BR v. FWR, 2023 ABCJ 269

In the Alberta Court of Justice Citation: BR v Alberta ( Child, Youth and Family Enhancement Act , Director), 2023 ABCJ 269 Date: 20231207 Docket: CP901003908 Registry: Calgary In the Matter of an Application for Private Guardianship under

Section 52 of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 Between: BR and FWR Applicants - and - Director of Siksika Children’s Services Respondent Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice R.J. O’Gorman [ 1 ] This is an application for Private Guardianship by BR and FWR (the Kinship Parents) for FWFC (the Child), born in early 2013. The application is brought under s 52 of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 ( CYFEA ).

This application is opposed by the Respondent, the Director of Siksika Children’s Services (the Director). The application is also opposed by the Siksika Nation (the Nation). Upon providing notice, the Nation had previously been given permission to participate in this proceeding. On September 21, 2022, I recognized that the Nation had the opportunity to make submissions. In addition, the Nation was given permission to call one witness and file two affidavits. In addition, the Nation was granted permission to cross-examine any of the

witnesses in the proceeding. The biological mother is Blackfoot from Siksika Nation, and the biological father is Cree from Saddle Lake. [ 2 ] The Child was born with numerous health issues, and he was placed in the Neo Natal Intensive Care Unit (NICU) at the Peter Loughead Hospital (PLH). Some of the maternal and paternal family members visited the Child while he was in NICU. After four months in NICU the Child, though still medically fragile, was to be discharged. No one came forward to offer a placement to care for the Child.

As a result, the head nurse at NICU proposed the only option was to place the four-month-old baby at the Calgary Children’s Cottage. One of the NICU nurses who had cared for the baby at PLH came forward to offer to care for the baby. This nurse was the Kinship Mother, and the Child went home with the Kinship Parents in July 2013. This placement was approved by Siksika Child and Family Services (SCFS). [ 3 ] As a result, the Child has resided with the Kinship Parents for 10 and a half years . The Child is a registered member of the Blackfoot Nation having been registered by the Kinship Parents.

Nevertheless, the Kinship Parents are not members of the Blackfoot Nation, nor are they Indigenous. An Order of Permanent Guardianship (PGO) was granted on August 20, 2014. The application for Private Guardianship by the Kinship Parents was made on April 8, 2022. The Kinship Parents believe that permanency for the Child is in the Child’s best interest. SCFS and the Nation believe it is in the Child’s best interest to remain under a PGO because only this will ensure his proper exposure to his Blackfoot culture.

Other than the Kinship Parents, no other person has filed an application for private guardianship. [ 4 ] This case has raised a number of competing interests that are both complex and difficult. Changes to both Provincial Legislation and the Federal Act, An Act respecting First Nations, Inuit and Métis children, youth and families , SC 2019, c 24 ( ARFNIM or Federal Act ), have clearly emphasised the importance of cultural heritage and how it is maintained and properly exposed to Indigenous children. [ 5 ] The Kinship Parents have had the Child in their care and home for virtually his entire life.

They believe it is time for the Child to have some permanency and that they should make decisions for the Child. They have stated that they would continue the Child’s visits with his biological family. The Director believes that to ensure the Child is properly able to create cultural connections, that the Director remain the Child’s guardian and that the PGO remain in place. The Nation supports the Director’s position, stating that the Nation has inherent authority over Siksika children regardless of where they are located, because of their right to self-governance. Witnesses Ms.

Brenda Many Fingers [ 6 ] The first witness was Ms. Brenda Many Fingers, who has 30 years of experience in Parenting Assessments. Ms. Many Fingers has also been involved in child protection since the 1980’s. Ms. Many Fingers has previously worked with Dr. Peter Choate. Ms. Many Fingers has previously been qualified in Court as an expert in parenting assessments. Without objection, Ms. Many Fingers was qualified in this matter as an expert in parenting assessments and foster kinship assessments. [ 7 ] Ms. Many Fingers confirmed that she had completed a home assessment report dated Novembre 30, 2021.

The Home Assessment was marked as Exhibit 2 (Ms. Many Fingers’ curriculum vitae had been marked as Exhibit 1). Ms. Many Fingers testified that she had initially started on the file back in 2014 as a result of a referral from the Director for a home study. At this time a PGO had already been granted for the Child. Ms. Many Fingers was aware that the Kinship Parents were seeking private guardianship over the Child. According to Ms. Many Fingers, the Director had initially been supportive of the Kinship Parent’s application for private guardianship back in September 2019. [ 8 ] According to Ms.

Many Fingers, the Director had initiated family visits with the Child at this time but that the family visits did not occur. Ms. Many Fingers testified that eventually family visits with the maternal grandmother were arranged through the Director. These visits went from day visits to overnight visits for the Child. According to Ms. Many Fingers, the overnight visits had caused the Child some stress. Ms. Many Fingers acknowledged that at present there were two separate entities. The Child had his caregivers (the Kinship Parents) and his guardian (the Director). Ms.

Many Fingers testified that the Child needed a decision maker who will expose the Child to his culture. [ 9 ] Ms. Many Fingers noted that the Kinship parents has signed a Last Will and Testament appointing their biological children as the Child’s alternative caregivers (this of course would have no effective value as the Kinship Parents did not have private guardianship). Ms. Many Fingers also confirmed that the Kinship parents were fearful that the Child would be removed from their care. Ms. Many Fingers noted that on January 1, 2020, the Federal Act has come into force.

The practical and legislative intent was that there would be an ongoing reassessment to see if it was appropriate to place the Child with a family member. Ms. Many Fingers stated that she had meet with the Child on October 28, 2021. Ms. Many Fingers testified that during her 30 years of work in her area, 90% has been with Indigenous children. Ms. Many Fingers concluded her direct examination by restating the dilemma between a loving home and cultural understanding. [ 10 ] Under cross-examination by counsel for the Child, Ms. Many Fingers confirmed that the Child refers to his Kinship Parents as “Mom” and “Dad”.

Ms. Many Fingers also confirmed that the Child was medically fragile when he was released from the hospital into the care of the Kinship Parents. In addition, the Kinship Parents see the Child as their own son. There was a brief reference to another child, a half-sibling of the Child, that had also been temporarily placed with the Kinship Parents. This other child was removed from the Kinship Parents apparently without explanation. According to Ms. Many Fingers, the Kinship Parents had complained to the Children’s Advocates office. [ 11 ] Ms. Many Fingers described a phenomenon referred to as “foster care drift”.

Ms. Many Fingers stated that some children in care can go form as many as 20 to 30 different homes. Ms. Many Fingers also testified that there are a number of failed placements and that some children end up homeless at the age of 18 years old. Ms. Many Fingers stated that it was very important to the Child to know that he will be staying with his Kinship Parents. According to Ms. Many Fingers, the Child does not want to leave his home with his

Kinship Parents, and he has a fear of being removed. This has created and insecurity for the Child and it would be “disastrous” to remove the Child and place him in another home. According to Ms. Many Fingers it would affect the Child’s mental health. [ 12 ] Under cross-examination by counsel for the Nation, Ms. Many Fingers confirmed that 90% of her families and clients she works with are Indigenous. Ms. Many Fingers stated that the best interests of the Child are always to be there. Ms. Many Fingers confirmed that the Child has special needs and is medically fragile. Ms.

Many Fingers stated that she was not surprised that the Nation was opposed to the private guardianship application by the Kinship Parents. Ms. Many Fingers testified that the purpose of the home study was to determine the suitability of the Kinship Parents to take care of the Child. Ms. Many Fingers stated that the Nation had provided a lot of services to the Kinship Parents. [ 13 ] According to Ms. Many Fingers, the Nation is concerned that if a Private Guardianship Order is granted then the Kinship Parents will not keep the Nation informed about the Child. Ms.

Many Fingers believed that the Kinship Parents would do their best. Unfortunately, Ms. Many Fingers did not think there were healthy family members on either the Siksika Nation or Saddle Lake. Ms. Many Fingers stated again that the Child is afraid of being removed from his current Kinship Parents. Ms. Many Fingers also stated that in her opinion the Kinship Parents have tried to reach out the Siksika Nation without much success. According to Ms. Many Fingers, the Kinship Parents and the Siksika Nation are not working together. [ 14 ] Ms.

