Children and Families (Legal Information for Indigenous People: National Edition)

Child Protection Law

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

Federal	Provincial/Territorial	Indigenous
Federal Act (Bill C-92): 'An Act respecting First Nations, Inuit and Métis children, youth and families	Provincial and Territorial Legislation	Indigenous laws and legal orders regarding children, family and community wellness.
	Treaty provisions	If there is a conflict between two laws, the law from the community to which the child has stronger ties prevails.
	Self-Government Agreements

This section will look at the Federal Act (Bill C-92) because this is the law that could be used everywhere in Canada, as one way to assert rights in child protection situations. The other laws mentioned in the boxes above apply in their specific regions (jurisdictions).

The Federal Act was enacted in part to lessen the over-representation of Indigenous children in the child welfare system.

Whereas Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices;
Whereas Parliament recognizes the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services

-from Preamble, An Act Respecting First Nations, Inuit and Metis children, youth and families (Bill C-92)

The Federal Act

• sets out national standards for the provision of child and family services in relation to Indigenous children
• creates a pathway for Indigenous Peoples to exercise their inherent right of self-government over child welfare matters

Key Highlights

• Affirms the inherent right of Indigenous self-government in relation to child and family services
• Emphasizes cultural continuity and the need to preserve a child's connections to family, community and culture
• Introduces substantive equality and the right of Indigenous children, their families and respective Indigenous Governing Bodies to have their views and preferences heard without discrimination
• Prioritizes preventative care over apprehension, including prenatal interventions to avoid apprehension of a child at birth
• Prevents apprehensions "solely on the basis" of socioeconomic conditions, poverty, lack of housing or the state of health of the parent

What does the Act mean to me as an Indigenous group, community or people?

• The Act affirms the jurisdiction of Indigenous Peoples over child and family services. It encompasses all section 35 rights holders, which includes First Nation, Inuit and Métis.
• In exercising this jurisdiction, you can enact your own laws respecting child and family services. These laws could extend to all of your members wherever they are located in Canada.
• If you conclude a coordination agreement with the federal and provincial governments or make reasonable efforts to do so, your Indigenous laws will have force of law as federal law and prevail over conflicting federal, provincial and territorial laws with respect to child and family services.
• For a child from your community, you have the right, through the Indigenous Governing Body (more on IGB's below), to:
  • have a say in decisions affecting that child;
  • to receive notice of any significant measures to be taken in relation to that child; and to
  • make representations in any civil proceedings regarding that child's care.

An Act respecting First Nations, Inuit and Métis children, youth and families Technical Information Package: https://publications.gc.ca/collections/collection_2020/sac-isc/R5-747-2020-eng.pdf

The Federal Act sets out a process for how Indigenous Governing Bodies (IGB's):

• are authorized to represent a group, community or people that holds

section 35 rights

• can articulate their own child and family service laws, administer and enforce their laws, and provide dispute resolution mechanisms under those laws

The Federal Act does not impact existing treaty or self-government agreements about child welfare, including agreements and treaties that allow for the Indigenous groups to give notice to pass child welfare laws.

The Federal Act sets out that the best interest of an Indigenous child is the paramount consideration and includes the following cultural protections:

• the importance of cultural continuity as essential to the well-being of a child, family and community to which the child belongs
• the importance of the child having an ongoing relationship with his or her family and community and preserving the child's connections to their culture
• the importance of preserving the child's cultural identity and connections to the language and territory

The Federal Act:

• promotes keeping Indigenous children in their families and communities by setting out the following priority placement of a child, with:

1st : One of the child's parents
2nd: Another adult member of the child's family
3rd: An adult from the same Indigenous community
4th: An adult from another Indigenous group
5th: Finally, any other adult.

