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MB (Re), 2022 ABPC 270 (CanLII)

Date:
2022-12-05
File number:
CP026000106
Citation:
MB (Re), 2022 ABPC 270 (CanLII), <https://canlii.ca/t/jw5hc>, retrieved on 2024-03-28

In the Provincial Court of Alberta

 

Citation: MB (Re), 2022 ABPC 270

Date: 20221205

Docket: CP026000106

Registry: Lethbridge

 

 

In the Matter of Applications Under Section 52 of the

Child, Youth and Family Enhancement Act

And in the Matter of MB, born August, 2015

 

 

Restriction on Publication

Identification Ban – See the Child, Youth and Family Enhancement Act, section 126.2.

No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services.

NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

 


 

Oral Judgment of the Honourable Judge M.C. Christopher

 

 

Introduction

[1]               This is a decision in two parts.

[2]               The trial concerned competing private guardianship applications brought pursuant to the provisions of the Child, Youth and Family Enhancement Act (Alberta) (the “CYFEA”) with respect to an Indigenous child (“MB” or the “Child”) who has been in care since two months of age. The Child is now 7 years old.

[3]               During the trial, new and relevant federal legislation came into force which resulted, amongst other proceedings, in additional litigation within the trial as to whether the federal doctrine of paramountcy applies in this case and, if so, the result is that provincial legislation is inapplicable to Indigenous children. These reasons thus address both paramountcy and guardianship.

Background

[4]               The Child’s Indigenous paternal grandmother and aunt on one side and the Child’s non-Indigenous primary caregiver on the other side, all seek private guardianship of the Child. Counsel also appeared for the Child, for the Director of Child, Youth and Family Enhancement (the “Director”), for the Minister of Justice and Solicitor General for Alberta (“Alberta”) and for the Blood Tribe. The trial proceeded over many months, with 17 witnesses called to give evidence, including the parties, family members, Indigenous Elders, social workers, various experts and other lay witnesses.

[5]               After the applications were filed but prior to the conclusion of the trial, new federal legislation came into effect, namely, the Act respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019, c 24 (the “Federal Act”). The passing of this legislation has been the subject of much commentary and now, a growing body of case law. This is because the Federal Act legislates in an area of provincial jurisdiction – child welfare – as it concerns children who, because they are Indigenous, fall under the umbrella of the federal Indian Act. This case focusses squarely on the issue of how to interpret and apply the Federal Act as it applies to the private guardianship of an Indigenous child who is the subject of a permanent guardianship order granted pursuant to provincial legislation.

[6]               The Child was born to Indigenous parents and is subject to a permanent guardianship order under the CYFEA. The Child’s mother is deceased and the father has not been a caregiver to the Child. The Child has resided with CB since she was apprehended at approximately 2 months of age. Temporary guardianship followed at 9 months, and permanent guardianship at 16 months, with the consent of the father. Since late 2018, when the Child was just over 3 years of age, parenting has been shared with the paternal side of the family whereby the Child spends weekends with AC, her paternal grandmother, along with two of her siblings and other paternal family members. The Child’s paternal aunt, LC, provides childcare assistance for the grandmother when needed, but has not otherwise cared for the Child in her home.

[7]               The paternal and maternal sides of the family are not on good terms and they are not in contact with one another. As a result, the Child’s contact with the maternal side of the family is arranged via CB, who maintains a good relationship with the maternal side of the family. The Child has regular visits with her maternal grandmother and other members of the extended maternal family, including a sibling who is in the care of a maternal aunt.

Preliminary Matters

[8]               At an earlier stage in the proceedings, well prior to trial, and prior to the Federal Act coming into force, Alberta became involved in this litigation because the paternal applicants asserted both s 7 Charter breaches and violations of their s 35 constitutional rights in relation to the private guardianship applications brought pursuant to the CYFEA.

[9]               The paternal applicants applied to bifurcate the trial. They filed a Notice of Constitutional Question (“NCQ”) addressing both Charter and constitutional issues and wanted to proceed with these issues prior to the trial on the merits of either private guardianship application.

[10]           In an earlier oral ruling, I denied the application to bifurcate the trial and directed that the trial proceed first with the private guardianship applications, and then, if required, would proceed on constitutional issues after that. I was, and remain, of the view that I have no jurisdiction as a Provincial Court judge to decide constitutional questions in a vacuum, but only as they might arise in connection with issues properly within the jurisdiction of the Court.

[11]           In a subsequent oral ruling, I granted the Blood Tribe limited intervenor status, to address constitutional issues, if necessary, following the guardianship portion of the trial.

[12]           In a further subsequent ruling, I held that the issues at play engaged the doctrine of paramountcy and therefore required notice to Alberta, pursuant to s 24 of the Judicature Act. I did not accept the paternal applicants’ view that notice was not required because the matter of inconsistencies, if any, between the CYFEA and the Federal Act merely concerned statutory interpretation. As to notice, in any event, Alberta conceded that it had been given notice, notwithstanding irregularities in the way notice was provided.

Issues for Trial

[13]           While guardianship lies at the heart of this matter, the doctrine of paramountcy must first be addressed so that the appropriate legislation and standard will be applied in determining the question of guardianship.

Part One - Paramountcy

[14]           In terms of paramountcy, the central issue for this Court is how to apply the provisions of the Federal Act to provincial child welfare proceedings which concern Indigenous children in Alberta. The parties do not agree, and the Minister of Justice and Solicitor General for Alberta opposes the participation of the Blood Tribe at this stage of the proceeding. I find, however, that as the Blood Tribe has intervenor status on constitutional issues, it is appropriate for me to consider the Blood Tribe’s submissions as to paramountcy, as that doctrine does raise questions about the constitutionality of the legislation.

[15]           The doctrine of paramountcy holds, essentially, that where there are two statutes validly enacted, federal legislation prevails over provincial legislation to the extent of any inconsistency or conflict in the provincial enactment. The principles of statutory interpretation require provisions of statutes to be read in their context and in their grammatical and ordinary senses harmoniously with the scheme of the act, the object of the act and the intention of the legislature. The task for this Court is to interpret the statutes and determine whether and to what extent the two enactments are inconsistent or in conflict.

[16]           Neither the parties, nor the intervenor Blood Tribe challenge the validity of the Federal Act. Instead, questions are raised about the provincial Act. The parties do not agree on how the Federal Act should be applied in the context of private guardianships. 

[17]           I note that the Federal Act is subject to an on-going constitutional reference in Quebec. In a lengthy decision released earlier this year, the Quebec Court of Appeal largely upheld the validity of the Federal Act, save two provisions which it held were unconstitutional (2022 QCCA 185). A further appeal to the Supreme Court of Canada is pending and the law remains unsettled.

Positions of the Parties - Paramountcy

[18]           In the present case, the paternal applicants argue based on paramountcy that the Federal Act as a whole prevails, and that the only question to be decided is how to interpret the “best interests” test as set out in the Federal Act. They say that where the matter involves an Indigenous child, the only possible interpretation of “best interests” is placement according to the priority placement scheme outlined in s 16 of the Federal Act. As a result, they ask the Court to decide that provincial legislation is inapplicable to Indigenous children, even where it is validly enacted.

[19]           The paternal applicants say that both paramountcy and “operational inconsistency” require the strict application of s 16, which they argue creates a rebuttable presumption in their favour. They argue that the priority placement ordering in that section requires the Director to show that the paternal applicants are unsuitable, and if this cannot be demonstrated, there is a presumption that they should succeed as guardians. They also say that the Federal Act does not place the burden on the paternal applicants to demonstrate that they are the most appropriate placement. They say it is presumed to be so, unless the Director shows otherwise.  This interpretation of s 16 is based on the argument that there is only one way to define “best interests” and that is by placement of the Child with the paternal applicants.

[20]           Alberta’s position is that federal and provincial legislation co-exist with overlapping jurisdiction over Indigenous children and child protection matters, respectively. Based on the principle of “co-operative federalism,” Alberta argues that the legislation should be read harmoniously and that no operational or functional conflict arises. Alberta submits that the Federal Act is complementary to the provincial CYFEA and does not impose a priority of placement scheme that is inconsistent with the “best interests” test. Furthermore, both statutes refer to “best interests”, and although the references to “best interests” are not identical in each, and in fact, neither statute includes a comprehensive definition of “best interests,” there is nothing in the Alberta statute which is specifically contrary or opposed to the Federal Act. Both statutes can, Alberta suggests, be read as complementary.

[21]           On the other hand, the Blood Tribe argues that the provincial “best interests” provisions are inoperative based on operational and functional conflicts with the Federal Act which requires placement of Indigenous children according to the order of priority outlined in s 16 of the Act. The Blood Tribe asserts that as it is impossible to comply with both statutes, federal legislation applies exclusively in matters involving Indigenous children.

[22]           As noted, Alberta is opposed to the participation of the Blood Tribe at this stage of the proceeding.

[23]           In terms of guardianship, the paternal applicants and the Blood Tribe stand opposed to the application of the Child’s primary caregiver. Alberta takes no position on the guardianship decision itself and neither does the Director nor does Counsel for the Child.

Applicable Law - Paramountcy

[24]           The question to answer is this: is the provincial CYFEA in conflict with or inconsistent with the Federal Act such that the Federal Act applies, and the provincial Act is rendered wholly or partially inoperable? 

[25]           The law of paramountcy requires me to consider two distinct forms of conflict, including operational conflict and frustration of purpose. Under both branches of paramountcy, the burden of proof rests on the party alleging the conflict. Are the two statutes in conflict? Would compliance with one act mean defiance of the other, resulting in operational conflict? Put another way, does the provincial CYFEA operate to frustrate the purpose of the Federal Act? Or, as Alberta asserts, are the two enactments meant to be read together, as complementary to one another?

[26]           Both the Federal Act and the CYFEA include “best interests” principles for making child protection decisions and both refer to “culture,” with the Federal Act specifically including principles of “cultural continuity” and “substantive equality.” 

[27]           The provisions of the two enactments are not the same when it comes to “best interests,” nor to “culture.”  Neither the Federal Act nor the CYFEA define “best interests” or “culture,” per se.

[28]           Rather, both include “best interests” as a guiding principle for the interpretation and administration of the enactment, and both include a number of factors to be considered in relation to “best interests.” The Federal Act refers to “cultural, linguistic, religious and spiritual upbringing and heritage.” The CYFEA refers to “Indigenous identity, culture, heritage, spirituality, language and traditions.” The factors listed in each are similar, but not identical, nor exhaustive. The Federal Act also specifically includes the principles of “cultural continuity” and “substantive equality.”

[29]           The Federal Act states that for Indigenous children, “best interests” are a primary consideration in making decisions or taking actions in the context of providing child and family services, but in the case of decisions or actions related to child apprehension, best interests must be the paramount consideration (emphasis added). On the other hand, the CYFEA includes references to “culture,” “cultural communities” and in the case of Indigenous children, the CYFEA specifies that “the benefits to the child of a placement where the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.”

[30]           How are these provisions to be read in the context of providing child and family services to Indigenous children?  This issue has been addressed in a number of Alberta cases since the coming into force of the Federal Act. These cases considered a variety of different scenarios concerning Indigenous children in care and in these cases, the matters before the Court included apprehension, permanent guardianship, and private guardianship applications.

[31]           The decisions vary widely.

[32]           Some decisions hold the two statutes are meant to be read harmoniously as complementary pieces of legislation within the overarching framework of cooperative federalism. However, at least two decisions hold that the Federal Act does not apply to private guardianship applications under the CYFEA on the basis that private guardianship does not fall within the scope of child protection “services” since the Director is withdrawing – or removing – services in favour of a private guardian.

[33]           Another more recently issued decision leaves the question open, with a stay of that private guardianship application pending a forthcoming decision of the Alberta Court of Queen’s Bench (as it then was, now the Court of King’s Bench).

[34]           Prior to the Federal Act coming into force, in SM v Alberta (Child, Youth and Family Enhancement Act, Director) 2019 ABQB 972, Justice Dario noted that while both statutes include “best interests” provisions, these factors are not the only factors that courts must consider, and they do not take priority over other factors. Similarly, Justice Dario noted, the new federal legislation would also address additional “best interests” factors specifically related to Indigenous children, but these would be considered in conjunction with other factors not necessarily enumerated. Justice Dario wrote, at paragraphs 291 – 292:

291 Since the time of the Provincial Court Hearing, the new provisions of the CYFEA have come into force and the provisions of Bill C-92 will come into force in 2020. The revisions to the best interests test set out in section 2 of the CYFEA further express the importance of respecting, supporting and preserving children's Indigenous identity, culture, heritage, spirituality, language and traditions. The amendments reflect a greater emphasis on preserving children's connections with culture and cultural communities, and the opportunity to form those connections as central factors that courts are required to take into account when considering the best interests of a child. Nevertheless, as was the case with section 2 prior to the new amendments, these factors are not the only factors that courts must consider and they do not take priority over other factors. Courts must also consider the importance of stability, permanence, continuity of care, long-term safety, and well-being, as well as the other enumerated factors.

292 This also consistent with the considerations laid out in Bill C-92 regarding\ permanent placements: while clearly important, culture does not trump all else. Instead, Bill C-92 clarifies at section 10(1) that the best interests of the child remains the primary and paramount consideration, and at section 10(2) that when the best interest factors 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. In section 10(3), the factors to be considered in the best interest assessment are laid out. Like section 2 of the CYFEA, while considerations regarding culture, language, spirituality, heritage, identity and ties to the community are enumerated, so are factors such as the need for stability, the nature and strength of the child's relationship with his or her parent, care provider [such as foster parents] and other members of the child's family who play an important role in his or her life.

[35]           In Alberta (Child, Youth and Family Enhancement Act, Director) v KC and JP, 2020 ABPC 62, a permanent guardianship case, Judge Glass found the Federal Act and the provincial CYFEA were to operate in parallel fashion, with the Federal Act taking precedence over the provincial Act only to the extent of any inconsistency.

[36]           At paragraph 21, Judge Glass described the applicable paramountcy framework:

21 I am required to determine whether the provincial provisions conflict or are inconsistent with the federal Act. According to section 4 of the federal Act and the constitutional doctrine of paramountcy, the federal Act prevails and is paramount to the extent of any conflict or inconsistency. In Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5 (the “Redwater decision”), the majority of the Supreme Court of Canada described the "two distinct forms of conflict" (at paragraphs 65-66):

65 . . . The first is operational conflict, which arises where compliance with both a valid federal law and a valid provincial law is impossible. Operational conflict arises "where one enactment says 'yes' and the other says 'no', such that 'compliance with one is defiance of the other'" (Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419 (S.C.C.), at para. 18, quoting Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161 (S.C.C.) , at p. 191). The second is frustration of purpose, which occurs where the operation of a valid provincial law is incompatible with a federal legislative purpose. The effect of a provincial law may frustrate the purpose of the federal law, even though it does "not entail a direct violation of the federal law's provisions" (Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3(S.C.C.) , at para. 73). The party relying on frustration of purpose "must first establish the purpose of the relevant federal statute, and then prove that the provincial legislation is incompatible with this purpose" (Lemare, at para. 26, quoting Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536 (S.C.C.) , at para. 66).

66      Under both branches of paramountcy, the burden of proof rests on the party alleging the conflict. This burden is not an easy one to satisfy, as the doctrine of paramountcy is to be applied with restraint. Conflict must be defined narrowly so that each level of government may act as freely as possible within its respective sphere of constitutional authority. "[H]armonious interpretations of federal and provincial legislation should be favoured over an interpretation that results in incompatibility ... [i]n the absence of 'very clear' statutory language to the contrary" (Lemare, at paras. 21 and 27). "It is presumed that Parliament intends its laws to co-exist with provincial laws" (Moloney, at para. 27). As this Court found in Lemare, at paras. 22-23, the application of the doctrine of paramountcy should also give due weight to the principle of co-operative federalism. This principle allows for interplay and overlap between federal and provincial legislation. While co-operative federalism does not impose limits on the otherwise valid exercise of legislative power, it does mean that courts should avoid an expansive interpretation of the purpose of federal legislation which will bring it into conflict with provincial legislation.

[37]           In KC and JP, Judge Glass held in the result at paragraphs 47 to 49:

47 Both the federal Act and the provincial CYFEA are implementing legislation for the Truth and Reconciliation Commission of Canada: Calls to Action and the UN Declaration on the Rights of Indigenous Peoples for indigenous children in care and have a similar purpose.

48 Both give primacy to the "best interests of the child," and the provisions of ss 2 and 34 of CYFEA and section 9 and 10 of the federal Act are to be read in parallel, and the provisions of the federal Act should prevail and be paramount only to the extent of any inconsistency.

49 Sections 16 and 17 of the federal Act further requires consideration of whether the placement of the child near siblings or other family members is consistent with the best interests of the child, and the customs and traditions of Indigenous people with regards to customary adoption. The Court is required to make "a reassessment, conducted on an ongoing basis of whether it would be appropriate to" place the child with "one of the child's parents" or "with another adult member of the child's family," and in the event of neither, to promote "the child's attachment and emotional ties to each such member of his or her family."

[38]           In SL (Re), 2020 ABPC 194, in a private guardianship application like the present case, Judge Mah found at paragraph 48:

48 . . . [I]n the case at bar, the two Acts complement one another, with the federal act enhancing placement considerations for Indigenous children. Section 4 of An Act Respecting specifically addresses instances where there are no conflicts between the pieces of legislation:

For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.

[39]           Later, in JW v Director of Child and Family Services, 2021 ABQB 325, Justice Armstrong found at paragraph 30:

30 The parties agree that the CYFEA and the Federal CYFA do not conflict when it comes to the question of notice of applications for child apprehension orders. The two acts are complementary and can be read together. The complementary relationship between the Federal CYFA and the CYFEA has also been examined by other courts. Following a thorough review of the applicability of the Federal CYFA under section 91(24) of the Constitution Act, 1867, Judge J.A. Glass . . . KC and JP 2020 ABPC 62 said, at para 25:

In my opinion, both the CYFEA and the federal Act, "as a paramount consideration" or as a "primary consideration," place the best interests of the child at the forefront of the analysis (see also, CL, 2020 ABPC 23 (January 29, 2020) Hancock J). This is similarly defined in both respective pieces of legislation, and is subject to considerations of preserving the child's ties to Indigenous culture, family and community. The federal Act, in my view, generally speaking, complements, rather than contradicts, the provincial legislation.

