Manitoba Committee Hansard — 8 July 1985 (Public Expenditures Committee, Sitting 2, 32nd Legislature, 4th Session)

32-4-pe2

Manitoba — Debates (Hansard)

LEGISLATIVE AS SEMBLY OF MA NITO BA THE STANDING CO MMITTEE ON PRIVILEGES AND ELECTIONS Monday, 8 July, 1985 TIME -10:00 a.m. LOCATION -Winnipeg, Manitoba CHAIRMAN -Mr. P. Eyler (River East) ATTENDANCE - QUORUM -6 Members of the Committee present: Hon. Mr. Evan s, Hon. Mrs. Sm ith, Hon. Messrs. Storie, Para siu k, Penner , Uski w Messrs. Birt, Enns, Eyler, Mrs. Hammond WI TNESSES: Mr. Don Lugtig , Manitoba Association of Social Workers Ms. Donna Lucas, Charter of Rights Coali tion Ms. Susan Devine , Northwest Child and Family Services Agency Mr.

Ken Murdoch, Social Planni ng Council of Win nipeg Miss Sharon Henle y-Tayl or, The School of Social Work, University of Manitoba Chief Jim Bear, Sou theast Resou rce Development Council Chief Rod ney Spence and Mr. Ovide Mercredi, Awasis Agency of Northern Mani toba MATTERS UNDER DISCUS SION: Bill No. 12 - The Child and Family Services Act;

Loi sur les services a I' enfant et a la famil le. MR. CHAIRMAN: Comm ittee, come to order. We are con si dering Bill No. 12 tod ay, The Child and Family Services Act. We have a list of people who would like to make presentatio ns from the public. I wil l go down the list as I have it before me. Is Mr. Don Lugtig pres ent? MR. D. LUGTIG: Mr. Chai rman, Madam Minister and members of the commi ttee. We are very pleased to be able to present some comments to you about the proposed Child and Family Services Act. My name is Don Lugtig and I represent the Manitoba Assoc iation of Social Workers.

Our board reviewed the act on the basis of certain sub missio ns by a special commi ttee struck to review the act and has deleg ated to me the respon sibil ity of making a sub missi on. Mr. Ed Mos covitch was also to have been here but was unable to do so. We're very impr ess ed, as an associatio n, with the proposed act; we thin k it 's a real step forward and it is really excel lent. We're parti cularly imp ressed with the preventi ve thrust of the bill and the

section on services to famili es, the services to children which req uire that their cultural and lingui stic heritage be considered . 18 We 're also imp ressed with th e Declara tion of Principles at the begin ning of the act and the fact that the best interests of the child, I believe, are being included in that . Our comments then, are really very, perha ps, minor ones and relate to a few concerns, some of which ma y be wording or houseke eping, but others are related to concerns which our mem bership in one way or an other has expressed. They're divided up into various sections. The first is in Appendi x I and concerns comments under ·the sectio n, Admi nistrati on. We recomm end that

Part I Admi nistration of the proposed act be reviewed for the purpose of mak ing its provisions more comp rehensive so that it ma y better facilitate the reali zation of the fund amental principles as set forth in the Declara tion of Principles. Perhap s this is super fl uous, but we think that the wording of

section 4( 1)(

a) could be stren gthened and the Duties of Director be streng thened by adding that the director "admi nister and enf orce the provisio ns of this act in keeping with the Declara tion of Principles as set forth in the act ." That ma y already be assumed, but to have that in the wording would, we thin k, make it stronger and clearer and would set the parame ters for the communi catio ns which the Director might have with the Minister and other agencies and the community at large. Then we would sug gest adding a

section to 4( 1 ), which would be somewhat similar to 4( 1)(

b) and could repla ce 4( 1 )(b): "advise the Minister on whether the provis ions of this act , or any other Manitoba statute, are cons istent with the Declara tion of Principles as set forth in this act ." One of the concerns, I thin k, that social workers have had for a numb er of years is that various operations of other legislation have really sometimes been to the detriment of children and fami li es. We thin k, just offhand, of The Social Allowance Act and The Education Act.

Sometimes famili es are dismem bered from what ma y appear to be the benign ad mini st ration of these acts, but in effect are not so benig n. We think that this would strengt hen the voice of the Child and Family Services Director and would give him or her, as it were, a job of sp okesperson in the government for Child and Family Services.

Going on to Page 3 of our su bmissi on, at the top of the page, we could also add a sectio n: "That the director" - and this may be presumptuous - "ad vise the Cour ts, th e Attor ney -Gener al, and other departments and agen cies of government when normal practices and procedu res might in speci fic cases im pede the realization of the intent in the Declara tion of Princip les as set forth in this act ." Our concern here is similar to our concern under the previous sta tement, but it specifi cally arose out of recent operation of the courts in crimin al pr oceedings with respect to the evidence of children in se xual abuse cases.

We're qui te concerned that the giving - and we'll comment on that later - of evidence by child ren in open

Mond ay, 8 July, 1985 court can be detrimental to the child. I'm not sur e how much of this lies within the jurisdiction of the provin cial gover nment, but we think that if the director is given a voice and given the autho rity to make certain com ments, then those com ments might be carried forward and eventually create changes in the operation of - and I'm not sp ecifically referring to the courts altoge ther, but in other ways as wel l. Then moving from the duties of the direc tors, we'd like to look at the whole area of corporation of boards, the mem bership of boards and so on.

In keeping with No. 10, Declaration of Principles: "Co mmu nities have a respon sibili ty to promo te the best inter ests of their child ren and famili es and have the right to serv ices to their famili es and childr en ," it is recommended that the foll owing sections be amende d to read , and then we sugg est these and I'll just go through them qu ickly: No. 2.

That the Appli cation for Incorporatio n und er (6)(1) be amended to read : "Any 12 or more persons over the age of 18 years, who desire to associate themselv es toge ther for the purpose of providing child and family serv ices, may mak e an app lication to the Minister for inco rporation in the presc ribed form." We note that in

section 6(4) that it specifies that The Cor porations Act sh all apply to all agenc ies incorpo rated un der this act , and that in The Corporatio ns Act a minim um of one person can apply for incorpora tion and a minim um of three persons can constitute the directors of the corporation. Here I believe it sug gests that three persons can appl y for inco r pora tion and we th ink that that is too few considering that we are looking to commu nity as being the basis for the agen cy.

We would like to sug gest that even though 12 pers ons, as conta ined in the present Act, is an arbitrary figure, it sur e is a lot more than three. We would sugge st that any 12 persons be allo wed to apply for incorpo rati on. No. 3.

Then regarding the di rectors, our same point really , "The affairs of the agency sh all be mana ged by a board of not fewer than seven or more than 50 di rectors." That 's in the current act and we think that shou ld be moved over into the proposed act, that three or more persons is not real ly sufficie nt to set the paramet ers for com muni ty as laid out in the Declara tion of Princip les. No. 4.

Looking then at the Compos ition of di rectors , we note that in the by-laws, which we believe were distributed by the department under the director's office to the new Child and Family Services Agen cies in Win nipeg , the mem bership of the boards of di rectors would cons ist of nine mem bers, indi vid uals from the commu nity; three from service providers; three from go vern ment appo intees; and one st aff app ointe e.

Adding up the service provid er representa tives , the government ap pointees, and the staff repres enta tives, we would get seven ou t of 16. lt would be really possible for the formal service providers, that is the professi onals, to line up with about 3 communi ty mem bers and control the affairs of the agen cy. We don't thin k that that is truly representa tive of commu nity control.

This does happen in other jurisdicti ons and we would sugge st that some wording be inc lude d that would make the absol ute ma jority of the commu nity possible in the bill, so that no formal service providers could group toge ther to control the agency, or empl oyee reps or government reps. 19 I think that the com mu nity would pay and give due attention to professio nals and service provider reps. but I don't think in the end their wil l sh ould be thwarted, except insofar as it pertains to the admi nist ration ol the act.

