The Overhaul of Indigenous Child Welfare Considerations Through Federal Legislation

  • March 16, 2021
  • Imran Kamal, LSO Certified Specialist - Indigenous Legal Issues

The landscape of child welfare services to Indigenous people has been going through a desperately needed overhaul – to finally become culturally appropriate and humane, if I may be so bold. The changes to the Child, Youth and Family Services Act in 2018 and the federal legislation An Act respecting First Nations, Inuit and Métis Children, Youth and Families, (“the Act”) in 2020, provide a new framework for Indigenous legal issues in child protection law.

The federal Act sets out 2 objectives. First, it sets out Federal rules on Indigenous child welfare which includes approximately 10 substantive laws. These are mandatory and overlay on top of both provincial and Indigenous laws. They took force on January 1, 2020. Secondly, the Act recognizes inherent jurisdiction of Indigenous peoples in child welfare and creates a path for Indigenous communities to exercise that jurisdiction. This is optional for communities and can be exercised at any time (January 1, 2020 onwards).

Sections 9-17 of the Act establish substantive rules about child welfare. These federal rules layer on top of provincial and Indigenous laws. Both or all 3 apply, unless there is a “conflict or inconsistency”, in which case, Indigenous laws prevail over provincial law (section 22(3)). Sections 10-15 of the Act also prevail over Indigenous law.

Section 18(1) of the Act recognizes the inherent right of self‐government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.

We are at the turning point of an epoch. Indigenous communities are beginning to give notice to exercise these inherent rights. The process for exercising jurisdiction includes giving notice to Canada and Province(s) and making “reasonable efforts” to negotiate a Coordination Agreement (including funding). Finally, the Indigenous laws can come into force after a Coordination Agreement is made, or after 1 year, without an agreement, if “reasonable efforts” were made.

So the question many people have asked: “What law applies when?” It is important to note that the Indigenous law “has the force of federal law”. Therefore, provincial and Indigenous laws can apply, but in a conflict or inconsistency, the Indigenous law prevails. The Indigenous law takes precedence over most federal law, with exceptions (these prevail over the Indigenous law):

1. ss. 10‐15 of the Act: six of the federal rules

2. s. 23 of the Act: a general best interests override clause (problematic)

3. Human rights (Charter & Canadian Human Rights Act)

To determine who makes Indigenous laws pursuant to the Act, “Indigenous governing bodies” is defined as “a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.‍”

In the case of multiple communities affecting a child/family, if there is a conflict or inconsistency between a provision respecting child and family services that is in a law of multiple Indigenous groups, communities or people, the provision that is in the law of the Indigenous group, community or people with which the child has stronger ties — taking into consideration his or her habitual residence as well as his or her views and preferences, giving due weight to his or her age and maturity, unless they cannot be ascertained, and the views and preferences of his or her parent and the care provider — prevails to the extent of the conflict or inconsistency.

It is important to note that there is no mention to “customary care” as we know it in the Ontario legislation.

An excellent case which applies there best interests test in the Act alongside the provincial legislation is Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251. The Court looked at the importance of the children’s Metis heritage and preserving their cultural identity. Since being placed in care, the Society made efforts to foster the children’s Metis culture. All four children were placed together in a culturally matched home through Eagles Nest foster agency that integrated and promoted indigenous culture, and with foster parents who are of Metis heritage.

The court reviewed that it must consider plans that are in accordance with the customs or traditions of the indigenous group to which the child belongs, which both plans could forward provide. There was evidence of the foster parents supporting the children’s Metis culture, and no evidence that the parents have supported the children’s Metis culture in the past.

An order for extended society care with access was made.

In Children’s Aid Society of London and Middlesex v. T.E., 2021 ONSC 788, the Court found that the temporary care and custody provisions of the provincial Act are not in conflict or inconsistent with the Federal Act. The Court articulated that the paramount consideration in both Acts is the best interests of the child. In both Acts, placement of the child is to be considered on a priority basis (s. 94(2) and s. 16(1)). While there is potential conflict between these two sections, the Court found no conflict in their operation in this case.

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