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.

ISSUE: For legal supports for Child Protection issues, see pages 18-20 for some local and provincial suggestions.

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

Legal Aid BC

Telephone: 1-866-577-2525

• Free legal representation for child welfare matters.
• Call a Legal Advocate for help with applications.

Access Pro Bono's Lawyer Referral Service

Telephone: 604-687-3221 Toll-Free: 1-800-663-1919 Website: https://www.accessprobono.ca/our-programs/lawyer-referral-service

• Consultation with a lawyer for up to 30 minutes for free, during which time fees are negotiated for further consultation, but a few well-organized questions can be answered
• Any ongoing legal assistance will require paying the lawyer’s regular fees

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."