Indigenous communities are one of the most marginalized communities in Canada. This September 30th, 2021 marked the first National Day for Truth and Reconciliation in Canada, a day that calls for Canadian’s to understand the tragic and painful impacts of residential schools on Indigenous communities. A part of reconciliation is not to just understand history, but also to address the present and recognize the systems that continue to mistreat Indigenous communities. One such system has been the legal system in the aspect of separating the Indigenous family.
Justice Walters states in CAS v. C.E., M.E., N.C., L.B. and T. B1 that Indigenous children are overrepresented in the child welfare system due to significant issues of colonialism, systemic racism and the devastating legacy of the residential school system. According to the 2016 Canadian census, 52.2% of children in foster care under 14 were Indigenous, even though they only represent 7.7% of all children under 14 in Canada.2 This represents an extreme overrepresentation of Indigenous children in the care of foster homes, as opposed to their own homes, or surrounded by their own unique cultures. Just like residential schools, Indigenous children continue to be separated from their families but in the present, through the court system.
Due to these concerning statistics, the Government of Canada had introduced An Act respecting First Nations, Inuit and Métis children, youth and families3 (Act) in 2019 as a piece of legislation that could help to reduce the number of Indigenous children in care. Although legislation can claim the purpose of making a change, it is important to consider if the legislation does this in practice. When considering the application of the Act, there may be a gap where the Act does not prevent state care for Indigenous children who have limited options of care. This article will consider two cases where this gap is found.
In January 2018, an Emergency Meeting on Indigenous Child and Family services took place in order to address the over-representation of Indigenous children in care.4 During this meeting, the Federal government committed to points of action, becoming the stepping-stones to creating the Act.5 The purpose of the Act is the following:
(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;
(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and
(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.6
The Act also outlines the principles that should be considered when interpreting and administering the Act. These principles include taking into account the best interests of the child, cultural continuity and substantive equality.7 Detailing the principles surrounding the best interests of the child, section 10(1) of the Act states “the best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child”.8 This is important to consider when looking at the Act. Although the Act introduces many important changes to legislation, such as allowing the Indigenous governing body acting on behalf of the Indigenous group to make representations, or outlining the priority placement of an Indigenous child, the best interests of the child is a key priority when considering the application of the legislation.
Alberta (Child, Youth and Family Enhancement Act, Director) v. K.C. and J.P
In Alberta (Child, Youth and Family Enhancement Act, Director) v. K.C. and J.P (K.C.).9 Justice Glass made a decision regarding a permanent guardianship order for an Inuit child made by the Director of Family and Social Services. In this case, the mother of the child was struggling with mental health issues, suicidal ideation and drug use.10 Also, due to the child’s own issues of fetal alcohol spectrum disorder, attention deficit disorder and oppositional defiance disorder, his guardian no longer had the capacity to care for him.11 The Act was considered and complying with the Act, Justice Glass provided notice to the relevant Inuit settlement of the application, giving them the opportunity to participate.12 The Inuit settlement did not participate in the application.
Justice Glass stated in the decision at para 30, that the child would be placed at risk if returned to the care of either of the child’s guardianships and there was no other family members to care for the child.13 It was clear that the child did need intervention and the decision took into account the child’s best interests, considering their survival, security, development and protection.14 Although the child’s Indigenous governing body was notified, as stated prior, they had not come forward to offer any other options. Due to this, as outlined at para 31, the Permanent Guardianship Order was granted.15
MSD v. KBM & MRM
In MSD v. KBM & MRM (KBM)16, The Minister of Social Development (“ The Minister”) sought guardianship over a child defined as “Aboriginal” in this case. The parents of the child both opposed The Minister’s request for guardianship and throughout the history of the proceedings, wanted custody of the child. Justice Landry spoke towards the parent’s ability to care for the child in the decision. Both the child’s parent’s had a drinking problem and early on, the mother transferred custody to the father due to her drinking problems.17 The father exhibited other issues such as non-compliance to drug screenings, psychological assessments and missing visits with the child.18 Although the father had shown little efforts of complying to the services suggested to him, the child’s mother had since made progress in regards to her alcohol addiction.19 Due to this, she opposed the application for guardianship made by The Minister and also filed a motion requesting custody be transferred from the father to herself.20
In Justice Landry’s decision, he considered the best interests of the child as defined in s. 1 of the New Brunswick Family Services Act.21 Justice Landry did recognize the mother’s efforts and relationship with the child and decided to reserve for the child a right of access to his mother. That being said, considering the evidence, the court ultimately agreed with the Minister that giving custody to the child’s mother or father would not be in the child’s best interest.22 Justice Landry decided to grant the guardianship to The Minister.23
In this case, the Act was mentioned only when Justice Landry spoke to what The Minister should do after guardianship was granted. He only stressed that since the Act has come into effect, The Minister must consider that for adoption, according to s. 16 of the Act, “placement of an Indigenous child with a non-indigenous family should be last resort” and that the Act places more responsibility on the Minister when considering the child’s Aboriginal heritage. 24 The Act was considered in this case, only after the decision was made.
Gap in the Act
When analyzing the decision of these two cases, it is clear that although an application of the Act was made, the guardianship of the Indigenous children in the cases was granted to the state and they remained in care. In these cases, the circumstances of the children were difficult as they were deemed to have no other options but to go to the state. Whether it be the child themselves that required care that a family could not provide, or there was no kinship or family that was able to appropriately care for the child, the separation of the Indigenous family still exists.
Although the Act does well in introducing legislation that can help keep Indigenous children out of care, it fails to account for the Indigenous children that do not have access to proper care. As seen in the cases, Indigenous communities can suffer from a variety of alcohol, drug abuse and mental health issues. In K.C., the mother and the child suffered from either drug use, mental health issues or different disorders; in KBM the parents suffered from alcohol abuse. Given the tragic history of Indigenous people in Canada, the issues the children and parents faced in these cases are not uncommon. Since the child’s best interest must be kept in mind, when there are little options for care outside of the state, the Act does not account for how to preserve the Indigenous family and culture and does not keep the Indigenous child out of care.
Although I do not argue that a child’s best interests must be at the forefront of making a decision, I argue that the Act needs to include provisions to further protect Indigenous families and cultures, even when there are deemed little options for the child. The cases analyzed in this article may be a reality to many other Indigenous families. Due to this, the Act is not enough in keeping Indigenous families together or preserving the child’s Indigenous culture. In order to keep Indigenous children out of care, there needs to be more done that addresses why the child is in care and more resources offered to help Indigenous parents recover so they are able to care for the child. Additionally, aside from legislation, there should be resources used to implement measures that help prevent Indigenous children from requiring specialized care or prevent Indigenous parents from reaching a state where they are no longer able to provide care.
When it comes to preserving the child’s Indigenous culture, if there is no representation of the child’s Indigenous governing body, it should not be deemed that the child has “no other options” as it was deemed in K.C.25 The Act should include provisions that exhaust all means in getting Indigenous representation or opinion. An example of this can be instead of allowing Indigenous parties to apply for representation, to require that applications only be heard when an Indigenous body that understands the unique culture and history is present.
Introducing new legislation that helps to protect Indigenous communities is a great stepping-stone in reconciliation. That being said, in this case the legislation should truly consider the different and unique circumstances that Indigenous communities face and try to account for that to resolve the issue of Indigenous children in care homes. Although the newly introduced Act does do well in implementing some change, there is more to be done and it is hopeful that through analyzing the cases that have been applying the Act, that Parliament continues to make changes in protecting Indigenous families and keeping Indigenous children out of care homes.