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The Child and Family Services Amendment Act (Taking Care of Our Children)

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If you need an official copy, use the bilingual (PDF) version.

S.M. 2018, c. 13

Bill 18, 3 rd Session, 41st Legislature

The Child and Family Services Amendment Act (Taking Care of Our Children)

Explanatory Note

This note is a reader's aid and is not part of the law.

Customary care is care provided to children in a way that recognizes and reflects the unique customs of the children's 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.

The Child and Family Services Act is amended to establish a legislative basis for supporting the provision of customary care to Indigenous children through agreements and living arrangements.

Before providing customary care supports and services, agencies must make arrangements with Indigenous communities to work together to provide customary care.

Other amendments that support customary care include

  • expanding the Declaration of Principles and the factors for determining the best interests of the child to better reflect the importance of customary care for Indigenous children and families; and
  • requiring that notice of a court proceeding relating to a Metis child be given to the Metis agency responsible for serving the child, in the same way that notice respecting a First Nations child is given to the agency serving the child's First Nation.

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

(Assented to June 4, 2018)

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 Declaration of Principles is amended

(a) in the English version of principle 11, by striking out "aboriginal" and substituting "Indigenous"; and

(b) by adding the following after principle 11:

And in the provision of services to Indigenous children and families, these guiding principles are founded on the recognition of Indigenous children's fundamental need to maintain their cultural identity and connections to their Indigenous communities and the necessity of ensuring, wherever possible, the customary involvement of Indigenous communities in caring for their children.

3           Subsection 1(1) is amended

(a) in clause (c) of the definition "agency", by adding "mandated under subsection 6.1(1)" at the end; and

(b) by adding the following definitions:

"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 Part I.3; (« 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" includes First Nation, Metis and Inuit; (« autochtone »)

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

4           Subsection 2(1) is amended by striking out "and" at the end of clause (g ), adding "and" at the end of clause (h) and adding the following after clause (h):

(i) in respect of an Indigenous child, the fundamental need to maintain the child's cultural identity and connections to the child's Indigenous community.

5           Clause 4(2)(a) is amended by adding "a customary care home, or" before "a child care facility".

6           Subsection 7(1) is amended by adding the following before clause (m):

(l.1) further the provision of customary care to Indigenous children served by the agency;

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

8           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 must report the incident in accordance with this Part.

9(1)        Section 8.17 is amended by striking out "section 8.16" wherever it occurs and substituting "subsection 8.16(1)".

9(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

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

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

10          The following is added after section 8.23:

PART I.3

CUSTOMARY CARE

CUSTOMARY CARE AGREEMENTS

Customary care agreement

8.24(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 child's Indigenous community in planning and providing customary care.

Parties to customary care agreement

8.24(2)     The following must be parties to a customary care agreement:

(a) the Indigenous child's parent or guardian;

(b) the agency serving the child;

(c) if the agreement provides that the child is to reside with a customary caregiver, the caregiver.

Other parties to agreement

8.24(3)     Any other person may be a party to a customary care agreement under subsection (1), including a representative of the child's Indigenous community.

Notifying Indigenous community

8.24(4)     When a parent or guardian of an Indigenous child has expressed an interest in entering into a customary care agreement, the agency serving the child must notify representatives of the child's Indigenous community if the parent or guardian has given consent to do so.

Agreement by minor parent valid

8.24(5)     A customary care agreement under subsection (1) is valid notwithstanding that a parent entering into the agreement is a minor.

Consideration of Indigenous child's views

8.24(6)     When entering into a customary care agreement, the parties

(a) must consider the views and preferences of an Indigenous child 12 years of age or older; and

(b) may consider the views and preferences of an Indigenous child under 12 years of age.

Best interests criteria to apply

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

Written agreement

8.26(1)     A customary care agreement must be in writing and must contain the terms agreed to by the parties.

Contents of agreement

8.26(2)     The terms of a customary care agreement must set out the following:

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

(b) the plan for ensuring the child's safety and security;

(c) the process for resolving issues or concerns arising under or in relation to the agreement.

Additional terms

8.26(3)     A customary care agreement may contain any additional terms agreed to by the parties.

Copy of agreement to be given

8.27(1)     An agency must give a copy of a customary care agreement to the agency's mandating authority.

Notice when agreement ends

8.27(2)     When a customary care agreement ends, the agency must notify the agency's mandating authority.

ARRANGEMENTS WITH INDIGENOUS COMMUNITIES

Arrangements with Indigenous communities

8.28(1)     Before participating in planning or providing supports and services under this Part, an agency must make arrangements to work with the child's Indigenous community to give effect to the community's unique approach to customary care.

Arrangements may be general or specific

8.28(2)     Arrangements made for the purpose of this section may

(a) take the form of a procedure or policy that applies generally to the Indigenous community's children; or

(b) apply to a particular customary care agreement.

Arrangements that apply generally

8.28(3)     If the agency and Indigenous community make arrangements that apply generally, the arrangements must address how the agency determines which community representatives must be notified for the purpose of subsection 8.24(4).

Determining child's Indigenous community

8.28(4)     For the purpose of this Part, a child's Indigenous community is

(a) an Indian band as defined in the Indian Act (Canada), if the child is, or is entitled to be, a member of the band;

(b) the Manitoba Metis Federation Inc., if the child's parent or guardian is a member of the Manitoba Metis Federation Inc. or has requested its participation in planning or providing customary care for the child;

(c) an Inuit community identified by the child's parent or guardian; and

(d) in all other circumstances, the Indigenous community identified by the child's parent or guardian.

CUSTOMARY CARE HOMES

Residing in customary care home

8.29(1)     The parties to a customary care agreement may agree that an Indigenous child is to reside with a customary caregiver in a customary care home.

Requirements

8.29(2)     An agency must ensure that the customary caregiver and the customary care home meet the safety standards and other requirements set out in the regulations.

Not a foster home

8.29(3)     For certainty, a customary care home is not a foster home.

OTHER MATTERS

Role of authority re customary care

8.30        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.

Review by authority

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

Application of Parts II and III

8.32        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.

11          Subsection 30(1) is amended by striking out "and" at the end of clause (d), adding "and" at the end of clause (e) and adding the following after clause (e):

(f) the agency mandated to provide services to Metis people in the area where the child resides, if the agency making the application has reason to believe that the child is Metis;

12          Subsection 38(8) is amended by striking out "and" at the end of clause (e) and adding the following after clause (e):

(e.1) the agency mandated to provide services to Metis people in the area where the child resides, if the child is Metis; and

13          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.

14(1)       The following is added after clause 76(3)(d.2):

(d.3) where the disclosure or communication is required for the purpose of planning or providing customary care; or

14(2)       Subsection 76(14) is amended in the part before clause (a) by adding "an Indigenous child who resides in a customary care home," after "ward,".

15          Subsection 77(2) is amended by striking out "and" at the end of clause (c.2) and adding the following after clause (c.2):

(c.3) the agency mandated to provide services to Metis people in the area where the child resides, if the person making the application has reason to believe that the child is Metis; and

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

(k.3) respecting the form and content of customary care agreements;

(k.4) respecting the supports and services that may be provided under customary care agreements;

(k.5) respecting the arrangements between agencies and Indigenous communities referred to in section 8.28;

(k.6) respecting safety standards and other requirements for customary care homes and authorizing an agency to waive or vary those requirements and prescribing conditions for doing so;

(k.7) respecting safety standards and other requirements for customary caregivers and other persons who provide supports and services under customary care agreements 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;

Consequential amendment, C.C.S.M. c. C90

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

(n.1) supervise agencies and receive and disburse money as required by section 8.30 of The Child and Family Services Act (role of authority re customary care);

Coming into force

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