ANCFSAO CFSA Review Submission

2014-2015 Ministry of Child and Youth Services Review of the Child and Family Services Act

Association of Native Child and Family Services of Ontario: CFSA Submission

Table of Contents

Introduction ................................................................................................................................1

ANCFSAO CFSA Review Submissions ...................................................................................2

A. Exercise of First Nations’ jurisdiction over child welfare ..................................4

B. “Best interests” considerations, and paramount purposes of the CFSA .............4

C. Prevention vs. Protection .....................................................................................7

D. Creation of a Provincial Advocate for Indigenous children and youth ...............8

E. Definition of Indigenous children and youth .......................................................9

F. Definition of First Nations and other Indigenous communities...........................10

G. Compliance with CFSA provisions specific to Indigenous children and youth ..11

H. Facilitating the recruitment of culturally appropriate placements .......................14

I. Resources for Indigenous communities to exercise party standing .....................15

J. Evaluating the cultural suitability of residential placements ...............................16

K. Information sharing between CAS and Aboriginal Agencies ..............................19

L. Funding ................................................................................................................20

Appendix A: Summary of Recommendations .........................................................................21


Introduction

Incorporated in 1994, the Association of Native Child and Family Service Agencies of Ontario

(ANCFSAO) is mandated to build a better life for all Aboriginal children through promoting the

culturally-based delivery of quality family services to Aboriginal people in Ontario. The

ANCFSAO is a membership-based organization whose 10 members comprise four (4) mandated

Aboriginal children's aid societies, and six (6) pre-mandated Aboriginal child and family service

agencies. ANCFSAO acts as a resource in assisting its member agencies (and the communities

they serve) toward the provision of quality Native child welfare and related services to Aboriginal

people through education and training, policy development and analyses, and research and

advocacy. The member organizations include:

• Anishnaabe Abinoojii Family Services • Dilico Anishnabek Family Care • Dnaagdawenmag Binnoojiiyag Child & Family Services • Kina Gbezhgomi Child and Family Services • Kunuwanimano Child and Family Services • Mnaasged Child and Family Services • Native Child and Family Services of Toronto • Nog-Da-Win-Da-Min Family and Community Services • O Gwadeni:Deo • Weechi-it-te-win Family Services

The ANCFSAO represents agencies that are direct, frontline service providers that work daily

within the legislative framework of the Child and Family Services Act (“CFSA”, the “Act”).

ANCFSAO thus has a direct interest in advocating for reforms that better serve the needs of

Aboriginal children and families, and significant experience upon which to draw in making its

recommendations.

Following the announcement of the 2014-2015 review of the Child and Family Services Act

(“CFSA”), ANCFSAO membership met on multiple occasions to discuss the challenges they

encounter under the current Act and identify priorities for reform. On November 7, 2014, members

of ANCFSAO met with representatives from the Ministry of Child and Youth Services (“MCYS”)

to discuss these priorities, which were further refined in subsequent meetings.

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This report reflects the outcome of those meetings. The following recommendations are not

exhaustive, but capture ANCFSAO’s priorities for reform in the 2014-2015 review. 1

1 The meetings and this report are not intended to constitute consultation in the discharge of MCYS’s constitutional duty to consult with First Nations with respect to child welfare and other government activities that affect Aboriginal people in the province.

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ANCFSAO CFSA Review Submissions

A. EXERCISE OF FIRST NATIONS’ JURISDICTION OVER CHILD WELFARE While the CFSA presently contemplates that Indigenous persons should be entitled to provide their

own child and family services, there are no provisions in the Act that give effect to this stated

purpose. The CFSA should be amended with provisions that support and create space for the

assertion of jurisdiction. Support for this recommendation is contained within Child First, the

Aboriginal Advisor’s report on the status of Aboriginal child welfare in Ontario (the “Beaucage

Report”), which recommends that tripartite steps be taken now in order to support and prepare for

the inevitable assertion of jurisdiction.2

Recommendation: 1. Amend the paramount purposes provision to acknowledge and articulate the special

relationship between the provincial government and First Nations.

2. Amend section 1(2).5 to omit ‘wherever possible’.

Current Provision Suggested Amendment

1. (2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

1. (2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

5. To recognize that Indigenous communities are entitled to provide their own child and family services, and that all services to Indigenous children and families must be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

3. Introduce a separate provision acknowledging and supporting First Nations’

jurisdiction in unqualified terms.

Suggested Amendment

xxx. For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the Aboriginal or treaty rights of Indigenous communities to provide for the protection, care, and well-being of their children according to their customs and traditions.

