In May, during committee stage of Bill 26: Child, Family, and Community Service Amendment Act, I rose to ask a series of important questions about the welfare of Indigenous children in British Columbia.
As I have said before, one of the most heartbreaking issues that I deal with in my constituency office is the separation of Indigenous families. The humanitarian crisis facing our province – the huge overrepresentation of Indigenous kids in the foster care system – is an issue that is close to my heart. This new legislation is intended to give Indigenous nations more involvement in the care of their children, but I have significant concerns about the consultation process and the impact that it will have on the ground. That’s why I asked the following clarification questions, and why I have shared them here. The better we understand the legislation, the better we can understand what still needs to be improved.
Unfortunately, during the week that Bill 26 came to committee stage we had three chambers open at once. For a party with three MLAs that meant we were scrambling to make sure we were in the right places at the right times to ask questions and cast votes. The result of this is that I was unable to ask all the questions of the Minister of Child and Family Development that I had hoped, but the Ministry has taken the time to answer my additional questions in the text below.
As a point of clarification: The italic text is the answer the Minister gave during committee stage, and the regular text is the information added by the Ministry of Child and Family Development in response to my additional questions. If you’d like to watch the committee stage, this is a link to the video.
I hope that the information provided by the Ministry provides further insights as to how this legislation is going to affect the lives of Indigenous families and children in care.
Bill 26 – Child, Family and Community Service Amendment Act, 2018
Committee Questions – Answers supplied in writing subsequent to Committee stage, May 23, 2018
Section 1
- Why is 12 set as the year at which a child can self-identify as Indigenous?
- This is existing legislation. This has been under law, under this act, since 1996.
- In the amendment to subsection (b), there is a reference to “another Indigenous community.” It says “to a First Nation, the Nisga’a Lisims Government, a Treaty First Nation or another Indigenous community. I’m curious about what that could refer to and could it be, for example, urban Indigenous communities. Then what would the implications of that be?
- This captures everyone who isn’t captured by the Nisga’a treaty, or Indian band. Urban First Nations would belong to a community either in BC or across Canada.
- Additional Clarification: “Another Indigenous community” includes Métis, Inuit and urban Indigenous communities. The regulations identify the designated representatives for Indigenous communities in the province. When there is a court proceeding under the act, the designated representative is served notice of the hearing in order to represent the Indigenous community in court. Aboriginal Friendship Centres are typically the designated representatives for urban Indigenous communities.
- Just to pursue the designated representative a little bit. It means a representative designated in accordance with the regulations, and this regulatory process already exists. Could the minister explain how representatives are designated? And are parents consulted in the designation of a representative nation?
- This isn’t part of the amendment. It’s something that is done now by existing regulation.
- Additional Clarification: There is one designated representative for each Indigenous community, as prescribed in regulation. Indigenous communities were consulted when it was determined which position in the Indigenous community would be the designated representative in the regulations. The designated representative is not determined on a case by case basis and therefore the parents are not consulted about the designated representative.
- Could you please expand on how it’s done and whether the parents are consulted in that process? So if you have somebody who is Indigenous – and perhaps its two parents from different nations – how is the designated nation determined, and is there input from the parent or parents into that determination?
- A parent would tell which community, which First Nation, which band that the child is part of – whether there’s one, two or how many there are. The representative is identified in regulation, and it’s not part of the amendments. It’s not part of this bill. That’s existing regulation that is in other legislation.
- Additional Clarification: If there are two parents from different First Nations, the designated representative from each First Nation would be served.
- The new definition of “Indigenous child” also includes children who are Métis and Inuit; in the existing legislation, these groups are not explicitly mentioned. Children from different nations, including Métis and Inuit children, often come from different contexts and have particular needs based on those contexts. Métis people in particular have been called, as quoted in a recent article in The Star Vancouver, “the invisible people.” Will the more specific definition provided by this amendment allow for care that is based on the unique needs of Métis children?
This question was not asked in Committee.
- The Act and the amendments are intended to support care that is based on the unique needs of all Indigenous children, including Métis and Inuit children.
- The new definition of “Indigenous child” removes references to the Indian Act. Who was consulted in this change, and what is the purpose of it?
This question was not asked in Committee.
- The reference to the Indian Act was no longer necessary in the definition of “Indigenous child” as the reference is now in the new definition of “First Nation”. The definition of Indian band no longer captured all Indigenous communities in BC, in particular those communities with self-government agreements: Sechelt Indian Band and Westbank First Nation. A drafting decision was made to ensure the definitions did include all Indigenous communities, and the result was the creation of new definitions of First Nation, First Nation child and First Nation land and the repeal of Indian band and the change to the definition of Indigenous child. This was housekeeping to ensure all Indigenous communities were included in the Act.
