Children and Families (Legal Information for Indigenous People)

Child protection laws

The legal landscape of child protection law is changing in Canada.
It is important to know about the different laws that could apply to your situation. There are different laws to consider in a child protection case.

Federal: An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (Bill C-92)

Provincial: Child, Family and Community Service Act (CFCSA)

Indigenous Laws: Nations have Indigenous laws and traditions and many have or will be enacting their own child protection laws.

"The Federal Act requires that the Indigenous laws and traditions of a child’s own community be reflected in all aspects of caring for that child, even where the Indigenous community has not entered (or may not enter) a process to officially pass their own child welfare law."
– Ardith Walkem, Wrapping Our Ways Around Them

The Federal Act:

• affirms the inherent right of Indigenous self-government, which includes jurisdiction in relation to child and family services,
• sets out national standards for the provision of child and family services in relation to Indigenous children, and
• sets out the best interests of Indigenous children, which includes factors such as:
  • their cultural, linguistic, religious and spiritual heritage,
  • the nature and strength of their relationship with their parents, care providers, or extended family, and
  • the importance to the child of preserving their cultural identity and connections to the language and territory

The Federal Act also sets out the priority for placement of Indigenous children if necessary in the following order:

• One of the child’s parents.
• Another adult member of the child’s family.
• An adult from the same Indigenous community.
• An adult from another Indigenous group.
• Finally, any other adult.

Provincial law

Provincial child welfare law is called the Child, Family and Community Service Act (CFCSA). The CFCSA applies to all children in BC, on and off reserve.

The Ministry of Children and Family Development (MCFD) as well as Delegated or Semi-Delegated Aboriginal Agencies administer child services under the CFCSA.

If MCFD Social workers contact you with concerns about your child, it is important to get legal advice as soon as possible.

Social workers’ roles include investigating reports of child abuse or neglect and they have authority to remove children from homes if children are at immediate risk. Get support and learn about your rights.

You and your family also could have Band supports available:

• Under the CFCSA, the MCFD must give notice to the Band when they become involved with a family.
• Each Band has a designated representative or equivalent who is supposed to be notified if the MCFD is contacting you.
• You can insist that your Band representative be present for any questioning, meetings with social workers or court proceedings.

When there is a conflict between laws

As a general rule:

• If the conflict is between federal and provincial law, the federal law prevails.
• If there is a conflict between the federal law and the law of the Indigenous Nation, the Nation’s law is paramount with some limitations.
• If there is a conflict between two Nations’ laws, the law from the community to which the child has stronger ties prevails.

Under the Federal Act, Provincial laws and policies continue to apply to the extent of a conflict or inconsistency with federal laws or Indigenous laws over child and family services. In which case, both the federal laws and Indigenous laws prevail over the CFCSA. The Federal Act was enacted in part to ameliorate the “unreasonable infringement” of the Indigenous right to self-determination and the right to self-government over child welfare matters.

This is an evolving area of law.
For more information, seek legal advice.

Atira Women’s Resource Society: 604-331-1407 x.114

Email is volunteeradvocate@atira.bc.ca

Indigenous Community Legal Clinic: 1-888-684-7874

Child protection resources

Legal Aid BC

Telephone: 1-866-577-2525

• Free legal representation for child welfare matters.
• Call a Legal Advocate for help with applications.
• Legal Aid BC has published several resources such as “Parents Rights, Kids Rights,” “Keeping Aboriginal Kids Safe,” etc. https://legalaid.bc.ca/publications
• Wrapping Our Ways Around Them is a resource that empowers Indigenous Nations and community involvement in caring for Indigenous children. It provides advice to lawyers, judges, children, families, community members and social work teams. https://legalaid.bc.ca/publications/pub/wrapping-our-ways-around-them

Virtual Indigenous Justice Centre

Telephone: 1-866-786-0081

• Eligibility:
  • Be Indigenous or self-identify as Indigenous
  • Legal issue that falls under “child protection”
  • Been declined by Legal Aid

Nuxalk Nation Health and Wellness

Telephone: 250-799-5809 (Community Wellness worker)

MCFD social workers

Telephone: 1-250-799-5395 (Bella Coola)

Semi-delegated Aboriginal agencies in the region:

• Heiltsuk Kaxla Society

Telephone: 1-250-957-4325 (Bella Bella)

• Denisiqi Services Society

Telephone: 1-250-392-6500 (Ulkatcho Nation, Williams Lake)

Resources for parents

Parents Legal Centres (PLCs)

Telephone: 1-888-522-2752

• Help parents with child protection matters.
• The PLC lawyer and advocate can help you address the social worker’s concerns about your children’s safety (child protection) early on.
• PLCs help parents resolve their child protection matters early and collaboratively, offering services at any stage of the child protection matter.
• The PLCs provide:
  • information and advice on options for resolving child protection issues out of court,
  • legal advice and representation, where appropriate, through collaborative processes such as mediation and family case planning conferences,
  • legal advice and representation at uncontested hearings,
  • an advocate who will support you and go with you to meetings and appointments, and
  • referrals to other services, including online resources and other public agencies

Navigating the child welfare system can be a distressing experience and have a negative impact on your mental health.
Please reach out to resources for support:

Residential School Crisis Line

Telephone: 1-866-925-4419

• Contact the 24 Hour crisis line, if you require emotional support.

KUU-US Crisis Line Society INDIGENOUS CRISIS LINE

Telephone: 1-800-588-8717

• Help is only a phone call away
• 24/7 365 Days A Year

Jordan's Principle

Jordan’s Principle is a legal rule that ensures that all Indigenous children living in Canada can access the products, services and supports they need, when they need them. Funding can help with a wide range of health, social and educational needs, including the unique needs that Indigenous Two-Spirit and LGBTQQIA children and youth and those with disabilities may have.

Criteria for access:

The child must be under 19 years old, a permanent resident of “Canada,” and meet one of the following criteria:

• Registered or eligible to be registered under the Indian Act, or
• Has a parent or guardian registered or eligible to be registered under the Indian Act, or
• Recognized by their Nation for the purposes of Jordan’s Principle, or
• Is ordinarily resident on reserve.

Who can submit a request?

• Parent or guardian of an Indigenous child
• Indigenous child over the age of 16
• Authorized representative of the child, parent, or guardian

To apply:

• Contact your local Jordan’s Principle Service Coordinator, and
• Contact a Legal Advocate before making an application

Visit http://www.jordansprinciplehubbc.ca for more info

Rights of child

Children have rights and can become parties to Court proceedings when they have the capacity to instruct counsel (usually 12 or older). This means a lawyer can advocate on the child’s best interests during the court proceedings.

Child Youth Legal Center

Telephone: 1-877-462-0037 The Child Youth Legal Center can provide legal help for young people who are experiencing problems relating to family law and child protection. They can also help find legal representation for children.

Legal rights of a child

Participatory rights and access to counsel are important elements of access to justice. A child’s views should be heard in proceedings that affect their lives. The CFCSA outlines legal rights of children in care, which include the right to:

• be informed about their plans of care,
• be consulted and express their views about significant decisions affecting them,
• receive guidance and encouragement to maintain their cultural heritage,
• privacy during discussions with a lawyer or government personnel, and
• be informed of their rights, and the procedures available for enforcing their rights.

Indigenous children have other rights under the CFCSA, including the right to:

• receive support to learn about and practise their Indigenous traditions, customs and languages, and
• belong to their Indigenous communities.

Family law

Courts use the BC Family Law Act to make decisions on family law issues. Most of BC’s family laws are the same for Indigenous and Non-Indigenous people, living on or off reserve. When making guardianship, parenting and access agreements, Courts consider the best interests of the child. The best interests of a child includes the protection of the child’s physical, psychological and emotional safety, security and well-being.

When considering the best interests of Indigenous children, the courts may also consider the child’s heritage, traditions and culture. Also, the courts may look at someone’s Indigenous heritage or life circumstances when they are making decisions about legal issues such as guardianship, parenting arrangements and contact with a child.

Legal Aid BC resources

• See Family Duty Counsels at Court locations for advice https://legalaid.bc.ca/legal_aid/familyDutyCounsel
• Apply for Legal Aid for urgent family matters 1-866-577-2525
• Speak with a family lawyer about your situation for free 1-866-577-2525
• Read the family law guide “Living Together or Living Apart” @ https://family.legalaid.bc.ca/publications/living-together-or-living-apart

Child support issues

Parents and guardians have a legal duty to financially support their children. Even though it is paid to one parent, child support is the legal right of the child.