2 Beaucage Report, 22.

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4. Introduce a separate provision under s.223, empowering the Lieutenant Governor in

Council to recognize a First Nation’s law as a regulation of equal force and effect. To

the extent of any inconsistencies between the CFSA and the First Nation’s regulation,

the latter will prevail.

B. “BEST INTERESTS” CONSIDERATIONS, AND PARAMOUNT PURPOSES OF THE CFSA

Courts in Ontario have interpreted the provisions of CFSA concerning the “best interests” of

Indigenous children in a manner that renders such children’s culture, heritage and identity separate

from and subordinate to all other considerations concerning their “best interests”.3 This is contrary

to the intent of the provisions of the CFSA concerning the culture, heritage, and traditions of an

Indian or native child, which ought to form an integral part of the best interests analysis.

Recommendations: 5. Introduce language in the paramount purposes section of the CFSA that makes it clear

that preserving and promoting the culture, identity and heritage of Indigenous children

is a central consideration for all Societies, courts, etc., who exercise authority under

the CFSA;


1. (1)The paramount purpose of this Act is to promote the best interests, protection and well being of children.

1. (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children, in accordance with the following principles:

a) the family, including the extended family, is the preferred environment for the care and upbringing of children;

b) the cultural identity of indigenous children should be preserved;

c) a child’s ties to their community should be preserved . . .

etc.

6. Amend ss. 37(3) and (4) of the CFSA (re “best interests”) to make it clear that the

culture, identity and heritage of Indigenous children must be central to any

3 Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, 2014 ONCA 646.

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determination of their best interests, and that each factor enumerated in s.37 should be

interpreted through a culturally specific lens;


37. (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance.

37. (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration the following factors:

. . .

13. Where a child is Indigenous, the need to promote and preserve the child’s cultural heritage and the child’s need to develop a positive view of himself or herself as an Indigenous person through connection with his or her Indigenous community. . . .

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(4) Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity.

7. Introduce mandatory training for judges to ensure they have the requisite knowledge to

make determinations concerning the “best interests” of Indigenous children;

8. Require expert or other independent reports be prepared by qualified assessors concerning

Indigenous children’s “best interests”, akin to “Gladue Reports” introduced in criminal

proceedings. Where a child is a member of a First Nation, this could be provided by the

First Nation, with resources made available for its preparation.


54. (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

1. The child. 2. A parent of the child. 3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child. (1.1) An order under subsection (1) shall specify a time within which the parties to the proceeding may select a person to perform the assessment and submit the name of the selected person to the court. (1.2) The court shall appoint the person selected by the parties to perform the assessment if the court is satisfied that the person meets the following criteria: 1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments. 2. The person has consented to perform the assessment.

54. (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

1. The child. 2. A parent of the child. 3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child. (1.1) An order under subsection (1) shall specify a time within which the parties to the proceeding may select a person to perform the assessment and submit the name of the selected person to the court. (1.2) The court shall appoint the person selected by the parties to perform the assessment if the court is satisfied that the person meets the following criteria: 1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments. 2. The person has consented to perform the assessment.

3. Where the assessment concerns an Indigenous child, parent, or other person, the person selected to perform the assessment is competent to perform the assessment by reference to their knowledge of and experience with Indigenous communities, culture, history and customs.

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C. PREVENTION v. PROTECTION The CFSA describes protection services in a structured and mandatory way, but is vague about

Societies requirements to provide prevention services, which results in services being delivered

through protection rather than prevention models, with disproportionate resources committed to

protective services. This approach is inconsistent with the CFSA’s requirement that the least

intrusive measures be taken to ensure children are not at risk.

In light of their close relationship with the community, First Nations are often in the best position

to implement prevention programs. Consistent with consultation required elsewhere in the act,

First Nations should be notified of and invited to participate in any potential or actual service

delivery or intervention, including at the investigative stage.

The importance of these provisions is emphasized in the Beaucage Report, which recommends

that all levels of government and CASs must make a concerted effort “to understand the families

they service and aid in a repatriation initiative that will help individuals and communities return to

their traditional values”.4 Proper consultation is an important initiative contributing to contributing

to this recommendation.

Recommendation: 9. Amend preamble and paramount purpose and specific provisions to make prevention

models and approaches mandatory. This will facilitate the dedication of resources and

development of better capacity by Societies to deliver prevention, rather than

protection, services.


1. (1)The paramount purpose of this Act is to promote the best interests, protection and well being of children.

1. (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children, in accordance with the following principles:

. . .

(d) prevention services are always preferable to protection services and should be exhausted before more intrusive measures are considered;

. . .


