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S.M. 2022, c. 30
Bill 41, 4th Session, 42nd Legislature
The Child and Family Services Amendment Act
Explanatory Note This note is a reader's aid and is not part of the law. This Act amends The Child and Family Services Act to facilitate collaboration and information sharing between the persons and entities who administer the Act and the Indigenous governing bodies and Indigenous service providers who administer Indigenous laws respecting child and family services. Part VI.1 is added and sets out new authority and rules respecting the sharing of information contained in service-related records by the director, authorities, agencies, Indigenous governing bodies and Indigenous service providers; the disclosure of personal information and personal health information to Indigenous service providers by public bodies and trustees, when requested for the purpose of ensuring the safety, health or well-being of children; access by Indigenous service providers to provincial electronic information systems and the child abuse registry, including entering information in the information systems and reporting names for entry in the registry; and transferring the supervision of care and the guardianship of children in care to Indigenous service providers. Existing provisions respecting access to the child abuse registry, the transfer of supervision of care and guardianship of children in care, the disclosure of information when planning for or providing services and access to closed records are also clarified. Amendments are made to The Child and Family Services Authorities Act and unproclaimed provisions of The Child and Family Services Act. |
(Assented to June 1, 2022)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Child and Family Services Act is amended by this Act.
The Declaration of Principles is amended in principle 11
(a) by striking out "Indian bands" and substituting "First Nations, the Metis and the Inuit"; and
(b) by striking out "aboriginal" and substituting "Indigenous".
Subsection 1(1) is amended
(a) in clause (c) of the definition "agency", by adding "mandated under subsection 6.1(1) as authorized by subsection 6.1(2)" at the end; and
(b) by adding the following definitions:
"federal Act" means An Act respecting First Nations, Inuit and Métis children, youth and families (Canada); (« loi fédérale »)
"Indigenous" includes First Nation, Metis and Inuit; (« autochtone »)
"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 a law in respect of which information has been posted on a website in accordance with paragraph 25(c) of the federal Act; (« texte autochtone »)
"Indigenous service provider" means a person or entity acting under an Indigenous law to provide child and family services as defined in section 76.1; (« fournisseur de services autochtone »)
"personal health information" has the same meaning as in The Personal Health Information Act; (« renseignements médicaux personnels »)
"personal information" has the same meaning as in The Freedom of Information and Protection of Privacy Act; (« renseignements personnels »)
Subsection 19.3(2) is amended
(a) in the part before clause (a), by striking out "An agency" and substituting "Subject to subsections (3.2) to (3.4), an agency"; and
(b) by replacing clause (b) of the French version with the following:
b) soit une évaluation d'une personne qui travaille pour l'office ou qui lui fournit des services, ou dont la candidature lui est proposée à l'un ou l'autre de ces titres, en qualité d'employé, de parent nourricier, d'aide familiale, d'aide auprès des parents, de bénévole, d'étudiant stagiaire ou de toute autre façon;
Subsection 19.3(2.1) is amended, in the part before clause (a), by striking out "An adoption agency" and substituting "Subject to subsections (3.2) to (3.4), an adoption agency".
Subsection 19.3(3) is amended by striking out "A peace officer" and substituting "Subject to subsections (3.2) to (3.4), a peace officer".
The following is added after subsection 19.3(3.1):
Manner of giving access to registry
Subject to subsection (3.3), an application for access to the registry must be submitted to the director whenever a search of the registry is required. If the application is approved, the director must conduct the search and report the results to the applicant.
On application and subject to any terms and conditions the director considers advisable, the director may give an agency direct ongoing access to the registry for one or both of the following purposes:
(a) conducting its own searches under clause (2)(a) (child protection investigations);
(b) conducting its own searches under clause (2)(b), when access is urgently required to assess a person who provides work for or services to the agency on a temporary and urgent basis, such as by providing a place of safety or other emergency placement.
Searches by director still required
For greater certainty, an agency that has been given direct ongoing access to the registry for a purpose set out in subsection (3.3) must continue to apply to the director each time it requires a search of the registry for another purpose.
Subsection 21(1) is replaced with the following:
Apprehension of a child in need of protection
Any of the following persons who on reasonable and probable grounds believes that a child is in need of protection may apprehend the child without a warrant and take the child to a place of safety where the child may be examined and provided with temporary care and be dealt with in accordance with the provisions of this Part:
(a) the director;
(b) a representative of an agency;
(c) a representative of an Indigenous service provider;
Subsection 21(2) is amended by striking out "The director, a representative of an agency or a peace officer" and substituting "Any of the persons listed in subsection (1)".
