Submission to
The Legislative Assembly of Ontario
Standing Committee on Social Policy
Regarding
Bill 210
An Act to Amend the Child and Family Services Act and make
complementary amendments to other Acts
December 13, 2005
Bill 210: Amendments to the Child and Family Services Act (CFSA)
1.
I am the Ontario Regional Chief, elected by the 134 First Nations of Ontario.
The status Indian population of these First Nations is the largest of any province in
Canada. The Chiefs of Ontario (COO) is a secretariat which acts on behalf of the 134
First Nations, based on resolutions passed from time-to-time at general and special
Chiefs Assemblies. I would like to acknowledge this opportunity to make a presentation
to the Committee on the all-important topic of child welfare in general and Bill 210 in
particular. Child welfare is a high priority for First Nations.
2.
The social and economic indicators for First Nation citizens are generally far
below Canadian averages. These are outlined in the Report of the Royal Commission
on Aboriginal Peoples, and many other authoritative reports and studies. The overall
problem is exemplified by the number of First Nation families and children involved in
the child protection system of Ontario.
3.
Ontario First Nation families were affected by the infamous child “scooping” and
adoption practices of child family and services agencies, which continued well into the
1960's.
Individuals, families, and communities are still suffering the consequences
today.
4.
This negative experience was one of the factors behind the significant infusion
of First Nation provisions in the current version of the CFSA. The key First Nation part
of the Act is Part X. While the provisions are not perfect, they are generally viewed by
First Nations as a significant form of protection against past abuses and of recognition
for the special circumstances of First Nations. First Nations want to build on these
provisions, not diminish them.
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5.
Among other things, the CFSA established respect for Indian culture as a
fundamental principle within the preamble. The CFSA required that decisions about a
First Nation child by the courts and child welfare agencies be based, in part, on
consideration of the culture and traditions of that child and his/her community. And, for
example, the CFSA made provision for First Nations to represent, as full parties in
protection cases, their “collective” interest in those children and families who become
involved in the system.
6.
First Nations take the position that their inherent right to self-government, which
is confirmed by sec. 35 of the Canadian Constitution Act, 1982, includes jurisdiction
over child welfare. This means that First Nations can pass independent laws dealing
with child welfare. This jurisdiction is being implemented gradually. In the meantime, it
is recognized that the CFSA has a direct impact on First Nation families and children.
Therefore, First Nations have a direct interest in any changes to the CFSA, particularly
any changes to the existing First Nation provisions in the CFSA.
7.
My purpose today is to outline procedural and substantive concerns that First
Nations have with Bill 210, which proposes to amend the CFSA in different ways.
Inadequate Consultation
8.
Based on sec. 35 of the Constitution Act, 1982, the government of Ontario is
obliged to consult First Nations in a reasonable way when draft legislation is likely to
prejudice First Nation rights and/or interests. This obligation has been confirmed in
several leading decisions of the Supreme Court of Canada; for example, the decision in
Delgamuukw v. BC, [1997] 3 SCR 1010. It is clear that some of the CFSA amendments
contained in Bill 210, which are outlined below, do prejudice First Nation rights and/or
interests. Therefore, the constitutional duty to consult is triggered.
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9.
There is a also a legal duty to consult First Nations based on sec. 2.2 of the
1965 Welfare Agreement, which is an active federal-provincial cost sharing agreement
dealing with various social programs, including child welfare. Section 2.2 provides that
First Nation consent must be sought for any proposed change to a program covered by
the Agreement, and that includes child welfare programs connected with the CFSA.
The application of sec. 2.2 was confirmed by the Ontario Court of the Appeal in the
Mushkegowuk decision dealing with Ontario Works legislation.
10.
In summary, the Province is under a legal duty, constitutional and contractual
in nature, to consult First Nations on those parts of Bill 210 that affect First Nation rights
and interests. The required consultation must be fair and reasonable; it cannot be pro
forma or in bad faith. The honour of the provincial Crown in its dealings with First
Nations is at stake. Failure to consult according to the legal standard can lead to the
invalidation of parts or the whole of the legislation.
11.
