Re TJ(F), 2023 ABCJ 252

In the Alberta Court of Justice Citation: Re TJ(F), 2023 ABCJ 252 Date: 20231127 Docket: CP903006120 Registry: Edmonton In the Matter of a Private Guardianship Application for J(F)T Between: K.S. and M.S. Applicants - and - Kasohkowew Child Wellness Society (KCWS) and Samson Cree First Nation (Samson) Respondents 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. Oral Decision of The Honourable Justice J.C. Lloyd Introduction [ 1 ] The Applicants, KS and MS asked to be appointed the private guardians of a 17-year-old child.

The Applicants are the foster parents of FT, known as JT, (hereafter referred to as “J”) and have been the child’s caregivers for most of the child’s life. J consents to the application. The Respondents, Kasohkowew Child Wellness Society (KCWS) and the Samson Cree First Nation (Samson) oppose the application. The application initially sought private guardianship for J’s older brother, DT. D turned 18 in May of 2023 and the

application related to him has been discontinued. The Issue [ 2 ] The issue is whether the Applicants are able and willing to provide for this child’s needs and whether granting private guardianship is in J’s best interests. The Position of the Parties [ 3 ] The Applicants say that they are able and willing to continue to provide good care to J as they have for most of the child’s life and say that private guardianship serves J’s best interests. [ 4 ] J is represented by counsel and consents to the Applicants’ application. [ 5 ] KCWS is a Designated First Nations Agency and J’s sole guardian.

They say that the Applicants are not good care givers, that their home is not safe, and that there is a risk that J will be exposed to family violence. KCWS also say that the Applicants are not qualified to be J’s private guardians because they are not Indigenous, have no deep knowledge and understanding of Indigenous culture or of Samson culture and have not taken adequate measures to engage the children in their care with Indigenous culture in the past and so cannot be expected to take adequate measures in the future. [ 6 ] Samson adopts the position of KCWS.

Legal Framework The CYFEA [ 7 ] Private Guardianship applications are governed by Division 5 of the CYFEA .

Section 56 sets out the test:

(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 interest 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. [ 8 ]

Section 56 must be applied in a manner consistent with other sections of the Act .

Section 1.1 sets out guiding principles: s. 1.1 This Act must be interpreted and administered in accordance with the following principles: (

a) the best interests, safety and well-being of children are paramount; (

b) the well-being of families and communities is crucial to the well-being of children; (

c) children benefit from (

i) Lasting relationships with people with whom they have connections, including family, friends, caregivers and other significant individuals, (ii) Connections with their culture and cultural communities and opportunities to form those connections, and (iii) Permanent, formalized ties with people who care about them; (

d) Indigenous people should be involved with respect to the planning and provision of services to and decisions respecting Indigenous families and their children. [ 9 ]

Section 2 says that persons who exercise authority under the Act must make decisions in “the best interests of the child and must consider the following as well as any other relevant matter.” The list includes the following directions: (

b) if the child is capable of forming an opinion, the child’s opinion should be taken into account; (

c) in the case of an Indigenous child, the importance of respecting, support and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions; (

d) the benefits to the child of lasting relationships with the people with whom the child is connected, including family, friends, caregivers and other significant individuals;

(

e) the benefits to the child of connections with the child’s culture and cultural communities and opportunities to form those connections; (

f) the child’s race, spiritual beliefs, colour, gender, gender identity, gender expressions, age, ancestry, place of origin, family status, sexual orientation and any disability the child may have; (

g) the importance of stability, permanence and continuity of care and relationships to the child’s safety and well-being; The Federal Act [ 10 ] Private guardianship applications are also governed by An Act respecting First Nations, Inuit and Métis children youth and families, SC 2019, c. 24 (the Federal Act ). Particularly relevant to private guardianship applications is

section 10 that defines the “Best Interests of Indigenous Child”: 10 (1)The best interest of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child . . .

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community of people to which he or she belongs and of preserving the child’s connections to his or her culture.

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including: a. The child’s cultural, linguistic, religious and spiritual upbringing and heritage; b. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability; c. The nature and strength of the child’s relationships with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life; d.

The importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group., community or people to which the child belongs; e. The child’s view and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; f. Any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs; g.

Any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and h. Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. [ 11 ] There are other sources of law that are relevant to private guardianship applications.