Section 2
- Can I just ask for some clarification? For example, if there is a parent or a mother who has identified that she doesn’t want her nation involved, does she have the capacity to give or not to give consent?
- This amendment, within this bill, ensures the rights of Indigenous children to be connected to their community and culture because it’s been proven that when they are connected, it improves outcomes. These are children who…there have been some concerns prior to us utilizing this legislation. Parents have rights to consent, under voluntary agreements, whether they want the nation involved or not.
- That helps clarify. If it’s not a voluntary situation, is the consent also there for the parent or not?
- …what happens now, if a parent does not consent to the Indigenous community becoming involved with a child….Under the current legislation, if a director has not removed a child and the parent objects to the community’s involvement, the director has limited authority to disclose information to the community. The director would not be able to involve the community, contrary to the wishes of the parent. Indigenous communities are entitled to notice and become parties to theChild, Family and Community Service Actproceeding whether or not the parent consents — so just entitled to notice of a proceeding. The director could disclose information to the community without the parent’s consent if the director considers the disclosure necessary for the safety or well-being of a child or necessary for the safety of an adult.
- Also, the member asked: does parental consent affect how an Indigenous community can be involved? The answer is sometimes. An Indigenous community will not be able to be a party to support and service agreements, to voluntary care agreements or to a special needs agreement or an agreement on section 8 or section 12.2 without the parent’s consent.
- If the director does not have a written agreement with an Indigenous community about how that community will be involved in planning and decision-making respecting its children, the parent’s consent may affect the community’s involvement. That said, the guiding principles make clear that Indigenous communities share responsibility for the upbringing and well-being of children and that Indigenous children are entitled, regardless of the parent’s views, to learn about and practice their Indigenous traditions, cultures and languages and to belong to their Indigenous communities. This right will be difficult to uphold without involving Indigenous communities.
- Agreements between the director and Indigenous communities respecting involvement with children prior to a child’s removal from the home will likely address what the party’s obligations would be if a parent does not want the Indigenous community to be involved
- Thank you. Fundamentally I agree on the overarching goal that Indigenous communities are clearly engaged and involved. Unfortunately, the situation we have in so many nations right now is the lack of infrastructure, the lack of funds for education, the lack of programming. What steps will be taken to see the implementation of this overarching goal in Indigenous communities? What kind of support can communities be expecting in order to actually fulfil the laudable goals of this legislation?
- There is a lot of work that’s been done over the last little while by both the federal and provincial governments. The provincial government has invested more money in the delegated Aboriginal agencies. We’ve invested money in the actual communities. The Aboriginal services innovations fund is…There is a lot of work that’s been done over the last little while by both the federal and provincial governments. The provincial government has invested more money in the delegated Aboriginal agencies. We’ve invested money in the actual communities. The Aboriginal Service Innovation Fund is investing in service in Aboriginal communities. Teams in the ministry are delivering services to Indigenous children that are not being served by delegated Aboriginal agencies. Millions of dollars in contracts with the delegated Aboriginal agencies, as well as community organizations like friendship centres. They deliver services for Indigenous children. As well, we are working with Canada to continue to improve the supports and shift our investments to better meet the needs of Indigenous families. We are a partner with the delegated Aboriginal agencies, some of them who did get additional funding from Canada. We know we need to work in collaboration. The bottom line is everybody wants to ensure that there are better services for Indigenous children and families across the province, preventative services to ensure children actually stay out of care and lower the number of children that are in care today in this province.
- The minister mentioned the discretion of the director, in terms of making the decisions about reaching out to nations and those decisions. Ultimately, we’re still in a position of quite a bit of power and authority lying with the director. If the minister could speak a little bit to the intention to move towards Indigenous families and communities sharing the responsibility. The authority and the power also needs to be coming into this equation. What kinds of steps does the minister see moving towards that part of the equation?
- The member’s right. This is still the Child, Family and Community Service Act. Major transformational change will come, and that is coming with the discussions with First Nations, with the agreements that are being discussed now and will come into fruition soon, with some First Nations. It also gives additional tools and obligations to the director within the amendments. Some of them are that the director must administer the act in a manner that upholds Indigenous rights to learn about and practice their Indigenous traditions, customs and languages and belong to their Indigenous communities. The director has to consider the impact of residential schools — its intergenerational impact — and how to best address those impacts through culturally sensitive and appropriate supports and interventions. The director has an increased ability to share information with Indigenous communities, and the director also has increased authority to enter into agreements with Indigenous communities to routinely involve them in decision-making and planning respecting their children. All this respected the language of UNDRIP. The director is required to seek the involvement of Indigenous communities in planning for their children who are under the continuing custody of the director. And in more instances, the director can withdraw from proceedings when parents and communities are working together and can protect their children. So when things are going well, at times the director can step back. The director can also refer child protection reports to prescribed nations that have agreements with the director and be involved with the process with the children.