[40]           Judge Glass did not have the benefit of argument from the parties represented before the Court in that matter, so his conclusions should be treated accordingly (KC and JP, at para. 22).

[41]           In SL v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 202 Judge Ho considered the applicability of the Federal Act in the context of a private guardianship application under the CYFEA. In SL, at paragraphs 5 and 6, Judge Ho stated:

5 In an earlier decision, Re PPM, 2020 ABPC 243, Judge Ho held that the federal Act has no application to private guardianship applications under the Family Law Act even if the children are in the care of the Director under permanent guardianship (affirmed by the Court of Queen’s Bench CK v BL and the Director of Child and Family Services (19 May 2021), Wetaskiwin FL 1201833 (ABQB)).

6 I am of the opinion that the federal Act has no application to private guardianship under the CYFEA.

[42]           In SL, at paragraphs 7 through 9, Judge Ho reasoned that “child and family services,” as contemplated by ss 12 and 13 of the Federal Act, means “services to support children and families, including prevention services, early intervention services and child protection services, all of which are services rendered by child protection agencies or delegates authorized by the government to provide services to families where there are concerns about the well-being of children and where child and family services are necessary to reduce the risk of harm.

[43]           At paragraph 12, Judge Ho noted that “if private guardianship is granted, the permanent guardianship terminates by operation of law – s. 40(1)(b) CYFEA. No action by the Director is necessary.”

[44]           In ZB (Re), 2022 ABPC, Judge Tousignant also considered whether the Federal Act applies to private guardianship under the CYFEA.  In ZB, Judge Tousignant considered Judge Ho’s decisions in PPM (Re) and in SL and stated, at paragraphs 46 – 50:

46 My colleague G.N.B. Ho, PCJ has determined that RFNIM does not apply to private guardianship applications under the Family Law Act, SA 2003, c F-4.5 (FLA). In PPM (Re) 2020 ABPC 243, the issue was whether the private guardianship proceedings commenced by the children's grandmother under the FLA were a "civil proceeding in respect of the provision of child and family services". He concluded (at para. 16) that they are not, stating:

The Preamble makes it amply clear that the child and family services contemplated in the legislation are services provided by the federal and provincial governments to assist Indigenous families. Therefore, private guardianship applications are not "child and family services" under the [FLA].

47 I see no difference between private guardianship applications under the FLA (an option no longer available) and those brought under the CYFEA (such as those under consideration in the case before me).

48 Furthermore, in SL v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 202 at para 11, Ho, PCJ reached the same conclusion in a different private guardianship application under the CYFEA:

I also do not consider the preparation of a home assessment report by the Director for the purposes of a private guardianship application to be "child and family services" within the meaning of that term under the federal Act [RFNIM]. A home assessment report is for the purposes of evaluating the suitability, ability and willingness of an applicant to assume the responsibility of a guardian, and opine whether it is in the best interests of the child for the application to be approved. That role is different from the Director's role in providing prevention, intervention, or protection services for a child at risk.

49 Judge Ho finds that the RFNIM does not apply to private guardianship applications at all because private guardianship applications do not involve the "provision of child and family services". S10 references "... the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child ...". And at para 5 he states:

In Re PPM 2020 ABPC 243, I held that the federal Act has no application to private guardianship applications under the Family Law Act even if the children are in the care of the Director under permanent guardianship (affirmed by the Court of Queen's Bench CK v BL and the Director of Child and Family Services (19 May 2021), Wetaskiwin FL12 01833(ABQB).

50 A plain reading of the wording of the statute supports Judge Ho's conclusions, with which I concur.

[45]           In MU v Alberta (Child, Youth and Family Enhancement Act, (Director), 2022 ABPC 42, Judge O’Gorman considered a private guardianship application brought by a foster mother in respect of a child, then 12, who had lived with his foster mother in a long-term placement since he was only five days old. In MU, a permanent guardianship order had been granted in 2011, with no post-PGO access to the parents of the child. The foster mother was the only applicant for private guardianship. At the trial which began in 2021, the Director, while conditionally supportive of the foster mother’s application, proposed an extensive cultural connection plan to be included in the Private Guardianship Order.  The foster mother had been resistant to some of the terms proposed by the Director. Over the course of the proceedings, the Blood Tribe applied for intervenor and party status, and based on an interim decision, was granted permission to make representations about the importance of preserving and enhancing the child’s cultural heritage. In that context, Judge O’Gorman considered recent and significant legislative changes – both provincially and federally - regarding the participation and inclusion of Indigenous communities in child protection matters.

[46]           While much of the MU decision concerned the Blood Tribe’s standing in the trial, and their ability to advance constitutional and Charter issues, Judge O’Gorman focused on the interpretation of best interests in reaching his conclusion that the private guardianship should include an extensive cultural connection plan. At paragraph 227, he stated:

227 Has the state of the law changed since the decision in Racine v Woods? All jurisdictions in Canada have now enacted child welfare legislation requiring judges and agencies to consider a child’s cultural heritage when making a decision regarding the child. The dilemma is how to properly weigh the Indigenous culture as a “best interests” factor.

[47]           Judge O’Gorman then continues, noting recent and comprehensive review by the Quebec Court of Appeal in the Quebec Reference case, noting the pending appeal to the Supreme Court of Canada. He then considers Justice Dario’s decision in SM, emphasizing that (in MU and in SM), the best interests factors that are outlined in s 2 of the provincial CYFEA are not the only factors which must be considered and they do not take priority over other factors.

[48]           In Asikiw Mostos O’Pikinawawisin Society v BL, 2022 APBC 76, Judge Holmstrom issued a stay of that private guardianship application pending a forthcoming decision of the Alberta Court of Queen’s Bench. However, at paragraph 43, Judge Holmstrom agreed with Alberta’s submission (in that case) that “any conflict between the provincial regime and the Federal Act dictates that the Federal Act is paramount”.  At paragraph 43, Judge Holmstrom also agrees that as between AMO law and provincial law, AMO law is paramount.

[49]           In SK v Alberta (Child, Youth and Family Enhancement Act, Director), 2022 ABPC 144, Judge Lloyd considered the provisions specifically applicable to private guardianship applications under the CYFEA and disagreed with the findings of SL and ZB that the Federal Act had no application to these proceedings (at paras 17-18).

[50]           Judge Lloyd explained her rationale at paragraph 19:

19  Children subject of a private guardianship application are in the custody of the director. The Director's guardianship is terminated only after a private guardianship order is granted and so the child remains in the Director's custody until that moment. I note that the CYFEA says that private guardianship orders will not be granted without the Director's consent unless that consent is waived for an appropriate reason. As the Director's consent is a requirement, the CYFEA clearly contemplates that the Director will assess and review private guardianship applications and articulate a position to the court. This assessment and review requirement is a service; indeed, this is the penultimate service the Director will provide should the private guardianship be granted. Finally, it cannot escape notice that the most devastating weapon of colonialism employed in Canada against First Nations children and families was the removal of children from their families and communities. The preamble of the Federal Act clearly identifies that its purpose is to recognize and redress the devastating effects of colonialism, for all these reasons I find that the Federal Act has application to private guardianship.

[51]           Describing the “best interests” test, at paragraph 41, Judge Lloyd writes:

41  The second arm of the test requires that I be satisfied that the private guardianship order sought is in the best interest of the child. This arm of the test must be considered again in a manner consistent with of the various sources of applicable law. A theme that runs consistently through the CYFEA, the Federal Act and the UNDRIPA is that an Indigenous child's interests are best met when they are connected to their families, communities, and cultures. EB of Kanaweyimik testified that in her view the best place for a child to stay connected to his culture is in its home community in the care of family or community members. It is hard to disagree with this opinion.

[52]           In RS v. Alberta (Child, Youth and Family Enhancement Act, Director), 2022 ABPC 176, Judge Filice accepted the findings of Judge Lloyd in SK, and distinguished the earlier cases, at paragraphs 31-37:

31  I note that each of the referenced cases were decided not long after the Federal Act came into force. As with the matters before me, the orders for permanent guardianship were decided well before the legislation came into effect such that, on their facts, the court was challenged with considering allowing further delay of permanency for the children who were subject to the application, by requiring notice to be served under the Federal Act, or by allowing other parties to enter the applications by reason of application of the Federal Act. In SL, for instance, the 5-year-old child had been in the care of the private applicants since they were five days old. There was no competing application before the court and the Nation involved with the child was not opposed to the application. The applicants were also committed to ensuring that the child's Indigenous identity, culture, heritage, language, and traditions were supported and preserved.

32  In PPM, the court held that the grandmother's application which was brought under the Family Law Act (as it then applied) did not require notice to be given under the Federal Act, such as to allow the foster parent's application to also be heard. Of note, in that case, is the fact that Judge Ho found that it would be contrary to the intent of the Federal Act to allow the foster parent to challenge the reunification of the Indigenous children with their families.

33  Finally, in ZB, the court granted the private application of the long-time foster parents over that of the child's cousins. The court applied the analysis in SL and found that the Federal Act did not apply and that, in any event, the child's best interests supported that the application is granted.

34  In my view, each of these cases can be distinguished on their facts. Further, each of them can be seen as representative of the challenge faced by courts in digesting and applying the underlying principles, as well as the interplay between the Federal Act and the operational provisions of provincial child protection legislation. I consider these cases and the matters before me to be "transitional" in nature as we move toward integration and a more fulsome application of the Federal Act from the start of proceedings.

35  More time has now passed since the Federal Act came into force and cases are being decided which say that the Federal Act does apply to post-PGO proceedings. In SK v Alberta, 2022 ABPC 144, for instance, my colleague, Lloyd, J. provides a purposeful and contextualized reading of the Federal Act. The Federal Act, she found, must be read together with the provisions of the United Nations Declaration of the Rights of Indigenous Persons Act S.C. 2021, c.14, which affirms the articles of the United Nations Declaration of the Rights of Indigenous Persons. Both are referenced in the preamble to the Federal Act as is the following:

Whereas the Truth and Reconciliation Commission of Canada's Calls to Action calls for the federal, provincial and Indigenous governments to work together with respect to the welfare of Indigenous children and calls for the enactment of federal legislation that establishes national standards for the welfare of Indigenous children.

36  I therefore concur with Judge Lloyd's statement as follows:

That the law and its many sources is complex is perhaps not surprising as the problem the law seeks to redress is long standing, systemic, and vast. (para 24)

37  All of these laws seek to redress the harm caused by colonization and the effects of residential schools, among other such policies. Given this context, it seems entirely appropriate to say that the provisions of a federal statute – the Federal Act – whose explicit purpose is to redress the harms caused, applies to all child welfare matters which concern Indigenous children.

[53]           On the narrower issue of whether the definition of “child and family services” set out in the Federal Act captures post-PGO applications, Judge Filice considered the statutory definition “includes” is inclusive, and based on the principle of ejusdem generis, does not exhaust the class of services defined in the language (at paragraphs 39-41).

[54]           Finally, Judge Filice considered the role of the bands in the proceedings, despite not having yet developed legislative authority under the Federal Act. She concluded at paragraphs 44-46:

44  I consider the participation of SFN and its IGB in the matters before me as another step in the direction toward the "comprehensive reform of child and family services that are provided in relation to Indigenous children" as contemplated in the preamble of the Federal Act.

45  SFN was clear in stating at the outset that it had not yet developed a comprehensive set of laws as provided for in section 20 of the Federal Act which would allow them to "exercise its legislative authority in relation to child and family services" and, thereby, ousting the authority of the provincial Director in matters concerning its members. In Asikiw Mostos O'Pikinawasiwin Society v BL, 2022 ABPC 76 , Holmstrom, J of this court dealt with the issue of how to deal with an application for private guardianship under the CYFEA in the face of Asikiw Mostos O'Pikinawasiwin Society (AMO) — one of four Nations on Maskwacis near Edmonton, Alberta — asserting authority over the proceedings by virtue of having, in fact, passed its own laws and served notice on both the Federal Minister and the provincial government in accordance with section 20 of the Federal Act. For detailed reasons that I need not repeat here, Judge Holmstrom stayed the private guardianship applications under the CYFEA as that was the only remedy requested by AMO.

46  I expect there will be other First Nations popping up across this country who will take the next step in passing laws and then exerting their authority over child welfare matters, as contemplated by the Federal Act. Until then, as it concerns the matters before me, SFN's participation was appropriate and necessary in accordance with the provisions of the Federal Act, which I will apply to my considerations.

Analysis - Paramountcy

[55]           Alberta argues that the doctrine of paramountcy is not engaged, because, based on an application of s 4 of the Federal Act, both pieces of legislation are complementary and are intended to operate alongside each other. Relying on Redwater, involving federal bankruptcy priorities and provincial property and civil rights, Alberta acknowledges that the Federal Act prevails where there is a genuine conflict, and represents a “carve out” from provincial jurisdiction (at paragraph 64). Citing further in the passage, Alberta argues:

Valid provincial legislation of general application continues to apply in bankruptcy until Parliament legislates pursuant to its exclusive jurisdiction in relation to bankruptcy and insolvency. At that point, the provincial law becomes inoperative to the extent of the conflict.

[56]           According to Alberta, the Federal Act is intended to complement and not supplant provincial jurisdiction over child protection by providing national standards for Indigenous children.

[57]           Alberta points to S(L), where Judge Mah stated at paragraph 30:

30 The substantive application before me concerns the children's guardianship. It requires a determination under s 31(1) of the CYFEA, as well as a consideration of the factors set out in s 2 of the provincial legislation and s 10 of the federal legislation . . .

[58]           According to Alberta, there is no operational or functional conflict when the legislation can be read together harmoniously, particularly where doing so achieves “cooperative federalism.”

[59]           In KC and JP, the Court found an operational inconsistency in the definition of “First Nation” in the provincial Act (at paragraph 15), and found “no such similar requirement to consider these placement alternatives in the CYFEA or to re-assess or monitor whether it is in the best interests of the child to be placed in the custody of an indigenous parent or family member, and to ensure that "the child's attachment and emotional ties" to the family are protected and promoted” (at paragraph 26). According to Judge Glass, the Federal Act applied to the extent of the inconsistency between the Federal Act and the provincial Act, which he found to be underinclusive in several respects.

[60]           The paternal applicants and the Blood Tribe suggest that these inconsistencies mean that the Federal Act displaces the provincial Act and creates a “priority scheme” for the placement of Indigenous children under ss 16 and 17 of the Federal Act.

[61]           Since argument has concluded in this matter, the case-law has developed considerably. In SL and PPM, Judges Ho and Tousignant found that the definition of “child and family services” under the CYFEA does not include post-PGO proceedings, whereas in SK and RS, Judges Lloyd and Filice took a contextual and purposive approach and found that the Federal Act applies concurrently based on the “best interests” test.  I am inclined to the latter view, as the priority placement scheme applies only “to the extent that it is consistent with the best interests test” (Federal Act, s 16(1)). The conflict, as I will explain, is more apparent than real.

[62]           The CYFEA states the "best interests ... of the children are paramount" (s 1.1(a)) and recognizes the role of "Indigenous people ... with respect to the planning and provision of services to and respecting decisions respecting Indigenous families and their children" (s 1.1(d)). The CYFEA requires consideration, when acting in "the best interests of the child ... in the case of an Indigenous child, the importance of respecting, supporting and preserving the child's Indigenous identity, culture, heritage, spirituality, language and traditions" (s 2(1)(c)). Further, "in any decision concerning the placement of the child outside the child's family must include a plan to address the child's need for permanent, formalized ties to people who care about the child and must take into account ... in the care of an Indigenous child, the benefits to the child of a placement where the child's Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and promoted ...." (s 2(1)(j)(iii)).

[63]           Alberta argues that both statutes operate concurrently based on the “best interests” of the child being a “paramount” or “primary” consideration, and that the Federal Act can be read concurrently to consider the Indigenous placement of the child as an “additional” or “further” consideration.

[64]           In my opinion, the provisions pertaining to adoption and private guardianship clearly fall within federal jurisdiction over Indigenous children and there is no operational conflict here. The application of the priority provisions is an additional factor to be considered in weighing the best interests of the child, which can be considered concurrently under both statutes. There is, in other words, no impossibility of “dual compliance” under both pieces of legislation.

[65]           The Quebec Reference, while referring to the order of placement, alludes to the Federal Act as providing “national standards” for the treatment of Indigenous children, states at paragraph 240:

240  Services provided to Aboriginal children will therefore have to meet minimum requirements applicable across Canada, regardless of who provides them. The aim is to guarantee the best interests of every Aboriginal child — physically, psychologically and emotionally, and in keeping with cultural continuity and security as well as substantive equality — while ensuring that certain harmful, "ethnocentric [and] abusive" practices are consigned to oblivion in all areas, in favour of an approach that respects unique Aboriginal characteristics.

[66]           The Quebec Reference made clear that matters of adoption and private guardianship relating to Indigenous children are clearly within federal jurisdiction and subject to federal legislative jurisdiction. The Court stated at paragraphs 324 to 327:

324  [As] Binnie and LeBel, JJ. noted in Canadian Western Bank, it has been held that inter-personal relationships between Aboriginal persons, such as adoptions or family relationships, are matters that are of the essence of this federal head of power:

[61] [...] Thus, in Natural Parents, Laskin C.J. held the provincial Adoption Act to be inapplicable to Indian children on a reserve because to compel the surrender of Indian children to non-Indian parents "would be to touch 'Indianness', to strike at a relationship integral to a matter outside of provincial competence" (pp. 760-61). Similarly, in Derrickson, the Court held that the provisions of the British Columbia Family Relations Act dealing with the division of family property were not applicable to lands reserved for Indians because "[t]he right to possession of lands on an Indian reserve is manifestly of the very essence of the federal exclusive legislative power under s. 91(24) of the Constitution Act, 1867" (p. 296). In Paul v. Paul, 1986 CanLII 57 (SCC), [1986] 1 S.C.R. 306, our Court held that provincial family law could not govern disposition of the matrimonial home on a reserve. In these cases, what was at issue was relationships within Indian families and reserve communities, matters that could be considered absolutely indispensable and essential to their cultural survival. [...]

[Emphasis added by QCCA]

325 Lastly, because "the [federal] government [is] vested with primary constitutional responsibility for securing the welfare of Canada's aboriginal peoples", it has thereby virtually occupied the field by legislating in just about every area of Aboriginal life without these initiatives having been defeated by the courts. This is evident from Canard, for example, a case in which the estate provisions of the Indian Act were challenged on the ground that they fell within the provincial jurisdiction over property and civil rights. All of the Supreme Court justices agreed, without any apparent difficulty, that testamentary matters with respect to deceased Aboriginal individuals fell within the federal power over Aboriginal peoples.