The Federal Act expressly endorses the following sources of law applicable to Indigenous child protection matters: the United Nations Declaration of the Rights of Indigenous Peoples , the International Convention on the Elimination of All Forms of Racial Discrimination , and the inherent rights of Indigenous peoples in Canada. In considering this application I am mindful of all of the relevant laws. Analysis [ 12 ] Division 5 of the CYFEA has some preliminary matters that must be satisfied before I can consider the merits of the private guardianship application.

The Act has requirements of notice and consent and the parties concede that these requirements have been met. There is also a requirement that a Home Assessment Report be filed with the application. The applicants filed a 2022 Assessment and there was some disagreement about whether this Report was adequate as it was prepared for a foster parent review and not a private guardianship application.

A further Home Assessment Report was prepared by KCWS and filed in the fall of 2023 and this dispute became moot as I find that the filing of this second report met the statutory requirement. [ 13 ] The Applicants also filed with their application a Cultural Connection Plan as required under the CYFEA . KCWS and Samson both say that the Cultural Connection Plan was inadequate to demonstrate that J would be adequately connected to Cree and Samson culture. On review of the document, it is clear that the content addresses the various requirements of the

section and I find that the statutory requirement is met. The substantive question of whether the Applicant’s plans for cultural connection are appropriate in the circumstances will be dealt with later. The

section 56 test [ 14 ]

Section 56 of the CYFEA says a private guardianship order may be granted 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. [ 15 ] J had been back in the Applicants’ care for several months prior to the trial and the parties concede that this third arm of the test has been met. Is the applicant able and willing to assume the responsibility of a guardian toward the child? [ 16 ] This arm of the test says that I must be satisfied that the applicant can meet the responsibilities of guardianship.

While these responsibilities are not expressly set out in the CYFEA , I note that section 21(5) of the Family Law Act, SA 2003 c. 4 .5, says that guardians have the responsibility to “ensure the child has the necessaries of life” and to “nurture the child’s physical, emotional and psychological development.” I find these directions helpful and am mindful that the analysis appropriate here must be done in a way that keeps J’s needs and circumstances as a central focus: am I satisfied that the Applicants can meet the needs of this child taking into account their specific needs and circumstances?

The Child [ 17 ] J is 17 years old, was placed in the Applicants’ home as a new-born and wants to stay there. J struggles with FASD, has somewhat low cognitive functioning, and experiences considerable social anxiety. J has identified as gender fluid and is currently exploring their gender identity. J is closely bonded to KS and MS. [ 18 ] J is Indigenous and a member of the Samson Cree First Nation. J is resistant to connection with their Indigenous culture right now and that they have been resistant to engaging with people connected to KCWS and to the Samson community.

There is some dispute about the cause of this resistance but there is no dispute that J’s resistance is real. Evidence of the Applicants [ 19 ] KS said that she and MS have been foster parents since 1998 and that they have received training and a specialized designation qualifying them to care for high needs children. The Applicants have fostered over 20 children and their designation as specialized foster parents is reviewed and has been approved and extended each year since 1998.

A home study report concluded in 2022 found the Applicants to be capable foster parents. [ 20 ] Witnesses called in support of the Applicants’ application, including foster care support workers, a family friend, and KS’s mother, said that the Applicants were capable and loving caregivers, and that the home was safe and appropriate. I also heard from witnesses about the strong relationships J has formed with the Applicants’ family members and friends.

I found these witnesses to be credible. [ 21 ] I heard evidence from the Applicants of an incident that happened in April of 2020 that led to the children D and J being removed from the home. MS described that he and D got into an argument, emotions got escalated, MS told D to go to his room, that D refused, MS grabbed D by the arm and forcibly dragged him to his room. The incident was loud and likely upsetting for J who was in the house at the time.

There were no injuries to either D or MS. [ 22 ] MS expressed regret at the trial and said that he took anger management programming after this incident, and that there have been no further incidents like this in the home. KS testified that D was a child with very high needs and who had very challenging behaviours. She said she had asked KCWS for respite and other help with D, but that help was not provided. A foster care caseworker testified at the trial and said that this incident was flagged as a concern when the Applicants’ file was reviewed.

This foster care caseworker confirmed that MS had taken appropriate steps to redress this incident and said further that in her experience the Applicants were always engaged, willing to learn, and willing to work with her constructively when problems arose. This witness said that in her view the Applicants were capable caregivers for J. I found this witness to be credible. [ 23 ] KS and MS both said that they support J’s connection to Indigenous culture. The Applicants are not Indigenous and said that they did not have a deep understanding of or deep engagement with Cree culture or with Samson culture.