- One more question…I’m concerned about and curious about the accountability built into this. If there are instances where the director is not doing all of these things, if there are instances when, for example, what’s playing out on the ground is quite the opposite, where is the accountability going to be for the director, which is all dispersed throughout the system? How can there be that capacity for both individuals and communities – Indigenous communities, nations – to be able to hold a director to account to be upholding the intention of this legislation?
- I want to say social workers do have a difficult job, and they work really hard every day to make sure that they’re doing a good job to ensure children remain with their families. If there are issues that arise with practice, there are a number of processes in place. If the issues arise and it can’t be addressed at the local level, the ministry has a robust quality assurance framework that reviews and assesses practices on multiple levels. This includes conducting practice audits, reviewing incidents on individual files, conducting practice reviews and providing complaint resolution services and completing administrative reviews. But, I mean, the reality is that it is the number one goal in our service plan to reduce the number of Indigenous children in care. It’s in my mandate letter. It’s my number one goal. So it’s a directive from the minister to the ministry, to social workers across the province that this is our goal. This is our mandate. And we are going to work towards this to ensure that…. We are going to make sure we have the supports in place. We’re going to provide the preventative supports to support families so that children can stay with the families. These amendments allow us to do the due diligence in ensuring that children don’t get taken into care, not having to reach out to a community after a child is taken into care but ensuring those supports are in place prior to a child being taken into care. That’s my directive to the ministry and one that I will commit to.
- Additional Clarification: In addition, we are supporting our workers to enhance their relationship with local Indigenous communities. This will enable greater dialogue, discussion and accountability between the Ministry and the First Nation.
Section 3
- The service delivery principle acknowledges “the impact of residential schools on Indigenous children, families and communities.” Were the United Nations Declaration on the Rights of Indigenous Peoples or the Truth and Reconciliation Commission considered as possible additional service delivery principles?
- Social workers need to clarify to make sure they understand the impact of residential schools — that that’s taken into consideration when they are working with families. Social workers are getting training now and will continue to get training to make sure that they understand how those impacts could affect families and children. I already talked, in section 2, about the language of UNDRIP and how that was included in, in the truth and reconciliations. Just as a specific example of what could be taken into consideration by a social worker, if a family was being impacted by residential schools. Social workers will want to know whether the parent attended a residential school or whether the child’s grandparents did and what they consider to be the impacts of those experiences, because it’s been proven that the impacts of a grandmother attending residential school has a significant impact as well — and can have an impact as well — on the grandchildren. The schools impacted children and families in different ways. It will be the impacts on the particular family that the social worker needs to be interested in and needs to assure that they recognize the differences, because experiences are unique. In order to effectively address protection concerns, services will need to acknowledge the impact of residential schools and specifically address a family’s healing. So there needs to be work done by social workers to ensure that that is part of the process.
- Additional Clarification: This service delivery principle reflects aspects of the Truth and Reconciliation Commission (TRC) Calls for Action s.1.v and 4.ii
- The CFCSA is child protection legislation and adopting the TRC and UNDRIP as service delivery principles would be legally impermissible as the TRC and UNDRIP operate across the social spectrum and are not just focused on child protection.
- In terms of training for the social workers, is that going to be implemented for every social worker in BC? Is there a timeline for that, and what does that training look like?
- There is ongoing training that’s happening now. All social workers are required to take it. There is experiential training as well as Indigenous cultural training. We have, within the ministry, an elder named Wedlidi Speck who is developing the more detailed training program. He’s closed to being finished, I think. Once this is done, this will also be training that he will be undertaking with social workers across the province. It’s ongoing, and it’s going to continue, and all social workers will be required to take some form of training, especially the additional training that’s being developed by Wedlidi. As soon as that’s ready to go, folks in the ministry will be ready to take it.
- Just around the training – the experiential one, I think that’s the village program that was developed in Cowichan, which is great. Within that training, will it include – and this comes from specific examples in our riding – specific direction to social workers about language and how language is used, for example, saying to parents, “You’ll never see your children again” or “If you don’t do this, we’re going to take…,” the kind of implied threats. I asked this because of what I’ve heard from so many parents who speak about the fear that they live in. As soon as they have an interaction with the ministry or even if they haven’t, they live in a kind of fear. What I would hope is that that training would actually work specifically so that the social workers would recognize that the kind of authority and power they have brings with it a fear that the parents experience and that it would address that imbalance that already exists. If the minister could comment on specific kind of language requirements and specific ways of communicating that would be recognized as unacceptable, particularly under these amendments.
