of federal funding was now significant17 as was the impact on
 If any of the provincial programs proved “unacceptable” to
any band, as was made clear in the federal memorandum of
December 9, 1964 discussed above, then “no extension of that
particular service will be made to that Band and the service provided by the Federal Government will continue”. In other words,
absent consultation and acceptance by the individual band of the
provincial child welfare regime, the pre-existing “piecemeal” and
“rudimentary” service provided by the federal government (via
private contractual agreements with certain CAS organizations
in certain parts of the province) would continue.
 Canada’s submission that the obligation to consult in
s. 2(2) of the 1965 agreement did not apply to child welfare services does not succeed. The language in s. 2(2) is clear and
unambiguous and there is nothing in the discussion papers or
other documents surrounding the formation of the 1965 agreement that suggests in any way that the obligation to consult set
out in s. 2(2) was not intended to apply to the extension of provincial child welfare services.19
 Indeed, it strains credulity to think that Canada would
repeatedly emphasize the importance of genuine consultation
and how it would be “a serious breach of faith” if any of the provincial programs were “forced on a Band against its wishes”, all
the while intending that child welfare services, probably the
17 Between 1965 and 1966 Reserve Status Indian (“RSI”) child-in-care costs
“jumped over ten times”. And by 1972, the RSI costs were “40 times higher
than their costs in 1957”. See Expert Report of Dr. Joyce Timson (affidavit
of November 7, 2016), at 19 and 22.
18 Ibid., at 1: “After 1965” aboriginal children were taken into care “in disproportionate numbers”.
19 Canada referred to federal memoranda that post-dated the 1965 agreement to suggest that the obligation to consult under s. 2(2) did not apply
to the extension of child welfare services because some of these services
were already being provided (in the late 1950s) on some reserves by certain CAS under contracts with the federal government. In my view, this
submission fails for the reasons already noted. It also fails because evidence of subsequent conduct or “evidence of the behavior of the parties
after the execution of the contract” is not part of the factual matrix or
surrounding circumstances at the date of the agreement and “should be
admitted only if the contract remains ambiguous after considering its
text and its factual matrix” (emphasis added): Shewchuk v. Blackmont
Capital Inc.,  O.J. No. 6190, 2016 ONCA 912, at paras. 41 and 46.
Here, as I have already found, there is no such ambiguity in the meaning
of s. 2(2) of the 1965 agreement.