KS said that she encouraged the children in the home, particularly in recent years, to connect with their culture by attending cultural events, encouraging the children to use on-line resources, ensuring there were book and artifacts in the home of an Indigenous nature.

Witnesses, including a long-time family friend who is a member of the Shushwap First Nation, said that KS and MS were respectful and supportive of Indigenous culture and that they took active steps to expose and to encourage J to connect with their Indigenous heritage and culture. [ 24 ] KS and MS both testified that they asked KCWS for support and direction to help them connect the children, including J, to Indigenous culture.

The foster care support workers who testified at trial said that they too had tried to secure cultural supports and connection from KCWS and confirmed that despite many inquiries and requests, KCWS did not offer supports to the Applicants. The foster care support workers also confirmed that there were annual reviews of plans for the care of the children conducted by KCWS and that these plans were reviewed with the Applicants and included cultural connection strategies, though they were quite vague. These plans were reviewed annually, and no concerns were raised by KCWS about the Applicants caregiving.

MS also testified that he and KS were very limited in their ability to engage in events and activities without KCWS approval. [ 25 ] The Applicants say that J’s resistance to Indigenous culture and their resistance to any connection with people associated with

KCWS or Samson started when J returned from having been removed from their home and was caused by the conduct of KCWS. J and D were removed from the Applicant home in April of 2020 by KCWS as a result of the incident between MS and D. The Applicants filed an appeal of the removal and two appeal panel decisions recommended that J be returned to them. J was not returned. The Applicants then filed a Judicial Review of KCWS’s decision and a court ordered visit between J and the Applicants in July of 2021. There had been no visits since the child was removed from the home.

After this first visit KCWS suspended visits again, notwithstanding the court order. That same month KCWS had their designation revoked and the Director of Children Services began a gradual transition of the children back to the Applicant home. The transition was complete by December of 2021. KCWS regained their designated status in November of 2022 and the Applicants commenced this private guardianship application in January of 2023. In February of 2023 KCWS again removed the children from the home.

Later that month another court order directed that the children be returned and J has been living in the Applicants’ home since then. [ 26 ] Psychologist, Roger Ogden, said that when his therapeutic relationship with J started in August of 2022, he observed that the child was resistant to engaging with Indigenous culture. J told him that they were angry with KCWS because they took them from the Applicants’ home. J said that KCWS told them that they would be returned soon and that they had lied to them and kept them from the Applicants for a very long time. Mr.

Ogden’s therapeutic relationship with J was abruptly terminated by KCWS in January of 2023 and then restarted by court order in March of 2023. He said that at this time, after the second removal from the home, J was even more resistant to KCWS and to engaging in Indigenous culture. [ 27 ] Mr. Ogden confirmed that J is currently exploring their gender identity and has chosen a preferred name. The psychologist said that it was important for J’s health and development that the child’s gender identity and their choices around relationships and activities be supported right now.

To disrespect or minimize J’s choices could harm the child, he said, and forcing the child to engage with people or with activities contrary to their wishes could cause further harm and could drive the child even further away from Indigenous culture and connection. I found Mr. Ogden to be credible and accept his observations.

The Evidence of KCWS [ 28 ] Witnesses for KCWS testified that the Applicants were not capable caregivers, that the home was not safe and appropriate, that there was a risk that J would experience violence in the home, and that the Applicants were not supportive of the child’s Indigeneity. [ 29 ] Ms. Chalifoux prepared a Home Assessment Report in the fall of 2023. The report was not entered as evidence in the trial. Counsel for the Applicants and counsel for the child objected to the report saying it contained hearsay and referred to documents that were not disclosed to them despite repeated requests.

KCWS withdrew the report at trial, and relied instead on Ms. Chalifoux’s testimony. [ 30 ] Ms. Chalifoux testified that the Applicant home was unsatisfactory. She said that there was a terrible smell in the home that was so intense and overpowering that it made her sick. She also said that there was a dangerous and aggressive dog that tried to attack her more than once, and that there were knives, tools and chemicals unsecured in the home that created a dangerous environment for J. [ 31 ] No other witness testified about a bad smell or dangerous dogs.

The Applicants, their friends and family members described the home as comfortable and safe. No one described noxious odors or dangerous dogs. I found those witnesses credible and I do not accept Ms. Chalifoux’s evidence on this point. Further, on cross-examination, Ms. Chalifoux clarified her evidence about danger in the home. She said that she saw a kitchen knife on the kitchen counter, household tools mostly in the basement and chemicals that were mostly cleaning products, again, mostly in the basement.

