M.G. APPLICANT - v. -, 2023 SKKB 59

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 59 Date: 2023 03 10 Docket: FLD-SA-00047-2023 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: M.G. APPLICANT - and - MINISTRY OF SOCIAL SERVICES and SASKATCHEWAN CORONER’S OFFICE RESPONDENTS PUBLICATION RESTRICTION: The publication of these reasons is restricted such that any information that could identify the parties herein shall not be published in any document or broadcast or transmitted in any way. Counsel: Kimberly A. Stonechild for the applicant Charita N.

Ohashi for the Saskatchewan Coroner’s Office ___________________________________________________________________________ FIAT BARDAI J. March 10, 2023 ___________________________________________________________________________ Introduction [ 1 ] R.S.G., born April 17, 2007 passed away on February 23, 2023 when the snow fort he was in collapsed, suffocating him to death.

[ 2 ] R.S.G. was pre-deceased by his mother, J., who passed away on October 12, 2017 and his father, R.G.S., who died April 20, 2019. Before his biological parents passing, R.S.G. was placed in the “indefinite custody” of L.B. L.B. was appointed as a person of sufficient interest [PSI] pursuant to section 37(1) (

b) of The Child and Family Services Act , SS 1989-90, c C-7.2 [ Family Services Act ], in accordance with the Order of Wilkinson J. dated May 18, 2010 [Wilkinson Order]. R.S.G. was a member of the James Smith Cree Nation. L.B. is not a member of the First Nation but cared for R.S.G. for most of R.S.G.’s life. [ 3 ] Although R.S.G. was in the custody of L.B., he nevertheless had a strong relationship with his biological father, R.G.S., until his father passed away. L.B. took R.S.G. to meet his dad when he was 4 years old and even invited R.S.G.’s dad to stay in her home for two months.

R.S.G. clearly cared for his dad deeply and was heartbroken when his father passed. L.B. describes sleeping with and comforting R.S.G. on the night his father was buried. R.S.G.’s father’s final resting place is on the James Smith Cree Nation. [ 4 ] After his biological parents’ death, R.S.G. continued to develop relationships with his biological grandparents.

For example, J.’s mother, A.L. would send gifts for holidays and birthdays and would treat R.S.G. and his brother, T.G., to pizza. [ 5 ] This matter comes before the Court today as a result of an application brought by R.S.G.’s paternal grandmother, M.G., a member of the James Smith Cree Nation. M.G. is asking that R.S.G. have a funeral service at the community centre on the James Smith Cree Nation with traditional prayers, songs, ceremonies and food, with a three-day wake to be held prior to the funeral to share stories and honour R.S.G.’s journey back to the creator.

Chief, Wally Burns of the James Smith Cree Nation who attended the hearing, together with many members of the First Nation, indicated that L.B. and T.G., although not members of the First Nation, would be invited to the ceremonies, would be welcome to participate in the service and could visit R.S.G.’s grave anytime they wanted without restriction. [ 6 ] It is evident that M.G. played an important role in R.S.G.’s life. M.G. taught her grandson his Nehiyaw Cree culture, heritage and language.

According to M.G.’s affidavit, when R.S.G. was initially placed with L.B., the Ministry of Social Services [Ministry] did not contact her to explore a healthy family placement. [ 7 ] M.G.’s application is supported by A.L., who appeared at the hearing by phone from Ontario. A.L. spoke of difficulties in recent months contacting her grandson and how the Ministry never involved her and was unresponsive to her calls and questions. [ 8 ] Of course, no parent should ever have to bury their child. M.G. and A.L. have each had to bury a child. Now they will also each have to bury their grandchild.

I cannot imagine the depths of the sorrow they must feel. These families have suffered more tragedy than any family should have to suffer. [ 9 ] L.B. was short served with this application on March 3 rd , 2023 and, understandably, did not have an opportunity to file a responding affidavit. That said, she provided a written statement which counsel for M.G. agreed could be treated as evidence for the purposes of the hearing. The rules of evidence were relaxed for the purposes of this hearing, given the need for a prompt decision so that R.S.G. can be taken to a final resting place.