- I just want to point out that the village training is very important and also something that I’ve recommended…We’ve been talking about it as something the cabinet should take, and we’re hoping to do that soon. It’s a great…Yeah, all MLAs should take it. The member’s right. Also, as a minister, I would agree that that’s inappropriate language that the member is referring to and that it shouldn’t be used. We have trauma-informed practice that all social workers are trained on or will be trained on to make sure that the type of language isn’t used. But that’s specifically what type of training is undertaken by social workers.
- What changes will be implemented in the day to day practices at MCFD offices?
This question was not asked in Committee- The amendments will support MCFD offices to involve Indigenous communities at an earlier stage, prior to a possible removal of a child. The amendments will also support increased planning and collaboration with Indigenous communities when a child is in care. For all Indigenous children in care, they will have a statutory right to learn about and practice their Indigenous traditions, customs and languages as well as to belong to their Indigenous communities.
Section 4
- This section adds factors to the determination of an Indigenous child’s best interests. What will the procedure be to fulfill an Indigenous child’s best interests if they are no longer living nearby, or with direct access to, their nation or community?
- The new amendment expands the existing 4.2 by requiring consideration of the importance of the child being able to learn about and practice the child’s Indigenous traditions, customs and language and belong to the child’s Indigenous community. The “best interests” test, as amended, will ensure that the courts and the director take the importance of an Indigenous child being able to learn about and practice the traditions, customs and languages, and belong to his or her Indigenous community — take that into account when considering a child’s best interests. The ministry has funded children to go back to their communities for homecomings, where they go back for events in their nation, as well. The Wet’suwet’en just came to Vancouver and spent some time with some children that live in Vancouver and did some work around the traditions and cultures of the Wet’suwet’en. I think it’s more important that the amendments to this legislation, to this act, have actually strengthened the ability to do that — to ensure that children can experience their cultures. It’s made it much more consistent.
- Additional Clarification: A solution will need to be developed for each individual Indigenous child to be able to access their traditions, customs and language and to develop a sense of community with their Indigenous community depending on their particular circumstances.
- Just to clarify. There would be funding available through MCFD for those – for example, for travel for the child back to the community?
- Yes, there is.
- There is a separate best interest subsection that highlights the importance of the relationship the child has with a parent. Considering the importance of the child-parent relationship, how will this generalized best interest determination emphasize the importance of the child-parent relationship within this greater context?
- All factors are considered by the court, by the social workers, by the director, when determining the best interests of the child, because the bottom line is determining what the best interests of the child are.
Section 6
- This section allows for an agreement to be made with a parent to provide services or support for things that are necessary for the care of the child. Why is “parent” changed to “parent of a child”?
- It’s really just a grammatical change, because we added in that we can have an agreement with First Nations. So it’s purely grammatical.
- What this section previously stated in the current legislation is: “A director may make a written agreement with a parent to provide, or to assist the parent to purchase, services to support and assist a family to care for a child.” And it’s been changed to: “A director may make a written agreement with the parent of a child for the provision of services or support to assist the family to care for the child.” I’m just wondering about what this fundamentally changes, because it does take out the “purchasing services.” What does it fundamentally change, and what was the reason behind the change?
- It just gives a broader definition. It offers more services, and it doesn’t stop the ministry from helping a family to purchase services.
The following questions and answers were not included in the original questions asked in Committee:
- Is the parents’ consent required before other parties are included in the agreement?
- Yes
- What if it is the parent who withdraws from the agreement?
- If the child would be safe, the child would be returned to the parent to care for. This is a voluntary agreement offered by the director when a parent who has custody of a child is temporarily unable to look after the child.
- Why are the possible services or supports available removed from the Act?
- No supports or services have been removed from the act.
Section 8
- This section outlines the conditions for another party to be included in an agreement between MCFD and the parent to provide services. What about if the child is Métis?
- A Métis child is captured under section 2.1(d). “If the child is not a First Nation child, a Nisga’a child nor a Treat First Nation child, the legal entity representing the child’s Indigenous community. A Métis would be captured there.
- If I could just get clarification of who the agreement would then be with> what would be the designated body?
- Currently, the legal representative is the Métis Commission, but we are engaged in discussions right now with the Métis Nation.
- Is the parents’ consent required before other parties are included in the agreement?
- This question was not asked in Committee
- Yes
Section 9
- This section clarifies who care the child is in and the conditions for an agreement between MCFD, the parent, and another party. Does this section allow for the parent or other kin to be given support such as money – as we see foster families being given support?
- Yes
The following questions and answers were not included in the original questions asked in Committee:
- Is the parents’ consent required before other parties are included in the agreement?
- The parent’s consent is required before other parties are included in child specific agreements.
- Where does the ability for parties to voluntarily opt in or out factor in to this section?