While these items might be dangerous to small children, J is a teenager and I find that these items did not cause the home to be unsafe for this child. [ 32 ] Ms. Chalifoux also said that an older child in the home did not seem to understand the significance that long hair held for Indigenous men and concluded that this former foster child had no knowledge of Indigenous culture. She said that another child “froze” when loud voices were heard coming from the home during an interview and concluded that this child was a victim of historic abuse.

She said that the youngest child had made responses to her questions about “good and bad touches” during an interview that caused her to contact the police as she thought this child was sexually abused. I find that this evidence is not credible. First, the conclusions about Indigenous cultural knowledge and historic abuse are speculation and are not evidence.

Second, by the time of this trial the police had closed their file and I find that the allegation of sexual abuse was not credible. [ 33 ] KCWS led no evidence to prove the details of the incident in April, 2020 that led to D and J being removed from the home. KCWS Executive Director, Ms. Peacock, tendered an investigation report prepared in relation to the incident and testified that the report formed the basis of her decision to remove both children from the home. The writer of that report was not called as a witness and there was no other evidence called by KCWS about this incident.

This lack of evidence is striking, particularly the removal of the children from the only home they knew was a deeply consequential decision that I would expect would be founded on credible evidence that would be entered at this trial. It was not. In the circumstances, I accept the evidence of MS about the April 2020 incident and note that there was no other incident of violence raised or proven by KCWS. I find this was an isolated incident and that MS took appropriate steps to redress his challenges. [ 34 ] Ms.

Peacock testified that she directed the children be removed a second time in February of 2023 because she had received an alarming report from the children’s doctor. The doctor was not called as a witness and no letter or medical record was tendered to prove these concerns. Again, the decision to remove the children is a significant and impactful step and I am surprised that there was no evidence tendered in respect of the information received.

I reject any suggestion that the Applicants failed to provide adequate medical or other care for the children in February of 2023. [ 35 ] The question of whether it was appropriate that J be removed from the home in 2020 and kept away from the Applicants for more than a year was not directly before me at this trial and neither was the question of whether it was appropriate to take J out of the home for a second time in February of 2023.

However, these decisions were said to be based on concerns that KCWS had about the Applicants’ abilities as caregivers and that gave rise at least in part to KCWS’s objection to this application. The lack of evidence is

disturbing. [ 36 ] It is undeniable that removing children and disrupting their longstanding connections to people and places is traumatic and is likely to cause harm and is to be done only in the most compelling circumstances. MS said that he and his wife filed the private guardianship application because the children had been removed and were not returned.

Perhaps this application and this trial could have been avoided if KCWS did not remove the children in the first place, and I say this particularly given the lack of evidence led by KCWS to support concerns about the Applicants’ caregiving abilities. [ 37 ] Ms. Peacock said that she believed that the Applicants were hostile to Indigenous culture. Her belief was not supported by any evidence, and I do not accept this allegation. Ms. Lightening-Montour, an employee of KCWS, said that she met J recently at a Samson cultural event and experienced the child being resistant and perhaps frightened of her.

She said that she thought this was because the child had been alienated from her culture by the Applicants. As I have mentioned, there is evidence that would support other explanations for J’s resistance and I do not accept Ms. Lightening-Montour’s conclusion. I heard evidence from the Applicants and their witnesses that the Applicants were supportive of Indigenous culture and encouraged the children to engage with Cree and Samson culture in various ways.

I accept this evidence and I find that the Applicants are not hostile to Indigenous culture. [ 38 ] Witnesses for KCWS said that the Applicants are not Indigenous, and do not know much about Cree and about Samson culture. KWCS say that this means that the Applicants cannot adequately meet this child’s need for Indigenous connection.

The Applicants agree that their knowledge was limited and say that they made considerable efforts to encourage and engage J with their Indigenous culture, said that their ability to act unilaterally was limited, said that KCWS reviewed and approved the care provided each year, that they asked for help from KCWS, that no help was provided, so that their efforts were frustrated, and that they remain willing to learn, to engage, and to connect with Indigenous culture.

Conclusion on the “Able and Willing” Test [ 39 ] Having considered all of the evidence carefully, I find that the Applicants are capable caregivers, that the home is safe and appropriate, and that J faces no risk of violence in the Applicant’s care. I find that the Applicants are able to provide for the physical needs of the child and that they will provide J with the necessities of life. [ 40 ] Turning to the question of J’s psychological and emotional needs, KCWS argue, and I agree, that for an Indigenous child connection to Indigenous culture is a central part of their emotional and psychological well-being.