The duty to consult has not been satisfied in the case of Bill 210. There has
been little or no effort to consult First Nations. The consultation problem is illustrated by
the current Committee process, which originally took no account of First Nation input;
First Nations had to protest to get a minimum level of involvement. Therefore, if the Bill
is passed into law in the immediate future, there is a real risk that parts, or even the
whole, of it may be struck down in court later on.
12.
The prudent course is to slow down the legislative process to permit the
appropriate level of consultation with First Nations. This fair consultation should lead to
accommodation in the form of amendments to the Bill. First Nations are ready to work
with the government to identify reasonable changes to the legislative package.
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Customary Care
13.
Customary care is a fundamental component of the First Nation approach to
child welfare. It is also a fundamental component of Part X of the CFSA. Only First
Nations themselves can define and implement First Nation customary care.
The
opening and all-important section 208 of Part X of the CFSA provides as follows: “In this
Part, ‘customary care’ means the care and supervision of an Indian or native child by a
person who is not the child’s parent, according to the custom of the child’s band or
native community”. These all-important words recognize First Nation customary care
and First Nation control of such care.
14.
A major concern with Bill 210 is the new regulation making power that would
permit the provincial government, with little or no notice, to define and redefine First
Nation customary care. In particular, sec. 44 of the Bill amends sec. 223 of the CFSA,
an existing regulation making power that only applies to Part X of the CFSA. Section
223 of the CFSA currently permits regulations exempting First Nations and other First
Nation related entities from parts of the CFSA and regulations requiring consultations
with First Nations in certain cases. These existing regulation authorities represent the
positive approach of Part X and the CFSA. In contrast, sec. 44 of the Bill adds a
paragraph ©) to sec. 223 of the CFSA, permitting regulations “governing procedures,
practices and standards of customary care”. This undermines Part X in a fundamental
way. It undermines the principle that customary care is in the control of First Nations.
Customary care will be subject to control and change by the Province.
15.
The new regulation making power is inconsistent with First Nation jurisdiction
over child welfare matters.
16.
Provincial definition of First Nation customary care will create standards and
categories that do not make any sense in terms of the reality of First Nation family and
community life. This in turn will lead to intervention and enforcement problems. This
one-sided approach is reminiscent of the provincial practice before the modern CFSA.
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Inappropriate definition of customary care will lead to more First Nation children in care
and more disruption of First Nation families and communities.
17.
It is necessary for this regulation making power to be removed from the Bill. The
definition of customary care should be controlled by First Nations. The Province should
respect the principles of Part X of the CFSA.
Access to Crown Wards
18.
Bill 210 proposes to cut off access in the case of Crown Wards. The current
CFSA permits restricted access. Section 17(2) of the Bill amends sec. 59(2) of the
CFSA to terminate access in the case of Crown Wards. Section 31 of the Bill amends
sec. 103(2) of the CFSA to similar effect.
19.
This change will have a profound impact on First Nation families and children,
given the over-representation of First Nations in the child protection system. There is a
disproportionate number of First Nation children in the Crown Ward category.
Therefore, the proposed amendment dealing with access to Crown Wards will have a
disproportionate effect on First Nation families. First Nation children in Crown Wardship
will not have the benefit of a continuing connection to the collective First Nation culture.
Preservation of this connection is a principle of the current CFSA.
20.
First Nations support the current CFSA system, which permits access to Crown
Wards, subject to court review.
This system helps to maintain links between First
Nation children and their families and communities. Generally speaking, it is in the best
interests of the children to maintain such links. Studies have shown that cutting off First
Nation children from their culture harms them in the long term.
21.
The Bill 210 amendments mean that First Nation children, who are over-
represented in the Crown Ward category, will be cut off from their cultural roots, more
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often than not. This will mean long term harm, in spite of the best of intentions of all
care givers.
22.
The cut-off approach of the Bill is arbitrary and predictably harmful. Like the
proposed regulation making power over customary care, it is reminiscent of the
culturally insensitive approach before the current CFSA.
The Crown Ward access
provisions of the Bill should be deleted, at least as they apply to First Nation families.
Instead, the current discretionary approach of the CFSA should be maintained. Subject
to judicial overview, this will permit First Nation children in Crown Wardship to maintain
cultural and family ties.
Band Representatives
23.