Subsection 21(5) is amended by adding "or Indigenous service provider" after "or a representative of an agency".
Subsection 49(2) is replaced with the following:
Transfer of guardianship or supervision by director
The director may transfer
(a) guardianship of a child from the agency having guardianship of the child to another agency;
(b) an order of supervision of a child from the agency having supervision of the child to another agency.
For greater certainty, the agency to or from which guardianship or an order of supervision is transferred under this section may be a regional office.
Subsection 49(3) is amended by striking out "(1) or" and "or the director".
The following is added after subsection 76(3):
Disclosing information to plan or provide services
Subject to subsections (3.2), (3.3), and (12) to (17.1), the director, an authority or an agency may disclose, for the purpose of providing or planning for the provision of services under this Act, information from records made or obtained under this Act.
No disclosure if contrary to child's best interest
A disclosure under subsection (3.1) is not permitted if it is contrary to the best interests of a child.
Permitted disclosure under subsection (3.1)
A permitted disclosure of information under subsection (3.1) may
(a) be made to any person or entity; and
(b) include personal information or personal health information.
Subsection 76(12) is amended by striking out "or" at the end of clauses (a) and (b), adding "or" at the end of clause (c) and adding the following after clause (c):
(d) to an Indigenous governing body or Indigenous service provider in accordance with Part VI.1.
The following is added after subsection 76(17):
Disclosure to agencies, Indigenous service providers
For greater certainty, the director, an authority or an agency may disclose information from a closed record under clause (14)(f) (disclosure necessary for safety, health or well-being) to another person or entity, including to an agency or an Indigenous service provider. An application to court under subsection (16) is not required.
Subsection 76(22) is amended by adding "or obtained" after "made".
The following is added after Part VI:
PART VI.1
INDIGENOUS GOVERNING BODIES
AND INDIGENOUS SERVICE PROVIDERS
DIVISION 1
INTRODUCTORY PROVISIONS
The following definitions apply in this Part.
"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 »)
"public body" has the same meaning as in The Freedom of Information and Protection of Privacy Act. (« organisme public »)
"trustee" has the same meaning as in The Personal Health Information Act. (« dépositaire »)
The purposes of this Part are
(a) to facilitate collaboration with Indigenous governing bodies in the exercise of jurisdiction respecting child and family services;
(b) to facilitate case management and the coordinated provision of services by agencies and Indigenous service providers; and
(c) to ensure that an Indigenous service provider performing functions under an Indigenous law has the same access to information — namely, information contained in records made or obtained by the director or an agency or authority when providing services under this Act — as a person or entity that performs substantially the same functions under this Act or The Child and Family Services Authorities Act.
Director's powers and duties re mandated agencies
Despite section 18 of The Child and Family Services Authorities Act,
(a) an authority does not assume the powers and duties of the director under this Part with respect to the agencies it has mandated; and
(b) the powers and duties of the director under this Part do not cease with respect to those agencies.
DIVISION 2
SHARING INFORMATION
Disclosing information to Indigenous child and family services
Subject to this Division, the director, an authority or an agency may disclose information from records made or obtained when providing services under this Act
(a) to an Indigenous governing body that requires the information to make, implement or plan for the implementation of provisions respecting child and family services in an Indigenous law; or
(b) to an Indigenous governing body, Indigenous service provider or any other person or entity for the purpose of
(i) administering the federal Act, or
(ii) administering provisions respecting child and family services in an Indigenous law.
Access to electronic information system
The director may enter into an arrangement with an Indigenous service provider to give it access to an electronic information system that
(a) contains information from records made or obtained by the director, an agency or an Indigenous service provider when providing child and family services under this Act or an Indigenous law; and
(b) is maintained or supported by the director for the purpose of facilitating case management and the coordinated provision of services.
Arrangement may allow entry of information
The arrangement may allow the Indigenous service provider to enter information into the system from records made or obtained when providing child and family services under an Indigenous law.
Arrangement may include terms and conditions
The arrangement may include any terms and conditions that the director considers appropriate.
Public bodies and trustees may disclose information
A public body or a trustee may disclose information to an Indigenous service provider that requests the information for the purpose of ensuring the safety, health or well-being of a child.
Personal information and personal health information may be included
Disclosures under this Division, including those made by providing access to an electronic information system under section 76.5, may include personal information and personal health information.
Adoption records remain confidential
Nothing in this Part affects the application of subsection 103(1) of The Adoption Act. Information in records referred to in that subsection may be accessed or disclosed only in accordance with that Act.
Director may direct disclosure
The director may issue a written directive to one or more agencies or authorities
(a) requiring them to disclose information under section 76.4; or
(b) imposing terms or conditions on their disclosure of information under section 76.4.