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10. Amend statutory language to require mandatory consultation at every point of service

delivery


213. A society or agency that provides services or exercises powers under this Act with respect to Indian or native children shall regularly consult with their bands or native communities about the provision of the services or the exercise of the powers and about matters affecting the children, including,

(a) the apprehension of children and the placement of children in residential care;

(b) the placement of homemakers and the provision of other family support services;

(c) the preparation of plans for the care of children;

(d) status reviews under Part III (Child Protection);

(e) temporary care and special needs agreements under Part II (Voluntary Access to Services);

(f) adoption placements;

(g) the establishment of emergency houses; and

(h) any other matter that is prescribed. R.S.O. 1990, c. C.11, s. 213.

Consultation in specified cases

213.1 A society or agency that proposes to provide a prescribed service to a child who is an Indian or native person or to exercise a prescribed power under this Act in relation to such a child shall consult with a representative chosen by the child’s band or native community in accordance with the regulations.

A society that provides services or exercises powers under this Act with respect to Indigenous children shall consult regularly, prior to and at the point of service delivery or the exercise of power, about the provision of the services or the exercise of the powers and about matters affecting the children, including,

(a) investigation of children and families; (b) the apprehension of children and the placement

of children in residential care; (c) . . .

D. CREATION OF A PROVINCIAL ADVOCATE FOR INDIGENOUS CHILDREN AND YOUTH

The CFSA currently contemplates the participation of the Provincial Advocate for Children and

Youth and the Children’s Lawyer, on systemic issues and with respect to individual children. Their

participation would be enhanced by specialist advocates with specific education and training

related to issues specifically affecting Indigenous children and youth, who could provide

representation to these children.

Recommendation:

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11. Create a Provincial Advocate for Indigenous Children and Youth with specialized

expertise. The Advocate and its agents would provide representation on behalf of

individual children as well as identifying systemic problems involving Indigenous

children, conducting reviews, and providing education and advice on the issue of

advocacy and the rights of Indigenous children and youth.

12. The Provincial Advocate for Children and Youth should be delegated the task of

governing the auditing of Aboriginal agencies.

E. DEFINITION OF INDIGENOUS CHILDREN AND YOUTH The current definition of “Indian and native children and youth”, as set out in section 3(1) of the

CFSA, is under-inclusive. Currently, that section defines “Indian” by incorporating the Indian Act

(RSC 1985, c I-5) definition, i.e., a person who is registered as an Indian or is entitled to be

registered as an Indian. A “native person or child” is defined as a person who is a member of a

native community but is not a member of a band. This definition does not capture many children,

as the power of the Minister to designate “native communities” under Part X has not been used.

The current definition does not capture those included within the constitutional definition of

Aboriginal, Inuit, Metis and First Nations, and those included within Indigenous communities’

own laws concerning identity and membership. The definition should be broadly inclusive, so as

not to place legal barriers around the definition of who is, and who is not, Indigenous.

Recommendations: 13. Amend the language of the definition and any reference to Indigenous children and

youth to be more inclusive, consistent with the constitutional and other legal

characterizations of “Aboriginal”, as well as Indigenous communities’ own laws

around identity and membership.

14. ANCFSAO suggests the following appropriate wording: the use of the word “Indigenous” in place of “Indian and native”

Define “Indigenous” by incorporating the definition used under the Indian Act,

the definition used of ‘Aboriginal’ under s.35 of the Constitution, and qualify

using the phrase “including, but not limited to”.

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Leave space within the definition for children and families to self-identify as

Indigenous


3. (1) . . . “Indian” has the same meaning as in the Indian Act (Canada);

. . .

“native person” means a person who is a member of a native community but is not a member of a band, and “native child” has a corresponding meaning . . . .

“Indigenous child” means a child

(a) who is a member of or is eligible to become a member of an indigenous community; (b) who holds status or is eligible to hold Indian status, as defined within the Indian Act; (c) who is under 12 years of age and has a biological parent who

(i) is of indigenous ancestry, and

(ii) considers himself or herself to be indigenous, or

(d) who is 12 years of age or over, of indigenous ancestry and considers himself or herself to be indigenous.

F. DEFINITION OF FIRST NATIONS AND OTHER INDIGENOUS

COMMUNITIES:

The current CFSA uses the term “bands” or “native communities” to refer to First Nations and

other Indigenous communities. The Act defines “band” under s.3(1) by incorporating the Indian

Act definition. As noted, the definition of “native communities” is not widely applicable, as the

power of the Minister to designate “native communities” under Part X has not been used.