- Just as with other child specific agreement, if an Indigenous community opted out of an agreement under s.8, it would not have the effect of terminating the agreement.
Section 10
The following questions and answers were not included in the original questions asked in Committee:
- This section allows for other parties to be included in the deal between MCFD and the parent under section 12.2 of the Act. Is the parents’ consent required before other parties are included in the agreement?
- Section 12.2 applies to a youth who cannot, in the director’s opinion, be re-established in the youth’s family, or, has no parent or other person willing or able to assist the youth.
- Does the withdrawal of the parent end the agreement? Why or why not?
- This does not apply.
Section 11
- This section authorizes a director to refer child protection reports to Indigenous entities. My question is whether parents are given consent for this to happen, and if it is not consent, are they at least consulted and told that it’s happening?
- No, the director passes on the child protection report to the prescribed nation. The child protection laws of the prescribed nation then come into force and pertain to that child and family.
- In the notes to the section, it says that it authorizes the director to refer child protection reports in the various circumstances and subject to the requirements and time frame set out. I’m just curious what those requirements and time frames are.
- The time frame would be subject to their laws and any agreement that we would have with the prescribed nation.
- Additional Clarification: Some of the requirements are that the first Nation be prescribed, that there must be an agreement made pursuant to s.92.1, that the director must act to assess the report if he/she does not refer the report, and if the director refers the report after he/she has completed the assessment then the First Nation must confirm in writing the willingness to complete an assessment or investigation.
- Coming back to the bigger question of accountability, I’m just wondering how the ministry intends to measure the success of these initiatives. Is there a framework for that accountability and that measurement of success?
- The bottom line: the accountability is better outcomes for Indigenous children and fewer Indigenous children being taken into care and more Indigenous children and families being able to have the supports to stay together.
- In subsection (2.1), it allows for situations where the director must not refer the report. My question is: how many First Nations currently meet the criteria of this subsection?
- At this time, none. But we are in negotiations.
- Any idea of a timeline on that?
- The timeline depends on when the act comes into force, but we feel that…. We’re pretty confident that as soon as the act does, there is at least one nation that will be ready to go.
The following questions and answers were not included in the original questions asked in Committee:
- How will privacy of these sensitive documents be accounted for?
- Agreements made pursuant to s.92.1 contemplating referrals of child protection reports must contain provisions for the use, disclosure and security of personal information provided under the agreement.
- What mechanisms are in place to ensure the interests of mothers and families are protected?
- A guiding principle of the CFCSA is that a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents.
- Another guiding principle in the act is that if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided.
- An agreement between the ministry and an Indigenous community must include conditions on the use, disclosure and security of information provided under the agreement to the Indigenous community.
- Subsection 2.1 allows for situations where the director must not refer the report. How many First Nations currently meet the criteria in this subsection?
- No First Nations currently meet the criteria in this subsection, as the amendments would first need to come into force before any First Nations have in place an agreement under s. 92.1 and are prescribed in regulation. It is expected, however, that at least one First Nation and perhaps several First Nations will meet this criteria after the legislation comes into force.
Section 12
- It says: “If a person referred to in subsection (2)(a) or (c) appears at the commencement of the hearing, that person is entitled to be a party at the hearing.” Could the minister please explain this? What are the parameters around that?
- This is actually housekeeping. It’s just to make it clear that if certain entities come to the commencement of a hearing, they’re entitled to be at the hearing throughout the entire hearing. They automatically become entitled to appear at the commencement of the hearing.
- I’m just wondering about “certain entities.” For example, if there was an ex-spouse or a relative or a stranger, would they all be considered entities that could be a party to the hearing?
- Anyone who is entitled to notice is entitled to this housekeeping amendment.
Section 13 – amends s.29
The following questions and answers were not included in the original questions asked in Committee:
- This section refers to a child who needs necessary health care, but it only amends the act to entitle a person to be at the hearing as set out. Jordan’s Principle, which applies to all public services, aims to ensure that the healthcare needs of all Indigenous children on and off reserve are met. Given that this section deals with healthcare for Indigenous children in care, couldn’t an acknowledgement of Jordan’s Principle be included here? Why or why not?
- The amendment simply clarifies who is entitled to be a party at the hearing.
- Section 29 does not engage Jordan’s Principle because it address circumstances where parents or children refuse to consent to necessary health care and enables a court to order that necessary health care be provided despite lack of consent.
Section 15 – amends s.33 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This amends the time frame within which a director must complete court reports from “within 7 days” to “promptly.” There is no definition of “promptly” in the legislation. Is there concern that removing the specific limit of 7-days will result in the expansion of “promptly” to more than 7 days, given the busy nature of this ministry?
- The amendment allows the director to return a child to a parent before the conclusion of a presentation hearing.
