Question Period Note: Child and Family Services

• The coming into force of the Act respecting First Nations, Inuit and Métis children, youth and families (the Act) on January 1, 2020 marked a historic turning point for First Nations, Inuit, and Métis children and families.

• It will finally put in place what Indigenous peoples across this country have been asking of governments for decades: that their jurisdiction over child and family services be affirmed so that they can decide what is best for their children, their families, and their communities.

• We will continue to engage with partners on the implementation of the Act.

Indigenous Services Canada (ISC)’s First Nations Child and Family Services (FNCFS) Program provides funding to support the safety and well-being of First Nation children on reserve. Funding is provided to FNCFS agencies, provinces and the Yukon Territory to support the delivery of prevention and protection services on-reserve. ISC does not deliver the services. These services are provided in accordance with the legislation and standards of the province or territory of residence and in a manner that is reasonably comparable to those available to other provincial residents in similar circumstances, within ISC’s Program authorities. Funding under the FNCFS Program is provided according to a prevention-based funding model.

In 2016, the Canadian Human Rights Tribunal (CHRT) found Canada’s FNCFS Program to be discriminatory and ordered Canada to immediately remedy the discrimination. On February 1, 2018, the Tribunal added items to its previous order, including paying the actual costs of FNCFS agencies in prevention and other areas. The Department is working closely with the parties to the complaint – the Assembly of First Nations, the First Nations Child and Family Caring Society, the Chiefs of Ontario, Nishnawbe Aski-Nation, the Canadian Human Rights Commission and Amnesty International – to fully implement the various orders of the Tribunal.

In January 2018, the Government of Canada hosted an Emergency Meeting on Indigenous Child and Family Services, with national and regional Indigenous leadership, as well as federal, provincial and territorial governments, to discuss the causes that lead to the high rate of Indigenous children in care and how to work together towards systemic reform. At that meeting, the Government announced its commitment to six points of action that included the potential for federal legislation, as called for in the Truth and Reconciliation Commission’s Call to Action #4; continuing to fully implement previous CHRT orders (from 2016 and prior to September 2019); reform First Nations child and family services including moving to a flexible funding model; and work with partners to shift the focus of programming to culturally-appropriate prevention, early intervention, and family reunification.

The Act respecting First Nations, Inuit and Métis children, youth and families (Act) was co-developed with Indigenous, provincial and territorial partners and received Royal Assent on June 21, 2019. The Act came into force on January 1, 2020.

As of January 1, 2020, every service provider delivering child and family services in relation to Indigenous children must follow the minimum standards of the Act.
As part of the July 2020 Economic and Fiscal Snapshot, the Government of Canada has committed almost $543 million over five years, starting in 2020-21, to support the implementation of an Act respecting First Nations, Inuit and Métis children, youth and families which came into force on January 1, 2020. This historic legislation enables First Nations, Inuit and Métis to choose their own solutions for their children and families.

On February 21, 2019, the CHRT addressed a new complaint regarding the definition of a First Nations child for the purposes of implementing Jordan’s Principle, and issued an interim relief order stating that Canada “shall provide First Nations children living off reserve who have urgent and/or life threatening needs, but do not have (and are not eligible for) Indian Act status, with the services required to meet those urgent and/or life-threatening service needs, pursuant to Jordan’s Principle”.

On September 6, 2019, the CHRT released an Order on compensation. The Tribunal ordered Canada to pay the maximum amount of $40,000 ($20,000 for pain and suffering and $20,000 for willful and reckless conduct) per child and parent or grandparent. Canada is required to report back to the Tribunal by December 10, 2019, on a compensation process agreed to by the complainants. A failure to reach an agreement will result in the panel ordering one of its own creation. On October 4, 2019 the Attorney General of Canada filed a Notice of Application for Judicial Review and a Motion to stay with the Federal Court. The compensation ruling remains in effect unless it is stayed by the Federal Court. A decision on the application for judicial review is not expected until March 2020 at the earliest.

There are four orders to come from the CHRT on the following issues: 1) major capital; 2) band representative services actual costs; 3) small agencies; and 4) the definition of a First Nations child for the purposes of Jordan’s Principle.

What does this Act mean:

• The Act’s national guiding principles must be applied by all who provide child and family services to First Nations, Inuit, and Métis families including provinces, territories, and service providers.

• This will ensure that the best interests of the child, cultural continuity, and substantive equality are the guiding principles and priorities in any situation.

• The Act also opens the door for First Nations, Inuit and Métis to choose their own solutions by exercising their jurisdiction.

• We must all continue to work together to end this ongoing crisis impacting Indigenous children and families.

If pressed on Jurisdiction:

• With the coming in to force of C-92, basic principles such as cultural continuity, must be followed by every person providing services to Indigenous children in Canada.

• Indigenous governing bodies wishing to develop and enact their own laws, and have them be paramount over provincial and federal laws, now have the space to do so.

• With these changes, we are ensuring Indigenous children are supported and cared for with connection to community and culture.

If pressed on Funding for Communities

• With this Act, we are laying out flexible pathways for Section 35 rights-holders and their Indigenous governing bodies to move forward with their own child and family services models and laws.

• This government has committed almost $542 million over the next five years to support the implementation of the Act respecting First Nations, Inuit and Métis children, youth and families.

• This funding will support communities as they work towards exercising their jurisdiction and are fully prepared to participate at coordination agreement tables.

• We will continue to engage with partners to assess and address long-term funding needs.

If pressed on the transition:

• This historic Act was co-developed with our partners.

• We continue to work with our partners on the implementation of the Act.

• We are committed to exploring models for distinctions-based governance.

• These distinctions-based models would be venues for partners to highlight issues relating to transition and effective implementation of the Act.

• We are dedicated to working in partnership towards the shared goal of ensuring the safety and well-being of Indigenous children.

If pressed on engagement/co-development process:

• The Government of Canada engaged broadly at all levels during the co-development of the Act to ensure that a variety of stakeholders and perspectives were heard throughout the process.

• In the spirit of continued co-development of the Act’s implementation, we are committed to ongoing collaboration with partners which will serve to inform the child and family services landscape.

• We will be working directly with Indigenous partners at the community, regional and national levels to ensure a diverse range of Indigenous voices are able to express their views and recommendations on elements related to implementation of the Act.

If pressed on Provinces and Territories:

• While most provinces/territories are generally supportive of the objectives of the Act, concerns have been expressed regarding the constitutional validity of the legislation, financial implications, as well as operational and implementation questions.

• As provinces/territories are key players in the provision of child and family services, without their collaboration the ability to effectively undertake and complete coordination agreements, which are inherently tripartite in nature, is severely limited.

• It is Canada’s position that the federal Act is a valid exercise of its jurisdiction.

• Moving forward, it is our expectation that we will continue to work trilaterally to conclude coordination agreement discussions.

If pressed on guiding principles:

• The Act sets out national principles such as the best interests of the child, cultural continuity and substantive equality to help guide the provision of child and family services to Indigenous children.

• At its core, it establishes that the best interests of the child must always be considered when providing child and family services to Indigenous children.

• The Act seeks to put Indigenous children first so that they can stay with their families and communities and grow up immersed in their cultures.

If pressed on birth alerts :

• Far too often in this country, Indigenous children are separated from their families, communities, languages and cultures.

• We know the system needs to be reformed.

• The Act emphasizes the need for the system to shift from apprehension to prevention. Under the Act, priority can be given to services like prenatal care and support to parents.

• The provinces of British Columbia and Manitoba have recently ceased the practice of Birth alerts, and Saskatchewan is currently reviewing the practice.

• However, apprehensions of newborns in the hospital still occur. This needs to change.