• requires that Notice must be given to
  • parents, or care providers who provide care in accordance with Indigenous customs and traditions, and to
  • Indigenous Governing Bodies about "significant measures" or interventions into a child's life which gives them the right to be involved in planning for the child
• requires reassessment on an ongoing basis to determine if the child can be returned to the parent or extended family

Indigenous Governing Body – Section 12 Repository of Notices

The Importance of Indigenous Governing Body (IGB) status for the Purpose of Receiving Notice of Significant Measures under the Federal Act. An Indigenous Governing Body (IGB) means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution The Federal government is maintaining a centralized repository of contact information for Indigenous Governing Bodies to help ensure that IGB's receive notice of significant measures involving their children under section 12 of the Federal Act. Even if your community is not in a position to give notice of self-government or enter the coordination agreement process, deciding who at the community level (council, government or entity) will be authorized to receive notice under the Federal Act confirms the community's IGB for child and family services agencies across Canada. This is an easier step than deciding who will be authorized on behalf of s. 35 rights holders to draft child and family services laws for self-government or enter the coordination agreement process. The IGB entity could be the designated band representative, chief and council, or other department or entity authorized by the community for the purpose of receiving notice. Once the IGB is identified, submit the name of the IGB. Once the IGB is authorized, submit the contact information of the IGB and any updates to Indigenous Services Canada by email to: partenariats.partnerships@sac-isc.gc.ca. Identifying the IGB is helpful in two ways:

1. The Federal Act confers certain rights specifically on IGB's
2. It makes clear who must be notified when child and family services agencies in Canada become involved with a child/youth connected to your Indigenous community

The process of being recognized as an IGB for the purpose of notice is simple and an important step to consider as the Federal Act confers specific rights and protections specifically on IGB's and the centralized repository helps child protection agencies know who the IGB is and how to contact you.

Key resources re IGB process, rights and policies: Repository for Notices under s. 12 of the Federal Act https://www.sac-isc.gc.ca/eng/1669758273613/1669758318689

Child Protection Resources

'Wrapping Our Ways Around Them', by Ardith Walkem QC: A resource that empowers Indigenous Nations and community involvement in caring for Indigenous children. It provides advice about Bill C92 "the Federal Act" to lawyers, judges, children, family, community members and social work teams. https://api2.legalaid.bc.ca/resources/pdfs/pubs/Wrapping-Our-Ways-Around-Them-eng.pdf

Legal Aid for Aboriginal people in BC: Most Provinces and Territories will have child protection resources available (Justice workers, Legal Aid etc.) specific to their laws. See Resources section. https://aboriginal.legalaid.bc.ca/child-family-rights/child-protection

Hope for Wellness: For Indigenous people across Canada who need immediate emotional support, crisis intervention or referrals to community-based services. Experienced and culturally sensitive help line counsellors can help if you want to talk English and French and, on request, in Cree, Ojibway and Inuktitut languages. Indigenous Peoples can access the Hope for Wellness Help Line by phone at 1-855-242-3310 or via online chat through the website. https://www.hopeforwellness.ca

The National Indian Residential School Crisis Line: Provides 24-hour crisis support to former Indian Residential School students and their families toll-free at 1-866-925-4419.

Kids Help Phone: Call 1-800-668-6868 (toll-free) or text FIRSTNATIONS to 686868. Available 24 hours a day to anyone in Canada aged 5 to 29 who wants confidential and anonymous care from trained responders.

Jordan's Principle

Jordan's Principle is a legal rule that ensures all Indigenous children living in Canada can access the products, services and supports they need when they need them. Eligibility for Jordan's Principle support used to be narrowly defined and limited to children with disabilities and complex medical needs. But, the 2016 Canadian Human Rights decision made in favour of Indigenous children led to the expansion of Jordan's Principle including:

• substantive equality (giving extra help when extra help is needed)
• culturally appropriate services
• any product or service needed to safeguard the best interests of Indigenous children

Best Interests of Child Expansion

Framing the cultural, social, educational, sports, medical/dental, or family need as safeguarding the child's best interests means there are several products, services and supports that should be made available to Indigenous children through Jordan's principle. Further, a child's best interests could be served, for example, by providing supports to the family such as childcare/ respite for the caregiver, help with food and utilities, or other needs that would help the family thrive, and therefore, benefit the child.

Tips for Applications

The key to a successful application is to gather letters of support from bands, elders, daycare providers, school teachers/staff, coaches, doctors/dentists, counsellors, social workers or other community advocate to help establish the need and show how the support will safeguard the child's best interests.

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 at https://www.jordansprinciplehubbc.ca

Family Homes on Reserve

Learn about the Family Homes on Reserve and Matrimonial Interests or Rights Act.

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 is 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.
• If you are married or common-law and your partner passes away, you have the right to stay in the family home for 180 days (at least), even if you are renting and/or not a Band member.

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