326  In Ritchie, J.'s opinion, it was obvious that "s 91(24) of [the Constitution] clearly vests in the Parliament of Canada the authority to pass laws concerning Indians which are different from the laws which the provincial legislatures may enact concerning the citizens of the various provinces". Beetz, J. expressed the same idea, but in a different way:

The British North America Act, 1867, under the authority of which the Canadian Bill of Rights was enacted, by using the word "Indians" in s. 91(24), creates a racial classification and refers to a racial group for whom it contemplates the possibility of a special treatment. It does not define the expression "Indian". This Parliament can do within constitutional limits by using criteria suited to this purpose but among which it would not appear unreasonable to count marriage and filiation and, unavoidably, intermarriages, in the light of either Indian customs and values which, apparently were not proven in Lavell, or of legislative history of which the Court could and did take cognizance.

327  This is a plenary legislative power, with racial tones, and, as such, it allows the federal government to legislate with respect to Aboriginal peoples generally, which will necessarily result in occasional encroachment on matters that s 92 of the Constitution Act, 1867 reserves to the provinces.

[67]           A review of the case law across Canada supports taking a “contextual and purposive” approach to the interpretation of the CYFEA and the Federal Act described in SK and RS that is consistent with the “best interests” analysis. Both pieces of legislation are implementing legislation for the TRC’s Calls to Action and UNDRIP and need not be read as providing a prima facie conflict in their application. An approach which makes a blanket finding that the Federal Act is inapplicable, in SL and PPM, on the other hand, is inconsistent with the federal jurisdiction over Indigenous children in adoption and private guardianship matters, takes an unnecessarily narrow and technical approach, and does not achieve the objectives of “cooperative federalism” behind the legislation.

[68]           In Mi'kmaw Family and Children's Services of Nova Scotia v RD, 2021 NSSC 66 (February 24, 2021), Justice Marche, described the application of the provincial and federal law as follows at paragraphs 35 to 38:

35 Section 10(2) of FNIM directs that, in assessing the best interests of the child, primary consideration must be given to the child's physical, emotional, and psychological safety, security and well-being, as well as 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 connection to his or her culture.

36 FNIM is meant to augment and enhance provincial and territorial child protection legislation. The approach has been affirmed in CAS v. K.C. and Constance Lake First Nation, 2020 ONSC 5513 (CanLII), 2020 ONCS 5513, and Michif CFS v. C.L.H. and W.J.B., 2020 MBQB 99.

37 In CAS v. K.C. and Constance Lake First Nation, supra, Madame Justice Smith of the Ontario Superior Court found at paragraph 10:

... I interpret the interplay between Bill C-92 [now FNIM] and the CYFSA as establishing an augmented best interests test as the paramount consideration that overrides the hierarchy of placement for Indigenous children as set out at section 16(1) of Bill C-92. A rote application of Bill C-92's section 16(1) to the detriment of the best interests of the Indigenous child detracts from the legislation's overall goal of promoting substantive equality between Indigenous and non-Indigenous children.

38 In a similar manner, I found the interplay between the CFSA and FNIM in Nova Scotia serves to enrich and enhance the best interests test, as it relates to an Indigenous child, to specifically add a consideration of the importance to the child of preserving the child's cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs.

[69]           See also, Children's Aid Society of London and Middlesex v TE, 2021 ONSC 788, at paras 34 and 35, where the Court said: “(. . .) I adopt this interpretation: the augmented best interest provincial test governs.)”

[70]           In KC and JP, at paragraph 24, Judge Glass described the fundamental compatibility of the federal Act and the provincial Act in relation to the placement of indigenous children:

26 The provisions must be understood subject to the important limitation that they are to be applied only "to the extent that is consistent with the best interests of the child" (section 16(1)) . . .

[71]           In British Columbia (Child, Family and Community Service) v MJK, 2020 BCPC 39, Judge Gouge found, at paragraph 13:

. . . I construe the direction in the Federal Statute to mean that I should form an opinion as to A's best interests, and then consider whether placement with Mr. K would be consistent with those interests . . .

[72]           In my opinion, the case law from across Canada is clear there is no “operational inconsistency” between provincial and federal legislation, since it is possible to comply with both by adhering to the best interests standard in both pieces of legislation. In other words, because the “Priority Placement of [an] Indigenous Child” under the Federal Act applies to the extent that it is consistent with the “best interests of the child”, the Federal Act operates on the standard imposed by both statutes. This interpretation is supported by the explicit references to “best interests of the child” being a “paramount” or “primary” consideration under the Federal Act, as well as the reference in s 4 of the Federal Act which suggests that the legislation was intended to be read as consistent with the provincial Act whenever possible.

[73]           The Blood Tribe further argues that the provincial Act frustrates the purpose of the Federal Act. In support of its position, the Blood Tribe cites P (R) v. Alberta (Director of Child, Youth and Family Enhancement), 2015 ABCA 171, where the Court of Appeal at paragraph 7, found:

. . . s 2 of the CYFEA does not allow the Director to give priority to the desirability of a placement giving that child maximum contact with the Aboriginal community of which one or both of her parents belong at the expense of other factors, including the desirability of preserving an established bond with foster parents . . .

[74]           According to the Blood Tribe, this interpretation of the “best interests” test frustrates the principle of cultural continuity and the principle of substantive equality found in the Federal Act. However, after the RP decision, amendments to the provincial Act were made to require consideration of Indigenous culture as part of the “best interests of the child” analysis. These amendments were intended to be remedial in nature, as discussed in KC and JP, at paragraph 15:

15 The CYFEA was amended by "An Act for Strong Families Building Stronger Communities" and came into force on February 28, 2019. The amendments were based on the consensus report of an all-party committee implementing Call to Action number 4 of the Truth and Reconciliation Commission of Canada and article 19 of the UN Declaration on the Rights of Indigenous Peoples for indigenous children in care (see, A Stronger, Safer Tomorrow: A Public Action Plan for the Ministerial Panel on Child Intervention's Final Recommendations, Government of Alberta, Children's Services, June 28, 2018). The federal Act has a similar legislative purpose (see, Backgrounder, Indigenous Services Canada).

[75]           The substantive amendments to the current CYFEA now means that the “best interests of the child” may, in appropriate cases, prioritize the placement of Indigenous children to maximize cultural contact and continuity with the indigenous community (see, SA 2018, ch 24).

[76]           Alberta argues that the Court ought not to adopt an interpretation that frustrates this legislative purpose. Alberta draws an analogy with the “best interests” of the child in mobility applications under the federal Divorce Act in Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, to suggest that “priority placement” should not overwhelm the other factors to be considered, citing Justice McLachlin (as she then was) at paragraph 120: “The desirability of maintaining maximum contact between the child and both parents is but one of those numerous factors, albeit a very significant one.”

[77]           The provincial Act, following remedial amendments, is not inconsistent with cultural considerations. The Federal Act is consistent with provincial Act as it introduced “national standards” for Indigenous children, always consistent with the “best interests of the child.” The “priority placement” provisions of the Federal Act should be interpreted as an additional consideration for Indigenous children that does not frustrate the purpose of provincial legislation.

[78]           The paternal applicants and the Blood Tribe argue the placement provisions ought to operate as a “default” or a “priority scheme.” This is inconsistent with the plain statutory meaning of ss 4 and 16(1) of the Federal Act and would interpret the Federal Act in such a way that frustrates the purpose of the provincial Act and defeats the presumption that the provincial legislation is valid.

Conclusion - Paramountcy

[79]           In the result, I am not convinced that the paternal applicants and the Blood Tribe have met burden of satisfying the Court there is an operational or functional conflict between the Federal Act and the provincial Act, such that it is necessary to interpret the Federal Act as imposing a “default” or “priority scheme” over the provincial Act. Rather, the “priority placement” provisions of the Federal Act are intended to be read harmoniously with the provincial Act, and consistently with the principle of “cooperative federalism.” Both the Federal Act and the provincial Act make the “best interests of the child” the “paramount” or the “primary” consideration, and the “priority placement” provisions of the Federal Act are meant to operate as an additional factor when weighing the best interests of the child, consistent the purposes of cultural continuity and substantive equality described in the Act. The provincial Act and the Federal Act should be read together harmoniously to promote the best interests of Indigenous children, to advance the goals of both pieces of legislation. In my opinion, the doctrine of federal paramountcy is inapplicable.

Part Two – Guardianship

Introduction

[80]           Turning now to the issue of guardianship, because I have found that the Federal Act and the provincial Act should be read together harmoniously to promote the best interests of Indigenous children, I must now consider the best interests of the Child with reference to both pieces of legislation.

[81]           In this case, it is clear on all the evidence before me that the Child has formed lasting connections with both her paternal grandmother and her primary caregiver, and both are significant individuals in the life of the Child. It is also clear that the Child has also formed significant connections with other members of both her extended paternal and maternal families, and with other members of her primary caregiver’s extended family. The issue to be determined in relation to guardianship and regardless of all other considerations, is what is in the best interests of the Child going forward.

[82]           As noted, the trial took place over many months, with 17 witnesses called to give evidence. The proceedings were somewhat interrupted by the pandemic, but also by difficulties in coordinating the schedules of witnesses and counsel for the parties, the Child, the Director, Alberta, and the Blood Tribe. At the conclusion of witnesses’ evidence, I also received and reviewed extensive written submissions and materials.

[83]           The child’s primary caregiver and the child’s paternal family are opposed on the issue of guardianship. Each side wants guardianship.

[84]           The paternal aunt and grandmother have applied together for guardianship. Their application is supported by the Blood Tribe.

[85]           The paternal aunt’s role has been to support her mother, the grandmother, rather than to provide primary care. The grandmother – along with other members of the family – expressed negative views about the opposing party’s motivation, such as stating that “(non-Indigenous caregivers) are in it for the money” and “the kids get kicked out when they are 18, they (non-Indigenous caregivers) don’t continuously love you past 18.” She also expressed the view that this does not happen in Indigenous families.  The grandmother admits the relationship between the Child’s parents was unstable but she also attributes blame to the Child’s deceased mother for police involvement in the domestic violence between the parents and she infers that the Child’s mother negatively influenced the Child’s father in his alcohol abuse, because he didn’t drink as much anymore (now) that he is in a new relationship. The paternal family has no contact or connection with the maternal family, notwithstanding that the Child’s parents had three children together. The grandmother states she has no knowledge of the maternal family other than her belief that the Child’s (other) grandmother is an alcoholic. The paternal family, including the Child’s aunt and grandfather, think it would be better to break off the Child’s relationship with the opposing applicant, notwithstanding that the Child refers to the opposing applicant as “mom.” The Child also “self-corrects” in the grandmother’s presence by changing this reference, “mom”, to the opposing applicant’s given name, which is also used by the grandmother. The grandmother feels “policed” by the opposing applicant. However, when asked what it would be like if the current shared arrangement was continued, the grandmother view is that “it would be okay if the judge says it should stay the same.”

[86]           The opposing applicant, who is the Child’s primary caregiver, also seeks guardianship.

[87]           The Child’s primary caregiver has stated she would honour the Child’s culture and continue to promote her cultural identity as an Indigenous person by maintaining connections with both the maternal and paternal sides of the family as well as by continuing the extensive efforts she has made to involve the Child in Indigenous cultural activities. Her preference going forward would be to reduce the amount of time the Child spends with the paternal family. There is no evidence that she would not follow Court orders. On the contrary, as to the conflict around the grandmother feeling “policed” by the primary caregiver, her view is that it is her obligation and her duty to report to Child and Family Services anything of significance about the Child’s health and well-being, including instances where she felt the Child’s needs were not being met by the paternal family and/or when the paternal family was with the Child but not able to be contacted.

[88]           Counsel for the Child essentially takes no position, noting that the Child is not old enough to instruct counsel, and in any event, has for some time resided in what is essentially a shared parenting arrangement. Counsel for the Child also noted that there does not appear to be any evidence to suggest that the previous, current or projected conduct of the parties will significantly contribute to the Child’s assimilation outside of the cultural group, community or people to which she belongs. The Child’s primary caregiver has made very significant efforts in cultural planning and cultural activities. The Child also has the benefit of time spent with both sides of her Indigenous family, although it is likely the maternal family contact would be lost if the paternal family were to be made guardians. Severing the Child’s attachment to her primary caregiver or to any of her important attachments would harm the Child. Counsel for the Child submits the Court could refuse both applications or consider joint guardianship with shared, or co-parenting.

[89]           Counsel for the Director also takes no position on the guardianship issue other than to submit that the ultimate decision must meet the best interests of the Child, ensuring her needs, including her physical, emotional, psychological and cultural needs are met.

[90]           Counsel for Alberta takes no position on the guardianship issue.

History of Care and Current Needs of the Child

[91]           In terms of the Child’s early history, the evidence establishes that the Child was apprehended at just over 2 months of age due to concerns about her parents’ addictions, substance abuse and domestic violence issues. This was on or about November 6, 2015. The Child is the youngest of three children born to these same parents.  One sibling resides in Fort Macleod with the Child’s paternal grandmother. The other sibling resides in Brocket, with the Child’s maternal aunt and uncle. The paternal grandmother has no contact with this child.

[92]           The Child’s mother, now deceased, belonged to the Piikani Nation. Her father is a member of the Kainai Nation. The relationship is best described as turbulent. Both parents were unstable; both suffered from alcohol and drug addictions which, along with domestic violence, were key factors in the Child’s protection needs and her apprehension. Notwithstanding that the Child’s parents had three children together within a few years, none of the children remained in their care for very long, if at all, nor did the father’s first child from his prior relationship with a girlfriend remain in his care.

[93]           At the time of the Child’s apprehension, the Child’s mother and the primary caregiver had already established a friendship. The two met while the primary caregiver was briefly employed doing respite work as a guard at the jail where the Child’s mother had been remanded.

[94]           The Child’s mother had confided in the primary caregiver about the difficulties growing up and her (then) current struggles with her partner, the Child’s father, and his family not accepting her. She became a friend and support to the Child’s mother. At the time, the Child’s mother and father had a relatively newborn child – a sister to the Child – and they went back and forth between their home and the grandmother’s home. They struggled with parental responsibilities, and the primary caregiver initially helped them with clothes, diapers and transportation to appointments. After this, their contact was sporadic.

[95]           Later on, the primary caregiver saw that the Child’s mother had baby furniture and goods for sale on Facebook. She contacted the Child’s mother to purchase items to use as she was completing her foster parent training. At that time, she learned that the Child’s mother had had another baby a few weeks earlier, being the Child in this case.

[96]           The primary caregiver again continued to provide emotional and practical support to the Child’s mother, including help with household tasks/cleaning, transportation to appointments, child care and groceries. She felt the mother was struggling. For example, once contact resumed, over the following month, it became routine for the primary caregiver to care for the Child over the weekends, returning her to the parents on the Sunday night. On one occasion, the following Friday, the Child was still in the same clothes in which the primary caregiver had dressed her and by then, they were soiled, covered in crusty milk and food. On another occasion, she went to the parents’ home and could see through the window that the Child was crying in her bouncy chair. She banged on the door and woke up the parents, who had been asleep upstairs with their elder child. She wondered why they were relying on her for extended childcare of their newborn, but ultimately decided to help in any way she could.

[97]           Children’s services became involved in October, 2015, when the Child was 2 months old, citing concerns about the parents’ substance abuse and violence in the home. The safety plan for the Child stipulated that either the primary caregiver or the Child’s paternal grandmother were to supervise all parenting between the parents and their two children.

[98]           The primary caregiver received a call from the Child’s mother on October 31, 2015 asking her to come and get her and the two children, saying that their home had been “jumped”. At the time, the primary caregiver was in hospital so her mother went instead, and took the Child’s mother and the two children to the home of the mother’s aunt, in Pincher Creek. The next day, the Child’s mother and the mother’s aunt brought the Child to the hospital and asked the primary caregiver to look after her.

[99]           That night, there was a meeting with Children’s Services at the parents’ home and the primary caregiver was again asked by the parents to provide care for the Child. She reported that when Children’s Services asked if the paternal aunt could provide care for both girls, the parents declined citing that the aunt already had too many children in her care and the grandmother could only take the older child.

[100]      On November 2, 2015, the Child was then apprehended and was formally placed in the primary caregiver’s home.

[101]      There was some evidence that on that day, the Child had been at the paternal aunt’s home but the Child’s parents went together to the paternal aunt’s home, removed the Child and took her to the primary caregiver.

[102]      There was some evidence that the reason the Child’s parents removed her from the paternal aunt’s home and took her to the primary caregiver was because they, or at least the mother, wanted the Child to remain with the primary caregiver, where she had been immediately prior to being apprehended. There was also some evidence that the Child’s mother wanted the Child to remain permanently with the primary caregiver, but also that at on at least one much later occasion, she – the Child’s mother – was unhappy with this arrangement because she felt the caregiver was “supervising” her and putting conditions on her contact with the Child, which she did not want.

[103]      The primary caregiver’s evidence was that she was following the Director’s instructions to ensure appropriate parental involvement under the supervision that was required by the Director at the time. In addition, the maternal grandmother’s evidence was that her daughter (the Child’s mother) wanted the Child to remain permanently with the primary caregiver. The paternal side of the family dispute this.

[104]      Overall, there is a gap in direct evidence on this point because the Child’s mother passed away well prior to the trial and could therefore not testify, and the Child’s father was not called as a witness, notwithstanding that he was available and could have provided helpful evidence to clarify the situation.

[105]      However, at the time of apprehension, Child and Family Services consented to the Child remaining with the primary caregiver as a “kinship” placement, not because she was a blood relation or biological kin to the Child, but on the basis of the legal definition of kinship established by the caregiver having already developed a significant relationship with the Child, perhaps the most significant relationship at that point in the Child’s life.

[106]      Initially, the parents’ visits were minimal as the Child’s parents continued to struggle with their issues. A series of Interim Custody Orders followed, then Temporary Guardianship Orders. After visits were moved to the grandmother’s home every second week, Children’s Services discovered that the parents were having unsupervised visits at the grandmother’s home, contrary to the required safety plan. After that, the Child’s transitions between the caregiver and the grandparents became hostile, with the grandparents engaged in name calling, swearing and yelling at the caregiver in front of the Child.