Authority may direct disclosure
An authority may issue a written directive to one or more agencies that it has mandated
(a) requiring them to disclose information under section 76.4; or
(b) imposing terms or conditions on their disclosure of information under section 76.4.
An agency or authority to which a directive is issued under subsection (1) or (2) must comply with it.
If there is a conflict or an inconsistency between a directive issued by the director and a directive issued by an authority, the directive issued by the director prevails to the extent of the conflict or inconsistency.
Disclosure required under coordination agreement
If a coordination agreement, as defined in the federal Act, requires an authority or an agency to disclose information in a record made or obtained when providing services under this Act, it must do so in accordance with the agreement.
Further use or disclosure by Indigenous governing body or Indigenous service provider
The following rules apply when an Indigenous governing body or Indigenous service provider further uses or discloses information that is disclosed to it under this Division or subsection 76(17.1):
(a) the Indigenous governing body or Indigenous service provider must comply with the prohibitions in subsection 18.1(2) on disclosing the identity of an informant;
(b) subsections 76(3) to (13) and (18) to (22) do not apply to the information, or to records containing the information that are made or obtained by the Indigenous governing body or Indigenous service provider;
(c) subsections 76(14) to (17.1) continue to apply to closed records that are obtained or accessed by the Indigenous governing body or Indigenous service provider and to information from closed records that is disclosed to the Indigenous governing body or Indigenous service provider.
Information disclosed by Indigenous service provider to director, authority or agency
Despite section 76, information is confidential and must not be disclosed except in accordance with this section if
(a) it is contained in an electronic information system referred to in section 76.5 or in another record made or obtained by the director, an authority or an agency when providing services under this Act;
(b) it was entered into the information system, or otherwise disclosed to the director, authority or agency, by an Indigenous service provider; and
(c) it was made or obtained by the Indigenous service provider when providing child and family services under an Indigenous law.
Circumstances when disclosure permitted
Information described in subsection (1) may be disclosed only
(a) when required to administer this Act, the federal Act or an Indigenous law;
(b) when reasonably required to provide or to plan for the provision of child and family services to the person the information is about or who is the subject of the record containing the information;
(c) when reasonably required to protect a child;
(d) when required in order to give evidence in court;
(e) by order of a court; or
(f) for research purposes in accordance with subsection (3).
Disclosure for research purposes
The director, or an agency with the director's written authorization, may disclose information described in subsection (1) to a person for research purposes if
(a) the Indigenous service provider that disclosed the information has authorized the disclosure by the director or agency; and
(b) the director or agency obtains from the person a written undertaking not to disclose any personal information or personal health information that is included in the information disclosed to the person under this section.
Further disclosure by Indigenous service provider
For greater certainty, this section does not restrict further disclosures of the information by the Indigenous service provider that entered it into the electronic information system or otherwise disclosed it to the director, authority or agency.
For the purpose of section 85 (proceedings prohibited),
(a) giving access to a record under this Act includes
(i) the disclosure of information under subsection 76(17.1) or section 76.4, 76.10 or 76.12, and
(ii) providing access to an electronic information system under section 76.5; and
(b) consequences that flow from such access include the further use or disclosure of the information by an Indigenous governing body or Indigenous service provider.
DIVISION 3
ACCESSING AND REPORTING NAMES FOR ENTRY IN THE CHILD ABUSE REGISTRY
Access to child abuse registry
Subject to subsections (2) to (4) and despite subsection 19.3(1), an Indigenous service provider, on application to the director, must be given access to the child abuse registry established under section 19.1 if the director is satisfied that the access is reasonably required to assist the service provider
(a) in determining whether a child is in need of protection;
(b) in assessing any person who provides work for or services to the Indigenous service provider, or who applies or proposes to provide work for or services to the service provider; or
(c) in assessing an adoptive applicant.
Manner of giving access to registry
Subject to subsection (3), an application for access to the registry must be submitted to the director whenever a search of the registry is required. If the application is approved, the director must conduct the search and report the results to the applicant.
On application and subject to any terms and conditions the director considers advisable, the director may give an Indigenous service provider direct ongoing access to the registry for one or both of the following purposes:
(a) conducting its own searches under clause (1)(a) (child protection investigations);
(b) conducting its own searches under clause (1)(b), when access is urgently required to assess a person who provides work for or services to the Indigenous service provider on a temporary and urgent basis, such as by providing an emergency placement.
Searches by director still required
For greater certainty, an Indigenous service provider that has been given direct ongoing access to the registry for a purpose set out in subsection (3) must continue to apply to the director each time it requires a search of the registry for another purpose.
