all reasonable efforts to pursue a plan of customary care for First Nations, Inuit and Métis children and youth in need of protection.

As much and as often as possible, we will honour the traditions of indigenous communities, including customary care, by supporting efforts to keep children close to home and all of that is familiar. (Bill 89, Supporting Children, Youth and Families Act, 2017 , 2 nd reading, Ontario Legislative Assembly , Official Reporter of Debates (Hansard), 42-2 No 44 (22 February 2017) at 2324 (Hon. Sophie Kiwala)). Children’s Aid Society of the Regional Municipality of Waterloo v. C.E., [2020] O.J. No. 5040, 2020 ONSC 6314

[ 24 ] The current child protection legislation, the C.Y.F.S.A ., was enacted to replace the Child and Family Services Act . The new Act encompassed many changes including the removal of stigmatizing and archaic language, changing the criteria for access to children in extended care, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to their communities. Kawartha-Haliburton Children’s Aid Society v. M.W., [2019] O.J.

No. 2029, 2019 ONCA 316 , 24 RFL (8 th ) 32, 432 DLR (4th) 497, [2019] 4 CNLR 143, 2019 CarswellOnt. 5927. [ 25 ] In Kawartha , it is confirmed that the new Act is remedial legislation and should be interpreted liberally stating: “It would be inconsistent with the paramount purpose of the Act ‘to promote the best interests, protection and well-being of children’ not to permit all children to benefit from what the Legislature had clearly decided was a preferable approach.” Further, it is confirmed that the C.Y.F.S.A . is particularly remedial for Indigenous children as it seeks to remedy past injustices and maintain Indigenous children’s connections to their communities. [ 26 ] The C.Y.F.S.A . broadened the definition of who is recognized as an Indigenous child.

The new legislation confirms a commitment by the government to preserving children’s cultural identity and connection to community.

Therefore, any child who identifies as First Nations, Métis or Inuit, has a family member who identifies or if there is a connection between the child and a band, is now recognized as First Nations, Métis or Inuit. [ 27 ] Also, in respect of the Respondent parents’ claims for this motion, the passing of An Act Respecting First Nations, Inuit and Metis Children, Youth and Families S.C. 2019, c. 24 (Federal legislation) with the intent of reducing the number of Indigenous children in care must be considered.

As adopted by Justice Walters in Waterloo : “Indigenous children are overrepresented in the child welfare system due to significant issues of colonialism, systemic racism and the devastating legacy of the residential school system and the Sixties Scoop: see First Nations Child and Family Caring Society of Canada et al v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada, 2016 CHRT 2 (can.

Human Rights Trib.) . ” [ 28 ] At present both the federal An Act Respecting First Nations, Inuit and Metis Children, Youth and Families , and provincial legislation the Child, Youth and Family Services Act , apply to children and family services matters for Indigenous Families: confirmed by Murray J. in Mi’kmaw Family and Children Services v. D.P., 2020 NSSC 96 at para 41 . [ 29 ] A child’s identity is not static or an event that can be attributed to a specific moment in time.

As set out in case law: “Identity as an indigenous person is immutable, whether or not that child or their family possesses all of their own family history and knowledge about their connection to a particular community”: Catholic Children’s Aid Society of Hamilton v. H.(G.), 2016 ONSC 6287 , 83 R.F.L. (7 th ) 299 paras 51 , 76, 77 and 79; Catholic Children’s Aid Society of Toronto v.

S.T., 2019 ONCJ 207 , para 36 ; and adopted in Waterloo, para 57. [ 30 ] As noted by Justice Walters in Waterloo : The goal of redressing this overrepresentation is at risk of being rendered meaningless if the court cannot identify Indigenous children within the system.

Given that the residential school system and the modern day child welfare system have functioned to sever ties between children, their families, and communities, it is logical to allow children and families to re-examine their identification under the CYFSA , with a proper evidentiary foundation as articulated in the case law, to ensure that those children are not denied the protections and rights afforded to them. [ 31 ] In order for the Court to give meaning to the provisions of the current child protection legislation, there must be an acknowledgement that a child’s identity as a First Nations, Métis or Inuk person may evolve on the basis of new evidence as it becomes known. [ 32 ] Ontario courts have permitted the variation First Nations findings on a status review application: Children’s Aid Society of Hamilton v.

B.C., 2019 ONSC 4229 ; Children’s Aid Society of the Regional Municipality of Waterloo v C.E, above. [ 33 ] This proceeding is a Status Review Application pursuant to

section 113 of the Act . In Catholic Children’s Aid Society of Hamilton v. S (B.L.), 2014 ONSC 5513 , at paras 83-84 , Justice Pazaratz summarized the law in status review applications as follows:

83 This is a Status Review Application pursuant to

section 64 of the Act. a. In a Status Review Hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court orderfor his or her protection. c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist.

The need forcontinued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or fromcircumstances which have arisen since then. (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R. 165 (S.C.C.) d. Secondly, the court must consider the best interests of the child. e. The analysis must be conducted from the child's perspective. Pursuant to s. 65 of Act, the legal issue to be determined on this Status Review Application is what order is in the children's bestinterests. 65(1) Court may vary, etc.

