“All parties agree that the inability of J.T.’s biological parents to care for her directly engages the CYFSA.
The paramount purpose of the CYFSA, set out in s. 1(1), is to promote the best interests, protection, and well-being of children. The CYFSA sets out additional purposes that apply to all children in s. 1(2), such as supporting the autonomy and integrity of the family unit, using the least disruptive course of action, and individualizing services to a child in a manner that:
i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment;
ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;
iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression;
iv. takes into account a child’s or young person’s cultural and linguistic needs;
v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests; and
vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.
Importantly, s. 1(2) of the CYFSA includes an additional purpose distinct to First Nations, Inuit and Métis peoples: wherever possible, they should be entitled to provide their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.
“Customary care” plays an important role in meeting this purpose as well as meeting the other purposes of the CYFSA, including its paramount purpose to promote the best interests, protection, and well-being of children.
Customary care under the CYFSA
What is “customary care”? The concept is defined in s. 2(1) of the CYFSA as “the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community”. I note the use of the word “person” and not “agency” in this definition.
Customary care is the preferred approach for Indigenous children. Section 80 of the CYFSA requires a society to “make all reasonable efforts” to pursue a plan for customary care for a First Nations, Inuk or Métis child if the child:
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- a. is in need of protection;
- b. cannot remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part or, where there is an order for the child’s custody that is enforceable in Ontario, of the person entitled to custody under the order; and
- c. is a member of or identifies with a band, or is a member of or identifies with a First Nations, Inuit or Métis community.
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The practice of customary care arose as an alternative to court-related processes and court-ordered care, so that First Nation children and youth can be both protected from health and safety concerns while remaining strongly connected to their culture and communities.
Customary care agreements encourage the parties to resolve issues concerning a child’s care in a culturally sensitive and appropriate manner, by agreement rather than child protection proceedings. As the intervener Association of Native Child and Family Services Agencies points out, customary care is an essential practice for First Nations in partnership with Indigenous child and family services agencies. Although the tenets of customary care differ from nation to nation, at its core the concept envisages a child’s care as a collective responsibility.
Like any agreement, customary care agreements require informed and voluntary consent: see s. 21 of the CYFSA. The child’s legal parents (in most cases the biological parents), the proposed alternative caregivers, the child welfare agency, and a representative of the First Nation must all agree that the child is in need of protection, and they must all agree to the terms and conditions of the proposed plan for care: see Ministry of Children and Youth Services, Formal Customary Care: A Practice Guide to Principles, Processes and Best Practices (Queen’s Printer for Ontario, 2013) (“MCYS Guide”).
Customary care does not operate outside judicial oversight. As Justice Wolfe noted in Kina Gbezhgomi Child and Family Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F. (3 March 2021), Gore Bay, K-16-0028-3 (Ont. C.J.), at para. 60, the courts may become engaged where there is evidence of bad faith or improper procedure:
I find that the CYFSA does not include statutory timelines that need to be strictly enforced by courts regarding customary care. In choosing that path, the parties to a [customary care agreement] agree that it is in the child(ren)’s best interests to avoid adversarial child protection proceedings in Canadian courts. This is subject to evidence of bad faith or improper procedure which could render placements made out of court invalid. [Emphasis added.]
Under the CYFSA, the court plays an essential role in reviewing the decisions of child welfare agencies acting on their initial determination that a child is in need of protection. Judicial oversight ensures the child welfare agency acts within its authorized role, that statutory timelines are met, and that procedural protections exist for all parties, especially the parents who are often vulnerable: Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R., at paras. 68-69.”
M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240 (CanLII) at 30-40