There was one final point around boards of di rectors we felt that the transpos ition of the Corporations Act'� wording under 6( 10 ) that the board of di rectors sh oulc be di rectly and ind irect ly responsible for thE mana gement of the age ncy sh ould be dele ted because we don't thin k that the board of di rectors shou ld be di rectly responsible for the mana gement of the agenc� and that this sh ould be clearly spelled out.

I sug gest this addi tion: "Su bject to this act, thE directors sh all be res ponsible through an executi vE director, emplo yees, and agents for mana gement of thE affairs and bus iness of the agency in keeping wit�

section 7(1) of this act and the Declaration of Principle! as set forth in this act." I think we' re adding thE Declara tion of Principles there. I don't know that commu nity mem bers want to ge· into case si tua tions, except on the bas is of appeal, bu certain ly not into the di rect case or client work whict the agenc y would be doing, nor do I think it would be desi rable, nor does our associatio n. Then we'd like to move, if we may, qu ickly to the issues of confid ent iali ty and access.

When the curren act came up for consideration a couple of years ago our board was undecided about the whole ma tter o having the press present in Child and Family Court, o Child Welfare Court as it is now. After reviewing somE of the current articles in the press about cas es, thesE mind you are mostly criminal cases, and the reportin� of those , we are conc erned about that .

We fin< particularly in sex ual abus e cases that the reporting i: far too expli cit, we don't think that it is to the famil; or children 's best inter ests that the specific sexual act: commi tted on a child be publi shed in the newsp aper it migh t be said that a child can 't be identi fied , but WE thin k that the overall content of the

article sug gest: that the child can be identi fied and we don't thin k i is in the child or family 's best inter est for that ma teria to be public. This is the area out of which this concerr arose. If we had our choice, we would prefer that the pres: not be there. Because these matters are private, w• are trying to get volun tary participati on, co-opera tion and we don't think that publishing this ma terial real!· is conduc ive to that . And so we would recommend tha the press not be present.

On the other hand, we can see why a Legislatun would want the press present and if, in the wisdom a the Legislatur e it decides that they wish to have th• press pres ent, we thin k that more restrictio ns sh oul< be placed upon the press than are prese ntly in the acl or in the proposed bill and we've taken this ma teri� solely from the proposed Child and Family Service Act in the Province of Ontar io. Our proposed

section 75(3) then would read , ':If upon hearing an appli cation of any party to th• proceedings, or upon his or her own motion , the judg· or ma ster ma y: "(

a) ex clude all medi a rep resent atives from th proceedings; "(

b) limi t the num ber of media representa tives wh• ma y be present at the proceedings;" - and I sugges

Monday, 8 July, 1985 tha t sometimes the numb er of people at some of these court hearings is qu ite opp ressive, really . "(

c) exclude a particula r med ia repres entativ e from all or part of the proceed ings;" - we 've noted tha t so meti mes a

part icular writer ma y include in forma tion on a regula r bas is that really ap pears to us to be detrim ental to the child or fam ily. "(

d) prohibit the public at ion of a report of the hearing or a sp ecified part of the hearin g." This would enable the jud ge to al low the general reporting of the hearing but would pos sibly allo w the judge to exclude certain parts which relate to very sensit ive ma terial . We think that this would give the judg e more leeway and more direction and would be less draconian than the present and proposed sect ion which really only provides for penaltie s.

Then we'd like to go into another area of concern which our mem bership has brought to our atte ntion, which relates to what I said before, and that is the whole busi ness of childr en testif ying in court. We note that und er the proposed act, childr en can be present in court and we think that is good . However, the matter of test ifying is qu ite different, we think, and we have noted that this can be qu ite upsett ing to children. There was an

article in the press only about a week ago in a criminal proceeding that a 10 -year-old child was asked to give evidence agains t a person for sex ual ass ault, and the child was so upset that she started to cry and she was brought into court, started to cry, she was taken out, she was asked if she could return, she said she would and then she got so upset that she couldn't appe ar. I think this only illust rates the kind of emotional trauma that these childr en can go through by being present in court and giving tes timony .

We real ize that a person who is accused of such a situation needs pr otect ion and perhaps the only pro te ct ion tha t person can get is through cross exami na tion of a wit ness, such as a child. However, we think that we may be able to mitiga te some of this by the fol lowing sugges tions . lt is our strong recommenda tion, based upon views exp ressed by our mem bers, having experience in such proceed ings, that the evidenc e of childr en in Famil y Court under this act be limi ted in the main, (1) to aff ida vits, (2) to hearings before the judge in chambers.

Acco rd ing ly, we suggest the following sect ion be chan ged and su bseq uent su bsect ions be renum bered according ly. "(

a) A judge shall accept evidence from a child by affidavit except upon app lication that the evidence be given by the child in perso n; "(

b) Evidence given by the child in person shall be heard in chamber s." We note that su bsect ion 25(8.a. 1) in the current Chil d Welfare Act provides "A judge ma y in his dis cretion consult the child in cham bers or in court" but this has been left out of the current bill.

Just to highlight that a bit, or add to it, a child ma y not - this is only the end of of the proceed ing - a child ma y have al ready given evidenc e, or given the same story, to a social workers, mother or dad, to a school couns ellor or teac her, to a worker in a child abus e team in a hospital; he ma y have given evidence in a Criminal Court pr oceed ing and now he's in a Child and Fami ly Service Court proceed ing.

This is a lot of tim es to go over this story and a lot of trauma involved in tha t, 20 and we would sugge st that if the comm ittee could do an ything to reduce some of that, it would be to the benefit of the children. Then, goin g on to sect ions related to access and records. We'd like to exclude our comments under sect ion 76(5).

At first we thought tha t the provisi ons here were not adeq uate for protection of informa tion given by other people than the client, but we fee l after a careful review, that the sect ion is really adeq uate from our point of view and we would like our com ments exclu ded - or ign ored, would be more like it. On Page 9, sect ion D, the issue of privi leged communica tions for solic itors in sect ion 18 (2) which exempts the sol icitor - or we think it exempts the sol icitor - from reporting on child abus e. I'm not sure that it does, but we think it does.

Und er the current Child Welfare Act, solic itors are conside red like any , other profes sionals and are, we bel ieve, req uired to report child abus e, and we think they should als o be in the current Child and Fam ily Services Act. We don't think that a solicitor should be all owed , if he knows tha t a certain abus e is present and conti nuing, should be able not to report that und er the cloak of privileged commun ication.

After all, the consequenc es are too se rious for the child and it's not a one-act type of thing, it's usually a progress ion over a period of time and we think that this should not prevail and that this particular sec tion , tha t pa rt of it, should be dele ted . Then going to the matter of Private Guardianship of the Person and Access under

Part VII. In our original brief, we included an extra page here. We have a numb er of concerns under guard ianship which are on tha t page and I'll try to go through them real ly quickl y.

One thing we thought was incongruous and the sect ion und er Private Guard iansh ip brings it out - it's incongruous tha t the judge only may req uire a report of an agency und er private guardianship and when you set this up ag ains t all that it has gone through in removing guard ianship of a child from his family under the previous sect ions in the act , it really doesn't give due weight to the child whose guard ianship is under consi dera tion under the Private Guardianship sec tion .

We feel that a child is a child and that the same concerns should really be present in the Private Guardiansh ip that are in the other sect ions and. therefore, we suggest tha t a report on the child be req uired , that the judge be req uired to obtain that from an appropr iate source and that this be made part of his decision as to guardiansh ip. We don' t think the judge has adequa te informa tion otherwise. So we sugge st that sect ion 77(4), where an order is ma de under this sec tion, the applicant is for all purposes of the gua rd ian - oh, I'm sorry - I am mi sread ing that.