[107]      The Child’s mother passed away on July 4, 2016, which was shortly after a third Temporary Guardianship Order had been granted on June 14, 2016. A fourth TGO was granted on July 28, 2016 and the primary caregiver continued to supervise the father’s visits, which were increasingly sporadic. On December 22, 2016, the father consented to a Permanent Guardianship Order, with access at the discretion of the Director.

[108]      At the time, no family members had applied for private guardianship, nor were they involved in the Permanent Guardianship proceedings. The record shows that none of the paternal family members attended court for the PGO hearing, although the paternal grandmother testified in this trial that she expected the Child to be placed with the paternal family after the PGO was granted. That did not happen.

[109]      Instead, in February, 2017, the primary caregiver applied for private guardianship of the Child under the provisions of the Family Law Act, intending to proceed in the Court of Queen’s Bench (as it then was). There was some evidence that the primary caregiver was not in favour of the Director’s plan to place the Child with the paternal family because she was attached to the Child and wanted to continue caring for her.

[110]      Shortly afterwards, in April, 2017, the Child’s paternal aunt applied for private guardianship under the CYFEA, in Provincial Court.  The primary caregiver then withdrew her Family Law Act application in the Court of Queen’s Bench and in June, 2017, she filed a fresh Provincial Court application for private guardianship under the CYFEA

[111]      Subsequently, the paternal aunt and grandmother joined together as applicants and on January 8, 2018, a fresh application for private guardianship was filed on their behalf with the assistance of the Blood Tribe.

[112]      The current arrangement, which has been in place more or less since late 2018, is that the Child resides with the caregiver during the week, and with her grandmother on weekends. The paternal aunt has unrestricted time with the Child when she is at her grandmother’s home – since this is the aunt’s own mother’s home – and she assists her mother when childcare is needed.

[113]      The Child is described as happy and generally healthy. Apart from some minor past behavioural issues transitioning between the caregiver’s home and her grandmother’s home, the Child appears well-adjusted to the routine of living in caregiver’s home during the week and spending weekends and holiday time with her grandmother and other members of the paternal family, including her grandfather, aunts, siblings and cousins.

[114]      The primary caregiver facilitates the Child’s attendance at school on the reserve, along with two of her siblings. An early attempt at having the Child reside with her grandmother during the week and with caregiver on weekends was not successful. The Child’s teacher was reportedly concerned about not knowing which paternal family member was bringing the Child to school as she was sent in alone and this apparently caused some behavioural and adjustment issues which were not observed when the caregiver was the person bringing the Child not just to school, but into the classroom. In addition, the grandmother had difficulty getting home from work on time to meet the Child’s school bus on her return from school and as a result, the school bus driver was reluctant to continue driving the Child.

[115]      In addition to transportation to and from school, the primary caregiver participates in field trips and school activities with the Child. The primary caregiver has also enrolled the Child in a number of age-appropriate extra-curricular activities including gymnastics and swimming lessons, and she has involved her in numerous cultural activities such as drumming, smudging ceremonies, jingle dancing, round dancing, Blackfoot language lessons, and Piikani horseback riding. The Child particularly enjoys jingle dancing, for which caregiver provides the required costumes. The caregiver has taken classes to learn how to make ribbon skirts for the Child. The caregiver has taken the Child to the Head Smashed-in Buffalo Jump cultural centre and she has attended numerous pow wows with the Child at Brocket and at Fort Macleod. She has regularly taken the Child to experience First Nations Aboriginal Days in Pincher Creek, Piikani Indian Days in Brocket and other Aboriginal Days and events at various locations on reserve and off. CB has attended a variety of culturally-specific parenting classes, including the Kainai Strengthening Families program.

[116]      At the time of trial, the primary caregiver and the Child lived in a two-storey four-bedroom home in Pincher Creek, along with the primary caregiver’s mother and at times, two of the Child’s cousins from the maternal side of the family temporarily in her care. The home was described as tidy, well-kept and appropriately set up to accommodate the Child. The primary caregiver was not in a relationship with anyone at the time and had no plans to move from Pincher Creek. She had returned to work on a part-time basis and expressed a desire to maintain that arrangement in order to be more available for parenting the Child and for other foster-care and/or respite duties.

[117]      The primary caregiver receives foster care support for the Child, along with other income from her employment. She is a member of the Mormon church, has no alcohol or addictions issues and no involvement with the criminal justice system. She has had no involvement with the child protection system other than as a foster or respite caregiver. She has, in the past, had minor issues with depression or low mood but has sought and received treatment for these concerns. She expresses no ill will towards the Child’s birth family on either side and is willing to maintain the Child’s connections with both sides of the Child’s family.

[118]      The primary caregiver is described as having a positive attitude, but reports that the paternal grandmother is hostile towards her at drop-off and pick-up times. She confirmed that the Child refers to her as “mommy” and she in turn refers to the Child’s mother as the Child’s “tummy mommy” as part of her efforts to keep the Child’s mother alive in her memory. She keeps a picture of the Child’s mother in the Child’s room. She also organizes annual memorial services for the Child’s mother on the anniversary of her death.

[119]      On the paternal side, the Child participates as a member of the paternal family in their traditional activities, which include camping and attending pow wows and other Blood Tribe events. Although they are not members of any of the traditional Kainai societies, the family periodically camp at the annual Sun Dance and prepare food for members of the societies attending the Sun Dance.

[120]      The Child’s grandmother’s own family included seven children, three from her first marriage and four from her second, with her current husband of 30-plus years. All seven children were raised to adulthood, off-reserve, in Calgary, where all attended school. None spoke traditional languages at home. The grandmother and grandfather are fluent in Blackfoot and in English and both languages are now spoken in the home. The grandmother attended residential school briefly in the first grade and reported physical abuse from that time but changed schools and completed her schooling while living at home with her parents and extended family. Her parents were devout Catholics and she attended Christian Bible camps every summer as a child. Initially raised in Siksika, she moved to the Blood Reserve with her mother and other family members at nine years of age, when her parents separated. She became involved in traditional spirituality in her early 30s.

[121]      The grandmother does not permit alcohol or drugs in her home and requires anyone visiting her home, including her (adult) children, to be sober. She is employed with the Blood Tribe Health department in an administrative capacity, arranging transportation for members needing to attend medical appointments. Her husband works in construction in Calgary and is away during the week, returning home on weekends. Their monthly income includes income from employment and child tax benefits. At the time of their application, they were also slated to receive child maintenance payments for the grandchildren in their care.

[122]      At the time of trial, the Child’s grandmother lived in what was described as a nicely furnished and well kept four-bedroom mobile home in Fort Macleod. The grandfather is a Kainai land-holder and the family are waiting to move to a larger house on reserve.

[123]      The composition of the household is best described as fluid, consistent with the family’s traditional Indigenous values. At the time of her home assessment, in 2018, the grandmother’s household reportedly consisted of the grandparents, their youngest son, and three grandchildren including the Child’s sister then age 4, and her son’s children aged 5 and 8.

[124]      At the time of the paternal aunt’s home assessment, she reported that the grandmother’s household included 8 grandchildren: her son’s children – the Child’s sister age 6 and on weekends, the Child age 4, a daughter’s children ages 17, 13 and 6 and her deceased son’s children ages 15, 10 and 7.

[125]      At the time of the best interests’ evaluation in 2020 – at the commencement of trial, the grandmother advised that not including the Child, she had 7 grandchildren in her home, along with other family members. Composition of the household at this time could not be verified because, as noted, the grandmother did not cooperate with attempts to schedule a home visit as part of that evaluation.

[126]      Although reports note that the Child’s grandmother has reportedly struggled in the past with alcohol and gambling, the grandmother does not consider these to be current issues and in her words, essentially, she can do as she pleases as an adult. She had some past involvement with child protection services which, in 2002, resulted in a supervision order. She does not have a criminal record but shared with the best interests assessor, Ms. Crommer, an incident which resulted in her having to go to court in relation to having thrown a rock at a white person who pushed her to the ground while she was pregnant. Her husband, the Child’s grandfather, does have a criminal record, with a number of very dated convictions including three impaired driving convictions (between 1984 and 1986), three assault convictions (between 1990 and 1992) and two more recent but still dated convictions for failing to appear in court (in 2004).

[127]      Police were called to the grandmother’s home towards the end of the trial, reportedly to intervene in a situation involving domestic violence between one of the adult children and his partner, then living in the home. Police had been called previously in relation to incidents of violence between the Child’s parents, when they had lived at the grandmother’s home.

[128]      The grandmother worries about the Child being exposed to racism, such as her own children reportedly experienced while growing up.  She feels “policed” by the Child’s primary caregiver and others in the system.  For example, much trial time was spent exploring issues related to the Child having head lice, which triggered strong emotions from the grandmother about being subject to racist stereotypes.

[129]      The grandmother also worries about the Child not being able to live according to her traditional ways on a day-to-day basis and expressed concerns about the Child being “different” to her other grandchildren, for example, in how she behaved and how she spoke to older members of the family. When the Child was three, the grandmother made a point of telling the Child, who referred to and clearly regarded the primary caregiver as her “mommy”, that the caregiver was not the Child’s mother. While the grandmother referred to this as necessary “truth-telling”, the primary caregiver reported that this had a harmful impact on the Child, with negative behavioural consequences.

[130]      At the time of her home assessment, in 2017, the paternal aunt was a stay-at-home single parent. She lived in a four-bedroom bi-level home in Standoff, described as well-kept and nicely furnished. There were five people in the household: herself and four children, including her two biological children (then ages 8 and 7) and two of her brothers’ children through private guardianship, one who is the Child’s elder half-sibling (then age 4) and one who is the child of another brother (then age 15). The paternal aunt had ended her relationship with her children’s father due to his addiction issues, particularly his use of fentanyl. By the time of trial, the paternal aunt was in a new relationship, had moved to Cardston and had had a baby with her new partner, who was himself a parent and the caregiver to three additional children of his own.

[131]      The paternal aunt expressed a desire to maintain the Child’s cultural connections and was instrumental in arranging the Child’s Indigenous naming ceremony, considered to be an important event in the Child’s life.  She invited the primary caregiver to bring the Child and to attend the naming ceremony and celebrations. Then, and for some time, the paternal aunt acted as a peacemaker as to misunderstandings or conflicts between the primary caregiver and the grandmother. This role diminished after an incident in which the paternal aunt and grandmother felt disrespected because they had not been informed that the Child had been taken to hospital – briefly – by the primary caregiver.

[132]      Home Assessments and Best Interests Evaluation

[133]      In terms of formal assessments, the court heard from three witnesses, including two experts, Brenda Manyfingers and Chelsie Grenier, who prepared home assessment reports, and one additional expert, Jan Crommer, who provided a best interests evaluation for the Court. Ms. Manyfingers prepared the home assessments of both paternal applicants and was called on their behalf, while Ms. Grenier was called on behalf of the primary caregiver. In addition to these formal reports, on-going departmental assessment records were made available to the Court. These were prepared by Tara Day Chief, a caseworker (at the time) for the South Region Child and Family Services.

[134]      Ms. Crommer, the best interests assessor, was jointly retained by all the parties by the terms of a Consent Order granted May 6, 2020 by (now) Chief Judge Redman. At trial, Ms. Crommer was examined in chief by counsel for the Child.

[135]      As noted, home assessment reports were completed for each of the parties. The first-in-time was a Home Study prepared by Mary Knowlton and approved on November 20, 2015 in relation to the primary caregiver. Mary Knowlton was not called as a witness and her report was not tendered as a full exhibit but was exhibited for identification purposes only. Based on information provided by counsel at the pre-trial stage, my understanding is that this is because of difficulties locating the witness who was, by then, no longer employed by Children’s Services.

[136]      Of the exhibited reports, one concerned the paternal aunt, one was about the paternal grandmother (who was assessed with her husband), and one, about the primary caregiver. The timing is as follows: the paternal aunt’s home assessment was completed on March 27, 2017 by Brenda Manyfingers; the update to the primary caregiver’s 2015 home assessment was completed on September 2, 2017 by Chelsie Grenier; the grandparents’  home assessment, also prepared by Brenda Manyfingers, was completed on March 14, 2018. Ms Day Chief compiled the on-going assessment records in two parts, with the first covering the period from September 9, 2016 to September 9, 2018 and the second for the period from September 9, 2018 to Aprl 30, 2020. 

[137]      The best interests evaluation was completed June 23, 2020 and updated on September 3, 2020 by Jan Crommer. Ms. Crommer’s evaluation was meant to assess all three parties along with the Child, but the grandmother did not fully complete her part of the evaluation, particularly the home visit part. The report includes an extensive summary of her efforts to meet with the grandmother and to schedule the home visit, with details of over approximately seven pages of the report (out of a total of 43 pages) about Ms. Crommer’s multiple attempts on over 55 separate days between March 17, 2020 and August 26, 2020, by phone and email, to arrange dates and times for the grandmother’s interviews and home visit prior to a court deadline (after adjournment) of September 3, 2020. The grandmother’s offer to have the home visit assessment completed while she was camping with family members was not accepted because Ms. Crommer’s assessment required observation of the Child’s interaction with the family in their ordinary home environment, not while the family were on vacation.

Evidence of Brenda Manyfingers

[138]      In terms of her formal assessments of the grandparents and the paternal aunt, Brenda Manyfingers testified as an expert in with training in conducting parenting capacity assessments. She had been a front-line child welfare worker before transitioning into management and obtaining a Masters’ degree, after which she developed her own practice doing parenting assessments primarily with First Nations clientele. She previously qualified on one occasion as an expert for this Court. She testified that she does not conduct so-called SAFE home assessments with Indigenous parties because these require an assessment model and/or asking questions – such as those about sexuality – which are not considered appropriate for Indigenous or – in her words – “traditional people”. Ms. Manyfingers is non-status, but familiar with Blood Tribe ways as a result of being married to her husband of 30+ years who from the Blood Tribe.

[139]      Both Ms. Manyfingers’ assessments in September 2017 and March 2018, respectively, follow the same format. In each, the first part outlines basic health, education, employment and religious, cultural, racial and ethnic background information about the applicant, as well as information about involvement with child protection or the legal system, if any, family history and personal characteristics. The second part of each assessment considers family dynamics, including such things as composition, marital relationships, communication, individual autonomy, problem solving and crisis management, emotional interactions, and family traditions. The latter looks specifically at philosophies around child-rearing as well as interests, hobbies and social supports. The third part of each report focusses on home and community, with the fourth part providing basic information about the Child and the applicant’s interactions with the Child. The fifth part provides details about income and employment while the remaining parts of the report concern motivation and references and provide a summary of visits and interviews conducted. Lastly, each report provides a summary and recommendation regarding the application.

[140]      Both of Ms Manyfingers assessments included a cultural connection plan for the Child, answer to the question “how does the Applicant plan to foster the child’s connection with aboriginal culture, heritage, spirituality and traditions?”

[141]      The paternal aunt’s application states:

Currently (the Child) lives in a Caucasian home in Pincher Creek, AB. (The applicant) plans to engage (the Child) with traditional protocols and practices so (the Child) can identifies (sic) as a member of the Blood people. The Key (sic) society members have been identified and have agreed to connect the child and her family to their activities. (The applicant) has started the process of Black Foot child rearing protocols, by arranging a naming ceremony for (the Child) to received (sic) her traditional spiritual name. (The Child) was given her traditional name on March 29, 2017 with the supports of holy society members and they will gradually support (the Child) and (the applicant). The child and her family will need to be available when called upon to attend the necessary ceremonies.

[142]      The joint application, by aunt and grandmother together, states:

(The applicants) are biological (paternal) relatives to (the Child). (The grandmother) has legal guardianship of one sibling of (the Child’s) while (the aunt) has guardianship of another. (The applicants) are part of a significant-sized family which will allow (the Child) to be immersed in her culture on a daily basis. (The applicants) are part of traditional ceremonial events such as the Sundance, pow wows and are very involved with community events on the Blood Reserve. (The applicants) plan to engage (the Child) with traditional practices and protocols so (the Child) can identity as a member of the Black Foot people”.

[143]      In both cases, Ms. Manyfingers recommendation was that the applicants be favourably considered in their respective applications for private guardianship.

[144]      In the case of the paternal aunt, Ms.Manyfingers concludes:

“(X) is a young single parent of four children. She is very stable, energetic and resourceful. (X) has assumed private guardianship of children in the past and is aware of the social, emotional and legal aspects of guardianship. (The Child) has been visiting overnight on weekends for several months. She is healthy with no special needs and is showing signs of attachment. (X) is family oriented and has a large extended family who are very close and a significant source of healthy support. Based on the findings of this report it is recommended that (X) be favorably considered in her application for private guardianship of her niece (the Child).”

[145]      In the case of the grandparents, Ms. Manyfingers concludes:

“(The grandparents) have been raising children for more than 30 years and are skilled caregivers. They assumed private guardianship of a granddaughter and have raised other young relatives over the years. (They) have had ongoing visits with their granddaughter (the Child) since late 2016. They are very attached to (the Child) and wish to pursue joint guardianship with their daughter (X). Based on the findings in this report it is recommended (they) be favorably considered for their application of (sic) private guardianship.”

Evidence of Chelsie Grenier

[146]      The formal assessment of the primary caregiver commenced with a Home Study which was approved November 20, 2015 and prepared by Mary Knowlton. As noted, at trial, this was tendered only for information purposes. The addendum to this report, completed September 2, 2017 was prepared by Chelsie Grenier, and provides similar information to what was provided in the reports on the grandparents and the aunt, albeit in a slightly different format.

[147]      With similar qualifications to Ms. Manyfingers, Ms. Grenier testified as an expert, with particular expertise in SAFE home assessments. MS. Grenier has a background in social work, holds a Masters’ of Social Work and has been qualified as an expert on parenting on one prior occasion. She has both clinical and teaching experience. She has experience in conducting parenting assessments – including SAFE home assessments – and in conducting functional behavioural psychological assessments and child protection consultations, including those related to clients with substantial mental health disorders, and children, youth and families impacted by neurobehavioural conditions.

