SASKATOON TRIBAL COUNCIL HEALTH v. FAMILY SERVICES INC., 2023 SKKB 110

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 110 Date: 2023 05 26 Docket: FSM-SA-00236-2022 Judicial Centre: Saskatoon IN THE MATTER OF A HEARING UNDER The Child and Family Services Act , SS 1989-90, c C-7.2 AND IN THE MATTER OF THE CHILDREN: K.J.S., born [redacted], 2017 B.N.J.S., born [redacted], 2020 I.H.E.S., born [redacted], 2021 BETWEEN: SASKATOON TRIBAL COUNCIL HEALTH AND FAMILY SERVICES INC. APPLICANT - AND – GOVERNMENT OF SASKATCHEWAN, MINISTRY OF SOCIAL SERVICES AND CONSTITUTIONAL LAW BRANCH RESPONDENTS Counsel: Sheri L.

Woods for the applicant, Saskatoon Tribal Council Health and Family Services Inc. Jocelyn R. Crooks for the respondent, Ministry of Social Services Macrina K. Badger for the respondent, Constitutional Law Branch ___________________________________________________________________________

JUDGMENT SCHATZ J. May 26, 2023 ___________________________________________________________________________ Introduction [ 1 ] This matter concerns an application by the Saskatoon Tribal Council Health & Family Services Inc. [STC] for the short-term wardship of three children, K.J.S., age 6, B.N.J.S., age 3, and I.H.E.S., age 2, who were apprehended on or about November 25, 2022 by STC. STC’s application was commenced pursuant to s. 37(1) (

c) of The Child and Family Services Act , SS 1989- 90, C-7.2 [ CFSA ]. STC has specific delegated authority from the Ministry of Social Services [Ministry] pursuant to a Tripartite Agreement between the Ministry, the Saskatoon Tribal Council, and STC, effective April 1, 2019, amended effective October 1, 2022 [Delegation Agreement]. [ 2 ] On January 17, 2023, STC submitted an order regarding temporary custody of the children to the Court for consideration.

Upon receiving the order, the Court raised the concern that the proposed order requested that the children be placed in the custody of STC rather than in the custody of the Ministry. The Court questioned whether, given the wording of s. 37(1)(

c) of the CFSA and the decision of the Court in L.L.M.(Re.), 2017 SKQB 305 , it had the jurisdiction to make the requested order. Counsel for STC filed with the Court An Act respecting First Nations, Inuit and M étis children, youth and families , SC 2019, c 24 [ FNIM ], arguing that the legislation supported its position that jurisdiction existed to grant the requested order. The Court requested at that time that STC and the Ministry provide their positions with respect to the jurisdictional issue. [ 3 ] The matter returned to court on April 11, 2023.

The relief requested by STC included a request for a finding that the responsibility for custody of the children had been delegated to STC by the Delegation Agreement. Alternatively, STC argued that even if this was not the case, the FNIM gave to STC inherent jurisdiction in relation to child and family services, and therefore gave to them the right to custody of the children in question. In effect, STC argued that if they did not have delegated authority under s. 37 of the CFSA ¸ the CFSA did not apply to this situation and the FNIM granted to them inherent jurisdiction over custody of the children.

As a third alternative, they argued that if there was any gap in jurisdiction, the Court’s parens patriae jurisdiction permitted the Court to reach the conclusion that the best interests of the children required them to be in the custody of STC. [ 4 ] As the argument raised by STC raised the issue of whether the CFSA was inapplicable or inoperable, the Court ordered that The Constitutional Questions Act, 2012 , SS 2012, c C-29.01 [ CQA ] applied and that STC was required to provide notice to the Attorney General of Canada and the Attorney General of Saskatchewan if it wished this relief to be granted.