The Band Representative function is a key part of the current management of
First Nation interests in the current CFSA. The function works hand-in-hand with other
First Nation provisions in the Act, particularly in terms of the court supervised child
protection process. The Band Representative is a recognized part of the court process,
ensuring that First Nation cultural considerations are kept in mind when the best
interests of the child are being determined.
24.
While the provincial legislation empowers the Band Representative, the
provincial government has not provided funding. Until recently, the federal government
provided very modest levels of funding for the Band Representative function. This
funding was arbitrarily cut off a couple of years ago, leaving First Nation governments in
an impossible position. Most First Nations do not have the independent means to pay
for Band Representatives to participate in lengthy and expensive court proceedings.
This means that the First Nation government perspective will be heard less and less in
protection proceedings, leading to long term harm for children in care.
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25.
The Band Representative function must be funded in an appropriate manner.
Federal/provincial funding is possible through the 1965 Welfare Agreement. However,
that may or may not happen, given the recent withdrawal of federal funding. In the
meantime, the CFSA should be amended to make it clear that the provincial
government is obliged to support the Band Representative function, in the same way it
supports child welfare agencies. This is appropriate given that the function is tied to
provisions in the provincial legislation.
26.
Failure to support the Band Representative function may raise a concern with
lack of equal treatment on racial grounds, contrary to sec. 15 of the Canadian Charter of
Rights.
Prevention and Protection
27.
The CFSA, particularly as amended by Bill 210, over-emphasizes the
intervention and protection approach. This approach is strongly linked to the judicial
process. Historically, intervention and protection proceedings have led to the overrepresentation of First Nation children in the system, resulting in turn in the break up of
families and cultural ties.
28.
In contrast to the interventionist approach, First Nations generally prefer
prevention and a wholistic approach. The emphasis is on positive prevention work with
families and children before problems get out of hand.
Family break up and
involvement in the courts can be minimized. In the long run, this approach is in the best
interests of the children, at least in the context of First Nations.
29.
The CFSA should be amended to give increased recognition to the prevention
and wholistic philosophy of First Nation child welfare agencies, professionals, and
traditional care givers.
There should be specific recognition for this approach and
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provincial support in terms of financial and other resources. The court based protection
system must of course be maintained for the most difficult cases.
First Nation Child Welfare Agencies.
30.
The creation of new First Nation child welfare agencies has been effectively
frozen for several years. This is inconsistent with the spirit of Part X of the CFSA. It
raises concerns that the Act is being administered in a discriminatory fashion, contrary
to sec. 15 of the Charter of Rights. And, most importantly, failure to promote First
Nation child welfare agencies is not in the best interests of First Nation children. Non
First Nation agencies are more likely to put First Nation children in care, damaging
family and cultural ties.
31.
The CFSA should be amended to clearly commit the Province to the
development and recognition of First Nation child welfare agencies, where warranted by
population numbers and other circumstances.
A legislative boost is required to deal
with the current administrative freeze on new First Nation agencies. This will be in the
best interests of children and will reduce the risk of lengthy and expensive legal
challenges to the current system based on the Charter of Rights.
Spirit of Part X of the CFSA
32.
What Bill 210 says (customary care, Crown Wards) and does not say (Band
Representatives, prevention, First Nation agencies) represent a significant blow to the
spirit of Part X of the CFSA (existing sections 208 to 213). As noted, First Nations
generally regard Bill X as a basic form of protection against a return to the “bad old
days” of non First Nation child welfare agencies in Ontario. It is a significant concern
that Bill 210 erodes this basic form of protection. It sends a very worrisome signal to the
system that First Nation issues and concerns have somehow dropped in importance.
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33.
The undermining of the spirit of Part X is particularly clear in the case of
customary care.
Part X of the current CFSA leads off with section 208, which
recognizes customary care and First Nation control of it. This foundation principle will
be undermined by sec. 44 of Bill 210, which gives the Province an unlimited regulatory
power under sec. 223 of the CFSA to govern procedures, practices, and standards for
customary care. In effect, Part X is turned on its head.
34.