[148]      Ms. Grenier’s report provides an overview of the meetings and interviews conducted with the primary caregiver, and includes sections on understanding and motivation, home and community, family lifestyle, personal characteristics – including commitment/responsibility, problem-solving, interpersonal relationships, health and physical stamina, self-esteem, acceptance of difference, coping skills, impulse control, mood, anger management/resolution skills, judgment, and adaptability. Additional sections address topics such as others residing in the home and the physical and social environment of the home, finances, social supports and general parenting skills. The latter includes information from references and observation(s) within the home and the applicant’s child development training and experience, if any, as well as details about parenting style, disciplinary methods, child supervisions, learning experiences, parental roles, child interactions, communication, basic care and child’s play. In terms of specialized parenting skills, the report also provides information about the applicant’s expectations, understanding of the effects of abuse and/or neglect, the effects of sexual abuse, separation and loss, the importance of routine and structure, therapeutic and educational resources, birth sibling relationships, birth parent issues and cross-cultural issues.

[149]      Finally, Ms. Grenier’s report includes psychosocial evaluation conclusions about the applicant herself and as the primary attachment figure for the Child. In particular, Ms. Grenier concludes:

“There are no issues identified that would prevent (the primary caregiver) from successfully providing a safe and stable environment for the Child. Future issues may affect (the Child’s) placement such as the suspected diagnosis of an FASD. …(and) the primary caregiver is the primary attachment figure to (the Child); she has been her primary fulltime caregiver since she was two months old and (the Child) is bonded to her. This relationship has provide and continues to provide a secure base from which (the Child’s) health, social, cognitive, and mental health related development proceeds. Attachment bonds are essential for humans, especially in the first three years of life when attachment bonds are developing. Research among non-adoptive families indicates that a secure attachment with a caregiver is vital for psychological adjustment, in infancy and throughout childhood. When attachment is disrupted, disorders of attachment such as failure to thrive, personality disorders, depressive disorders, reactive attachment disorders and may other issues including educational and behavioural problems can arise. Continuing to support healthy attachments for (the Child) will be essential to supporting her healthy development in all areas.”

[150]      In terms of cultural connection planning, the required form was filed June 12, 2017, as a separate attachment to the Safe Home Study Report prepared by Mary Knowlton which, as noted, was entered as an exhibit for identification purposes.

[151]      The Addendum to the Approved Home Study contains references to cultural planning, but not a plan as a separate attachment.

[152]      Those references include the following:

[153]      (The Applicant) is committed to maintaining (the Child’s) family connections and will always support family visits. (The applicant) has an interest in aboriginal culture and will continue to participate in and learn about the culture throughout (the Child’s) life in order to support her.

[154]      (The Applicant) … enjoys learning about and participating in aboriginal culture…

[155]      (The Applicant) acknowledges the cultural differences between (the Child) and herself and is committed to learning about and participating in (the Child’s) culture.

[156]      (The Applicant) … participates in cultural events with (the Child) such as traditional parenting courses, aboriginal mix and mingle, drum and song classes and is committed to continuing this level of engagement.

Evidence of Tara Day Chief

[157]      In terms of on-going assessments, Ms. Day Chief testified that she was first involved with the family in September, 2016, when the file was still at the TGO stage, albeit the 3rd TGO. The Child had been placed with the primary caregiver; her mother had passed away.

[158]      Her evidence was as follows:

[159]      Her first home visit was with grandmother and father as father resided with grandmother at the time.

[160]      They had monthly meetings; the child was doing well.

[161]      The father had day visits at the time.

[162]      Child and Family Services was looking into permanency for the Child but needed safety checks to be completed, which was done.

[163]       They then wanted to start weekend visits with the paternal aunt. There was one weekend visit but lots of cancellations, due to the aunt’s work schedule.

[164]      There was no consistency with the paternal family so she was advised to bring a permanent guardianship application, to which the father consented. The Permanent Guardianship Order was granted Dec. 22, 2016.

[165]      The family had a visit at Christmas, requested by the paternal aunt. There was some concern noted because when the Child was brought back to the primary caregiver, she not properly dressed, didn’t have a winter coat on, didn’t return with her belongings. The matter of the belongings was not really important to the primary caregiver, it was more a concern that the Child wasn’t dressed for the weather.

[166]      Visits put on hold until that could be sorted out.

[167]      After the Permanent Guardianship Order was granted, she set up a family conference meeting with both sides of the family. The primary caregiver attended with her support people. Only the father showed up from paternal side. On the maternal side, the maternal grandmother as well as her daughter – one of the Child’s maternal aunts – attended. They were to discuss the transition plan to family, but then the primary caregiver filed for guardianship so that was put on hold.

[168]      She was advised to continue with visits, but they couldn’t do an official move to the paternal aunt; that was put on hold. The department filed an application for guardianship on behalf of the aunt, and later, filed again with a joint application for the grandmother and the aunt. The intention was to try and work towards a family placement but essentially the court proceedings stalled that.

(a)   She had a good relationship with the grandmother but lots of difficulty connecting with her; her contact with the paternal family was and is not as often as she would like. The grandmother is very busy. The grandmother and the paternal aunt both work. Visits in 2017 were supposed to be every other weekend, but didn’t always happen. In 2018, day visits were added but both weekend and day visits were inconsistent, so the department arranged a driver through the Blood Tribe so the Child could get to her weekend visits with her aunt; she knew sometimes both the aunt and the grandmother had vehicle problems. The primary caregiver observed and reported the Child started having meltdowns when the driver came and didn’t want to get into her car seat.

(b)   In terms of communication between the parties, sometimes it was good and sometimes not. At times, the primary caregiver could not reach either the paternal aunt or the grandmother; she would message them and not be able to get a response. The grandmother didn’t feel comfortable with the primary caregiver; she felt like everything she was trying to do would be considered wrong for the primary caregiver

(c)   Consistency improved with the driver. Towards the end of 2018, the department decided to change the visits to 50/50 for each party – meaning the grandmother and the primary caregiver. Visits were Sunday to Wednesday with the grandmother and then Wednesday to Sunday with the primary caregiver to give each side equal visits, equal time and equal opportunity with the Child. She also wanted to give the Child an opportunity to attend a reserve school. At that point, she was 3 ½, going on 4. The grandmother wanted her to attend the Head Start Program at Saipoyi Elementary School, to learn her culture and her language and the primary caregiver agreed.

(d)   By 2019, the Child was essentially in a joint parenting situation, and the department ended the driver because they felt it was easier for the Child if the primary caregiver was doing the transportation and dropping her off and picking her up at the grandmother’s home.

(e)   Transitions could be difficult for the Child. In her view, it was easier in the sense that when she was getting home from grandmother’s, it would take her a day just to unwind or get back to feeling relaxed at the primary caregiver’s home. She witnessed the Child crying when she went home to the primary caregivers’s home. She consulted an aboriginal counsellor, Ms. Deborah Pace, who advised it was normal. The counsellor thought the Child saw the primary caregiver as a mother and that home as her home, being comfortable there and not wanting to go, and then coming back and being angry with her “mom” and her acting out was very normal.

(f)   Ms. Day Chief did see the Child once at the paternal aunt’s home, and noted the Child was quite happy to see the aunt when she came out to the vehicle.

(g)   She has not had an opportunity to see the Child at the grandmother’s home since these guardianship applications have been filed; she would set up visits but something always came up for the grandmother and the visits would have to be cancelled.

(h)   She tried to get the grandmother and aunt to work together with the primary caregiver and asked them to all attend a traditional parenting program – the Kainai Strengthening Program – but only the primary caregiver and her own mother attended and completed the program; the grandmother and the paternal aunt did not attend or complete the program.

(i)     Ms. Day Chief’s intention was to foster learning about culture, language, protocols, communication with children, communication in the home, not just amongst adults but amongst the adults and the children, understanding how an aboriginal family functions and communicates at home, what’s important and what they have respect for. This was meant to be a teaching tool for the primary caregiver and her mother and the intention was to have both families attend together.

(j)     The primary caregiver was always willing to attend and to learn and she was already attending ParentLink in 2016 when Ms. Day Chief took the file over. The primary caregiver was also talking to Piikani elders to get insight, very involved, always willing, even on Christmas Day to bring the Child to the Horn Society pow wow, to dance. The primary caregiver also brough the Child to a Sun Dance in 2017, for example.

(k)   Ms. Day Chief did follow up with the school, with the teachers, to see how the Child was adjusting. Concerns were raised. The teacher felt whoever was dropping the Child off was just pushing her in the classroom, not walking her in and giving her the chance to transition smoothly into going to school or going home from school. There were struggles with the bus driver also; he was getting quite concerned that there were times he would drop off the child and there would be nobody home, he would have to wait, he was quite upset and concerned. The grandmother was receptive to the discussions about this and advised she would have someone there when the child came home.

(l)     The Child had also missed field trips which would happen on the Thursdays when she was brought back home. Ms. Day Chief consulted her managers to get the ok for the primary caregiver to be part of those field trips and to attend.

(m) The teacher noticed a big difference when the Child would come in from Monday to Wednesday, and then the days that primary caregiver would bring her to school, it was just like she would liven up, she was a happy child.

(n)   The Child’s father had contact with the Child when she was at the grandmother’s home.

(o)   Ms. Day Chief could not make decisions about the file by herself. Once the guardianship applications were filed, she and her supervisors had to consult with their manager and that’s where the majority of the decisions came from.

(p)   There was consistent contact and consultation with the Blood Tribe band designate, Ms. Deb Hellwig, to ensure needs of the Child are being met and to plan for permanency. She also met once with Piikani Band designate when they had a family conference, on January 27, 2017. The father and the Child are registered with the Blood Tribe ; the mother was registered with the Piikani First Nation. In late 2016, the father was asked to gather family in advance of the family conference. On his side of the family, only he attended. The indication was the grandmother and the aunt had work commitments but in any event, they did not attend.

Evidence of Jan Crommer

[169]      Ms. Crommer, as noted, was called as an expert in parenting assessments, with specializations in individual, couple, and family therapy, family functioning assessments, families transitioning through separation and divorce, effective co-parenting and conflict resolution with a specialization in family mediation, meeting with children as a child consultant, preparing Voice of the Child reports, and Practise Note 7 reports. She has both clinical and teaching experience and also holds a Master’s degree in Social Work - Clinical Specialization, as well as certificates in arbitration and conflict resolution. She has extensive, additional training related to these areas dating back to 2003.

[170]      As to the scope and limitations of Ms. Crommer’s report, she was clear that the report was not meant to be a custody/access evaluation, nor a mobility assessment, nor a continuation or part of either, nor a formal child assessment. Instead, it provided a summary of observations/interventions related to Ms. Crommer’s involvement in the matter pursuant to the terms of the Consent Order by which she was appointed as a parenting expert to complete a best interests evaluation in relation to the private guardianship applications.

[171]      Noting that the report was meant for current use only and that “… reference to these results and recommendations in the future should be made with these limitations in mind”, Ms. Crommer’s evaluation included information about her clinical process and the dates of meetings, including an extensive history of her attempts to schedule appointments with the parties, and summaries of the information she gained and her clinical observations from consultation sessions with the applicants, and in the grandmother’s case, also included (the grandfather) Ms. Crommer also met with the Child.

[172]      The consultations, where available, included information from the parties, the Child, and collateral contacts about the Child’s cultural connection and community, and her connection(s) and relationships to the maternal family system, the paternal family system and (the primary caregiver’s) family system as well as details about current stressors within each family system. Much of the information was obtained via telephone consultation and office visits, with the parties, the Child and collaterally, the Child’s pre-kindergarten teacher. Ms. Crommer also requested home visits with the parties in the presence of the Child and was able to conduct in-home assessments with both (the primary caregiver and the aunt). As noted, the grandmother did not facilitate home visits as requested, notwithstanding Ms. Crommer’s multiple attempts over many months to observe and assess the Child with the grandparents and family in their home.

[173]      Ms. Crommer’s observations and conclusions are as follows:

[174]      The Child appeared to be developing appropriately with regards to cognitive stages for advancement in school, where she is described as meeting social/peer stages of development.

[175]      The Child is exposed to a First Nations cultural sense of identity by living at her grandmother’s home and through programming at her school. Both grandparents involve the Child in pow wows, attending the Sun Dance and other local First Nations celebrations. The Child identifies herself and her dad in a manner consistent with their Indigenous heritage, for example, colouring with appropriate skin tones.

[176]      The Child is also exposed to First Nations culture and activities through the Napi Friendship Centre in Pincher Creek, smudging, Elder ceremonies and prayer services.

[177]      The Child identifies the primary caregiver as “mom” and primary caregiver and the person to whom she seeks out nurturing and comfort.

[178]      The Child sees her “web” of caregivers as including her “mom”, her Nana (the primary caregiver’s mom), and her aunty “x” (the primary caregiver’s sister). At the grandmother’s home, the Child did not indicate any relational interactions with grandmother but indicated she missed her mom when at grandma’s. Her relational interactions at grandmother’s included playing with her sister and her cousin.

[179]      The grandparents shared their love and concern for their granddaughter and their desire to have their granddaughter live with them and raised within an Indigenous culture and family system. They both describe devoting their lives to their children and children’s well-being. They are now raising their grandchildren as their children have experienced difficulties with substance misuse resulting in Children’s Services involvement. They experienced the loss of one son due to overdose. Despite this, they are still working to provide a supportive and caring family connection and sense of belonging for their grandchildren. Addictions are prominent within the family system and reportedly in the maternal family system. Of concern is the lack of transparency by paternal family about these issues and throughout the assessment process, the projection of blame for the father’s addictions and violent behaviours as being the mother’s fault.

[180]      The paternal aunt shared her connection to family and culture and spoke to establishing healthy boundaries within the community and her family with respect to needing to “step back” and focus on her children and their well-being. She shared that she wants to support her family of origin and those that help themselves but will not enable maladaptive behaviour, but at the same time, she made a concerted effort to minimize exposure to substance abuse both within the extended family and the community. She described her role in the application for guardianship as being a back-up in case her mother wasn’t available, and she shared that the Child was closer to her mother than to herself. Despite the desire to be a co-applicant to provide care for the Child, the aunt was not able to provide alternative care during the assessment in order for Grandmother to attend appointments and she also experienced significant barriers to being able to attend appointments with the writer.

[181]      Based on the information collected and observed, it is Ms. Crommer’s clinical impression that the Child would be significantly negatively impacted by the loss of relationship to “mom.” A physical loss of a caregiver in the sense of death can be processed in a manner different to emotional losses of a caregiver who is physically available however emotionally unavailable.

[182]      In the latter case, it is typical for the Child to experience a negative internal trajectory that leaves them to question their role in what is perceived as rejection and abandonment. This typically lends itself to questioning one’s sense of identity and self-worth, which tends to increase the layers of trauma effects within a cultural and family system that has been impacted by intergenerational traumas arising from assimilation and colonization.

[183]      In this case, the Child has already experienced the removal of a primary caregiver at a young age and then the subsequent death of that caregiver. She has also not been able to be cared for by her father and at times be considered to be at risk in his presence, consistent with the absence of return to his care by Children’s Services.

[184]      The Child also has a family history of substance abuse which increases her risk factors to further trauma.

[185]      With shared caregiving for younger children, it is common to begin with shorter time frames. Success depends on many factors inclusive of the child’s relationship with the caregivers, the child’s affinity to the caregivers, the caregivers’ ability to respond to the child’s needs and to provide and facilitate positive relationships for the child within the child’s family system and promote the child’s ability to experience a shared family sense of belonging. When this isn’t able to occur for children, the children often experience emotional loyalty binds which present the foundation for further negative developmental experiences.

Indigenous Testimony

[186]      The paternal applicants called three expert witnesses who testified about Indigenous history, Indigenous child welfare and the TRC process and lay witnesses including two Elders and a Kainai band designate.

Evidence of Dr. Raven Sinclair

[187]      Dr. Raven Sinclair was called and qualified as an expert in Indigenous child welfare and Indigenous social work. She has no expertise in the area of attachment theory.

[188]      Dr Sinclair’s area of study is Indigenous children being placed in care since the 1950s including 60s scoop. She herself is a 60s scoop survivor, which she states is a reference to Indigenous children being removed from biological homes and placed in non-Indigenous homes without any protection concerns, resulting in a complete loss of connection to biological family and culture.

[189]      Dr. Sinclair’s opinion was that if not returned to the primary care of her paternal family, the Child will develop identity conflicts, be isolated from family, community and culture and be raised in a foreign religion, may be at risk of mental health problems, substance abuse, unemployment, incarceration, suicide, racism, discrimination for which there will be little or no support – and foster family can simply “wash their hands” of the Child as others have done since they aren’t really theirs anyway. She offered the generalized view that when money stops coming in, it is astonishing how many permanent wards end up homeless, incarcerated or lost to suicide.

[190]      Dr. Sinclair indicated if the Child is not returned to family, she will suffer the same culture, family and language losses as the 60s scoop survivors. She concluded that is it unfathomable for a young, inexperienced, single non-Indigenous woman whose sole source of income is her foster care support payments to be deemed an appropriate parent for a Kainai child.

[191]      Dr. Sinclair suggested the primary caregiver in this case could never provide the Child with essential biological family bonding or Indigenous knowledge.

[192]      Dr. Sinclair indicated that the paternal applicants have a large extended kinship network that is healthy and supportive.

[193]      In terms of limitations on Dr. Sinclair’s expertise, I note the following:

[194]      Dr. Sinclair indicated that there were no cases where her evidence was not accepted by the courts; however, there are at least three reported cases where her evidence was not admissible, including JG and RG v Awasis Agency of Northern Manitoba, LLB and FC, 2012 MBQB 102 (CanLII); EV v RB, 2019 BCPC 205; and SM v Alberta (Child, Youth and Family Enhancement, Director), 2019 ABQB 972.

[195]       Dr. Sinclair had no prior knowledge of this case nor had she met the Child or any of the parties involved.

[196]      Dr. Sinclair did not review any of the relevant reports before completing her own “Application Review and Assessment” (Ex 20). For example, she did not review either of the Ongoing Assessments (ex 7 and 8) or Chelsea Grenier’s Home Study (ex 2) or Jan Crommer’s Best Interests Evaluation (ex 17) therefore had very limited information upon which to base her own assessment.

[197]      Dr. Sinclair’s evidence included both opinion and argument about the facts of this particular case, and about the law, in a manner well beyond the scope of her role as an expert. She also provided opinion about the substance of decided cases. I note that it is not the place of an expert to make partisan submissions or arguments on facts or law to attempt to usurp the position of the trier of fact on the ultimate issues before the Court. Any such testimony is improper, not expert evidence, and is not helpful to the Court.

