How will the changes to child protection legislation affect the women I support?

How will the changes to child protection legislation affect the women I support?

The new Child, Youth and Family Services Act shifts Ontario from a needs-based child protection system to one that is rights-based and allows all those who work with and serve children to place those children at the centre of decisions regarding their care.

The key changes included raising the age of protection from 16 to 18, strengthening the focus on early intervention, making services more culturally appropriate for all children and youth in the child welfare system and improving oversight of service providers.

Background

Bill 89, the Supporting Children, Youth and Families Act, 2017, received Royal Assent on June 1, 2017, and the Child, Youth and Family Services Act (CYFSA) came into force on April 30, 2018. This new Act replaces the Child and Family Services Act (CFSA) and represents the most extensive changes in child welfare legislation since the CFSA was first passed into law in 1984.

Catalysts for the present revisions included a statutory requirement that the CFSA be reviewed, calls from stakeholders to change the focus of the legislation from a needs-based to a rights-based approach, to build on the United Nations Convention on the Rights of the Child (UNCRC), to provide support for older youth in need of protection, and to support Indigenous children, youth and families in addressing systemic issues related to overrepresentation of Indigenous children in the child welfare system. Revisions were also driven by the Truth and Reconciliation Commission of Canada and jury recommendations arising from child and youth deaths that revealed significant gaps in the various systems meant to protect children.

Preamble and language

The paramount purpose of the CYFSA remains the same as that of the CFSA: to promote the best interests, protection and well-being of children.

Additional purposes in the CYFSA include taking into account a child or young person’s cultural and linguistic needs, providing services that build on the strengths of families, and the appropriate sharing of information for planning and providing services.

The preamble to the legislation states that “the Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard” and commits Ontario to child-centric services that address systemic racism and barriers, respect diversity and inclusion, seek to maintain connections to communities whenever possible, and build on families’ strengths and reduce the need for more disruptive interventions.

Language has also been updated and made more appropriate.

A Crown ward is now referred to as a child in extended society care, and a society ward as a child in interim society care.

Instead of using terms such as Indian or Native, the CYFSA refers to First Nations, Métis and Inuit children and youth. Terms such as “abandoned” and “runaway” are no longer used, and “apprehension” is now referred to as “bringing a child to a place of safety.”

Key changes for a rights-based child protection system

Section 3 of the CYFSA sets out the rights of all children and youth receiving services. These include their right to express their own views, freely and safely, on matters that affect them, to be engaged through honest and respectful dialogue about how and why decisions affecting them are made, to have their views given due weight in accordance with their age and maturity, and to raise concerns or recommend changes.

Most of the changes have been made to protect and empower children, such as extending the prohibition of detaining children in locked premises to foster parents and service providers and allowing children to participate in decisions about their placement.

Another key change is the increase in the age of protection to include 16- and 17-year olds, allowing youths to access services from which they were previously barred. The statutory duty to report a reasonable suspicion that a child may need protection only applies to children younger than 16; however, a report can be made for a child who is 16 or 17 years old. Youth who are 16 or 17 may not be brought to a place of safety without their consent. Societies are now required to provide continued care and support to eligible persons 18 years or older. Youth who are 16 or 17 years old may now sign a voluntary youth services agreement (VYSA), enter into a temporary care agreement (TCA), or bring a direct application to court to be placed into the society’s care.

The best interests test now makes it mandatory to consider the child’s view as well as the importance of preserving the cultural identity and connection to First Nations, Métis and Inuit communities. Other circumstances to consider when conducting the best interests test include cultural and linguistic heritage, race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression.

Further changes that promote a rights-based child welfare system include an obligation to assess the capacity of the child to form their own opinion. The assessment has a low threshold, no age limitation and no starting presumption of incapacity. Measures to ensure the child’s right to be heard include informing children of their rights and the consequences of their choices, encouraging participation and providing proper assessments and feedback.

The CYFSA contains a new test requiring that access orders for children in extended society care be in the child’s best interests. Specifically, the test assesses if the relationship between the person and child is beneficial and meaningful to the child and, if relevant, whether the ordered access will impair the child’s future opportunities for adoption.

First Nations, Métis and Inuit children and youth

The CYFSA addresses many of the calls to action from public stakeholders in the First Nations, Métis and Inuit communities.

Indigenous children are dramatically overrepresented in the child welfare system due to systemic racism, the effects of colonization and the history of residential schools. While Indigenous children under 15 make up just three percent of Ontario’s population, Indigenous children living off-reserve account for 21% of children in care.

The CYFSA acknowledges a failure of previous child welfare legislation in its reference to Jordan’s Principle. Jordan was an Indigenous child who died of medical complications while the federal and provincial governments disagreed on whether the matter fell under the federal jurisdiction as an Indigenous issue or under the province’s healthcare jurisdiction. Jordan’s Principle states that a jurisdictional dispute should not interfere with a child’s right to accessing that service.

For that reason, the preamble of the CYFSA states, “When a First Nations, Inuk or Métis child is otherwise eligible to receive a service under this Act, an inter-jurisdictional or intra-jurisdictional dispute should not prevent the timely provision of that service, in accordance with Jordan’s Principle.”

Lastly, the preamble states that the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Métis and Inuit peoples to help ensure that they care for their children in accordance with their distinct cultures, heritages, and traditions whenever possible. For instance, Part IV of the CYFSA allows a First Nations, Métis or Inuit band or community to designate a body as a child and family service authority.

Personal Information

Part X of the CYFSA, which sets out the legislative privacy framework for Ontario’s child and youth sector, will come into effect on January 1, 2020. The section will establish new rules for the collection, use, disclosure of and access to personal information held by ministry-funded and licensed service providers.

Part X is meant to fill the legislative gaps in the child and youth service sector, in which various agencies are governed by the Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act, and the Personal Health Information Protection Act. Some of these overlaps lead to inconsistencies, while other ministry-funded agencies like Children’s Aid Societies are not governed by relevant privacy legislation at all.

Under Part X, clients will be able to request access and corrections to their records of personal information, have more control and access to how their personal information is shared and handled among service providers and have access to a complaints process and an independent review mechanism. Service providers will have clear rules for collecting, using and sharing clients’ personal information, oversight from the Information and Privacy Commissioner, and requirements to protect clients’ privacy and improve transparency and accountability. Part X also clarifies the ministry’s authority to access, use and share data and includes further privacy requirements.

Many thanks to Kevin Chao, student-at-law with Luke’s Place, who researched and wrote the brief that is the basis for this FAQ.

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