Where an application for review of a child's status is made under

section 64, the court may, in the child's best interests, (

a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is partof the order; (

b) order that the original order terminates on a specified future date; (

c) make a further order or orders under

section 57; or (

d) make an order under

section 57.1. [34] Although Justice Pazaratz’s analysis was undertaken in the predecessor legislation to the current law, the Child and FamilyServices Act, Justice Reid in Children’s Aid Society v. K.D., 2019 ONSC 3675, at paragraph 24, confirms that under the Status Reviewprovisions, the C.Y.F.S.A. contains the same legislative provisions and thus the test remains relevant under the new legislation. [35] The test makes it clear that best interests of the child is one consideration on a Status Review Application. Justice Hardman inBruce Grey Child and Family Services v.

A.B.-C., 2018 ONCJ 516, is clear that the finding under section 90(2) is not a declaration ofstatus but it is a finding for the purpose of promoting the best interests of the child: I think that it is important to recognize that a finding under subsection 90(2) (

b) is NOT a declaration of status. It is a "finding" by thecourt for a specific purpose, that purpose being to "promote the best interests, protection and well-being of children" (CYFSA subsection1(1)). That purpose is promoted through the service of appropriate parties so that interested parties can participate in finding child-focused solutions. It is somewhat similar to a court in the Ontario Court of Justice finding a person a parent for the purpose of ordering child support under

the Family Law Act (FLA) but not as a general declaration of that person's status as a parent. This finding ensures that a First Nations, Inuit or Métis community with connection to the child is recognized as a party and participant in the decision-making around that child. With the recognition comes the expectation that that community may be able to help the society, parents and court make a plan addressing the best interests of that child.

It would appear that the intention of the amended finding is to help maintain and emphasize a child's connection with his or her First Nations, Inuit or Métis heritage particularly through his or her cultural community. Given the fact that the finding is made to ensure the right interested parties are served, there appears to be an underlying expectation that there be some identifiable connection between the child or his or her family and that particular cultural community.

Indeed, notice in subsection 79(1)4 is given to "a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities". Bruce Grey Child and Family Services v AB , [2018] OJ No 4073, 2018 ONCJ 516 [ 36 ] Therefore, if the purpose of a section 90(2) finding is to promote the best interests of the child, then said findings can, and should be, revisited at a Status Review hearing under

section 114 which makes direct reference to a child’s “best interests.” [ 37 ] As children, parents and families learn more about their heritage, new information may emerge after an initial judicial finding has been made under section 90(2). The C.Y.F.S.A . does not bar a variation of the first finding. In consideration of a child’s best interests, the court may reconsider the issue of findings previously made. [ 38 ] Given the foregoing, I find that I have jurisdiction to revisit the statutory findings made previously by Justice D.W. Phillips on April 27, 2017. 2. Are the children, K.Re. and A.Re., children of a First Nation, Inuk or Métis community? [ 39 ] Several regulations bear on the

interpretation of section 90(2)(

b) in this case, including the following: i. Under

section 12 of Regulation 157/18, the obligation to make a determination under the new Act exists despite any determination under the old Act . ii. Under

section 1 of Ontario regulation 155/18, a child is a First Nations, Inuk or Métis child if

a) the child identifies, or a parent identifies the child as such; (

b) the child is a member of or identifies with one or more bands or First Nations, Inuit, or Métis communities; or (

c) it cannot be determined under clause (

a) or (b), but there is there is "information" that (

i) a relative or sibling identifies, or

(ii) there is a "connection" between a child and a band or a First Nations, Inuit, or Métis community iii. Under

section 21 of Ontario Regulation 156/18, the bands or First Nations, Inuit or Métis communities with which a child identifies,if any, are determined in accordance with the following rules:

a) If the views of the child can be ascertained, the bands or First Nations, Inuit or Métis communities with which the child identifiesare any bands or First Nations, Inuit or Métis communities with which the child indicates that they identify.

b) If the views of the child cannot be ascertained, the bands or First Nations, Inuit or Métis communities with which the childidentifies are any bands or First Nations, Inuit or Métis communities that a parent of the child indicates are bands or communities withwhich the child identifies. [40] The evidentiary threshold regarding identification is low and the regulations do not require “proof” of identification.

The caselaw shows that a broad approach should be taken when interpreting whether a child is a First Nations, Inuk or Métis child: CatholicChildren's Aid Society of Toronto v ST, [2019] OJ No 1783, 2019 ONCJ 207; Waterloo, above. [41] Justice Sherr in Catholic Children's Aid Society of Toronto v ST, [2019] OJ No 1783, 2019 ONCJ 207, reviewed the guidingprinciples to identification of First Nations, Métis and Inuk children: There must be an evidentiary basis for finding a child is a First Nations, Inuk or Métis child.

The evidence should be sufficient for thechild to fall within the definition of a First Nations, Inuk or Métis child as set out in Ont. Reg. 155/18 (Bruce Grey at para 49) The court should take a broad view interpreting if the child has a connection to a Band or First Nations, Inuit or Métis community underthe regulation. This seems to be in accordance with the spirit of the Act which tends to be more inclusive when it deals with Aboriginalpeoples. (Children’s Aid Society of Algoma v.

