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OHRC Submission to the Ministry of Children and Youth Services Review of the Child and Family Services Act

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Ontario Human Rights Commission
Submission to the Ministry of Children and Youth Services 
Review of the Child and Family Services Act
December 2014

Overview

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide input to the government’s legislated review of the Child and Family Services Act (CFSA).[1] The government’s review focuses on improving outcomes for children and youth, as well as modernizing and clarifying the language of the CFSA.

Section 1 of the CFSA states that, “The paramount purpose of this Act is to promote the best interests, protection and well being of children. The CFSA governs many of the province's programs and services for children and youth, including welfare, youth justice, developmental services, residential services, community support, Aboriginal child and family services, and adoption.[2]

Section 1 of Ontario’s Human Rights Code protects children from discrimination in services, because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, marital status, family status or disability.

Canada’s Charter of Rights and Freedoms as well as international human rights instruments, like the United Nations’ Convention on the Rights of the Child,[3] inform how Ontario’s Code is interpreted and applied.

The Code generally has primacy over other Ontario laws. The government should have regard for the Code when interpreting, applying or amending the CFSA, and when developing interpretive policies and guides. Similarly, the Child and Family Services Review Board and the Residential Placement Advisory Committee established under the Act, as well as service providers and any other individuals and organizations responsible for applying the CFSA and delivering related programs and services, should all have regard for the Code.[4]

Aboriginal Peoples

An additional stated purpose of the CFSA is "To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family."[5]

The terminology for Aboriginal identities in the CFSA is limited to "Indian" or "native person." "Indian" has the same meaning as in the Indian Act (Canada)[6] (i.e. a person who is registered as an Indian or is entitled to be registered as an Indian under the Indian Act). A "native person" is defined as "a person who is a member of a native community but is not a member of a band, and ‘native child’ has a corresponding meaning." A "native community" is defined as "a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services)," which means the designation is made with the consent of the community's representatives.

The Ministry of Children and Youth Services Report on the 2010 Review of the Child and Family Services Act noted that all stakeholder groups recommended the definition should be amended to include all children of Aboriginal descent, consistent with the definition of "Aboriginal" in section 35 of the Constitution Act.[7]

The Métis Nation of Ontario reports that children's aid society workers routinely fail to ask about Aboriginal identification, and even if they do ask, the client's cultural identity as Métis is usually then ignored. Workers equate "native" or Aboriginal identity with First Nations only. This appears to be contributing to the lack of appropriate Métis-specific recognition and referrals for Métis involved in the child welfare system, and to perpetuating systemic discriminatory treatment toward Métis.[8]

Similarly, Ontario’s Commission to Promote Sustainable Child Welfare recommended in its 2012 report that the CFSA be amended to replace outdated and imprecise terms and recognize First Nations, Métis and Inuit as the three distinct Aboriginal identities.[9] The CPSCW stated that the Métis people "are often not differentiated from First Nations by policy makers and services providers." As well, the CPSCW described how cultural learning and connectedness are critical for Aboriginal children and families in large urban settings, and recommended that they be part of the work that is done by Children's Aid Societies with every child, youth and family.[10]

1. The OHRC recommends that terminology in the CFSA be made more inclusive of First Nations, Métis and Inuit peoples.

The Aboriginal Advisor's report on the status of Aboriginal child welfare in Ontario[11] and media reports[12] have also raised concerns about insufficient funding and lack of culturally appropriate services, leading to Aboriginal families falling between the cracks and more Aboriginal children in the care of the state. Many parties have brought a related complaint to the Canadian Human Rights Tribunal alleging discrimination against Aboriginal Peoples in child and family services.[13]

In its concluding observations on Canada’s third and fourth periodic reports under the Convention on the Rights of the Child, the UN Committee responsible recommended that the state intensify its efforts to render culturally appropriate assistance to Aboriginal and African Canadian parents and legal guardians to enable them to fulfill their parental role and avoid separating children from their family environment.[14]

2. The OHRC recommends that the Ministry monitor how the CFSA is applied, collect aggregate data, and report on the extent that child and family services, including Aboriginal and non-Aboriginal children’s aid societies, are separating First Nations, Métis and Inuit children from their family environment, or otherwise not meeting their needs, and reflect any needed changes in its anticipated multi-year Aboriginal Children and Youth Strategy.[15]

Ethnic, racial, linguistic and religious identity

Section 1 (2) 4. of the CFSA recognizes that “wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.”