Many Fingers confirmed that she maintains her recommendations as contained in her home study. Starting in the middle of page 36, under Summery and Recommendations, she stated: [FWR] and [BR] have invested considerable time and effort in supporting [the Child]’s success in school as well as nurturing his cultural identity and providing opportunities to participate in cultural enrichment experiences. [FWR] and [BR] retired in 2015 and 2016 respectively, giving them greater time to devote to parenthood.

Based on the findings of this report it is recommended [FWR] and [BR] be favourably considered for private guardianship of [the Child]. BR (the Kinship Father) [ 15 ] The second witness was the Kinship Father, BR. The Kinship Father testified that he first saw the Child at the hospital on July 8, 2013. According to the Kinship Father, the Child came home to their place on July 9, 2013. The Kinship Father stated that he bonded with the Child immediately and that they are the only family that the Child has ever known. The Child has told him that he never wants to leave.

According to the Kinship Father, it would be devastating to remove the Child from their home. [ 16 ] The Kinship Father testified that the Child is on medication and that without it the Child could not actually be in school. The name of the medication is “Biphentin”, and it is used to therapeutically treat Attention-Deficit/Hyperactivity Disorder (ADHD). The Kinship Father stated one of the side effects of the medication is a loss of appetite. At this time the Child was attending the Al’Kaa’Yi’Saapi school in the Siksika Children’s Language Program.

The Kinship Father confirmed that the Child sees an elder and that they smudge everyday. [ 17 ] At school, prior to the medication, the Child was occasionally out of control and would lose it. The Child would sometimes hide from the teachers and would run outside. According to the Kinship Father, the school would call him to come and help collect the Child. As to the school bus, the Child would sometimes be unable to control himself and he was not permitted on the bus.

As a result, the Kinship Father testified that he drove the Child to the school which was a one hour drive each way. [ 18 ] The Kinship Father stated that the Child would stick to him like a shadow. According to the Kinship Father, the Child has the gift of compassion, and that the Child is “so gentle”. In 2014, the Kinship Parents took the Child to his first Powwow. According to the Kinship Father the Child found it too loud and said that it hurt his ears. As a result, the Kinship Parents got the Child a set of earphones.

They also took the Child to the Siksika Stampede and stated that he loves trains, camping, fishing, gymnastics, and other activities, some at Siksika. [ 19 ] The Kinship Father testified that he is available 24/7 to look after the Child. He also stated that his life would be empty without the Child. According to the Kinship Father, the Child is worried about this Court case. [ 20 ] Under cross-examination by counsel for Siksika Child and Family Services, the Kinship Father confirmed that the Child had been seeing his maternal grandmother and some of his biological siblings.

According to the Kinship Father, they were initially hesitant about the visits because they were to be overnights. The Kinship Father confirmed that they had cancelled some visits because of their own weekend plans. They had also provided the Child with a cell phone to take with him on a visit because they had no contact information as to where the grandmother was living and who would be there. [ 21 ] The Kinship Father stated that they did provide some snacks for the Child on visits to his grandmothers.

According to the Kinship Father the Child can be picky as to what he will eat, and that this is part of the side effects from the medication that he is on. The Kinship father confirmed that in their Last Will and Testament, they have listed their own children as the alternative guardians for the Child. When asked why they had not considered the grandmother as an alternative guardian, the Kinship Father stated that he does not know anything about the grandmother. [ 22 ] The Kinship Father confirmed that the visits with the grandmother were organized by the Siksika Child and Family Services.

The visits had been scheduled for every second weekend, but according to the Kinship Father there had been no visits for the last 10 weeks. The Kinship Father stated that in the future he would facilitate visits between the Child and his grandmother. The Kinship Father was asked if these proceeding were causing stress. The Kinship Father confirmed that they are fearful that the Child would be removed from their home and that the Child is also fearful of being taken from the home.

The Kinship Father suggested that this fear started with the overnight visits. [ 23 ] Under cross-examination by counsel for the Child, the Kinship Father confirmed that he had volunteered at the Child’s Al’Kaa’Yi’Saapi school. The Kinship Father had helped in the school’s kitchen and also helped with the construction of a teepee. As to the behavioural issues at the school (where the Child ran away), the Kinship Father stated that he would go to the school because the

Child trusted him and would come to him. [ 24 ] Since placing the Child on Biphentin medication, the behaviours at school have become much better. According to the Kinship Father, the Child is more focused on the medication but as it wears off the Child becomes more bored. Nevertheless, the Kinship Father stated that at one meeting with Siksika Child and Family Services, they were told that the Child should be taken off all his medication.

According to the Kinship Father they were told that this suggestion was because it would allow the Child to be “free and natural”, just like the Nation. [ 25 ] The Kinship Father testified that he did not know how the Child could function at school without his medication. According to the Kinship Father they had tried one day to take the Child off medication and the results were unbelievable. The Child that day was unable to focus and could not attend school.

The Kinship Father stated that there is a suggestion that the Child had borderline Fetal Alcohol Spectrum Disorder (FASD), but that the necessary testing has not started yet. The Kinship Father confirmed that the Child’s doctor has recommended and wanted to increase the dose of Biphentin from 35mm to 40mm.

According to the Kinship Father, Siksika Child and Family Services had refused to provide permission for the increase, and once again questioned why the Child was even on this medication. [ 26 ] The Kinship Father testified that they are applying for private guardianship so that they could make the necessary medical decisions for the Child. The Kinship Father stated that there is no age limit on how long the Child can stay with them and specifically it will not end at 18 years of age. According to the Kinship Father, the overnight visits had been scary for the Child.

Nevertheless, the day visit with the grandmother have gone very well and has been positive for the Child. The Kinship Father did ask why the grandmother has never reached out to them. [ 27 ] Under cross-examination by counsel for the Siksika Nation, the Kinship Father was asked if he understands why the Nation is opposed to their application for private guardianship. The Kinship Father was told it was because they themselves (the Kinship Parents) cannot expose or provide the Siksika knowledge to the Child.

The Kinship Father was further told that this was necessary to ensure the preservation of the Siksika culture. There is also reference to the Truth and Reconciliation recommendations and the effect of cultural genocide. [ 28 ] The Kinship Father confirmed that there has been no input from the Saddle Lake Nation. As to the Siksika culture, the Kinship Father was asked how they could teach the Child if they don’t understand the culture.

For instance, the Kinship Mother had worn a “ribbon dress” this day and the day before, and according to the Siksika culture, the ribbon dress should only be worn for important ceremonies. Apparently, the Court hearing is part of the colonial court system and is not a cultural ceremony. There is also a suggestion that this is not part of or in keeping with the goal of reconciliation. FWR (The Kinship Mother) [ 29 ] The next witness is the Kinship Mother, FWR. She explained that she was a casual nurse working in the NICU at the Peter Lougheed Hospital (PLH).

The Kinship Mother described the Child as a “beautiful baby”. After birth, the Child was transferred to the Foothills Hospital because he required additional critical care. The Child was then transferred back to the PLH. Unfortunately, the Child had been infected with Cytomegalovirus (CMV) while at the Foothills Hospital. The Kinship Mother, who was still working as a nurse in the NICU at PLH, testified that she did not think the Child would make it. [ 30 ] The Kinship Mother stated that in addition to the virus, the Child has numerous other health issues, including the requirement of a feeding tube.

According to the Kinship Mother, the nursing staff had all bonded over the Child. The Child has been at the PLH for four months. The Kinship Mother stated that the Child required stimulation and that the nursing staff had purchased toys for the Child. A person she called “Grandpa Jerry” had also brought a toy for the child. [ 31 ] According to the Kinship Mother, the original plan had been to try to discharge the Child to the biological mother. The hospital (PLH) had tried to get the biological mother to attend the hospital to learn how to feed the Child.

Unfortunately, no one came to the hospital to try and learn how to care for this medically fragile Child. In the absence of any family, or anyone else coming forward to care for the Child, the hospital began looking at a group home to care for the Child. According to the Kinship Mother, the doctors did not want the Child to go to a group home. The Kinship Mother stated that the biological mother was supposed to come and see the Child in the evenings, but she rarely attended. [ 32 ] The Kinship Mother testified that she felt that the Child had been abandoned.

