J.W. v British Columbia (Director of Child, Family and Community Service), 2023 BCSC 512.
Summary
J.W. and N.W. (the W’s), cared for the children for multiple years under multiple care agreements as their foster parents. After multiple concerns arise, specifically in relation to the W’s efforts to assimilate the children into Catholicism, they are removed and placed with extended family within their Nation. The W’s seek an order for parenting time, amongst other things. The…
Read Full Text ▼J.W. and N.W. (the W’s), cared for the children for multiple years under multiple care agreements as their foster parents. After multiple concerns arise, specifically in relation to the W’s efforts to assimilate the children into Catholicism, they are removed and placed with extended family within their Nation. The W’s seek an order for parenting time, amongst other things. The Court agrees with the position of the Society and Nation and dismisses the petitions.
Region
British Columbia
Treaty Region(s)
N/A
Date
2023-03-31
Nation Name
Aitchelitz First Nation Cheam First Nation Katzie First Nation Kwantlen First Nation Kwaw-kwaw-Apilt First Nation Kwikwetlem First Nation Leq’ a: mel First Nation Lummi Tribe of the Lummi Reservation Matsqui First Nation Nooksack Indian Tribe Popkum First Nation Seabird Island Band Semiahmoo First Nation Shxwhá:y Village Skowkale First Nation Skwah First Nation Soowahlie Indian Band Sq’éwlets (Scowlitz First Nation) Sumas First Nation Tzeachten First Nation Yakweakwioose First Nation
Jurisdiction
- BC: Supreme Court of British Columbia (BCSC)
Case Year
2023
File Type: application/pdf
File Size: 347 KB
Case Brief
Case Link
(www.canlii.org)
Issues
Whether the orders sought by the W’s are in the best interests of the Indigenous Children.
Relevant Excerpts
[52] On November 24, 2022, several amendments were made to the CFCSA. These amendments include provisions intended to align with the Federal Act and to support Indigenous children in remaining connected to their families, communities and culture. Amendments included the addition of s. 2(b.1) to the guiding principles: “Indigenous families and Indigenous communities share responsibility for the upbringing and well-being of Indigenous children.”
[72] Section 16(3) requires an ongoing reassessment, over the course of a child’s time in care, of whether placing a child with a parent or family member (understood according to their Indigenous traditions) is a possibility and whether the child’s need for cultural connection and continuity are being met. It is not sufficient to remove an Indigenous child from their family for their protection, and then care for them as though they are not Indigenous, and as though their attachment to their Indigenous culture(s), extended family and community(ies) and territory(ies), are not important to preserving their best interests.
[93] In considering plans for the Children’s care, the Federal Act and CFCSA each require that the BIOIC analysis be done in accordance with the customs and traditions of the Indigenous group to which the Children belong. It is an important factor that the Indigenous Nation supports Agency A’s position in opposing the access order. The framework of the Federal Act reflects an understanding that the Indigenous Nations that children are members of speak for, and hold, the best interests of their child members.
Case History
None.
Bill C92 Citations
Legislative Citations
Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Section 35(1)
Child, Family and Community Service Act, RSBC 1996, c 46.
Sections 2(b.1); 4; 4.1;13; 50(1); 54.01; 54.1; 56; 92(1)
Family Law Act, SBC 2011, c 25.
Sections 37; 59; 203(1); 211
Case Law Considered
Anderson v Alberta, 2022 SCC 6.
R v Ipeelee, 2012 SCC 13.
Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v Public Safety Canada, 2022 CHRT 4.
Servatius v Alberni School District No. 70, 2020 BCSC 15, aff’d 2022 BCCA 421.
JP v British Columbia (Children and Family Development), 2017 BCCA 308.
Kalafchi v Yao, 2015 BCSC 1152 aff’d 2015 BCCA 524.
British Columbia (Superintendent of Family & Child Serve) v DS, 1985 CanLII 452 (BCCA).
JDS v WS, 1984 CanLII 297 (BCCA).
KB v MSB, 2021 BCSC 1283.
TL v British Columbia (Attorney General), 2021 BCSC 2203.
JMS v British Columbia (Director of Child, Family and Community Services), 2021 BCSC 2104.
SMC v CB, 2020 BCSC 994.
Nijar v Gill, 2017 BCSC 1362.
LJG v NB, 2017 BCSC 350.
Fawcet v Read, 2016 BCSC 310.
Smith v Smith, 2014 BCSC 61.
CK v British Columbia (Ministry of Children and Family Development), 2003 BCSC 785.
Chapman v Chapman, 1993 CanLII 2598 (BCSC).
D (CJ) v Superintendent of Family and Child Service, 1989 CanLII 2946 (BCSC).
BPG v British Columbia (Superintendent of Family and Child Service), 1981 CanLII 783 (BCSC).
First Nation A v AB, 2020 BCPC 279.
British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82.
Brown v Canada (Attorney General), 2017 ONSC 251.
Tags: Access,
Best interests,
Cultural continuity,
Foster parents,
Priority placement