Article 30 of the Convention on the Rights of the Child states that a child belonging to an ethnic, religious or linguistic minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language. Article 20.3 of the Convention further states that when considering care options, “due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.”[16]

The Supreme Court of Canada has recognized that “[r]ace can be a factor in determining the best interests of the child because it is connected to the culture, identity and emotional well-being of the child.”[17]

And while language is not a prohibited ground of discrimination under Ontario’s Human Rights Code, it can intersect with other grounds including race, ethnicity, ancestry and creed, and therefore may be a factor in some forms of discrimination.[18]

3. The OHRC recommends that Section 1 (2) 4. of the CFSA be amended to recognize that it is also in the best interests of the child to respect their racial, ethnic and linguistic identities, whenever possible.

In its 2012 submission to the United Nation’s Committee on the Rights of the Child, the African Canadian Legal Clinic raised concerns about the overrepresentation of African Canadian youth and children in state care.[19] The media has also reported on the overrepresentation of black children living in foster care and group homes, and the ACLC and the Jamaican Canadian Association say racial profiling is a factor.[20]

4. The OHRC recommends that the Ministry monitor how the CFSA is applied, collect aggregate data, and report on the extent that child and family services, including children’s aid societies, are assessing risk to children based on ethnic or race-based stereotypes, separating Black or other racialized children from their family environment, or otherwise not meeting their needs.

Section 86 (3) of the CFSA states:

A Protestant child shall not be committed under this Part to the care of a Roman Catholic society or institution and a Roman Catholic child shall not be committed under this Part to a Protestant society or institution, and a Protestant child shall not be placed in a foster home with a Roman Catholic family and a Roman Catholic child shall not be placed in a foster home with a Protestant family, and, where a child committed under this Part is other than Protestant or Roman Catholic, the child shall be placed where practicable with a family of his or her own religious faith, if any.

5. The OHRC recommends that this section of the CFSA, and/or any interpretive policies or guides, be updated to reflect that:

  • Children of any faith should be committed to the care of a children’s aid society that may be affiliated with their faith or culture, wherever possible
  • No children’s aid society should deny service because of a child or family’s faith or culture
  • All children should be placed, where practicable, with a family of their own religious faith or culture, if any.

6. The OHRC further recommends that, in accordance with the Supreme Court decision in A.C. v. Manitoba (Director of Child and Family Services),[21] the “best interests” of the child provision under section 1 of Ontario’s CFSA should be interpreted in a way that grants increasing deference to a child’s religious wishes as the child’s maturity increases. This is a proportionate response to balancing religious rights against the state’s objectives in protecting children.[22]

Gender identity and gender expression

In accordance with section 1 of Ontario’s Human Rights Code, all services and facilities, including those for children, should be offered without discrimination because of a person’s gender identity or gender expression.

The OHRC’s Policy on preventing discrimination because of gender identity and gender expression[23] recognizes that transgender children and youth often face prejudice, harassment and discrimination when their gender identity and/or gender expression is different from the sex assigned to them at birth. The Policy states that everyone has the right to self-define their gender identity, including youth. It says that trans people are entitled to services and facilities, including washrooms, change rooms and housing, that are in line with their lived gender identity.

The Policy also says that service providers should recognize a trans client’s preferred gender identity, name and personal pronoun in their records and interpersonal dealings with the person. International human rights standards[24] and recent case law[25] confirm that service providers cannot expect trans people to go through sex reassignment surgery, or any other medical procedure, as a condition of service.

7. The OHRC recommends that section 1 (2) 3 of the CFSA be amended to recognize that children’s services should be provided in a way that, in addition to the other listed matters, respects the child’s gender identity and gender expression.

8. The OHRC also recommends that section 34 of the CFSA be amended to require that a Residential Placement Advisory Committee shall, in addition to the factors listed under section 34 (10), consider the gender identity and gender expression of a child or youth in its duties to advise, inform and assist parents, children and service providers with respect to the availability and appropriateness of residential services and alternatives, and in its duty to conduct reviews.

9. The OHRC further recommends that all relevant provisions of the CFSA should be interpreted to mean that obligated parties shall respect the gender identity and gender expression of the child in carrying out their duties under the Act.

Consent

Section 1 (2) 3.iv of the CFSA, recognizes that children’s services should be provided in a way that includes the participation of the child where appropriate. Section 2 (2) (a) of the CFSA says service providers shall ensure that children and their parents have an opportunity, where appropriate, to be heard and represented when decisions affecting their interests are made, and to be heard when they have concerns about the services they are receiving.

Section 105 (1) says that a child living in residential care has a right to a plan of care designed to meet their particular needs. Section 105 (2) says, among other things, a child in care has a right to participate in developing their individual plan of care and in any changes made to it. This section also says that the child has a right to be provided with clothing that is of good quality and appropriate, given the child’s size and activities and prevailing weather conditions.

