Bill C-92 Receives Royal Assent, Paving Way for Better Indigenous Participation in Child Services

Canada’s Bill C-92, An Act respecting First Nation, Inuit, and Metis children, youth and families (“the Act“), has received royal asset. The passing of this Bill, which was introduced in February of this year, is the culmination of ongoing efforts to address the overrepresentation of Indigenous children in Canada’s child welfare system. In 2016, over 50% of the children in foster care across the country were from Indigenous communities, despite accounting for only 7% of the overall population of children under 15.

The Act aims to make sweeping changes to how child welfare is handled in Canada’s Indigenous communities by seeking their participation in the development of policies and practices unique to each community. The Act aims at addressing the idea that all situations are not created equal, and through direct participation in policy development, First Nation communities will be able to reflect the history, culture and circumstances of each individual community in the way they care for children in need.

Four Guiding Principles

The development of the Act included extensive input and consultation with relevant parties, including Indigenous partners, Indigenous youth with lived experience in the child welfare system, and experts and advocates. Four key principles emerged to guide the changes needed:

Best Interests of an Indigenous Child

The Act includes a set of factors that must be considered when determining the best interests of an Indigenous child:

• the child’s physical, emotional and psychological safety, security and well-being;
• the importance of preserving the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
• the attachment and emotional ties between the child and significant persons in the child’s life;
• the child’s views and preferences;
• the child’s needs and level of development;
• any plans for the child’s care;
• any family violence and its impact on the child; and
• any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Prioritizing Preventative Care

Rather than focusing on the apprehension of children in compromised situations, the Act emphasizes the need to focus instead on prevention through the use of social services. Going further, the Act prohibits the apprehension of Indigenous children solely on the basis of their family’s economic status.

Keeping Indigenous Children and Families Together

For too long, Indigenous children have been apprehended from their homes and placed with families completely outside of their community and culture, which has notably caused harm to generations of Canadian children. The Act attempts to address this by specifying the order of placement for every Indigenous child apprehended from their home:

• one of the child’s parents;
• another adult member of the child’s family;
• an adult who belongs to the same Indigenous group, community or people;
• an adult who belongs to an Indigenous community or people other than the one to which the child belongs; and
• any other adult.

In situations where it is not feasible for the child to reside with a parent or family member, the Act provides for ongoing assessments in case circumstances change and allow for that down the road.

Jurisdiction of Indigenous Communities, Groups and People

With the understanding that each community is different and equally deserving of jurisdiction over its own child welfare matters, the Act sets out a process for groups and communities to exercise this control. Each community can enter into this process at its own pace, choosing to take full or partial control over the process. One arm of the process allows for the laws of the Indigenous community to eventually prevail over federal and provincial laws if the community chooses to take this path.

Moving Forward Together

This Act is a major step forward in the advancement of Indigenous communities’ control and say over their own children, as well as the preservation of culture and community for children in need of assistance.

The family law lawyers at Mincher Koeman regularly work with First Nations on child protection matters. We are passionate advocates of the rights of First Nation children to maintain cultural and community connections throughout the child welfare process. We understand how the system works, and we know how to effectively challenge or advocate at each stage. If your family has become by the child intervention process, or you are seeking guardianship of a child who is the subject of an intervention, please contact our office to discuss your options by calling us at 403-910-3000 or by contacting us online.