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The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture.

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Patterson, 2016 ONCJ 210 (Can LII) dealing with whether 4 year old Dylan could maintain a relationship with his deceased mother’s family.

In a strongly worded decision, the court wrote: “Tragedy can be as corrosive as the sturdiest acid, eating away at the bonds that hold families together.

For the parties to this motion, the illness and death of a young mother whom they all loved led only to further dissention, conflict, and ultimately this court proceeding.” After Dylan lost his mother to cancer, his mother’s family made up of his grandmother, aunts and uncles applied to Justice Kurz for access to Dylan.

The doctors that testified stated unequivocally that a child with this disease, if left untreated, would die.

It was the hospital’s claim that the child had more than a 90% probability of recovery if treated with chemotherapy.

5419, Justice Edward heard 9 days of testimony before deciding on a hospital’s application for an order protecting an 11 year old aboriginal child diagnosed with leukemia.It stated that “the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part.Family court judges are called on daily to make difficult decisions. At the time of the hearing, the child’s mother had withdrawn consent for the continuation of chemotherapy. The court commenced its analysis by determining whether the mother’s decision, as the child’s substitute decision-maker, was in fact an aboriginal right to be respected.The more challenging of cases often involve custody, relocation, alienation and termination of contact. He stated: “In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s.However, at the far extreme are child welfare cases where the state intervenes accusing the parents of lacking the capacity to care for their own children. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.Within this subset of cases are cases that involve the life and death of a child. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.” The court did not end its examination on this freedom.


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