Children’s Aid Society of Halton Region v. M.M., 2016 ONCJ 323

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

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, and is subject to subsections 45(7) , 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication.— The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., 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.

(8) 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) Idem: order re adult — 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. . . . 85.—

(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Halton Registry No. 456/14 DATE: 2016·06.02 CITATION: Children’s Aid Society of Halton Region v. M.M. , 2016 ONCJ 323 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY, REGION OF HALTON Applicant — AND — M. M. (mother), R. M. (father of J.R.G.B.), J. C. (father A.L.C.B.), and D. M. (father of A.F.M. & M.D.M.) Respondents

Before Justice Victoria A. Starr Heard on May 6, 2016 Reasons for decision on motion released on June 2, 2016 Kathy Li ................................................................................ counsel for the applicant society Novalea M.A. Jarvis ............................................. counsel for the respondent mother M.M. Logan A. Rathbone ..................................................... counsel for the respondent father J.C. A. Rick Toor........................................................................ counsel for respondent father D.M. W.

Todd Moore ......................................... counsel for the Office of the Children’s Lawyer, legal representative for the J.R.G.B. Maria N. Sirivar ........................................ counsel for the Office of the Children’s Lawyer, legal representative for the A.L.C.B, A.F.M and M.D.M. JUSTICE VICTORIA STARR : 1: INTRODUCTION [ 1 ] In this decision the court determines whether three children are Indian or native persons for the purposes of the Child and Family Services Act , R.S.O. 1990, c. C-11 (“ CFSA ” or the “Act”).

It also addresses the subsidiary issues of identifying a child’s band or native community. There is no other case directly on point. [ 2 ] Such determinations turn on whether a child is an Indian or native person as defined in the CFSA . They are fact driven and are to be decided on a case-by-case basis. [ 3 ] The determination is an important one. Those children who fit within the definitional criteria gain automatic access to the benefits, special treatment, and special considerations the Act affords to Indian and native children.

Those children who do not fit within the definitional criteria face significant and disadvantaging consequences. They are denied access to such benefits and special consideration. They are to be treated no differently than any other child with cultural, ethnic or racial ties to an identifiable ethnic community. [ 4 ] The

definitions are very restrictive. Self-identification with or sharing an ancestral, ethnic, cultural, linguistic or historical connection to an indigenous group or another person of aboriginal decent is not enough. The strength of such connections or ties is not a factor capable of bringing an aboriginal child within the definitional requirements. [ 5 ] The facts of this particular case also underscore the important role social workers, solicitors for a child protection agency, counsel for respondents, and the judiciary, have to play in these child protection cases.

Social workers must conduct thorough investigations at the outset of their involvement with families who self-identify as aboriginal; counsel for the society has the responsibility to ensure that all evidence is put before the court in a fair, unbiased, and balanced way, depicting the reality of a child’s circumstances . All counsel, particularly society counsel, must bring any ambiguity, discord, or uncertainty about the Indian or native status of children to the attention of the court as soon as possible. Similarly, the court must be vigilant and proactive.

It must make enquiries early on so as to identify those children who are potentially Indian or native as defined by the Act . It must also determine the Indian or native status of children, as the Act mandates, as soon as practicable. 2: BACKGROUND TO THESE REASONS [ 6 ] There are four children in this family but only the portion of the protection application with respect to the three youngest children remains unresolved. All three children are under 6 years of age and have been in the society’s care since October 28, 2014 — about 19 months.

The mother, and the father of the two youngest children, have been incarcerated since the fall of 2014 . The court has no information about their release date. No finding has been made yet as to whether these children are in need of protection. [ 7 ] On October 21, 2015, the society amended its already amended protection application to seek an order that all three children be made Crown wards with unspecified sibling access and no access with any of their biological parents. [ 8 ] The society has brought a motion for

summary judgment returnable on June 13, 2016. Fixed trial dates have also been set in July 2016. [ 9 ] The possibility that these children are Indian or native was repeatedly drawn to the attention of the society beginning in May 2014, months before the children were apprehended. [ 10 ] The society dismissed the information and possibility that these children are Indian or native persons out of hand. It did not conduct anything that would even approximate a meaningful investigation into whether these children are Indian or native persons as

defined by the Act until on or about March 19, 2016, almost two years from the date when the mother first raised the issue of the children’s possible status. Instead it has consistently and persistently taken the position that the status of the children is “Not Indian — Not Native”.

As a result of its dismissive attitude, approach, and position, during the almost 19 months these children have been in its care, the society did not serve or consult with the band, provided none of the services the Act requires it provide to children who are Indian or native, and paid no mind to any of the special planning considerations that must be afforded to Indian or native children. [ 11 ] Unfortunately, no one pushed the issue.

The fact that there was disagreement as to whether these children are Indian or native persons only came to the attention of the court when the mother brought a motion seeking a declaration that the children are Indian or native persons under the CFSA . The mother’s motion was brought after she received notice of the society’s motion for

summary judgment, seeking, among other things, a finding that the children are neither Indian nor native. [ 12 ] The mother’s motion was returnable before the society’s

summary judgment motion and it first came before the court on April 13, 2016. The court adjourned the hearing. In this court’s earlier decision, Children’s Aid Society of Halton Region v M.M . , 2016 ONCJ 237 [, [2016] O.J. No. 2126, 2016 CarswellOnt 6460 , [1] the court set the date of May 6, 2016, to hear submissions on this issue. It hoped that by deciding the issue before the balance of the issues on either the motion for

summary judgment or trial, any unnecessary delay could be avoided as well as save substantial costs. The court invited the band to participate in the hearing, in an effort to ensure that the voice of the community could be heard and so that it could receive submissions from counsel with particular expertise in this area of law. [ 13 ] The hearing proceeded on May 6, 2016. The band did not participate.

The court reserved. 3: THE COURT’S DECISION [ 14 ] The court released its decision finding that the three children are each Indian and that each child’s band is the Mohawks of the Bay of Quinte — Tyendinaga Mohawk Territory, on May 10, 2016. It indicated that written reasons would follow. These are those written reasons. 4: THE ISSUES [ 15 ] The issues the court must decide are these: 1. Are the children Indian as defined in the CFSA ? 2. If the children are Indian, what is their band? 3. If the children are not Indian, are they native persons as defined in the CFSA ? 4.

If the children are native persons, what is their native community? 5: POSITIONS [ 16 ] The society’s position is that the children are neither Indian nor native persons.

It submits that the definition of Indian and native person is a very restrictive one under the CFSA and that there is no evidence establishing that they are registered as Indian, no definitive evidence that they are entitled to be registered as Indians, and what evidence there is, is conflicting and highly speculative. [ 17 ] With respect to the issue of whether these children are native persons, the society submits that the children must be found to have a connection to a community designated by the Minister pursuant to

section 209 of the Act as a native community. The only time the Minister has designated native communities pursuant to

section 209 of the Act was in 1995 for the purposes of designating Dilico Ojibway Child and Family Services as a children’s aid society. Thirteen communities were designated at that time. No other designation of a native community has been made by the Minister since that time. [ 18 ] Although there is no actual list of the thirteen communities, what does exist is a list of designated Indigenous Child-well- being Organizations. That list sets out the fourteen communities that Dilico Anishinabek Family Care services.