Knowing and understanding who you are and where you come from are basic building blocks important to healthy development, and it is particularly significant for Indigenous children in Canada, given our Country’s history of colonialism and the many harms it has caused for Indigenous peoples in this Country.

While undeniably important, Indigenous connection is not the only element of a child’s emotional and psychological well- being and I must be mindful of all J’s needs and circumstances. [ 41 ] J is a child who is anxious, struggling with FASD and low cognitive functioning, is transgender and dealing with that complex reality, is bonded to the Applicants, wants to continue to live there, and is resistant right now to connecting with Indigenous culture.

Nurturing J’s emotional and psychological well-being means being sensitive to all of these needs and circumstances. [ 42 ] I am not certain why J is resistant to culture right now. Perhaps this resistance comes from the actions of KCWS in removing the child and perhaps the resistance comes from the fact that J is dealing with issues of gender identity right now so that their Indigenous identity has taken a back seat.

There may be other reasons, though I am satisfied that the child’s resistance was not caused by any misconduct by the Applicants. [ 43 ] Whatever the reason for J’s resistance, the psychologist has said that the child should not be forced to engage right now and says that this might be harmful for the child and might cause J to be even less likely to engage in culture in the future. The Applicants have both testified that they continue to be willing to support and love this child and to provide them with a stable home and continue relationships that are important to the child.

The Applicants have said that they will continue to support J as they deal with issues of gender identity. They have also said that they understand the importance of J’s Indigenous culture and that they will continue to encourage the child to connect while at the same time being sensitive to J’s needs and wishes. The Applicants’ approach seems to be one that is sensible and sensitive to J’s many needs. [ 44 ] I find that the Applicants are able and willing to meet J’s complex emotional and psychological needs. I find the Applicants have meet the threshold set by this first arm of the s.56 test.

Second arm of the test: Is it in the best interests of the child that private guardianship be granted to the Applicants? [ 45 ] The second arm of the test asks whether I am satisfied that it is in J’s best interests that guardianship be granted. The concept of best interest is defined in both the CYFEA and in the Federal Act . Both statutes require that various factors be considered. While the importance of different factors will vary depending on the circumstances, the sections both require that all factors MUST be considered. Clearly no single factor can be employed to the exclusion of the others.

Applicable factors of the CYFEA and the Federal Act [ 46 ] Of the factors enumerated in the CYFEA , I will consider the most relevant to the facts of this application.

[ 47 ]

Section 2(

b) of the CYFEA require that I consider the wishes and opinion of the child. Section 10(3) (

e) of the Federal Act lists a similar factor. J has expressed, through counsel, that they wish to continue to live in the Applicants’ home and wish that the private guardianship be granted. Ms. Peacock of KCWS said that she was unsure that the child had the capacity to hold and to express an opinion about where they should live or who they should live with. I did hear evidence that J has anxiety and might have low cognitive functioning, but I did not hear any evidence that the child lacked capacity requisite to have an opinion about these types of matters and to have that opinion respected.

J’s lawyer did not flag any concerns about the child’s capacity when expressing the child’s wishes and opinions during the trial. I find that J has capacity adequate to have their wishes and opinion taken into consideration. I am also concerned that Ms. Peacock and Ms. Lightening-Montour seem to discredit J’s views and opinions about their name, their pronouns, and the kinds of programs and activities they should be involved in right now.

The letter and the spirit of both the CYFEA and the Federal Act direct that when dealing with children, we respect their dignity and their opinions about all matters central to their well-being. [ 48 ]

Section 2(

d) of the CYFEA requires that I consider the value of lasting relationships with the people with whom the child is connected, including family, friends, caregivers and other significant individuals. The Federal Act in s.10(3) (

c) has a similar provision. J has her most lasting relationship with KS and MS, who have acted as her parents for much of her life. J is also closely connected with the other children and adults in the Applicants’ home, with family friends, and with Ms. Crozier, KS’s mother, who has a special relationship with J. I did not hear evidence of any significant connections the child established while in the care of KCWS from 2020 to 2021, though I hope the child was able to find some positive relationships during her time in KCWS’s care. [ 49 ]

Section 2(

f) of the CYFEA requires that I consider J’s gender identity. The Federal Act does not include this expressly as a factor to be considered, though s.21(3) directs that the Act is subject to the Canadian Human Rights Act , and that Act includes gender identity as a prohibited ground of discrimination. The Applicants testified that they support J’s gender identity as it transitions.