The use of the word “band” is outdated and under-inclusive. It is an inaccurate description of the

composition of many First Nations communities, who are not designated “bands” under the Indian

Act. Furthermore, the use of the word “band” does not acknowledge the inherent rights and

jurisdiction of First Nations to govern and make laws concerning child welfare, and more

generally.

Recommendations:

15. Remove all references to “bands” throughout the Act, and replace with a more

accurate and respectful description of Indigenous communities.

16. ANCFSAO suggests the following appropriate wording:

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a. Use the term “First Nation or Indigenous community” throughout the Act. For

completeness, bands as defined under the Indian Act should be included within the

definition of Indigenous communities.


3.(1) . . . “band” has the same meeting as in the Indian Act;

. . .

“native community” means a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services) . . . .

“First Nation” means an organized Aboriginal community and includes bands as defined in the Indian Act (Canada);

“Indigenous community” includes, but is not limited to, Métis communities, Inuit communities, and urban Aboriginal communities . . .

G. COMPLIANCE WITH CFSA PROVISIONS SPECIFIC TO INDIGENOUS CHILDREN AND YOUTH:

Despite the mandatory language of the CFSA, many mainstream agencies frequently ignore, give

insufficient weight and effort to, and otherwise confound the provisions of the CFSA that speak to

consultation with “bands” and placement of Indigenous children in culturally appropriate settings.

Amending the language of the CFSA may not improve compliance with these provisions. The

provisions with respect to consultation and placement of Indigenous children are sufficiently clear

and unambiguous. Rather, an independent authority is required to monitor and enforce compliance

with these provisions, particularly with respect to the placement of children in care.

In this respect, the Minister, or an independent monitor, is the appropriate authority to monitor and

enforce compliance. Courts or the Child and Family Services Review Board are ill-equipped to

enforce the provisions of the Act in individual cases and create more wide-spread compliance.

It should be noted that the same comments addressing compliance were received and reported on

during the MCYS 2010 review of the CFSA.5 ANCFSAO emphasizes the issue of compliance is

an essential component to this reform. Outcomes for Indigenous children will not improve if the

language of the Act changes, but CASs fail to understand and comply with their obligations.

Recommendations:

5 Ontario Ministry of Child and Youth Services, “Report on the 2010 Review of the Child and Family Services Act (2010), p. 8.

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17. Introduce provisions that require all Societies acting under the authority of the CFSA

to satisfy the Ministry, or an independent monitor such as the Provincial Advocate for

Children and Youth, that:

the placement of Indigenous children in non-Indigenous families and communities

was justified, with evidence demonstrating that all possible efforts were made to

place the children within their culture and community, and all avenues in this

respect were exhausted;

the CAS is competent and equipped to comply with the CFSA provisions specific to

Indigenous children, because of its cultural knowledge, expertise and the

relationships of its leadership and frontline staff to Indigenous communities;

the Board of Directors has taken all necessary and reasonable steps to recruiting

an Indigenous member, and is otherwise competent and equipped to comply with

the provisions of the CFSA;6

the Society actually complies with all the provisions specific to Indigenous children.

18. Introduce a requirement that each Society have a designated liaison, tasked with

building relationships, collaborating, supporting and building capacity with mandated

agencies, First Nations and indigenous communities.7


The current Act provides that the Minister may impose terms and conditions on a designation and prescribe service standards for Societies by Regulation:

15. (2) The Minister may designate an approved agency as a children’s aid society for a specified territorial jurisdiction and for any or all of the functions set out in subsection (3), may impose terms and conditions on a designation and may vary, remove or amend the terms and conditions or impose new terms and conditions at any time, and may at any time amend a designation to provide that the society is no longer designated for a particular function set out in subsection (3) or to alter the society’s territorial jurisdiction. A society shall,

a) provide the prescribed standard of services in its performance of its functions; and

b) follow the prescribed procedures and practices.

The Act and Regulations should specify mandatory conditions and service standards relating to indigenous children:

1. Where a society is reasonably likely to provide services to Indigenous children, the society shall

(1) satisfy the Minister that it is competent to provide such services, as demonstrated by:

a) cultural knowledge and expertise; and

b) plans for cooperation with service providers in relevant First Nations and Indigenous communities;

(2) appoint a liaison responsible for developing relationships and collaborating with service providers in First Nations and Indigenous communities with respect to prevention and protection services.

