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5th Session, 40th Legislature

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Bill 15

THE CHILD AND FAMILY SERVICES AMENDMENT ACT (RECOGNITION OF CUSTOMARY CARE OF INDIGENOUS CHILDREN)


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C80 amended

1           The Child and Family Services Act is amended by this Act.

2           The English version of principle 11 of the Declaration of Principles is amended by striking out "aboriginal" and substituting "Indigenous".

3(1)        Subsection 1(1) is amended by adding the following definition:

"mandating authority" means, in relation to an agency, the authority that has mandated the agency under section 6.1; (« régie habilitante »)

3(2)        The following is added after subsection 1(2):

Terms re customary care

1(3)        In this Act, "customary care", "customary care agreement", "customary care home", "customary caregiver", "Indigenous child" and "Indigenous community" have the same meaning as in section 8.24.

4           Clause 4(2)(a) is amended by striking out "agency," and substituting "agency, a customary care home, or".

5           Subsection 7(1) is amended by adding the following after clause (m):

(m.1) work with Indigenous communities to further the provision of customary care to Indigenous children;

6           Section 8.15 is amended by repealing the definition "mandating authority".

7           Section 8.16 is amended by renumbering it as subsection 8.16(1) and adding the following as subsection 8.16(2):

Duty to report — customary caregivers and others

8.16(2)     A person who provides supports and services under a customary care agreement — whether as a customary caregiver, employee or volunteer or in any other capacity — who reasonably believes that a critical incident respecting an Indigenous child has occurred in any place, including a place of safety, must report the incident in accordance with this Part.

8(1)        Section 8.17 is amended by striking out "section 8.16" wherever it occurs and substituting "subsection 8.16(1)".

8(2)        The following is added after subsection 8.17(3):

Report by customary caregiver

8.17(4)     A customary caregiver who has a duty to report a critical incident under subsection 8.16(2) respecting an Indigenous child who is residing in the customary care home must report the incident to the agency that is party to the customary care agreement.

Report by employees and service providers under customary care agreements

8.17(5)     A person, other than a customary caregiver, who has a duty to report a critical incident under subsection 8.16(2) must make the report to

(a) the agency that is party to the customary care agreement; or

(b) the director if the person does not know the agency involved.

9           The following is added after section 8.23:

PART I.3

CUSTOMARY CARE

Definitions

8.24        The following definitions apply in this Part.

"customary care" means care provided to an Indigenous child in a way that recognizes and reflects the unique customs of the child's Indigenous community. (« soins conformes aux traditions »)

"customary care agreement" means an agreement that meets the requirements of this Part. (« entente de soins conformes aux traditions »)

"customary care home" means a home or other place where one or more Indigenous children reside with a customary caregiver under a customary care agreement. (« foyer offrant des soins conformes aux traditions »)

"customary caregiver" means a person, other than the Indigenous child's parent or guardian, who has entered into a customary care agreement that provides for a child to reside with the person. (« personne offrant des soins conformes aux traditions »)

"Indigenous child" means a child who is or is entitled to be a member of an Indigenous community. (« enfant autochtone »)

"Indigenous community" means

(a) an Indian band as defined in the Indian Act (Canada); or

(b) any other First Nation, Inuit or Metis community designated as an Indigenous community under section 8.25. (« collectivité autochtone »)

DESIGNATION

Designation of community by minister

8.25        The minister may, with the consent of a First Nation, Inuit or Metis community's representatives, designate the community as an Indigenous community for the purposes of this Act.

CUSTOMARY CARE AGREEMENTS

Customary care agreement may be entered into

8.26(1)     A customary care agreement may be entered into in respect of an Indigenous child for the purpose of

(a) providing customary care through the planning for supports and services (including, if applicable, residing in a customary care home) in a way that is sensitive to the needs and the cultural identity of the child; and

(b) recognizing the role of the Indigenous community in planning and providing customary care.

Notifying Indigenous community

8.26(2)     When a parent or guardian of an Indigenous child has expressed an interest in entering into a customary care agreement for the child, the agency serving the Indigenous child must notify the child's Indigenous community if the parent or guardian has given his or her consent for doing so.

Parties to customary care agreement

8.26(3)     The following must be parties to a customary care agreement for an Indigenous child:

(a) the child's parent or guardian;

(b) the agency serving the child;

(c) the representative of the child's Indigenous community;

(d) the customary caregiver if the agreement provides that the child is to reside with him or her.

Ability of minor to enter into agreement

8.26(4)     A customary care agreement is valid notwithstanding that a parent entering into the agreement is a minor.

Views and preferences of Indigenous child

8.26(5)     When entering into a customary care agreement, the parties must consider the views and preferences of an Indigenous child 12 years of age or older and may consider the views and preferences of an Indigenous child under 12 years of age.

Best interests criteria to apply

8.27        The best interests criteria set out in subsection 2(1) apply in determining whether to enter into or continue a customary care agreement.

Written customary care agreement

8.28(1)     A customary care agreement must be in writing and must contain the terms agreed to by the parties.

Contents of customary care agreement

8.28(2)     The terms of a customary care agreement may include, without limitation, the following:

(a) the details of the supports and services that are to be made available under the agreement;

(b) the details of a plan for the child's safety and security;

(c) the length of time that the agreement is to be in effect and the details of how it may be ended.