She stated that she had previously been an emergency foster care home provider and that at least 30 young children had come through their home. According to the Kinship Mother, the hospital was considering sending the Child to the Children’s Cottage. None of the Child’s family had come forward. Even inquires from the Saddle Lake Nation were unsuccessful. The Kinship Mother stated that plans were then developed for her to take the Child home to their place. According to the Kinship Mother, there was an immediate bonding with the Child.

They converted a guest room into the Child’s room. [ 33 ] The Kinship Mother stated that the Child had numerous medical appointments with doctors and the Child’s pediatrician. Attempts to reach the biological mother were unsuccessful. There was no contact whatsoever from the biological father. The Kinship Mother stated that the Child has had numerous case workers. The Kinship Mother also stated that their own family members had really bonded with the Child. [ 34 ] The Kinship Mother testified that she had resigned from her nursing position at the hospital so that she could care for the Child full-time.

As to the Child being placed in a Christian school, the Kinship Mother stated that had been consented to by the case worker. The Christian school only lasted three months as it turned out not to be a good fit. According to the Kinship Mother then they discovered the Al’Kaa’Yi’Saapi school. She explained that this was a cultural school including Blackfoot, Metis, and Cree Nations. The Kinship Father drove the Child to this school every day. Starting in Kindergarten, troubles began. The Child was hit by another child and an assessment was conducted. The Child was given a Code 42 and Code 55.

The doctor assessed the Child as having ADHD. This is when the medication Biphentin was prescribed. According to the Kinship Mother, the case worker at the time had approved the medication.

[ 35 ] The Kinship mother testified that there had been some issues with scheduled visits. On one occasion the visit driver did not show up and on a couple of occasions family members did not show up. The Child received his Indian name of “Blackhorse” which the Kinship Mother stated meant “Justice”. The Kinship Mother testified that she had purchased the Child his Indian Status card. The elder, Melting Tallow, had come to their home to meet with the Child.

The Kinship Mother stated that she had purchased books for the Child about the residential schools. [ 36 ] The Kinship Mother advised that the Child has not had a haircut since he was three years of age. As to scheduled visits, the Kinship Mother confirmed that there had been some cancellations. The Kinship Mother confirmed that on one occasion there was a family birthday party, there was also a family vacation where they asked for a reschedulation that never happened. There was also a couple of occasions where the maternal grandmother was not home when the driver arrived because she had supposedly gone to work.

There was also a cancellation by the grandmother because of a family death due to a fire. As to the Easter visit, the Child was sick. [ 37 ] The Kinship Mother testified that she had been told that the Director of Children’s Services “owned” the Child. As to the overnight visits, the Kinship Mother stated that the Child did not want to go. Nevertheless, she said they convinced the Child to go on the overnight visit. The Child has told the Kinship Mother that he prefers to sleep in his own bead.

The Kinship Mother stated that they always tell the Child to have a good time at his visits. [ 38 ] The Kinship Mother testified that on one visit the Child had peed his pants, and that the pants came home in a plastic bag. As to the iPad, the Kinship Mother stated that they no longer send it with the Child on visits. The Child has also expressed a wish to meet his stepsister, ‘W’. The Kinship Mother questioned why this meeting has never occurred.

The Kinship Mother has also requested a photo of the grandmother for the Child but that has never been provided. [ 39 ] The Kinship Mother confirmed that the Child prefers day visits as opposed to overnight visits at his grandmothers. As to the Child’s cultural plan, the Kinship Mother stated that they will continue to expose him to his Siksika way of life. In addition to his Blackfoot heritage there is also his Cree heritage.

The Kinship Mother reiterated the cultural events that they will have the Child participate in. [ 40 ] Under cross-examination by counsel for the Siksika Child and Family Services, the Kinship Mother confirmed the importance of the Child’s Siksika culture and biological family. The Kinship Mother was asked if a family birthday party was more important than a visit with his grandmother and she stated that birthday parties were also important to the Child. There was some confusion by the Kinship Mother as to which visits were rescheduled and which visits were cancelled.

The Kinship Mother confirmed that they had given a cell phone to the Child on a visit. According to the Kinship Mother it was because there is an hour-and-a-half of travel time involved. As to the food issue, the Kinship Mother stated they have never told the Child he could not eat at the grandmothers. [ 41 ] The Kinship Mother confirmed that they have always been “Kinship” care as opposed to “Foster” care, even though foster care would have paid more money. According to the Kinship Mother, they consider themselves the Child’s “Mom and Dad”.

The reason they are pursuing private guardianship is so that they can provide the Child with a permanency plan. According to the Kinship Mother back in 2019, both the case worker and the supervisor supported the Kinship Parent’s application for private guardianship. The Kinship Mother stated that the day before the home study was to start it was suddenly put on hold.

It was around this time, according to the Kinship Mother, that they first heard that there was a possibility that the Child could be removed from their home. [ 42 ] The Kinship Mother denied ever telling the Child that he could be removed from their home. According to the Kinship Mother they had told the Child that their home would be his forever home. The Kinship Mother also denied ever talking to the Child about the application for private guardianship. The Kinship Mother confirmed that they had contacted the Children’s Advocate Office. Supposedly, it was to help the Child meet some of his siblings.

The Kinship Mother confirmed that they know very little about the grandmother despite asking for information. The Kinship Mother stated that they have arranged Blackfoot language classes for the Child and that she herself has taken two years of Blackfoot language classes. [ 43 ] According to the Kinship Mother, the Kinship Father has taken Cree language classes. The Kinship Parents have also exposed the Child to “drumming” and he has his own drums. The Kinship Mother stated that they have done more to educate the Child to his cultural heritage than Siksika Child and Family Services.

Nevertheless, the Kinship Mother agreed with Dr. Peter Choate’s report that the Child still needs more exposure and education. With respect to the updated cultural plan, the Kinship Mother confirmed that they had not considered consulting with Ms. Bernadette Good Eagle. [ 44 ] The Kinship Mother stated that they believe they have a good relationship with Ms. Good Eagle. In fact, the Kinship Mother called her a wonderful case worker who wants to help children.

Nevertheless, there is no guarantee that she will be there for the next seven years, and she could always retire or be replaced. [ 45 ] Under cross-examination by counsel for the Child, the Kinship Mother testified that they have gone above and beyond for the Child. According to her they have done “400%”. The Kinship Mother confirmed that she had previously been a foster care home provider but this time they wanted to be Kinship care to the Child. The Kinship Mother stated that the Child considers her his “Mom”. As to the physical activities the Child has been in soccer and swimming.

The gymnastics and skating didn’t work out. According to the Kinship Mother, the Child likes his BMX bike, his skateboard, and his roller blades. The Child also loves to make things, he is creative, does painting, Lego, and scientific stuff. The Kinship Mother was not sure why there were no visits with the grandmother for 10 weeks this summer. [ 46 ] The Kinship Mother confirmed that the pediatrician had recommended an increase in the Child’s medication. The Child is currently on a dose of 35mm of Biphentin and the doctor has suggested that the dose be increased to 40mm.

The Kinship Mother stated that she approached the previous case worker for permission and the case worker said no. The Kinship Mother testified that if the Child was removed from their home, it would be devastating and would destroy the Child. According to the Kinship Mother, the Child needs to hear that there will be permanency. [ 47 ] The Kinship Mother stated that in the last 10 years no one else has filed a private guardianship application. The Kinship Mother confirmed that a case worker had warned them in 2021 that there was a real possibility that the Child would be removed from

their home. That is why the Kinship Parents want to be able to make decisions for the Child. The Kinship Mother believes that the Child has health issues because of these proceedings. Finally, the Kinship Mother confirmed that the Child has had 14 case workers on his file. [ 48 ] Under cross-examination by counsel for Siksika Nation, the Kinship Mother suggested that they have done more for the Child’s cultural connections than some children on the reserve have experienced. The Kinship Mother confirmed that they would like to continue working with Siksika Prevention and Intervention Services.