L.B. wants R.S.G.’s final resting place to be near her and T.G. [ 10 ] The Coroner’s Service has filed a letter indicating that it takes no position on the application but simply wants to know to whom R.S.G.’s body can be released. [ 11 ] The Ministry likewise takes no position.

The Court was frankly disappointed that the Ministry did not appear to provide its perspective on these issues as they concern the determination of the rights of a PSI to whom an indefinite custodial order has been granted. [ 12 ] This case presents an almost impossible choice, choosing between the wishes of the woman who raised R.S.G. for virtually his entire life and the wishes of R.S.G.’s biological grandmothers, who, according to the evidence, were not consulted by the Ministry when R.S.G. was initially placed in L.B.’s care but nevertheless built a strong relationship with their grandson.

As difficult a choice as this is, it is one that must be made and must be made urgently so that funeral services can take place. [ 13 ] Thirteen years ago, when the Wilkinson Order was made, issues of cultural alienation, concepts of truth and reconciliation and the need to foster, further and protect the cultural identity of Canada’s First Nations Peoples, including First Nations children, were not at the forefront of our consciousness.

Today, we understand better the need to explore and encourage family placement when dealing with children who are apprehended, placements which will encourage connections to their cultures. Of course, to the extent there were mistakes made in not exploring family placement for R.S.G. in 2010, that is not L.B.’s fault. To L.B., R.S.G. was her son. L.B. describes R.S.G. as a boy who “… was loved by many and left an everlasting mark on many hearts. He was the light of our lives especially his little brother T.G. …” [ 14 ] To L.B., R.S.G. may not have been blood but he was her son just the same.

To his grandmothers, it mattered not where R.S.G. lived, he was still and will always be their grandchild. To the members of the James Smith Cree Nation, R.S.G. may not have lived among them but he was a member of the First Nation and their community just the same. No piece of paper, Court Order, decision of mine or legislation changes could change the important role each of these groups played in R.S.G.’s life or the love he felt for L.B., his grandmothers, his brother T.G., his community or his heritage. [ 15 ] The packed courtroom is evidence of R.S.G.’s impact on those close to him and his extended community.

He was a child who was clearly loved by many. He will be missed and mourned by his Indigenous and non-Indigenous families alike. [ 16 ] This case evokes some very strong emotions about our past and how First Nations’ children have been placed and treated historically. These are difficult issues that will need to be faced if we are to achieve true reconciliation. However, those are not issues before me today. The application before me does not engage these questions. The only question before me concerns the

interpretation of

section 91 of The Funeral and Cremation Services Act , SS 1999, c F-23.3 [ Funeral Act ], and whether M.G. or L.B. is entitled to have R.S.G.’s body released to them.

Section 91 of the Funeral Act provides: 91

(1) Subject to subsections (2) and (3), the person deemed to be the authorized decision-maker with the right to control the disposition of human remains is the person first described in the following clauses who has the capacity to make the decision: (

a) the executor named in the will of the deceased; (

b) the spouse of the deceased or a person with whom the deceased cohabited as a spouse in a relationship of some permanence; (

c) an adult child of the deceased; (

d) a parent or legal custodian of the deceased; (

e) an adult brother or sister of the deceased; (

f) a grandparent of the deceased; (

g) an adult grandchild of the deceased; (

h) an adult uncle or aunt of the deceased; (

i) an adult nephew or niece of the deceased; (

j) an adult next of kin of the deceased determined on the basis provided by sections 11 and 12 of The Intestate Succession Act, 2019 ; (

k) another adult person having some relationship with the deceased not based on a family relationship.

(2) In determining who is an authorized decision-maker pursuant to subsection (1): (

a) persons are to be chosen in the order mentioned in subsection (1); and (

b) the elder or eldest of the persons in the same category are to be chosen in preference to younger persons in that category.

(3) For the purposes of subsection (1): (

a) the relationships listed in clauses (1)(

c) to (

j) include adoptive relationships; and (

b) a person mentioned in clause (1)(

k) may not provide written authorization for the cremation of human remains.