They were ordered to provide such notice in accordance with the CQA and the matter was adjourned to May 23, 2023. By agreement of STC and the Ministry, and at their request, the Court ordered that the order requested, if ultimately granted, would be retroactive to January 17, 2023. [ 5 ] The matter returned to court on May 23, 2023. At that time notices of the application had been provided to the Attorney General of Canada and the Attorney General of Saskatchewan. The Attorney General of Canada took no position on the matter but the Attorney General of Saskatchewan, Constitutional Law Branch [Sask.

A.G.] and the Ministry took the position that the Court did not have jurisdiction to grant the order requested. It argued that STC had been delegated only those authorities specifically outlined in the Delegation Agreement. This did not include the power to take custody of children under s. 37 because the Court was required under s. 37 to either place children with parents, with persons of sufficient interest, or with the Ministry. The Court’s jurisdiction under s. 37 was therefore limited.

Section 37 custody, they argued, differed from s. 7 or s. 8 custody in that it was not necessarily temporary in nature, and the Court’s jurisdiction under s. 37 was limited. The powers granted to STC under the Delegation Agreement did not include the power to take children into custody under s. 37. As such, the Sask. A.G. and the Ministry argued that the Court did not have the jurisdiction under s. 37 of the CFSA to grant the order requested.

It also argued that while the FNIM states that an Indigenous governing body may make laws in relation to child and family services, STC was not acting pursuant to any law made pursuant to an asserted right of self-government. As such, the Court did not have jurisdiction to grant the order requested. They also argued that the Delegation Agreement contemplated federal legislation regarding self-determination and renegotiation of the Delegation Agreement if that would occur.

With respect to inherent jurisdiction beyond the FNIM , they argued that there is no gap in jurisdiction allowing the Court to exercise its parens patriae jurisdiction to grant the order requested in order to reach an outcome that serves the best interests of the children. [ 6 ] The Court in this case is asked to find that it has jurisdiction to grant the s. 37(1)(

c) order, putting the children in question in the custody of STC, on the basis of one of the three arguments advanced by STC, and grant the order requested. Issue [ 7 ] The issue to be determined is as follows: Does the Court have jurisdiction to grant an order pursuant to s. 37(1) of the CFSA which names STC as the party to whom custody of the children is granted?

Background and Position of the Parties [ 8 ] Saskatoon Tribal Council commenced an application for an order pursuant to s. 37(1) of the CFSA claiming it was acting on delegated authority from the Ministry pursuant to a Delegation Agreement effective April 1, 2019 and amended effective October 1, 2022. [ 9 ] On January 17, 2023, STC submitted an order to the Court for consideration. The order provided that the children in question would be placed in the custody of STC rather than in the custody of the Ministry.

A jurisdictional issue arose in that the Court was not convinced it had jurisdiction to grant the order and requested STC and the Ministry to provide positions in this regard.

[ 10 ] Saskatoon Tribal Council in this matter argued it had the power to take custody of the children pursuant to the Delegation Agreement. Alternatively, it argued that the FNIM grants them inherent jurisdiction to assume custody of the children in this case. As a third alternative, STC argued that the Court’s parens patriae jurisdiction permits the Court to reach the desired conclusion if there is any gap in jurisdiction. [ 11 ] The Ministry and the Sask. A.G. argued that STC has been delegated only those authorities specifically outlined in the Delegation Agreement.

The powers granted to STC under the Delegation Agreement do not include the power to take children into custody under s. 37. As such, the Ministry argued the Court does not have the jurisdiction under s. 37 of the CFSA to grant the order requested. The Court’s jurisdiction to order custody under s. 37 is limited by the

section and does not include granting an order in favour of STC. Analysis [ 12 ] Section 37(1) of the CFSA provides as follows: Orders re child in need of protection 37

(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months. [ 13 ] Section 52(1) of the CFSA provides as follows: Minister’s responsibilities for children in care 52

(1) The minister has all the rights and responsibilities of a parent, if a child: (

a) has been apprehended and has not been returned to a person who has a right to custody of the child; or (

b) is in the care and custody of the minister pursuant to an order made pursuant to clause 37(1)(

c) or subsection 37(3), except with respect to adoption proceedings. [ 14 ]

Section 61of the CFSA provides as follows: Aboriginal child welfare agreements 61

(1) The minister may, having regard to the aspirations of Aboriginal people to provide services to their communities, enter into an agreement with a band or any other legal entity in accordance with the regulations: (

a) for the provision of services or the administration of all or any part of this Act by the band or legal entity as an agency; or (

b) for the exercise by the agency of those powers of the minister pursuant to this Act to the extent to which those powers are specified in the agreement.

