By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

In the recent decision of C.N.L. v. G.A.M, 2023 ONSC 3397 (CanLII), Justice Gordon was asked to determine the child’s primary residence and parenting time where the parents had agreed to joint decision-making, and had previously shared parenting, but now lived three hours apart: paras 1 & 3-4. Of particular importance, the parents and the child were members of Neyaashiinigmiing First Nation, known as the Chippewas of Nawash (“Nawash”) and commonly referred to as the Cape Crooker Reserve. Both parents also had other Indigenous ancestry: paras 7 & 10. The issue required immediate adjudication as the child was set to start school in September. While the parents had lived primarily in Toronto during the relationship, the mother now lived in Kitchener, and the father lived on-reserve at Nawash: paras 16-19.

Best Interests of the Indigenous Child

The best interests of the child is the only test to consider when making a parenting decision under the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”): para 53.

While Indigenous factors (including heritage, culture, and language), as set out in s. 24(3)(f) of the CLRA, are of “considerable importance”, it is only one of several factors when considering a child’s best interests: para 56.

However, in considering the best interests of an Indigenous child under the CLRA, the court must also take into consideration the Federal An Act respecting First Nations, Inuit and Métis children, youth and families, 2019, SC 2019, c 24 (“Federal Act”); the provincial Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 (“CYFSA”); the United Nations Convention on the Rights of the Child (1989); and the United Nations Declaration on the Rights of Indigenous People (2018): para 60.

Justice Gordon noted that the Court of Appeal for Ontario, in M.L. v. Dilico Anishnabek Child and Family Care, 2022 ONCA 240 (CanLII), directed courts to interpret best interests provisions to incorporate the national standards set out in the Federal Act, and in the CYFSA “in a manner that harmonizes the legislation”. As such, the best interests test pertaining to Indigenous children is “more expansive than as set out in section 24(3)(f)” of the CLRA: paras 57-59. Further, the court must also consider the two UN documents, which have both been incorporated into legislation: para 60.

In the words of Justice Gordon:

[61]           The best interests test must address the rights of Indigenous children which include the recognition of equality and a unique heritage, culture and language that must be allowed to continue as well as a relationship within an Indigenous community.  The Indigenous child is allowed and encouraged to learn and participate in his or her heritage, culture, traditions and language and to preserve the acquired identity of the community or nation to which he or she belongs.  Accordingly, the best interests test takes into consideration the whole of the child in its many complex origins, all of which are important.  The legislative changes reflect an attempt to overcome hundreds of years of oppression caused by colonialism, as well as the negative consequences from the residential school program, and work towards meaningful reconciliation.

Irrelevant Factors for Determining Urban v. Reserve Residence

Justice Gordon also noted that the following factors were not relevant in this case:

  • Either parent’s new relationship: where no complaints were made as to the individuals’ involvement with the child: para 64.
  • Religion, where both parties identified with traditional Indigenous spirituality: para 65.
  • Snow and Road Conditions at Nawash: although snow and road conditions at Nawash could impact school closures, it would be “improper” to incorporate geography into the best interests test and thereby conclude that certain areas in the province are “better” than others: para 66.
  • Substance abuse and suicides at Nawash: it would be “improper” to use a community problem as a factor in a family issue. Such would lead to negative inferences regarding Indigenous communities: para 69. This was a strong family, with no history that impacted parenting matters. There was no greater risk to the child on-reserve than in Kitchener.
  • Reserve vs. Urban: while comparisons could be made, there was no logical basis to conclude that one was better than the other having regard to the best interests test. Where a parent lives is a matter of choice “and no community in Ontario can be said to cause negative consequences”: para 70.
  • School system: where no current evidence was tendered to demonstrate any difference in curriculum or opportunities: para 71.

The court did consider the availability of the child’s Ojibwe language training in each proposed setting, but found that this was not a determinative factor, where neither parent was fluent and it would require the participation of all family members to help the child learn and practice the language: para 82.

The relevant factors in s. 24(3) of the CLRA were “essentially neutral” as between the parties: paras 73 & 79-80. In the end, Justice Gordon ordered primary residence with the mother, where at this time, her circumstances were more stable and would result in a more “straightforward routine” for the child: paras 80-81. However, the father’s parenting time was to be increased from what was proposed, in accordance with “the longstanding principle of maximum contact”: paras 87-89.


*with thanks to Vanessa Lam for her suggestions and edits.