Section 107 says a child in care has a right to be consulted and to express his or her views, to the extent that is practical given the child’s level of understanding, whenever significant decisions concerning the child are made. This includes decisions relating to medical treatment, education or training, work programs, religion and decisions about the child’s discharge from the placement or transfer to another residential placement.

10. The OHRC recommends that these and any other consent-related provisions of the CFSA should be amended to provide, and/or be interpreted, including through policies and guides, to mean that a child shall have a say, where appropriate, in decisions involving the choice of gender-based services and facilities. This should include a choice of sleeping accommodation, washrooms, change rooms, clothing, record keeping and personal interactions appropriate to the child’s gender identity, gender expression and transition.[26]

11. The OHRC also recommends that these and other provisions of the CFSA, related to consent and the right to be heard, should also respect and/or reflect the child’s identity and needs related to creed, race, ethnicity, disability or gender identity, and other protected grounds under Ontario’s Human Rights Code.

Parents or guardians with a disability

Following its consultation on mental health disabilities and addictions, in 2013 the OHRC reported concerns it heard that the child welfare system sometimes presumes, based on stereotypes and prejudice rather than objective criteria and evidence, that people with mental health disabilities and addictions are a risk to their children. The OHRC was told that some parents have been reported to the Children’s Aid Society after disclosing a mental health condition to a child’s school. The OHRC also heard that requirements for some parents to undergo drug or alcohol testing, as a condition to get back custody of their children, may not properly assess a parent’s risk to their children.[27]

Media reports have also raised concerns that some parents with disabilities are presumed unfit to raise their children or they do not have enough disability-related supports available to do so.[28]

Article 23.2 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD)[29] states:

“States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.

The CRPD also states in Article 23.4:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.

12. The OHRC recommends that the CFSA be amended, and/or be interpreted, including through policies and guides, in a way that reflects articles 23.2 and 23.4 of the CRPD relating to the rights and responsibilities of persons with disabilities in guardianship, wardship, trusteeship and adopting children; and that children should not be separated from their parent based on a disability of the child or their parent.

13. The OHRC further recommends that the government make sure that persons with disabilities have access to appropriate assistance in performing their child-rearing responsibilities.

Adequate housing and poverty

In 2008, after its consultation on human rights and housing, the OHRC reported concerns that children in Ontario continue to be relinquished to or apprehended by children’s aid societies because of inadequate housing.[30] The OHRC also heard that poverty rates experienced by Aboriginal Peoples, African Canadians, persons with disabilities and other groups disproportionally affected their access to adequate housing.

In 2012, the Commission to Promote Sustainable Welfare also reported that “families receiving child welfare services often face a complex array of issues that may include poverty, addiction, racism, poor health, inadequate housing, unemployment and social isolation.”[31]

Similar concerns were raised in the Concluding Observations of the UN Committee on Economic, Social and Cultural Rights in its 2006 report on Canada.[32] The Committee noted that low-income families, single-mother-led families and Aboriginal and African Canadian families are overrepresented in families whose children are relinquished to foster care. The Committee was concerned that women continue to be forced to relinquish their children into foster care because of inadequate housing. The Committee recommended that the government collect statistical data to accurately assess the extent of the problem. The Committee also recommended that the federal, provincial and territorial governments undertake take all necessary measures, including financial support where necessary, to avoid such relinquishment.

The United Nations’ Special Rapporteur on the Right to Adequate Housing reported from its 2007 mission to Canada that women, especially Aboriginal women, attempting to leave abusive relationships have few housing options and face the threat of child protection agencies apprehending their children. The Special Rapporteur recommended that “[s]ufficient income and housing assistance should be ensured to allow mothers to secure adequate housing and maintain custody of their children.”[33]

The Ontario Government’s Poverty Reduction Act 2009[34] recognizes the link between poverty and inadequate housing and the heightened risk of poverty among groups such as immigrants, women, single mothers, people with disabilities, Aboriginal Peoples and racialized groups. The government’s 2014 Poverty Reduction Strategy[35] commits to measuring the poverty rate of these vulnerable groups.

14. The OHRC recommends that the government review the CFSA, and/or any interpretive policies and guides, to make sure inadequate housing or poverty is not a stand-alone factor for considering whether the child’s well-being is at risk.

15. The OHRC further recommends that the government monitor, collect aggregate data disaggregated by disadvantaged groups identified in the Poverty Reduction Act, and report on the proportion of children and their families with low income and inadequate housing receiving CFSA services.


[4] Tranchemontagne v. Ontario (Director, Disability Support Program),[2006] 1 S.C.R. 513 

[5]Supra, note 1, s.1 (2) 5.