(2) An agency that enters into an agreement pursuant to subsection (1) is responsible for the exercise of the powers of the minister to the extent to which those powers are specified in the agreement. [ 15 ] Sections 4 , 18 and 20 of the FNIM provide as follows: Minimum standards 4 For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act. … Affirmation 18

(1) The inherent right of self-government recognized and affirmed by

section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority. … Notice 20

(1) If an Indigenous group, community or people intends to exercise its legislative authority in relation to child and family services, an Indigenous governing body acting on behalf of that Indigenous group, community or people may give notice of that intention to the Minister and the government of each province in which the Indigenous group, community or people is located.

[ 16 ] The L.L.M. (Re) decision is very similar to the case before the Court. In L.L.M. (Re.) , Touchwood Child and Family Services Inc. sought to have the child placed in the care of the agency, rather than the Ministry. The Court reviewed the delegation agreement, which included language similar to the Delegation Agreement at issue in this case, and confirmed that the agency was not a legal entity to which custody of the children could be ordered or directed.

At paragraphs 20 to 25 the Court stated as follows: [20] The written argument presented by the Minister in this case raises a question related to the impact, if any, that s. 52 of the CFSA would have on the operation of a s. 61 agreement and this Agreement, in particular. As I understand this submission, the Minister contends that her status as a parent for apprehended children and children otherwise in her custody, is essentially indefeasible, and that a s. 61 agreement cannot impact that status, irrespective of its wording.

Counsel for the Minister argued that, had the legislature intended otherwise, more specific and express wording would be required. [21] This argument begs a few interesting questions. Where the Minister takes on the rights and responsibilities as a parent, under s. 52, would it be more appropriate to describe such rights and responsibilities as “powers” conferred upon the Minister under the CFSA ?

If so, does s. 61 permit the Minister, if so inclined, to delegate those powers to a band or legal entity under the terms of a s. 61 agreement? [22] Although I am satisfied that I do not have to answer either of these questions in the particular circumstances of this case, I am inclined to the view that the answer to the first question is no. As I interpret s. 52 of the CFSA , the Minister’s status as a statutory parent does not fall within either of the delegable functions set out in s. 61 .

Viewed in context, I think that s. 52 vests the Minister with parental rights and responsibilities in a way that is designed to avoid ex curia assertions of parenthood from other parties. As such, I agree with the Minister’s position in this respect. [23] Despite my obiter comments on the possible interaction between s. 52 and a s. 61 agreement, I am satisfied that, in the specific circumstances of this case, the wording of the Agreement does not delegate to TCFS any power or authority to assume custody of a child in need of protection. As I review the Agreement, particularly

Part 3 and

Part 4, it is clear that the Minister did not delegate any specified power or authority to TCFS that would permit it to assume custody or parental control over any child. Accordingly, the court cannot issue the proposed consent order. In its place, the order can issue, but only with custody given to the Minister. [24] I recognize that this ruling leads to a somewhat awkward result in that custody of the three children is given to the Minister despite her having no direct or active role in the circumstances leading to the interim order. Under the circumstances, this awkwardness is unavoidable.

That said, the ruling does not preclude consultation and cooperation between TCFS and the Minister regarding the placement of the children during the currency of the interim protection order, or any additional orders that may follow thereafter.