As to the updated cultural plan, the Kinship Mother stated it included regular meetings for the Child with an elder, attending Powwows, and continuing Siksika language courses. The Kinship Mother believed that their cultural plan was sufficient to expose the Child to his Siksika cultural heritage. Nevertheless, the Kinship Mother confirmed that they had not consulted with the Siksika Nation about their cultural plan. [ 49 ] The Kinship Mother stated that the Child does identify as a Siksika person.

The Child knows that he is also Cree and Blackfoot, that he knows his identity, and that he is very proud of his braid. The Kinship Mother was asked if she knows what it means to be “of Siksika”. The Kinship Mother testifies that they will try. As to the ribbon skirt, the Kinship Mother was asked if she understands why some Siksika individuals would find it offensive for her to wear the ribbon skirt to court. The Kinship Mother was also asked if she was told not to have the Child dressed in full regalia for the Christmas party.

The Kinship Mother stated no, and in any event, it had been a drive through party because of COVID-19. [ 50 ] The Kinship Mother was asked how they will champion the Child’s Siksika heritage since they are not from Siksika, and how they will fight against negative stereotypes. The Kinship Mother was not sure. The Kinship Mother confirmed that it was the fear of losing the Child that resulted in their filing the application for private guardianship. The Kinship Mother suggested that the Siksika Nation must have faith in their promise to continue to maintain the Child’s exposure to his Siksika cultural connection.

The Kinship Mother also suggested that since Siksika Nation has not provided their own cultural plan it was difficult to know what they wanted, other than to retain final decision-making authority for the Child. Ms. Minor Chief Solway [ 51 ] The next witness was Ms. Minor Chief Solway, and she had previously worked for Children’s Services. Currently, Ms. Minor Chief Solway is with the Siksika Government. Ms. Minor Chief Solway had met with the Child when she was in Children’s Services as a permanency worker. She called the Child strong, resilient, and smart. According to Ms.

Minor Chief Solway the Child is more Siksika than Cree. Nevertheless, she does not believe that the Child has a consistent connection to his people back in Siksika. Ms. Minor Chief Solway stated that she left it to the Kinship Parents to initially tell the Child about family visits. [ 52 ] Ms. Minor Chief Solway stated that the Child will “come home when he is of age”. According to her, the Child comes from a very large family at Siksika. As to the grandmother, Ms. Minor Chief Solway called her a “work-a-holic”, and that she has a big involvement with the community.

With respect to some of the visits that the grandmother had not been at home, Ms. Minor Chief Solway stated that the grandmother had to be there for the other children. As to setting up the visits, Ms. Minor Chief Solway was concerned that the Kinship parents were attempting to block the visits. [ 53 ] According to her, the Kinship parents did not understand their roles as being the Child’s caregivers. Ms. Minor Chief Solway stated that she did not recall telling the Kinship Parents that the Child could be removed from their home. Ms. Minor Chief Solway then stated that one day the Child will come home.

As to a meeting at the Kinship Parent’s home, she was concerned that they spent more time complaining about how they were being treated than about the Child. According to Ms. Minor Chief Solway, she was not there to listen to the Kinship Parents tell her how they felt they were being treated. [ 54 ] Ms. Minor Chief Solway stated that working with the Kinship parents was a challenge. According to her, she tried to make it professional, but some events escalated. The Kinship Parents were not following their role as caregivers and there were barriers to coming up with a plan. Ms.

Minor Chief Solway stated that the Kinship Parents were supposed to obtain the Director’s approval for an anesthetic the Child had at a dental visit, but they did not. According to Ms. Minor Chief Solway, the Kinship Parents were not working as a team. Ms. Minor Chief Solway denied ever telling the Kinship Parents that the Director owned the Child. [ 55 ] Ms. Minor Chief Solway stated that she thought the Child was scared to go outside, even though the grandmother had purchased a pool and a trampoline. Her personal observation of the Child and grandmother was very good. Ms.

Minor Chief Solway confirmed that some visits did not go ahead because the grandmother had been called into work. The grandmother was again described as a work-a-holic. According to Ms. Minor Chief Solway there were some visits cancelled because the Child was sick, but when she talked to the Child, he said he was not sick. [ 56 ] Ms. Minor Chief Solway is concerned that if the Director is not involved it will make maintaining family contact more challenging. She stated that during the two years she had the file, she saw the Child being oppressed, suffocated, and abused. Ms.

Minor Chief Solway testified that her people come from an oppressed people, and that this case should not be in this courtroom. According to her, this is oppression. Ms. Minor Chief Solway stated that the Child is their future leader, that he is connected to his people and there is a strong base. As to oppression, she said that because the Kinship Parents had considered holding the Child back from moving to Grade 3, she said that was oppression and that it was depriving the Child. [ 57 ] Under cross-examination by the Kinship Mother, Ms.

Minor Chief Solway was asked about the pediatrician’s recommendation to increase the Child’s Biphentin from 35mm to 40mm. According to Ms. Minor Chief Solway there was supposed to be a meeting with the pediatrician, but he never got back to them. As to some of the items, such as “drums”, given to the Child, Ms. Minor Chief Solway believes that they are not to be provided by the Kinship Parents, and the medicine wheel had not been approved by the Director. She stated that only his own people can teach the Child his Blackfoot language.

She stated that “to deliver the mother tongue is the responsibility of our people”. As to the first overnight visit, Ms. Minor Chief Solway confirmed that the grandmother, the Child, and his half-brother all shared the same bed. She also confirmed that the first overnight visit, the Child peed his pants, and that the grandmother had put them in a plastic bag. As to the possibility of holding the Child back in Grade 2, Ms. Minor Chief Solway stated that this was not what the Child’s Principal had told her. Supposedly, the Principal had said the Child could go into Grade 3. Ms.

Minor Chief Solway confirmed that no concurrent plan has been prepared or signed in the last two years.

[ 58 ] Ms. Minor Chief Solway denied that the Child was afraid of her (Solway). Instead, she suggested that the Child was afraid of the dogs. Ms. Minor Chief Solway confirmed that the grandmother does not want a relationship with the Kinship Parents. The grandmother is concerned about the Kinship Mother being the Child’s caregiver. Allegedly, the grandmother had accused the Kinship Mother of dropping the Child in the delivery room (the Kinship Mother stated that she was never in the delivery room).

Supposedly, around this time the Kinship Parents were again contacted by another case worker to warn them that the Child may be removed. Ms. Minor Chief Solway then stated that there was a responsibility for reunification with the Child’s father. [ 59 ] Under cross-examination by counsel for the Child, Ms. Minor Solway confirms that they have never received a telephone call or email from the father. The father did not send any letters either. Ms. Minor Chief Solway was evasive as to the fact that the Child did not want to go on overnight visits with his grandmother. Instead, Ms.

Minor Chief Solway blamed the Kinship Mother for setting the tone of their meeting and that was all she wanted to do was to create a Geno Map to see who was available. [ 60 ] Under cross-examination by counsel for the Siksika Nation, Ms. Minor Chief Solway confirmed that a Geno Map is required. Ms. Minor Chief Solway stated that the Child has no real knowledge or connection with his culture. According to her, the Kinship Parents were not helping the Child grow. Ms. Minor Chief Solway stated that she had seen the Child to be oppressed, abused, and depressed.

She said that for the Child to belong it has to be done by the Siksika people. Ms. Minor Chief Solway was dismissive and minimized the Child’s braid, saying that it was all she saw. She said that “if we don’t bring him back we will be destroying the Child”. Ms. Minor Chief Solway stated quite clearly “culture has to come from Siksika”. [ 61 ] Ms. Minor Chief Solway acknowledged that the Kinship Parents are afraid that the Child will be removed from their care, to which she stated, “at sometime down the road”. Ms.

Minor Chief Solway stated that the elder the Kinship Parents had included was not enough and that the Child needs to learn his culture from the people of Siksika. Ms. Minor Chief Solway said it was humiliating to her to see the ribbon dress at the courthouse. She said it “is only for our people”. As to how the Child was dressed at the Christmas party, Ms. Minor Chief Solway testified that the Child was in shame. Supposedly, according to Ms. Minor Chief Solway, the Child did not want to be seen by his own people. She said that this oppressed him. Mr. Clifton WaterChief [ 62 ] The next witness was Mr.