- The presentation hearing is required to start within 7 days after a child’s removal, but may not be concluded within 7 days. This amendment means that the director may return a child later than 7 days after a child’s removal. Therefore, the director is required to present a written report of the reasons for withdrawing “promptly”.
- The director only files this report with the Court if the director does not intend to take further legal proceedings.
Section 16 – adds new section 33.01 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section establishes that if a parent apparently entitled to custody is not a resident of BC, the director may make an agreement with the government or child welfare jurisdiction where the parent resides. What does this mean for Indigenous peoples? For instance, an Indigenous child might be Cree from southern Alberta. How will their relationship with their nation be fostered, and can an agreement with their nation be entered into, if the child entered care or has one or more parents in BC?
- Under the current Act, the director cannot withdraw when the child is not returned to the parent apparently entitled to custody; however, there are circumstances when this would be appropriate. The amendments address these circumstances.
- The circumstance of a parent apparently entitled to custody residing outside of BC and the director making an agreement with the government or child welfare agency of the jurisdiction where that parent resides that is adequate to protect the child, which would enable the director to withdraw, is not specific to Indigenous families.
- When the director withdraws, a child is no longer in the director’s custody. If the director withdraws because another government or child welfare agency is taking action to protect the child (e.g. bringing the child into care of that government or child welfare agency), that jurisdiction or child welfare agency would determine how to foster an Indigenous child’s relationship with his/her Indigenous community.
- If an agreement is made with another jurisdiction outside BC respecting an Indigenous child, and the Indigenous child’s Indigenous community is located in BC, how will that child’s best interests vis-a-vis their Indigeneity be accounted for?
- That would be determined by the other jurisdiction or child welfare agency as the director would have withdrawn from CFCSA proceedings.
- Subsection (4) states that if an order is cancelled, any arrears that the parent may owe are not cancelled. Is there concern that this would increase the burden on a parent, who may live in poverty (hence their child’s apprehension)?
- The director does not apply for maintenance orders when poverty is an issue. The court must take into account the needs, means, capacity and economic circumstances of a parent before making a maintenance order.
- If the court orders a parent to pay maintenance for a child, the parent remains responsible for the terms of a court ordered payment. The Director can use discretion and cancel arrears if a parent experiences difficulty in making the payments; this discretion will be written into policy.
Section 17 – amends s.33.1 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section allows a person (including the person charged with care, the parent, or the Indigenous nation or community) who is present at the outset of a hearing to remain for the hearing. If a child has connections to more than one nation or community, and more than one nation or community came to the hearing, would both nations and communities be permitted to stay?
- Yes.
- Are parties present for a hearing such as this permitted any sort of involvement in the hearing itself?
- Yes, if a person listed in subsection (6) appears at the commencement of the hearing, that person is entitled to be a party to the presentation hearing. As a party, that person is entitled to full disclosure and to participate in the presentation hearing just like any other party (e.g. address the court, submit evidence).
Section 18 – amends s.34 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section allows for parties other than the parent and MCFD to be party to the hearing. Will the consent of the parent be required?
- Indigenous communities are entitled to notice and become parties to a CFCSA proceeding whether or not the parents consent.
- Will the parent be consulted?
- Parents will not be consulted as Indigenous communities are entitled to notice and become parties to a CFCSA proceeding whether or not the parents consent.
- This section disapplies the requirement for the director to attend court if they have withdrawn from the hearing. Could you please explain the rationale for this decision?
- The amendment does not change the law respecting the director’s obligations when s/he withdraws. The amendment simply adds the new withdrawal provision. If the director withdraws prior to a presentation hearing, under either withdrawal provision, it means the director has returned a child and there is no need to attend court for a presentation hearing.
Section 19 – amends s.35 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section requires the director to present an interim plan of care for an Indigenous child that supports the child learning about and practicing their Indigenous traditions, customs, and language and to belong to the child’s Indigenous community. Will the director be making this plan unilaterally or in consultation? If in consultation, then with who?
- Plans may be made collaboratively with parents and with Indigenous communities. The interim plan of care will state who was involved in the planning (child, parent, Indigenous community).
- Is there any assessment mechanism for the merit of the plan?
- The plan is presented to the court. The plan is subject to review by all parties and their legal counsel. Planning involves ongoing conversations with Indigenous children, parents, service providers and Indigenous communities.
- Will the child be provided any input on this plan?
- The Report to Court Form which includes the interim plan of care requires the director to indicate whether or not the child’s views have been considered.
Section 20 – amends s. 36 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section allows for parties other than the parent and MCFD to be party to the hearing. Will the consent of the parent be required?
- Indigenous communities are entitled to notice and to become parties to a CFCSA proceeding whether or not the parent’s consent.
