British Columbia (Child, Family and Community Service) v W and H, 2022 BCPC 216.

Is the child an Indigenous child, pursuant to s. 1 of the CFCSA?

Can the court place a child in the temporary custody of the caregiver pursuant to s. 41(1)(b) if the proposed caregiver will not respect both the child’s [omitted for publication] and Métis heritage?

Is it in the child’s best interest to temporarily transfer custody of her to “The Caregivers”?

[23] The relevant portion of s. 1 of the CFCSA defines an “Indigenous child” as a child who is under 12 years of age and has a biological parent who (i) is of Indigenous ancestry, including Metis; and (ii) considers him or herself to be Indigenous.

[35] I was urged by the Band to adopt the definition of Metis as set out in Powley but I am not persuaded that test applies to the child protection realm. The principle underlying the definition of “Indigenous” in Powley is the non-extinguishment of pre-existing practices and titles that predate confederation and, with the Metis, reconciliation of pre-control practices and traditions with the imposition of colonial laws that infringe on those practices and traditions.

[37] Thus, I find that the overarching purpose of ss. 1 and 4 of the CFCSA, the Federal Act, and s. 35 of the Constitution Act is the same - to recognize Indigenous heritage and enhance and ensure the survival of Indigenous cultural practices, language and traditions - but the legal and constitutional outcome is, and should be, different. A child can be Métis for child protection proceeding purposes, but not gain section 35 constitutionally protected rights.

[64] I do not agree with the Band’s submission that if the child were not [omitted for publication], the Federal Act would not apply to her right now. I do not agree with the Band’s submission that the paternal cousins must show evidence of having been disenfranchised by the residential school system or the “60’s Scoop” before using that as an explanation for their lack of connection to a Metis community. It is offensive and contrary to the line of authority set out by the Supreme Court of Canada in Gladue and Ipeelee, which stand for the proposition that an Indigenous person need not establish a causal link between the systemic and background factors and their current situation before the court can consider the impact of colonialism on Indigenous persons.

None.

• Section 1: Definitions
• Definition: Indigenous peoples
• Section 10
• Section 11: Effect of services
• 11(c)

Child, Family and Community Service Act, RSBC 1996, c 46. (CFCSA)
Sections 1 (“Indigenous Child”), 4, & 41(1)(b)

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. (Constitution)
Section 35

Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1. (CYFSA)
Section 90(2)(b)

British Columbia (Child, Family and Community Service) v MJK, 2020 BCPC 39.

British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82.

British Columbia (Director of Child, Family and Community Service) v HDC, 2020 BCPC 214.

Castonguay and Faucher v R, 2006 NBCA 43.

Catholic Children’s Aid Society of Hamilton v GH, 2016 ONSC 6287.

Catholic Children’s Aid Society of Toronto v ST, 2019 ONCJ 207.

Children’s Aid Society of the Regional Municipality of Waterloo v CE, 2020 ONSC 6314.

Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12.

LP and DP v CC, 2022 BCPC 34.

R v Caissie, 2012 NBQB 1.

R v Daigle, 2003 NBPC 4.

R v Eymard Chiasson, 2012 NBPC 14.

R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688.

R v Hamer, 2021 BCCA 297.

R v Hopper, 2004 NBPC 7.

R v Ipeelee, 2012 SCC 13.

R v Powley, 2003 SCC 43.

R v Van Der Peet, 1996 CanLII 216 (SCC), [1996] 2 RCS 507.

R v Vautour, 2010 NBPC 39.

TL v British Columbia (Attorney General), 2021 BCSC 2437.

Windsor-Essex Children’s Aid Society v AD, 2021 ONCJ 425.