C.A., at para 44) [42] To supplement the above, the Court also takes notice that there is an expectation of some "connection." As Justice Hardmanstated in Bruce Grey Child and Family Services v. A.B., 2018 ONCJ 516 , [2018] O.J. No. 4073, 2018 CarswellOnt 12548 atparas. 34 and 36: This finding ensures that a First Nations, Inuit, or Métis community with connection to the child is recognized as a party and participantin the decision-making around the child.

With the recognition comes the expectation that the community may be able to help the society,parents, and court make a plan addressing the best interests of that child. …… Given the fact that the finding is made to ensure the right interested parties are served, there appears to be an underlying expectation thatthere be some identifiable connection between the child or his or her family and that particular community. [43] Also, Justice Sherr's comments at paragraph 35 in Catholic Children's Aid Society of Toronto v.

ST, above have bearing here: The court agrees with the court in Bruce-Grey, supra, that there must be sufficient evidence or information to make a finding that a childis a First Nations, Inuk or Métis child. To say that just anyone, no matter how incredulous their claim may be can put up their hand andhave this claim accepted without question would be an open invitation to persons to abuse the administration of justice. It could causeconsiderable harm to children by delaying decisions affecting them and it would be disrespectful to the First Nations, Inuit and Métispersons the Act is intended to include.

The underpinning of any self-identification right is that it must be made in good faith. [44] Justice Walters in Waterloo identifies that there are three principles that can be taken from the case law when consideringidentification by determination. The principles are as follows: i. There must be an evidentiary basis to the self-identification, and the underpinning of any self-identification right is that it must be

made in good faith; ii. The evidentiary basis is low but must be reliable and credible; and iii. The court is to take a broad view in interpreting if a child is First Nations, Inuk or Métis. This is an approach that is consistent with the statements made in both the

preamble and purposes sections of the Act. [ 45 ] The uncontroverted evidence of the Respondent A.D. and D.R., contained within their Affidavits filed, is as follows: • The children K.Re. and A.Re. have “Métis heritage and background;” • The Respondent mother identifies as Métis. • The Respondent D.R. identifies with the Métis community. • The Respondent mother participates with the children in the Healthy Babies, Healthy Children Program through the Métis Nation of Ontario. • The Respondent mother is accessing services through the Ska: Na Family Learning Center. • The family has been paired with a worker through the Can-Am Indian Friendship Centre who is a support to the family.

The Respondent mother states that this worker is assisting them to discover their Métis clans. • The children have participated in workshops and activities through the Métis Nation and Can-Am Indian Friendship Centre. • The Respondent mother and D.R. have participated in parenting courses offered through Can-Am Indian Friendship Centre including “Bringing Home Tradition.” • According to the Respondent A.D., the maternal grandmother, T.D., was born in Canada and a DNA test last year revealed that she is 15% American Indian. • The paternal grandfather, S.D., has maintained that he has America Indian heritage but was not able to provide any details to the Respondent mother. • The Respondent D.R. advises that his maternal grandfather is of native descent but due to his age, it is difficult to determine from him directly the specifics of his heritage. • The Respondent D.R. confirms that he and the Respondent mother are “working” to find their place in the Métis community. [ 46 ] The Children’s Lawyer representing the subject children, K.Re. (age six years) and A.Re. (age 4 years), supports the order made varying the finding that the children are Métis.

Unfortunately, he did not advise if the children self-identify as Métis persons. According to the Respondent mother’s evidence, contained in her Affidavit, the children do identify themselves as Métis.

[ 47 ] To summarize the evidence of the Respondents A.D. and D.R.: • They both identify as Métis. • The subject children identify as Métis. • The family is accessing resources available to members of the Métis community. • They are participating in community events and programs for Métis families. [ 48 ] The Court finds that the Respondents have provided this evidence in good faith. There is no evidence offered by any other party which disputes these facts. The evidence of the Respondents A.D. and D.R. is taken as being credible and reliable.

Although their connection to the Métis community is amorphous, it appears that they have made connections to social services offered to Métis’ families and are participating in Métis community activities. [ 49 ] The fact that the children and the Respondents A.D. and D.R. identify as Métis is sufficient to support a finding under section 90 (2) (

c) that the children are Métis children. CONCLUSION [ 50 ] Having considered the evidence before me, I find that it is in the interests of justice that the finding of Justice D.W. Phillips, dated April 27, 2017, be vacated and a finding made that the children, K.Re. and A.Re., are Métis children. [ 51 ] Children who are identified as First Nations, Inuk or Métis receive special services pursuant to the C.Y.F.S.A . It would be unjust to exclude these children from those services when new evidence of their connection to the Métis community has been adduced.

ORDER [ 52 ] Therefore, the following order is made: A finding is made that the children K.Re., born […], 2014, and A.Re., born […], 2016, are Métis children under section 90 (2) of the C.Y.F.S.A. Released: June 29, 2021 ______________________ Justice M. Vickerd