- Will the parent be consulted?
- Parents will not be consulted as Indigenous communities are entitled to notice and become parties to a CFCSA proceeding whether or not the parent’s consent.
Section 22 – amends s.39 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section allows for parties other than the parent and MCFD to have notice of a hearing. Will the consent of the parent be required?
- Indigenous communities are entitled to notice and to become parties to a CFCSA proceeding whether or not the parents consent.
- The statutory duty of the director to serve notice of a hearing to the designated representative of an Indigenous community has been in place since the act was first brought into force more than 20 years ago. The designated representative must be served notice of a hearing in order to appear and be a party at the hearing. This is a statutory requirement that is not based on parental consent.
- Will the parent be consulted?
- Parents will not be consulted as Indigenous communities are entitled to notice and become parties to a CFCSA proceeding whether or not the parents consent.
- Same rationale as above.
Section 23 – amends s.42.1 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section allows for parties other than the parent and MCFD to be party to the hearing. Will the consent of the parent be required?
- Indigenous communities are entitled to notice and to become parties to a CFCSA proceeding whether or not the parent’s consent.
- Same rationale as above.
- Will the parent be consulted?
- Parents will not be consulted as Indigenous communities are entitled to notice and become parties to a CFCSA proceeding whether or not the parents consent.
- Same rationale as above
Section 27 – amends s.48 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section also states that the director can make an agreement with a jurisdiction where the parent resides, if it is not in BC.Can this include Indigenous jurisdictions outside of BC?
- Yes, if the parent resides within the jurisdiction of an Indigenous government and that Indigenous government has authority over child welfare.
- If an agreement is made with another jurisdiction respecting an Indigenous child, and the Indigenous child’s Indigenous community is located in BC, how will that child’s best interests vis-a-vis their Indigeneity be accounted for?
- That would be determined by the other jurisdiction or child welfare agency as the director would have withdrawn from CFCSA proceedings.
Section 29 – repeals and replaces s.50 (4) CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section outlines who must receive a copy of a continuing custody order. Why is the parent or former guardian not included?
- Parents are served with notice of the application for a continuing custody order and may attend the hearing and obtain a copy of any order granted from their legal counsel. The parent’s guardianship of the child is terminated by the continuing custody order.
- Providing copies of continuing custody orders to Indigenous communities ensures that they are informed of all of their children who are in the continuing custody of the director so that they can become or remain involved in planning and supporting these children.
- Is a parent consulted or granted consent in who has access to the continuing custody order, which may have sensitive information?
- Currently a copy of the continuing custody order is provided to the Public Guardian and Trustee because the Public Guardian and Trustee is the child’s sole property guardian. The amendment will require the director to provide a copy of the continuing custody order to the designated representative of the Indigenous community because of an Indigenous child’s right to belong to his or her Indigenous community.
Section 30 – adds the new s.50.01 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section states that if there is a continuing custody order for an Indigenous child, the director must, and I quote, “make reasonable efforts to involve, at least on an annual basis” the designated representative of the child’s Indigenous nation or community. Could the minister please explain why this must only occur once a year, if that?
- Section 50.01 (b) sets out a minimum standard by requiring the director to make reasonable efforts to involve the designated representative of a First Nation, the Nisga’a Lisims Government, a Treaty First Nation or another Indigenous community in planning for that child on, at least, an annual basis.An agreement with an Indigenous community may require a greater frequency than once per year. An Indigenous community can also seek to engage the director in planning more frequently even if the community does not have an agreement with the director.
- Given the emphasis placed on the child’s relationship with their nation throughout much of this amendment act, how does once-a-year involvement attempt to fulfil the child’s right to be connected to their Indigenous traditions, customs, languages, and nation?
- The minimum standard is to make reasonable efforts at least on an annual basis to involve the designated representative of the child’s Indigenous community. This is because a child’s Care Plan is updated annually.
- Involvement with the child’s Indigenous community will likely be more frequent than annually. Indigenous children are entitled to learn about and practice their Indigenous traditions, customs and languages and belong to their Indigenous communities. For these rights to be upheld, the director will need to actively support an Indigenous child in connecting with community members who can teach an Indigenous child about his/her traditions, customs and languages. Policy will be developed to support delegates of the director in upholding these rights.
Section 40 – amends s.70 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- The section sets out the rights of Indigenous children to receive guidance, encouragement and support to learn about and practice their Indigenous traditions, customs and languages, and to belong to their Indigenous communities. If a child is in care in a place that is far from or inaccessible to their Indigenous nation or community, does this mean that the ministry will provide the necessary provisions to facilitate their access?
