Welter v Kequahtooway, 2023 SKKB 33.
Summary
This action is originally brought to the Court by the paternal aunt of the subject child Hiba. The paternal aunt is seeking sole decision-making capabilities and primary care regarding the child. Hiba was placed with her aunt in a private placement agreement between her mother and her aunt. Although Hiba’s mother, Quanita, brings her own application to have sole decision making… Read Full Text ▼
This action is originally brought to the Court by the paternal aunt of the subject child Hiba. The paternal aunt is seeking sole decision-making capabilities and primary care regarding the child. Hiba was placed with her aunt in a private placement agreement between her mother and her aunt.
Although Hiba’s mother, Quanita, brings her own application to have sole decision making and primary care regarding Hiba, the Court does not determine Hiba’s care arrangements in this hearing. Instead, the two counter-petitions filed by the mother are ruled upon. The first petition sought to have the First Nation, Zagime Anishinabek, be added as a party to the proceeding, due to Hiba’s membership with the Nation and the mother’s current residence on the Nation. The second petition sought to have the matter moved from the Judicial Centre of Battleford to the Judicial Centre of Regina.
The Court determines that the Nation is not entitled to party status in the proceeding because the mother is capable of bringing any evidence about the child’s culture (as it relates to her best interest), before the court. The matter is moved to the Judicial Centre of Saskatoon, as this is a compromise between the parties’ priorities. Lastly, interim care arrangements for Hiba are made in which she resides with her aunt and exercises access with her parents on alternating weekends.
Region
Saskatchewan
Treaty Region(s)
N/A
Date
2023-02-13
Nation Name
Zagime Anishinabek First Nations
Jurisdiction
- SK: Saskatchewan Court of Queen’s/King’s Bench (SKQB/SKKB)
Case Year
2023
File Type: application/pdf
File Size: 301 KB
Case Brief Case Link
(www.canlii.org)
Issues
Should Zagime Anishinabek be added as a party to this proceeding?
Should the proceeding be transferred to another judicial centre?
What, if any, changes should be made to the interim care arrangement to ensure that Hiba’s best interests are being met pending further agreement of the parties or court order?
Should the proceeding be transferred to another judicial centre?
What, if any, changes should be made to the interim care arrangement to ensure that Hiba’s best interests are being met pending further agreement of the parties or court order?
Relevant Excerpts
[17] Counsel concedes that there is no specific legislative provision that entitles Zagime Anishinabek to party status in this otherwise private dispute but argues that the case law, the CLA and the purpose and intent of the Federal legislation, along with increasing recognition of the inherent rights of Indigenous people to self-government in Canadian law, support Zagime Anishinabek’s participatory rights in this matter.
[28] Nowhere in the Act does it speak directly to the right of a First Nation to participate in a proceeding involving an Indigenous child. In contrast, The Child and Family Services Act, SS 1989‑90, c C‑7.2 [CFSA], provides the court with discretion to designate the chief of a band or the chief’s designate as a “person of sufficient interest”, with full participatory rights, where the child is a member: CFSA, s 23(1)(b). This section has been held to enable the court, “when faced with the task of having to decide what is in the best interests of a First Nation’s child in need of protection, to add the chief of the First Nation, or the chief’s designate, as a party to the proceedings to the end of assisting the court in making a more informed and sensitive decision”: L.(M.S.D.) (Re), 2008 SKCA 48 at para 27, [2008] 8 WWR 280. In that case, the Court of Appeal further speculated that it might also be argued that participatory status could be afforded to a chief pursuant to s. 23(1)(c) of the CFSA, if the evidence supported a clear connection between the First Nation and the child. In that regard the court held:
[29] Here, for example, had the child been resident with her maternal grandmother on the Ochapowace First Nation Reserve, and been generally regarded as a member of the First Nation, participating in its events, attending its school, and so on, the Court might have assumed that Chief George had the requisite connection with the child, given the relationship between subsections 23(1)(b) and 23(1)(c), coupled with the customary indicia pointing to the requisite connection, as in D.L.C. v. G.E.S., 2006 SKCA 79, 270 D.L.R. (4th) 597; [2006] 11 W.W.R. 101. But that was not the case. The child resided elsewhere with others, and had done so for virtually the whole of her young life, a fact that was capable of undermining what might otherwise have been assumed to be a close connection between Chief George and the child.