Erosion of the spirit of Part X will have predictable results over time. There will
be less sensitivity in relation to First Nation cultural and family ties. More First Nation
children will end up in care and Crown Wardship. The long term prospects of First
Nation children will be diminished by increasing failure to respect the connection to First
Nation cultures.
35.
Instead of chipping away at Part X, Bill 210 should be overhauled with a different
frame of mind. The Province should take the time to work with First Nations to confirm
and enhance the protections contained in Part X.
There should be increased
recognition of First Nation jurisdiction over child welfare matters.
There should be
increased recognition of the prevention philosophy of First Nation agencies and
individuals involved in child protection.
36.
This different and more positive approach to Part X will take some time, based
on discussions between the Province and First Nations. This is another reason why the
Bill 210 legislative process should be delayed. A rush to passage will do permanent
damage to the spirit of Part X and will be negative for the long term best interests of
First Nation children.
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Equal Treatment under the Charter of Rights
37.
Section 15 of the Charter of Rights prohibits unequal treatment under the law
based on various grounds, including race.
38.
There is a significant risk that the current program implementation under the
CFSA as it relates to First Nation children and families is in breach of sec. 15 of the
Charter. First Nation children are over-represented in the system. New First Nation
child welfare agencies have been thwarted.
The Band Representative function is
recognized at a symbolic level, but there are no resources for implementation. The sec.
15 problem with the CFSA may be worsened if Bill 210 is passed.
39.
The provincial position is that the CFSA applies on reserve. Under sec. 15 of
the Charter of Rights, this means that the Province must provide equal treatment to First
Nations in the administration of the Act. This is so regardless of the level of federal
funding.
Based on everyday experience, First Nations believe that they are not
receiving the same level of child welfare service available off-reserve. It is a second
class system, based on racial categorization. This makes the system vulnerable to an
equality challenge under sec. 15 of the Charter.
40.
In these circumstances there should not be a rush to pass Bill 210, including
provisions that are harmful to and opposed by First Nations. The Bill 210 process
should be delayed to permit careful consideration of the concerns of First Nations,
including a fundamental concern with unequal treatment based on race. First Nations
and the Province should discuss positive and forward looking amendments designed to
strengthen the system as it relates to First Nations. This would be in the best interests
of children and would diminish the risk of a broad based sec. 15 challenge to the
legislation.
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In Summary
41.
There are at least two components of Bill 210 that will do real harm to First
Nation families affected by the CFSA. First, there is the new regulation making power
that would allow the Province to arbitrarily define and redefine First Nation customary
care. Second, there is the cut-off of access to Crown Wards, which will affect First
Nation children and families in a disproportionate manner, cutting them off from
collective cultural supports.
42.
In addition, Bill 210 fails to address fundamental problems with the CFSA in
terms of First Nations. There is no guarantee of resourcing for the important role of
Band Representative.
43.
There is no recognition of the First Nation prevention philosophy in child
welfare, as opposed to over-reliance on protection in the courts. The administrative
freeze on new First Nation child welfare agencies is not addressed.
The general
Charter of Rights issue is not addressed, i.e. the unequal treatment of First Nation
families.
44.
Based on what it addresses and does not address, Bill 210 represents a
significant pull-back from the spirit of Part X of the CFSA. This in turn represents a
significant risk of a gradual return to the “bad old days” before the modern CFSA. That
would not be in the best interests of First Nation children or the Province as a whole.
45.
Bill 210 has a significant prejudicial effect on First Nation rights and interests in
relation to child welfare. As a result, based on constitutional principles and sec. 2.2 of
the 1965 Child Welfare Agreement, the Province is legally obliged to consult First
Nations, accomodate their positions, and, in some cases, obtain their consent. In fact,
the Province has not made a serious effort to consult First Nations on Bill 210. This
puts the legislation in constitutional jeopardy.
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46.
The best course is simple and straightforward. The rush on Bill 210 should be
stopped. Instead, the package should be suspended to permit meaningful consultations
with First Nations. If the consultations are conducted in good faith, the inevitable result
will be a better legislative and program package. This will be in the best interests of the
children.
THAT IS MY PRESENTATION. THANK YOU. I WOULD BE HAPPY TO TRY TO
DEAL WITH ANY QUESTIONS OR COMMENTS YOU MIGHT HAVE.
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