While the children may have a connection to the Mohawks of the Bay of Quinte, that band is not one of the communities that Dilico services and thus, is not one of the thirteen communities designated by the Minister pursuant to

section 209 as a native community. [ 19 ] The mother’s position is that the children are Indian because they are each entitled, by virtue of their direct biological decent from persons who were either registered as Indians (had status), or entitled to be registered as an Indian (entitled to status). She argues that the evidentiary standard is not one of definitiveness but rather “balance of probabilities” and that based on the evidence, it is more probable than not that these children are Indian as they are entitled to be registered as Indians.

Their band is the Mohawks of the Bay of Quinte. [ 20 ] In the alternative, the mother’s position is that, in the absence of a list (or at least a list the court can be sure is an exhaustive one) of the communities designated by the Minister pursuant to

section 209 , the court ought to find that the Mohawks of the Bay of Quinte is a native community.

She submits that it is not necessary for the Mohawks of the Bay of Quinte to be on the list of communities that Dilico Anishinabek Family Care services in order to be considered a band or native community as argued by the society. [ 21 ] Finally, the mother argues that, if a native community must be served by a child welfare agency in order to be classified as a native community, then the Highland Shores Children’s Aid Society (formerly Hastings Children’s Aid Society) is the agency that services the Mohawks of the Bay of Quinte. Its status as a native community can be inferred from Justice Mark P.

Shelston’s references to it as a native community in the case of Children’s Aid Society of Ottawa v. S.I. , 2015 ONSC 5692 , 260 A.C.W.S. (3d) 289, [2015]

W.D.F.L. 6248, [2015] O.J. No. 5698, 2015 CarswellOnt 16674 (Ont. Fam. Ct.). [2] [ 22 ] The father J.C. takes the position that the children are Indian on the same basis as is argued by the mother. He submits that, if this court finds that the children are not Indian, they are also not native persons. [ 23 ] The lawyer for the children takes no position. She submits that it is her job to advocate for the protection of the children’s interests.

If these children are found to be Indian or native persons as defined under the CFSA , they will be entitled to the additional benefits afforded to such children under the Act, including a wider range of services, and additional options in terms of dispute resolution, possible placement, and even greater options in terms of adoption. She urges the court not to be influenced by the action, inaction or motives of the parties, or by the pressing need to move forward with a final hearing/trial.

What is at stake for these children is far too important for such considerations to influence the court in its determination of the issue. 6: THE LEGAL FRAMEWORK AND LANDSCAPE 6.1: Why the Finding that a Child is Indian or a Native Person Matters [ 24 ] The importance of the culture and ethnicity of all children in child welfare proceedings is always an important consideration. It is relevant both at the interim and final placement stages and in general, to the court’s determination of a child’s best interests.

Throughout the CFSA , the court is directed to give consideration to a child’s ethnic and cultural ties to their community and to persons who share their ethnic cultural background as placement with such individuals or within the child’s community is preferred over foster care, where appropriate. [ 25 ] Indeed, this direction forms one of the objectives of the Act . Paragraph 1(2) ¶4 directs that one of the objectives of the Act is to recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

Specific directions to take a child’s culture into account is also found in a number of other provisions, including subsection 57(4) and paragraph 37(3)¶3, and from the inclusion in a “child’s community” [found in subsection 2(3)], of persons who have ethnic, cultural or religious ties in common with the child. These sections provide: 51(3.1) Placement with relative, etc . - Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child’s best interests to make an order under clause (2)(

c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community. . . . 37(3) Best interests of child - Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: . . . 3. The child’s cultural background. . . . 57

(4) Community placement to be considered - Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. . . . 3

(3) Child’s community - For the purposes of this Act , the following persons are members of a child’s community: 1. A person who has ethnic, cultural or religious ties in common with the child or with a parent, sibling or relative of the child. 2. A person who has a beneficial and meaningful relationship with the child or with a parent, sibling or relative of the child. [ 26 ] Children who are found to be Indian or native persons as defined in the Act , however, are entitled to additional and special considerations.

These special considerations apply in a number of areas including: the provision of services; temporary and permanent placement; change in placement; best interest determinations, and, adoptions.

For example: (a) Paragraph 1(2) 5 of the Act specifically recognizes that native peoples should be entitled to provide their own child protection services to their community, and that services to native families should recognize their culture, heritage, traditions and the concept of the extended family. 1(2) Other purposes.— The additional purposes of this Act , so long as they are consistent with the best interests, protection and well being of children, are: . . . 5.

To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. (

b) The CFSA makes it mandatory for any society proposing to provide services to a native child, or actually exercising a prescribed power under the Act, to consult with a representative from the child’s band [see

section 213.1 ].

(

c) Where an order is to be made based on the determination of the best interests of an Indian or native child, the court must consider the importance of recognizing the uniqueness of Indian and native culture, heritage and traditions, and of preserving the child’s cultural identity [see subsection 37(4)]. (

d) When the court is making an order under

section 57 of the CFSA for an Indian or native child, and has determined that the parent(

s) cannot care for the child, the court must place the child with a member of the child’s extended family, a member of the child’s band or native community, or another Indian or native family unless there is a “substantial” reason for placing the child elsewhere [see subsection 57(5)]. This requires societies to actively seek out alternatives to foster care for Indian and native children. Consider: 57

(5) Idem: where child an Indian or a native person.— Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with, (

a) a member of the child’s extended family; (

b) a member of the child’s band or native community; or (

c) another Indian or native family. (

e) A band has the right to make an application for access under

section 58 of the Act . If the society makes or receives an application for access under subsection 58(2), the society is obligated to notify the child’s band [see also subsections 58(4)]. (

f) A society shall, if possible, place an Indian or native child that has been made a society ward or a Crown ward with a member of the child’s extended family, the child’s band or native community, or another Indian or native family [see clause 61(2)( d )]. (

g) The representatives chosen by the child’s band or native community are automatically entitled to notice and included as a party to child welfare proceedings under

Part III of the Act pursuant to paragraph 39(1)4: 39. Parties. —

(1) The following are parties to a proceeding under this Part: 1. The applicant. 2. The society having jurisdiction in the matter. 3. The child’s parent. 4. Where the child is an Indian or a native person, a representative chosen by the child’s band or native community. [ 27 ] Pursuant to subsection 47(1) and clause 47(2)( c ), the court is to determine 47. Child protection hearing.—

(1) Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under

section 57 .