[30] Counsel for the mother also refers to the Federal legislation (An Act Respecting First Nations, Inuit and Metis Children, Youth and Families), in support of her application. Section 13(b) of the Federal legislation grants the right to make representations to an Indigenous governing body [IGB] acting on behalf of the Indigenous group, community or people to which a child belongs within the context of a child and family services proceeding.
[32] There is little debate that the law is evolving to recognize First Nation participation and right to governance in child protection matters involving Indigenous children. There have been a number of recent cases outside of Saskatchewan that have considered the scope of representative status that is available to First Nations in child protection matters involving Indigenous children.
[33] For instance, there are a number of cases where the court has held that the legislated right of an IGB to make representations in child and family services matters involving Indigenous children must be meaningful and substantive (i.e., including the right to call and cross‑examine a fixed number of witnesses): MSD v A.C., 2021 NBQB 14 [A.C.]; M.M. v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 317 [M.M.]; D.B. (Re), 2021 ABPC 140; and R.A.B. (Re), 2019 ABPC 178.
[43] It is also notable that in the above cases, the application was grounded on child protection legislation and/or the child was a ward of the child welfare system pursuant to a previous court order. There appear to be very few cases where the court has considered the involvement of an Indigenous governing body in a purely private parenting dispute – where the child is not in protective care and there are no protective care orders either in place or being pursued.
[46] At the end of the day, each case must turn on its own facts, circumstances and evidence. Here, having considered the cases and statutes referred to the court by the mother, as well as the additional cases cited herein, and the evidence filed, I am not satisfied that it is appropriate or necessary to add Zagime Anishinabek as a party to this proceeding for a number of reasons.
[51] Such was the finding of the Court of Appeal in L.(M.S.D.) (Re). In that case, the chief of the First Nation, where an Indigenous child’s mother, grandmother and sibling were registered members, applied to be added as a party to an application to vary a child protection order involving the child. The Court of Appeal recognized that First Nations are “unique communities with a deep seated collective ethic that extends to the children of the community and their well being” (L.(M.S.D.) (Re), at para 26), but held that party status was not required for relevant information and evidence to be available to the trier of fact. It held:
[49] In closing, we note that such of the child’s connection with the Ochapowace First Nation as continues to exist, exists primarily through her maternal grandmother, who, of course, has been added as a party to the proceedings. The grandmother is thus able to address the best interests of the child, including the child’s cultural and psychological needs seen from the perspective of her aboriginal ancestry. Presumably, the grandmother could call Chief George as a witness to testify to the child’s cultural needs, let us say, and thus provide the court with his insights about where the best interests of the child lie. The point, albeit a pragmatic one, is that Ms [C.M.P.], with the prospective assistance of Chief George, is in a position to assist the court in arriving at an informed and sensitive decision regarding the best interests of the child. In other words the purpose of subsection 23(1) has been met. ...
[57] There are also legitimate concerns that if Zagime Anishinabek is granted party status, the proceeding will become more complicated or a resolution derailed by issues that may go beyond Hiba’s best interests. In McDonald, the court was alive to corollary issues raised by the evidence and arguments that had the potential to transform the best interests proceeding into a “complicated and unnecessary battle”[…]
[58] As previously indicated, party status would entitle Zagime Anishinabek with the right to participate in settlement discussions and, if they cannot agree, to force a matter to trial. In that regard, counsel for the mother conceded that it is possible that Zagime Anishinabek could advance a position that is inconsistent with the mother’s position, potentially forcing the matter to trial even where the remaining parties have reached a consensus. She says her client is prepared to accept that risk. However, the other parties are not. It is not unreasonable to expect that the proceeding will become more complicated and prolonged if Zagime Anishinabek is added as a party, thereby increasing the cost of litigation to the other parties, whose resources are modest.
[62] In conclusion, for all of the reasons provided, the applicant has failed to satisfy me that granting party status to Zagime Anishinabek in this matter is necessary, appropriate or in the best interests of Hiba. Her application in that regard is dismissed.
