In the previous article on the Act respecting First Nations, Inuit and Métis children, youth and families  ("Bill C-92")  the formation, foundations, and overall structure of Bill C-92 was discussed as it related to the legal aspects of child and family services in Canada. Stated briefly, the Bill C-92's key driver was to provide protections for Indigenous children and families and establish a pathway for Indigenous groups and communities to be able to administer their own child welfare and family services in Canada. Given that Bill C-92 came into force on January 1, 2020 it is now nearing its first anniversary as active legislation.

This new legislation has had its fair share of positive and negative attention as those involved work to interpret the legislation, understand its implications, and negotiate its implementation. Different populations can now have different legislations in force. Indigenous groups now have federal legislation and, at this point, may or may not have their own unique legislation. While not purposefully vague, the federal legislation is steeped in principles and safeguards which can leave room for interpretation and ultimately the need for legal clarity.

To date, the year 2020 saw some notable events in relation to Bill C-92:

  • The province of Quebec challenged Bill C-92 constitutionality in an effort to weigh provincial and federal jurisdiction in matters pertaining to child welfare and social services.
  • The first Indigenous groups moved forward with drafting and adopting their own child welfare and family service legislation.
  • There was a broad range of reactions to Bill C-92 by many Indigenous groups, leaders and critics outlining its deficiencies, shortcomings and overall tone of the legislation. Even though many supported the principle of the legislation, many were also concerned about the details of the implementation.
  • In July the federal government and the Assembly of First Nations signed an agreement regarding the funding of provisions of Bill C-92. It established a "joint fiscal table" on First Nations child and family services where funding agreements can be negotiated between the parties.
  • 2020 also saw the first interpretation by the courts of Bill C-92 (discussed below)

Developing precedents through case law over time will provide interpretation and clarify ambiguities in Bill C-92. Discussed below are just some of the cases in 2020 that involved interpretations of Bill C-92.

Michif CFS v. C.L.H. and W.J.B., 2020 MBQB 99

In this Manitoba Court of Queen's Bench case, a Metis child was apprehended by the Michif Child and Family Services. The Court reviewed and considered all aspects of Bill C-92and considered the relationship between the federal act and the existing provincial legislation (The Child and Family Services Act  in Manitoba).

The Court found that the most significant difference between the federal and provincial acts related to the principle of the best interest of an Indigenous child. In the federal legislation, the Court noted that the child's best interests are considered paramount at all stages of the family services process. In contrast, the provincial legislation relies on best interests only when a specific section so directs. Further, the federal legislation provided for a more expansive list of best interest factors. The Court noted that the federal act takes precedence if any conflict or inconsistency exists between the two acts. In this matter, the Court deemed the conflict or inconsistency in question related to when and how the consideration of best interests of the child is to be applied.

SL (Re), 2020 ABPC 194

The Director of Children's Services in Alberta applied for a Temporary Guardianship order regarding five Indigenous children. The children's mother alleged non-compliance with sections 12 and 16 of Bill C-92. Specifically, it concerned the purported failure of the Director to provide notice prior to the emergency apprehension of the children to the Indigenous governing body and herself. The Director argued that while the Provincial Court has the authority to consider Bill C-92, it does not have the statutory authority to conduct a hearing into an alleged breach of Bill C-92.

The Alberta Provincial Court noted that Bill C-92 does not articulate what remedies, if any, are available when a party is non-compliant with it. The Court further found that in this case there was no factual basis for the mother's application for a hearing to address the alleged lack of notice of apprehension of the children. Importantly, the Court also found that it had no statutory authority to grant the mother's application.

C.A.S. v K.C. and Constance Lake First Nation, 2020 ONSC 5513

In this Ontario Superior Court of Justice case, both the mother and children identified as Metis. The Children's Aid Society had brought an application to amend or adjust an earlier order that provided that the mother's access would occur at an Indigenous community center. A temporary order was also sought.

The Court considered the relevant provisions of Bill C-92, being sections 4, 8 through 11 inclusive, and the priority of placement in section 16(1). The Court noted only two factors were included in Bill C-92 that were not already included in the more comprehensive provincial act (The Child, Youth and Family Services Act in Ontario). Accordingly, the interplay between Bill C-92 and the provincial act can be seen as establishing an augmented best interests test for Indigenous children that overrides the hierarchy of placement for Indigenous children set out in Bill C-92.

So far judicial consideration of Bill C-92 is limited. As time passes, it is expected there will be significant additional interpretation of Bill C-92 and, in particular, its interaction with provincial legislation.

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