(2) Child’s name, age, etc.— As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine, . . . (

c) whether the child is an Indian or a native person and, if so, the child’s band or native community; and . . . 6.2: What Is the Meaning of “Indian” and “Native Person” in the CFSA? 6.2(a): The

Definitions in the CFSA [ 28 ] The terminology for aboriginal identities in the CFSA is limited to “Indian” or “native person.” “Indian” has the same meaning as in the Indian Act, R.S.C. 1985, c. I-5 ( i.e. , a person who is registered as an Indian or is entitled to be registered as an Indian under the Indian Act). A “native person” is defined as “a person who is a member of a native community but is not a member of a band, and ‘native child’ has a corresponding meaning.” A “native community” is defined as “a community designated by the Minister under

section 209 of

Part X (Indian and Native Child and Family Services),” which means the designation is made with the consent of the community’s representatives. Specifically, “Indian” and “native person” , “band”, and “native community” are defined in

section 3 of the CFSA: “Indian” has the same meaning as in the Indian Act (Canada); . . . “native person” means a person who is a member of a native community but is not a member of a band, and “native child” has a corresponding meaning; “native community” means a community designated by the Minister under

section 209 of

Part X (Indian and Native Child and Family Services); . . . “band” has the same meaning as in the Indian Act (Canada); 6.2(b): The

Definitions in the Indian Act [ 29 ] Indian” is defined in s. 2(1) of the Indian Act (Canada), RSC 1985, c 15 (the “Indian Act ”): Indian means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian; [ 30 ] Under subsection 5(1) of the Indian Act , the Department of Indian Affairs and Northern Development, now known as Aboriginal Affairs and Northern Development Canada (AANDC), is responsible for maintaining an Indian Register, essentially, an

official list of status Indians. 5. Indian Register —

(1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act .

(2) Existing Indian Register — The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985. . . .

(5) Application for registration — The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar. [ 31 ] Sections 6 and 7 of the Indian Act set out who are the persons entitled to be registered as an Indian: 6. Persons entitled to be registered —

(1) Subject to

section 7 , a person is entitled to be registered if (

a) that person was registered or entitled to be registered immediately prior to April 17, 1985; (

b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act ; (

c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)( a )(iv), paragraph 12(1)(

b) or subsection 12(2) or under subparagraph 12(1)( a )(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (c.1) that person (

i) is a person whose mother’s name was, as a result of the mother’s marriage, omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under paragraph 12(1)(

b) or under subparagraph 12(1)( a )(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions, (ii) is a person whose other parent is not entitled to be registered or, if no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred prior to September 4, 1951, (iii) was born on or after the day on which the marriage referred to in subparagraph (

i) occurred and, unless the person’s parents married each other prior to April 17, 1985, was born prior to that date, and (iv) had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted; (

d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)( a )(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (

e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, (

i) under

section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or (ii) under

section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or (

f) that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section.

(2) Idem — Subject to

section 7 , a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).

(3) Deeming provision. — For the purposes of paragraph (1)(

f) and subsection (2), (

a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)( a ); (

b) a person described in paragraph (1)( c ), ( d ), (

e) or (

f) or subsection (2) and who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that provision; and (

c) a person described in paragraph (1)( c.1 ) and who was no longer living on the day on which that paragraph comes into force is deemed to be entitled to be registered under that paragraph. 7. Persons not entitled to be registered.

(1) The following persons are not entitled to be registered: (

a) a person who was registered under paragraph 11(1)( f ), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or (

b) a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)( f ), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered.

(2) Exception — Paragraph (1)(

a) does not apply in respect of a female person who was, at any time prior to being registered under paragraph 11(1)( f ), entitled to be registered under any other provision of this Act .

(3) Idem .— Paragraph (1)(

b) does not apply in respect of the child of a female person who was, at any time prior to being registered under paragraph 11(1)( f ), entitled to be registered under any other provision of this Act . [ 32 ] In this case, the children’s entitlement to status, if any, flows through the mother. As the mother was born prior to 1985, thus pursuant to the current Indian Act [ clause 6(1) ( a )], the mother’s eligibility to be registered is determined under sections 11 and 12 of the pre-1985 Indian Act [ Indian Act , R.S.C. 1970, c. I-6]. Sections 11 and 12 of the pre-1985 Indian Act provide: 11. Persons entitled to be registered —

(1) Subject to

section twelve, a person is entitled to be registered if that person (

a) on the 26th day of May, 1874, was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, being

chapter 42 of the statutes of Canada, 1868, as amended by

section 6 of

chapter 6 of the statutes of Canada, 1869, and

section 8 of

chapter 21 of the Statutes of Canada, 1874, considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada; (

b) is a member of a band (

i) for whose use and benefit, in common, lands have been set apart or since the 26th day of May, 1874 have been agreed by treaty to be set apart, or (ii) that has been declared by the Governor in Council to be a band for the purposes of this Act ; (

c) is a male person who is a direct descendant in the male line of a male person described in paragraph (

a) or ( b ), (

d) is the legitimate child of (

i) a male person described in paragraph (

a) or ( b ), or (ii) a person described in paragraph ( c ); (

e) is the illegitimate child of a female person described in paragraph ( a ), (

b) or ( d ); or (

f) is the wife or widow of a person who is entitled to be registered by virtue of paragraph ( a ), ( b ), ( c ), (

d) or ( e ).

(2) Exemption — Paragraph (1)(

e) applies only to persons born after the 13th day of August 1956. 12. Persons not entitled to be registered.—

(1) The following persons are not entitled to be registered, namely, (

a) a person who (

i) has received or has been allotted half-breed lands or money scrip, (ii) is a descendant of a person described in subparagraph (i), (iii) is enfranchised, or (iv) is a person born of a marriage entered into after the 4th day of September, 1951 and has attained the age of 21 years, whose mother and whose father’s mother are not persons described in paragraph 11( a ), ( b ), or ( d ), or entitled to be registered by virtue of paragraph 11(1)( e ), unless, being a woman, that person is the wife or widow of a person described in

section 11, and (

b) a woman who is married to a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in

section 11. [ 33 ] Band and Band List are defined in the Indian Act in subsection 2(1) as follows: 2.

Definitions —

(1) In this Act , “band” means a body of Indians (

a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (

b) for whose use and benefit in common, moneys are held by Her Majesty, or (

c) declared by the Governor in Council to be a band for the purposes of this Act ; “Band List” means a list of persons that is maintained under

section 8 by a band or in the Department; 6.2 (c): Lack of Jurisprudence Directly on Point [ 34 ] The court was referred to many “authorities” in this case. [3] It is not necessary to discuss every case or document to which the court was referred.

In this decision, the court has referenced only those cases or documents from which it derived principles to guide it in determining whether the subject children are Indian or native persons. [ 35 ] Although several of the cases to which the court was directed refer to the children as being Indian or native persons, the issue is discussed in the context of the court’s best interest or other analysis and none of them discuss the analytical process followed in arriving at the finding.

Despite the efforts of both counsel and the court, only three cases appear to address the issue of whether the children fit within the legislative definition of Indian or native persons: C.M.E.M. and B.J.V. v. Children’s Aid Society of Waterloo Region , 2015 ONSC 1942 , 251 A.C.W.S. (3d) 615, [2015] O.J. No. 1489, 2015 CarswellOnt 4250 (Ont. S.C.), per Justice James W. Sloan; affirmed at: C.M.E.M. and B.J.V. v. Children’s Aid Society of Waterloo Region , 2015 ONCA 612 , 339 O.A.C. 112, 389 D.L.R.

