Appeal Court Addresses Improper Guardianship Order

Child protection orders for First Nations children have historically been problematic in that children were often apprehended from their communities and placed in the care of an agency or a family with no connection to the child’s home or culture. In an effort to rectify this, the province has made strides to change things. Now, a person applying to be a guardian of an Indigenous child must satisfy certain requirements before they can be approved. Those requirements include:

1. Create a Cultural Connection Plan and a commitment to adhere to it. This is a plan that sets out how the guardian will ensure that the guardian will maintain a sense of the child’s culture and identity throughout their life;
2. Make a commitment to taking any reasonable steps to exercise any rights the child might have as an Indigenous person;
3. Make a commitment to making the child aware of their cultural identity as soon as they are old enough to discuss it.

In many cases, it is preferable to place a First Nations child in the care of a family member or another person in the community in order to create as little disruption to the child’s life as possible and maintain their connections to their local community. However, guardianship issues can be tricky, as a recent Appeals Court found after an appeal by the Métis Child, Family and Community Services (CFCS) from a lower court decision that kept a child in the care of her maternal grandmother but didn’t address guardianship.

Lower Court Orders Child to Care of Her Grandmother, With CFCS Maintaining Guardianship

Two young Indigenous children were apprehended from their family in 2016 and placed in the care of Métis Child, Family and Community Services, which was responsible for their care and well-being. The younger child was placed back in the care of the child’s mother and father pursuant to a voluntary placement agreement, but the older child remained in her grandmother’s care and under the temporary guardianship of the Métis CFCS. Under this arrangement, the CFCS provided financial support to the grandmother in order to continue care for the child.

The CFCS applied for an order for permanent guardianship. The child’s mother objected to the application, expressing her desire that the child remain in the care of her grandmother, and that no order for permanent guardianship be made.

The judge made a complex order, which was to leave the child in her grandmother’s care and make no change to the guardianship arrangement. The court cited, as a reason for the order, that if the grandmother were to be appointed as the child’s guardian, she would no longer qualify for financial assistance from the CFCS. However, the court was unable to make another temporary guardianship order, due to restrictions under s. 41(1) of the Child and Family Services Act. This order, therefore, left the issue of the child’s guardianship in limbo. The judge also indicated that the order was to remain in effect pending the passage of a variety of legislation, at some undetermined point in the future. The Métis CFCS appealed the decision.

Court of Appeal: Lower Court Erred in Decision

The Court of Appeal granted the appeal, citing various errors in the lower court’s decision. By awarding permanent guardianship to the Métis CFCS, the child could remain with her grandmother who would continue to receive funding. The CFCS was pleased with the grandmother’s care and had expressed a willingness to enter into a commitment agreement recognizing the grandmother as the child’s long-term placement for care. There was no danger that the child would be removed from her grandmother’s home, nor was there a threat to continued financial assistance. But leaving the guardianship question in limbo would only create confusion.

Contact the Lawyers at Mincher Koeman for Assistance with Indigenous Guardianship Issues in Calgary

At Mincher Koeman, our family law lawyers have considerable knowledge of the inner workings of Alberta CS and as such we will provide insightful and accurate advice regarding guardianship orders, particularly as they pertain to First Nations children. We are committed to protecting the needs of Indigenous children who have been removed from an unsafe home environment while ensuring that they don’t lose connection to their culture and identity in the process.  Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.