Child and Family Services and cultural continuity: Court orders including cultural plans and changes to Saskatchewan legislation

Courts are beginning to attach or incorporate cultural plans to Child and Family Services (“CFS”) orders. Will this trend, emerging from cultural continuity minimum standards in Bill C-92, catch on in Saskatchewan? Will Saskatchewan’s “best interest of the Indigenous child” factors have an impact on cultural continuity?

An Act respecting First Nations, Inuit and Métis children, youth and families (“Bill C-92”) sets out minimum standards which apply to the provision of CFS in relation to Indigenous children. One of those minimum standards is the principle of cultural continuity. Similar standards for maintaining cultural connections are also reflected in several provincial CFS laws. As a result of both Bill C-92 and provincial legislation, Courts are increasingly attaching or incorporating cultural plans to court orders.

First Nation A. v. A.B., 2020 BCPC 279

In First Nation A. v. A.B., the British Columbia Provincial Court ruled that incorporating portions of the First Nation’s proposed cultural plan was in the best interests of the child and was aligned with Bill C-92. The First Nation had filed the proposed cultural plan in Court, and it was intended to preserve the child’s Indigenous heritage by identifying the Nations to which she belonged, identifying her language, and providing ways to transmit the Nations’ culture to the child. The Court noted that incorporating portions of the First Nation’s cultural plan into the order itself provided a specific means to guard against future cultural losses arising from Canada’s history of colonialism.

British Columbia (Children and Family Development) v. R.T. and V.L., 2025 BCPC 84

The above case was later cited in British Columbia (Children and Family Development) v. R.T. and V.L., where the First Nation successfully advocated for a cultural plan to form part of a court order for continuing custody. The Director of Child Services, who had not developed any cultural plan, argued that the Court did not have jurisdiction to include a cultural plan as part of the continuing custody order which was the subject of the application.

The Court disagreed and incorporated the terms of the cultural plan into the continuing custody order. In making the determination, the Court stated that the interpretation of the provincial CFS legislation must be consistent with the United Nations Declaration on the Rights of Indigenous Peoples and that the Court has the authority to control its own process. Further, the Court noted that it should not be discouraged from defending the rights of children when it has the opportunity to do so.

(Re) AL & JL, 2025 ABCJ 75

A similar result was reached in a private guardianship application in (Re) AL & JL. In this case, the First Nation advocated for the Alberta Court of Justice to include a cultural plan as part of the order that would be issued by the Court. The Court directed that the most recent cultural plan (which had been filed as an exhibit in the hearing) be made an attachment to the Court’s order. The Court further ordered that the parties take reasonable steps to comply with the plan, take reasonable steps on behalf of the children to exercise any rights they may have as First Nation individuals and to continue to inform the children of their status as First Nation individuals.

Saskatchewan

It remains to be seen whether the trend of attaching or incorporation cultural plans to Court orders will become more prominent in Saskatchewan. In Saskatchewan, The Child and Family Services Act (“CFSA”) was amended to include factors that must be considered in determining the best interests of an Indigenous child. Those factors are:

• the importance of placement within the child’s extended family or community as the preferred environment for the care and upbringing of the child
• 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
• the importance of the child belonging to the child’s Indigenous community
• the capacity of persons, other than the child’s parent, proposed to care for the child, respecting access and opportunities to maintain family, community and cultural experience and connections
• the importance of involving the Indigenous group, community or people to which the child belongs in planning with respect to Indigenous children and families

Bill C-92 recognizes that cultural continuity is essential to the well-being of Indigenous children. Whether by virtue of provincial CFS legislation or Bill C-92, the above cases are examples of how a First Nation can ensure cultural continuity is protected when it participates in CFS court proceedings. By participating in CFS court proceedings, a First Nation may impact decisions made and actions taken involving its children, youth, young adults and families even if the First Nation has not yet exercised its inherent right of self-government over CFS by revitalizing or making its own CFS law. For more on First Nation advocacy in the Saskatchewan CFS system and child protection hearings, see our previous Insight.

Are you a First Nation Representative? Please let us know if there a topic you would like us to cover in a future Insight.

MLT Aikins can assist in ensuring that a First Nation’s concerns and considerations are represented when its children are subject to a child protection hearing in a Saskatchewan Court.

MLT Aikins has experience assisting Indigenous Governing Bodies with taking control over CFS and drafting their own CFS laws and negotiating coordination and fiscal agreements. We would be honoured to assist your Indigenous community in all aspects of asserting and exercising your inherent right of self-government over CFS.

Contact Laura Schaan or Anna Beatch to suggest a topic or learn more about our services.

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