We sugge st that that sect ion include that the judge shall requir e a report . Then I think what we would like to do is go to the sect ion, the addition here under guardianship, and there are a numb er of qu es tions which we are not alto gether sur e that haven't been consi dered or tha t were right in proposi ng, but we would like to bring them forward for possi ble considera tion. There may be some gaps here that have been identified, we are not certain.

No. 1., under defin itions, "'gua rdian' me ans a person other than a parent of a child who has been appoi nted gu ard ian of the person by a cour t of com pete nt

Mon day, 8 July, 1985 jurisdiction "; yet a parent or parents can surrender guard ians hip of the child to an agency under 16 (1) and (2), and the court can appoint an agen cy, a temp orary or a permanent gua rdian under sect ion 38( 1 ). So we recommend that the guardi an include "a gency" as well as "p erson ". No. 2. Under sect ions 16 (1) and (2) and 38( 1 )(f), the agency - not the dir ec tor - becomes permanent guardian of the child. This is suppor ted by the defi nition, we think, which says that a "wa rd" means a child of whom the director or agenc y is the guardian.

There appear to be some exce ptions to that. Exceptions appear to be where a di rector has as sume d responsi bil ity for an agency: ( 1) where none is functioning in an area; or (2) where guar dianship has been given to a regional office und er sect ion 16 (3). Yet the di rector is the only person desi gna ted to sign adoption consents under, I think it's 58( 1 ). Cons ents of a ward of an agency who has been placed for adoption, it is our view that signing cons ents, or the power to sign con sen ts, usually flo ws from guardiansh ip.

We would recom mend tha t to rem ove any ambigu ity, it is sugge sted that the director be given one of two courses: ( 1) the director be given overriding guardianship over all children, even those who are made we�rds of the agency; or (2) that cons ents be sig ned by the gua rdian agency as in the current act, sect ion 83( 1) . This may have already been conside red, we don't know, but we are sugge st ing that.

No. 3, sect ion 46 states "w here, prior to apprehension, a me mber of the child's fam ily had in fact assumed care and control of the child, that the mem ber has the same rights as the guardian under this part ". We ask what are these rights? They are access under sect ion 27(3); Notice of heari ng under sect ion 30(1) ; and child to be returned under super vision und er 38( 1) . But the act doesn't really refer to any obliga tions or resp onsi bility, at least none is men tioned.

If the child is returned to the guardia n under su pervision, it se ems to us th at gua rdianship should in clude respon sibili ties or obliga tions as well as rights. Perhaps some reference should be ma de und er

Section 46 to that. Then we look at the defi nition of guardiansh ip and what it contai ns . Guardian ship under the act, in addition to care and control, in clu des mai nten ance and education of the child under 48(a), and (b), mai ntenanc e, education and well-bei ng of the child unde r 77(4). Now the 48(

b) refers to guardianship of the child by an agency; and 77(4) includes guardianship of a child by the private gua rdian. So we are wondering if sect ion 48, the agency guardianship, should not also include well-b eing as well as education and maint enanc e. We think that this is really the hope that agencies will have the well-being of children in their mind and tha t this should be an ad dition to that sect ion in 48. We no te un der our point 4. here tha t priv ate guard ianship refers only to guardianship of the person.

We wonder what happens to guardianship of the estate, by whom is this appoi nted, how does this fit in with guardianship resp onsi bilities und er sect ion 77(4)? If the private guardian is to be respo nsi ble for mai ntena nce, education and well-being, where does he get the resou rces for that and how is that hand led ? We also note that under sect ion 48 there is not sp ecific mention of gua rdiansh ip of person and estate. 21 Does this mean that the agency has both? Should this not be spelled out?

Then under our point 5. we also note that guardians do not appear to be able to sign adoption cons ents as they are under the current act. Yet in de facto adopti ons, 71 (2), it says no consent of a parent or a guardian is req uired. We wonder if in this sec tion gua rdians should be left out to ma ke it consis tent with the rest of the act. Final ly, in point 6., we note also that orphans have been left out of the lis t of children or situations need ing protect ion under 17 (1) , and are not lis ted among children who may be adopted by waiver of cons ent under 58(7) .

Should some special provision be made to clear up pos sible ambigu ity of legal jurisd ictions over orphans, childr en really who do not have any gua rdia n at all? If they don't have a guardia n, how do they get adopted ? Particular ly, if guardians can 't sign cons ents to adoptions , do they come in under the provisions of childr en need ing pr otection and do the provisions o1 childr en need ing protect ion really include a child who is an orphan? They seem to refer to whether a child is well- cared for or adeq uately cared for, but I am not sure that would pertain to all orphans .

They may be wel l-cared for but they st ill need adopt ion pla cement. and they st ill would not need protection. I guess tha t'� the point we're trying to make . The final point we would like to make is around the subs ection related to fathers applying for a recogn itior of paternity as in the last page of our subm ission. 11 notes that a child can 't be placed for adoption unles� the father's applic ation has been withd rawn, dismis sec and all appeals of the dismis sal exhaus ted.

Well, I don'l know, if you're a little kid six months old, how lonf you might have to wait until all the appeals to tha t have been exhaus ted. The problem is that, if it's a dismis sal, the weight ol evidence already has gone agains t the person applying We think that this gives an undue amount of weight tc a situation that ma y be qu ite weak really. While we don't know of any par ticular remedy to that, we woulc like to ask the commit tee to look at that and perhap! ask that a specific solution be fou nd for it.

We realize tha t people have to have rights to app eal, but at some point these rights may have to be limi ted in the bes inte rests of children who are being considered. I think, Mr. Chairman and mem bers of the commi ttee these are all the com ments that we would have to makE regard ing our brief. We're very happy to nave beer able to ma ke it. We're sorry we 're so long- win ded anc had so many points, but we would be happy to sp eal to anyth ing that we have raised. MR. CHAIRMAN: Are there any ques tions for Mr Lugtig? Mrs. Smith. HON. M. SMITH: I appr eciate very much the thoug htfu an alysis of the act.

Some of the concerns we feel, an tied to legal interpr etation, but the court proceed in! recommenda tions we find very persuasive but recognizE they take longer to work out. I would appr eciate your opinion as to whether thE presentat ion of videotaped interviews as evide nce o childr en's tes timo ny would be acceptab le.

Monday, 8 July, 1985 MR. D. LUGTIG: I think that migh t be certai nly a lot better than what is at pres ent, yes. HON. M. SMITH: Thank you. MR. CHAIRMAN: Are there any further quest ions for Mr. Lugtig? Seeing none, I would like to thank you, Mr. Lugtig, on behalf of the comm ittee for taking the time to come tod ay. MR. D. LUGTIG: Thank you very much. MR. CHAIR MAN: Ed ward Moscov itch. Is Edward Moscovitch pres ent? Donna Lucas. MS. D. LUCAS: Good morning. I guess I have to kind of get really close to this thing. MR. CHAIRMAN: it bends. MS. D. LUCAS: Mr.

Chai rpers on, Madam Minis ter, mem bers of the comm ittee, my name is Donna Lucas. I'm a mem ber of the Ch arter of Rig hts Coalition (Manitoba). The brief that is being circula ted contai ns a sum mary of the recommendations that the Coal ition would like the com mittee to consider in ass essment of its bill.

The Charter of Rights Coal ition (Manitoba), which has been es tablis hed in Manitoba, as els ewhere in the count ry, to edu cate women about their rights and potential rights under the Canad ian Charter of Rights and Freed oms, is pleased to have this opp ortun ity to comm ent on Bill 12, The Child and Family Services Act.

As part of its work, the Coalition has received funding from both the Federal and Provincial Govern ments to undertake an independent audit of selected provin cial statutes to assess whether they are in com pliance with the sexual equal ity provisio ns of sect ion 15 of the Charter, and to make recom mendations for chan ges. The proposed Child and Family Services Act is one of those reviewed by the lawyers who conducted the aud it. The proposed act in relat ion to sect ion 9(4) recognizes tha t childr en who are parents ma y req uire special suppor ts and services in order to adeq uately function as parents.

