Tansi Nîtôtemtik,
Still from Native Counselling Services of Alberta’s “Raising the Spirit: Cultural Connections
Plans for Aboriginal Children”, <www.youtube.com/watch?v=oUCBMjjG0b8>>.
In yesterday’s post, we introduced you to Bill C-92, the federal government’s reform in the area of Indigenous child welfare. Today, we consider Alberta’s own legislative response, and how its reform compares to, and will work alongside, Bill C-92.
In December 2018, Alberta’s legislature assented to Bill 22: An Act for Strong Families Building Stronger Communities.[1] The legislation came into force on February 28, 2019. Bill 22 amends Alberta’s Child, Youth and Family Enhancement Act (CYFEA).[2] While the bill’s amendments aim to reform Alberta’s child welfare system generally, certain amendments are specifically included in order to reform how the system approaches Indigenous children and youth.
Key Amendments
One major amendment made to the CYFEA is the addition of specific matters to be considered by the court when determining what are the best interests of the child.[3] Several of these matters are specific to Indigenous children:
(c) in the case of an Indigenous child, the importance of respecting, supporting and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions; …
(e) the benefits to the child of connections with the child’s culture and cultural communities and opportunities to form those connections; …
(f) the child’s race, spiritual beliefs, colour, gender, gender identity, gender expression, age, ancestry, place of origin, family status, sexual orientation and any disability the child may have; …
(j) any decision concerning the placement of the child outside the child’s family must include a plan to address the child’s need for permanent, formalized ties to people who care about the child and must take into account …
(iii) in the case of an Indigenous child, the benefits to the child of a placement where the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected supported and preserved,
(iv) the benefits to the child of a placement where the child’s familial, cultural, social, linguistic and spiritual heritage are valued as central to the child’s safety, security and development …
Another key amendment is found in Bill 22’s reform to private guardianship orders. Before Bill 22 came into force, guardianship applications could be made under either CYFEA or the Family Law Act (FLA).[4] But whereas the CYFEA required a home assessment be done and a cultural connection plan be created before the permanent guardianship be approved, the FLA did not. In a consequential amendment, Bill 22 closed this “loophole” and now requires that permanent guardianship be sought under the CYFEA alone.[5] This means that, in every case where guardianship is sought in relation to an indigenous child, the application must include a plan “that addresses how the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.”[6]
Most notably, Bill 22 provides that First Nations can participate in court proceedings where their children are the subject of permanent guardianship applications. Specifically, bands must be given legal notice when an application is made for permanent guardianship of a child from their community, and may appear or make representations before the court.[7]
Bill 22 & Bill C-92
A guiding principle introduced by Bill 22 to interpret and administer CYFEA holds that “Indigenous people should be involved with respect to the planning and provision of services to and decisions respecting Indigenous families and their children.”[8] However, this involvement is not mandatory, and in no way affords Indigenous communities the jurisdiction to make decisions concerning their own children.
It remains that, beyond providing for band participation in guardianship applications, Bill 22 provides no authority to First Nations over the decisions and administration of child welfare. However, with the federal Bill C-92 having come into force this month, Indigenous communities in Alberta will now be able to enter into coordination agreements with the provincial government and create their own regimes for child services, which will take precedence over the CYFEA.
Bill 22 can be accessed here.[9]
Until next time,
Team ReconciliAction YEG
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[1] SA 2018, c 24
[2] RSA 2000, c C-12
[3] See Bill 22, supra note 1, amending s. 2 of CYFEA, supra note 2
[4] SA 2003, c F-4.5
[5] Michelle Bellefontaine, “Bill closes loophole in private guardianships for Alberta kids in care”, CBC News (31 October 2018), online: <www.cbc.ca/news/canada/edmonton/bill-closes-loophole-in-private-guardianships-for-alberta-kids-in-care-1.4886593> [perma.cc/CS4D-2DWW].
[6] Bill 22, supra note 1, s. 5(b), amending s. 52(1.3) of CYFEA, supra note 2
[7] Bill 22, supra note 1, s. 7, adding s. 53.1 to CYFEA, supra note 2
[8] Bill 22, supra note 1, s. 3, adding s. 1.1(d) to CYFEA, supra note 2
[9] “Bill 22: An Act for Strong Families Building Stronger Communities”, Legislative Assembly of Alberta, online: <www.assembly.ab.ca/net/index.aspx?p=bills_status&selectbill=022&legl=29&session=4>.
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