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

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.

Call: 1-877-462-0037

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:

• 1-877-234-9813
• https://nalma.ca/matrimonial-real-property/resources-for-individual-rights

© Copyright 2022, Bella Coola Legal Advocacy Program (BCLAP).