(4) If the person who, pursuant to this section, is deemed to be the authorized decision-maker with the right to control the disposition of human remains is not available or is unwilling to give instructions, the next qualified person is deemed to be the authorized decision- maker. … [ 17 ] As can be seen, the question is whether a PSI granted indefinite custody is a parent or legal custodian of the deceased within the meaning of the Funeral Act . If they are, L.B. would have priority to the control of R.S.G.’s body. If not, M.G. and A.L. would have the right to control how R.S.G.’s body is dealt with.

Unfortunately, the Funeral Act does not define the term “parent” or “legal custodian”. [ 18 ] L.B. was appointed as a PSI pursuant to the Family Services Act . She was granted “indefinite custody” pursuant to section 37(1)(

b) of the legislation. The Wilkinson Order provides in part: IT IS FURTHER ORDERED AND ADJUDGED THAT [L.B.] is hereby designated as person of sufficient interest for [R.S.G.] pursuant to Section 23(1) (

a) of The Child and Family Services Act . IT IS FURTHER ORDERED AND ADJUDGED THAT [R.S.G.] is hereby placed indefinitely in the custody of L.B. pursuant to Section 37(1) (

b) of The Child and Family Services Act … [ 19 ] The Family Services Act defines “Person having a sufficient interest” in section 2(1)(

o) as: 2(1) In this Act: … (o) “ person having a sufficient interest ” means a person designated by the court to be a person having a sufficient interest in a child pursuant to

section . … [ 20 ] Section 2(1)(

n) of the Family Services Act defines “parent”: … (n) “parent” means, except in

Part V:

(

i) the mother of a child; (ii) the father of a child; (iii) a person to whom custody of a child has been granted by a court of competent jurisdiction or by an instrument or agreement of custody; (iv) a person with whom a child resides and who stands in the place of a parent to the child; but does not include the minister or a person providing out-of-home care services on behalf of the minister; … [ 21 ] Section 37(1)(

b) of the Family Services Act provides: 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: … (

b) be placed in the custody of a person having a sufficient interest in the child… [ 22 ] The Family Services Act recognizes that circumstances surrounding a child can change and so,

section 39 of the legislation allows parties to apply to vary an order made under

section 37 where there has been a change in circumstances and it is in the best interests of the child to vary. I have no evidence of any variation application having been brought while R.S.G. was alive to vary the Wilkinson Order.

I do not make this observation to chastise or be critical of anyone but rather, to make sure that those who read this decision understand that when it comes to children, circumstances can change, and so, where warranted, existing orders can and are varied based on the best interests of the child. [ 23 ] Counsel for M.G. argues that the appointment of a PSI is really a contractual relationship and not a custodial one. Essentially, it is a relationship that comes to an end upon R.S.G.’s death. That said, she was unable to point to any case directly on point. I do not accept counsel’s contention.

L.B. was not simply a PSI, she was a PSI to whom indefinite custody of R.S.G. was granted. She is the one who attended to his day-to-day needs for 13 of his 15 years. [ 24 ] In A.C. v C.B., 2018 SKCA 19 at para 9 , 7 RFL (8th) 274, the Court offered some guidance as to the implications of being designated a person of sufficient interest: [9] In our view, the designation of someone as being a person of sufficient interest under s. 23(1) (

c) of the Act can confer something more than party status only. Clearly, such an order results in the persons so designated being parties to the action, but sufficient interest status can have legal and practical implications. For example, under s. 32, a person of sufficient interest can be assessed, presumably with a view to having the child placed in the care of the person, and this would be done with a view to maintaining and establishing a longer term relationship.

Similarly under s. 35 , “[w]here the court adjourns a protection hearing pursuant to subsection 34(1) , the court may make an interim order that the child … remain with, or be placed in the care of, a person having a sufficient interest in the child”.