(4th) 725, 67 R.F.L. (7th) 259, [2015] O.J. No. 4705, 2015 CarswellOnt 13733 (Ont. C.A.), per Appeal Justices Kathryn N. Feldman, Janet M. Simmons and Bradley W. Miller; and, . Children’s Aid Society of Ottawa v. K.F. , 2015 ONSC 7580 , 71 R.F.L. (7th) 110, [2015] O.J. No. 6420, 2015 CarswellOnt 18678 (Ont. Fam. Ct.). [ 36 ] Although these decisions assisted this court in establishing guiding principles, with respect to the determination of whether a child is an Indian or native person pursuant to the Act , none of the three decisions are directly on point. In each there was no evidence capable of bringing the children within the scope of the existing

definitions of “Indian” or “native persons” as those terms are defined in

section 3 of the Act. The cases do not discuss the facts necessary to be proven to support such a finding. Further, the litigants in some of these cases relied on criteria that do not assist in such decisions. Not surprisingly, there is no discussion in these cases of the analytical framework to be applied to such determinations. [ 37 ] In C.M. E.M. and B.J.V. v. Children’s Aid Society of Waterloo Region , (Ont. S.C.) Justice James W.

Sloan dismissed an appeal by the parents from an order making children Crown wards without access for the purpose of adoption. [4] The reasons for dismissing the appeal on this ground are set out in paragraphs [16] – [21]. These include: a lack of evidence adduced at trial showing that either the “parents, or the children, took

part in or had any connection to any native culture, heritage or tradition other than biologically through their DNA”; the parent’s trial lawyer’s confirmation at trial of the children’s status as not Indian and not native, and, the appellants confirmation that the trial judge had been made aware that the mother had some aboriginal heritage. [ 38 ] Justice Sloan goes on to say, unfortunately, with no detailed analysis, at paragraph [21]: [21] Even if the trial judge had been directed to Section 37(4) and

Part X of the Child and Family Services Act, I find on the facts of this case that those sections of the Act have very little, if any, application. [ 39 ] Paragraphs [10], [11] and [12] of the decision set out some additional findings of fact. It is not clear, however, how those additional findings fit in to the determination of whether a child has or is entitled to status as an Indian or is a native person as those terms are defined in

section 3 . [5] [ 40 ] The appellants next appealed to the Ontario Court of Appeal [6] . The Court of Appeal’s decision and reasons are set out in C.M. E.M. and B.J.V. v. Children’s Aid Society of Waterloo Region , ( supra ) . Again, while helpful in establishing guiding principles, the decision is of limited value to those looking for guidance on either the analytical process to be applied to such determinations or for any substantive discussion of the definitional criteria.

The Ontario Court of Appeal found that the trial judge made no error in failing to identify the mother or children as Indian or as native persons. It’s reasons are set out at paragraphs [10], [11] and [12]: [10] Although represented by counsel, at trial the appellants did not advance any argument that either the mother or the children fell within the definition of Indian or native person under the CFSA . Instead, in response to the required inquiry from the trial judge, the appellants’ counsel confirmed that the information in the Society’s application concerning status was correct.

In relation to both children, the Society’s application stated “no Indian status”. 1 [11] Further, while the mother testified at trial that she is part native, she provided no additional evidence about her aboriginal heritage or about any connection with a native community. 2 [7] [12] In these circumstances, the trial judge made no error in failing to identify the mother or children as Indian or as native persons. [ 41 ] While invaluable for a number of reasons that will become clear elsewhere in this decision, the third decision, that of Justice J.

Robert MacKinnon’s decision in the case of Children’s Aid Society of Ottawa v. K.F. , ( supra) , also disappoints in terms of illuminating the analytical process to follow in deciding whether children fall within the definition of Indian or native persons. Following a trial Justice MacKinnon made an order of Crown wardship. The maternal grandparents appealed. T he Divisional Court held that it had not been sufficiently brought to the attention of the trial judge that the children were of “Canadian Indian ancestry” and were entitled to the “protection” of subsection 37(4).

The proceedings were returned to Justice MacKinnon for “reconsideration in view of the application of s. 37(4).” The Divisional Court also ruled the parties were entitled to “adduce further evidence and make further submissions relevant to s. 37(4) in accordance with directions to be given by the trial judge.” [ 42 ] As noted by Justice MacKinnon, neither the evidentiary record at the initial trial or on appeal actually addressed the facts necessary to be proven to support a finding that the children fell within the scope of s. 37(4) of the CFSA .

Rather than conclude that the Divisional Court made an unsupported finding, Justice Mackinnon, concludes that this inquiry must be included as part of the reconsideration ordered by the Divisional Court. Quoting in paragraph [9] of the decision from paragraph [6] of an earlier endorsement dated January 9, 2015 , Justice MacKinnon states: [9] … “[6]… it makes sense that I should hear evidence and receive submissions on both issues. In this way, if I am wrong in my ruling on the import of the Divisional Court order, any further appeal will take place on a complete evidentiary record.

This is in keeping with the policies of the law favouring both judicial economy and a timely conclusion to child protection litigation”. [ 43 ] Unfortunately, when the trial did resume, it was common ground that no party and neither child fell within the applicable definition of “Indian” or “native person”. The evidence was that the maternal grandfather and, through him, the mother and her children,

was of aboriginal ancestry, of Algonquin descent, and were non-status Indians. Accordingly, there was no need to address the issue of whether the children were actually Indian or native persons. As a result, the lion’s share of the decision addresses the constitutionality of section 37(4) – an issue further addressed below. As the court notes at paragraph [22]: [22] What should now be apparent is that an appeal was allowed for the purpose of a reconsideration of the applicability of a

section of the CFSA , now admitted not to be applicable to these children — unless through the success of a constitutional challenge raised for the first time long after the initial trial and the appeal…… [ 44 ] Despite the lack of jurisprudence squarely addressing the determination of whether children fall within the legislative

definitions of “Indian” and “native persons” in the CFSA , there is a rich body of case law from which guiding principles can be gleaned. It is to a discussion of those guiding principles to which the court turns next. 6.4: Guiding Principles from the Jurisprudence on the Legislative

Definitions [ 45 ] An important first principle is for courts to understand that terms such as “Indian”, “native persons”, “aboriginal people”, “First Nations Aboriginal People” , “Inuit” and “Metis” are not interchangeable either as social classifications or as legal terms to describe classifications of indigenous peoples of Canada.

While ideally one should use the social classification the particular group self- identifies as, if uncertain about which social classification may be appropriate, the court should consider using the broadest classifications, namely, “aboriginal” or “indigenous”. [ 46 ] Further and most importantly, while the use of these same terms, as classifications of the indigenous peoples of Canada, may be helpful cultural, ethnic or racial descriptions, nevertheless culture, race and ethnicity have very little to do with either the legal

definitions of these terms or the legal analysis. As legal terms, these same classifications can include different aboriginal identities, depending on the particular legislation to be applied. [ 47 ] For example, as a legal term, First Nations aboriginal people include the Indian, Inuit and Métis peoples of Canada [ Subsections 35(1) and (2) Constitution Act, 1982 ]. However, until the Supreme Court decision in Daniels v. Canada (Indian Affairs and Northern Development) , 2016 SCC 12 , [2016] S.C.J.

No. 12, 2016 CarswellNat 1037, the term “Indian” in paragraph 91(24) of the Constitution Act 1867 , 30 & 31 Vict., c. 3. (Imp.), did not include the Metis or other non-status Indians. As Justice Rosalie S. Abella stated at paragraphs [18] and [19] in Daniels v. Canada (Indian Affairs and Northern Development) : [18] The definitional contours of “non-status Indian” are also imprecise. Status Indians are those who are recognized by the federal government as registered under the Indian Act , R.S.C. 1985, c. I-5.

