DBCFS v LS et al, 2025 ONSC 2335.

What placement for temporary care and custody pursuant to section 94(2) of the CYFSA is in the best interest of R.W. and K.D.? 

[38] These children are First Nations children and therefore An Act respecting First Nations, Inuit and Metis children, youth and families (“the Federal Act”) applies. While the jurisdiction to bring an application before the court is under the provincial legislation, CYFSA, the Federal Act augments the CYFSA and where there is conflict the Federal Act prevails.

[40] The test under CYFSA is augmented by the Federal Act. When an Indigenous child is involved, the Federal Act applies at every stage of a child protection proceeding, including when the court is determining a temporary care and custody hearing under s. 94(2) of the CYFSA. See: Children's Aid Society of London and Middlesex v. T.E., 2021 ONSC 788, at para. 20.

[41] The Federal Act alters the method of analysis at s.94 hearings under the CYFSA given its paramountcy over provincial legislation. When the Federal legislation is triggered then the s.94 hearing analysis starts under sections 10 through 17 of the Federal Act. These sections take priority to the extent that the provisions in the CYFSA are inconsistent with the Federal Act.

[48] The Federal Act requires that I consider the best interests of the children in determining their temporary placement. S.10(2) of that Act requires that the court first considers the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

[53] Secondly, I find that Ms. L.S. has not maintained her obligations under the cultural connection plan that was required and agreed upon when the PGO was granted on consent in 2016. While this was not the reason for the children’s removal in September 2024, it is relevant to the test to be met in any decision about placement, including a temporary placement, under the Federal Act.

[56] This pan-indigenous approach is not what Ms. L.S., the family, and the First Nation agreed to in the cultural connection plan. A pan-indigenous approach is not acceptable in the face of a specific agreement for cultural connectivity or the provisions of s.10 of the Federal Act which states at s.10(2):

When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.” (emphasis added)

[62] Section 16(2) of the Federal Act requires that when the order of priority in s.16(1) is being applied the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child. The placement in Alberta provides for the children to be in close proximity to their mother’s two younger children.

[68] I am mindful of the requirement of s.9(2)(d) that child and family services for an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous Group, community or people. I find that the plan of DBCFS and Horse Lake First Nation best addresses this consideration.

None.

• Section 8: Purpose
• Section 9: Principles
• Section 10
• Section 11: Effect of services
• Section 12
• Section 13: Representations and party status
• Section 14
• Section 15: Socio-economic conditions
• Section 16
• Section 17: Attachment and emotional ties

Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1.
Section 94

Children’s Aid Society of London and Middlesex v TE, 2021 ONSC 788.

Children’s Aid Society of Ottawa-Carleton v T, 2000 CanLII 21157 (ON SC). 

Kina Gbezhgomi Child and Family Services v JM, 2023 ONCJ 93.