Clifton WaterChief who was responsible for transporting the Child to the visits with the grandmother. Mr. WaterChief has had previous employment, including once being a police officer. Mr. WaterChief stated that he had a good relationship with the Kinship Mother but not as good with the Kinship Father. Mr. WaterChief described an incident where the Kinship Father wanted to put the seat belt on the Child. Mr. WaterChief said he tried to explain that the seat belt was his responsibility as the transportation driver. Mr.

WaterChief stated that he felt very uncomfortable with the Kinship Father, and that he (WaterChief) had threatened to call the police. As to the Child, Mr. WaterChief said that he was a little shy at first but that he did open up. [ 63 ] According to Mr. WaterChief, the Child was excited to see his family. Although he did refer to his family as “those people”. Mr. WaterChief noted that the Child is “totally afraid of dogs”. Once again Mr. WaterChief confirmed that the Child loves to see his family, but that the Child is upset if his half-brother is not also present. Once after a visit Mr.

WaterChief noted that the Child was hungry, so he took the Child to McDonalds, and he ate a lot. Mr. WaterChief stated that there were no apparent concerns after visits and that the Child is excited to return to the home of his Kinship Parents. [ 64 ] Under cross-examination by the Kinship Mother, Mr. WaterChief confirmed that he had been a police officer for 15 years and that this appeared to comfort the Child. Mr. WaterChief was asked if he was aware that the case worker had told the Kinship parents that it was their responsibility to ensure the Child’s seat belt was buckled in properly. Mr.

WaterChief confirmed that the Child loves his little brother, and that the Child enjoys visits with his grandmother. Mr. WaterChief stated that there was a period of 10 weeks last summer when no visits with the grandmother took place, and he does not know why. There were also two visits when he drove the Child to visit the grandmother and the grandmother was not there. [ 65 ] Under cross-examination by counsel for the Child, Mr. WaterChief explained that he does not allow the children to use a device such as an iPad until they are out of the city. Mr.

WaterChief confirmed that the Child was always excited to see his grandmother, and that the Child was always excited to come home to his Kinship Parents. Mr. WaterChief observed that the Child seemed like a very happy kid, that he was a very bright kid, and very intellectual. [ 66 ] Counsel for the Siksika Nation had no questions for this witness. Dr. Peter Choate [ 67 ] The next witness was Dr. Peter Choate, who has been a registered psychologist since 1995. Dr. Choate’s area of specialization includes social work, clinical social work, fetal alcohol, and assessments. Dr.

Choate has also been teaching at the Mount Royal University (MRU) for 21 years. Without objection, Dr. Choate was qualified as an expert witness in social work best practices, in safe assessments, and cross-cultural indigenous cases. Dr. Choate had been contacted by the Director to assess the best interests of the Child in developing a relationship with his culture. Dr. Choate acknowledged that the grandmother had decided not to proceed with a private guardianship application of her own, and that the Kinship Parents had declined to meet with him. [ 68 ] Dr.

Choate identified his report dated September 5, 2023, and it was marked as Exhibit 17. Dr. Choate confirmed that he had been asked to meet with the Child, review records and offer some insights into aspects of the best interest for the Child. Dr. Choate also noted that this included consideration of the Child’s identity as a member of a First Nation. Dr. Choate reviewed a variety of documents with respect to the Child; although it was unnecessary to repeat all of the information in the reports, Dr.

Choate did identify certain aspects of the history that are relevant to the best interest question from a case planning and assessment perspective. [ 69 ] Dr. Choate confirmed that the Child had been born prematurely and was in the NICU for four months. Dr. Choate suggested that the Child had likely been exposed to alcohol and marijuana during the pregnancy. Dr. Choate also noted that the Child was resuscitated with oxygen at birth. The Child had severe learning delays in both language and sentence structure.

Starting in 2017, there were also noted concerns about difficulties the Child had with interacting with peers and adults, specifically in heightened emotional

situations. Although there had been some improvements, Dr. Choate notes that there was a recommendation to code the Child for severe emotional behavioural disabilities, which is Code 42. [ 70 ] Dr. Choate commented from Mr. Luke Sander, registered psychologist, that the Child had a behavioural pattern consistent with Opposition Defiant Disorder, severe.

Noting such behaviours throughout the day: annoying others, running away from staff, actively defiant or refusing to comply with adult requests and rules, punches, hits, and pushes people, often loses his temper, and easily annoyed by others which results in angry or reactive behaviours. There is also the suggestion of a secondary code of learning disability, which is Code 54. [ 71 ] There was a Psychoeducational

Summary from Dr. Lisa French in 2021. Dr. French’s findings include a specific learning disorder with impairment in reading, word reading accuracy, and reading comprehension. The Child’s IQ was measured at 96. Dr. Choate notes that Dr. French’s report lists a range of strengths, normative outcomes as well as some areas of continuing concerns. Nevertheless the 2021 report is more encouraging than the 2019 report and Dr. Choate suggests that perhaps the Individualized Program Plan (IPP) is providing the needed supports to the Child. [ 72 ] Dr.

Choate met with the Child at the playroom at the Siksika Child and Family Services Offices. Dr. Choate described the Child as delightful and stated that he saw no indication of coaching. Dr. Choate used a play base approach in meeting with the Child. In addition, Dr. Choate used a Blackfoot mapping methodology known as “Ani to Pisi”. Dr. Choate engaged with the Child in what he called parallel play. According to Dr. Choate, the Child moved in and out of the conversation in a very normal manner. Dr. Choate noted that throughout their time together the Child referred to the Kinship Parents as his “mum and dad’. Dr.

Choate stated that it was relevant that these references by the Child remained calm and unrehearsed throughout their time together. Nevertheless, the Child struggled to provide any information about extended family members. The Child was able to speak about his grandmother, but according to Dr. Choate this required some prompting. There was no reference to his biological parents. [ 73 ] Dr. Choate stated that in their discussions about himself, the Child was very proud to tell him that he was both Cree and Blackfoot. The Child said that this was important to him. Dr.

Choate asked the Child if he talks about his cultural identity with his classmates at school. The Child said he does not typically do so because he does not want to “brag” even though his identity is important to him. Dr. Choate noted that the Child has a long braid that the Child is very proud of. [ 74 ] Dr. Choate asked the Child to identify the people that were important to him. The Child placed his Kinship Parents as first and then his case worker (Bernadette Good Eagle), his church, and his half-brother. The Child did not mention his stepsister.

The Child spoke positively of his grandmother, stating that she is important to him and that he wishes to maintain contact with her. The Child also named a boy who he called his best friend and his best friend’s sister. The Child did not offer indications of strong social connections beyond those, although he did indicate that there were other family people who were important to him. [ 75 ] As to the Child’s cultural connections Dr. Choate attempted to have the Child describe what it means to be a First Nation Member.

The Child was able to identify some connections to his culture and that he knew some of the Blackfoot language. When Dr. Choate attempted to explore in more detail with the Child there was, according to Dr. Choate, nothing of any significance coming forward. Dr. Choate stated that he is used to seeing more detail from a child at that age. Dr. Choate also attempted to engage the Child with some Blackfoot words that he had familiarized himself with, but the Child did not respond. [ 76 ] With respect to the possibility of a FASD diagnosis, Dr. Choate was worried that no testing on the Child has yet been done.

As to the involvement of the Child’s Kinship Parents, Dr. Choate acknowledged the important role they have provided in ensuring a safe environment with predictability and protection for the Child. Dr. Choate noted that the cultural connection was more complicated in that the necessary cultural knowledge needs to be taught by an Indigenous person. To be Siksika or Cree, and that how “to be” of that cultural requires additional connection to those members. [ 77 ] In his conclusions, Dr.

Choate noted that the Child did not present as having the difficulties as outlined in the various documents at the level that he might have expected. Once again, Dr. Choate noted that the Child had not yet been assessed for FASD. Dr. Choate stated that this was important because the features of FASD could well explain the Child’s defiance, attention, and opposition. Dr. Choate stated that the fact an assessment had not yet been completed may well be a shortcoming in terms of case management. [ 78 ] Dr. Choate confirmed that it was very clear that the Child identifies his Kinship Parents as his parents.