6 See Beaucage Report, 20. 7 See Beaucage Report, 17.

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2. Where a society provides services to an Indigenous child, the society shall furnish to the Minister on a monthly or quarterly basis as required by the Minister a report specifying:

a) the nature of the services provided;

b) the society’s efforts to consult with the child’s First Nation or Indigenous community;

c) the society’s efforts to comply with the provisions of this Act relating to Indigenous persons; and

c) where an Indigenous child is placed outside his or her First Nation or Indigenous community, the reasons for the placement and the society’s efforts to place the child with an extended family member, in customary care, and with a community member.

19. Introduce mandatory language to s.63.1 (the Society’s obligation to a Crown ward),

requiring mainstream Societies to place an Indigenous child in customary care,

“unless there is a substantial reason not to do so”. The Society must then be required

to justify a placement outside of customary care, as contemplated under

Recommendation 17, above.


63.1 Where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through one of the following:

1. An adoption. 2. A custody order under subsection 65.2 (1). 3. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.

63.1 Where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through one of the following:

1. An adoption. 2. A custody order under subsection 65.2 (1). 3. In the case of an Indigenous child, a placement in customary care as defined in Part X unless there is a substantial reason not to do so. Also, custody and adoption orders are not to be sought unless there is a substantial reason not to place the child in customary care Should be a presumption of openness in the case of Indigenous children, even in the case of Crown wardship with no access. Where child is adopted, they do not lose their status rights, and need to have their status made known to them.

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20. Enforcement, compliance and accountability for compliance with these provisions

should lie with the Ministry or an independent monitor, such as the Provincial

Advocate for Children and Youth, not the Courts.

H. FACILITATING THE RECRUITMENT OF CULTURALLY COMPETENT PLACEMENTS

The standards applied to license foster and customary care homes create a significant barrier to the

placement of Indigenous children with Indigenous families. While options for placement within

the extended family, in customary care homes, or in Indigenous foster care may exist, these

placements are often refused due to a lack of space or inadequate condition of housing. While this

issue can be addressed through funding or licensing reform, increasing the availability of culturally

appropriate placements is key to improving compliance with placement provisions under the

CFSA.

The Beaucage Report recommended the use of culturally appropriate licensing programs and the

removal of home study programs, Parent Resources for Information, Development and Education

(PRIDE) and Structured Analysis Family Evaluation (SAFE) in First Nation communities until

they can be modified to reflect Aboriginal values and culture.8

The reality is that housing and living conditions on reserves and in indigenous communities are

unique. The uniqueness is due to enduring cultural differences and traditional practices in

communities. For example, the requirement for each child to have their own separate bedroom

under the SAFE licensing standards conflicts with the traditional practice of many communities to

sleep together in one room. This culturally specific practice demonstrates the need for flexibility

when applying licensing standards to Indigenous communities.

Furthermore, the placement of an Indigenous child should prioritize their safety and well being,

while allowing for flexibility in accordance with the child’s best interests. The licensing and

funding standards are currently applied strictly, with reference to specific standards that

disproportionately exclude Indigenous placements, and effectively compound the effect of housing

crises and poverty on reserve and in Indigenous communities through the unnecessary removal of


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children from families and communities. Where a culturally appropriate placement is available,

but requires further support and resources in order to accommodate the placement, it is in

Indigenous children’s best interests that such resources be made available, rather than placing the

child in a culturally inappropriate setting.

Recommendation: 21. Provide financial support to permit the successful recruitment of Indigenous foster,

adoptive and customary care homes, by allowing them to bring their homes into

compliance with Ministry standards;

22. Provide in-home support and parental training within the home, to prevent further CAS

involvement. This could be funded under the 1965 Agreement “homemakers” power;

23. Ensure Ministry standards for the assessment of Indigenous families and homes are

culturally informed and relevant, which may require the creation and application of

alternative standards.

I. RESOURCES FOR INDIGENOUS COMMUNITIES TO EXERCISE PARTY STANDING

The participation of First Nations and other Indigenous communities under the CFSA is not only

required for the fair and balanced resolution of child welfare proceedings, but recognizes the

unique historical position of Indigenous communities in the child welfare system, the importance

of maintaining the cultural environment of children coming into care, and the critical importance

of culture and heritage to the best interests of an Indigenous child.

Indigenous peoples active engagement in the proceedings is essential to ensuring that a

community’s collective interest in and relationship with the children (and the children’s interest in

and relationship with the community) is reflected in the services available to Indigenous children

and the evidence placed before the Court.

There is, however, no funding by provincial or federal governments permitting an Indigenous

community to participate in CFSA proceedings through dedicated and trained personnel and

(where appropriate) legal counsel. Despite the importance of their participation, First Nations are

the only parties to CFSA proceedings that do not have public funds available to retain legal

counsel. The CFSA confers party status upon the Band without providing equitable funding for

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proper participation. This effectively raises the expectations of Courts and Judges, who then draw

negative inferences from the Band’s failure to aggressively pursue their case.