The proposed act pl aces an obligation on a hospital to not ify the Director of Child and Fam ily Services upon the hospital izat ion of an un married, pregna nt child or upon the birth of a child to an unmarried child. The obligation to report exists only if the minor is unma rried. or if there is reaso nable doubt as to her marria ge.

Coalition recommends tha t this sec tion be amended by removing the except ion in favour of married mino rs, so there will be an obligation on hospitals to report to the director upon the hospital ization of all preg nant mi nors and upon the birth of a child to any min or, regard less of marital status . We feel tha t marital sta tus alone does not remove a min or from poten tial risk, nor does the fact of being unma rried automa tically pla ce a minor at risk.

Section 16 (4) provides tha t an agreeme nt by a minor to the voluntary surrender of guard ianship of her or his child is val id, and there is no req uirement that the 22 mi nor receive any in dependent legal advice or couns el ling prior to signing such a surr ender of guardianship. What we are recomme nding is that this sect ion be amended to provi de th at a volu ntar y surrender sig ned by a minor not be valid unless the min or has received independent legal advic e prior to the signing of the volunta ry surrender of guard ianship. That is, a certificate mus t accompany the voluntary su rrender agre ement.

We would also further recommend tha t conside ration be given to ame nding the proposed bill to provide that no volunta ry surrender of guardiansh ip is valid unless accompan ied by a certificate of indepe nd ent legal advice, regard less of the age of the paren t. We feel tha t being aware and making sur e that you are aware of your rights is some thing tha t is necessa ry.

In sect ion 17 (f), in the child in need of protect ion, the sect ion itself makes reference to, if the child refuses or is unabl e to provide ade qua tely for the health needs of herself or her child, the fact that the defin ition or stat ement does not include a male person is one that we would like to see amende d , so that it would include himself or herself or his/her child. In sect ion 50(2), the suppor t for transitional pla n ning, in Sect ion 50, the propo sed act provides tha t guardianship by an ag ency automatically expi res upon the marria ge of a minor or when the minor turns 18.

Ho wever , there is provision that the agency may continue to provide care and main tenance to its former ward between 18 and 21 years of age, if unma rried. We recommend that this se ction be amended to provide that where an order of perma nent guardi ansh ip expi res as a resu lt of the marriage of the ward or the ward atta inin g the age of ma jority, ong oing assista nce ma y be provided by the agency until the former ward's 21st birthda y, regard less of the marital stat us of the former ward. Again, marital st atus should not be a prohi bitor to access to contin uing care and maint enanc e.

We have a numb er of re comme nd ations on the sect ion around adoptions. The proposed act provides that a husb and and wife, or a man and woman who are not married but are cohabit ing as spous es, or a single adult ma y apply for an adoption pla cement by an agen cy. Und er the present Child Welfare Act, only marr ied couples or sing le adults ma y apply to an agency for adoption. The addition of the commo n-la w status does increase the classes of people that ma y apply for adop tion. However, the act does not add ress the issue of homosexu als or homose xual couples as being eligi ble for adop tion.

What we are recom mend ing then in the recommendations to sect ion 55, 58 and so forth, are as fol lows. We feel that the defini tion of "extended fami ly" in sect ion 55 should be amended to remove the exclusion of homosexual couples by virtue of their not being specif ically refe rred to in a relation ship of some perma nence, and thus rem ove discrim ina tion on the basis of sexual orienta tion .

Section 58 again provides that a Consent to Adoption can be si gned by a mi nor and is val id. Our recommenda tion is consi stent with a former one, and we would like the Con sent to Adoption not to be valid unl ess accompa nied by a certif icate of independent legal advic e. We further recom mend ag ain that consi deration be given by the commit tee to am end the

Monday, 8 July, 1985 act to provide that no Consent to Adoption is val id, unless accompanied by a certifica te of independent legal advice, regard less of age. In sect ions 66, 67, 68, 69, 70 and 72, we would recomm end tha t the defi nition of comm on-la w spous es in these sect ions of the proposed act be amended to include all commo n-la w couples, whether heterosexual or homose xual, and that the defi nition be in accordanc e with the uniform defi nition of comm on-la w relationships to be appl icable to all Mani toba statutes. Our last recommendation deals with the adoption of an imm igrant child.

In this sect ion, it does not spec ifically provide that comm on-la w spous es are eligible for the adoption of an immi grant child al ready in Canada. We would recommend that this se ction be amended to provide that the same classes of prospectiv e appl icants ought to be entit led to apply for interna tional adoptions or the adoption of an immigr ant child, as for any other types of adoptions und er this act. Thos e, in summ ary, then are our recom mendations. We thank you for the opportun ity to appear and would urge the comm ittee to give serious conside ration to the amend ments we have recomme nded .

Thank you. MR. CHAIRMA N: Are there any ques tions for Ms. Lucas? Mrs. Smith? HON. M. SMITH: In your recom mendation about reporting all births to mi nors, whether they're married or not, are you im plying that you think a social worker should visit every minor who gives birth, regard less of marital sta tus? MS. D.

LUCAS: We toyed with the idea, qu ite frank ly, of recom me nding tha t this se ction be dele ted in tha t the assu mp tion of mino rs with regard to their ability to parent but decided that sinc e the act provides for various services to mino rs who become parents, to be consistent, marital status ought not to stand in the way -s o, yes . MR. CHAIRMAN: Are there any further ques tions? Seeing none, I would like to thank you, Ms. Lucas, for tak ing the time to come here tod ay. MS. D. LUCAS: Thank you. MR. CHAIRMAN: Mr. Bill Martin. Tim Maloney or Susan Devine. MS. 5. DEVINE: Thank you, Mr. Chair man.

I'm Susan Devine, and I'll be prese nting some remarks on behalf of the Northwest Child and Fam ily Service Agen cy. I'm sor ry, I don't have a formal brief, but these remarks are the result of a joint board -staff comm ittee of our agen cy. Firstly , I would like to start off by sayi ng tha t our comm ittee found many posit ive chan ges in the act , just by way of ex ample, the potential for an order removing an abusive parent from a home, the increased abili ty for childr en's views to be rep res ented , etc.

But ess entially, I'm going to confine my remarks this morning to the areas of concern that we have with respect to 23 the act, rather than deal ing with all the positiv e things tha t we might be able to comment on. So turning to the first area of concern and look ing at the act ,

Part I, Admin istra tion, we ha ve some real concerns with respect to the tenor of the act regarding the role of the di rectorate and the role of the board . In particular , I draw your att ention to secti on 7( 1) which sets out the dut ies of the agenci es and commenc es by sa ying, "According to stan da rds esta blished by the di rector and su bject to the auth ority of the director, every agency shall . . . "a nd then the duties are deli neated .

Now we recogn ize a need for consistent standards throughout the province, but we feel the sect ion as worded incorporates a dis cretionary stan dard , and gives it alm ost the force of law in terms of interpreting the duti es of the agenc y. We feel that it would be more appr opriate, given the weight tha t this sect ion gives to the stan da rds set by the directorate, to deli neate in the act itself a planning process for arriving at the standards needed , and also delin eating the role of the boards and the agencies as a whole in the context of sett ing these standards.

We think that this is a needed addition to the act , and we 'd ask that serious consid eration be given to amending the act to set out some kind of planning process. Secondly , with respect to the role of the boards, in terms of the sect ion which allows the boards of directors to be replaced by Cabi net as happened with respect to the Childr en's Aid Society of Winnip eg, our board and our agency recogn izes government concern for ma ximum accountabili ty by boards and the need for the government to be able to take extraord ina ry steps where warranted .

We are not sa ying the government should not have the power to rem ove boards, but we think that there is a need for some form of due process in terms of the procedure. In this regard , we wo uld recommend tha t consideration be given to a system some what like the Ontario Act, where there are criteria and a process when this becomes necessary that these kinds of extrao rdina ry steps be taken.