Non- status Indians, on the other hand, can refer to Indians who no longer have status under the Indian Act , or to members of mixed communities which have never been recognized as Indians by the federal government. Some closely identify with their Indian heritage, while others feel that the term Métis is more reflective of their mixed origins. [19] These definitional ambiguities do not preclude a determination into whether the two groups, however they are defined, are within the scope of s. 91(24) .

I agree with the trial judge and Federal Court of Appeal that the historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includes all aboriginal peoples, including non-status Indians and Métis. [ 48 ] Second, the definition in the CFSA of Indian and native person is a very restrictive one. As a result, there is a clear distinction in the CFSA ’s treatment of “Indian[s]” and “native person[s]”, as defined therein, and the CFSA ’s treatment of other individuals, including other individuals with aboriginal heritage. [ 49 ] In Children’s Aid Society of Ottawa v.

K.F. , ( supra) , Justice MacKinnon commented on whether the

definitions of “Indian” and “native person” contained in the CFSA are unconstitutional in that they are inconsistent with the definition of “Aboriginal Peoples of Canada” contained in subsection 35(2) of the Constitution Act, 1982, and that they contravene subsection 15(1) of the Canadian Charter of Rights and Freedom,

Part I of the Constitution Act , 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, in that they discriminate on the basis of Indian status and native community of origin.

In his analysis of the constitutionality issue, and specifically, at paragraph [41], Justice MacKinnon stated that the provisions applicable to an “Indian” or “native child” in the CFSA are not applicable to every aboriginal child coming within the definition of “Aboriginal Peoples of Canada” in subsection 35(2) of the Constitution Act, 1982. [41] There clearly is a distinction in the CFSA ’s treatment of “Indian[s]” and “native person[s]”, as defined therein, and the CFSA ’s treatment of other individuals, including other individuals with Aboriginal heritage .

In child protection proceedings involving the former group, various provisions for “Indian[s]” and “native person[s]” must be applied by the court.

Among other things, this means: that the band or native community of an “Indian” or “native child” is a party to the proceedings and must be notified of the proceedings ( CFSA , s. 39); that the importance of preserving the child’s cultural identity must be considered by the judge in determining what is in the child’s best interests ( CFSA , s. 37(4)); and that, if the court makes an order removing the child from the person who had charge of him or her before the intervention of the Society, the court must place the child: with a member of his or her extended family, band or native community; or with another Indian family, absent “a substantial reason for placing the child elsewhere” ( CFSA , s. 57(5)).

The latter group is not entitled to the mandatory application of these provisions and, in fact, cannot access them at all [emphasis added by this court]. [ 50 ] Third, as in other statues and treaties, the distinction drawn by the CFSA definition of “Indian” is not based on ethnicity; it is based on status or entitlement to status. As Justice Mackinnon stated at paragraphs [44]-[49] of Children’s Aid Society of Ottawa v. K.F. ,

w hen addressing the restrictive nature of the

definitions in the CFSA : [44] Ethnic” is defined by the Shorter Oxford English Dictionary as “(Of a population group) sharing a distinctive cultural and historical tradition, often associated with race, nationality, or religion, by which the group identifies itself and others recognize it; belonging to or characteristic of such a group...” [45] It is clear from this definition that the “ethnic origins” of the children L.L. and J.L. include Algonquin or, more broadly, Aboriginal ethnicity.

Were the differential treatment under the CFSA based on their being Algonquin this would surely fall within the enumerated ground of “national or ethnic origin” within s. 15(1) of the Charter . [46] However, the distinction drawn by the CFSA definition of “Indian” is not based on ethnicity, it is based on status. Ethnicity or the related concept of ancestry does not determine whether a person has Indian status.

As the Royal Commission on Aboriginal Peoples [RCAP] reported: Recognition as “Indian” in Canadian law often had nothing to do with whether a person was actually of Indian ancestry. [47] At pp. 305-306, the RCAP Report notes that the post-1985 rules about status (i.e. ss. 6(1) - (2) of the Indian Act ) continue to treat individuals with the exact same Indian ancestry differently. [48] The Federal Court of Appeal in Daniels refers to this in the course of reversing the trial judge’s declaration that non-status Indians are “Indians” within s. 91(24) for the reason that the declaration lacked practical utility.

It stated at para. 77: [77] It is also inappropriate to grant a declaration clarifying the limits of who may be considered an Indian notwithstanding their exclusion from the Indian Act . The reasons for excluding people from Indian status are complex, far-ranging and often unrelated to one another. As the Judge noted at paragraph 115 of his reasons, one situation which created non- status Indians were problems recording names during the treaty process and fear of the treaty process itself.

The result was that some names were not recorded and those individuals were not recognized as having status under the Indian Act . Other people were recognized as having status, but lost or gave up that status for various reasons, such as the many Indian women who lost status by marrying non-aboriginal men. [49] It is clear from these passages that at least some of the situations resulting in the loss of Indian status had nothing to do with ethnicity or ethnic origins. [ 51 ] Fourth and similarly, the distinction drawn by the CFSA

definitions of “native person” and “native community” is also not rooted in ethnicity or ethnic origins. The designation of “native community[ies]” (and thus the designation of “native person[s]”) is based on (

a) geographical location, (

b) the manner of operation of the First Nations community and (

c) band status under the Indian Act . In other words, the intention of

section 209 was to enable the Minister to designate First Nations communities that were: (

a) located in the remote north on Crown lands; (

b) operating in a manner similar to Bands, but (

c) without status as Bands under the Indian Act . Again, as stated by Justice MacKinnon, Children’s Aid Society of Ottawa v. K.F. , at paragraphs [50]-[52]: [50] Nor is the distinction drawn by the CFSA

definitions of “native person” and “native community” rooted in ethnicity or ethnic origins. As is stated in the moving parties’ evidence the designation of “native community[ies]” (and thus the designation of “native person[s]”) is based on (

a) geographical location, (

b) the manner of operation of the First Nations community and (

c) band status under the Indian Act . [51] None of these criteria, on which the distinction drawn by the CFSA

definitions of “native person” and “native community” is based, engage the “national or ethnic origin[s]” of the community members caught by them. [ 52 ] Accordingly in my view, differential treatment of individuals with aboriginal ancestry on the basis that they do not also have legal Indian status or membership in a “native community” is not differential treatment within the enumerated ground of “national or ethnic origin”. [52] Fifth, there does not appear to be an actual published list to which one can turn that specifies the communities that the Minister has designated as “native communities” pursuant to

section 209 of the Act . [ 53 ] In this case, the society provided a copy of an e-mail and letter written by a representative of the Ministry of Children and Youth Services which addresses the designation of native communities. The most relevant portions of that letter are as follows: A native community is an identifiable geographic community of predominantly aboriginal persons. The Minister’s designation is contingent on the “representatives of the community” giving their consent . . . . . . The only time that the Minister has designated native communities to date was in 1995.

Thirteen First Nation communities in the District of Thunder Bay and the District of Algoma were designated as native communities for purposes of designating Dilico Ojibway Child and Family Services as a children’s aid society. Dillco has jurisdiction over Band members of the First Nations communities both on and off reserve. The purpose of designating the thirteen communities was to also provide Dillco with jurisdiction for individuals who were members of the First Nations communities but were not legally members of Bands under the Indian Act .