The equality protections contained within section 15 of the Charter speak to the importance of

equality of outcomes through differential treatment.9 In this context, increased funding is required

to enable Indigenous communities to properly exercise their rights under the CFSA, and participate

alongside all other parties on an equal footing. This recommendation is supported in the Beaucage

report, which calls for the restoration of funding for the Band Representative program.10

Recommendations: 24. Require program funding for “band representatives” or their equivalent under an

amended Act;

25. Require funding for legal counsel for Indigenous communities on par with the funding

available to other parties.

J. EVALUATING THE CULTURAL SUITABILITY OF RESIDENTIAL PLACEMENTS

Currently, the cultural suitability of a residential placement is not measured against a defined

standard. Residential placements may purport to provide cultural programming and support, but

in reality the support available is often inadequate or non-existent.

The Crown ward audit and licensing review are intended to ensure placements are culturally

appropriate, but those conducting the assessment have no training, no standard to apply and may

lack the cultural competency to make a proper evaluation.

Recommendation: 26. Introduce a provision requiring the Minister to ensure any residential placement

provider caring for an Indigenous youth provides adequate cultural programming and

support and enumerate appropriate factors to be considered.


Requirements of licensed residences are currently prescribed under R.R.O. 1990, Reg. 70 “General”.

The Regulation should be amended to include the following provision:

9 Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, para 51. 10 Beaucage Report, 16.

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xxx. 1) Every licensee purporting to offer services to an Indigenous child shall ensure that the child is provided with adequate cultural support, including:

a) access to cultural programming;

b) access to cultural activities and ceremonies;

c) contact with members of the child’s Indigenous community, including elders;

d) staff persons with appropriate cultural training and knowledge;

2) Every licensee as in (1) shall furnish to the Director as required by the Director a report of the cultural support provided by the licensee.

86. (1) Every licensee shall develop or participate in the development of a written plan of care for each resident admitted to a residence operated by the licensee within thirty days of admission of the resident. (2) A plan of care for a resident shall include, (a) a description of the resident’s needs that is developed with reference to the findings of current or previous assessments of the resident; (b) identification of desired outcomes, based on each resident’s specific strengths and needs; (c) a plan to secure, within specified timeframes, specialized consultation, specialized treatment and supports, or any one or combination of them, identified to promote the desired outcomes for the resident; (d) a statement of the educational program that is developed for the resident in consultation with the school boards in the area in which the residence is located; (e) where applicable, a statement of the ways in which a parent of the resident will be involved in the plan of care including arrangements for contact between the resident and a parent of the resident and the resident’s family; (f) particulars of any specialized service to be provided directly or arranged for by the licensee; (g) particulars of the dates for review of the plan of care; (h) a list of revisions, if any, to the plan of care; and (i) a statement of the anticipated plan for discharge of the resident.

86. (1) Every licensee shall develop or participate in the development of a written plan of care for each resident admitted to a residence operated by the licensee within thirty days of admission of the resident. (2) A plan of care for a resident shall include, . . .(h) where the child is Indigenous, particulars of the cultural and community programming to be provided for the child; . . . (4) Every licensee shall ensure that, where possible, . . . (d) the Indigenous community of an Indigenous child are consulted and involved with the development of each plan of care for each resident in a residence operated by the licensee. (5) Where the plan of care is developed without the consultation or involvement referred to in subsection (4), the reason for the lack of consultation or involvement shall be noted in the resident’s case record.

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(3) The initial plan of care referred to in subsection (1) and particulars of any reviews of the plan of care shall be entered in the resident’s case record. (4) Every licensee shall ensure that, where possible, (a) a parent of the resident or the person who placed the resident; (b) any children’s aid society or probation officer who is supervising or otherwise providing services to a resident, but who is not a parent; and (c) the resident, where the resident is twelve years of age or over, are consulted and involved with the development of each plan of care for each resident in a residence operated by the licensee. (5) Where the plan of care is developed without the consultation or involvement referred to in subsection (4), the reason for the lack of consultation or involvement shall be noted in the resident’s case record.

27. Create an offence penalizing any residential placement provider who falsely claims to

provide cultural programming and support.


206. (2)Every person who, (a) knowingly contravenes subsection 194 (2) or (3) (obstructing program supervisor, etc.); (b) knowingly furnishes false information in an application under this Part or in a statement, report or return required to be furnished under this Part or the regulations; or (c) fails to comply with an order or direction made by a court under this Part, and every director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention, furnishing or failure by the corporation is guilty of an offence and on conviction is liable to a fine of not more than $2,000.

