Area of Law: Aboriginal Law
Answer # 0654
Child protectionRegion: Ontario Answer # 0654
The following information has been provided with the assistance of Lakehead University Faculty of Law, Aboriginal Law Studies.
Children In Need of Protection
Child protection cases arise when the Children’s Aid Society has taken or is threatening to take a child into care.
According to government statistics, First Nations children are six times more likely to be placed in care outside of the family home (such as in foster homes, group homes and institutions) than non-Aboriginal children. The Canadian Incidence Study of Reported Child Abuse and Neglect published in 2003 and again in 2008 by the Public Health Agency of Canada, cited a number of contributing factors, such as poverty, poor housing conditions, neglect, substance abuse and exposure to family violence. This report was compiled using information and data gathered from child welfare agencies in every province and territory. Furthermore, the 2008 report included data from three times as many First Nations agencies from previous reports. The increased number of First Nations child welfare agencies participating in the study allows for a more accurate picture of the reasons why Aboriginal children are overrepresented in the child welfare system.
What is the importance of an Aboriginal approach to child protection?
Child protection cases are inherently tough cases to deal with for any family. For Indigenous people however, there is also the Residential School trauma to be dealt with. The trauma from residential schools resulted in many Indigenous children forced to leave their communities and families, causing them to be adopted into non-Indigenous families which lead to the decline in Indigenous tradition and knowledge. For this reason, the realities of the Residential School trauma are at the forefront of modern child protection cases.
Provincial laws and child welfare services
The province or territory where the child resides is responsible for funding the delivery of child welfare services for all other children living off reserve. Each province and territory has its own child protection laws designed to focus on child safety and well-being. In addition, provinces and territories have implemented several programs that provide culturally appropriate services specifically for Aboriginal children and youth.
The provincial and federal laws in Canada are recognizing the importance of incorporating the uniqueness of Aboriginal, Indigenous, First Nations, Inuit and Metis peoples in determining the best interests of a child during a child protection proceeding. As such, the courts have shown deference towards reasons for keeping an Indigenous child inside the scope of the Indigenous community’s network instead of uprooting the child into a position where their cultural identity will not be recognized. This “Aboriginal-Uniqueness” has influenced decisions to keep Indigenous children within the Indigenous network in order to prevent cultural identity crisis such as those caused by the Sixty Scoop or Residential School events. Essentially, the uniqueness of Aboriginal heritage can be a successful argument to raise in a child protection case.
Under the provincial Acts, there are special provisions that apply to Aboriginal children. For example, the child’s First Nation council must be given notice of the court case, and the child’s cultural identity must be considered when an order is being made. The Acts also set out a provision similar to the following:
“ Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity.”
Who is a parent?
Under Ontario’s Child, Youth and Family Services Act (‘Act’) a parent could be but is not limited to:
- A parent of the child under the Children’s Law Reform Act (sections 6,8,9,10,11 or 13 of );
- An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child;
- An adoptive parent (under section 217 or 218 of the Act);
- An individual who has lawful custody of the child; and/or
- An individual who, under a written agreement or court order, is required to provide for the child, has custody of the child or has a right of access to the child.
What makes a child in need of protection?
Under the Act, in appropriate situations, the Children’s Aid Society can intervene and remove a child from the parents’ custody if it can show to the court that the child is in need of protection. A child is in need of protection where:
- The child has suffered physical harm;
- There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child;
- Failure to adequately care for, provide for, supervise or protect the child;
- A pattern of neglect in caring for, providing for, supervising or protecting the child;
- The child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know the possibility of sexual abuse or sexual exploitation and fails to protect the child;
- The child has suffered, or will suffer, emotional harm (resulting in anxiety, depression, self-destructive behaviour, and/or delayed development);
- The child is younger than 12 years old and has killed or seriously injured another person or caused serious damage to another person’s property, with or without the encouragement of the person having charge of the child;
- The parent of the child is unable to care for the child; and/or
- The child is 16 or 17 years old and a prescribed circumstance or condition exists.
Best Interests of the Child test
The most important consideration during a child protection case is the child’s well-being. This is referred to as the Best Interests of the Child test, whereby a balance of pros and cons will be weighed to determine if it is in the child’s best interest to go back and continue to live where they were at the time that they were taken by child services.
When deciding what is in the best interests of a child, the following factors are considered:
- The child’s views and wishes, given due weight in accordance with the child’s age and maturity;
- In the case of a First Nations, Inuk or Metis child, the importance, in recognition of the uniqueness of First Nations, Inuit and Metis culture, heritages and tradition, of preserving the child’s cultural identity and connection to community;
- The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
- The child’s physical, mental and emotional level of development;
- The child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression;
- The child’s cultural and linguistic heritage;
- The importance of the child’s development of a positive relationship with a parent and a secure place as a member of a family;
- The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community; and/or
- The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
Government of Canada – First Nations Child and Family Services
The federal government’s First Nations Child and Family Services (FNCFS) Program was established to ensure the safety and well-being of First Nations children ordinarily resident on reserve. The program funds child and family services agencies that are established, managed and controlled by First Nations. The program is delegated by provincial or territorial authority, or services provided by provincial or territorial organizations or departments where the family resides. The services provided by the province or territory are in line with the laws and standards of the province. Also, the services must be provided in a similar manner to all residents of the province who are receiving assistance from FNCFS.
For more information, visit the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) website. For further resources, check our Aboriginal Law links.
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