Why This Case Matters: Federal Law Takes Priority in Indigenous Child Protection
In Ontario, the way Indigenous children are cared for by child welfare agencies is undergoing a major legal shift. The Superior Court of Justice has confirmed that federal legislation now governs decisions about temporary care and custody for Indigenous children, taking precedence over provincial laws.
This decision reinforces that supporting Indigenous culture, language, and family connections is not just a consideration — it’s the law. It sets a higher bar for child protection agencies before they can remove children from their parents or place them outside the family, especially when Indigenous identity is involved.
Federal Act Displaces Provincial Law in Indigenous Child Care
When it comes to the best interests of Indigenous children under temporary care, federal law overrides provincial child and family services laws like Ontario’s CYFSA.
- The Federal Act is the paramount legal framework relating to Indigenous children’s care decisions.
- Provincial laws (e.g., CYFSA) are displaced where they conflict with the Federal Act in this context.
- The court relied on a previous decision, Children’s Aid Society of Ottawa v. TC and KJ, confirming this federal jurisdiction.
Parents Presumed Best Placement Under s. 16 of the Federal Act
The Federal Act creates a presumption that children should stay with their parents or family unless this conflicts with the child’s best interests.
- The child protection society must prove that parental placement is not in the child’s best interest to stop it.
- Placement with non-Indigenous foster homes is only considered when parental placement is inconsistent with best interests.
- In this case, the society’s plan to place children outside the family did not meet this burden.
Cultural and Linguistic Continuity Are Legal Priorities
The court emphasized preserving Indigenous culture, language, and community ties as essential parts of a child’s best interests under ss. 10(2) and 10(3) of the Federal Act.
- The children’s own consistent preferences were given weight in decision-making.
- The mother’s plan supported maintaining the children’s Inuktitut language and Inuit identity.
- The child protection society lacked a strong cultural plan, which weighed against their position.
Risk Mitigation Through Supervision Orders Instead of Removal
When risks to the children exist, the least intrusive intervention is preferred, often via a supervision order to the parent rather than outright removal.
- The mother’s sobriety, supportive resources, and safety plan were credited by the court.
- The court dismissed the motion to remove the children, favoring supervision as a reasonable safeguard.
- This approach seeks to keep families together whenever it is safe and appropriate.
What this signals for parents
This decision shows a strong legal preference for keeping Indigenous children with their families and communities. Parents seeking help should know that the law prioritizes their role and cultural connections, and child protection agencies must meet a high standard before removing children.
This post summarizes the court’s decision but does not constitute legal advice. For individual cases, consult a qualified lawyer.
How will this ruling change the way child protection agencies engage with Indigenous families moving forward?