Where Dilico is providing notice under the CFSA for a child who is a member of one of the13 designated native communities, notice is provided to the Band. [ 54 ] The letter does not set out the names of the 13 designated native communities. [ 55 ] The society also attempted to obtain a list of the 13 designated native communities from the Minister. The Minister did not provide a list of the 13 designated native communities. What was provided is a list of designated Indigenous Child-well-being

Organizations. This list sets out the communities the Dilico Anishinabek Family Care services. There are 14 communities on this list(one too many) and they are: i. Animbiigo Zaagi igan Anishinaabek (Lake Nipigon First Nation); ii. Biigtigong Nishnaabeg (Pic River First Nation); iii. Biinitiwabik Zaaging Anishnabek First Nation (Rocky Bay First Nation); iv. Binggwi Neyaashi Anishinaabek First Nation (Sand Point First Nation); v. Fort Albany First Nation; vi. Fort William First Nation; vii. Ginoogaming First Nation; viii. Gull Bay First Nation; ix. Long Lake #58 First Nation; x. Michipicoten First Nation; xi.

Pays Plat First Nation; xii. Pic Mobert First Nation; xiii. Red Rock First Nation; and xiv. Whitesand First Nation. [56] The society in this case asks the court to deduce from this list, that unless the name of the native community in questionappears thereon, it is not one of the 13 communities designated by the Minister as a “native community” pursuant to

section 209. [57] In this court’s view the fact that the legislature has created a statutory test to apply to the determination of “native person”that turns on whether the community in question is one of those designated by the Minister pursuant to

section 209 of the Act whilefailing to publish any actual list is highly problematic. As the circumstances in this case illustrate, parties and courts are first forced togo on a wild goose chase, searching for a list that does not exist. Then, when no list can be found, parties are forced to incur theunnecessary cost of securing some form of evidence from which the party and the court can pieces the list together.

In the final analysis,the court is left to arrive at a conclusion as to who is and who is not on the list based on inferential or deductive reasoning, which in turn,can lead to different and potentially conflicting decisions about whether a particular community is or is not a native community. This isnot an acceptable state of affairs. As the legislature has seen fit to tie the determination to a list, it ought to publicize the list of thosecommunities designated by the Minister to date pursuant to

section 209 of the Act. 6.5: The

Definitions have not been Extended [58] Another key guiding principle is this: the

definitions of Indian and native person in the CFSA have not been extended. Asdiscussed earlier, Justice MacKinnon addressed the constitutionality of the CFSA definition of Indian and native person, in the case ofChildren’s Aid Society of Ottawa v. K.F., (supra). Justice MacKinnon concluded that the restrictive and exclusionary

definitions of“Indian” and “native person” contained in the CFSA are not unconstitutional. [59] Most recently, the Ontario Court of Appeal in the case of C.M.E.M. and B.J.V. v. Children’s Aid Society of Waterloo Region,(supra), confirms that the

definitions have not been expanded and particularly, that the definition does not include non-status Indians orpersons who self-identify as native. [60] In that case, the appellants did not claim to be a status Indian within the meaning of the Indian Act. Rather, the appellantsargued that the definition of Indian under the Indian Act has been expanded by case law and that the principles enunciated in R. v.Gladue, [1999] 1 S.C.R. 688, 238 N.R. 1, 121 B.C.A.C. 161, 198 W.A.C. 161, 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R. 252, 133 C.C.C.(3d) 385, 23 C.R. (5th) 197, , [1999] S.C.J.

No. 19, 1999 CarswellBC 778, extends the meaning of native to includepersons self-identifying as native. The appellants argued that the trial judge’s error was in not applying the extended definition andGladue principles to the circumstances of the case. [61] The Ontario Court of Appeal’s decision in C.M.E.M. and B.J.V. v. Children’s Aid Society of Waterloo Region, is instructivefor two reasons: First, in considering the issue, the Ontario Court of Appeal notes that “Indian” and “native person” are defined terms inthe CFSA have not been expanded.

Second, the Court of Appeal determined that Gladue principles of aboriginal self-identification andjudicial notice of systemic racism cannot be applied or incorporated in the child protection setting. In rejecting both of the appellant’sarguments, the court states at paragraphs [7] and [10]-[14]: [7] We do not accept these arguments. As a starting point, the appellants did not raise these issues attrial. In any event, neither the mother nor the children fall within the definition of Indian or nativeperson under the CFSA. Further, in the face of the statutory

definitions, Gladue principles do not assistin determining whether the children are Indian or native persons. Finally, we are not persuaded thatGladue principles affect the determination of whether an access order would be appropriate in this case. [62] Since the decisions in C.M.E.M. and B.J.V. v. Children’s Aid Society of Waterloo Region and Children’s Aid Society ofOttawa v. K.F., the Supreme Court of Canada ruling in Daniels v. Canada (Indian Affairs and Northern Development), was released.

There, a central issue was whether Metis and non-status Indians are Indians within the meaning of paragraph 91(24) of the ConstitutionAct, 1867. The Supreme Court of Canada determined that “Indians” in paragraph 91(24) includes all aboriginal peoples, including non-status Indians and Métis. This conclusion is set out in paragraphs [19] and [50] of the decision: [19] These definitional ambiguities do not preclude a determination into whether the two groups,however they are defined, are within the scope of s. 91(24).

I agree with the trial judge and FederalCourt of Appeal that the historical, philosophical, and linguistic contexts establish that “Indians” in s.91(24) includes all Aboriginal peoples, including non-status Indians and Métis.

. . . [50] The first declaration should, accordingly, be granted as requested. Non-status Indians and Métisare “Indians” under s. 91(24) and it is the federal government to whom they can turn. [63] There are no court decisions at this point in time regarding the effect of the Supreme Court of Canada’s decision in Daniels v.Canada (Indian Affairs and Northern Development), on the meaning of “Indian” under the CFSA. This court was not asked to decidethis question.

None the less, it notes the following: first, Justice Abella’s comments at paragraph [51] of the decision suggest that theexpansion of the definition of Indian in paragraph 91(24) of the Constitution Act, 1867, may not affect the definition of Indian in theCFSA: [51] But federal jurisdiction over Métis and non-status Indians does not mean that all provinciallegislation pertaining to Métis and non-status Indians is inherently ultra vires. This Court hasrecognized that courts “should favour, where possible, the ordinary operation of statutes enacted by bothlevels of government”: Canadian Western Bank v.

Alberta, 2007 SCC 22 , [2007] 2 S.C.R. 3, atpara. 37 (emphasis in original). Moreover, this Court has been clear that federal authority under s.91(24) does not bar valid provincial schemes that do not impair the core of the “Indian” power:NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010SCC 45 , [2010] 2 S.C.R. 696, at para. 3. [64] Second, there are no court decisions at this point in time regarding the effect of the Supreme Court of Canada’s decision inDaniels v. Canada (Indian Affairs and Northern Development) on the meaning of “Indian” under the Indian Act.

