In Canada, Indigenous children account for only 7.7% of the population for children under the age of 14; but represent 52.2% of children in foster care for the same age group. Simply put, Indigenous children are grossly over-represented in Canada’s child welfare system.
To combat this overrepresentation, the Government of Canada co-developed, with Indigenous peoples, provinces, and territories, a piece of legislation titled “An Act respecting First Nations, Inuit and Metis children, youth and families”, which came into force on January 1, 2020.
But the Province of Ontario already legally recognized Indigenous peoples right to self-determination in providing care for their children years ago in the Child, Youth and Family Services Act, 2017 (“CYFSA”), which came into force on April 30, 2018, and replaced the former Child and Family Services Act.
The purpose of this article is to examine the CYFSA’s provisions that deal with First Nations, Inuit and Metis child and family services.
The Child, Youth and Family Services Act
The CYFSA’s paramount purpose is to “promote the best interests, protection and well-being of children.” It accomplishes this by providing for 1) the rights of children and young persons; 2) funding and accountability; 3) child protection; and 4) various other matters. The CYFSA provides for additional purposes, one of which is that:
First Nations, Inuit and Metis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Metis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connections to their communities, and the concept of extended family.
To breathe life into this purpose, Part IV of the CYFSA contains provisions dealing with “First Nations, Inuit and Metis Child and Family Services.”
Part IV – First Nations, Inuit and Metis Child and Family Services
Section 70(1) allows a Band or First Nations, Inuit, or Metis community (“Indigenous community”) to designate a body of their choosing as a First Nations, Inuit or Metis child and family services authority (“CFSA”). Section 70(2) then provides that, where such a designation has been made, the Minister:
a. Shall, at the band’s or community’s request, enter into negotiations for the provision of services by the child and family service authority;
b. May enter into agreements with the child and family service authority and, if the band or community agrees, any other person, for the provision of services; and
c. May designate the child and family service authority, with its consent, as a society under subsection 34(1).
Thus, the onus is on the Indigenous community to designate a body of their choosing as a CFSA and it is the Minister’s legal responsibility to enter negotiations for the provision of services by the CFSA.
Once these steps are completed, the Minister may: 1) enter into agreements with the CFSA, or any other person approved by the band or community, and 2) designate the CFSA as a society under ss. 34(1).
The CYFSA defines “customary care” as “the care and supervision of a First Nations, Inuk or Metis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Metis community.” This means that anyone other than the child’s parent(s) may provide supervision to the child if they abide by the acceptable practice(s) established by the Indigenous community.
In other words, it is up to the Indigenous community to define what constitutes customary care.
Additionally, if an Indigenous community declares that a First Nations, Inuk, or Metis child is being cared for under customary care, a society or entity may grant a subsidy to the person caring for the child.
The importance of this Act, and its provisions found in Part IV, is that the Province of Ontario has recognized Indigenous people’s right to self-determination in providing care for their children. Now, as has been the case for years, it is simply up to Indigenous communities to utilize Part IV and take control of their child welfare.
Paquette and Associates can help Indigenous persons and/or communities with:
- Designating a body as a child and family services authority under s. 70(1)
- Negotiate with the Minister for the provision of services by a child and family service authority under s. 70(2)
- Create by-laws and policies for CFSAs established by Indigenous communities
- Provide legal advice regarding customary care under the CYFSA
Author: Joshua A. Sinoway
The information provided in this Article is not intended to be professional advice, and should not be relied on by any reader in this context. For advice on any specific matter, you should contact legal counsel, or contact Rachael Paquette. Paquette & Associates Lawyers disclaims all responsibility for all consequences of any person acting on or refraining from acting in reliance on information contained herein.