ABORIGINAL PRACTICE POINTS

Aboriginal families and the Child, Family and Community Service Act

These materials were prepared by Darwin Hanna and updated by Kelly Harvey Russ for the Continuing Legal Education Society of British Columbia, August 2007.

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Key points •

The Canadian government is willing to negotiate with Aboriginal communities so they may take jurisdiction and authority over child welfare. In BC, many Aboriginal groups have incorporated child welfare societies to deliver services.

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The Child, Family, and Community Service Act (CFCSA) is a provincial statute designed to protect BC children from abuse and neglect, and ensure their safety and well-being. The CFCSA applies to Aboriginal children both on- and off-reserve. However, on reserves where bands have passed child welfare by-laws and received Ministry approval under s. 81 of the Indian Act, the CFCSA does not apply.

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The Director of Child Protection has entered into agreements pursuant to s. 90 of the CFCSA that allow bands and Aboriginal organizations to provide child protection services, including prevention and support services, investigation of child protection concerns, provision of services for children at risk or in need of protection, conduct of and participation in mediation and court proceedings, and provision of services to children in the Director's care.

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The CFCSA contains special principles for dealing with Aboriginal children and communities. Bands or communities are entitled to notice when a child is removed from the parents' home. The guiding and service delivery principles of the CFCSA require that the kinship ties and cultural identity of Aboriginal children should be preserved, that Aboriginal people should be involved in planning and delivering services to Aboriginal children and families, and that the community should be involved in planning and services, which should be provided in ways that are sensitive to the culture, racial, and religious heritage of the families receiving them.

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The CFCSA also states that in determining a child's best interests, the child's cultural, racial, and religious heritage must be considered. The child's cultural identity is one factor and will be weighed differently by courts depending on the circumstances of the case.

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Bands and Aboriginal communities may provide a variety of support services to Aboriginal children and their families, including parenting programs, counselling, play therapy, foster care placements, respite care, cultural camps, and assistance in developing a plan of care for a child. Involving family and community can be critical in developing the plan of care, because without such support it is difficult for courts to implement the CFCSA's guiding principles.

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The Director of Child Protection has a duty to try to place Aboriginal children with extended family or within their communities if they must be placed in foster care. However, there is a shortage of Aboriginal foster parents; therefore, the Director often places Aboriginal children with non-Aboriginal foster parents. In such cases, counsel should scrutinize the interim plan of care to ensure that the Director has included the steps to be taken to preserve the child's Aboriginal identity.

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If a continuing custody order is made with respect to an Aboriginal child, the Director may consent to an adoption order, and the Adoption Act will apply. The Adoption Act requires that the Director or agency try to discuss the child's placement with the child's band or Aboriginal organization before placing a child for adoption. Again, the Aboriginal heritage of the child will have to be considered. Courts may, on application, recognize that the adoption of a child effected through the community's customary method of adoption has the effect of an adoption under the Adoption Act.

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Contents I. Introduction II. Application of the CFCSA A. Non-application B. Confirmation of authority C. Application of CFCSA to Aboriginal people D. Notification of proceedings E. Guiding principles F. Plan of care G. Foster care H. Parents rights when children are in care III. Adoption IV. Custom adoption V. Procedure

I. Introduction This paper deals with the Aboriginal issues surrounding the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 (CFCSA), and adoption. Aboriginal people assert that they have the inherent right of self-government over child welfare matters which is to be recognized and affirmed under s. 35 of the Constitution Act, 1982. The federal government recognizes the inherent right of selfgovernment and is willing to negotiate Aboriginal jurisdiction and authority over child welfare. In British Columbia, the issue of child welfare is a substantive aspect of many treaty negotiations. However, based upon the current state of affairs, it will take years to conclude any treaty-related final agreements. In the interim, many Aboriginal groups throughout British Columbia have incorporated child and family service societies to deliver programs and services to Aboriginal children and families based upon traditions, often by agreement with the Ministry of Children and Family Development. For a general discussion of the Aboriginal community and child protection matters see Child Protection and the Aboriginal Community, available on the Legal Services Society website at: < http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_prot_abor_comm.asp>.

II. Application of the CFCSA The CFCSA is a provincial statute designed to protect children in British Columbia from abuse and neglect, and ensure their safety and well-being. As the CFCSA is a law of general application, it is applicable to Aboriginal children living both on- and off-reserve by being referentially incorporated as applying to "Indians" through s. 88 of the Indian Act, R.S.C. 1985, c. I-5 (Indian Act).

