NAN Welcomes Ruling Supporting Customary Care for First Nations Children

THUNDER BAY, ON: Nishnawbe Aski Nation (NAN) Deputy Grand Chief Bobby Narcisse welcomes a ruling that supports customary care for First Nations children and First Nations’ inherent jurisdiction over children in general.

“I am filled with great pride and hope for our children’s future. Our First Nations communities have rights and jurisdiction over the care of our children. These rights have always been there. No judge or external system can give us that. The lack of institutional recognition and respect for First Nation jurisdiction has negatively impacted our children, families and communities for far too long,” said Deputy Grand Chief Bobby Narcisse. “This ruling represents a big step forward in the right direction, and it will not be our last. As First Nations fight for the right to exercise their jurisdiction, Nishnawbe Aski Nation will continue to be by their side, in the trenches, advocating and providing support.”

The case (M.L. et al v. B.T. and Dilico Anishinabek Family Care, heard on March 30, 2021, decided on September 7, 2021) centers on whether customary caregivers can bypass the wishes of First Nations and biological parents, as expressed in customary care agreements governed by the Child, Youth and Family Services Act (CYFSA), and attempt to obtain custody of Indigenous children under the Children’s Law Reform Act (CLRA).

NAN intervened in this appeal to ensure that the principle of First Nations’ inherent jurisdiction over children, wherever they may reside, is respected and that the wishes of families and communities, as expressed in customary care agreements, is given deference by the courts.

The Court adopted NAN’s arguments that permitting the motion judge’s decision to stand “risks effective erasure of First Nation’s inherent rights over the care and protection of their children”.

Key issues raised by this appeal:

• Are customary care agreements governed by the CYFSA? Answer: Yes
• Are the customary caregivers ‘foster’ parents and therefore prohibited from pursuing a custody application under the CLRA? Answer: Yes
• Should the court show deference to Dilico’s placement of the child? Answer: Yes

In answering these questions in the affirmative, Justice Newton found that the underlying motion judge’s decision made several legal errors. Justice Newton reviewed key provisions in the CYFSA and thefederal Act Respecting First Nations, Inuit and Metis Children, Youth and Families, which came into force on January 1, 2020.

These statutes make clear the following:

• that customary care is the priority mechanism for placement of Indigenous children and that the ultimate objective is to ensure Indigenous children are reunited with their families and communities;
• that customary care is an affirmation of the right to self-determination of Indigenous peoples, including the inherent right of self-government, which includes jurisdiction in relation to child and family services; and
• that respecting the wishes of families and First Nations is ultimately in the best interests of the child.

In making these findings, Justice Newton referenced historical legacies that modern legislation is attempting to redress. Justice Newton stated that permitting the customary caregivers to seek custody (by ignoring their similar role to a foster parent) is “…contrary to the spirit of the CYFSA and the federal Act which seeks to avoid the damaging consequences of, for example, the “60s scoop”.” (Paragraph 116).

In considering whether the motion judge erred by not giving deference to Dilico’s placement decision, as supported by the First Nation and the natural mother, Justice Newton stated: “[t]he determination of [the child’s] best interests is for the First Nation”.

For more information please contact:
Michael Heintzman,
Director of Communications
Cell: (807) 621-2790
mheintzman@nan.ca