Experienced and Knowledgeable Lawyers Assisting with Indigenous Guardianship Issues

In addition to the hardships faced when a child is apprehended from their home, the removal of an Indigenous child from their home presents unique challenges with respect to guardianship and care. In years past, it was common for Indigenous children to be removed from their home and placed in foster care completely outside of the community in which they were raised, with no cultural touchstones to connect them to their heritage. These factors formed the basis of what is known now as the Sixties Scoop, in which thousands of Indigenous children were taken from their communities and placed in predominantly non-Indigenous homes. This had a devastating effect on these children. The Alberta provincial government has since enacted programs and policies to try to avoid similar atrocities going forward, including the Kinship Care Program, which seeks to place children in need of alternative guardianship with people in their community, who will keep them connected to their Indigenous identity and the community in which they are rooted.

Today, when a child is apprehended for their safety by the Director of Children’s Services (CS), the Director will often reach out to potential guardians in the child’s community through the Kinship program. If there is nobody who can care for the child in the community, the child may be placed in foster care outside of the community, however, there are requirements in place to ensure they continue to celebrate and learn about their heritage.

An Intersection of Experience and Understanding

If a child is with a foster parent long enough, the foster parent may choose to apply for what is known as a Private Guardianship Order under the Child, Youth and Family Enhancement Act (the “CFYEA”), which will make them the guardians of the child. At Mincher Koeman, we have considerable experience advising on child guardianship issues, particularly as they pertain to Indigenous children. We have become the lawyers that other lawyers in the Calgary family bar regularly reach out to with referrals for work or for our respected opinions.

Lynsey Mincher, one of our firm’s founding partners, previously worked as Director’s Counsel with CS before her move to private practice. Her experience there affords her unique knowledge of a complex system and allows our lawyers to advise clients with an insight into the child intervention process that few other family law firms in Calgary can provide. We can advise any person seeking guardianship of an Indigenous child on their specific obligations in that regard and help them navigate the application process. Our primary concern will always be to ensure that the best interests of the child are met and that the child is given the best chance possible for a stable home life that allows for the continued celebration and awareness of their Indigenous status.

What is Involved in the Application for a Private Guardianship Order?

The CYFEA sets out the required components of an application for a Private Guardianship Order (as opposed to a Guardianship Order which is granted under the Family Law Act) as follows:

• A statement that the child was in the continuous care of the applicant for at least three months prior to the application (this requirement may be waived if it would serve the best interests of the child to do so);
• A statement that the applicant is willing and able to serve as the child’s permanent guardian;
• A finding that the guardianship is in the best interests of the child;
• A home study report demonstrating the suitability, ability and willingness of the applicant to be the child’s permanent guardian. Note that in cases where the child is the subject of a Permanent Guardianship Order, this report will be completed by the Director.

Requirements Specific to Indigenous Children

In cases involving an Indigenous child, there are additional requirements that must be satisfied. The person seeking the Private Guardianship must also include as part of their application:

• A Cultural Connection Plan and a commitment to adhere to it. This is a plan that sets out how the guardian will ensure that the guardian will maintain a sense of the child’s culture and identity throughout their life;
• A commitment to taking any reasonable steps to exercise any rights the child might have as an Indigenous person;
• A commitment to making the child aware of their cultural identity as soon as they are old enough to discuss it.

If the child is over 12 years old, the court will seek their consent prior to approving a PGO application, however, if consent is not given, the court can approve the application if it is deemed to be in the child’s best interests.

Contact the Lawyers at Mincher Koeman for Assistance with Indigenous Guardianship Issues in Calgary

At Mincher Koeman, our family law lawyers have considerable knowledge of the inner workings of Alberta CS and as such we will provide insightful and accurate advice to any person seeking a Private Guardianship Order under the CFEA. We are committed to protecting the needs of Indigenous children who have been removed from an unsafe home environment while ensuring that they don’t lose connection to their culture and identity in the process.  Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.