[28] Nowhere in the Act does it speak directly to the right of a First Nation to participate in a proceeding involving an Indigenous child. In contrast, The Child and Family Services Act, SS 1989‑90, c C‑7.2 [CFSA], provides the court with discretion to designate the chief of a band or the chief’s designate as a “person of sufficient interest”, with full participatory rights, where the child is a member: CFSA, s 23(1)(b). This section has been held to enable the court, “when faced with the task of having to decide what is in the best interests of a First Nation’s child in need of protection, to add the chief of the First Nation, or the chief’s designate, as a party to the proceedings to the end of assisting the court in making a more informed and sensitive decision”: L.(M.S.D.) (Re), 2008 SKCA 48 at para 27, [2008] 8 WWR 280. In that case, the Court of Appeal further speculated that it might also be argued that participatory status could be afforded to a chief pursuant to s. 23(1)(c) of the CFSA, if the evidence supported a clear connection between the First Nation and the child. In that regard the court held:
[29] Here, for example, had the child been resident with her maternal grandmother on the Ochapowace First Nation Reserve, and been generally regarded as a member of the First Nation, participating in its events, attending its school, and so on, the Court might have assumed that Chief George had the requisite connection with the child, given the relationship between subsections 23(1)(b) and 23(1)(c), coupled with the customary indicia pointing to the requisite connection, as in D.L.C. v. G.E.S., 2006 SKCA 79, 270 D.L.R. (4th) 597; [2006] 11 W.W.R. 101. But that was not the case. The child resided elsewhere with others, and had done so for virtually the whole of her young life, a fact that was capable of undermining what might otherwise have been assumed to be a close connection between Chief George and the child.
[30] Counsel for the mother also refers to the Federal legislation (An Act Respecting First Nations, Inuit and Metis Children, Youth and Families), in support of her application. Section 13(b) of the Federal legislation grants the right to make representations to an Indigenous governing body [IGB] acting on behalf of the Indigenous group, community or people to which a child belongs within the context of a child and family services proceeding.
[32] There is little debate that the law is evolving to recognize First Nation participation and right to governance in child protection matters involving Indigenous children. There have been a number of recent cases outside of Saskatchewan that have considered the scope of representative status that is available to First Nations in child protection matters involving Indigenous children.
[33] For instance, there are a number of cases where the court has held that the legislated right of an IGB to make representations in child and family services matters involving Indigenous children must be meaningful and substantive (i.e., including the right to call and cross‑examine a fixed number of witnesses): MSD v A.C., 2021 NBQB 14 [A.C.]; M.M. v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 317 [M.M.]; D.B. (Re), 2021 ABPC 140; and R.A.B. (Re), 2019 ABPC 178.
[43] It is also notable that in the above cases, the application was grounded on child protection legislation and/or the child was a ward of the child welfare system pursuant to a previous court order. There appear to be very few cases where the court has considered the involvement of an Indigenous governing body in a purely private parenting dispute – where the child is not in protective care and there are no protective care orders either in place or being pursued.
[46] At the end of the day, each case must turn on its own facts, circumstances and evidence. Here, having considered the cases and statutes referred to the court by the mother, as well as the additional cases cited herein, and the evidence filed, I am not satisfied that it is appropriate or necessary to add Zagime Anishinabek as a party to this proceeding for a number of reasons.
[51] Such was the finding of the Court of Appeal in L.(M.S.D.) (Re). In that case, the chief of the First Nation, where an Indigenous child’s mother, grandmother and sibling were registered members, applied to be added as a party to an application to vary a child protection order involving the child. The Court of Appeal recognized that First Nations are “unique communities with a deep seated collective ethic that extends to the children of the community and their well being” (L.(M.S.D.) (Re), at para 26), but held that party status was not required for relevant information and evidence to be available to the trier of fact. It held:
[49] In closing, we note that such of the child’s connection with the Ochapowace First Nation as continues to exist, exists primarily through her maternal grandmother, who, of course, has been added as a party to the proceedings. The grandmother is thus able to address the best interests of the child, including the child’s cultural and psychological needs seen from the perspective of her aboriginal ancestry. Presumably, the grandmother could call Chief George as a witness to testify to the child’s cultural needs, let us say, and thus provide the court with his insights about where the best interests of the child lie. The point, albeit a pragmatic one, is that Ms [C.M.P.], with the prospective assistance of Chief George, is in a position to assist the court in arriving at an informed and sensitive decision regarding the best interests of the child. In other words the purpose of subsection 23(1) has been met. ...