[198]      Dr. Sinclair’s evidence included inference, speculation and generalizations about a number of matters for which limited or no evidentiary foundation was provided. For example, Dr. Sinclair speculated that in this case the primary caregiver’s involvement in the Child’s guardianship is exacerbating the dispute between the existing maternal and paternal family factions; she concluded that the primary caregiver is taking sides and is aligned with the maternal family to the detriment of the paternal family. She also concluded that the primary caregiver has a “crisis orientation” to common childhood events and minor upsets as evidenced by texts and emails sent by the caregiver to her supervisor.

[199]      Contrary to the evidence of other experts, including Chelsea Grenier and Jan Crommer, Dr. Sinclair asserted that there is no evidence nor any research that bonding and attachment increase over time. However, she did not provide any research or evidence to support this assertion.

[200]      Although expressing confidence in the paternal family system, Dr. Sinclair had not met any of the paternal family and was unaware that Children’s Services were involved in recent and significant issues concerning police being called to the grandmother’s home to address her children’s addictions and domestic violence in that very residence.

[201]      Dr. Sinclair did not address the fact that the Child in this was removed from family for significant child protection concerns, nor that the primary caregiver had made significant efforts to maintain the Child’s familial and cultural connections on both the paternal and maternal sides. She also failed to address the Child’s bond or attachment to her primary caregiver.

[202]      Dr. Sinclair admitted there have been significant legislative changes since the 60s scoop with Indigenous children’s culture, background and family now being considered as part of the best interest test.

[203]      Dr. Sinclair confirmed the studies she cited concerned a very specific group of 60s scoop litigants who are completely cut off from their Indigenous culture.

[204]      Dr Sinclair also asserted that researchers did not have complete statistical information about longevity of connection with adoptive/foster caregivers. In her view, her own work with hundreds of survivors indicated that approximately 60% of these adoptees upon emancipation are completely and permanently estranged from their foster/adoptive families. When asked about the remaining 40% of such adoptees, Dr. Sinclair indicated that 20% do reconnect with their adoptive families, but on cross-examination, she could not point to a specific study to support this assertion.  She stated she could not comment on studies pertaining to Indigenous children raised in non-Indigenous homes who do reconnect since she was not aware of the extent of the Child’s circumstances in this case.

[205]      Many comments in Dr. Sinclair’s evidence appear to exhibit a clear bias in favour of the paternal applicants, which limits the usefulness of her opinion. This type of evidence is not in keeping with the duty of an expert to provide an independent and impartial opinion to assist the court. As well, it is problematic that several comments are highly prejudicial to the primary caregiver while also lacking probative value.

Evidence of Dr. Jeannine Carriere

[206]      Dr. Jeannine Carriere, a social worker by training and trade, was called as an expert in Indigenous matters, specifically, in Indigenous child and family well-being, Indigenous identity and loss in the child welfare system, and Indigenous adoption. 

[207]      Dr. Carriere’s evidence concerned the limitations of attachment theory in its application to the placement of First Nation children and specifically, how culture and family placements contribute to the development of First Nation children needing alternative care.

[208]      Dr. Carriere’s evidence was that attachment theory is an “old” theory which creates on-going trauma for Indigenous children and families. The basis for this assertion includes academic studies which question the validity of attachment theory as it pertains to Indigenous parenting practices. These studies conclude, effectively, that attachment theory does not fully reflect the reality of an Aboriginal infant’s life and socialization experiences, and that the qualities that emerge from the mother-infant relationship do not necessarily transfer to other relationships because the roles others play in the child’s life take on a different meaning in Aboriginal families.

[209]      Dr. Carriere pointed to Indigenous belief systems which link their collective view of identity to traditional views of children as “gifts from the Creator” having a critical place in the family and community they are from. In this model, as explained by Dr. Carriere, Elders play a critical role in the identity formation of Indigenous children. As well as teaching them about traditional ways, culture and ceremony, Elders can provide a form of cultural security for Indigenous children, along with multiple, broad-based attachments with extended family and kinship networks.

[210]      According to Dr. Carriere, kinship care can be seen as an antidote to attachment disorder(s) resulting from situations where Indigenous children are permanently estranged from their culture and community – for example, as was the case with the 60s scoop which resulted in the large-scale removal of Indigenous children to non-native families.

[211]      Dr. Carriere’s recommendation in this case is that “much is to be gained” for the Child by allowing her to be raised by her grandmother and her aunt.

[212]      Dr. Carriere stated:

It is not simply a matter of blood ties, but what was reviewed in the file as how the relationships with her birth family have unfolded and some of the assumptions about their care and living situation. It also seems that the Child’s father should have some rights here and his view as noted in the records provided to me are that the Child should remain in her family and community. A kinship care assessment and agreement should be developed by the Blood Tribe and support given to the grandmother and the aunt during a transition period.

A long transition period needs to happen with everyone involved, and the Child’s connection to (the primary caregiver) cannot be ignored in planning for this Child. Although the Child should be spending more time with her grandmother and aunt, she should also be allowed to spend a longer period of time with her father, siblings and cousins through this important movement in her life. She should be involved with the cultural teachings of her tribal community and exposed to her ancestral teachings and language in an ongoing manner. Her connection to her siblings should not be overlooked as an important connection to her family.

[213]      Limitations on Dr. Carriere’s opinion include the following:

[214]      Dr. Carriere had no prior knowledge of this case and she had not met the Child nor any of the parties;

[215]      Dr. Carriere did not observe any parent/child interactions and was not provided with any of the home studies or assessments prepared in this case. She was not aware of any contact that the Child had with maternal family, and she was not sure whether the paternal or maternal family were involved with the Child’s placement through Child and Family Services at the time of her apprehension; and

[216]      Dr. Carriere did not provide any evidence as to how the “60s Scoop” is specifically related to, or is a factor in, deciding the Child’s best interests.

[217]      Dr. Carriere conceded the following points and agreed that:

[218]      Each child is unique and each child’s circumstances are different.

[219]      The risk of severing the Child’s connection to her primary caregiver being her psychological family and severing the Child’s connections to her maternal family would have a greater negative effect on the Child versus not expanding her familial connections to siblings in both maternal and paternal families.

[220]      Cultural safety and continuing family connections for the Child along the maintenance of same within a healthy circle of family can include the primary caregiver.

[221]      The relationship between the foster family and the biological family is essential to the Child’s healthy development and cannot ignore the Child’s connection to the primary caregiver in planning for the Child’s healthy development.

[222]      A child-centred and developmentally sensitive approach is important in this case.

[223]      Bonding to caregivers is well-established in children before their first birthday.

[224]      Child development and the mental health of the Child are closely intertwined; chronic stress in early childhood is damaging.

[225]      Placement disruptions are stressful and affect brain development of the child. As a result, connectedness to the land, kin, community and culture is a factor to be considered in the Child’s total environment. As a result, the Child’s plan should be centered on her individual needs and interests.

[226]      Cultural safety and attachment theory are both important and accepting one does not mean overlooking the other.

Evidence of Thomas Larry McMahon

[227]      Thomas Larry McMahon, a lawyer and former executive director and general counsel for the Truth and Reconciliation Commission, gave expert evidence in the areas of Aboriginal history, short and longer-term effects of colonialism on Aboriginal cultural practices and child-rearing, and the recommendations of the TRC to prevent further assimilation and destruction of Aboriginal society.

[228]      Mr. McMahon’s testimony was focused on an overview of the truth and reconciliation process and the TRC report.

[229]      The limitations of Mr. McMahon’s evidence include the following:

[230]      Mr. McMahon had not met the Child nor any of the parties.

[231]      Mr. McMahon did not review any of the reports prepared for trial purposes.

[232]      While Mr. McMahon’s overview and evidence provided useful general information in terms of educating Canadians about the historic injustices and harms caused to Indigenous children and families as a result of being forcibly removed, his evidence did not consider that the Child in this case was removed from family for protection concerns, and few, if any portions of his evidence speak to topics specicially connected to this Child in this case.

Evidence of Elders

[233]      Florine White Man Left and Wilton Good Striker, both Blood Tribe Elders, testified about cultural connection.

[234]      Florine White Man Left had not met the Child or primary caregiver or observed any interaction between any of the parties. She confirmed she last saw the grandmother at the Sundance Festival in August 2020 and was not aware of the grandmother’s involvement in the child welfare system regarding her children’s issues with domestic violence and addictions. She confirmed that the grandmother had not shared this information with her.

[235]      As an Elder, Florine White Man Left confirmed that an Indigenous child can still be involved in his/her culture and spirituality without being involved in the traditional societies of the Nation.  Her view is that each child has his or her own experience and makes his/her own choices.

[236]      In her view, non-Indigenous people are able to participate in cultural activities and are welcome to do so, and they will be accepted if they treat Indigenous people with dignity and respect.

[237]      She also considered it important for Indigenous children to maintain contact with both sides of their family, the result of which means the child can have a sense of identity of who they are and where they come from. It is important to maintain these family connections rather than break them up. The role of the Elders is to work with families and to support them.

[238]      Wilton Good Striker, an Elder, had not met the Child or the primary caregiver or observed any interactions between them.

[239]      As a former Calgary Police Service officer, Mr. Good Striker has experienced two cultures, both very differently. He stated that survived the experience of residential schools, later became a traditional elder and knowledge keeper. In his view, it is possible to navigate the two cultures as long as there isn’t confusion about how the two cultures work. He testified that his culture, based on the clan system, is very different from the other cultures (non-Indigenous) where they don’t have societies… which can help you connect with elders and other Indigenous persons in a good way.

[240]      Elder Good Striker’s testimony focused on explaining KAINAYSSINI…a document that is a declaration that has been ratified continuously since being formally adopted in 1982. Document explains who they are as a people, clan system, 12 clans, community relationships, family relations, passing of knowledge from one generation to the next, role of knowledge keepers, role of parents and families in this. His recommendation to avoid assimilation would be to keep children with family, or with clan.

[241]      Elder Good Striker’s teaching was that if parents are unhealthy, look at extended family, the clan. He stated: “That is what the clan is for. Elders work to assist children, guiding them, assisting them with their social responsibilities, with their searching for who they are, with the traditional societies, the Horn Society, the Warrior Societies, Brave Horse Societies, the Ocon, for blessings, guidance, strength and assistance in giving a child knowledge and helping them grow in a healthy way, particularly at traditional camps. With societies, young people observe, and then if they want to join, the families wait for them to indicate that, and the leadership of each particular group then decides.”

[242]      Elder Good Striker agreed that: “A child not necessarily living on reserve can come back, would be welcomed into the clan as long as we found out which clan they’re connected to, they would be encouraged to get to know who their clan relatives are. At residential school, clan members would find each other and protect one another, and worked with other clans, respected each other’s clans too.”

[243]      It was Elder Good Striker’s view that, “Kainai hasn’t suffered too much loss of culture – maybe because of their size and location away from large metropolitan areas, (we are) probably the only community in Canada and a large part in North America that has a full complement of all our societies, our clan system, our traditional ways. Other communities have lost due to colonization, residential schools.  The Blackfoot Confederacy is huge and has big footprint across the border as well.”

Evidence of Beatrice Little Mustache

[244]      Beatrice Little Mustache, a worker with the First Nations Health Consortium, was the Piikani Band Designate for 17 years and she testified about participating in a family meeting on the reserve, concerning the Child’s situation.

[245]      Ms. Little Mustache had some difficulty remembering details. She was unable to recall who was at the meeting, but her evidence was that the purpose of all meetings, from the perspective of a band designate, is to return children to families, either parents or grandparents. She doesn’t recall the primary caregiver attending the meeting and thinks the mother may have been deceased by that time, but her memory is that the father came forward and wanted the child returned to his care.  However, she also recalled that when she first met the mother out at Fort Macleod, the mother wanted the Child to be placed with the primary caregiver.

[246]      When shown notes to refresh her memory, Ms. Little Mustache then recalled that she had worked with the band designate from Kainai as two band designates were involved: one from Kainai and one from Piikani. She recalled they talked about having the Child back on reserve because that is what the mother wanted, but that the primary caregiver also wanted to keep the Child.

[247]      Ms. Little Mustache was not able to recall further specifics, such as who attended meetings, whether family was following the safety plan that was in place, whether she knew that the grandmother had abused alcohol or whether she was involved with the decision to place the Child in a kinship care placement with the primary caregiver.

Evidence of Adam North Peigan

[248]      Adam North Peigan testified about his experience in terms of the child welfare system as an Indigenous man growing up outside his culture/president of the 60s scoop Indigenous Society of Alberta. He was not qualified as an expert but gave a personal account of his experiences as a “60s Scoop” survivor.

[249]      Mr. North Peigan’s evidence was that during all of his placements as a “60s Scoop” child, there was no cultural exposure and no exposure to his biological family, and no effort whatsoever to integrate him with his culture. He was denied any connection, encouragement or assistance in understanding his culture and he had no information regarding his cultural background and heritage.

[250]      Mr. North Peigan had not met the Child nor any of the parties and did not give any evidence linking his experience to that of the Child.

Evidence of Paternal Family

[251]      The paternal applicants also testified.

[252]      The grandmother’s evidence was as follows:

(a)   She feels “policed” by the primary caregiver regarding the Child but confirmed the primary caregiver had an obligation to report pertinent information re: the Child. She was not aware whether Child and Family Services had requested this information.

(b)   She is insulted by the accusation – which she regards as stereotypical and racist – that the Child obtained head lice while in her care. She denies responsibility for this, in any event.

(c)   She doesn’t trust the primary caregiver since the time she was not informed of the Child being taken to hospital for a fever.

(d)   She took a leave from her employment for 3 months, commencing on June 18, 2020, but still had significant issues completing the Best Interests Evaluation with Ms. Crommer during this time.

(e)   She testified that Ms. Day Chief had been at her residence a number of times, although she could not explain why this does not accord with Ms.Day Chief’s evidence.

(f)   When asked about the Child’s sister who was with the maternal family side, she said she was with family who were good people but confirmed that this child did not have contact with the paternal family.

(g)   She regards the primary caregiver as an “unfriendly” parent with no blood ties to the Child and believes she would not see the Child again if the caregiver left the country with the Child. She is concerned about the Child being exposed to racism in the caregiver’s home, as was experienced by her children when they were growing up.

(h)   Family and cultural connection are the most important things to her; she wants the Child to be raised with family and learn her traditional ways. At the same time, she regards the Child as “different,” “rude” and ill-behaved.

(i)     She has raised her own children without any problems and is now raising her grandchildren so she does not believe she needs to go to any parenting classes, such as the Kainai Strengthening Families program which was requested.

(j)     She draws a distinction between cultural activities and “culture”, with the latter learned in proximity to family as a way of being, as opposed to doing activities which are not the same thing.

(k)   She did not appear to be familiar with the primary caregiver’s family ties, relatives or commitment to raise the Child with close ties to her culture and both maternal and paternal families. 

(l)     She is not willing to work with the primary caregiver and has never invited her to events celebrated with the Child, nor attended most of the events the primary caregiver has invited her to attend.

(m) She expressed a concern that because the primary caregiver is “different” from Indigenous people it will impact the Child and potentially involve her in addictions.

(n)   She confirmed that the Child is learning Blackfoot culture and language in her current school which is primarily attended by Indigenous children.

[253]      The paternal aunt’s evidence was as follows:

(a)               At the time of trial, she was in a relationship with X but they were not living together. They have since had a child together. He has 3 children in his care due to his ex-wife’s addiction issues.

(b)               She works full-time.

(c)               She admitted there have been various plans for care of the Child, and at times, she has not seen the Child – ie, for a 9-week period. At one time she was fine with the Child staying with the primary caregiver on a day-to-day basis but that view changed after the time when she was not notified that the Child had been in hospital briefly – that affected her trust in the primary caregiver.

(d)               She confirmed her mother struggles with her own (adult) children’s alcohol and addictions issues and that it is hard for her to turn her (adult) children away. Her siblings all have struggles with alcohol and drug abuse; one passed away due to addictions issues. At time of trial, two siblings, including the Child’s father, were living close by to her mother, the Child’s grandmother.

(e)               She was not aware of the January 2020 domestic violence incident in her mother’s home.

(f)               She admits her mother has had some Children’s Services involvement and concerns arose with her not following the Safety Plan which then lead to the initial apprehension of MB.

(g)               She does not speak Blackfoot; was raised in Calgary and is now learning the language through on-line language lessons.

(h)               She did not mention that her brother – the Child’s father –has a history of addictions and domestic violence with the Child’s mother until cross-examined on same.

(i)                 She confirmed she has been invited to family events by the primary caregiver but not the reverse; the primary caregiver is never invited to paternal family events, including cultural events.

(j)                 As to the head lice issue, her evidence was that it was on one occasion only.

(k)               She has difficulty acknowledging that the primary caregiver is an important part of the Child’s life

Evidence of Primary Caregiver, Extended Family and Supports

[254]      On the other side, CB, the Child’s primary caregiver testified, and called three additional witnesses, including her mother, the Child’s maternal grandmother, and a former family support worker who had involvement with CB and the Child dating back to the Child’s first months of life.

Evidence of Primary Caregiver

[255]      The primary caregiver’s testimony was as follows:

[256]      She was 33 years old at the time of her testimony and was not in a relationship with anyone at that time.

[257]      She has an Alberta Childcare Certificate Level One. She described her residence and confirmed she lived there with her mother, with the Child and two of the Child’s maternal cousins staying there temporarily.

[258]      The maternal cousins are “A” (then 4) and “B” (then 3) and both children shared one bedroom with separate beds. CFS aware of this and was not making any additional payments to the primary caregiver for this. The maternal grandmother of these two children is “C,” the mother’s sister.

[259]      She has been employed since October 2020 on a part time basis at the Piikani Child Care Centre, which deals with Blood and Piikani children and has cultural programming with Elders’ involvement.

[260]      As a kinship provider, she receives less financial assistance from the department than if she were designated as a foster home.

[261]      She has maintained contact with maternal family.

[262]      She confirmed she has not been invited to attend any paternal family events, other than being invited by the paternal aunt to the Child’s naming ceremony, and she has not been invited to either of the paternal grandmother’s home or the paternal aunt’s home. She has invited members of the paternal family to a number of events involving the Child, including annual memorial services for the Child’s mother, but there has been no evidence of consistent interest or attendance from the paternal family.