A. Non-application The CFCSA is not applicable on-reserve for bands that have passed child welfare bylaws pursuant to s. 81 of the Indian Act and had them approved by the Minister of Indian Affairs. For example, the Spallumcheen Band has properly enacted by-laws related to child welfare on

4 reserve that have received the approval of the Minister. Once the bylaw is properly enacted, the courts will not easily interfere with the band council's jurisdiction, nor will the provincial laws apply to the band members and their children who reside on the band's reserve lands (E.G.S. v. Spallumcheen Band Council, [1999] 2 C.N.L.R. 318 (B.C.S.C.)). The CFCSA may not be applicable to the children of the Nisga'a Nation, as the Nation may make laws in respect of child and family services on Nisga'a Lands pursuant to the Nisga'a Final Agreement. If a Nisga'a child is removed outside Nisga'a Lands pursuant to the CFCSA, s. 33.1(4)(d) of the CFCSA stipulates that the Nisga'a Lisims Government is to receive notice of the presentation hearing.

B. Confirmation of authority Pursuant to s. 90 of the CFCSA, the Director has entered into many agreements (for example, the Child Welfare Agreement and Delegation Confirmation Agreement) with bands and Aboriginal organizations for the provision of CFCSA-related services. In addition, pursuant to s. 92 of the CFCSA, the Director has delegated certain "powers, duties or functions under the [CFCSA]" to staff of bands and Aboriginal organizations. Some staff of Aboriginal organizations have achieved "Delegated Level 15: Full Child Protection Authority", which is the highest level of delegation. Examples of Aboriginal organizations with certain delegated authorities include Nhla'kapmx Family and Child Services, Carrier Sekani Family Services, and Xyolhemeylh Child and Family Services. For a complete listing of delegation levels of various Aboriginal organizations, or First Nations, see Schedule 1 to the Child, Family and Community Service Regulation, B.C. Reg. 527/95. Some Aboriginal organizations are delivering child and family services consistent with "Aboriginal standards", which are the criteria and standards contained in the October 1999 document "Aboriginal Operational And Practice Standards And Indicators" prepared by a reference group of Ministry and Aboriginal organization representatives. By agreement and with staff possessing delegated authority, Aboriginal family and child service organizations may, with respect to Aboriginal children and families both on- and off-reserve: •

provide prevention and support services for children and families to promote the purposes of the CFCSA and the agreement;

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receive and investigate reports regarding children who may be in need of protection under the CFCSA;

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provide services for children at risk of being in need of protection or in need of protection;

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initiate, conduct, and participate in mediation, tribunal and court proceedings;

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provide services to children who are in the care of the Director;

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provide services for children placed in out-of-home living arrangements; and

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provide services listed in the Aboriginal Delegation Matrix.

Thus, legal counsel for parents may be dealing with social workers and legal counsel acting on behalf of Aboriginal organizations rather than social workers and legal counsel acting on behalf of the Ministry.

5 Even without the confirmed authority for child welfare, bands and Aboriginal organizations have developed protocol agreements and established working practices with the Ministry.

C. Application of CFCSA to Aboriginal people Generally, legal proceedings concerning Aboriginal children pursuant to the CFCSA are carried out in the same manner as proceedings concerning non-Aboriginal children, except for the special principles set out in the CFCSA relating to Aboriginal children and the involvement of the Aboriginal community. The CFCSA provides the following inclusive definition of an "aboriginal child": "aboriginal child" means a child (a) who is registered under the Indian Act (Canada) (b) who has a biological parent who is a registered under the Indian Act (Canada); (b.1) who is a Nisga'a child, (c) who is under 12 years of age and has a biological parent who (i) is of aboriginal ancestry, and (ii) considers himself or herself to be aboriginal, or (d) who is 12 years of age or over, of aboriginal ancestry and considers himself or herself to be aboriginal

D. Notification of proceedings If an Aboriginal child is removed from the parents' home, the Director is obligated to notify the applicable Aboriginal organization of a presentation hearing (CFCSA s. 33.1(4)(c) and (d)) and of a protection hearing (CFCSA s. 38(1)(c), (c.1) and (d)). If the representative of the band or Aboriginal organization chooses to participate, the organization becomes a party to the action and is entitled to receive all records and information, to speak at the hearing, to call its own witnesses and question other witnesses, to participate in any mediation, and to propose support for the child's parents or suggest another culturally appropriate plan of care for the child. While bands and Aboriginal organizations are not persons capable of having custody of a child, the Aboriginal community representative may support an application by the child's grandparents, stepparents, aunts, or other extended family members for custody of or access to a child: Tom v. Children's Aid Soc. (Winnipeg), [1982] 1 C.N.L.R. 170 (Man. C.A.), and Re: C. and V.C. [1983] 3 C.N.L.R. 58 (BC Prov. Ct.). The CFCSA does not entitle relatives to receive notice of a CFCSA proceeding; however, a court may order that service be effected "on any other person the court considers appropriate" (s. 38(1)(e)). In addition, a relative may apply to be party to CFCSA proceedings (s. 39(3) or (4)). In some instances, relatives may apply for access (s. 55(2) or s. 56(1) of the CFCSA) or custody (s. 35(1) of the Family Relations Act, R.S.B.C. 1996, c. 128 (FRA)). For FRA applications joined with CFCSA proceedings, the court will refer to the "best interest" factors set out in s. 24 of the FRA.