Also, the Child understands his First Nation identity in the sense he can articulate it. Nevertheless, it is unclear to Dr. Choate whether the Child has an in depth understanding of what it means to be First Nations. Dr. Choate stated that for a child with a strong cultural identity plan he would have expected more depth than was evident. Dr.

Choate suggests implementing something additional that creates greater direct involvement with culture, elders, knowledge keepers, and those who can offer insights into the way of living; including the spiritual understanding of what it means to be a member of the Cree and Blackfoot culture. [ 79 ] Dr. Choate believes that sustaining a relationship with Siksika Child and Family Services could be vital in order to develop a very deep level of what it means to be a member of these Nations. Dr. Choate acknowledges that the more “vexing question” is whether the Child should stay in his current placement. Dr.

Choate suggests that we come to see how the Child understands his world. According to Dr. Choate, there is no doubt the Child sees his Kinship Parents as his mother and father. Dr. Choate described this as an incorporated view for the Child and a view that during their interview was clearly the foundational piece of the Child’s understanding of his world. [ 80 ] Dr. Choate states that moving the Child at this time will not serve him well but that the current cultural planning is insufficient. Insightfully, Dr. Choate suggests that the Child could have benefited from placement within his culture to begin with. Dr.

Choate goes on the acknowledge that did not happen so what are we to do that serves his best interest without causing him harm. Dr. Choate notes that the Kinship Parents are providing the Child with a good home with loving care. Nevertheless, Dr. Choate is concerned that the failure to provide the child with in-depth connection with his cultural nurturance is not in the Child’s best interest. Dr. Choate stated that what is needed is a substantially greater cultural involvement and an unwavering commitment by the Kinship Parents. As a result, Dr. Choate did not recommend terminating the PGO. Dr.

Choate also stated that removing the Child from his current home would

be devastating to the Child. Bernadette Good Eagle [ 81 ] The next witness was Bernadette Good Eagle, the current case worker on the file. Ms. Good Eagle has previously been employed as a Daycare worker and in 2005 she was a Licenced Practical Nurse (LPN). Ms. Good Eagle has been with Siksika Prevention Services and has received training in mental health. Ms. Good Eagle describes the Child as very friendly, affectionate, and respectful. She stated that “he is a wonderful little boy”. She said that the Child is very special to her, that he sends notes to her, and he cares for her. Ms.

Good Eagle acknowledged that the Child has some learning difficulties but that his medication helped him settle down. As to the request to increase the Child’s Biphentin medication from 35mm to 40mm on the advice of the Child’s pediatrician, which the Director refused, Ms. Good Eachle stated that she was not the case worker on the file at the time. [ 82 ] Ms. Good Eagle stated that she always had a good connection with the Kinship Parents. Ms. Good Eagle confirmed that the Child was scared during his overnight visits with his grandmother and that because of his fear he had trouble sleeping. According to Ms.

Good Eagle, the Child did not feel that anyone was listening to him. She told him things would change. Ms. Good Eagle stated that she did not feel that it would be in the Child’s best interest to move the Child from his Kinship Parents. Ms. Good Eagle confirmed that there had been no visits between the Child and his grandmother during July and August of 2023. She explained that this interruption was because she was required to take a medical leave of absence. [ 83 ] Ms. Good Eagle described the responsibilities of a case manager. According to Ms.

Good Eagle, the Child is well taken are of, there are day-to-day activities, and all of his basic needs are being met. The visits with the grandmother are going great, and due to the wishes of the Child they have returned to day visits only. Ms. Good Eagle stated that the Child loves the visits with his grandmother, and then she stated that it was because he knows he will be returning to his Kinship Parents. Ms. Good Eagle confirmed that the grandmother speaks Blackfoot to the boys. According to Ms. Good Eagle, the Blackfoot language is emotional and that the manner and delivery is important. [ 84 ] Ms.

Good Eagle confirmed that she had talked to the grandmother regarding her filing her own application for private guardianship. Although the grandmother was going to file for private guardianship, due to a number of events including the tragic loss of another grandchild, the grandmother decided not to apply. Ms. Good Eagle described the grandmother as a work-a-holic. Nevertheless, the grandmother is concerned that if the Kinship Parents are successful in obtaining private guardianship, then her visits with her grandson will stop. Ms.

Good Eagle confirmed that the Kinship Parents have tried to learn the Siksika culture. According to Ms. Good Eagle, the Siksika culture can only be taught by the Siksika people. [ 85 ] According to Ms. Good Eagle, the grandmother was originally appalled to learn that the Kinship Mother was caring for the Child. The grandmother alleges that during the birth of the Child in the delivery room, the Kinship Mother had dropped the Child. The grandmother had told Ms. Good Eagle that she couldn’t understand how the Director could place the Child with the nurse who had dropped the Child during childbirth.

The grandmother doesn’t want any connection with the Kinship parents. According to Ms. Good Eagle, the current plan is to keep the Child with the Kinship Parents and with the Director to remain the Guardian to ensure the Child’s culture and traditions. [ 86 ] Ms. Good Eagle described herself as a strong Aboriginal woman. She explained that she has been taught traditional ways and as a result she felt disrespected because of the ribbon skirt at the courthouse. According to Ms. Good Eagle, there are criminals at the courthouse and there are bad spirits. Ms.

Good Eagle stated that she has felt disrespected during this trial. Ms. Good Eagle went on to state that “there is bad energy in this building and that there is bad energy in this room”. Ms. Good Eagle believes that the Child’s life is not complete. [ 87 ] Under cross-examination by the Kinship Mother, Ms. Good Eagle confirmed that the Child has had 14 case workers. Ms. Good Eagle was asked if it was possible that the Child could be removed from his current Kinship home, and she said that it was possible. Ms.

Good Eagle did state that she would document the file to show that she believed that the Child should stay with his Kinship Parents. According to Ms. Good Eagle, the grandmother had told her that the Kinship Mother had dropped the Child during the delivery of the Child. Ms. Good Eagle was asked if she believes that happened and she said it was a consideration. Ms. Good Eagle confirmed that the grandmother does not want to have contact with the Kinship Parents. [ 88 ] Ms. Good Eagle stated that there are no other applications with respect to the Child. In addition to the 14 case workers on the Child’s file, Ms.

Good Eagle confirms that there have been three different Directors, and a number of temporary Directors. Ms. Good Eagle again states that she had not considered removing the Child from the Kinship Parents’ home. Nevertheless, Ms. Good Eagle noted that the removal was always a possibility. As to some of the Indigenous items in the Kinship Parents’ home, Ms. Good Eagle acknowledged their existence but stated that the Kinship Parents are not Siksika. [ 89 ] Under cross-examination by counsel for the Child, Ms.

Good Eagle confirmed that after talking to the Child she had suspended the overnight visits with the grandmother. Ms. Good Eagle stated that the Child felt that no one had been listening to him. Ms. Good Eagle believed that overnights with the grandmother are likely to resume once the Child’s comfort level is there. Ms. Good Eagle described the Child as a solid warrior and stated that he will be a leader one day. [ 90 ] Under cross-examination from counsel for the Siksika Nation, Ms. Good Eagle stated that it would be in the Child’s best interest if all the parties could work together. Ms.

Good Eagle confirmed that the grandmother has decided not to file an application for private guardianship. According to Ms. Good Eagle, the grandmother knows that the Child is loved and well taken care of by the Kinship Parents. Ms. Good Eagle suggested that if the PGO remains that the Child will continue to be a Siksika child. That the Child will remain connected to his Siksika culture. This will occur if the Child remains in the system. Minor Chief Samuel Crowfoot [ 91 ] The next and last witness was Minor Chief Samual Crowfoot, called as a witness by the Siksika Nation.