[263]      She is concerned about a January 2020 domestic violence incident at the grandmother’s home and about the grandmother’s alcohol use, addictions, and gambling issues. She is also concerned about the grandmother being “significantly overloaded” with a high child/caregiver ratio in her home.

[264]      She reported a series of negative comments about the child from the grandmother as well as concerning behaviours resulting in the Child including the following: on March 24, 2021, the grandmother told her  “you are not family, you are white”; on March 25, 2021, the Child indicated there was a lot of yelling in the grandmother’s home and that the grandfather scared her, during which she was crying; on February 26, 2021, the Child told her that she would soon be living with her father and sibling; on November 7, 2020, the Child indicated that an Aunt was sleeping in her bed and she – the Child – had to sleep on the couch; on July 12, 2020, the Child was described as screaming and flailing her arms and hitting her grandmother when the primary caregiver dropped her off for the grandmother’s visit, and the grandmother then dragged the Child into the home, all of which was witnessed by the primary caregiver’s mother.

[265]      She requested counselling for the Child about these transitions but this was never obtained.

[266]      There were significant issues with respect to cancellations and the consistency of visitation between the Child and Angela.

[267]      She testified she has always been closely involved with Indigenous culture. She herself was exposed during her own school years, through friends. She has no plans to move away from Pincher Creek.

[268]      She views it as important for the Child to have continual cultural involvement throughout her life. She has never refused to follow CFS instructions from a cultural perspective and is prepared to continue facilitating cultural and family ties.

[269]      Regarding the Child’s mother, she says she had some interaction with the mother while she was a guard at Brocket Jail The mother then connected with her via Facebook, but after the Child’s birth. She assisted in providing care for the Child at the mother’s request, for up to six days a week. The mother then included her in her long-term Safety Plan for the Child. She did not pursue the mother simply to get the Child in her care, as alleged. She did not request to be designated as a kinship caregiver; rather, this was done by Amy Easterbrook and Dorothy Raffin of the Crow’s Nest Pass office after the grandmother did not follow through with the safety plan where the Child was to have supervised contact with the parents. At the time this was done, the file was handled by the Piikani Children’s Services office. She also made reference was also made to a November 6, 2015 meeting before placement with herself where CFS indicated concerns about the grandmother’s minimizing addictions and violence issues regarding her adult children in her home, and that the safety plan that required supervised access for the parents was not being followed by the grandmother who permitted unsupervised access by the parents.

[270]      Prior to the Child being apprehended by CFS, she was already providing regular child care for the Child and was not asking for, and did not receive, any financial remuneration for caring for the Child.

[271]      She further confirmed that she has the support of the maternal family to care for the child.

[272]      She also confirmed that the Child’s sibling, 7 years old at the time, was residing with maternal family. Contact was never initiated between the grandmother, the father or any of the paternal family between this child and the other siblings. The primary caregiver ensures that the Child sees this sibling about twice a month and that the two were close, and she also confirmed that the maternal aunt is open to the paternal side visiting but when arranged, the paternal grandmother did not show up.

[273]      She confirmed that she gets many requests to provide foster care or respite care for Indigenous children.

[274]      She denied allegations that she was caring for the Child for financial gain or to profit. She referred to a letter from her doctor dated June 8, 2018 which noted the Child has been with her since she was two months old and she was well-cared for and that her medical needs were addressed quickly and competently. An additional letter dated January 22, 2019, indicated no barrier to effective parenting of the Child by the primary caregiver and that anxiety issues for the primary caregiver were effectively controlled by medication.

[275]      She described her relationship with the Child as bonded, attached, very close, cuddly, and affectionate. The Child’s favourite activities are gymnastics, swimming and horseback riding.

[276]      Regarding cultural activities, she stated she has made numerous efforts, including Blackfoot language lessons (on-line), being willing to meet with Elders Good Striker and Whiteman-Left, being interested in the yearly traditional camp; being willing to work closely with the Band designate(s) re: proposed activities for the Child to enhance her connection with her Indigenous culture. She has been involved in the Child’s schooling and attends parent-teacher interviews and school-related activities.

[277]      Regarding the assertion that she was “policing” the grandmother, her view was that she was following CFS requirements to report anything “important” about the Child, and she was simply following the directions as given by prior caseworkers Amy Easterbrook, Dorothy Raffin and confirmed by the current caseworker Tara Day Chief.

[278]      Regarding the allegation by the paternal aunt that the Child was sent on a winter visit without her winter coat, hat, gloves or boots, the primary caregiver stated this was not true. The Child was sent with these and not returned with them at -25 degree weather.

[279]      If she is successful, she would like to continue with contact with the grandmother and aunt on alternate weekends, summer holidays and special celebrations; she would continue with the Child in Blackfoot language lessons, with Kainai cultural events, with access to both maternal and paternal sides of her family. She would work with the Band designate(s) and Elders regarding cultural teachings and connection.

[280]      She provided an extensive list of cultural events and connections she has facilitated over the years, and she has completed all foster parent monthly reports from April 21, 2016 – March 31, 2020, as requested by Tara Day Chief.

[281]      She has never been advised of the Kainai Elder Traditional Camp as described by Elder Wilton Good Striker.

[282]      She admitted a period of time when the relationship was “rocky” between herself and the mother, but said by May-June 2016, prior to the mother’s death, things were better. She stated that due to the mother’s inconsistencies, she was advised by CFS to put boundaries in place.

[283]      She noted concerns from the maternal family about the possibility that the Child would be removed from her care and then the maternal family would not see the Child again.

[284]      Regarding the naming ceremony, she was not criticizing the paternal family but wanted to be part of it; CFS was wrong; an Elder thanked Ms. Byam for being present; provided numerous photos showing her being involved with child as an active parent.

[285]      Regarding her employment, she stated she chose to work part-time to be able to spend more time with the Child and her cousins.

[286]      She has invited the father to various events, but he did not attend.

[287]      Regarding her future plans, she stated she loves the Pincher Creek area and has no plans to leave. While she has not seen the paternal family at local cultural events, she considers both maternal and paternal family connections to be important.

[288]      She confirmed that the grandmother was already a guardian of one of the Child’s siblings at the time that sibling was apprehended and so the child was placed in her care, but she also noted that when the Child was apprehended, she was advised that the grandmother could not handle more children, and that when the aunt was proposed to Ms. Easterbrook and Ms. Raffin, the father said no to his sister – the aunt – as a prospective caregiver.

[289]      She stated she has an overwhelming sense of love for both the paternal and the maternal families and said that the maternal family feels like her family. She would maintain connections to both sides of the family.

Evidence of CD

[290]      The primary caregiver’s mother also testified, as follows:

[291]      Based on her observations, the Child is bonded to the primary caregiver and her immediate family members, including herself and the caregiver’s father. She continues to have relationships with her maternal family members and had her maternal cousins living with her (at the time of trial).

[292]      The Child’s family connection to both maternal and paternal sides are important and supports the relationships with both families.

[293]      The Child was very loving, social and caring.

[294]      She shared domestic and financial duties within the primary caregiver’s household.

[295]      She has been employed for 13 years and has no health issues.

[296]      In terms of parenting, the primary caregiver was described as being very patient and caring. “on-level” communication, for example, she never yelled when communicating with child.

[297]      The household has a regular schedule and routine with respect to meals, bedtimes and bathing of child and it is the primary caregiver who does the parenting and takes the lead on cultural aspects of Child’s life.

[298]      The Child was doing well in her relationships with her maternal cousins (then) residing in the home and the Child was connected to her cousins.

[299]      In terms of cultural connections, she viewed this as very important for the Child and was very supportive of the Child’s connections to both her culture and her biological families on both sides; she is prepared to follow any recommendations for the Child’s involvement in her culture and had she been asked, she would have completed any additional programming as requested.

[300]      Her view was that family doesn’t have to be related by blood to be considered family and the that the paternal grandmother made it clear that if the Child was placed with her, the primary caregiver would never see the Child again.

Evidence of Maternal family

[301]      The Child’s maternal grandmother also testified. Her evidence was brief; she confirmed that the paternal side of the family is not in contact, despite her efforts.

[302]      Her evidence was that her daughter did not want the Child to remain with paternal family and that she told her that she wanted her daughter to be raised by the primary applicant. She produced a hand-written note to that effect.

[303]      She described her relationship to her daughter and confirmed she spent time with her while she was in care. She then spent quite a bit of time with her daughter when she was pregnant with the Child’s sibling. She described being very close to the Child’s mother, who she said would confide in her with her “darkest secrets”.

[304]      She also testified that two days prior to her passing, the parents were not in a stable place and the mother advised her that Child was in a stable place with the primary caregiver, and she wanted the primary caregiver to raise the child.

[305]      The maternal grandmother also confirmed that the primary caregiver stays in contact with her and allows her to see the Child.

[306]      Regarding the paternal family, she confirmed her view that the mother – her daughter – had been treated badly; that the grandmother and paternal family would call the mother down and “slap her down”. She also confirmed she told her daughter to leave her relationship with the Child’s father.

[307]      She states the paternal family has not responded to her attempts to see the oldest grandchild who resides with the grandmother. She had made requests to both parents to see oldest grandchild, in care of the paternal grandmother.  She had some contact with the father who provided her with the grandmother’s phone number, but her attempts to see (the elder grandchild) have not been responded to. She confirmed her cell phone number has not changed in a number of years.

[308]      On November 21, 2021, she confirmed she saw a Facebook post by the father that her two granddaughters and several nieces and nephews were in Calgary a few blocks away at a play facility. No contact was made by the father to facilitate her seeing the children despite her being nearby at the time.

Evidence of Bonita Bourlon

[309]      Bonita Bourlon is a registered psychiatric nurse who had been working at Pincher Creek Family Centre as a family support worker when the primary caregiver came in and the Child was just barely over 2 months old.

[310]      Her evidence was as follows:

[311]      She was educated and practiced as a registered psychiatric nurse, had 30 years’ experience and was working with Pincher Creek Family Centre as a Family Support Coach from Nov. 2015 to June 2020, during which time she provided support to the primary caregiver and the Child.

(a)   She was involved extensively with Blood and Piikani people through the daycare system, school system and with Traditional Parenting Program where she worked with First Nations Outreach workers who were delivering the program.

(b)   She confirmed she was aware of the TRC and had read the report. She also has a first nations daughter-in-law. She described her approach in assisting families was to talk to the individual and find out what worked best in the Indigenous context. She further described that there are inconsistent practices between individuals within the Indigenous cultures.

(c)   She commented on her work as a family support coach for the child and stated that the Child first came into the centre with the primary caregiver when she was 2 months old.

(d)   She confirmed the primary caregiver has participated in many programs with the Child at the Pincher Creek parent link centre such as New Mom’s Group, RAE Program, FNMI Program, Building Assessments, ASQ Development Checkup and also one-on-one supportive counselling and parent coaching.

(e)   She confirmed that the Primary Caregiver was quite involved in child’s health care and appropriately dealt with related professionals about any issues; she has no concerns with her parenting the Child. 

(f)   She has never heard the primary caregiver make any negative comments about Indigenous cultures not heard her speak negatively about either the maternal or paternal families or the Child.

(g)   She observed the Child’s behaviour during transitions when the parenting schedule changed for child to have more time with grandmother. She confirmed that this was a very difficult time for the Child with the Child swearing and hitting her caregiver upon her return from visits with the grandmother.

(h)   She confirmed that the primary caregiver had followed through with any suggestions she made throughout her involvement in the matter and that it was important for her to ensure the Child was connected to her Indigenous culture and was committed to doing this.

(i)     She has remained connected to the primary caregiver by contact every 3 to 4 months since June 2020 and continues to act as a community support for her.

(j)     When asked whether the primary caregiver was caring for child for financial gain, she replied “not for one second”.

Applicable Legislation

[312]      The Federal Act sets out three guiding principles, including best interests, cultural continuity and substantive equality. As noted, best interests must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child, pursuant to s. 10(1) of the Act.

[313]      When considering the factors relevant to best interests, 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 on-going 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, pursuant to s. 10(2) of the Act.

[314]      All factors related to the circumstances of the child must be considered, including:

(a)               the child’s cultural, linguistic and spiritual upbringing and heritage;

(b)               the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(c)               the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life:

(d)               the importance, to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e)               the child’s view and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f)               any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g)               any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h)               any civil or criminal proceedings, order, condition, or measure that is relevant to the safety, security and well-being of the child. [s 10(3)]

[315]      The placement of an Indigenous child in the context of providing child and family services in relation to the child, is a further consideration, and must occur in the specified order of priority, to the extent that it is consistent with the best interests of the child, per s 16(1). In this context, placement with or near other children who have the same parent as the child, Indigenous customs and traditions, family unity, and attachment and emotional ties to members of his or her family are also important – see ss 16(2), 16(2.1), 16(3) and 17.

[316]      The provincial Act refers to the best interests, safety and well-being of children as paramount, while also recognizing, amongst other factors, that children benefit from lasting relationships with people with whom they have connections, including family, friends, caregivers and other significant individuals, from connections with their culture and cultural communities and opportunities to form those connections, and from permanent, formalized ties with people who care about them, see ss. 1.1(a), (b) and (c) of the provincial Act.

[317]      The provincial Act also requires that Indigenous people should be involved with respect to the planning and provision of services to and decisions respecting Indigenous families and their children – see. s 1.1(d).

[318]      The following factors must also be considered:

(a)               the child’s family has the primary responsibility for the safety and well-being of the child and the family’s well-being should be supported and preserved;

(b)               if the child is capable of forming an opinion, the child’s opinion should be taken into account;

(c)               in the case of an Indigenous child, the importance of respecting, supporting and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions;

(d)               the benefits to the child of lasting relationships with the people with whom the child is connected, including family, friends, caregivers and other significant individuals;

(e)               the benefits to the child of connections with the child’s culture and cultural communities and opportunities to form those connections;

(f)               the child’s race, spiritual beliefs, colour, gender, gender identity, gender expression, age, ancestry, place of origin, family status, sexual orientation and any disability the child may have;

(g)               the importance of stability, permanence and continuity of care and relationships to the child’s long-term safety and well-being;

(h)               any decision concerning the removal of the child from the child’s family should take into account the risk to the safety, security or development of the child if the child remains with the family, is removed from the family or is returned to the family;

(i)                 subject to clause (h), if the child has been exposed to family violence within the child’s family, intervention services should be provided to the family in a manner that supports family members and prevents the need to remove the child from the custody of an abused family member;

(j)                 any decision concerning the placement of the child outside the child’s family must include a plan to address the child’s need for permanent, formalized ties to people who care about the child and must take into account

(i)                 the benefits to the child of a placement within the child’s extended family, or with persons who have a significant relationship with the child,

(ii)              the benefits to the child of a placement within or as close as possible to the child’s home community,

(iii)            in the case of an Indigenous child, the benefits to the child of a placement where the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved,

(iv)            the benefits to the child of a placement where the child’s familial, cultural, social, linguistic and spiritual heritage are valued as central to the child’s safety, security and development, and

(v)               the mental, emotional, spiritual and physical needs of the child and the child’s mental, emotional and physical stage of development;

(...)

[319]      Section 40(2)(b) of the provincial Act states that a permanent guardianship order remains in effect until ...a private guardianship order is made in respect of the child.

[320]      Section 52 of the provincial Act provides for private guardianship. That section states as follows:

(a)               Any adult may apply to the Court in the prescribed form for a private guardianship order in respect of a child who is in the custody of a director or is the subject of a temporary guardianship order or a permanent guardianship agreement or order.

(1.01) Notwithstanding any other enactment, a person may not apply to any court to be appointed as a guardian of a child who is in the custody of a director, or is the subject of a temporary guardianship order or a permanent guardianship agreement ororder, except under this Act.

(1.1) An application under ss (1) must include a home study report prepared by a qualified person respecting

(b)               the suitability of the applicant as a guardian,

(c)               the ability and willingness of the applicant to assume the responsibility of a guardian with respect to the child, and

(d)               whether it is in the best interests of the child that the applicant be appointed as a guardian of the child.

(1.2) If the child is the subject of a permanent guardianship agreement or order, the report required under subsection (1.1) must be prepared by a director.

(1.3) If an applicant has reason to believe that the child is an Indigenous child, the application under subsection (1) must include a plan that addresses how the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.

[321]      Section 56 of the Act provides:

(1) If the Court is satisfied that

(a)               the applicant is able and willing to assume the responsibility of a guardian toward the child,

(b)               it is in the best interests of the child, and

(c)               the child has been in the continuous care of the applicant for a period of at least 3 months immediately prior to the hearing, the Court may make a private guardianship order appointing the applicant as a guardian of the child.

(1.01) If it is satisfied that it is in the best interests of the child to do so, the Court may waive the requirement in ss (1)(c).

(1.1) On making an order under ss (1), the Court may include terms respecting custody of and contact with the child.

(1.2) On making an order under subsection (1) appointing a guardian of an Indigenous child, the Court shall advise the guardian of the guardian’s obligations under s 57.01.

[322]      Section 57.01 provides:

57.01 If a private guardianship order is made under section 56 appointing a guardian of an Indigenous child, that guardian shall

(a)               take reasonable steps to comply with the plan included in the application in respect of that child under s 52(1.3),

and

(b)                if the Indigenous child is a First Nation Individual,

(i)                 take reasonable steps on behalf of the child necessary for the child to exercise any rights the child may have as a First Nation Individual, and

(ii)              inform the child of the child’s status as a First Nation Individual as soon as, in the opinion of that guardian, the child is capable of understanding the child’s status as a First Nation Individual.

Analysis - Guardianship

[323]      As I have decided above, the Federal Act and the provincial Act should be read together harmoniously to promote the best interests of Indigenous children. When I consider the best interests of the Child with reference to both pieces of legislation, it is clear that both the federal and the provincial legislation require decisions to be made on the basis of best interests first and foremost. The priority placement scheme in the Federal Act is also subject to the best interests of the child. No decision can be made in which best interests are not the first consideration, and no decision can be made which does not promote and ensure the Child’s safety, security and wellbeing.

[324]      In this, as in all cases, the utmost care should be taken to ensure stability for the Child. The Federal Act refers to “the importance of stability, permanence and continuity of care and relationships to the child’s long-term safety and well-being” while the provincial Act includes identical language: “the importance of stability, permanence and continuity of care and relationships to the child’s long-term safety and well-being.” In both pieces of legislation, stability is a factor that must be considered.