E. Guiding principles The CFCSA provides a number of Aboriginal-related guiding principles and best interest factors relating to the interpretation and delivery of the CFCSA, as follows:

6 Guiding principles 2. This Act must be interpreted and administered so that the safety and well-being of children are paramount considerations and in accordance with the following principles: ... (e) kinship ties and a child's attachment to the extended family should be preserved if possible; (f) the cultural identity of aboriginal children should be preserved; ... Service delivery principles 3. The following principles apply to the provision of services under this Act: ... (b) aboriginal people should be involved in the planning and delivery of services to Aboriginal families and their children; (c) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services; ... (e) the community should be involved, wherever possible and appropriate, in the planning and delivery of services, including preventative and support services to families and children. Best interests of child 4(1) Where there is a reference in this Act to the best interests of a child, all relative factors must be considered in determining the child's best interests, including for example: ... (e) the child's cultural, racial, linguistic, and religious heritage; ... 4(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests. The Aboriginal child's cultural identity is only one factor in determining the best interests of the child and is weighed differently by courts depending on the particular circumstance of each case: See D.H. v. H.M.,,[1997] B.C.J. No. 2144 (QL) (B.C.S.C.), reversed [1998] 3 C.N.L.R. 59 (B.C.C.A.), affirmed [1999] 1 S.C.R. 328, [1999] 1 S.C.R. 761

F. Plan of Care To work effectively with Aboriginal families requires knowledge of available programs and services offered by bands and Aboriginal organizations, and awareness of resource people within the extended family and Aboriginal community. For a listing of Aboriginal organizations, see the provincial government publication A Guide To Aboriginal Organizations And Services In British Columbia, which is available on a BC government website at: < http://www.gov.bc.ca/arr/services/guide.html >.

7 The following support services may be available to Aboriginal children and their families from bands and Aboriginal organizations: •

family support;

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parenting programs;

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relationship counseling and testing;

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art and play therapy;

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psychological counseling;

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foster care placement resources;

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parenting outreach services;

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drug and alcohol counseling and testing;

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conflict resolution;

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respite care;

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supervision of visits;

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cultural camps;

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development of plan of care; and

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participation in and provision of evidence at, CFCSA proceedings.

Involving the support of the extended family and representatives from bands and Aboriginal organizations can be critical in the development of a plan of care for Aboriginal children. Absent such support, it will be difficult for the court to implement the guiding principles of the CFCSA.

G. Foster Care With respect to foster care, the Director has a duty to try to place an Aboriginal child with extended family or within the Aboriginal community. Section 71 of the CFCSA reads in part: Out-of-home living arrangements 71(3) If the child is an aboriginal child, the director must give priority to placing the child as follows: (a) with the child's extended family or within the child's aboriginal cultural community; (b) with another aboriginal family, if the child cannot be safely placed under paragraph (a); (c) in accordance with subsection (2), if the child cannot be safely placed under paragraph (a) or (b) of this subsection. In many instances, the Director will place an Aboriginal child with non-Aboriginal foster parents as there is a shortage of Aboriginal foster parents. If this is the case, the interim plan

8 of care should be scrutinized, as the Director is required to include in a written report at the presentation hearing the steps to be taken to preserve the child's Aboriginal identity ( CFCSA s. 35(1)(b)). Relatives should be canvassed to ascertain whether they would consider being a restricted foster parent(s). If so, social workers for the Director or applicable Aboriginal organization with delegated authority should be informed so that a home study can be undertaken. Pending the completion of a home study, relatives should request suitable access and, in certain circumstances, the child(ren) may be placed with relatives before a home study is completed.

H. Parents rights when children are in care As legal counsel, there are times when parents ask what, if any, rights they have as parents when their children are in care. There is an excellent brochure published by the Legal Services Society entitled “If Your Child Is Taken by the Ministry of Children and Family Development: Your Rights as a Parent”. This is a good starting point for explaining parental rights when children are in care. It is available on the Legal Services Society website at: .