The followingcommentary issued by the Government of Canada sets out its view that the ruling in Daniels v. Canada (Indian Affairs and NorthernDevelopment) does not impact the application of the Indian Act: The ruling does not impact on Metis and non-Status Indian eligibility for programs and servicescurrently targeted to Status Indians.[8] . . . However, the decision does not provide Metis or non-Status individuals with new entitlements toregistration as Status Indians.

The current registration provisions within the Indian Act do not providethe Department with the authority to grant Metis or non-Status recognition; therefore, individuals shouldnot apply under the Indian Act.[9] 6.6: Status, Band Membership and Band Lists – Additional Guiding Principles [65] A further guiding principle is this: membership in a band does not necessarily mean an individual is a registered Indian or anIndian entitled to be registered.

Similarly, a lack of band membership does not necessarily mean that an individual is not registered orentitled to be registered as an Indian[10]. [66] There are a host of reasons that may explain this state of affairs.[11] One reason stems from the fact that sections 8 through10 of the Indian Act give control over the band membership and thus, control over the names that appear on the band lists, tothose bands who have complied with the various requirements set out in those sections. As such, bands are entitled to develop theirown codes and by-laws to govern membership.

Thus, the “rules of admittance” or “de-admittance” as a band member can vary fromband to band. [67] Further, some bands welcome additional members, while others do not want to expand. Some bands are concerned abouttaking in new members without guarantees of increased funding from government. There is also a shortage of land, resources, housing,infrastructure, and other facilities on reserves.

Not surprisingly, depending on the band’s view of expansion, membership may includeindividuals who do not fit the definition of Indian under the Indian Act, while other bands may have restricted membership and excludesome individuals who are registered or entitled to be registered as Indians under the Indian Act. [68] Sometimes parents simply do not get around to having their children added to the band’s formal membership list. As thecourt noted in the case of Children's Aid Society o/the City o/London and County o/Middlesex v. MO (1), (ON SC),[1997] O.J.

No. 1261, at paragraph [35]: Although registration of native persons is very important to the band, it may sometimes take parents years to register their children. Eventhough some children are not "formally" registered either with Indian Affairs or the band, the band itself may consider any child born ofany native parent to be a member of the band.

Where only one parent is an Indian, only the native parent need consent to the registration. [69] There are also individuals who have status or are entitled to status but who have no band membership (or even a connectionto an actual band) because that connection has been lost. Chief among the reasons for the loss are years of living in diaspora as a resultof interference in family care in aboriginal communities. This is the legacy of the residential school system that began in Canada in the1880's.

This system had as its two primary objectives the removal and isolation of aboriginal children from the influence of their homes,families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption thataboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian inthe child.”[12] Another often referred to source of community fragmentation and loss of individual connection is the “sixties sweep”.

This process began in the sixties when large numbers of aboriginal children were removed from their families, reservations andcommunities and placed in non-Aboriginal foster and adoptive homes.[13] [70] This leads to two final additional guiding principles. First, the requirement in clause 47(2)(

c) of the CFSA that the court alsodetermine the child’s band or native community, cannot mean that the child must be a formal member of a particular band or nativecommunity. The purpose of that determination must be the fulfillment of the unique purposes of the CFSA as they relate to Indian and

native children. That is, to ensure that Indian and native children are given special consideration, through the provision of culturally appropriate and specialized service to their families, and the survival of their aboriginal communities through early identification, notice, and the provision of a meaningful opportunity for the communities to protect the communal interest in these children through consultation, planning, and participation in both in and out of the court process. [ 71 ] Second, for the purposes of clause 47(2)(

c) of the CFSA , it is possible for a child to be an Indian connected to a native community rather than a band. Not all “bands” will meet the definitional criteria set out in clauses 2(1) (a), (

b) or (

c) of the Indian Act . However, these “bands” may meet the definitional requirements of “native community” under

section 3 of the CFSA . 6.7: General Structure to the Analysis [ 72 ] These are the key questions and issues that must be asked and the path of enquiry to be applied: 1. Has the child been recognized by the Indian Registrar as having Indian status ? 2. If the child has been recognized as an Indian, then pursuant to subsection 2(1) of the Indian Act , the child is an Indian and the court must find that the child is an Indian under the CFSA . 3. If not a recognized Indian, is the child entitled to be recognized as an Indian under the Indian Act ?

To be entitled to be recognized, the child must fit within one of the categories of persons in subsections 6(1) , 6(2) and who is not excluded by subsection 7(1) of the Indian Act . Where the parent is not an Indian by virtue of registration (a status Indian) then this determination will involve reviewing the parent’s ancestral lineage to ensure that the parent was entitled to be registered based on the rules governing government recognition. It will also, in cases where the parent was born prior to April 17, 1985, require a review of the pre-1985 Indian Act . 4.

If the child is the child of a person who is entitled to be registered, then the child is an Indian for the purposes of the Indian Act , and accordingly, the court must find the child to be an Indian under the CFSA . 5. If the child is not entitled to be registered as an Indian, then the child is not an Indian for the purposes of the CFSA ; 6. If the child is Indian, identify the child’s band. T he court should determine first whether the child is a member of a particular band, and if not, whether the child is connected to a band as defined in clause 2(1) (

b) or (

c) or the Indian Act . If so, then identify the child’s band; 7. If no band can be identified then the court should determine whether the child is a member of (or connected to) a native community as defined in

section 3 of the CFSA . If so, then identify the native community. This will require a review of

section 209 of the CFSA and require a determination as to whether the community in question is one of those designated by the Minister as a native community. 8. If no band or native community can be identified for an Indian child then the court should simply make that finding. 9. If a child is not registered as an Indian or entitled to be registered as an Indian then the court must ask: is the child a member of one of a community designated by the Minister as a “native community” pursuant to

section 209 of the CFSA ? If so, then the child is a native person as defined in

section 3 of the CFSA . If not, then the child is not a native person. 10. If the child is a native person it will be easy to identify the child’s native community as the finding that the child is a “native person” hinges on the identification of a particular “native community”. 6.8: The Nature of the Hearing and Type of Evidence Required [ 73 ] At this hearing, the court commented to the parties from the court’s perspective, both parties had, in essence, brought a motion for

summary judgment on the issue, as both were seeking a final order without a trial on part of the society’s claim and the mother’s defence. [14] The rule governing the conduct of a “trial of an issue” is rule 16 of the Family Law Rules , O. Reg. 114/99. While a trial of an issue can be conducted by way of a

summary hearing, based solely on affidavit evidence, the general intention is that the proceeding will operate akin to a trial, just with a very narrow focus. [ 74 ] Further the type of evidence that can be relied upon at a motion proceeding under rule 16 , as well as the use of hearsay evidence is much more restrictive under rule 16 than that which can be used and relied upon on motions governed by rule 14. For example, pursuant to rule 16 and subject to the court’s right to give directions otherwise or to order that the matter proceed as a “mini trial”, the evidence is generally in the form of an affidavit.

If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court is permitted to draw conclusions unfavourable to the party [see subrule 16(5)]. [ 75 ] By contrast, on matters proceeding by way of motion pursuant to rule 14, hearsay evidence can be included in a person’s affidavit evidence and relied upon by the court provided that certain conditions are met such as: (

a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and (

b) if the motion is a contempt motion under rule 31 , the information is not likely to be disputed [see subrule 14(19)]. Further, although not directly on point, the court notes that, pursuant to subsection 51(7) of the CFSA , the evidence upon which the court can rely prior to trial ( i.e. , when adjourning a child protection hearing pursuant to

section 51 ) is at the relaxed standard of that which it finds “credible and trustworthy”. [ 76 ] Upon reflection, however, it cannot have been the intention of the legislature that determinations as to whether a child is an Indian or native person be made solely at trial or as a “trial of an issue” pursuant to rule 16 . This is the court’s view for several reasons.