CONCLUSION [25] In the result, the order shall issue in the form of the draft consent order filed, with the following changes: • In paragraph 1, the words “placed in the custody of the Minister of Social Services” shall be substituted in place of the words “placed in the custody of Touchwood Child and Family Services Inc. (herein after “the Agency”)”. • In the sub-paragraphs within paragraph 2, the words “Touchwood Child and Family Services Inc.” shall be substituted for the words “the Agency”. [ 17 ] Given the Court’s ruling as cited above, I find that STC may exercise the delegation powers which have been delegated to it by the Ministry under its existing Delegation Agreement, but only those powers.

The delegation powers granted in this case do not include the ability to take custody of the children under s. 37. The Court’s jurisdiction under s. 37 is limited to placement of children pursuant to the provision, and s. 37 powers involving custody cannot be delegated. Saskatoon Tribal Council’s argument that they have the power to take custody of the children pursuant to s. 37 under a delegated power under the CFSA cannot therefore succeed. [ 18 ] Saskatoon Tribal Council argues, however, in the alternative, that the FNIM grants to it the inherent jurisdiction to assume custody of the children in this case.

Section 4 of the FNIM states that nothing in the legislation affects the application of a provision of provincial legislation to the extent that it is not inconsistent with the FNIM .

In the decision, Mi’kmaw Family and Children’s Services of Nova Scotia v R.D. , 2021 NSSC 66 , the Supreme Court of Nova Scotia stated that the FNIM “is not stand-alone legislation and it does not replace the CFSA ”, Nova Scotia’s provincial child protection statute. [ 19 ] In Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and M étis children, youth and families , 2022 QCCA 185 , the Court of Appeal of Quebec held that the FNIM is not ultra vires the jurisdiction of the Parliament of Canada under the Constitution of Canada except for s. 21 and ss. 22(3) which aim to render the doctrine of federal paramountcy applicable to laws made by Indigenous governing bodies.

The Court of Appeal of Quebec held that in doing so, the provision alters the fundamental architecture of the Constitution and as were found to be ultra vires . The issue of the paramountcy of laws made by Indigenous governing bodies has been appealed to the Supreme Court of Canada, however the issue has yet to be determined by the Supreme Court. [ 20 ] In addition, while the FNIM states that an Indigenous governing body may make laws in relation to child and family services, STC is not acting pursuant to any law made pursuant to an asserted right of self-government.

Section 20 of the FNIM states that if an Indigenous group intends to exercise its legislative authority in relation to child and family services, it must give notice of that intention to the Ministry and the government of each province in which they are located. The Indigenous group may also request that the Ministry and the government of each province enter into a coordination agreement in relation to the exercise of their legislative authority. There is no evidence to suggest that STC is acting pursuant to any legislative authority pursuant to the FNIM .

Their argument that the FNIM grants them inherent jurisdiction over custody of the children in question, in the absence of any legislative authority as set out in the FNIM , cannot therefore succeed. [ 21 ] Saskatoon Tribal Council’s argument that the doctrine of paramountcy applies to make the CFSA inoperable does not apply as the CFSA does not conflict with the FNIM .

[ 22 ] With respect to STC’s third alternative argument, that if there is a gap in jurisdiction the Court may exercise its parens patriae jurisdiction to permit the Court to reach an outcome that serves the best interests of the children must also fail. The Court’s jurisdiction in this case is clear. Absent STC’s exercise of legislative authority as outlined in the FNIM , the Court’s jurisdiction in this case is derived from s. 37(1) and s. 61of the CFSA . There has been no delegation of the power to take custody of the children in this case by virtue of the Delegation Agreement in place.

The Ministry’s status as a statutory parent does not fall within the delegable function set out in s. 61 of the CFSA . As such, the Court lacks jurisdiction to grant the order requested. No gap in jurisdiction, however, exists. Conclusion [ 23 ] Saskatoon Tribal Council’s application requesting the Court to make an order finding the children to be in need of protection and placing them in the temporary custody of STC is denied. ______________________________J. L.A. SCHATZ