I am concerned about the resistance that witnesses connected to KCWS had to using J’s preferred name and worry that J might not be respected or accommodated in a gender appropriate way at KCWS facilities. [ 50 ] Further, while the Samson elder, Mr. Lightening, said that persons are welcomed in his community as they are and that he believed that this child would be welcomed as a trans person, he demonstrated a lack of understanding and sensitivity about trans matters and dismissed the term “two spirit” as an appropriate descriptor.

It is quite widely understood in the descriptor LGBTQ2, a term used widely to describe the queer community around the world, the “2” refers to “two spirit” and describes Indigenous queer folk. This lack of basic understanding creates a concern that J’s gender identity might not be understood and respected in the Samson community. [ 51 ]

Section 2(

g) of the CYFEA requires that I consider the factor of stability, permanence and continuity of care and relationships. J has lived with the Applicants for their entire life, except for the time she was taken from the home by KCWS from 2020 to 2021 and in 2023. I heard evidence and find that J has developed close relationships with the Applicants, with the other foster children in the home, with family friends of the Applicants and extended family members. [ 52 ] The CYFEA also identifies in s.2(

c) the importance of respecting, supporting, and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions.

The Federal Act , in section 10(3) says that the best interest of an Indigenous child must include a consideration of “the importance of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community, or people to which the child belongs.” KCWS and Samson argue that J’s best interests can be served best by connecting them to the Samson culture specifically and say that this connection can best be created and taught by members of the Samson First Nation.

I accept this is likely true. [ 53 ] There are, however, some important contextual factors at play here. First, J will be an adult in just a few months. There was a tendency at the trial for the parties to point fingers of blame at each other. Perhaps KCWS should have exercised their powers of guardianship more diligently to ensure J had a better understanding of their culture. Perhaps the Applicants should have taken more proactive steps themselves to engage J more directly in Samson culture. There is lots of blame to go around here. At this point though, this is of limited relevance.

What is done has been done, there are only a few months left in this child’s minority, the child is resistant right now to engaging in their culture, J’s psychologist has cautioned that forcing the child to engage right now might do more harm than good, and the Applicants understand the importance of Indigenous cultural connection and are willing to encourage J to reach out when the time is right.

In all of the circumstances I find that the way to secure for this child the best likelihood that they will engage with their cultural identity and connections, is to grant private guardianship to the Applicants. [ 54 ] I take comfort in the testimony of Mr. Lightening. He said that whether children have grown up in the Samson community or not, they are always welcome to come home. J, he says, will be welcomed if they decide to return, whether sooner or later. Mr. Lightening also said that the foster parents of Samson children become themselves members of the Samson community and are welcome always. Mr.

Lightening’s kindness and words of welcome give me hope that J will be able to connect with Samson when they are able and willing to do so. [ 55 ] Taking into account all of the factors I find that it is in J’s best interests that the private guardianship order be granted to KS and MS. Conclusion [ 56 ] I grant private guardianship of the child to the Applicants. [ 57 ] I am deeply aware that J is an Indigenous child and that the Applicants are not Indigenous. Applications for private guardianship have a deep echo through Canadian history.

The dark history in this country of colonialism has created generations of deep pain and sorrow. Our history has seen devastation of Indigenous communities, seen the destruction of once vibrant and complex cultures. After years and years of cruelty, discrimination and injustice, so many of our Indigenous brothers and sisters live lives disconnected from their ancestry and culture. We must address these historic wrongs and recent legislative initiatives reflect a commitment to that redress. [ 58 ] These larger historic interests cannot ever blind us to the circumstances of the child that is before the court.

Today that child

is J and it is clear the application should be granted. [ 59 ] This matter should have never come to trial. I am very concerned that KCWS led no credible evidence to support its objections, and that at the end of the trial KCWS was left only with a position that is deaf to the needs and circumstances of this child. [ 60 ] While costs are not often ordered in Child Protection cases, this court has the jurisdiction to award costs in child protection matters in appropriate circumstances and a costs order is appropriate here.

Should the parties be unable to agree about costs they can appear before me within 30 days to address the issue. Heard on the 12 th , 13 th , 16 th , 17 th , 18 th , 20 th and 23 rd days of October, 2023. Oral decision rendered on November 7, 2023. Dated at the City of Edmonton, Alberta this 27 th day of November, 2023. J.C. Lloyd A Justice of the Alberta Court of Justice Appearances: Sai Ravikumar for the Applicants Cindy Turner for the Child J(F)T Simon Fisch for Samson First Nation Scott Robertson and Jim Ratis For the Director