[57] There are also legitimate concerns that if Zagime Anishinabek is granted party status, the proceeding will become more complicated or a resolution derailed by issues that may go beyond Hiba’s best interests. In McDonald, the court was alive to corollary issues raised by the evidence and arguments that had the potential to transform the best interests proceeding into a “complicated and unnecessary battle”[…]
[58] As previously indicated, party status would entitle Zagime Anishinabek with the right to participate in settlement discussions and, if they cannot agree, to force a matter to trial. In that regard, counsel for the mother conceded that it is possible that Zagime Anishinabek could advance a position that is inconsistent with the mother’s position, potentially forcing the matter to trial even where the remaining parties have reached a consensus. She says her client is prepared to accept that risk. However, the other parties are not. It is not unreasonable to expect that the proceeding will become more complicated and prolonged if Zagime Anishinabek is added as a party, thereby increasing the cost of litigation to the other parties, whose resources are modest.
[62] In conclusion, for all of the reasons provided, the applicant has failed to satisfy me that granting party status to Zagime Anishinabek in this matter is necessary, appropriate or in the best interests of Hiba. Her application in that regard is dismissed.
Case History
None.
Bill C92 Citations
Legislative Citations
The Child and Family Services Act, SS 1989-90, c C-7.2.
Sections 23(1)(b); 39(1)
The Children’s Law Act, 2020, SS 2020, c 2.
Section 8(1)
The King’s Bench Rules, Sask Gaz December 27, 2013, 2684.
Rules 3-84; 15-5; 15-6; 15-10(5); 15-11
The Queen’s Bench Act, 1998, SS 1998, c Q-1.01.
Section 22(7)
Sections 23(1)(b); 39(1)
The Children’s Law Act, 2020, SS 2020, c 2.
Section 8(1)
The King’s Bench Rules, Sask Gaz December 27, 2013, 2684.
Rules 3-84; 15-5; 15-6; 15-10(5); 15-11
The Queen’s Bench Act, 1998, SS 1998, c Q-1.01.
Section 22(7)
Case Law Considered
Bear v Muskoday Convenience Store, 2013 SKQB 279.
DB (Re), 2021 ABPC 140.
Dirk v Dirk, 2002 SKQB 292.
DLC v GES, 2006 SKCA 79.
Hauser v Hauser, 2008 SKQB 51.
JC (Re), 2022 ABPC 212.
Klapak v Minty, 2015 SKQB 230.
L (MSD) (Re), 2008 SKCA 48.
McDonald v Hawley, 2021 ABPC 98.
Métis Child, Family and Community Services v CPR, 2022 MBCA 40.
MM v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 317.
MSD v AC, 2021 NBQB 14.
NP v LDS Adoption Services, 2006 ABQB 78.
NQ (Re), 2003 YKTC 35.
Potzus v Potzus, 2017 SKQB 105.
RAB (Re), 2019 ABPC 178.
SM v Alberta (Child, Youth and Family Enhancement Act), 2019 ABQB 972.
Superior Construction Solutions Inc. v Hamilton Construction Corp, 2016 SKCA 130.
Toronto-Dominion Bank v Janzen, 2021 SKQB 38.
URM (Re), 2018 ABPC 96.
Veenstra v McCabe, 2014 ONSC 6844.
Wiebe v Intact Insurance Company, 2017 SKQB 368.
DB (Re), 2021 ABPC 140.
Dirk v Dirk, 2002 SKQB 292.
DLC v GES, 2006 SKCA 79.
Hauser v Hauser, 2008 SKQB 51.
JC (Re), 2022 ABPC 212.
Klapak v Minty, 2015 SKQB 230.
L (MSD) (Re), 2008 SKCA 48.
McDonald v Hawley, 2021 ABPC 98.
Métis Child, Family and Community Services v CPR, 2022 MBCA 40.
MM v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 317.
MSD v AC, 2021 NBQB 14.
NP v LDS Adoption Services, 2006 ABQB 78.
NQ (Re), 2003 YKTC 35.
Potzus v Potzus, 2017 SKQB 105.
RAB (Re), 2019 ABPC 178.
SM v Alberta (Child, Youth and Family Enhancement Act), 2019 ABQB 972.
Superior Construction Solutions Inc. v Hamilton Construction Corp, 2016 SKCA 130.
Toronto-Dominion Bank v Janzen, 2021 SKQB 38.
URM (Re), 2018 ABPC 96.
Veenstra v McCabe, 2014 ONSC 6844.
Wiebe v Intact Insurance Company, 2017 SKQB 368.
Tags: Access, Application of Act, Best interests, Care Provider, Decision-Making, Interim order, Jurisdiction, Off-Reserve, Parties, Party status
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