An Indigenous service provider may be given access to the registry only in accordance with this section and not under Division 2.
Disclosure by Indigenous service provider
Despite subsection 19.3(1) and section 76, an Indigenous service provider may disclose information given to it under this section but only for the purpose of protecting a child.
An Indigenous service provider may disclose information under subsection (6) to any person or entity without the consent of any person.
Despite any definition of "abuse" adopted by an Indigenous service provider or under an Indigenous law, the definition of "abuse" in subsection 1(1) applies in sections 76.16 to 76.18.
Report of name for entry in registry
Subject to subsection (2) and section 76.17, an Indigenous service provider who determines that a person has abused a child may report the person's name and the circumstances of the abuse to the director for entry in the registry established under section 19.1.
Before making the report, the Indigenous service provider must give written notice of the following to the persons referred to in subsection (3):
(a) the service provider's determination;
(b) the service provider's intention to report the name of the person to the director for entry in the registry;
(c) the circumstances the service provider intends to report to the director;
(d) the right to object under section 76.17.
The notice must be given to the following persons:
(a) the person whose name is intended to be reported, if the person is 12 years of age or older;
(b) the person's parent or guardian, or the person's care provider as defined in the federal Act, if the person has not reached the age of majority;
(c) the child, if the child is at least 12 years old, and the child's parent or guardian or the child's care provider as defined in the federal Act;
(d) the director.
Objection to entry in registry
A person who is the subject of an intended report under section 76.16 may object to the entry of the person's name in the registry.
Subsections 19(3.3) to (3.7) apply with necessary changes to an objection, subject to the following:
(a) clause 19(3.3)(b) is to be read as follows:
(b) serving a true copy of the notice of application on the Indigenous service provider and the director.
(b) in subsection 19(3.4) and clauses 19(3.6)(c) and (d), references to the "agency" are to be read as references to the "Indigenous service provider";
(c) subsection 19(3.6) is to be read as having clause (a) replaced with the following:
(a) the parties to the proceeding are the person who is the subject of an intended report under section 76.16 ("the applicant") and the Indigenous service provider that intends to make the report;
(a.1) the Indigenous service provider has the burden of proof on the balance of probabilities;
The Indigenous service provider must report the decision of the court in respect of an objection to the director.
On receiving a report from the Indigenous service provider that no application has been filed in respect of an objection within the 60-day period that applies under subsection 19(3.3) as changed by subsection 76.17(2) or that the person was found in court under subsection 19(3.7) to have abused a child, the director must enter the name of the person and the circumstances of the abuse in the registry.
DIVISION 4
TRANSFER OF GUARDIANSHIP
OR SUPERVISION
Transfer of guardianship or supervision by director
The director may transfer
(a) guardianship of a child from the agency having guardianship of the child to an Indigenous service provider that is assuming care of the child; and
(b) an order of supervision of a child from the agency having supervision of the child to an Indigenous service provider.
For greater certainty, the agency from which guardianship or an order of supervision is transferred under this section may be a regional office.
The director must obtain the written consent of the Indigenous service provider before making a transfer under this section.
From the date that a transfer under this section is made by the director, the Indigenous service provider is deemed to be for all purposes the guardian named in the surrender of guardianship, or the guardian or supervisor named in the order, as the case may be.
Section 86 is amended by adding the following:
(x) respecting arrangements to access an electronic information system under section 76.5;
(y) respecting reports to the director under section 76.16, including the form and contents of the reports and the manner in which they are made.
Validation of certain disclosures before enactment
All disclosures of information by the director, an authority, an agency, a public body or a trustee to an Indigenous governing body or an Indigenous service provider that would have been validly done had sections 76.1 to 76.10 of The Child and Family Services Act, as enacted by section 8 of this Act, come into force on January 1, 2022, are validated and deemed to have been lawfully done.
Regulations — transitional matters
The Lieutenant Governor in Council may make regulations to remedy any difficulty, inconsistency or impossibility relating to or resulting from the implementation of Part VI.1, as enacted by section 8 of this Act.
A regulation under this section may be general or particular in its application.
Related amendment, C.C.S.M. c. C90
Section 18 of The Child and Family Services Authorities Act is amended by adding "and section 76.3 of The Child and Family Services Act" after "the regulations".
Consequential amendment, S.M. 2018, c. 13 (unproclaimed)
The following provisions of The Child and Family Services Amendment Act (Taking Care of Our Children), S.M. 2018, c. 13, are repealed:
(a) clauses 2(a) and 3(a);
(b) clause 3(b) insofar as it enacts the definition "Indigenous".
This Act comes into force on the day it receives royal assent.