III. Adoption Upon the issuance of a Continuing Custody Order, the Director may consent to the child's adoption by foster parents or by other persons. As the Adoption Act, R.S.B.C. 1996, c. 5 (the Adoption Act), is a law of general application in the province, it is applicable to Aboriginal children living both on- and off-reserve by being referentially incorporated as applying to "Indians" through s. 88 of the Indian Act, except to the extent that it is inconsistent with Aboriginal and treaty rights recognized and affirmed under s. 35 of the Constitution Act, 1982, the Indian Act, or band membership codes. The Adoption Act has the same "aboriginal child" definition as the CFCSA, noted above. Before the Director can place an Aboriginal child for adoption, s. 7 of the Adoption Act requires that the Director or adoption agency make reasonable efforts to discuss the child's placement with the applicable band or Aboriginal organization, except in circumstances where the child is at least 12 years old or one birth parent objects to the involvement of a band or Aboriginal organization. In considering the "best interests" of the child, consideration must be given to the Aboriginal heritage of the child. Given the reconnection efforts of many Aboriginal people raised in care, an "open" adoption should be considered to enable the Aboriginal child to maintain access with his or her family and Aboriginal community. Section 62 of the Adoption Act authorizes the Director to release information about the child's band, Aboriginal community and birth parents to the foster parents. An adoption order can not affect any Aboriginal or treaty rights of the child, nor can it affect the child's Indian Act benefits (s. 37(7) of the Adoption Act).

IV. Custom adoption Section 46 of the Adoption Act provides that, on application, the court may recognize that an adoption of a person effected by the custom of an Indian band or Aboriginal community has the effect of an adoption under the Adoption Act. Customary adoption is an integral part of Aboriginal societies and is common in Aboriginal communities. Each Aboriginal community has its own process for customary adoptions. Adoptions made in accordance to Aboriginal custom have not been abrogated by legislation (Re: Katie's Adoption Petition (1961), 38 W.W.R. 100 (N.W.T. Terr. Ct.).)

9 The criteria for court certification of an adoption by Aboriginal custom include the consent of the natural and adopting parents, the child's voluntary placement with the adopting parents, the adopting parents' Aboriginal heritage or entitlement to rely on Aboriginal custom, and the presence of a rationale for Aboriginal custom adoption (Re: Tagornak Adoption Petition, [1984] 1 C.N.L.R. 185 (N.W.T.S.C.)). An additional factor is that the relationship created by custom must be understood to create fundamentally the same relationship as that resulting from an adoption order under the Adoption Act (B.C. Birth Registration No. 1994-09-040399 (Re), [1998] 4 C.N.L.R. 7 (B.C.S.C.)). The Indian Act also recognizes the practice of customary laws. The definition of "child" includes a child adopted in accordance with custom, and amendments to the Indian Act extended the entitlement of Indian status to children who are adopted by custom. The Registrar is obligated to respond to an application for Indian status registration on the basis of Indian custom adoption and render a decision on eligibility. Affidavits from the natural parents, the adoptive parents, the band council, and elders should accompany an application for registration on the basis of custom adoption. The affidavits should state the custom for adoption, and that the applicant was adopted in accordance with that custom. Any other supporting documentation should be submitted with the application. In addition to legislative recognition of custom adoption, custom adoption constitutes an Aboriginal right within the meaning of s. 35 of the Constitution Act, 1982 once it is established to be an integral part of the distinct culture of the Aboriginal community (Casimel v. Insurance Corporation of British Columbia, [1994] 2 C.N.L.R. 22 (B.C.C.A.)).

V. Procedure The actual procedure for dealing with aboriginal children taken into care under the CFCSA is no different then non-aboriginal children. The first time that an aboriginal parent, or any parent, has their child(ren) removed under the CFCSA is a very emotional time. The challenge for legal counsel is to assist the parent(s) with the legal procedure during this emotional time. There is a very good website that deals with the legal procedure under the CFCSA. It is available on the Legal Services Society website at: . Mediation is fast becoming the method of choice for dealing with child protection matters in British Columbia. Currently, there are a limited number of Aboriginal child protection mediators and more are been trained on an ongoing basis. Parents, if they wish, should be encouraged to request a mediator with whom they are comfortable. For a good summary of the mediation process see: To determine if there is an Aboriginal mediator in the parent’s area see: http://www.mediatorroster.bc.ca/select_cp.cfm. If you cannot locate an Aboriginal mediator with the search function, phone the British Columbia Mediator Roster Society directly and ask for one.