The Applicant sought permission to Appeal a Decision of the Court of King’s Bench, which had acted as an Appeal Court for Decisions made under the Family Law Act, SA 2003, c F-4.5 (the Family Law Act) as required by Rule 14.5(1)(i).

The Applicant, the child’s biological father, sought to regain custody after the child was placed with the Respondents under a Customary Care Agreement (the CCA). Any party could terminate the CCA with 90 days’ notice. The Respondents filed a Guardianship Application under the Family Law Act in the Court of Justice, seeking permanent guardianship, which the Applicant opposed by revoking the CCA.

The Trial Judge found that the child’s Indigenous status and need for protection meant An Act Respecting First Nations, Innuit and Metis children, Youth and Families, SC 2019 c 24 (the Federal Act) applied. The Trial Judge determined it was in the child’s best interest to remain with the Respondents, granting the Guardianship Application. The Appeal Judge dismissed the Appeal, confirming that the Trial Judge had correctly applied the Federal Act and concluded that it was in the child’s best interest to remain with the Respondents.

De Wit J.A. outlined the test for leave to Appeal as established in Mezo v Watts, 2021 ABCA 76. The Applicant must demonstrate: (1) an important question of law or precedent, (2) a reasonable chance of success, and (3) that any delay will not impede the progress of the Action or cause undue prejudice. Additionally, de Wit J.A. highlighted that the child’s best interest and the parent’s resources should always be taken into account when deciding whether to grant permission to Appeal.

The Applicant argued that the Appeal raised important questions of law with precedential value, as the Federal Act had not previously been considered or interpreted by this Court. Further, the Applicant argued that the lower Court’s Decision could adversely impact Indigenous parents, effectively penalizing them for responsibly entering into a CCA. The Respondents asserted that both the Trial and Appeal Judges correctly applied the Federal Act, noting that CCAs are unique to Ontario and thus any decision involving the Federal Act and CCAs would have limited precedential value for parties in Alberta.

Appeal Justice de Wit found that the Appeal raised significant legal questions with potential precedential value, particularly regarding the interpretation of the Federal Act in relation to Guardianship Applications after the termination of a CCA. De Wit J.A. highlighted that the Court of Appeal had not previously addressed whether the Federal Act changes the best interests test for Indigenous children. While acknowledging that the CCA is unique to Ontario, the Court noted the implications of such agreements may affect caregivers and children in Alberta. De Wit J.A. concluded that the Appeal was not frivolous and had a reasonable chance of success. Consequently, Appeal Justice de Wit granted permission to Appeal.