Section 22 of The Child and Family Services Act of Ontario (1 984) ind icates, for example, that the Minister must act on reaso nable grounds of belief that an agency is not providing service in accordanc e with the act , or is breaching regula tions, or is in some way violating their resp onsibil ities. The Minis ter who wishes to take this extraord inary step mus t notify the agen cy. There is a wa iting period and at the end of that time, if the agenc y req uests a hearing, the Minis ter or the Cabi net appoints one or more perso ns to cond uct a hearing.

In the meantime, the Minister has, because of course this whole process of having a hearing may take some time, extra ordi nary interim powers if there is a serious situation to be able to step in and take over pend ing the hearing. We recommend that this kind of process is less draconian than the process that is set out in our act ma ¥ app ear to be. lt has the ap pearance of being less arbit rary and less open to potential abuse. One other small point under the Admin istration sec tion refers to sect ion 6(2).

We note that under the exis ting act , the Minis ter is the person to whom the applic at ion for incorporation by an agency is made, and it's a power of the Minis ter to incorporate. The

Monday, 8 July, 1985 new act changes that to the Lieutenant-Go vernor-in Council, and we were una ble to dis cern any policv reaso n. lt see med to us a more unwieldy process , and we just had a qu es tion about why that change was ma de. With respect to

Part 11 of the act and , in particul ar, sec tion 9( 1) , that sect ion deli neates services to fam ilies in the following words: "A member of a fam ily ma y apply to an agency for and shall receive from the agency couns el ling, gui dance, sup portive, educ ational and emergenc y shelter services in order to aid in the resol ution of fam ily matters which if unresolved may create an environ ment not suitable for normal child developm ent or in which a child may be at risk of abuse." We recognize what we belie ve to be the rationale behind that sect ion but, as a service provided , we have some concerns with respect to the high standard of statut ory obligation that is im posed on the agency by the very broad word ing of the sect ion.

For example, the defi nition of "fam ily" in the defi nition sect ion of the act is extremely broad . Any mem ber of the fami ly, including a nep hew and all the extended members, ma y apparently apply to an agen cy. There is a man datory duty on the agency to provide, it appears to us, ". . . and shal l receive from the agenc y".

The sect ion is so broad that it seems to us that, arguab ly, people may be able to seek from us, for ex ample, shelters for battered women in the sens e that is arguably some thing that would aid in the res olution of fa mily ma tters and, if it's unr esolved , it may create an environment not sui table for normal child devel opment, etc. So what we would recommend is that, if the words "and shall receive" are delet ed, it would st ill state the aims of what a fam ily should receive from the agen cy, but may not create this possi bly dang erous sta tutory obliga tion in terms of the agen cy.

We would feel fran kly that unless that is dele ted we would perhaps have to ask for a commensur ate open- ended budget from the government to cont empla te any service that may be requ ested und er this kind of sect ion. Just in tha t regard , I would like to point out that the Northwest Child and Fam ily Services Agency which services the North End of the ci ty, our caseload has doubl ed si nce Apri l 1s t. We feel tha t with this kind of provision there is much more potential for pe ople seek ing a wide range of services which we would be happy to provide if we have the resou rces. Moving on to

Part Ill and the abus e registr y in sect ion 19, we bel ieve tha t the idea of an abus e regis try is a good idea and we are in agreement with it, but we have some concerns with respect to the

part icular man ner in which the act contemp lates this being set up. For example, we have a concern with respect to sect ion 19 (2), which says that: "An agency shall report any informa tion respect ing sus pected abuse of a child to the dir ector who shall maintain a reg is ter for recording the informati on ." We feel that "suspe cted abus e" is a term tha t is ext remel y broad , and may be interpreted very widely from agenc y to agenc y or individua l to ind ividual. We also have a concern tha t there is no proced ure set out in the act for gett ing one's name off the regist ry.

So we feel that with th ese broad criteria for gett ing onto the regis try and no 24 procedure in the act for gett ing off, it could well lead to an abus e of parents ' rights. We feel that this has practical concerns for the agen cy, too. If the informa tion is not tested and reliable, it is less useful for our social workers. The credibili ty of the registr y will be in issue and will be less usefu l for the system as a whole. So we would recommend that there be some control over who can put names on the regis try.

We would recommend that the names be accessed through the directors of agencies only, and this would opera te as an internal screening mechan ism. We would recommend tha t outside agen cies such as police and hospit als not be able to put na mes on the regis try, but that all reporting should be at least through the local agen cy. We would also recommend that considera tion again be given to looking at the provisions of the Ontario act . In the Ontario act , abus e mus t be verified abuse, and that's verified by an internal agency inves tiga tion.

So it doesn' t have to be after there has been an actual conviction regis tered , but jus t after there has been at least an internal agenc y inves tigation which sa tis fies the agen cy. There is also a procedure for an indivi dual who has been notified that their name is on the lis t to req uest the deletion of the name and, ultima tely, to have recourse to the courts to have their name removed. We bel ieve that this would ensur e care on the part of in- putting agencies if the informa tion were subje ct to pos sible court scruti ny.

We think that this would lead overall to a more us eful registr y, because there would be a higher standard in terms of people putting names on, names being taken off, the fact that it can ult ima tely be overseen by the court. We think that it is dan gerous to have a sta tutory registry without these protections, and particu larly without any procedure set out for removi ng na mes.

Section 37( 1 )(

c) is a new provision which en ables a judge or ma ster of the court for the purposes of a hearing under this part to accept as evidence a report comple ted by a duly qu alifie d medical practitioner, a dentist, psychologis t or a regis tered social worker as evidence without proof of the si gna ture or authority of the person signing it.

We agree that dent al reports should be ad missible in this way, as are pres ently medical reports, but we don' t think that the kind of opinion evidence that is offered in psy chologis ts' reports or registered social worker reports should be ad mitted in evidence without being tested under cross -exam inat ion. Even our social workers think the sect ion as drafted is proble matic in that it differe ntia tes between different classes of social worker, regis tered social workers and other social workers.

I am advised by them that the dist inction ap pears to be whether or not one has, provid ed one has the pr ofe ssional qua li fica tions, regis tered with the profess ional associa tion and paid the fees. So it ma y merely be a difference of whether or not someone has chosen to register. I know for our agency , many of our workers would not be eligi ble to be regis tered social workers, and it would create several classes of workers wit hin the agen cy. We would prefer that this sect ion be deleted.

With respect to sect ion 45(3), this is a new sect ion which all ows parents to apply to termi nate an order of permanent guard ianship after one year has pass ed . Our ag enc y thinks that it's impor tant that parents do

Monday, 8 July, 1985 have a right to apply if the child has not been pla ced for adopt ion, and there sh ould be an opportun ity for parents to apply to termina te an order of permanent guardia nship. We jus t have a qu es tion with the one year period and the pos sibili ty that that may be too short a time, particularly with respect to older childr en. Simila rly, with respect to sect ion 54 , which is the review by the dir ector every 12 months of the permanenc y plans for the children who are ward s, again we think this is a good idea to have a ward review and are very suppor tive of the ide a.

But in practical terms, given the exis ting backlog that many of the agencies took over, we think that there may be a need for at least a catch-up provision with respect to exis ting wards. it may be pract ical for childr en who become wards of the new agencies in the City of Winni peg in particular, over time, for there to be a ward review of them within 12 mon ths, but I am advis ed that it may be a bit optim istic with respect to the children who are pres ently on the cas eloads. With respect to

Part V of the act , on Adopt ions, we are very sup portive of the fact that the prohibition and pl acement of childr en outside of Canada has been maint ained in the act , and we are happy to see - I believe it's se ction 66(6). But we feel that the practical effect for a child being remo ved to an other area of Canada may be jus t as dramatic as being rem oved to the United States. We think that pla cements outside of Man itoba sh ould at least be cleared through the di rectorate, and not be made on an indi vidual agenc y by-agency basis decision.

So this is an additional power or respo nsibil ity tha t we' re happy to gi ve to the directora te. With respect to sect ion 66( 1 ), I would jus t echo the comments that the speaker before me, Donna Lucas, made with respect to the provision allowing a man and wom an who are not married but are cohabiting to apply to adopt a child. Given the lengthy wa iting list for adop tion, this ma y not be a pract ical problem , but we think that there is a need for some kind of uniform de finit io n of comm on-la w spouse in pro vi ncial legislation. There sh ould be some form of time lim it.

Peopl e shou ld not be in a posit ion, theoret ically, to have been living together for a da y at the time that they apply for an order of adoption. Finally sec tion 73, which is the provision for subsid ized adop tion , our agenc y is very much in sup port of. We think that there are approp riate cases where childr en will have spec ial needs , physical or mental cond ition, which will make caring for the child far more expensive, or where there are sibling groups that sh ould be ad opted together. We think that there should be that fle xibi lity for the di rectorate to author ize payment of a subsidy .

If this sect ion does remain in the act , which we st rongly urge that it does, and is passed , we would also hope that it would be proclai med in the very near future and at the same · time as the rest of the act. Those are all the remarks I have. Th ank you very much for thi s oppor tun ity of add res sing you this morning. MR. CHAI RMAN: Are there any quest ions for Ms . Devine? Mrs. Smit h. HON. M. SMITH: I'm very interested , lis ten ing to the presentat ion.

I think the comments show the importance 25 of our com munit y-b ased agencies and the insight acq uired by the hundr eds of hours that volunteers like Sus an have been putting into the agenc ies. I'm very grateful for that. Agai n, we have noted your recommendations . With regard to the registr y on child abus e, would you ag ree with the registrat ion of children who are susp ected of being ab used , but not of susp ected abus ers until such tim e as they were found guilty or innocent? Then only the guil ty ones would be, in a sense, on.

We're reviewing how to handle this registr y with a working group and are looking to that type of an arrangement. MS. S. DEVINE: As I sa id, my remarks are the result of a comm ittee of our board and staff, so I don't really know how that commit tee would respond. Pers onally , I haven't really though t through the ramifica tions of register ing the childr en as opposed to the parents. I don't know, in terms of the pract ical problems that I've heard rais ed about being able to keep track of abusive parents, whet her or not that would in fact ass is t the profess ionals to the extent that they req uire.

So I feel sort of han dicapped in terms of ans wering that question. HOIII. M. SMITH: Thank you. MR. CHAIRM AN: Are there any further quest ions? Seeing none, then I would like to thank you, Ms. Devine, for taking the time to come tod ay. MS. S. DEVINE: Thank you. MR. CHAIRM AN: Donna Wiebe, is Donna Wiebe pres ent? Ro bert Dan iels, Rober t Da ni el s; Murray Sinclair , Murray Sinc lair; Chief Ed Ande rs on, Chief Ed Anderson; Norma McCormick, Norma McCormick. Ken Murdoch. MR. K. MURDOCH : Thank you very much, Mr. Chairman. I have provided copies.

I'll speak to the notes jus t to ind icate that the Social Policy Forma tion Commit tee of the Social Planning Council has reviewed the bill and, with the concurrence of the board , endor ses the major thrusts of the bill to en act a new statute around Child and Family Services, in Winnip eg particu la rly for our concerns, and in Manitoba for all of the citizens here. The following comments pick up some details to which the council would recommend further consider at ion before the bill returns to the Legisla ture for third read ing . I would deal with the major se ctions.

In the Declara tion of Principl es, this sect ion is a significant de partur e from previous ena ctments in Canadian or provincial Legisla tures. The Social Planning Council is very supp ortive of such intr oductions, and would encou rage more of this type of innovation which gives direction to the courts and ad minis trators as to the intent of the legisla tors at the time new acts are added to the statutes of the province. The comments which follow are sug ges tions for making this sect ion somewhat better worded and consis tent with other declara tions having impa ct on our societies tod ay.

If the word ing remai ns somewhat

Monday, 8 July, 1985 s contained in the bill at prese nt, we would sug gest ome style changes but particularly a separat ion in 'rinciple 9 between the decisions to rem ove or pla ce hildren based on the best interests of the child and 1e notion which refers to the fam ily's financial status. �e supp ort "best interests" as being the test , while 1ck of mon ey in the family is only one cause for potent ial emoval at pres ent. We think these two concerns are ot properly contai ned in the same principle, and should Jrm two separate princip les in their own right.

In a general comment on the principl es, the council ; of the mind tha t it wou ld be appropria te to use the best interests of the child" termi nology in the words •f "righ ts". Particularl y, the phraseo logy could best lraw from the "Declara tion of Rights of the Child," •roclai med by the General Assem bly of the Un ited lat ions to keep the Manitoba statute in line with the 1te rnational st anda rds.

We have appended the 10 •r inci ple s of the General Assem bly for you r :onside ration with referenc e to the "best interests of he child" sect ions of both the principl es and the ollowing sect ion on best interests, sect ion 2( 1) (

a) to h). We are interested tha t the entitlements that are sted there might be a way of deli nea ting what we nean by "best interests ". We feel a reference to the ole and expectat ions of a family are useful and 1ecessar y to include in the sec tion on principl es as hey are now. I feel that there is an omission that occurs in the >efinitions which the council feels should be corrected.

"he term "com muni ties" is used in the Principl es and tlsew here as one of the pivotal points of respon sibili ty or promoting the best interests of children and familie s. rve woul d propose that the word "com muni ties" refers o sev eral understa ndings of the term, including not mly commun ities in the sense of neighbou rhoods or 1eog raphical areas, but also com mun ities in the sense •f cultural groups or affin ity groups of seve ral kinds. If the term is meant only in the broader sense, as n "soci ety ," then the la tter term mi ght be mo re 1ppropria te.

On the other hand , we are suppor tive of he term having the conno tations lis ted above and vould , therefore, sugge st that the term be incl uded in he Defin itions sect ion in order to give clarity to its 1sages in the act. In

Part I, on the Admin istra tion, we have a few :omments. This sect ion is now somewhat stronger than ound in the current Child We lfare Act, but is consis tent vith -that found in other simi lar legisla tion. The reality s that, given the private nature of the service del ivery ;ys tem, it is necessary to spell out the powers of the li rector which may need to be exercised in the event >f a conflict. In particul ar, the sect ions dealing with stan da rds are Joth approp riate and necessary .

There are at present 10 standards in many of the service areas, and they 1re badly need ed . lt is im portant that the stat ute pl ace 1 dut y upon the director to, in fact , develop and utili ze ;uch standards. However, there needs to be checks and bala nces to :he deg ree a di rector or others have power in the 1d minis tration of any statute.

In this regard , the council IYOuld highly recommend conside ration of an appeal Jroced ure should there be disp utes in the conduct of the di rector , par ticula rly in refere nce to the :lev elopment, es tabl ishment and compl iance to ;t and ards menti oned in sect ions 4( 1) (

d) and (e). 26 In fact , the abs ence of an overa ll ap peal procedure is an item which the council would like to see add ressed before the bill gains final read ing. In this regard, the council would point the legisla tors to the dis cussion and recommendations around this matter, as contained in the Repor t of the Task Force on Social Assi stance of 19 83. We are deal ing with ind ividuals, that is children and mem bers of fam ilies as well as agencies manda ted to deliv er services, all of whom should have a reaso nable recourse to qu ick and not costly appeal procedures should the ad minis tra tion of

an act be perceived as unduly harsh or misdi rected. Our read ing of the present bill leaves us without a sense that app eals have been consid ered and allo wed for explicitly for just such occas ions throughout the bill. The inclusion of an appeals sect ion would also respond to concerns rais ed publi cly about the powers of the director, sec tion 4(2). Given the dut ies outli ned in sect ion 4( 1) , we feel that this sect ion gives the necessary powers to the director to carry them out. If used bad ly, there is al ways the politic al adv ocacy route by agencies thems elves.

But the council is of the mind tha t a logical and practical appeals procedure would be even more appropria te for providing checks and balanc es in this and other items contai ned in the bill. I might just mention that I think The Day Care Act might be looked at in terms of an appeal procedure as well, but I'm not sure. In regard to the powers of directors of incorporated bodies dele ga ted by the director to perform his duties, the council was concerned that the exis ting se ction 6( 10) is unnecessa rily limiting.

We would recommend a further clause, such as word ing to this effect, ". . . and to unde rtake other dut ies ind icated by the by-law of the agency which are not in conflict with the intent of this act." This would allo w an agency to do things through other fundin g which ma y well enha nce its role in providing Child and Fam ily Services. A compl ementary problem aris es with the wording of a following sect ion - that is 6( 12 ) - in reference to agencies rece iving other funding which may ha ve conseq uences at the dis solution of an agen cy.

As these agencies are to be incorporated under The Corporations Act as non-p rofit organ izations, the council feels sect ion 6( 12)(

b) is in confl ict with The Corporations Act, which requ ires outs tanding assets of a non-pr ofit organ ization to be tran sferred to another non-profit organi zation of like purposes. As it sta nds,

article 6(12 )(

b) requires such assets to be assumed by the government, and is not likely to be appreciated by other fund ers like the Federal Gover nment - I think of Indian agenci es - and founda tions. We would ask further review of the

article in referenc e to sect ion 6(4) rega rding precedence of this act over The Corporations Act in light of the poten tia l m ulti ple funding sources to the new agencies. Inde ed , sect ion 6( 12 ) may be totally redunda nt in that the di rector can order an agency to follo w policy, can appoint a new board if it does not follow policy, and can caus e a new agency to come into being. Perhaps this sect ion would best be worded to cover the case where the authorization of the di rector to perform duties has been withdrawn for whatever reaso n.

In such a case, it would be pertin ent to put th e onus on the director - that is the governm ent - to have made provision for the conti nuation of Child and Famil y Services.

Monday , 8 July, 1985 The council has two comments to offer regard ing sect ion 7( 1) , Duties of agencies. The first has to do with the lang uage of "s hall" in reference to subs ection (

a) where agenc ies are now requir ed to "reso lve" problems in the social an d com muni ty envi ronment. We think it mo re appropria te that the intent is to "add ress " those problems, much as we would hope that agencies could reso lve social problems. The seco nd comment refers to a previous sugges tion, nam ely, giving the abili ty of agenc ies to become involved in other actions pertai ning to child and fam ily well being as long as such is in conformity with the intent of this act . Therefore, an additional su bclaus e (

q) could be added which does not limi t the scope of the agencies to this act , provided such actions do not affect duti es pres cribed under the act . In

Part 11, Services to Fam ilies, there are a few comments. The sec tions deal ing with volunta ry surrender of guardianship by a mother, including minor s, offer one concern to the council. In sect ions 16 (5) and (6), the concern is for the care of tiny and often medically frag ile babies. lt is well accepted that infants, particularly those at risk, need care, nurture and a consis tent envi ronment.

The way this se ction read s, it se ems likely tha t the babies ma y well have to stay in hospital for up to two weeks for ess entially legal and social reaso ns. lt should be possi ble to place healthy infants qui ckly into high qual!t y, special foster care homes while the other details are being atte nded to. lt would be appropria te to have ma ybe a "no twithsta nding clause" where the im port of sect ion 16 is being attended to, but which allo ws the di rector or agency to see to the proper nurture and bonding need s of infants in the imm ed iate post-natal period tor healthy childr en. In

Part Ill, under Child Protection, the council would like further review of sect ion 19 (2), Report of Abuse, as it now includes suspected abus e as well as confirmed cases. The req uirement to keep a register unde r the current expl osion of susp ected ab use cases sug gests such a duty ma y be either unenf orceable or leave agencies wide open to leg al problems. We would propose at least a me chanism for purging na mes from the register based upon a tim e limit, possi bly concurrent with the time frame under the abus e protocols now in force. In short, the reg is ter should be for confirmed abus ers and, possi bly only on a limi ted time basis, for 'susp ected ' abusers.

Section 20( 1) is an excel lent sec tion, allowing courts to move the alleged abus er out of the home rather than the child. The difficulty is tha t there is a seve n da y wait ing period for this to happen. Is it not possi ble to get a temporary order to rem ove the alle ged abus er and then have the req uirement of having a court hearing wit hin seven da ys to decide on contin uation? We are talk ing here about protection of a child which is not bei ng given for seven da ys or more accord ing to the present clauses in this sec tion.

The council has an obs ervat ion and recomm endation with regard to the sect ions on permanent gua rdianships (Sections 45 and su bsect ions thereto). In the interests of the child for stability and pred ictabil ity over the long term, one ques tions the appropri ateness of potentially opening the planning of future care once a year to court processes. Such may spur agencies to do decent perm anency pla nning, but it may be more to the point 27 to have a jud icial review of all permanent wards in whose favour no adoption plan has been regis tered within one year of the permanent order.

These would be appropria te cases for a jud icial option, to have the power to reconvene the hearing for a permanent order. In this way, the reconvening becomes a function of the agency's failur e to plan appropria tely. In

Part IV, under Childr en in Care, the council is very supp ortive of the workings of this sec tion, particularly in the fle xibili ty it propos es for overcoming current planning problems around the age of majority issues (s ection 50(2).

Section 51( 2) is one ins tance where an admin istrativ e review procedure is outlin ed for those app eal ing arbit rary agency actions revolving around foster parents. Our concern about appeals, stated earli er, would wish other than internal system reviews in cases warranting a comp letely outside opinion of system decisions.

Part V, under Adoptions.

Section 61 (7) causes the council some concern if it is interp reted that a biological parent ma y not leave an estate or otherwise confer gifts upon a biolog ical child which has been ado pted . We're not sur e whether that's the proper

interpretation or not. The council would like to see more consis tency between st ipulations for extended family adoptions and private adoptions (sect ions 68 and 69, respect ively). lt ap pears to us that a 12 -month waiting period for extended fam ily adoptions could be an excessive wa iting period. What is the status of the child if such an order is not appl ied for within those 12 months? Should there not be a penalty for fai lure to apply? Private adoption procedu res seem to be much more detailed and ex plicit tha n thos e for ex tended family adoptions and for reasons that are unknown to us.

Part VI, under Confidential ity. This sect ion ma kes mention of the primar y duty of the child caring agencie s and their agents to maintain confidential ity in all matters und er the act , but pr es cri bes no penalty for transgr essions. There should be a requirement for oaths of confidentiality and penalties for breaches thereof.

In conclusi on, the current bill has incorporated many of the sug ges tions and concerns registered by the council and other bodies in the communi ty during the consultation process lead ing to this point. lt is a good act and is a su bstantial impr ovement over the old Child Welfare Act. However, a new act will bring with it new problems.

One in particular is that there is likely to be great ly increased legal fees as socia ted with elements of the new act , for good reaso ns, too. lt ma y be appropr iate to consider whether there should be a duty placed upon Legal Aid, for ins tance, to provide duty counsel to agenc ies and wards to keep these costs reaso nabl e. There are also su bstan tial new workloads associ ated with increased incidence of abuse and post-ad option service requests, as contained in the act.

In passing the new act, one hopes the province recognizes that the act itself places new demands upon agencies and this will mean new costs. Thank you. MR. CHAIRMAN: Are there any ques tions for Mr. Murdoch? Mrs. Smith.

