5th Session, 40th Legislature
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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:
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:
3(2) The following is added after subsection 1(2):
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):
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):
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):
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.
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
9 The following is added after section 8.23:
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 »)
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
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.
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.
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.
8.26(4) A customary care agreement is valid notwithstanding that a parent entering into the agreement is a minor.
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.
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.
8.28(1) A customary care agreement must be in writing and must contain the terms agreed to by the parties.
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.
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.
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.
8.30(1) An agency must give a copy of a customary care agreement to the agency's mandating authority and the director.
8.30(2) When a customary care agreement ends, the agency must notify the agency's mandating authority and the director.
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
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.
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.
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.
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).
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
10 Subsection 51(2) is amended by adding the following after clause (d):
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;
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;
14 This Act comes into force on a day to be fixed by proclamation.