If you have a child support order and the other parent is not paying, you can register with the BC Family Maintenance Enforcement Program (FMEP) to help enforce the support order 1-800-663-3933 or http://www.fmep.gov.bc.ca.

On the other hand, if you have not been paying the support you have been ordered to pay, it is important to get help to address your debt and discuss applying for a support order that accurately reflects your current income. Call a Legal Advocate for help. See Income Security for more about Debt Issues.

Divorce

Must be filed in BC Supreme Court, located in Williams Lake, Campbell River, and many other locations.

• The couple must have been separated for one year.
• Couples living together meet this requirement as long as they have an intention to be separated.
• A spouse can seek a divorce prior to being separated for one year if there has been adultery or a spouse has been mentally or physically cruel.
• You do not need your spouse’s permission to get a divorce.
• You will need an original copy of your Marriage Certificate (order a new one from Vital Statistics if you no longer have it).
• A Divorce will cost $210 to start and another $80 to complete (4-6 months) - checks are to be made payable to the Ministry of Finance.
  • Fees can be waived for low income spouses

If there is no money or property in dispute, you can get an “uncontested divorce”. Legal Advocates can help.
Find one near you: http://www.povnet.org/find-an-advocate

If you have minor children, you can call a Family Law Advocate for help with an uncontested divorce.
For Bella Coola and Anahim Lake:

• Call Williams Lake: 250-392-4118

For Bella Bella and Klemtu:

• Call Port Alberni: 250-723-8281 ext223

For elsewhere in BC:

• http://www.lawfoundationbc.org/public-resources/contact-list

Family Homes on Reserve and Matrimonial Interests or Rights Act (FHRMIRA or Bill S-2)

FHRMIRA provides basic rights and protections to individuals on Reserve during a marriage or common-law relationship breakdown: separation, divorce, or death. Many of the legal protections relating to matrimonial real property applicable off reserve are now available to individuals on reserves.

Rights protected under the act:

• Spouses or common-law partners are entitled to a fair division of matrimonial real property, interests, or rights.
• Each spouse has an equal right to occupancy of the family home during the conjugal relationship, no matter whose name is on it and no matter if FN or Band member.
• Spousal consent required for the sale or disposal of family home.
• An application for division must be made within three years after the day on which the parties ceased to cohabit.
• Courts can order the transfer of or enforce agreements about matrimonial real property between spouses or common-law partners.
• Courts can order that a spouse or common-law partner be excluded from the family home on an urgent basis through Exclusive Occupation Orders.

For more information call 1-877-234-9813.
https://nalma.ca/matrimonial-real-property/resources-for-individual-rights

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

(1) A lawyer or a person other than a lawyer who helps clients with legal issues, or (2) to argue a position on behalf of someone.

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

In law, in British Columbia a person under the age of 19.

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

(1) A person charged with the legal care of someone under a legal disability. (2) A term under the Family Law Act referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

(1) A lawyer, or (2) the advice given by a lawyer to their client.

A judge of the superior courts of British Columbia, being the Supreme Court and the Court of Appeal.

A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."

A legal obligation to do or not do a thing, whether by legislation, the common law, or an order of the court. For example, the Criminal Code imposes a legal duty on parents to provide the necessities of life to their children until they turn 16, while the Family Law Act imposes a duty on parents to make decisions in the best interests of their children. See "duty."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A term under the Divorce Act referring to an order for child support or spousal support. See "child support" and "spousal support."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage" and "marriage, validity of."

A married person's voluntary sexual intercourse with a person other than their spouse, also known as cheating, playing the field and fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the spouse complaining of the adultery can prove that the adultery occurred and that they have not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of."

Something which can be owned. See "chattels" and "real property."

A person who is younger than the legal age of majority, 19 in British Columbia. Not to be confused with "miner," which means something else altogether. See "age of majority."

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

A parcel of land including any buildings on that land. See "chattel," "ownership" and "possession."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

An agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement."

In property law, the act of an owner of a thing giving ownership of that thing to another person, usually in exchange for money or other property in the case of a sale, or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale."