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1st Session, 43rd Legislature

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Bill 38

AN ACT RESPECTING CHILD AND FAMILY SERVICES (INDIGENOUS JURISDICTION AND OTHER 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   The following is added as a preamble:

WHEREAS the safety, security and well-being of children is a sacred and collective responsibility;

AND WHEREAS families and communities are essential to the well-being and safety of children;

AND WHEREAS children thrive best with their families and communities and with ongoing connection with their cultural and linguistic heritage;

AND WHEREAS preventive care to support families should be given priority over other more disruptive services and interventions, when consistent with the best interests of the child;

AND WHEREAS children and families have a right to be informed and to participate when decisions are made affecting them;

AND WHEREAS, with respect to Indigenous Peoples, being First Nations, Inuit and Métis,

the government affirms concrete and constructive action is necessary for reconciliation;

the government is committed to addressing the overrepresentation of Indigenous children in the child and family service system;

the government is committed to addressing the legacy of residential schools and the harm and intergenerational trauma caused to Indigenous people by these and other colonial policies and practices;

the government recognizes the importance of reuniting Indigenous children with their families and communities from whom they were separated and to restoring their sacred bond;

the government recognizes the essential role Indigenous families and communities play in promoting the well-being of children and is committed to ensuring Indigenous children remain connected to their cultural and linguistic heritage;

the government acknowledges and respects the inherent right of self-government of Indigenous Peoples, including jurisdiction for child and family services;

recognizing the Calls to Action made by the Truth and Reconciliation Commission of Canada, the government is committed to working in a nation-to-nation relationship with Indigenous governments and in partnership with the federal government to address the needs of Indigenous children and to ensure services provided in relation to them are coordinated;

3   The Declaration of Principles and the part before the enacting clause are repealed.

4   The enacting clause of the English version is amended by striking out "HER MAJESTY" and substituting "THEREFORE HIS MAJESTY".

5   Subsection 1(1) is amended

(a) by adding the following definition:

"child and family services" means services to support children and families, including prevention services, early intervention services and child protection services; (« services à l'enfant et à la famille »)

(b) in the definition "agency", by repealing clause (b); and

(c) in the definition "Indigenous service provider", by striking out "as defined in section 76.1".

6   The following is added after subsection 4(1):

Duties of director — Indigenous jurisdiction

4(1.1)   Under the control and direction of the minister, the director must also

(a) facilitate and support the transition of child and family services provided in relation to Indigenous children and families to Indigenous service providers;

(b) facilitate and support the coordination of child and family services delivered under this Act with services delivered under Indigenous law; and

(c) facilitate and support the sharing of information with Indigenous governing bodies and Indigenous service providers, as set out in Part VI.1.

7   Subsection 6.1(1) is amended by adding "services under" after "under this Act or".

8   Sections 6.2 and 6.3 are repealed.

9   The following is added after subsection 7(1):

Duties of agencies — Indigenous jurisdiction

7(1.1)   According to standards established by the director and subject to the authority of the director, every agency must also

(a) work cooperatively with Indigenous service providers to facilitate the transition of child and family services provided in relation to Indigenous children and families;

(b) facilitate and support the coordination of child and family services delivered under this Act with services delivered under Indigenous law; and

(c) facilitate and support the sharing of information with Indigenous governing bodies and Indigenous service providers, as set out in Part VI.1.

10   Section 7.1 is repealed.

11   Subsection 8(7) is repealed.

12   Section 8.15 is amended

(a) by replacing the definition "critical incident" with the following:

"critical incident" means an incident that has resulted in the death or serious injury of

(a) a child who was in the care of or received services from an agency at any time within one year before the death or serious injury;

(b) a child whose parent or guardian received services from an agency at any time within one year before the death or serious injury; or

(c) a young adult who received services from an agency at any time within one year before the death or serious injury. (« incident critique »)

(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 »)

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

Report — general rule

8.17(1)   Subject to this section, 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 or the child's parent or guardian or to the young adult; or

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

14   Subsection 9(4) is repealed.

15   The following is added after subsection 18(1.1):

Reporting to Indigenous service provider

18(1.2)   Despite subsections (1) and (1.1), a person who reasonably believes that an Indigenous child is in need of protection and who reports the matter to an Indigenous service provider responsible for providing child and family services to the child under an Indigenous law is not required to report the matter to an agency under this section.

16   Clause 18.1(2)(a) is amended, in the part before subclause (i), by striking out "subsection 18(1) or (1.1)" and substituting "subsection 18(1), (1.1) or (1.2)".

17(1)   Subsection 18.4(1) is replaced with the following:

Referral and investigation

18.4(1)   On receiving information that a child might be in need of protection, an agency must determine whether to

(a) investigate the matter itself;

(b) refer the matter for investigation to an applicable Indigenous service provider; or

(c) subject to the regulations, investigate the matter in collaboration with an applicable Indigenous service provider.

Agency investigation

18.4(1.0.1)   When the agency investigates a matter under clause (1)(a), it must investigate immediately and where, upon investigation, it concludes that the child is in need of protection, it must take such further steps as are required by this Act or are prescribed by regulation or as the agency considers necessary for the child's protection.

17(2)   Subsection 18.4(2) is amended by adding the following after clause (b):

(b.1) where an Indigenous service provider is providing child and family services to the child, to that service provider;

17(3)   Subsection 18.4(2.1) is amended by adding the following after clause (b):

(b.1) where an Indigenous service provider is providing child and family services to the child, to that service provider;

18(1)   Clause 19(3.6)(d) is amended by adding ", regardless of whether the child is an adult at the time of the hearing" at the end.

18(2)   Subsections 19(3.8) and (3.9) are repealed.

19   Section 23 is renumbered as subsection 23(1) and the following is added as subsection 23(2):

Exception

23(2)   Subsection (1) does not apply to a representative of an Indigenous service provider who apprehends an Indigenous child under an Indigenous law.

20   Subsection 28(2) is replaced with the following:

Substitution of another agency or Indigenous service provider

28(2)   On application made before a hearing under this Part by the agency that apprehended the child, a judge or associate judge may order that another agency or an Indigenous service provider be substituted as a party if the apprehending agency files that other agency's or the service provider's consent.

21   Section 41 is amended by adding "or associate judge" after "judge".

22   Section 42 is replaced with the following:

Child in care of the agency appearing

42   The judge or associate judge making an order of guardianship must appoint as guardian either

(a) the agency appearing at the hearing; or

(b) another agency or an Indigenous service provider if the agency appearing files that other agency's or the service provider's consent.

23(1)   Subsection 53(1) is replaced with the following:

Apprehending a child who leaves placement

53(1)   If a child — without the express permission of the agency, Indigenous service provider or person in charge of premises where the child is lawfully placed — leaves the premises or any other place where the child is permitted to be, a peace officer or other person may (with or without a warrant) apprehend the child and return them without delay to the premises where the child was lawfully placed or to an agency or Indigenous service provider.

23(2)   Subsection 53(2) is amended

(a) by striking out "absconded from" and substituting "left"; and

(b) by adding "or Indigenous service provider" after "agency" wherever it occurs.

24   Section 76.1 is amended by repealing the definition "child and family services".

25   The following is added after section 76.19 as part of Part VI.1:

Application to terminate permanent guardianship

76.20(1)   An Indigenous service provider having permanent guardianship of a child may apply to court for an order terminating the guardianship.

Order

76.20(2)   A judge hearing the application may, by order,

(a) terminate the permanent guardianship and return the child to the parents;

(b) terminate the permanent guardianship and make an order under Indigenous law; or

(c) dismiss the application.

Consent order

76.20(3)   When the parents and the Indigenous service provider consent, a judge or associate judge may make an order under this section without receiving further evidence, and a person who was served but does not appear at the hearing, or with respect to whom an order was made dispensing with service, is deemed to consent.

26   Section 86 is amended

(a) by adding the following after clause (a.2):

(a.3) further defining "child and family services" for the purpose of this Act;

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

(t.1) respecting collaborative investigations under clause 18.4(1)(c), including establishing criteria as to when such an investigation may be undertaken, requiring a prior written agreement between the parties, and related matters;

27   Subsection 87(2) is repealed.

28   Section 88 is repealed.

PART 2
THE CHILD AND FAMILY SERVICES AUTHORITIES ACT

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

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

30   The third paragraph of the preamble is amended by striking out "First Nations, Metis and other Aboriginal" and substituting "First Nations, Inuit and Métis".

31   Subsection 1(1) is amended

(a) by adding the following definition:

"Indigenous", "Indigenous governing body", "Indigenous law" and "Indigenous service provider" have the same meaning as in The Child and Family Services Act; (« autochtone », « corps dirigeant autochtone », « fournisseur de services autochtone » et « texte autochtone »)

(b) by repealing the definition "Metis Authority".

32   Section 3 is replaced with the following:

Indigenous rights protected

3   This Act must not be interpreted as abrogating or derogating from the inherent right of self-government of Indigenous Peoples that is recognized and affirmed by section 35 of the Constitution Act, 1982.

33   Clause 4(c) is repealed.

34   Subsection 6(4) is repealed.

35   Subsection 17(3) is repealed.

36   The following is added as section 19.1:

Duties of an authority — Indigenous jurisdiction

19.1   An authority must also

(a) facilitate and support the transition of services provided under this Act and The Child and Family Services Act in relation to Indigenous children and families to Indigenous service providers;

(b) facilitate and support the coordination of services delivered under this Act and The Child and Family Services Act with services delivered under Indigenous law; and

(c) facilitate and support the sharing of information with Indigenous governing bodies and Indigenous service providers, as set out in Part VI.1 of The Child and Family Services Act.

37(1)   Subsection 21(5) is amended, in the part before clause (a), by adding ", by regulation," after "the minister may".

37(2)   The following is added as subsection 21(6):

Minister's power re Indigenous jurisdiction

21(6)   Despite any other provision of this section, when the minister considers it necessary because of the exercise or intended exercise of jurisdiction over child and family services by an Indigenous governing body, the minister may make regulations

(a) varying the geographic region in which a designated agency provides joint intake and emergency services;

(b) designating an agency to provide joint intake and emergency services for a geographic region;

(c) respecting any other matter concerning the provision of joint intake and emergency services.

38   Subsection 23(1) is replaced with the following:

Power to enter into agreements

23(1)   An authority may enter into agreements or other arrangements with other authorities or other persons and entities for the purpose of

(a) administering and coordinating the delivery of services under this Act, The Child and Family Services Act and The Adoption Act; and

(b) supporting the transition of services under this Act and The Child and Family Services Act to Indigenous service providers.

39   Section 24 is amended by adding the following after clause (b):

(b.1) facilitating and supporting the transition of services provided under this Act and The Child and Family Services Act in relation to Indigenous children and families to Indigenous service providers;

(b.2) facilitating and supporting the coordination of services delivered under this Act and The Child and Family Services Act with services delivered under Indigenous law;

40   Subsection 29(2) is amended by striking out "child and family services" and substituting "the delivery of child and family services under this Act and The Child and Family Services Act".

41   Subsection 30(1) is amended by adding "and" at the end of clause (a), by striking out "and" at the end of clause (b) and repealing clause (c).

PART 3
THE VITAL STATISTICS ACT

C.C.S.M. c. V60 amended

42   The Vital Statistics Act is amended by this Part.

43(1)   Subsection 32(2) is amended by adding the following after clause (e):

(e.1) an Indigenous service provider that requires it to comply with an Indigenous law respecting child and family services;

43(2)   Subsection 32(4) is replaced with the following:

Birth registration search — court proceedings

32(4)   On application and payment of the prescribed fee, the director may issue a certificate of birth registration search to the following persons:

(a) a person who applies to court under The Family Law Act for a declaration that the person is or is not in law the parent of a child;

(b) a person who applies to court for a guardianship order under The Family Law Act;

(c) a person who applies to court for a parenting order under The Family Law Act or the Divorce Act (Canada);

(d) an agency, Indigenous service provider or other person or entity that

(i) provides child and family services under The Child and Family Services Act, an Indigenous law or the law of another Canadian jurisdiction, and

(ii) requires the certificate for court proceedings;

(e) a person on the order of a court.

43(3)   The following is added after subsection 32(5) and before the centred heading that follows it:

Child and Family Services Act definitions

32(5.1)   In this section, "Indigenous law" and "Indigenous service provider" have the same meaning as in The Child and Family Services Act.

PART 4
TRANSITIONAL, REPEAL AND COMING INTO FORCE

Transitional re Metis Authority

44(1)   When the Manitoba Métis Federation Inc. enacts an Indigenous law respecting child and family services, the minister may appoint a person to wind up the affairs of the Metis Authority under The Child and Family Services Authorities Act.

Powers of administrator

44(2)   Subsections 28(4) to (7) of The Child and Family Services Authorities Act apply in relation to an appointment made under subsection (1) as if the person appointed had been appointed as an administrator under subsection 28(1) of that Act.

Assets and liabilities

44(3)   To the extent that an agreement approved by the minister and the Manitoba Métis Federation Inc. does not deal with all of the rights, property, obligations and liabilities of the Metis Authority, any remaining rights, property, obligations and liabilities become those of the government on the day that section 33 of this Act comes into force.

Definition

44(4)   In this section, "minister" has the same meaning as in The Child and Family Services Authorities Act.

S.M. 2023, c. 26 (unproclaimed provisions repealed)

45   The following provisions of An Act respecting Child and Family Services (Indigenous Jurisdiction and Related Amendments), as enacted by S.M. 2023, c.26, are repealed:

(a) clauses 9(a) and (b);

(b) subsection 12(1);

(c) section 47.

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

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

Coming into force — royal assent

47(1)   Subject to subsection (2), this Act comes into force on the day it receives royal assent.

Coming into force — proclamation

47(2)   The following provisions come into force on a day to be fixed by proclamation:

(a) sections 12 and 13;

(b) clause 31(b);

(c) sections 33, 34, 35 and 41.

Explanatory Note

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

The Child and Family Services Act, The Child and Family Services Authorities Act and The Vital Statistics Act are amended to recognize Indigenous jurisdiction, support the implementation of the federal Act and make other administrative amendments.

Child and Family Services Act

Amendments to this Act include the following:

A preamble is added to the Act and the Declaration of Principles is repealed in light of the principles that were added to the Act in 2023.

The director and agencies must facilitate the transition to Indigenous service providers for Indigenous children and families.

For the purpose of critical incident reporting, the definition of "critical incident" is changed so that it applies to young adults only if they (and not their family) received services from an agency within a year before a serious injury or death.

A person who believes that an Indigenous child might need protection may report the matter to an Indigenous service provider.

An agency that receives information that a child might need protection may refer the matter for investigation to an applicable Indigenous service provider or investigate the matter in collaboration with that service provider.

An adult who was alleged to have been abused as a child must not be compelled to testify at a hearing about an objection to the entry of their alleged abuser's name in the child abuse registry.

For the purpose of a hearing, a judge or associate judge may order that an Indigenous service provider be substituted for an agency that apprehended a child.

A judge or associate judge may appoint a consenting Indigenous service provider as the guardian of a child.

An Indigenous service provider with permanent guardianship of a child may apply to court for an order terminating the guardianship.

Child and Family Services Authorities Act

Amendments to this Act include the following:

An authority must facilitate the transition to Indigenous service providers for Indigenous children and families.

The minister may designate an agency, or vary a geographic region, for the purpose of providing joint intake and emergency services if it is necessary because an Indigenous governing body exercises jurisdiction over child and family services.

The Metis Authority is disestablished on a date to be fixed by proclamation.

Vital Statistics Act

This Act is amended to allow

an Indigenous service provider to apply for a birth certificate, a certified copy of a birth registration and, when required for a court proceeding, a certificate of birth registration search; and

a person applying for a guardianship or parenting order to apply for a certificate of birth registration search.