Currently, Minor Chief Crowfoot is an elected councillor to the Siksika Nation who was elected in 2019. He has a law degree from Alberta, although he is

not currently practicing. Minor Chief Crowfoot was recently a commissioner with the Alberta Human Rights Board. He has since resigned due to the fact that the Siksika Nation is now in litigation against the Alberta Human Rights Board. Minor Chief Crowfoot’s wife is from the Navaho Nation in New Mexico. Minor Chief Crowfoot was deputy prosecutor and then the Chief prosecutor in Western New Mexico. Eventually he became a Judge for the Navaho Tribal court. Minor Chief Crowfoot, in his judicial responsibilities, had jurisdiction over a large number of legal matters including criminal and social services.

Since then, Minor Chief Crowfoot and his family moved back to the Siksika Nation. [ 92 ] Minor Chief Crowfoot was shown Exhibit 4, which was the Siksika Band Council Resolution. He explained that this type of action was because the Nation was losing its children, and the intention was to protect the children. Minor Chief Crowfoot confirmed that he is one of the Nations councillors who had signed the Band Resolution. Minor Chief Crowfoot also confirmed that he is himself a residential school survivor having attended Kindergarten day school in 1983.

His father and grandfather were also in residential schools. [ 93 ] According to Minor Chief Crowfoot, the Siksika children need to be raised on their traditional land. To maintain strong cultural ties the children need to be raised and taught the language on the Siksika Nation. Minor Chief Crowfoot stated that the role of the Canadian Government had been to rob the Nations of their lands. Minor Chief Crowfoot noted that on this date (September 22, 2023) it was the one hundred forty-seventh anniversary of the signing of the Treaty Seven.

His great-great-great grandfather, Chief Crowfoot, has signed the Treaty. [ 94 ] According to Minor Chief Crowfoot, children not raised by a Siksika family will feel inadequate, shunned, and rejected. He admitted that he himself has been called “not Blackfoot enough”. Minor Chief Crowfoot stated that if you don’t live on the land you are considered “less Siksika”. To stop the loss of their children, the Nation is seeking control of the necessary jurisdiction over many areas including child welfare. Minor Chief Crowfoot suggested that under an Indigenous court, the Nation could place children where they saw fit.

He explained with dissatisfaction that there was a view in the general public that the Nation was inadequate and incompetent to handle their own affairs. Minor Chief Crowfoot stated that the Nation had inherent rights over the jurisdiction of their children. He said that an Indigenous court was needed and that he would “die on that hill”. According to Minor Chief Crowfoot, only the Siksika Nation can decide Siksika matters. [ 95 ] In explaining the best interest test from some of the Native American Bands, Minor Chief Crowfoot described a two-part process. Number one, the child would be safe and sound.

Number two, the child would be with family or extended family. As to learning the native language he stated that nothing replaced in home learning, and that the “mothers were the best teachers”. Minor Chief Crowfoot was asked what could be done to ensure that the Child’s cultural plan is protected. According to Minor Chief Crowfoot, there would need to be three things. One, there would need to be additional people to teach the Child. Two, there should be a written record documenting all of the Child’s visits to Siksika.

Three, the Child’s visits with the biological family must be maintained to keep the connection. [ 96 ] Under cross-examination by the Kinship Mother, Minor Chief Crowfoot was asked about Bill C-92 ( ARFNIM or Federal Act ) and the status of Siksika’s involvement. According to Minor Chief Crowfoot, there is draft documentation prepared but the Nation is waiting to see what the Alberta Government does. He also stated that the Indian Act was a racist piece of legislation.

As to an emotional connection, Minor Chief Crowfoot confirmed that it was important, but he emphasized that the really important connection was the biological mother. Minor Chief Crowfoot was asked if a non-Siksika member can teach the culture to a Siksika child, and he said no. [ 97 ] Under cross-examination by counsel for the Child, Minor Chief Crowfoot was asked if the Kinship Parents are granted a Private Guardianship Order, then what would be needed. Interestingly, Minor Chief Crowfoot stated that oversight would be needed.

Otherwise, he felt there could be a lack of accountability and the culture could so easily be lost. Referring to one of the Native American Bands, Minor Chief Crowfoot stated that there could be a status review once a year. This could provide for an update on the Child and would compel some type of oversight. [ 98 ] Under cross-examination by counsel for the Director, Minor Chief Crowfoot was asked about the situation if the Director remained the Child’s guardian. According to Minor Chief Crowfoot, one would need to give deference to the cultural experts. That concluded the evidentiary portion of the trial.

Issues As previously mentioned, this case raised a number of important issues that are both complex and difficult. Applicable legislation includes the Provincial Legislation ( CYFEA ) and the Federal Act ( ARFNIM ) .

Notably, the Supreme Court of Canada has yet to render their decision on the appeals from Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis 2022 QCCA 185 , ( Québec Reference ). [ 99 ] It is well established that the determination of a child’s best interest is a multifaceted analysis that does not rely on any one factor. Nevertheless, the Courts are statutorily mandated to recognize the special status of the Indigenous groups and to consider their customs and traditions.

The valuable perspective that the Indigenous group provides must be incorporated into the Court’s analysis in a substantive manner. The Courts should be particularly sensitive to the factors relating to the cultural continuity and substantive equality when an application relating to an Indigenous child is made by a non-Indigenous person. Finally, the determination of the child’s best interest must be child centred and within the context of the child being Indigenous. [ 100 ] The issues can be summarized as follows: (

a) Do the Kinship Parents meet the three-part test for private guardianship? (

b) Did the Kinship Parents provide a sufficient cultural plan? (

c) How does the CYFEA and the Federal Act interplay in private guardian applications and what is the purpose of the CYFEA and the

Federal Act in guardianship applications? (

d) Caselaw considering CYFEA and the Federal Act private guardian applications; (

e) Best interest analysis for private guardianship applications of Indigenous children and how Indigenous Law impacts the determination of best interests; (

f) S 1.1 and s 2 of the CYFEA ; (

g) What authority is conferred on the Siksika Nation by the right to notice and participation and how has the caselaw interpreted Band participation? (

h) What is the law of the Siksika Nation and how must the Court consider the customs and traditions of the Siksika Nation? (

i) Caselaw interpreting s 53.1 and Band participation; (

j) Does the inherent right of self-governance allow the First Nation to oppose the application for private guardianship? (

k) Should the consent of the Director be dispensed with? Issues and Legal Analysis (

a) Do the Kinship Parents meet the three-part test for private guardianship? [ 101 ] There are three elements that the Court must be satisfied exist before the Court will grant an application for private guardianship. The Court can grant a Private Guardianship Order under s 56(1) of the CYFEA : 56(1) If the Court is satisfied that (

a) the applicant is able and willing to assume the responsibility of a guardian toward the child, (

b) it is in the best interests of the child, and (

c) the child has been in the continuous care of the applicant for a period of at least 3 months immediately prior to the hearing, the Court may make a private guardianship order appointing the applicant as a guardian of the child. [ 102 ] The Kinship Parents have been caring for the Child since he came home from the hospital at four months of age. As already mentioned, the Child has now been living with the Kinship Parents for 10 and a half years. There is considerable evidence that the Kinship Parents have provided the Child a secure, safe, and loving home.

Nevertheless, since the application is relating to an Indigenous child by applicants that are non-Indigenous, the Court must also be particularly sensitive to the cultural connection plan including cultural continuity and substantive equality: SK v Alberta ( Child, Youth and Family Enhancement Act , Director), 2022 ABPC 144 (SK) , Lloyd J. [ 103 ] In her case considering the three-part test as outlined in s 56(1), Justice Lloyd specifically considered whether the applicant met the requirement of being “willing and able to assume the responsibility of a guardian” referencing the particular obligations on an applicant when assuming guardianship of an Indigenous child.

At para 30 Justice Lloyd stated: [30] Turning first to the question of whether the applicant is able and willing to assume the responsibility of a guardian toward the child, I consider in particular whether I am satisfied that the applicant is able and willing to assume the responsibility of a guardian to this child – to this Indigenous child.

To be properly willing and able to parent an Indigenous child, an applicant must demonstrate that they will meet the spirit and the letter of requirements set out in the CYFEA , the Federal Act , and the UNDRIPA [ United Nations Declaration on the Rights of Indigenous Peoples Act ] and that there is adequate assurance that the child’s connections to his family, community and culture, and be respected, nurtured and encouraged so that the child will be protected from the risk of assimilative forces inherent in adoption by a non-indigenous person [emphasis added]. [ 104 ] Justice Lloyd eventually found the applicant met the “able and willing” branch of the test, noting the applicant’s evidence of: first, loving the child; second, having a strong bond with the child; and third, a commitment to continue to connect the child to their culture.

