Important changes to the provision of Child and Family Services to Indigenous Families: Ontario adopts regulations under the Child, Youth and Family Services Act, 2017 and Bill C-92 receives Royal Assent
In April of 2018, a new piece of legislation dealing with child and family services came into effect in Ontario. The Child, Youth and Family Services Act, 2017 (CYFSA), replaced the former Child and Family Services Act. This new legislation includes provisions that will be of particular interest to First Nations, Métis and Inuit groups in the province.
On June 21, 2019, Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and their families received Royal Assent. This legislation is not yet in force, but will take effect on a date to be determined by the Governor in Council. Update: Canada has announced that the new Act will come into force in January, 2020.
Westaway Law Group has experience advising Indigenous communities and organizations with respect to child and family services.
Ontario’s Child, Youth and Family Services Act, 2017
The CYFSA came into effect on April 30, 2018. Section 68(1) of the CYFSA authorizes the Minister of Children, Community and Social Services of Ontario to make regulations that establish a list of First Nations, Inuit and Métis communities for purposes of the Act. Once listed, these communities have the ability to:
- enter into agreements with the province for the provision of services and may receive funding from the Minister under those agreements (s. 69);
- designate a First Nations, Inuit or Métis child and family services authority which can then negotiate with the province regarding the provision of services under the Act, and could request to be designated as a children’s aid society under the Act (s. 70).
In cases involving First Nation, Inuit or Métis children belonging to a listed community, the new legislation gives those communities the right to be consulted about such things as:
(a) bringing the child to a place of safety and the placement of the child in residential care;
(b) the provision of family support services;
(c) the preparation of plans for the care of the child;
(d) status reviews under Part V (Child Protection);
(e) temporary care agreements under Part V (Child Protection);
(f) society agreements with 16 and 17-year olds under Part V (Child Protection);
(g) adoption placements;
(h) the establishment of emergency houses; and
(i) any other matter that is prescribed.
Listed Indigenous communities are also afforded important participatory rights in court proceedings involving children and youth who identify as members of their community.
For example, regulation has been passed pursuant to s. 68(1) of the CYFSA naming Inuit Tapiriit Kanatami (ITK) as a listed Inuit community for purposes of the legislation. This Regulation came into force on July 1, 2019.
Bill C-92 – An Act respecting First Nations, Inuit and Métis children, youth and their families
Bill C-92 was designed to respond, at least in part, to the Truth and Reconciliation Commission of Canada’s Call to Action #4, which calls upon the federal government “to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases.” The primary purposes of the legislation are set out in s. 8 as being to:
(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;
(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and
(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
Among the national standards set out under Bill C-92 are: the requirement to consider an Indigenous child’s culture and to notify a child’s Indigenous community before taking any significant measure. Likewise, considerations related to the best interest of Indigenous children will now include specific reference to their cultural, linguistic, religious and spiritual upbringing and heritage (s. 10(3)(a)).
Westaway Law Group has experience advising Indigenous communities and organizations with respect to the provision of culturally appropriate child and family services, and putting the structures in place that will allow that to happen. Please contact us if you have questions.
This new federal legislation includes an express recognition that legislative authority over child and family services matters is an aspect of the inherent right to self-government recognized and affirmed under s. 35 of the Constitution Act, 1982. The legislation includes an express invitation to Indigenous groups to assume full legislative jurisdiction over child and family services matters by enacting their own laws in relation to these matters. However, the law is designed to allow First Nations, Métis and Inuit groups the ability to assume full or partial jurisdiction over these matters at a rate that best suits their community’s needs.
There remain some unanswered questions as to precisely how the provisions in Bill C-92, once in force, will work together with provincial child and family services legislation (including Ontario’s CYFSA). The answers to these questions will vary from province to province and across the various regions and territories of Canada. What is clear is that the new federal legislation is an important step in allowing Indigenous communities to take back control over the delivery of child and family services to their people.