Family Law - Child in Need of Protection - Permanent Order, Statutes - Interpretation - Bill C-92
Yorkton Tribal Council Child and Family Services (YTCCFS) applied for a permanent order, pursuant to The Child and Family Services Act (CFSA), regarding a nine-year-old girl, T.L., with the intent of pursuing an adoption plan with her current caregivers, D.L. and C.Y. Another party, A.D., applied pursuant to s. 23(1)(a) and (b) of the CFSA as well as seeking liberal access pursuant to the Children’s Law Act (CLA) and an order granting her custody and primary residency of T.L. pursuant to both the CFSA and CLA. By way of background to these applications, T.L.’s mother and T.L. began living with M.S., T.L.’s father, on the White Bear reserve in 2012, where he tried to support his daughter because of her addictions. He and T.L. became very close. T.L.’s mother moved to Saskatoon in 2015, and T.L. was apprehended there by the Ministry of Social Services, which transferred her file to YTCCFS. After the apprehension, T.L.’s mother suggested that M.S. be contacted as a resource person and T.L. was placed in his care. While T.L. lived with M.S. on the reserve, their relationship became even closer. T.L.’s mother died in March 2017. After that, M.S. felt that it would be too lonely for his granddaughter to live with him and his spouse and recommended that she be placed with his stepdaughter, C.Y., and her spouse D.L., who lived nearby with their three young children with whom T.L. played and attended school. YTCCFS approved the plan and its employee testified that T.L. was happy with the family and called C.Y. and D.L. Mom and Dad. T.L. continued to spend a lot of time with M.S. and he introduced to her Aboriginal culture and spiritual practices. In the summer of 2018, the identity of T.L.’s father was discovered through DNA testing. As a result, his mother and T.L.’s grandmother, A.D., contacted YTCCFS. She was then introduced to T.L. pursuant to a court order providing access and they spent regular time together. There was antagonism between A.D. and T.L.’s caregivers. She was opposed to T.L. remaining with them and in October 2018 successfully applied for an order finding her to be a person of sufficient interest. Many witnesses testified at this hearing of her applications for custody of T.L. in support of A.D., as she had conquered alcoholism and become an elder. She lived on the White Bear reserve and had been active in teaching and other roles at the White Bear Education Complex (WBEC). Some witnesses explained that it was common in Aboriginal culture for grandparents to raise grandchildren. A.D. submitted that she would be better able to help T.L. appreciate her Aboriginal heritage and that living on-reserve, she could attend WBEC where she would gain Nakoda language skills, whereas in her present circumstances, T.L. attended public school in Wawota and it did not offer such a program. A custody and access report was prepared pursuant to a court order and the author recommended that it was in T.L.’s best interests to remain with the family with whom she had lived for three years because to move her to A.D.’s home would be disruptive and set back her familial attachments and development achievements. He recommended that T.L.’s time with both M.S. and A.D. be supported and encouraged by D.L. and C.Y. and that the parties end their conflict for T.L.’s sake. T.L. expressed her wish to remain with the family and to visit with A.D.
HELD: The court dismissed A.D.’s application for custody pursuant to the CLA. It found that T.L. was a child in need of protection pursuant to s. 11(a)(ii) and (b) of the CFSA and ordered that she be placed in the permanent custody of the Ministry. Although access orders were not permitted under s. 37, it encouraged the YTCCFS to promote T.L.’s relationship with A.D. YTCCFS planned to have T.L. adopted by D.L. and C.Y., a placement which was appropriate pursuant to s. 16(1)(b) of Bill C-92. The court encouraged YTCCFS to promote a relationship with the paternal side of T.L.’s family and also between them and D.L. and C.Y. The court held that the CFSA, the CLA and Bill C-92 had, as their central principle, the consideration of the best interests of the child. It reviewed the best interest factors set out in each piece of legislation and determined that they had a number of items in common and no conflict existed between them. In this case, it was in the best interests of T.L. to remain with the family with whom she had lived and to maintain her close relationship with M.S.