[8] Métis Nation of Ontario Recommendations Concerning Métis-Specific Child and Family Services Submitted to the Minister of Children and Youth Services, March 30, 2012 at p.3.

[9] Realizing a sustainable child welfare system in Ontario: Final Report, Commission to Promote Sustainable Child Welfare, September 2012, at p.108, online: www.children.gov.on.ca/htdocs/English/documents/topics/childrensaid/
commission/2012sept-Final_report.pdf

[10] Commission to Promote Sustainable Child Welfare, Aboriginal Children and Families in Urban Communities, Urban Aboriginal Seminar (July 18, 2012) – Summary of Proceedings.

[11] Children First: Aboriginal Advisor’s report on the status of Aboriginal child welfare in Ontario, 2011, online: www.children.gov.on.ca/htdocs/english/documents/topics/aboriginal/child_...

[12] See “Ontario to reform aboriginal child welfare system,” Toronto Star, January 17, 2013, online: www.thestar.com/news/canada/2013/01/17/ontario_to_reform_aboriginal_chil.... Also see, “Aboriginals represent 6% of Canada’s child population, but account for 26% of the kids placed in out-of-home care,” London Free Press, December 3, 2014, online: www.lfpress.com/2014/12/03/aboriginals-represent-6-of-canadas-child-popu...

[13] See “Stacking the odds against First Nations families,” Globe and Mail, October 20, 2014, online: www.theglobeandmail.com/globe-debate/stacking-the-odds-against-first-nat...

[14] See recommendations 54, 55 and 56 of the United Nations Committee on the Rights of the Child in its Concluding observations on the combined third and fourth periodic report of Canada, 2012, CRC/C/CAN/CO/3-4, online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?sy...

[15] See archived news release, “Taking Action to Help Aboriginal Children,” online: http://news.ontario.ca/mcys/en/2013/01/taking-action-to-help-aboriginal-...

[16] Supra, note 3.

[17] Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at para. 40.

[18] See the OHRC’s Policy on language and discrimination at www.ohrc.on.ca/en/policy-discrimination-and-language

[19] “Canada’s Forgotten Children: Written Submissions to the Committee on the Rights of the Child on the Third and Fourth Reports of Canada” by the African Canadian Legal Clinic, July 2012.

[20] The Toronto Star reports numbers it obtained “indicate that 41 per cent of the children and youth in the care of the Children’s Aid Society of Toronto are black. Yet only 8.2 per cent of Toronto’s population under the age of 18 is black. … Other figures… indicate the overrepresentation is province wide.” See Toronto Star, Dec. 11, 2014, “Why are so many black children in foster and group homes?” online: www.thestar.com/news/canada/2014/12/11/why_are_so_many_black_children_in...

[21] [2009] 2 S.C.R. 181

[22] Also see the OHRC’s Creed Case Law Review (2012) online: www.ohrc.on.ca/en/creed-case-law-review

[24] Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2007), online: www.yogyakartaprinciples.org/principles_en.htm

[25] In XY v. Ontario (Government and Consumer Services), the Human Rights Tribunal of Ontario found that requiring trans people to have transsexual surgery to change their sex designation on a birth certificate (under the Vital Statistics Act) was discriminatory and not a reasonable and bona fide requirement. Supra, note 2, at paras. 14-17, 238.

[26] Also see, the Ontario Human Rights Commission Submission Regarding the Ministry of Government Services Consultation: Change of Sex Designation on a Birth Registration of a Minor, August 22, 2014, online: www.ohrc.on.ca/en/ohrc-submission-regarding-mgs-consultation-change-sex-...

[27] See section 13.3.b of the OHRC’s report, Minds that Matter, online: www.ohrc.on.ca/en/minds-matter-report-consultation-human-rights-mental-h...

[28] See “Disabled couple cherishes a year of firsts with their baby,” Toronto Star, April 7, 2013, online: www.thestar.com/news/gta/2013/04/07/disabled_couple_cherishes_a_year_of_...

[30] See “Inadequate housing and the admission of children into care” under section 5.2 of the OHRC’s report, Right at Home, online: www.ohrc.on.ca/en/right-home-report-consultation-human-rights-and-rental...

[31] CFSCW report, supra, note 9, at p.6.

[32] E/C. 12/CAN/CO/5/ (2006), online: www.refworld.org/pdfid/45377fa30.pdf

[33] Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Miloon Kothari, Mission to Canada 2007, A/HRC/10/7/Add.3 February 2009, at para.64, 81 and 104, online: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/115/02/PDF/G0911502.pdf?O...