206. (2)Every person who, . . . (d) falsely claims to provide culturally appropriate services, and every director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention, furnishing or failure by the corporation is guilty of an offence and on conviction is liable to a fine of not more than $20,000.

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K. INFORMATION SHARING BETWEEN CAS AND ABORIGINAL AGENCIES While the CFSA requires that “bands” be given notice in certain circumstances, the CFSA does

not specifically contemplate the sharing of information between mainstream Societies and

Aboriginal agencies.

The First Nation and Aboriginal agencies require greater information sharing from Societies at the

prevention and intervention stage, which facilitates the identification of appropriate support

services that may be available to the children and family, and allows for these minimally disruptive

interventions to occur prior to further intervention. This obligation may comprise part of the duty

to consult under s.213, or may be a separate obligation provided for in the Act.

Recommendation: 28. Introduce a provision requiring a CAS to share information with First Nations and

Aboriginal agencies at every stage of investigation and service delivery, in line with

the amendments contemplated regarding the determination of the best interests of

Indigenous children.

Suggested Amendment

213.2 A society or agency that purports to provide a prescribed service to a child who is an Indigenous person or to exercise a prescribed power under this Act in relation to such a child shall immediately inform a representative of the child’s First Nation or Indigenous community, including:

(a) where the society or agency has received a report that an Indigenous child is in need of protection;

(b) where the society or agency has commenced an investigation concerning an Indigenous child;

(c) where the society or agency has entered into a voluntary services agreement with respect to an Indigenous child;

(d) where the society or agency is considering commencing a protection application;

(e) prior to the society or agency taking steps to apprehend an Indigenous child.

L. FUNDING

The purpose of the CFSA is to enable First Nations to provide their own child and family services.

It is also directed towards ensuring that all services are provided in a manner that respects

Indigenous communities’ culture, heritage, traditions and the concept of the extended family. The

proper implementation of this purpose requires increased investment and funding. Funding would

be most effectively targeted towards First Nation programs targeting Indigenous children and

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youth. These programs work two-fold in improving outcomes for Indigenous youth while building

capacity within communities and developing local resources.

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Appendix A

Recommendations

A. EXERCISE OF FIRST NATIONS JURISDICTION OVER CHILD WELFARE

1. Amend the paramount purposes provision to acknowledge and articulate the special

relationship between the provincial government and First Nations.

2. Amend section 1(2).5 to omit ‘wherever possible’.

3. Introduce a separate provision acknowledging and supporting First Nations’ jurisdiction in

unqualified terms.

4. Introduce a separate provision under s.223, empowering the Lieutenant Governor in

Council to recognize a First Nation’s law as a regulation of equal force and effect. To the

extent of any inconsistencies between the CFSA and the First Nation’s regulation, the latter

will prevail.

B. “BEST INTERESTS” CONSIDERATIONS, AND PARAMOUNT PURPOSES OF

THE CFSA

5. Introduce language in the paramount purposes section of the CFSA that makes it clear that

preserving and promoting the culture, identity and heritage of Indigenous children is a

central consideration for all Societies, courts, etc., who exercise authority under the CFSA;

6. Amend ss. 37(3) and (4) of the CFSA (re “best interests”) to make it clear that the culture,

identity and heritage of Indigenous children must be central to any determination of their

best interests, and that each factor enumerated in s.37 should be interpreted through a

culturally specific lens;

7. Introduce mandatory training for judges to ensure they have the requisite knowledge to

make determinations concerning the “best interests” of Indigenous children;

8. Require expert or other independent reports be prepared by qualified assessors concerning

Indigenous children’s “best interests”, akin to “Gladue Reports” introduced in criminal

proceedings. Where a child is a member of a First Nation, this could be provided by the

First Nation, with resources made available for its preparation.

C. PREVENTION vs. PROTECTION

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9. Amend preamble and paramount purpose and specific provisions to make prevention

models and approaches mandatory. This will facilitate the dedication of resources and

development of better capacity by Societies to deliver prevention, rather than protection,

services.

10. Amend statutory language to require mandatory consultation at every point of service

delivery

D. CREATION OF A PROVINCIAL ADVOCATE FOR INDIGENOUS CHILDREN

AND YOUTH

11. Create a Provincial Advocate for Indigenous Children and Youth with specialized

expertise. The Advocate and its agents would provide representation on behalf of

individual children as well as identifying systemic problems involving Indigenous

children, conducting reviews, and providing education and advice on the issue of advocacy

and the rights of Indigenous children and youth.