[325]      In addition, it is clear that in both pieces of legislation, the best interests of an Indigenous child must also consider the Child’s family and cultural connections. The Federal Act specifically incorporates cultural continuity as a guiding principle, while the provincial Act, the case of an Indigenous child, emphasizes “the importance of respecting, supporting and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions,” as well as “the benefits to the child of connections with the child’s culture and cultural communities and opportunities to form those connections.”

[327]      Both pieces of legislation also emphasize placement of Indigenous children with family, subject to the child’s best interests. Section 16 of the Federal Act imposes the requirement to place with family, in the order of priority outlined, subject to the best interests of the child, while the provincial Act refers to “the benefits to the child of a placement within or as close as possible to the child’s home community.”

[328]      Both pieces of legislation refer to the benefits to the child of maintaining lasting connections with significant people and relationships in the child’s life. The Federal Act refers to “the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life” while the provincial Act refers to “the benefits to the child of lasting relationships with the people with whom the child is connected, including family, friends, caregivers and other significant individuals”.

[329]      Both pieces of legislation include safeguards against violence in the home and/or criminality, which might impact the child. The Federal Act requires consideration of “any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and also “any civil or criminal proceedings, order, condition, or measure that is relevant to the safety, security and well-being of the child.”

[330]      The provincial Act considers family violence in two ways: Firstly, it requires that “any decision concerning the removal of the child from the child’s family should take into account the risk to the safety, security or development of the child if the child remains with the family, is removed from the family or is returned to the family” and secondly, subject to that provision, “if the child has been exposed to family violence within the child’s family, intervention services should be provided to the family in a manner that supports family members and prevents the need to remove the child from the custody of an abused family member.” 

[331]      Both pieces of legislation, as well as the United Nations Convention on the Rights of the Child refer to ascertaining the child’s views, if possible. In SK v DG, 2022 ABQB 425, a case involving an 8 year-old child, Loparco, J. states, at paragraphs 158-167:

158 Access to justice for children is a fundamental right and a pre-requisite to the protection of their human rights pursuant to the UN Convention on the Rights of the Child, 20 November 1990, Can TS 1992 No. 3 (entered into force 2 September 1990) (UNCRC). The UNCRC was ratified by Canada on December 13, 1991.

159 To provide meaningful access to justice, children must To provide meaningful access to justice, children must be legally empowered with the right to independent representation, information, education, and competent advice: Report of the UN High Commissioner for Human Rights, Access to Justice for Children (2013). Courts must hear and consider the views and preferences of the child, where they can be determined, in making a decision that affects them. Courts must take a child-centered approach when determining the best interests of the child by ensuring that information from the child about their “…interests, needs, experiences and relationships with adults” is heard from the child’s perspective: Nicholas Bala and Patricia Hebert, Views, Perspectives and Experiences of Children in Family Cases, Queen’s Law Research Paper Series, December 2016 (CanLII) at 2 [Bala & Hebert, “Views, Perspectives and Experiences].

160 Article 12.1 of the UNCRC provides support for the right of a child to be heard in proceedings affecting them, and a child centered approach when determining the best interests of the child:

1.   States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.   For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

161  There is a presumption that Canadian law conforms to the UNCRC, which informs a contextual analysis: R v Hape2007 SCC 26 (CanLII) at para 53.

162 Children are now recognized as “full rights bearers” who merit society’s full protection: Michel v Graydon2020 SCC 24 [Michel]at para 77.  This foundational principle goes beyond simply allowing children to express their views in court proceedings; it includes the right to have those views taken seriously: Committee on the Rights of the Children, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), UNCRCOR, 2013, UN Doc CRC/C/GC/14 at paras 40, 43.  The UN Commentary on the UNCRC have been used by courts to interpret Canada’s obligations: see Divito v Canada2013 SCC 47, at paras. 26-27Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para 67Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse)2021 SCC 43, at para 197.

163 Research demonstrates that children want to have a voice, be listened to, and heard, and have their views respected and believed. They want to be treated as individuals, told what is happening and be given clear, age-appropriate information. They want flexibility in arrangements and decisions to be child centered rather than adult convenient. Children want to say how they feel and what matters to them, and how they see the future: Joanne J Paetsch, Lorne D Bertrand, Jan Walker, Leslie D MacRae, & Nicholas Bala, “Consultation on the Voice of the Child at the 5th World Congress on Family Law and Children's Rights” (2009) National Judicial Institute and the Canadian Research Institute for Law and the Family at 7.

164  It is often said a child has a voice, but not a choice. The views and perspectives of a child are significant for a judicial decision about the child’s best interests, but they are not determinative. The weight given to a child’s views is dependent on factors such as the child’s age, maturity and motivation: Bala & Hebert, “Views, Perspectives and Experiences” at 2.

165 There is also a growing recognition within courts that “[c]hildren are not merely the subjects of decision-making and litigation, but rather, to the extent that is consistent with their age, capacity and desire to participate, they should be informed about the family restructuring process and given an opportunity to express their preferences and perspectives about plans and decisions affecting their lives and well-being”: Nicholas Bala and Rachel Birnbaum, “Rethinking the Role of Lawyers for Children: Child Representation in Canadian Family Relationship Cases” (2018) 59 Les Cahiers de Droit, La Famille au XXIe siècle et les mutations de droit Volume 59, numéro 4, décembre 2018, 787-829 at 790: Faculté de droit de l’Université Laval (Bala & Birnhaum 2018).

166 While it is essential to recognize that a child may wish to express their views and wishes on the ultimate question before the court, it is also crucial to recognize that a child may prefer to merely express their views and wishes on limited topics, or not at all. A child may simply wish to be informed and educated and remain a silent observer in the proceedings.

167 Recognizing the rights-based and child-centered approach can neutralize the conflict in positions between the adults and the child and avoid the risk of a court being led to take a paternalistic view of the child’s best interests.  Treating children’s views with respect both improves the quality of decision-making and contributes to children’s self-worth and healthy development. The child’s best interests are inextricably linked to thright to be heard: UN General Comment No. 14 at paras 43-45.

[332]      The Federal Act refers to “the child’s view and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained” while the provincial Act says “if the child is capable of forming an opinion, the child’s opinion should be taken into account”.

[333]      In this case, as in all cases where best interests must be determined, there is no formula for determining which of any of these factors should prevail. On the contrary, both pieces of legislation require a determination of best interests considering   the factors listed. In other words, any decision made in the best interests of a child must consider the child’s safety, security and well-being, must promote stability for the child, must preserve the child’s connections to family and significant people in the child’s life, must consider the child’s views, if able to be ascertained given the age and stage of the child’s development and must consider family violence and/or criminality affecting the child. Determining best interests for an Indigenous child also requires considering placement with family, or within or as close to the child’s community in order to best ensure cultural continuity for the child and preserve the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs”  and recognize“the benefits to the child of a placement where the child’s familial, cultural, social, linguistic and spiritual heritage are valued as central to the child’s safety, security and development.” These are not competing objectives, but complementary goals, regardless of whether they are found in federal or in provincial legislation.

[334]      In this case, the Child’s situation is stable and there are no current protection needs. She is described as happy and relatively well-adjusted to the present routine where she spends parts of each week with both the primary caregiver and her grandmother. She also benefits from contact with other members of the paternal family, through her grandmother, and with members of the maternal family, through the primary caregiver. She spends time with one sister and other grandchildren through her paternal grandmother and another sister through her maternal aunt and with extended family members on both sides through both the grandmother, her paternal aunt, and the primary caregiver.

[335]      Although the Child suffered the loss of both parents, with her mother passing away and her father largely absent from her life and/or not significantly involved in her care at any point, care is taken on both sides to ensure that the Child knows her heritage. The primary caregiver and maternal family have made efforts to ensure the child knows her mother, through such events as her funeral and subsequent annual memorial services for the Child’s mother. Maternal family connections, including her maternal grandmother and extended family of all ages, also strengthen the Child’s memory and connection to her mother and her sister who resides with the maternal side of the family.

[336]      On the paternal side, the Child’s connection to her father is through the grandmother, but also through her sister who resides with grandmother along with other grandchildren and, at times, other paternal family members. He has not, however, been a significant presence in terms of caring for the Child.

[337]      The Child’s cultural connection and awareness of her heritage and Indigenous identity is strengthened by both paternal and maternal family connection, but also by the extensive efforts of the primary caregiver to involve the Child in cultural activities including jingle dancing, horseback riding, attending pow wows and community events and taking language classes. The Child also benefits by attending an Indigenous school with other Indigenous children, and from the willingness of the primary caregiver to learn and to participate, and to support extra-curricular activities such as field trips offered by the school as well as many other community-based resources.  She has, in fact, taken advantage of all the resources offered to her and available to her.

[338]      Regrettably, although the primary caregiver includes and invites the paternal family to events concerning the Child – such as birthday parties or memorials for the Child’s mother – the paternal family does not attend. Instead, paternal family has chosen not to include the primary caregiver in any of the activities that would strengthen the primary caregiver’s knowledge and/or understanding of their ways, although Elders testified that this type of inclusion and the invitation for non-Indigenous persons to participate in many Indigenous activities and events would be appropriate in many (but not all) situations. It is the case, however, that even at times Indigenous persons are also barred from some aspects of Indigenous cultural practises, for example, where they are not members of sacred societies and therefore cannot participate fully in the events which are reserved for the members of those societies. In such cases, the primary caregiver would also not be able to participate, however, efforts to include the primary caregiver, where appropriate, in paternal family events and community-based events would undoubtedly benefit the Child, as well as the primary caregiver. Such efforts would also signal, to the Child, acceptance of the primary caregiver as a significant person in the Child’s life rather than continuing to marginalize the relationship between the Child and the primary caregiver.

[339]      I accept that there is a difference between “culture” as a lived experience and “way of being”, and cultural activities, a point made clear by extensive criticism of the primary caregiver on the basis of the paternal family’s assumption that she did not know the difference. I do not find, however, that the primary caregiver is not aware that cultural activities in and of themselves are not the same as “culture” per se, and that she is not aware that as a non-Indigenous person, she cannot provide the Child with an Indigenous person’s lived experience and in-depth understanding of Indigenous cultural, find that social, linguistic and spiritual heritage.

[340]      At the same time, I find that cultural activities do strengthen the Child’s connection to her culture and provide many opportunities for friendship and connection with other members of her cultural group and community. It would not be in the Child’s best interest to cut her off from these opportunities simply because they are facilitated by the primary caregiver and not the paternal family or, for that matter, the maternal family.

[341]      The Child also benefits from her time with the paternal family, in that she is then immersed in the lived experience and family dynamic that is central to the family’s culture and Indigenous heritage. The same can be said about her time with the maternal family.

[342]      There are some additional benefits to the Child’s continuing connections to family in terms of exposure to the spiritual traditions of the family, although the paternal grandmother was raised Catholic and did not take up her traditional spirituality until she was in her 30s.

[343]      Similarly, while the paternal grandmother is fluent in Blackfoot, she did not teach her children to speak the language and did not raise them on reserve, but in the urban environment of Calgary, where all attended school. Still, both the primary caregiver and the paternal grandmother recognise that learning the Blackfoot language is important to the Child’s Indigenous identity and both sides are making efforts to expose the Child to the language. The Child is exposed to Blackfoot in grandmother’s home and through other paternal family members as well as at school and through language classes arranged by the Child’s primary caregiver.

[344]      I sincerely appreciate the evidence given by Indigenous witnesses in this case, including Dr. Sinclair, Thomas McMahon, Wilton Good Striker and Florine White Man Left. Aside from a chance encounter between Elder White Man Left, and the grandmother, none of these witnesses, nor Dr. Carriere or Beatrice Little Mustache, met the Child nor any of the applicants, save Beatrice Little Mustache who could not provide reliable evidence as to her meetings with anyone, whether maternal family or paternal family. The evidence of these witnesses was comprised mostly of generalities and speculation without sufficient – or any – probative value in connection to the Child in this case.

[345]      Therefore, I am unable to find that the evidence of these witnesses is sufficiently connected to the facts pertaining to this particular Child, whose situation is distinguished from history for a number of reasons and accordingly, I give this evidence little weight.

[346]      In addition it is the case that the Child was not “scooped” per se but was removed from her parents’ care for legitimate child protection reasons. The fact that there followed a series of three custody agreements and then four temporary guardianship orders before the father consented to permanent guardianship is telling of extensive efforts made to return the Child to family, to no avail. It is also telling that the father consented to the Child’s permanent guardianship order at a time when no family – paternal or maternal – made themselves available or attended meetings with Child and Family Services which may have resulted in a much different outcome.

[347]      In addition, this is not a case where the Child has no knowledge of family, and no clue that she is an Indigenous child. The Child’s Indigenous identity has not been hidden from her by anyone.

[348]      While I am concerned that the paternal grandmother told the Child – at less than 4 years of age –  that the primary caregiver was not her” mommy”, I accept that the grandmother’s way of “speaking truth” was not a deliberate attempt to harm the Child. Rather, I find that the grandmother saw this as an attempt to distance the Child and the family from the primary caregiver and, regrettably, this inadvertently did harm the Child.

[349]      There is no evidence that the Child’s Indigenous identity was, or would be, hidden from her. On the contrary, there is abundant evidence that all are concerned with promoting the Child’s awareness and knowledge of her Indigeneity, her culture, her language, and her community, both within the family structures on both sides and more broadly.

[350]       In addition, I find that there is a significant risk to that the Child’s connection to maternal family will be lost if that connection is not facilitated by the primary caregiver, as it has been to date. The paternal family has simply not bothered to make the connection. Although the Child’s parents had three children together in a relatively short time frame, the paternal family has no involvement with the maternal family and knows nothing about the maternal family other than to suggest the maternal grandmother is an alcoholic. I note the paternal grandmother also faced these issues at an earlier time, as did the grandfather and a number of their children, including a son who overdosed. Both sides of the family also have extensive involvement with children’s services, whether on the part of the grandparents, or their children, or both. In addition, one of the Child’s siblings resides with maternal family, yet the paternal family has no involvement with this sibling and no connection, despite emphasis on sibling connection within the paternal family dynamic.

[351]      I therefore distinguish this particular Child’s circumstances from the historic circumstances of many others where assimilation was the stated policy and goal of removing Indigenous children from family, and much suffering was the result. This Child’s circumstances are not those circumstances and in addition, legislation now offers this Child a path forward as it incorporates significant policy changes which require a vastly different approach, at both the federal level and the provincial level.

[352]      As to the home studies in evidence, it is clear that each side could care for the Child, and the evidence as to the Child’s current circumstances and shared parenting regime supports this conclusion. According to the witnesses, the reports were prepared from different perspectives – Indigenous vs. Eurocentric. There was also a suggestion that the best interests evaluation should be given little, if any weight, because it – and all of attachment theory – are based on Eurocentric perspectives. Dr. Carriere’s evidence was that attachment is relevant from a different viewpoint, which is attachment to family system and community as central to Indigenous identity, rather than attachment to the individual. I accept this evidence, but also must consider that this particular Child has attachments on both fronts. The preponderance of evidence supports the conclusion that she is attached to paternal family, to and through those family systems and community, but that she also has a very significant individual attachment to the primary caregiver, a person she knows or has been told is not her biological mother, but nevertheless is the person she regards as her mother.

Conclusion – Guardianship

[353]      There is only one clear path forward that will safeguard all of the legislated objectives for the Child in question and that is to maintain the status quo, which to this point has provided the Child with stability and has promoted her best interests.

[354]      I find that the Child’s best interests are to remain in the shared care of her paternal grandmother and the primary caregiver. I am not persuaded that the paternal aunt, given her view as to being “back-up” for grandmother, has made the case to share in guardianship decisions, and in any event, she will have unrestricted contact with the Child through the grandmother.  She also, in the past, served a useful bridge as peacemaker between the grandmother and primary caregiver; removing her from decision-making concerning the Child will potentially also remove her from future conflict.

[355]      Continuing with the shared arrangement will require some clarification as to how the Child’s primary caregiver and grandmother will work together going forward to ensure the Child. In evidence, Elder Florine White Man Left provided the guidance and teaching needed to navigate the path ahead, which is through acceptance and consultation with Elders.

[356]      Therefore, I am satisfied that it is in the best interests of the Child to maintain the status quo, based on the strength of the Child’s connections to each of the grandmother and her primary caregiver, both of whom understand the importance of cultural connection in terms of the Child’s identity, safety and security as a person.

[357]      Any changes to the existing arrangements for the Child must be made in consultation with an Elder from the community of either the paternal side of the family or the maternal side of the family, and the Child’s residence with either party shall not be changed without such consultation. In the event that an Elder is not available and the parties disagree, either party may engage in peacemaking via the Kainai Peacemaker or via the Piikani Nation.

[358]      Each of the grandmother and the primary caregiver shall follow the cultural plan set out in their respective applications for private guardianship; however, the grandmother shall have primary decision-making as to cultural connection for the Child and shall ensure the Child has the opportunity to fulfil her potential in terms of her familial, cultural, social, linguistic and spiritual heritage as an Indigenous person. This is not a veto over cultural activities initiated by the primary caregiver, but an assurance that the grandmother will have every opportunity to enrich the Child’s lived experience according to the grandmother’s traditional ways.

[359]      Each of the grandmother and the primary caregiver shall promote and ensure the Child’s continued relationship with the maternal family, including the Child’s sister in care of maternal family. Again, Elders from either community, or peacemaking, can assist with this direction, if needed.

[360]      Otherwise, all rights and entitlements of guardianship are to be shared. I do not believe it necessary to caution the primary guardian as to her obligations to ensure the Child knows her Indigenous identity, but in any event, I refer her to the legislation in case she is in doubt.

[361]      Thank you all, for your capable submissions, and your patience throughout this lengthy process, with particular thanks to the Elders who participated in this trial.

 

 

 

Heard on the 5th day of December, 2022.

Dated at the City of Lethbridge, Alberta this 5th day of December, 2022.

 

 

 

 

 

 

 

 

M.C. Christopher

A Judge of the Provincial Court of Alberta

 

 

Appearances:

 

Robyn Sanders,

for the Director, Child, Youth and Family Enhancement

 

Rupert Joshi,

for Courtney Byam

 

Lindsey Mincher,

for Angela Cutter and Lennie Creighton

 

Rocky Pollock,

for the Child

 

Andgela Edgington,

for Alberta Justice and Solicitor General

 

P. Reid,

for the Blood Tribe