Finally, under s. 37(1) , “if the court determines that a child is in need of protection, the court shall make an order”: one of the orders that the court may make would be to place the child “in the custody of a person having a sufficient interest in the child” ( s. 37(1) (b)). [ 25 ] What is clear from the decision is that the designation of someone as a “person of sufficient interest” under the Family Services Act can have practical and legal implications. Those practical and legal implications change once a person is granted custody pursuant to section 37(1)(b). At that point, they are not just a PSI.

They are a PSI charged with the custodial responsibility for the child. This adds another basket of rights and more importantly, responsibilities. It makes them a parent as that term is defined in section 2(1)(

n) of the Family Services Act . They are a person to whom custody of a child has been granted by a court of competent jurisdiction and they also become a person with whom a child resides and who stand in the place of a parent of the child. In short, they are no longer just a PSI. They are a parent. [ 26 ] M.G.’s counsel argues that consideration must be given to the relatively new law, being, An Act respecting First Nations, Inuit and Métis children, youth and families , SC 2019 c 24 [ First Nations Children’s Act ], and in particular, sections 8 (a),(

c) and 9(2) , which provide: 8 The purpose of this Act is to (

a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services; (

b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and (

c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. 9 …

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts: (

a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people; (

b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is

integral to cultural continuity; (

c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected; (

d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and (

e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered. … [ 27 ] The First Nations Children’s Act of course does not speak to the situation that is before the Court today, being who should control the disposition of R.S.G.’s body, L.B. or M.G.

That said, the legislation highlights the importance of considering and safeguarding the cultural identity and cultural continuity of First Nations Children in the context of child and family services matters. [ 28 ] There is no question that historically and even in our relatively recent past, the cultural identity of First Nations Peoples and Children have not received the recognition, promotion and protection they deserve.

The legal landscape on these issues of course continues to evolve as noted by Goebel J. in Welter v Kequahtooway , 2023 SKKB 33 . [ 29 ] The objectives set out in the First Nations Children’s Act are important but do not inform or alter the analysis of whether L.B. is a parent within the meaning of the Family Services Act or the Funeral Act . It does not change whether L.B. or M.G., each of whom is a private litigant, should have control of R.S.G.’s body pursuant to

section 91 of the Funeral Act . M.G. applies as a grandparent. She gets to decide if there is no one else with priority. I find that there is. [ 30 ] In the final analysis I find L.B. was R.S.G.’s parent. She was not only a person to whom the custody of R.S.G. was granted but she was also a person with whom R.S.G. resided. She stood in the place of a parent to R.S.G. She was R.S.G.’s mom. She was granted custody by order of the Court and she stood in the place of a parent for 13 years. This in my view makes her a parent within the meaning of the Family Services Act and also, the Funeral Act , which does not define the term parent. Therefore, pursuant to

section 91 of the Funeral Act , she has priority to control the disposition of R.S.G.’s body. [ 31 ] At the end of the hearing, L.B. indicated that she would be prepared to have R.S.G. laid to rest on Reserve, next to the father he adored, as requested by M.G. I understand that the parties may have reached some sort of agreement after the hearing, though I have no idea what that arrangement is. Certainly, I was asked to decide the matter, notwithstanding any agreement.

In any event, I am not ordering or holding L.B. to her submission, though I am personally deeply encouraged and supportive of any service or approach that will allow all those who loved R.S.G. to participate and have a meaningful role in his funeral service. R.S.G. in life was a builder. He built a snow fort but he also built a bridge between the non-Indigenous family he lived with and his biological Indigenous family. L.B. cared for R.S.G. and his brother, T.G. on a day-to-day basis. M.G. taught R.S.G. about his past, his history, his culture and his language. A.L. showed R.S.G. the love of a grandmother.

All three, L.B., M.G. and A.L., were a part of R.S.G.’s life and his identity. All three were a part of him. It seems that even in death R.S.G. is managing to continue to do the important work of furthering bridge building and reconciliation given that some sort of resolution has been reached. Frankly, we could all learn from his example. I only wish I had gotten a chance to know of him under different circumstances. He was clearly a remarkable young man. My sincere condolences to all of R.S.G.’s friends and family. J. BARDAI