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5th Session, 42nd Legislature

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Bill 32

AN ACT RESPECTING CHILD AND FAMILY SERVICES (INDIGENOUS JURISDICTION AND RELATED AMENDMENTS)


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

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

PART 1

THE CHILD AND FAMILY SERVICES ACT

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

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

2   Subsection 1(1) is amended 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 section 13.3; (« entente de 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 »)

"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 »)

"family support agreement" means an agreement that meets the requirements of section 13.1; (« entente de soutien familial »)

"kinship care" means care provided under a kinship care agreement within the child's community with the participation of the child's family or persons who have significant relationships with the child or with the child's parent or guardian; (« soins offerts par un membre de la famille élargie »)

"kinship care agreement" means an agreement that meets the requirements of section 13.2; (« entente de soins offerts par un membre de la famille élargie »)

"kinship caregiver" means a person, other than the child's parent or guardian, who has entered into a kinship care agreement that provides for a child to reside with the person; (« membre de la famille élargie offrant des soins »)

"kinship care home" means a home or other place where one or more children reside with a kinship caregiver under a kinship care agreement; (« foyer d'un membre de la famille élargie offrant des soins »)

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

3   Section 2 is replaced with the following:

PART I

INTERPRETATION

Purpose of Act

2   The purpose of this Act is to support the safety, security and well-being of children through the provision of services that are designed to preserve, sustain and restore families in the least disruptive manner possible.

Principle of the best interests of the child

2.1(1)   This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

Primary consideration for provision of services

2.1(2)   The best interests of the child must be a primary consideration in making decisions or taking of actions in the context of the provision of child and family services.

Paramount consideration for apprehension

2.1(3)   The best interests of the child must be the paramount consideration in making decisions or taking of actions related to the apprehension of a child.

Factors to be considered

2.1(4)   When the best interests of a child are being considered, primary consideration must be given to the child's physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child,

(a) of having an ongoing relationship with their family;

(b) if the child is Indigenous, of having an ongoing relationship with the Indigenous group, community or people to which the child belongs; and

(c) of preserving the child's connections to their culture.

Other factors for consideration

2.1(5)   When the best interests of a child are being considered, all factors related to the circumstances of the child must be considered, including

(a) the child's cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(c) the nature and strength of the child's relationship with their parent, their guardian, the person with primary responsibility for the child's day-to-day care and any member of the child's family who plays an important role in their life;

(d) if the child is Indigenous, the importance to the child of preserving the child's cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) if the child is not Indigenous, the importance to the child of preserving the child's cultural identity and connections to the child's language and to the child's ethnic or cultural community;

(f) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(g) if the child is Indigenous, any plans for the child's care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(h) if the child is not Indigenous, any plans for the child's care, including care in accordance with the customs or traditions of the child's ethnic or cultural community;

(i) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(j) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Principle of substantive equality

2.2   This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts:

(a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child's participation, to the same extent as other children, in the activities of their family or the group, community or people to which the child belongs;

(b) a child must be able to exercise their rights under this Act, including the right to have their views and preferences considered in decisions that affect them, and the child must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(c) a child's family member must be able to exercise their rights, including the right of an Indigenous child's family to have their views and preferences considered in decisions that affect them, and the family member must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(d) if the child is Indigenous, the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people;

(e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.

Principle of Indigenous cultural continuity

2.3   In the context of providing child and family services in relation to an Indigenous child, this Act is to be interpreted and administered in accordance with the principle of Indigenous cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of an Indigenous child, the child's family and their Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of an Indigenous group, community or people is integral to cultural continuity;

(c) an Indigenous child's best interests are often promoted when the child resides with members of their family and the culture of the Indigenous group, community or people to which the child belongs is respected;

(d) child and family services are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which an Indigenous child belongs or to the destruction of the culture of that group, community or people;

(e) the characteristics and challenges of the region in which an Indigenous child, their family or an Indigenous group, community or people is located are to be considered.

PART I.0.1

SERVICE DELIVERY

General principles

2.4   Services under this Act are to be provided in a manner that

(a) takes into account the child's needs, including with respect to the child's physical, emotional and psychological safety, security and well-being;

(b) takes into account the child's ethnicity and culture;

(c) allows the child to know their family origins; and

(d) promotes substantive equality between the child and other children.

Preventive care

2.5   In the context of providing child and family services in relation to a child, to the extent that providing a service that promotes preventive care to support the child's family is consistent with the best interests of the child, the provision of that service is to be given priority over other services.

Prenatal care

2.6   To the extent that providing a prenatal service that promotes preventive care is consistent with what will likely be in the best interests of a child after the child is born, the provision of that service is to be given priority over other services in order to prevent the apprehension of the child at the time of the child's birth.

Placement priority

2.7(1)   The placement of a child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child's parents;

(b) with another adult member of the child's family;

(c) if the child is Indigenous, with an adult who belongs to the same Indigenous group, community or people as the child;

(d) if the child is Indigenous, with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs;

(e) if the child is not Indigenous, with an adult who belongs to the same ethnic or cultural community as the child;

(f) with any other adult.

Placement with or near other children

2.7(2)   When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child's family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.

Customs and traditions

2.7(3)   The placement of a child under subsection (1) must take into account the following:

(a) if the child is Indigenous, the customs and traditions of the Indigenous group, community or people to which the child belongs, such as with regard to customary adoption;

(b) if the child is not Indigenous, the customs and traditions of the child's ethnic or cultural community.

Family unity

2.7(4)   In the context of providing child and family services in relation to a child, there must be a reassessment, conducted on an ongoing basis, of whether it would be appropriate to place the child with

(a) a person referred to in clause (1)(a), if the child does not reside with such a person; or

(b) a person referred to in clause (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in clause (1)(a).

Attachment and emotional ties

2.7(5)   In the context of providing child and family services in relation to a child, if the child is not placed with a member of their family in accordance with clause (1)(a) or (b), to the extent that doing so is consistent with the best interests of the child, the child's attachment and emotional ties to each such member of their family are to be promoted.

Interpretation — "family"

2.7(6)   In this section, "family" means family as defined in subsection 1(1) and includes a person whom the child or the child's parent or guardian considers to be a close relative and, if the child is Indigenous, whom the child's Indigenous group, community or people considers, in accordance with the customs, traditions or customary adoption practices of that Indigenous group, community or people, to be a close relative of the child.

Child 12 years of age to be advised

2.8(1)   In any court proceeding under this Act, a child 12 years of age or older is entitled to be advised of the proceedings and of their possible implications for the child and the child shall be given an opportunity to make their views and preferences known to a judge or master making a decision in the proceedings.

Child's views may be considered

2.8(2)   In any court proceeding under this Act, a judge or master who is satisfied that a child less than 12 years of age is able to understand the nature of the proceedings and is of the opinion that it would not be harmful to the child, may consider the views and preferences of the child.

Notice to be provided re Indigenous child

2.9(1)   In the context of providing child and family services in relation to an Indigenous child, to the extent that doing so is consistent with the best interests of the child, before taking any significant measure in relation to the child, the agency must provide notice of the measure to

(a) the child's parent and the care provider; and

(b) the Indigenous governing body that acts on behalf of the Indigenous group, community or people to which the child belongs and that has informed the agency that they are acting on behalf of that Indigenous group, community or people.

Representation and party status

2.9(2)   In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child,

(a) the child's parent and the care provider have the right to make representations and to have party status; and

(b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations.

Definition — "care provider"

2.9(3)   In this section, "care provider" means a person who has primary responsibility for providing the day-to-day care of the child, other than the child's parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs, but does not include a foster parent.

4   Part I is renumbered as Part I.0.2.

5   Subsection 4(1) is amended

(a) in subclause (d)(i) of the English version, by striking out "his or her" and substituting "the child's"; and

(b) by adding the following after clause (h):

(h.1) receive and disburse moneys in respect of agreements made under Part II, including moneys payable for the maintenance of a child;

6   Clause 4.1(5)(b) of the English version is amended by striking out "his or her" and substituting "the administrator's".

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

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

(l.2) further the provision of customary care to Indigenous children served by the agency;

8(1)   Subsection 8(3) of the English version is amended by striking out "his or her" and substituting "the director's".

8(2)   Subsection 8(10) of the English version is amended by striking out "him or her" and substituting "the provisional administrator".

9   Section 8.15 is amended

(a) in the part before clause (a) of the definition "critical incident", by adding "or young adult" after "child";

(b) by adding the following definition:

"young adult" means a person 18 years of age or older but under 21 years of age. (« jeune adulte »)

(c) in the French version, by repealing the definition "rapport d'incident critique";

(d) by repealing the definition "mandating authority"; and

(e) in the French version, by adding the following definition:

« signalement d'un incident critique » Le signalement d'un incident critique prévu à l'article 8.16. ("critical incident report")

10   The following is added after section 8.15:

Application

8.15.1   This Part does not apply to a critical incident resulting in the death or serious injury of an Indigenous child or young adult if, at the time of the death or serious injury, an Indigenous law governed the provision of child and family services in relation to the child or young adult.

11   Section 8.16 is replaced with the following:

General duty to report

8.16   A person who provides work or services to an agency or authority — whether as an employee, volunteer, student trainee, foster parent, operator of a child care facility or in any other capacity — or who provides care, supports or services under a family support agreement, kinship care agreement or customary care agreement must report a critical incident that they reasonably believe has occurred in any place, including a place of safety. The report must be made in accordance with this Part.

12(1)   Subsection 8.17(1) is replaced with the following:

Report — general rule

8.17(1)   Subject to subsections (2) to (4), a person who has a duty to report a critical incident under section 8.16 must report the incident

(a) to the agency that was responsible for the care of the child or that provided services to the child, young adult or family within one year before the death or serious injury; or

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

12(2)   Subsections 8.17(2) and (3) of the French version are amended

(a) in the section heading, by striking out "Rapport" and substituting "Signalement"; and

(b) in the part before clause (a), by striking out "en font rapport" and substituting "le font".

12(3)   The following is added after subsection 8.17(3):

Report by person providing care, supports or services under agreement

8.17(4)   A person who has a duty to report a critical incident under section 8.16 respecting a child who is the subject of a family support, kinship care or customary care agreement under which the person provides care, supports or services must report the incident

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

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

13   Section 8.18 of the French version is amended, in the part before clause (a), by striking out "un rapport d'incident" and substituting "le signalement d'un incident".

14   The French version of the centred heading before section 8.19 is amended by striking out "RAPPORTS" and substituting "SIGNALEMENTS".

15(1)   Subsection 8.19(1) of the French version is amended

(a) in the section heading, by striking out "de la présentation du rapport d'incident" and substituting "du signalement d'un incident"; and

(b) by striking out "en font rapport" and substituting "le font".

15(2)   Subsection 8.19(2) of the French version is amended in the section heading and the section by striking out "rapport d'incident" and substituting "signalement d'un incident".

16   Section 8.20 of the French version is amended by striking out "un rapport d'incident" and substituting "le signalement d'un incident".

17   Section 8.21 of the French version is amended

(a) in the section heading, by striking out "rapports" and substituting "signalements"; and

(b) by striking out "un rapport d'incident" and substituting "le signalement d'un incident".

18   Section 8.22 of the French version is amended

(a) in the section heading, by striking out "Rapport" and substituting "Signalement"; and

(b) by striking out "fournir un rapport d'incident critique" and substituting "signaler les incidents critiques".

19   Section 12 of the French version is amended by striking out "d'un contrat passé" and substituting "d'une entente conclue".

20   Subsection 13(5) of the French version is amended

(a) in the section heading, by striking out "Contrat" and substituting "Entente";

(b) in clause (a), by striking out "passer, avec les parents ou le tuteur, un contrat relatif" and substituting "conclure, avec les parents ou le tuteur, une entente relative"; and

(c) in clause (b),

(i) by striking out "le contrat passé" and substituting "l'entente conclue", and

(ii) by striking out "du contrat" and substituting "de l'entente".

21   The following is added after section 13:

FAMILY SUPPORT AGREEMENTS

Purpose

13.1(1)   The purpose of a family support agreement is to establish the basis for planning and delivering supports that meet the needs of a child and their family.

Family support agreement

13.1(2)   An agency may enter into a family support agreement with a parent, guardian or other person who has actual care and control of a child to make provision for one or more of the following:

(a) a service described in section 9, 10, 12 or 13;

(b) financial assistance;

(c) an item or resource that would meet one or more of the child's needs;

(d) a service to support the child in their home;

(e) a service to prepare for and facilitate the child's return home while the child is in an out-of-home placement;

(f) a service to support the child and their family when the child has returned home from an out-of-home placement or from any other living arrangement.

KINSHIP CARE AGREEMENTS

Purpose

13.2(1)   The purpose of a kinship care agreement is to establish the basis for planning and delivering care to a child that is provided within the child's community with the participation of the child's family or persons who have significant relationships with the child or with the child's parent or guardian.

Kinship care agreement

13.2(2)   An agency may enter into a kinship care agreement with a parent or guardian of a child to make provision for the child to reside with

(a) an adult member of the child's family; or

(b) an adult who has a significant relationship with the child or with the child's parent or guardian.

Parties to kinship care agreement

13.2(3)   The following must be parties to a kinship care agreement:

(a) the child's parent or guardian;

(b) the agency serving the child;

(c) the kinship caregiver.

Agreement may include other supports

13.2(4)   A kinship care agreement may make provision for one or more supports available under subsection 13.1(2).

Content of kinship care agreement

13.2(5)   The terms of a kinship care agreement must set out the following:

(a) the child's name and date of birth;

(b) the place where the child is to reside;

(c) the name of the kinship caregiver;

(d) a description of the kinship caregiver's role and responsibilities;

(e) a description of the role and responsibilities of the child's parent or guardian;

(f) the person or persons who are responsible for making decisions respecting the child;

(g) if a support available under subsection 13.1(2) is to be provided, the type of support;

(h) a description of the agency's role and responsibilities;

(i) the process for resolving issues or concerns arising under or in relation to the agreement;

(j) the duration of the agreement.

Views of child

13.2(6)   When entering into a kinship care agreement, the parties must consider the views and preferences of the child.

CUSTOMARY CARE AGREEMENTS

Purpose

13.3(1)   The purpose of a customary care agreement is to establish the basis for planning and delivering care to an Indigenous child that recognizes the needs and the cultural identity of the child and reflects the unique customs of the Indigenous group, community or people to which the child belongs.

Customary care agreement

13.3(2)   An agency may enter into a customary care agreement with a parent or guardian of an Indigenous child for the purpose of

(a) providing customary care for the child, including, if applicable, having the child reside in a customary care home; and

(b) recognizing the role of the child's Indigenous group, community or people in planning and providing customary care.

Parties to customary care agreement

13.3(3)   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.

Agreement may include other supports

13.3(4)   A customary care agreement may make provision for one or more supports available under subsection 13.1(2).

Content of customary care agreement

13.3(5)   The terms of a customary care agreement must set out the following:

(a) the child's name and date of birth;

(b) the place where the child is to reside;

(c) the name of the customary caregiver;

(d) a description of the customary caregiver's role and responsibilities;

(e) a description of the role and responsibilities of the child's parent or guardian;

(f) the person or persons who are responsible for making decisions respecting the child;

(g) if a support available under subsection 13.1(2) is to be provided, the type of support;

(h) a description of the agency's role and responsibilities;

(i) the process for resolving issues or concerns arising under or in relation to the agreement;

(j) the duration of the agreement.

Views of child

13.3(6)   When entering into a customary care agreement, the parties must consider the views and preferences of the child.

VOLUNTARY CARE AGREEMENTS

Purpose

13.4(1)   The purpose of a voluntary care agreement is to establish the basis for planning and delivering care to a child outside the child's home.

Voluntary care agreement

13.4(2)   An agency may enter into a voluntary care agreement with a parent, guardian or other person who has actual care and control of a child to make provision for the child to reside in a placement outside the child's home if

(a) the parent, guardian or other person is unable to make adequate provision for the child; or

(b) the child is in need of protection.

Parties to voluntary care agreement

13.4(3)   The following must be parties to a voluntary care agreement:

(a) the parent, guardian or other person who has care and control of the child;

(b) the agency serving the child.

Content of voluntary care agreement

13.4(4)   The terms of a voluntary care agreement must set out the following:

(a) the child's name and date of birth;

(b) the place where the child is to reside;

(c) the person or persons who are responsible for making decisions respecting the child;

(d) a description of the agency's role and responsibilities;

(e) the process for resolving issues or concerns arising under or in relation to the agreement;

(f) the duration of the agreement.

Views of child

13.4(5)   When entering into a voluntary care agreement, the parties must consider the views and preferences of the child.

COMMON REQUIREMENTS FOR AGREEMENTS

Application

13.5(1)   This section applies to the following agreements:

(a) a family support agreement;

(b) a kinship care agreement;

(c) a customary care agreement;

(d) a voluntary care agreement.

Written agreements

13.5(2)   An agreement must be in writing.

Copy of agreement to be given

13.5(3)   An agency must give a copy of an agreement to

(a) each party to the agreement; and

(b) its mandating authority.

Review of agreement

13.5(4)   The agency must review an agreement with every party to the agreement

(a) at least once every 365 days;

(b) if the agreement has a specified duration, at least 30 days before the agreement expires; and

(c) on request by a party to the agreement.

Ending an agreement

13.5(5)   An agreement or a renewal of an agreement may be ended at any time by a party to the agreement.

End of agreement at age of majority

13.5(6)   An agreement ends on the day on which the child reaches the age of majority.

Authority to be informed when agreement ends

13.5(7)   On the ending of an agreement, the agency must inform its mandating authority that the agreement has ended.

Application of Part III

13.6   The fact that a child is receiving supports and services under an agreement made under this Part does not prevent

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

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

22   Section 14 is repealed.

23(1)   Subsection 15(1) is amended by striking out "or 14" and substituting ", 13.1, 13.2, 13.3 or 13.4".

23(2)   Subsection 15(2) is amended by striking out "12, 13 or 14" and substituting "12 or 13".

23(3)   Subsection 15(3.4) of the English version is amended, in the part before clause (a), by striking out "he or she" and substituting "the judge".

23(4)   Subsection 15(3.5) is amended

(a) by striking out "section 12," and substituting "section 12 or"; and

(b) by striking out ", or the date of the placement of the child under section 14".

23(5)   Subsection 15(4) is amended

(a) by striking out "12, 13 or 14" and substituting "12 or 13"; and

(b) in the English version, by striking out "him or her" and substituting "the director".

24   The following is added after section 15:

Confirmation of decision-making responsibility

15.1(1)   The purpose of this section is to facilitate confirmation that a person other than a parent or guardian is responsible for making decisions in respect of a child under an agreement made under this Act.

Request made to agency

15.1(2)   On request by a person who is not a child's parent or guardian, and subject to the regulations, an agency that is a party to an agreement under this Act may provide a written statement confirming that the person making the request is responsible for making decisions in respect of the child, including in relation to the child's health or education.

Form and content of request

15.1(3)   The request must be submitted in the form and contain the information that the agency requires.

Statement

15.1(4)   The statement must be signed by a representative of the agency and specify the following information:

(a) the name of the person who is responsible for making decisions in respect of the child;

(b) the child's name and date of birth;

(c) the nature of the person's decision-making responsibility under the agreement;

(d) any conditions that apply to the person's exercise of the responsibility under the agreement;

(e) the name and contact information for the representative of the agency;

(f) any other information required by the regulations.

25   The centred heading "VOLUNTARY SURRENDER OF GUARDIANSHIP" is added before section 16.

26(1)   Subsection 16(8) of the English version is amended by striking out "him or her" and substituting "the director".

26(2)   Subsection 16(13) of the English version is amended by striking out "his or her" and substituting "their".

27   Subsection 17(3) is replaced with the following:

Socio-economic conditions not determinative

17(3)   To the extent that it is consistent with the best interests of the child, a child must not be found to be in need of protection solely on the basis of their socio-economic conditions, including poverty, lack of adequate housing or infrastructure or the state of health of their parent or of their care provider as defined in subsection 2.9(3).

28   Subsection 18.2(1) of the English version is amended by striking out "his or her" and substituting "their".

29(1)   Subsection 20(1) is amended

(a) by adding "or Indigenous service provider" after "An agency"; and

(b) by adding "or Indigenous service provider" after "the agency".

29(2)   Subsection 20(2) is amended

(a) in the part before clause (a), by adding "or Indigenous service provider" after "the agency"; and

(b) by replacing clause (d) with the following:

(d) if the child is Indigenous, the agency or Indigenous service provider serving the child's Indigenous group, community or people;

29(3)   Subsection 20(6) is amended, in the part before clause (a), by adding "or the Indigenous service provider" after "the agency".

29(4)   Subsection 20(7) is amended by adding "or Indigenous service provider" after "agency".

30(1)   Clause 21(2)(b) of the English version is replaced with the following:

(b) that a child who is unable to look after and care for themselves has been left without any responsible person to care for them;

30(2)   The following is added after subsection 21(5):

Consistency with child's best interests and section 21.1

21(6)   A child must be apprehended under this section only if doing so is consistent with the best interests of the child and section 21.1 (apprehension of Indigenous child living with family).

31   The following is added after section 21:

Apprehension of Indigenous child living with family

21.1   Unless immediate apprehension is consistent with the best interests of the child, before apprehending an Indigenous child who resides with one of the child's parents or another adult member of the child's family, as defined in subsection 2.7(6), the director or agency must demonstrate that the director or agency made reasonable efforts to have the child continue to reside with that parent or family member.

32(1)   Clause 30(1)(e) is replaced with the following:

(e) if the child is Indigenous, the agency or Indigenous service provider serving the child's Indigenous group, community or people;

32(2)   Clause 30(3)(b) is replaced with the following:

(b) in the case of the agency or Indigenous service provider serving the child's Indigenous group, community or people, either by delivery to an officer of that agency or Indigenous service provider or by registered mail addressed to the head office of that agency or Indigenous service provider.

33   Subsection 33(2) is replaced with the following:

Presence of child 12 or over required

33(2)   In proceedings under this Part, the presence of a child 12 years of age or older is required unless a judge or master

(a) is satisfied that independent legal counsel has explained the child's rights in the proceeding to the child and is able to advise the court respecting the child's views and preferences; or

(b) on application, orders that the child not be present.

34   Clause 34(3)(d) of the English version is amended by striking out "his or her" and substituting "their".

35   Clause 37(1)(a) of the English version is amended by striking out "his or her" and substituting "the judge's or master's".

36(1)   Subsection 38(1) is amended

(a) by replacing clauses (b) and (c) with the following:

(b) that the child be placed with a person other than an agency that the judge considers best able to care for the child, with or without transfer of guardianship to that person, and subject to the conditions and for the period the judge considers necessary; or

(c) that the agency be appointed the temporary guardian of a child for a period not exceeding 24 months; or

(b) by repealing clauses (d) and (e).

36(2)   Subsection 38(3) is amended by striking out "clause (1)(b), (c), (d) or (e)" and substituting "clause (1)(b) or (c)".

36(3)   Subsection 38(7) is amended by adding "and if doing so is consistent with the best interests of the child," after "protection,".

36(4)   Clause 38(8)(e) is replaced with the following:

(e) the agency or Indigenous service provider serving the child's Indigenous group, community or people, if applicable; and

37   Subsection 39(1) is amended by striking out "clause 38(1)(b), (c), (d) or (e)" and substituting "clause 38(1)(b) or (c)".

38   Subsection 40(1) is amended by striking out "clause 38(1)(a), (b), (c), (d) or (e)" and substituting "clause 38(1)(a), (b) or (c)".

39   Section 41 is replaced with the following:

Extension of temporary guardianship

41   A judge may extend an order of temporary guardianship for a period not exceeding 24 months. An order of temporary guardianship may be extended one or more times.

40   Clause 45(4)(b) is amended by striking out "clause 38(1)(a), (b), (c), (d) or (e)" and substituting "clause 38(1)(a), (b) or (c)".

41(1)   Subsection 51(2) is repealed.

41(2)   Subsection 51(3) is amended

(a) by adding "in accordance with the regulations" after "object"; and

(b) by adding "in accordance with the regulations" after "matter".

41(3)   Subsection 51(4) is amended, in the part before clause (a), by striking out "promptly" and substituting "in the manner and within the time period set out in the regulations".

41(4)   Subsections 51(5) and (6) are repealed.

41(5)   Subsection 51(7) is amended by striking out "appeals" and substituting "reviews under subsection (3) and reconsiderations under subsection (4)".

42(1)   The following is added after subclause 76(3)(d.2):

(d.3) where the disclosure or communication is required for the purpose of planning for or providing care, supports or services under a family support, kinship care, customary care or voluntary care agreement; or

42(2)   Clause 76(4)(a) of the English version is amended by striking out "his or her" and substituting "their".

42(3)   Subsection 76(14) is amended, in the part before clause (a),

(a) by striking out ", or a child placed under an agreement referred to in section 14,"; and

(b) by striking out "or placement".

42(4)   Subsection 76(20) of the English version is amended by striking out "his or her" and substituting "their".

43   Clause 77(2)(c.2) is replaced with the following:

(c.2) if the child is Indigenous, the agency or Indigenous service provider serving the child's Indigenous group, community or people; and

44   Subsection 78(4.2) is amended, in the part before clause (a), by striking out "subsection 2(1)" and substituting "section 2.1".

45   Section 86 is amended

(a) by adding the following after clause (a):

(a.1) respecting notices under subsection 2.9(1), including the form and manner in which a notice is given;

(a.2) defining "significant measure" for the purpose of subsection 2.9(1);

(b) in clause (k.2) of the French version, by striking out "rapports" and substituting "signalements";

(c) by adding the following after clause (k.2):

(k.3) respecting the supports and services that may be provided under family support, kinship care, customary care and voluntary care agreements;

(k.4) respecting safety standards and other requirements for kinship care homes and customary care homes and authorizing an agency to waive or vary those requirements and prescribing conditions for doing so;

(k.5) respecting safety standards and other requirements for kinship caregivers, customary caregivers and other persons who provide supports and services under kinship care agreements and customary care agreements, and authorizing an agency to waive or vary those requirements and prescribing conditions for doing so;

(k.6) respecting the form and content of an agreement made under Part II;

(d) by adding the following after clause (m):

(m.1) respecting requests and statements under section 15.1, including information that must be included in a statement and the form a statement must take;

TRANSITIONAL PROVISIONS

Definition

46(1)   In this section, "former Act" means The Child and Family Services Act as it read immediately before the coming into force of this Act.

Voluntary placement agreements

46(2)   A voluntary placement agreement under section 14 of the former Act that is made before the coming into force of section 22 of this Act continues to be in force according to its terms.

Independent appeal by foster parent

46(3)   A foster parent is entitled to an independent appeal under subsection 51(5) of the former Act only if the foster parent had asked the appropriate authority to reconsider the matter under subsection 51(4) of the former Act before the coming into force of section 41 of this Act.

Voluntary placement agreement — closed records

46(4)   Subsection 76(14) of the former Act applies in respect of a child who was placed under an agreement referred to in section 14 of the former Act before the coming into force of subsection 42(3) of this Act.

CONSEQUENTIAL AMENDMENTS

S.M. 2018, c. 13 (unproclaimed Act repealed)

47   The Child and Family Services Amendment Act (Taking Care of Our Children), S.M. 2018, c. 13, is repealed.

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

48   Section 19 of The Child and Family Services Authorities Act is amended

(a) in clause (e), by striking out "Part I" and substituting "Part I.0.2"; and

(b) by adding the following after clause (n):

(n.1) supervise agencies in respect of agreements made under Part II of The Child and Family Services Act, and receive and disburse moneys in respect of those agreements;

PART 2

THE ADVOCATE FOR CHILDREN AND YOUTH ACT

C.C.S.M. c. A6.7 amended

49   The Advocate for Children and Youth Act is amended by this Part.

50   Section 1 is amended

(a) in the part before clause (a) of the definition "designated service", by adding ", subject to section 1.1," after "means"; and

(b) by adding the following definitions:

"Indigenous governing body" means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982. (« corps dirigeant autochtone »)

"Indigenous law" means one or more provisions respecting child and family services that are contained in a law in respect of which information has been posted on a website in accordance with paragraph 25(c) of An Act respecting First Nations, Inuit and Métis children, youth and families (Canada). (« texte autochtone »)

51   The following is added after section 1:

Interpretation — child and family services under Indigenous law

1.1   Child and family services that are provided under an Indigenous law are not included in any of the services referred to in the definition "designated service" and must not be described in regulations for the purposes of clause (b) or (i) of that definition.

52   Subsection 18(4) is amended by striking out "in another province or territory" and substituting "that carries out their responsibilities in another province or territory or under an Indigenous law,".

53   The following is added after section 20:

Exception in relation to Indigenous law

20.1(1)   Despite section 20 but subject to subsection (2), the Advocate is not authorized to review a serious injury to or death of a child or young adult if

(a) the only services that could give rise to a review under section 20 were provided under The Child and Family Services Act; and

(b) an Indigenous law governed the provision of child and family services in relation to the child or young adult at the time of the serious injury or death.

If Indigenous governing body agrees to review

20.1(2)   The Advocate may review a serious injury or death in the circumstances referred to in subsection (1) if

(a) the services under The Child and Family Services Act were provided at the request or with the agreement of the Indigenous governing body for the Indigenous group, community or people that made the Indigenous law, or a person or entity providing services under the Indigenous law; and

(b) the Indigenous governing body for the Indigenous group, community or people that made the Indigenous law agrees to the review.

54   Subclause 27(2)(a)(ii) is amended by adding "providing a designated service" after "any other public body or person".

55   The following is added after subsection 28(2):

Interpretation

28(3)   For greater certainty, the Advocate is not authorized under this section to investigate an injury or death that the Advocate would not be authorized to review under this Part.

Collaboration with review or investigation under Indigenous law

28.1(1)   The Advocate may conduct a review or investigation under this Act of a reviewable service provided under The Child and Family Services Act in collaboration with any of the following:

(a) an advocate or representative for children and youth acting under an Indigenous law;

(b) a person or entity providing services under an Indigenous law;

(c) an Indigenous governing body.

Circumstances where collaboration permitted

28.1(2)   The Advocate may conduct the review or investigation in collaboration with a person or entity referred to in subsection (1) only if

(a) the child or young adult was receiving services under an Indigenous law at the time of the serious injury or death or in the year before the serious injury or death; and

(b) an Indigenous law authorizes the person or entity with whom the Advocate is to collaborate to review or investigate the serious injury or death.

Agreement required

28.1(3)   Before collaborating under this section with a person or entity referred to in subsection (1), the Advocate must enter into a written agreement with that person or entity to do so.

56   The following is added after clause 38(d):

(d.1) for the purpose of section 28.1, respecting collaborating on the conduct of reviews and investigations, including the form and content of agreements;

CONSEQUENTIAL AMENDMENT

S.M. 2017, c. 8 (unproclaimed provision amended)

57   The following is added after subsection 21(4) of The Advocate for Children and Youth Act, S.M. 2017, c. 8:

Interpretation

21(5)   When applying this section, section 20 is to be interpreted as being subject to section 20.1.

PART 3

THE PROVINCIAL COURT ACT

C.C.S.M. c. C275 amended

58   The Provincial Court Act is amended by this Part.

59   The following is added before section 16 as part of Part III:

Overview

15.1   This Part sets out the jurisdiction of the Provincial Court (Family Division) to hear and determine family proceedings brought under a provincial or federal enactment or under an Indigenous law as defined in this Part.

Definitions

15.2   The following definitions apply in this Part.

"designated mediator" has the same meaning as in subsection 41(1) of The Court of King's Bench Act. (« médiateur désigné »)

"family evaluator" has the same meaning as in subsection 41(1) of The Court of King's Bench Act. (« enquêteur familial »)

"family proceeding" means a family proceeding as defined in subsection 41(1) of The Court of King's Bench Act and interpreted in accordance with subsection 41(2) of that Act, where The Provincial Court (Family Division) has jurisdiction. (« instance en matière familiale »)

"Indigenous law" means one or more provisions respecting child and family services that are contained in a law in respect of which information has been posted on a website in accordance with paragraph 25(c) of An Act respecting First Nations, Inuit and Métis children, youth and families (Canada). (« texte autochtone »)

60   The following is added after section 19:

Jurisdiction under Indigenous law

19.1(1)   The Provincial Court (Family Division) has jurisdiction to hear and determine a family proceeding brought under an Indigenous law if the Indigenous law authorizes it to do so — referred to in this section as an "Indigenous family proceeding".

No effect on other jurisdiction

19.1(2)   For greater certainty, nothing in this section affects the court's jurisdiction to hear or determine a family proceeding that is brought under a provincial or federal enactment.

Court determines procedure

19.1(3)   Despite any provision in an Indigenous law to the contrary,

(a) the court is responsible for determining its own practice and procedure for commencing, hearing and determining an Indigenous family proceeding; and

(b) when determining an Indigenous family proceeding, the court may only make, vary or discharge an order providing for the care of a child.

Territorial jurisdiction

19.1(4)   Despite any provision of an Indigenous law to the contrary, sections 42 to 46 of The Court of King's Bench Act apply in respect of an Indigenous family proceeding.

Relationship to aboriginal and treaty rights and constitutional jurisdiction

19.1(5)   For greater certainty,

(a) this section is not to be interpreted so as to abrogate or derogate from the aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982; and

(b) the court retains its jurisdiction under section 7 and under the Constitution of Canada in hearing and determining the family proceeding.

61   Section 20.1 is repealed.

CONSEQUENTIAL AMENDMENT

C.C.S.M. c. A120 amended

62   Clause 5.1(2)(b) of The Arbitration Act is amended by strking out "section 20.1" and substituting "section 15.2".

PART 4

THE COURT OF KING'S BENCH ACT

C.C.S.M. c. C280 amended

63   The Court of King's Bench Act is amended by this Part.

64   The following is added after section 40 as part of Part IX:

Overview

40.1   This Part sets out the jurisdiction of the family division to hear and determine family proceedings brought under common law, a provincial or federal enactment, the inherent jurisdiction of the court or an Indigenous law as defined in this Part.

65(1)   Section 41 is amended

(a) in the definition "family proceeding",

(i) by adding the following after clause (b):

(b.1) the arrangements to care for an Indigenous child under an Indigenous law,

(ii) by replacing the part after clause (d) and before clause (d.1) with the following:

or a similar or ancillary proceeding, whether based on common law, a provincial or federal enactment, the inherent jurisdiction of the court or an Indigenous law, and includes a proceeding under or in respect of

(b) by adding the following definition:

"Indigenous law" means one or more provisions respecting child and family services that are contained in a law in respect of which information has been posted on a website in accordance with paragraph 25(c) of An Act respecting First Nations, Inuit and Métis children, youth and families (Canada). (« texte autochtone »)

65(2)   Section 41 is further amended by renumbering it as subsection 41(1) and adding the following as subsection 41(2):

Interpretation — "similar or ancillary proceeding"

41(2)   A similar or ancillary proceeding in relation to a family proceeding

(a) does not include the prosecution of an offence; and

(b) includes the imposition or assessment of a penalty only if it is under a provincial or federal enactment.

66   The following is added after section 41:

Jurisdiction under Indigenous law

41.1(1)   The court has jurisdiction to hear and determine a family proceeding brought under an Indigenous law if the Indigenous law authorizes it to do so — referred to in this section as an "Indigenous family proceeding".

No effect on other jurisdiction

41.1(2)   For greater certainty, nothing in this section affects the court's jurisdiction to hear or determine a family proceeding that is brought under common law, a provincial or federal enactment or the inherent jurisdiction of the court.

Procedure and orders

41.1(3)   Despite any provision of an Indigenous law to the contrary,

(a) the court is responsible for determining its own practice and procedure for commencing, hearing and determining an Indigenous family proceeding; and

(b) when determining an Indigenous family proceeding, the court may only make, vary or discharge an order providing for the care of a child.

Territorial jurisdiction

41.1(4)   Despite any provision of an Indigenous law to the contrary, sections 42 to 46 apply in respect of an Indigenous family proceeding.

Relationship to aboriginal and treaty rights, constitutional and inherent jurisdiction

41.1(5)   For greater certainty,

(a) this section is not to be interpreted so as to abrogate or derogate from the aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982; and

(b) the court retains its jurisdiction under Part VIII (Jurisdiction and Law) and under the Constitution of Canada in hearing and determining Indigenous family proceedings, including its parens patriae jurisdiction.

PART 5

OTHER ACTS AMENDED

THE CHILD SEXUAL EXPLOITATION AND HUMAN TRAFFICKING ACT

C.C.S.M. c. C94 amended

67(1)   The Child Sexual Exploitation and Human Trafficking Act is amended by this section.

67(2)   Subsection 1(1) is amended by adding the following definition:

"alternate decision maker" means a person other than a parent or guardian who has been confirmed in writing by an Indigenous service provider as defined in The Child and Family Services Act, or by a child and family services agency in accordance with section 15.1 of that Act, to be responsible for making decisions in respect of a child. (« autre personne responsable de la prise de décisions »)

67(3)   Clause 3(1)(b) is amended by striking out "or" at the end of subclause (ii) and adding the following as subclauses (ii.1) and (ii.2):

(ii.1) if the subject is in the care of an Indigenous service provider as defined in The Child and Family Services Act, by that service provider,

(ii.2) by an alternate decision maker for the subject, if commencing the application relates to the alternate decision maker's decision-making responsibility, or

THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT

C.C.S.M. c. F175 amended

68(1)   The Freedom of Information and Protection of Privacy Act is amended by this section.

68(2)   Subsection 1(1) is amended by adding the following definition:

"alternate decision maker" means a person other than a parent or guardian who has been confirmed in writing by an Indigenous service provider as defined in The Child and Family Services Act, or by a child and family services agency in accordance with section 15.1 of that Act, to be responsible for making decisions in respect of a child; (« autre personne responsable de la prise de décisions »)

68(3)   Clause 79(d) is replaced with the following:

(d) by any of the following persons if the individual is a minor and, in the opinion of the head of the public body concerned, the exercise of the right or power by that person would not constitute an unreasonable invasion of the minor's privacy:

(i) the parent or guardian of the minor,

(ii) an alternate decision maker for the minor if the exercise of the right or power relates to the alternate decision maker's decision-making responsibility; or

THE PERSONAL HEALTH INFORMATION ACT

C.C.S.M. c. P33.5 amended

69(1)   The Personal Health Information Act is amended by this section.

69(2)   Subsection 1(1) is amended by adding the following definition:

"alternate decision maker" means a person other than a parent or guardian who has been confirmed in writing by an Indigenous service provider as defined in The Child and Family Services Act, or by a child and family services agency in accordance with section 15.1 of that Act, to be responsible for making decisions in respect of a child; (« autre personne responsable de la prise de décisions »)

69(3)   Clause 60(1)(e) is replaced with the following:

(e) if the individual is a minor who does not have the capacity to make health care decisions, by one of the following persons:

(i) the minor's parent or guardian,

(ii) an alternate decision maker for the minor if the exercise of the right or power relates to the alternate decision maker's decision-making responsibility; or

THE PUBLIC HEALTH ACT

C.C.S.M. c. P210 amended

70(1)   The Public Health Act is amended by this section.

70(2)   Subsection 1(1) is amended by adding the following definition:

"alternate decision maker" means a person other than a parent or guardian who has been confirmed in writing by an Indigenous service provider as defined in The Child and Family Services Act, or by a child and family services agency in accordance with section 15.1 of that Act, to be responsible for making decisions in respect of a child. (« autre personne responsable de la prise de décisions »)

70(3)   Subsection 57(1) is amended by striking out "or (4)" and substituting "or subsections (4) and (5)".

70(4)   Subsection 57(4) is amended, in the part before clause (a), by striking out "the child's parent or guardian" and substituting "a person referred to in subsection (5)".

70(5)   The following is added after subsection 57(4):

Recipients of information re child

57(5)   The following persons may receive information on behalf of a child:

(a) the child's parent or guardian;

(b) an alternate decision maker for the child if that alternate decision maker is responsible for making health care decisions in relation to the child.

THE PUBLIC SCHOOLS ACT

C.C.S.M. c. P250 amended

71   The definition "resident pupil" in subsection 1(1) of The Public Schools Act is amended by adding the following after clause (c):

(c.1) who, by reason of being dealt with under a provision respecting child and family services in an Indigenous law as defined in The Child and Family Services Act, becomes a resident therein, or

THE TESTING OF BODILY FLUIDS AND DISCLOSURE ACT

C.C.S.M. c. T55 amended

72(1)   The Testing of Bodily Fluids and Disclosure Act is amended by this section.

72(2)   Section 1 is amended by adding the following definition:

"alternate decision maker" means a person other than a parent or guardian who has been confirmed in writing by an Indigenous service provider as defined in The Child and Family Services Act, or by a child and family services agency in accordance with section 15.1 of that Act, to be responsible for making decisions in respect of a child. (« autre personne responsable de la prise de décisions »)

72(3)   Subclause 19(2)(e)(iii) is replaced with the following:

(iii) in the case of information pertaining to a person who is under 16 years of age, to a parent or guardian of that person, or to an alternate decision maker for that person whose decision-making responsibility relates to the disclosure, or

THE VICTIMS' BILL OF RIGHTS

C.C.S.M. c. V55 amended

73(1)   The Victims' Bill of Rights is amended by this section.

73(2)   Subsection 1(1) is amended

(a) by adding the following definition:

"alternate decision maker" means a person other than a parent or guardian who has been confirmed in writing by an Indigenous service provider as defined in The Child and Family Services Act, or by a child and family services agency in accordance with section 15.1 of that Act, to be responsible for making decisions in respect of a child. (« autre personne responsable de la prise de décisions »)

(b) in the definition "victim", by striking out "or" at the end of clause (a) and replacing clause (b) with the following:

(b) where the victim is an individual who is a minor, means a person — other than the alleged offender — who

(i) is the victim's parent or guardian, or

(ii) is an alternate decision maker for the victim whose decision-making responsibility relates to the services and entitlements available to victims under this Act, or

(c) where the victim is an individual who is an adult who is incapable of handling their affairs, means the person — other than the alleged offender — who is the victim's committee or substitute decision maker.

73(3)   The following is added after subsection 1(2):

Exercise of rights by alternate decision maker

1(2.1)   When a minor who has an alternate decision maker is a victim, the alternate decision maker may exercise the minor's rights under this Part that relate to the alternate decision maker's decision-making responsibility.

PART 6

COMING INTO FORCE

Coming into force — royal assent

74(1)   Subject to subsections (2) and (3), this Act comes into force on the day it receives royal assent.

Coming into force — proclamation

74(2)   The following provisions come into force on a day to be fixed by proclamation:

(a) section 2;

(b) clause 5(b);

(c) sections 7 and 9;

(d) sections 11 to 22;

(e) subsections 23(1), (2) and (4);

(f) clause 23(5)(a);

(g) subsections 42(1) and (3);

(h) clauses 45(b) and (c);

(i) section 47;

(j) clause 48(b).

Coming into force — section 57

74(3)   Section 57 comes into force on the day this Act receives royal assent or on the day section 21 of The Advocate for Children and Youth Act, S.M. 2017, c. 8, comes into force, whichever occurs later.

Explanatory Note

An Act respecting First Nations, Inuit and Métis children, youth and families (Canada) affirms the right of First Nations, Inuit and Métis peoples to exercise jurisdiction in relation to child and family services and sets out a framework for coordinated service provision.

This Bill amends several Acts to recognize Indigenous jurisdiction and support the implementation of the federal Act.

The Child and Family Services Act

The Act is amended to incorporate standards established in the federal Act for the welfare of Indigenous children.

In most cases, these standards apply to all children and families in Manitoba.

The role of Indigenous service providers is recognized in a number of provisions and Indigenous service providers may now apply for an order that prohibits a person from having contact with a child.

The interpretation and administration of the Act is subject to an expanded principle of the best interests of the child, as well as the principles of substantive equality and Indigenous cultural continuity.

New service delivery principles are provided, including principles about preventive care, prenatal care and placement priority.

Other amendments include the following:

Critical incident reporting is expanded to include reporting about young adults. Critical incident reports must be made by persons with responsibilities under the various type of agreements that may be entered into under the Act.

An agency may enter into agreements with parents and guardians to support children, including kinship care and customary care agreements.

An agency may confirm who is responsible for decision-making respecting a child.

A child over the age of 12 is no longer required to attend court if the judge or master is satisfied that the child's rights have been explained to the child and the child's views and preferences are known.

The total period of temporary guardianship is repealed and temporary guardianship orders may now last for up to 24 months, regardless of the age of the child. There is no limit to the number of times a temporary guardianship order can be renewed.

The right of a foster parent to an independent appeal about a decision to remove a child from the foster home is repealed. A foster parent is still entitled to seek reconsideration by a Child and Family Services Authority of a decision to remove a child from the foster home.

Given the amendments in the Bill, The Child and Family Services Amendment Act (Taking Care of Our Children) (unproclaimed) is repealed. A consequential amendment is made to The Child and Family Services Authorities Act respecting agreements.

The Advocate for Children and Youth Act

The Advocate for Children and Youth may collaborate on reviews and investigations with persons and entities who perform similar functions under Indigenous laws.

Except in specific circumstances, the Advocate is not authorized to review or investigate services provided to a child or young adult under The Child and Family Services Act if an applicable Indigenous law is in effect.

The Advocate is also not authorized to review or investigate child and family services provided under Indigenous laws.

The Provincial Court Act and The Court of King's Bench Act

Amendments are made to set out the jurisdiction of the Family Division of each court to hear and determine child and family services matters that are brought under Indigenous law.

For such a matter concerning care for a child,

the court has the jurisdiction to hear and determine the matter if the Indigenous law authorizes the court to do so; and

the hearing is commenced, heard and determined in accordance with the court's practices and procedures.

The court's jurisdiction to hear or determine other family proceedings is not affected.

Other Acts Amended

A person may assume decision-making responsibility for a child in order to facilitate the child and family services that are provided to the child.

Under a written agreement with a child and family services agency or an arrangement with a provider of child and family services under an Indigenous law, the person is given authority over and responsibility in one or more areas of the child's life that is equivalent to the authority and responsibility of the child's parent or guardian.

The following statutes are amended to recognize the person's authority and responsibility:

The Child Sexual Exploitation and Human Trafficking Act

The Freedom of Information and Protection of Privacy Act

The Personal Health Information Act

The Public Health Act

The Testing of Bodily Fluids and Disclosure Act

The Victims' Bill of Rights

The Child Sexual Exploitation and Human Trafficking Act is further amended to allow a provider of child and family services under an Indigenous law to apply for a protection order for a child who is in its care.

Under The Public Schools Act, a child who becomes resident in a school division or school district because they are receiving child and family services under an Indigenous law is considered to be a "resident pupil".