- The child’s Indigenous community may make an agreement under s. 92.1 regarding its involvement with its children in care which could address how their children will be connected to their Indigenous communities. Even in the absence of an agreement between an Indigenous community and the director, Indigenous children have a right to belong to their communities and practice their traditions, culture and language. For these rights to be upheld, the director will need to make reasonable efforts to have Indigenous children spend time in their Indigenous communities.
- For instance, if a child requires money to pay for safe transportation to their nation, or requires money to take language classes, will the ministry support these endeavors?
- Yes.
- MCFD is currently looking at how we fund communities and have engaged in discussion with the Federal Government, who has funding responsibility for on-reserve services, about how they will work with the Provincial Government to provide additional resources to communities. Part of these additional resources could be to support Indigenous community’s capacity to host cultural events and/or have programs and supports for their youth to learn about their Indigenous traditions, customs and languages.
- Especially in light of the service delivery principle about residential schools, would it not be prudent to include a stipulation that Indigenous children have the inherent right to have a relationship with their parents?
- The guiding principles of the Act already state that: a family is the preferred environment for the care and upbringing of children; responsibility for the protection of children rests primarily with the parents; support services should be provided if a family can provide for a safe and nurturing environment for a child; and kinship ties and a child’s attachment to the extended family should be preserved if possible.
- Children are entitled to protection from abuse, neglect and harm or threat of harm from their parents. Children’s right to this protection (i.e. safety) is paramount.
- If a child would like to practice their traditions but it conflicts with the wishes of the care provider they are staying with – for instance, if a child would like to smudge but their foster parent is somehow opposed – what will the procedure be to ensure that the child’s connection to their Indigenous traditions is fulfilled?
- This tradition would be identified in the child’s plan of care, and the social worker, foster parent and child would look to find a resolution that supports the child practicing their tradition.
- Children in care have a right to be informed about their rights and procedures available for enforcing them. Children in care can make a complaint and request an administrative review. Children in care can contact the Representative for Children and Youth to advocate of their behalf.
Section 43 – amends s.79 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- If information is disclosed to a nation, and given the nation’s relationship with the parent, will a parent be notified of the disclosure?
- Not necessarily. The director has authority to disclose information intended to facilitate or support an Indigenous child in learning about and practicing the child’s Indigenous traditions, customs and language or the child’s belonging to his/her Indigenous community. There is no obligation to notify the parent of this disclosure and notifying the parent may not be in the child’s best interest.
- If an Indigenous community is interested in negotiating an agreement with the director respecting its involvement with its children, the use, disclosure and security of information will be addressed.
- Will a parent be consulted or granted consent for the disclosure?
- No, if the director has made a determination that this disclosure is authorized under s. 79, then neither consultation with the parent nor the parent’s consent is required.
Section 45 – adds the new s.92.1 CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- Subsection 2 states that a director may make an agreement with a nation or a legal entity representing another Indigenous community.What if a child’s Indigenous community is not incorporated within Canada’s legal framework? Does the child still have the same opportunity for an agreement between their community and the MCFD?
- The director can only enter into an agreement with a legal entity. If the child’s Indigenous community is not a First Nation, a Treaty First Nation or the Nisga’a Nation, then the director can only enter into an agreement with a legal entity representing another Indigenous community.
- If a director enters into an agreement with a nation, will the parent be notified? Will they be consulted? Will they be granted consent?
- No, the agreements contemplated in s. 92.1 are not child specific agreements so parents would not have any role in developing the agreements. A s. 92.1 agreement is about Indigenous children of a specific Indigenous community and is intended to provide for routine involvement of that community with its children who come to the attention of the director. It recognizes that Indigenous communities have their own interests in and responsibilities for their children. A s. 92.1 agreement may address the issue of parents consent and what effect, if any, a parents wishes will have on how the child’s Indigenous community will be involved.
Section 48 – amends s.103(2) CFCSA
The following questions and answers were not included in the original questions asked in Committee:
- This section establishes the regulatory powers of the LG in Council, but to what extent will the LG’s regulation making powers be in relationship with consultation on the part of Indigenous nations, communities, families and individuals?
- Some of the regulations will likely be developed through consultation or involvement with Indigenous communities. For example, it may become clear through discussions with Indigenous communities that they want to have an agreement which includes a purpose not currently expressed in s. 92.1. There is an ability to prescribe additional purposes by regulation. The director would not be prescribing Nations for the purposes of referring child protection reports without negotiations and an agreement between BC and a Nation respecting the Nation’s responsibility for assessing child protection reports.
- Some of the regulations will not involve consultation. For example, First Nations will only be prescribed for the purpose of 16 (1) (b) if they have some sort of self-government agreement with Canada or are recognized through future federal legislation.
- The new regulation making powers all relate to Indigenous communities so any consultation would be with Indigenous communities and not families or ind
