“The Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497 established that the CYFSA is particularly remedial for Indigenous children. The court is to consider the importance of preserving a child’s cultural identity and connection to her community in recognition of the uniqueness of First Nations, Inuit, and Métis cultures, heritages, and traditions.
The preamble of the CYFSA includes the following:
Further, the Government of Ontario believes the following:
First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.
Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.
For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.
The finding that the child is First Nations is important and should be made as early as possible in the proceedings because it triggers obligations for the Society and the court. The Society is to give special consideration and provide specialized services. Their decisions are to recognize the importance of the child’s cultural heritage and connection to the community. The court is also to consider these issues prior to making findings and reaching disposition.
The court was left to balance the objectives and mandate of the legislation. On the one hand, it is essential to move these matters on toward a permanent resolution for the benefit of the child. The mandate of the legislation includes, as one of its purposes, providing services in a manner that ensures “early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests.”
Kawartha-Haliburton Children’s Aid Society v. AR and DB, 2019 ONSC 4191 (CanLII) at 4-7