First, many of the sections of the Act speak to early involvement of and consultation with the child’s band or native community, early provision of culturally appropriate services, and early consideration of culturally appropriate placement and access orders that recognize and preserve the child’s ties to his or her culture, community and to individuals who share the child’s ethnic, racial and linguistic characteristics or native communities [see for example, subsections 1(2.5) , 37(4) , 51(3.1) , 51(5) , clause 1(2)5, and

section 213.1 ,]. There is also the provision in clause 39(1)4 which makes a representative chosen by the child’s band or native community a party, where a child is Indian or native. Additionally, there is the directive to the court in subsection 47(1) and clause 47(2)( c ), to determine whether a child is Indian or native “as soon as is practicable” and at a “hearing”. The term “hearing” is ordinarily used to refer to the proceeding where issues are decided by way of motion. Further, given the practicalities of scheduling a “mini-trial” and the heavy evidentiary onus

involved in proceeding by way of motion for

summary judgment, the legislature must have intended for the court to make the determination of a child’s status without delay and, prior to a trial (min or otherwise). The only process that could accommodate this objective is a motion governed by rule 14. [ 77 ] Given the forgoing, it is this court’s conclusion that such determinations are to be made on motion, based on affidavit evidence that may include evidence not in the affiants personal knowledge, so long as that evidence meets the requirements in subrule 14(19). [ 78 ] The range in terms of the type of evidence that can be relied upon is very broad.

At its highest level that evidence will consist of the production of a Certificate of Indian Status (CIS). This is the document given to a person if he or she is granted registration under the Indian Act . This is prima facie proof of his or her registration. [ 79 ] It is not the only means of proving one is an Indian however, as often it is entitlement to registration from which the rights of status flow.

The main requirement in order to be included in the Indian Register is evidence demonstrating that the person is a direct descendent of persons whom the Canadian government has recognized as being entitled to registration. In Johnson v. Canada (Aboriginal Affairs and Northern Development) , 2014 BCSC 352 , 238 A.C.W.S. (3d) 2, [2014] B.C.W.L.D. 2313, [2014] W.D.F.L. 1597, [2014] B.C.J.

No. 379, 2014 Cars​well​BC 555, the Registrar looked at evidence such as birth certificates, marriage certificates, death certificates, obituaries, census listings, and book excerpts. [ 80 ] Despite the court’s reliance on specific documentation in Johnson v. Canada (Aboriginal Affairs and Northern Development) , independent and corroborative d ocumentary evidence should not be required by courts in all cases to “prove” that a child is Indian under the CFSA by virtue of the child’s entitlement to status. The Indian Act itself suggests reliance on other forms of evidence.

For example, under subs ection 14.2(1) of the current Indian Act , a protest regarding the inclusion or addition or omission or deletion of a person from the Indian Register, or a Band List may be made by notice in writing. The notice is to contain a brief statement of the grounds relied upon. In subsection 15(4), the onus of proof lies on the person making the protest. The type of evidence that can be received on such protest is described in subsection 14(6): 14. Evidence —

(6) For the purposes of this section, the Registrar may receive such evidence on oath , on affidavit or in any other manner , whether or not admissible in a court of law , as the Registrar , in his discretion, sees fit or deems just. [ 81 ] It is also important to remember that in many of these cases documentary evidence may not yet be available, exist, or easily obtained. In many cases this may simply be due to the passage of time and the record keeping practices of the period.

For example, in this case close to or more than 100 years have passed since the birth of two key ancestors from whom the children’s entitlement to status may flow. In other cases the passage of time may be more or less, but often it can be significant. [ 82 ] There is also a cultural dimension to be considered and which may further complicate these practicalities. First, many aboriginal cultures share the tradition of passing down the “history” of the community, the family, and of the members of both, from one generation to the next orally.

As noted earlier and unlike the practices of those who have historically formed Canada’s dominant culture, it is not the practice for many aboriginal people to “obtain” or “record” status or important events formally or in writing, (i.e. by obtaining formal membership status in the band for one’s children or even notifying the band formally of the birth, death or marriage of children, or, even applying for Indian status through the Indian Registrar).

These possibilities may require the culturally competent court, to adapt its evidentiary expectations. [ 83 ] Adapting to be culturally sensitive with respect to family and communal histories does not mean that courts ought to be permitted to rely upon inadmissible evidence, but it does mean that either oral testimony on oath , or evidence in the form of an affidavit ought to be accepted as the minimum standard of proof required under the CFSA to establish that a child is Indian by virtue of its entitlement to status.

It also means that the decision as to whether to accept this minimum or to require more, ought to follow along the same lines as those governing the Registrar’s acceptance of such evidence — on a case by case basis and if it is fit and just to do so. 6.9: The Evidentiary Standard [ 84 ] In its submissions, the society in this case repeatedly referred to a lack of definitive proof as to the status or entitlement to status of several of the children’s ancestors. As counsel for the mother quite rightly pointed out, “definitive” proof is not what is required. The standard to be applied is a balance of probabilities.

This court shares the view of Justice Donald M. Little as set out in the case of Heintz v. Heintz , 2009 MBQB 304 , 247 Man. R. (2d) 161, [2009] M.J. No. 399, 2009 CarswellMan 541 (Man. Q.B., Fam. Div.), at paragraphs [75] and [76] : [75] From my review of the case law, evidence at many of these hearings is often “thin”. Parents adopt positions. This case is no different.

The “evidence” is not so much a series of established facts from which reliable “best interests” conclusions can be drawn, but rather a series of bare allegations, beliefs, emotionally held opinions and arguments which may or may not find favour with the court as a matter of judicial notice, common sense, or inferential reasoning. The court must ultimately decide which side’s case is more persuasive if only because a decision must be made.

Often, if the evidentiary scales are tipped at all, it is by a feather’s weight. [76] Some case law makes passing reference to the limitations, or absence of evidence, or what might be considered the subjective nature of this kind of inquiry (for examples: see Comrie at Paragraph 22; Hornan at Paragraph 181; and Pappel at Paragraph 20). This will likely always be so. Proportionality in most cases dictates the necessity of a

summary proceeding. How one side or the other can predictably or demonstrably show a child’s interests will or will not be served by a change of name is likely to remain elusive. In the end, the decision is one that must have due regard for the onus of proof, the relative frailties of the evidence and the fact that a decision, one way or another, nonetheless needs to be made. Sometimes, the court must simply do the “best it can” with what it has.

6.10: The Onus and Other Responsibilities that Lie with Children’s Aid Societies [85] Pursuant to paragraphs 1(2)4, 1(2)5 and clause 20.2(2), of the CFSA, when providing services to children who are native orIndian, the agency is required to take the child’s culture, heritage and traditions into consideration at all times, to ensure that all servicesto Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and theconcept of the extended family, and to consult with the child’s band or native community in t

[…]