Customary care agreement beyond age of majority

8.29(1)     A customary care agreement may be entered into for the purpose of assisting an Indigenous child's transition to independence if

(a) he or she had been receiving supports and services under a customary care agreement immediately before he or she attained the age of majority;

(b) he or she is a party to the new agreement along with those parties listed in clauses 8.26(3)(b) to (d); and

(c) the term of the agreement does not extend beyond the date he or she attains the age of 21 years.

Director's approval required

8.29(2)     Despite subsection (1), the agency must obtain the director's written approval to provide supports and services, including maintenance, under the new customary care agreement.

Copy of agreement to be given to authority, director

8.30(1)     An agency must give a copy of a customary care agreement to the agency's mandating authority and the director.

Agency to notify when agreement ends

8.30(2)     When a customary care agreement ends, the agency must notify the agency's mandating authority and the director.

Considering importance of customary care in court proceedings

8.31        When a judge or master is presented with a customary care agreement in a proceeding under Part III, he or she must, in addition to the best interests criteria set out in subsection 2(1), consider

(a) the importance of preserving the Indigenous child's cultural identity through the provision of customary care; and

(b) the importance of the role of the Indigenous community in supporting the child through the customary care agreement;

before making a decision in respect of the proceeding.

CUSTOMARY CARE HOMES

Residing in customary care home

8.32(1)     The parties to a customary care agreement may agree that an Indigenous child will reside with a customary caregiver in a customary care home.

Requirements

8.32(2)     An agency must ensure that the customary caregiver and the customary care home meet the safety requirements set out in the regulations and any other prescribed requirements.

OTHER MATTERS

Role of authority re customary care

8.33        When an agency is party to customary care agreements, the agency's mandating authority must

(a) supervise the agency in respect of those customary care agreements; and

(b) receive and disburse money payable for the maintenance of Indigenous children who reside in customary care homes under customary care agreements, including agreements under section 8.29.

Review by authority

8.34        During each 12-month period that a customary care agreement is in effect, an authority must review the agreement and the supports and services provided under the agreement to determine whether they continue to reflect the best interests criteria set out in subsection 2(1).

Application of Parts II and III

8.35        The fact that an Indigenous child is receiving supports and services under a customary care agreement does not prevent

(a) the Indigenous child or the child's family from receiving services under Part II;

(b) a person authorized to do so from apprehending the child as provided in Part III; or

(c) a judge or master from finding the child to be in need of protection under Part III.

10          Subsection 51(2) is amended by adding the following after clause (d):

(e) the child is being removed because the child is to reside in a customary care home under a customary care agreement.

11          Subsection 76(14) is amended in the part before clause (a) by striking out ", or a child" and substituting ", an Indigenous child who resides in a customary care home, or a child".

12          Section 86 is amended by adding the following after clause (k.2):

(k.3) respecting the criteria for designating an Indigenous community under section 8.25;

(k.4) respecting the notification of Indigenous communities by agencies under subsection 8.26(2), including, without limitation, prescribing the form, content and manner of the notification;

(k.5) respecting the form and content of customary care agreements;

(k.6) respecting the supports and services that may be provided under customary care agreements;

(k.7) respecting safety and other requirements for customary care homes and customary caregivers and authorizing an agency to waive or vary those requirements and prescribing conditions for doing so;

(k.8) respecting the retention, storage and destruction of records under Part I.3;

C.C.S.M. c. C90 amended

13           Section 19 of The Child and Family Services Authorities Act is amended by adding the following after clause (n):

(n.1) supervise an agency in respect of the customary care agreements to which the agency is a party under The Child and Family Services Act, and receive and disburse money payable for the maintenance of Indigenous children who reside in customary care homes under those customary care agreements;

Coming into force

14          This Act comes into force on a day to be fixed by proclamation.

Explanatory Note

Customary care is care provided in a way that recognizes and reflects the unique customs of a community. It preserves a child's cultural identity, respects the child's heritage, facilitates cross-generational connections and recognizes the role of the community in raising its children.

This Bill amends The Child and Family Services Act to provide a legislative basis for supporting the provision of customary care to Indigenous children through agreements and living arrangements.

When a parent or guardian expresses an interest in arranging customary care for an Indigenous child, the parent or guardian may enter into an agreement with the child and family services agency and the Indigenous community to provide supports and services for the child.

Those supports and services are to be planned in a manner that is sensitive to the needs and cultural identity of the Indigenous child. The plan may include a living arrangement with a caregiver.

Other amendments that support customary care include

  • permitting the minister to designate Indigenous communities;
  • expanding the duty of agencies with respect to customary care;
  • requiring authorities to supervise agencies with respect to customary care agreements and to provide maintenance for living arrangements in customary care homes;
  • providing that the best interests criteria apply to customary care agreements;
  • requiring the importance of customary care to be considered when customary care agreements are presented in court proceedings;
  • imposing critical incident reporting obligations on those who provide supports and services under customary care agreements;
  • permitting Indigenous young adults to enter into customary care agreements; and
  • adding regulation-making powers relating to customary care agreements, customary care homes and customary caregivers.

An amendment is made to The Child and Family Services Authorities Act.