Justice Lloyd highlighted that the commitment to cultural connection was demonstrated not just through the applications testimony but through the applicant’s past actions while having the child in their care. [ 105 ] Justice Lloyd noted that an Indigenous child’s best interests are met when their heritage is recognized, and they are raised in a way that encourages a connection to their culture.

An Indigenous child being raised by a non-Indigenous caregiver compels the Court to consider the application with additional scrutiny as to the applicant’s ability and willingness to nurture the child’s connections to their culture and community. [ 106 ] Justice Lloyd also noted that in her case, sufficient efforts had been made to seek out the child’s family. This included holding family case conferences and searching for family members.

As para 46 Justice Lloyd stated: [46] As I have only one application before me, and as I am satisfied that adequate attempts have been made to locate family and community members, and as I have found that SK is able and willing to assume the responsibility of a guardian to this child, EMR, I am satisfied that this application is in the best interests of the child. The second arm of the test is met.

[ 107 ] The CYFEA also includes an additional requirement if the application for private guardianship is in relation to an Indigenous child. Section 56(1.2) directs that the Court, when appointing a guardian of an Indigenous child, shall advise the guardian of their obligations under s 57.01.

Section 57.01 states that: 57.01 If a private guardianship order is made under

section 56 appointing a guardian of an Indigenous child, that guardian shall (

a) take reasonable steps to comply with the plan included in the application in respect of that child under section 52(1.3), and (

b) if the Indigenous child is a First Nation Individual, (

i) take reasonable steps on behalf of the child necessary for the child to exercise any rights the child may have as a First Nation Individual, and (ii) inform the child of the child’s status as a First Nation Individual as soon as, in the opinion of that guardian, the child is capable of understanding the child’s status as a First Nation Individual. [ 108 ] I find that the Kinship Parents have met the 3-part test under s. 56(1) CYFEA . The evidence demonstrated the obvious love they have for and the bond they share with the Child.

Examples of this include the Kinship Parents’ enduring commitment to meeting his medical as well as emotional needs over the course of his life. Their evidence reflected the actions of committed parents working to meet the Child’s special needs, through their flexibility in changing schools when the first was not a right fit as well as personally driving the Child to school when he was experiencing difficulties with the bus. The evidence that the Child thinks of and refers to the Kinship Mother as “mom” is also indicative of their bond.

Additionally, the Kinship Father’s observations of the Child’s having the gift of compassion reflects their love and appreciation for who the Child is as a person. [ 109 ] In particular, I find that the Kinship Parents demonstrated they are able and willing to meet the needs of this Indigenous child. This is reflected in the evidence by their past actions as well as the statements they made regarding their commitments for the future with respect to ensuring the Child is engaged in his culture.

Examples of this include enrolling the Child in a cultural school with a Siksika language program that includes contact with an elder and engaging in the cultural practice of smudging. Also, they have ensured the Child is exposed to and engaging in his culture by attending cultural events such as a Powwow and the Siksika Stampede as well as declining to cut his hair. [ 110 ] Lastly, the Kinship Parents’ commitment to continuing to engage the Child in his culture was evidenced in their testimony as well as the cultural plan they filed which is discussed in detail below.

Overall, the Kinship Parents expressed a willingness to continue to work with Siksika Prevention and Interventions Services as well as the Siksika First Nation. Additionally, they expressed that they would continue to facilitate visits with the Child’s biological family. I found the Kinship Parents to be forthright and I accept their evidence as credible. Overall, I find it is in the best interest of the Child to grant the Private Guardianship application. (

b) Did the Kinship Parents provide a sufficient cultural plan? [ 111 ] The Kinship Parents had provided a cultural plan with their original application for private guardianship. This was amended by an updated cultural plan by the Kinship Parents provided on July 11, 2023. It was as follows: 1. We will have regular monthly scheduled visits with Siksika Elder, Hayden Melting Tallow, regarding the cultural, traditions and spirituality teachings of the Siksika Way of Knowing. Hayden is presently teaching at the University of Calgary, Siksika Blackfoot Traditions and Cultural to the students and to the faculty.

Hayden has agreed to be [the Child]’s Elder. He will meet at [the Child]’s home. Hayden was our Elder when [the Child] was an infant. Hayden met us, regularly, at our home, with other foster families. We will continue to build on [the Child]’s already vast knowledge of the Siksika Way of Knowing (heritage, language, cultural, spiritual, traditions as taught through numerous lessons/training on the Siksika Way of Knowing, history, culture, and spirituality for the Blackfoot nation). [The Child] will have connections to his roots (Blackfoot and Cree). 2. [The Child] will visit his grandmother and siblings as

schedule permits. 3. [The Child] will attend any cultural and community events like powwows, so the [the Child] can continue to increase his knowledge for the Siksika culture and traditions.

We will continue to seek cultural events in the city of Calgary and surrounding areas. 4. [The Child] will visit cultural places: Glenbow museum, Blackfoot Crossing Historical museum, Head Smashed in Buffalo Jump museum cultural center and to Writing on Stone historical park. 5. [The Child] will have a Male Siksika Elder to meet with [the Child] on a regular basis. (Hayden Melting Tallow). 6. [The Child] will continue to take any children’s Siksika Language classes that may be offered through the prevention intervention team Family Services at Siksika nation. [The Child] has the Blackfoot APP on his I-Pad. [The Child] attended the children’s Siksika Language Class May, 2023, and received his certificate. 7. [The Child] will be encouraged in his spiritual journey, through prayer and smudging. 8. [The Child] is proud of his heritage and his indigenous roots -Blackfoot/Cree.

He has long hair, and this is a part of his indigenous ‘identity”. While braiding [the Child]’s hair, we pray spiritual blessings on his mind, body, soul, and spirit. [The Child] already knows that his hair is a part of his indigenous identity. 9. We will encourage [The Child] to take classes in Indigenous culture and education. We plan on attending cultural events with [the Child].

[ 112 ] In SK , Justice Lloyd directed that the cultural connection plan be made an attachment to the Private Guardianship Order.

While acknowledging that the CYFEA did not provide a mechanism to enforce the plan, she stated at para 48 that including the plan in the order provides: ... value to memorializing the expression, both of the applicant and of the First Nation, of their prescription for ensuring that this child remains engaged with his Indigenous family, community, and culture. [ 113 ] Unfortunately, in this case, the Kinship Parents did not consult with the Nation or the Siksika Children’s Services about input on the cultural plan.

Sections 1.1 and s 53.1 of the CYFEA directs that Indigenous people should be involved in applications regarding Indigenous children as they provide the Court important perspective in furtherance of the requirements of preserving the child’s Indigenous identity, culture, heritage, spirituality, language, and traditions (see MM v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2021 ABPC 317 , Lloyd J.). [ 114 ] I find the Kinship Parents filed a sufficient Cultural Plan to demonstrate they are able and willing to meet the needs of this Indigenous child.

However, I provide further suggestions at the end of this decision with respect to a cultural plan for the Child. (

c) How does the CYFEA and the Federal Act interplay in private guardian applications and what is the purpose of the CYFEA and the Federal Act in guardianship applications? [ 115 ] Under it’s s 1.1 guiding principles, the CYFEA directs that the best interests, safety and well-being of children are paramount, while also recognizing, amongst other factors, that children benefit from lasting relationships with people with whom they have connections.

This includes family, friends, caregivers, and other significant individuals; from connections with their culture and cultural communities and opportunities to form those connections, and form permanent, formalized ties with people who care about them. Additionally, s 1.1(

d) of the CYFEA acknowledges the importance of involvement of Indigenous people in applications involving Indigenous children: (

h) Indigenous people should be involved with respect to the planning and provision of services to and decisions respecting Indigenous families and their children. [ 116 ] Under s 2(1) of the CYFEA , the Court is directed that it must make decisions in the best interest of the child. When determining the best interest of the child there is

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