12. The Provincial Advocate for Children and Youth should be delegated the task of governing

the auditing of Aboriginal agencies.

E. DEFINITION OF INDIGENOUS CHILDREN AND YOUTH

13. Amend the language of the definition and any reference to Indigenous children and youth

to be more inclusive, consistent with the constitutional and other legal characterizations of

“Aboriginal”, as well as Indigenous communities’ own laws around identity and

membership.


a. the use of the word “Indigenous” in place of “Indian and native”;

b. Define “Indigenous” by incorporating the definition used under the Indian Act, the

definition of Aboriginal used under s.35 of the Constitution, and qualify using the

phrase “including, but not limited to”;

c. Leave space within the definition for children and families to self-identify as

Indigenous.

F. DEFINITION OF FIRST NATIONS AND OTHER INDIGENOUS COMMUNITIES

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15. Remove all references to “bands” throughout the Act, and replace with a more accurate

and respectful description of Indigenous communities.


a. Use the term “First Nation or Indigenous community” throughout the Act. For

completeness, bands as defined under the Indian Act should be included within the

definition of Indigenous communities.

G. COMPLIANCE WITH CFSA PROVISIONS SPECIFIC TO INDIGENOUS

CHILDREN AND YOUTH

17. Introduce provisions that require all Societies acting under the authority of the CFSA to

satisfy the Ministry, or an independent monitor such as the Provincial Advocate for

Children and Youth, that:

a. the placement of Indigenous children in non-Indigenous families and communities

was justified, with evidence demonstrating that all possible efforts were made to

place the children within their culture and community, and all avenues in this

respect were exhausted;

b. the CAS is competent and equipped to comply with the CFSA provisions specific

to Indigenous children, because of its cultural knowledge, expertise and the

relationships of its leadership and frontline staff to Indigenous communities;

c. the Board of Directors has taken all necessary and reasonable steps to recruiting an

Indigenous member, and is otherwise competent and equipped to comply with the

provisions of the CFSA;11

d. the Society actually complies with all the provisions specific to Indigenous

children.

18. Introduce a requirement that each Society have a designated liaison, tasked with building

relationships, collaborating, supporting and building capacity with mandated agencies,

First Nations and indigenous communities.12

19. Introduce mandatory language to s.63.1 (the Society’s obligation to a Crown ward),

requiring mainstream Societies to place an Indigenous child in customary care, “unless

11 See Beaucage Report, 20. 12 See Beaucage Report, 17.

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there is a substantial reason not to do so”. The Society must then be required to justify a

placement outside of customary care, as contemplated under Recommendation 17, above.

20. Enforcement, compliance and accountability for compliance with these provisions should

lie with the Ministry or an independent monitor, such as the Provincial Advocate for

Children and Youth, not the Courts.

H. FACILITATING THE RECRUITMENT OF CULTURALLY APPROPRIATE

PLACEMENTS

21. Provide financial support to permit the successful recruitment of Indigenous foster,

adoptive and customary care homes, by allowing them to bring their homes into

compliance with Ministry standards;

22. Provide in-home support and parental training within the home, to prevent further CAS

involvement. This could be funded under the 1965 Agreement “homemakers” power;

23. Ensure Ministry standards for the assessment of Indigenous families and homes are

culturally informed and relevant, which may require the creation and application of

alternative standards.

I. RESOURCES FOR INDIGENOUS COMMUNTIES TO EXERCISE PARTY

STANDING

24. Require program funding for “band representatives” or their equivalent under an amended

Act;

25. Require funding for legal counsel for Indigenous communities on par with the funding

available to other parties.

J. EVALUATING THE CULTURAL SUITABILITY OF RESIDENTIAL

PLACEMENTS

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26. Introduce a provision requiring the Minister to ensure any residential placement provider

caring for an Indigenous youth provides adequate cultural programming and support and

enumerate appropriate factors to be considered.

27. Create an offence penalizing any residential placement provider who falsely claims to

provide cultural programming and support.

K. INFORMATION SHARING BETWEEN CAS AND ABORIGINAL AGENCIES

28. Introduce a provision requiring a CAS to share information with First Nations and

Aboriginal agencies at every stage of investigation and service delivery, in line with the

amendments contemplated regarding the determination of the best interests of Indigenous

children.

L. FUNDING

29. The proper implementation of the purpose contained in s.1(2.5) requires increased

investment and funding in First Nation programs targeting Indigenous children and youth.

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Government & Nonprofit

ANCFSAO CFSA Review Submission