Monday, 8 July, 1985 iON. M. SMITH: Again, I app reciate the very thoughtful Jresenta tion. I guess we have a little dif ferent legal nterpreta tion. Others are is sue s that we may take a ittle longer time to review, but again I'd like to put the ; ame qu es tion I put to the previous speaker on an 1buse regist ry. Wo uld you sup port reg ist rat ion of �hiidren who are sus pected of being abus ed , but not Jf sus pected abus ers? IIR. CHAIR MAN: Mr. Murdoch. IIR. K.

MURDOCH: I don't know all the ramifica tions Jf that, except that I would think that an ab use regis try s for the abus er and what would you do with childr en's �ames on that? Our major concern though I think is that there was not a way of purging that list and that got us into the field of sa ying susp ected abus ers could be put on the lists and on forever; and that there is a protocol under Nay for review of cases .

At the conclusion of that protocol procedure, a decision is usually made and that should therefore ind icate whether a name stays on a list or not, but I'm not sur e ab out the purpos e of the childr en. I'm like Susan; I'm not sur e what the implic at ions of that would be. HON. M. SMITH: it's a comple x area. There's a group that are reporting to us. What we hope to do is handle the issue in an ad minis trat ive way this year with a view to see if it's more appropria te to be in legislation another year. Childr en are abus ed by different perso ns. That's one of the ration ales, but thank you for your comments.

MR. K. MURDOCH: I don't know whether the act or whether the regula tions should have it, but the ques tion of purging that lis t is im portant. There is no mechanism for gett ing off. HON. M. SMI TH: We ag ree and would handle it through regula tions for this year. MR. CHAIRMAN: Are there any further que stions for Mr. Murdoch? Seeing none, I would like to thank you for taking the time to come tod ay. Sharon Taylor-Hen ley, DeWayne Ward, Rene Toupin, Chief Rodne y Spence or Jim Mair, or Mercredi Ovide. That compl etes the list of people I have.

I could go back and call once again those who have not been present earlier tod ay. A MEM BER: Excus e me, you had called DeWayne Ward. Mr. Ward is just arriving short ly. MR. CHAIRMAN: DeWay ne Wa rd will be arrivi ng shortly? How shortly? A MEMBER: Two minu tes, three minu tes. MR. CHAIRMAN: Okay. I'll jus t go through the list one more time of the people who were not present earlie r. Edward Moscovitch, Bill Martin, Donna Wiebe, Robert Daniels, Murray Sinclair , Chief Ed Anders on, Norma McCorm ick, Sharon Taylor-Henle y, Rene Toupin, Chief Rod ney Spence. 28 I unde rstand DeWayne Ward will be coming short ly.

What's the will of the commit tee? Wait? The comm ittee will recess then for a few min utes. Mrs. Hammond. MRS. G. HAMMOND: I sugge st we recess for five min utes. MR. CHAIRMAN: A five minu te recess. Is that agreed ? (Agreed) RECESS MR. CHAIR MAN: Order please. I understand that one of the people has come we've been wait ing for is Sharon Taylor-Hen ley. 'MS. S. TAVLOR-HENLEY: Good morning, Mr. Chai rpers on, Madam Minister and memb ers of the comm ittee. I'm here on behalf of the School of Social Work, Un iversity of Manito ba.

On behalf of the sc hool, I'd like to thank you for this opportunity to speak on this im portant bill. We're aware that the bill has been over three years in the making, that the consulta tion process involved in its dev elopment has been extensive. In our obs erva tions of the process we have notic ed the sensit ivity and res pons iveness of the government to the concerns of profes sionals. We think the result is a bill which truly deserves the title, "F am ily and Childr en Services Act." We're very pleased to find a sta tement of principl es in the proposed act .

The principl es provide a sound, philo soph ical fra mework for the develop ment of sup portiv e, comprehensiv e services, whic h are develop mental in the sense of supporting and fost ering the normal devel opment of all childr en, and preventive in the sense of avoiding, where possi ble, the placement of the child outside his own home. The formal recognition of com muni ty responsibil ity to promote the best interests of childr en and fam ilies opens the door for the development of a broad range of creative commu nity-initia ted ser vices. We also note the se nsitiv e att ention given to the Indian commun ity.

This is particul arly evident in the defi nition of the best interests of the child, the inclusion of cultural and lingu istic herit age. The bill is forward in so many areas that we were a little bit surpris ed that the provision for su bsi dized adop tion , pa ssed sev eral years ago and neve r proclaimed , has been deleted from the bill. it's replaced by a very narr ow provision. We urge consid eration of reins tatement of the origi nal subsid ized adop tion provision and its im med iate proclama tion. We should not lose sight of the fact that the child, as client, deserves optimum service.

Subsidy would mark a sh ift in emp hasis from service to the pros pect ive adoptiv e parents to the child as prima ry recipiant of service. In summ ary, we are pleased that the Minis ter has brought forward such a compr ehensive bill. it clearly meets a numb er of the stan dards of qual ity child welfare legisla tion , which have been outlined by John McDonald of the Universit y of British Colum bia, School of Social Work. Most specif ically, it recognizes that app rehension

Monday, 8 July, 198 5 and pla cement of a child outsi de his own home is analogous to a delic ate surgical opera tion on his life. According ly, it sup ports child welfare pers onnel to work with childr en and their fam il ies in their home environment. We look forward to the servic es tha t such a framework provides for. Thank you very much. MR. CHAIRMAN: Are there any que st ions for Ms. Taylor-Hen ley? Mrs. Smith. HON. M. SMITH: I just wanted to thank Ms. Taylor Henl ey very much for her pres enta tion. I under st and the feeling on the adop tion issue.

You do recognize that we are al lowing it in some circums tances? MS. S. TAYLOR-HENLEY: Yes. MR. CHAIRMAN: Are there any other qu es tions? Seeing none, then I would like to thank you, Ms. Taylor Henl ey, for tak ing the time to come tod ay. Is DeWayne Ward pres ent; DeWayne Ward? Are there any other mem bers of the public who have come toda y to make prese nta tions on Bill 12? Seeing none, what is the will of the comm ittee? Clause-by- clause? That comp letes the lis t of presenta tions from the public. Claus e-by- clause, Bill No. 12. MR. H. ENNS: I sug gest page-by-page, Mr. Chai rman . MR.

CHAIRMAN: Page-by-page? Page 1, are there any amendments? Page 1- pass; Page 2- pass; Page 3 - Mrs. Smith. HON. M. SMITH: I move THAT the definition of "court" in the proposed sect ion 1 of Bill 12, The Child and Fam ily Services Act, be amended by st riking out the word and figures, "P art Ill" in the 1s t li ne of sub- clause (

i) th ereof and subs tituting therefor the words and figu res "P arts Ill and VI" . MR. CHAI RMAN: Any dis cussion on the proposed amendment? Mrs. Hammond . MRS. G. HAMMOND: I wonder if the Minister could expl ain the change. HON. M. SMITH: lt would allo w the Provincial Court Judges and Queen's Bench to rule on access to records and confidentiality, etc. MR. CHAIRMAN: Page 3, any other amend ments? Page 3, as amended - pass. Pages 4 to 11 were each read and pass ed. Page 12 - Mrs. Smith. HON. M. SMITH: I move THAT proposed su bsect ion 7(1) of Bill 12 be amended by: (

a) repealing cla use (

i) and su bs tituting therefor the following claus es: 29 (

i) provide adoption services where appropri ate for childr en in its permanent care; (i. 1) provide post-ad option services to fam ilies and adults; and (

b) by adding thereto, im media tely after claus e (

o) thereof, the follo wing clause: (o. 1) maintain such records as are req uired for the ad minis tration or enforcement of any provision of this Act or the regula tions. lt clarifies the dif ference in service to adul ts, as opposed to services for adopting a child, and clearly req uires the agency to maintain records sugg ested by the Childr en in Care Alumni. MR. CHAIRMA N: Any dis cussion of the amendment? Mr. Birt. MR. C. BIRT: Why the separat ion in the clause (i)? HON. M. SMITH: lt cla rifies the difference in service to adul ts, as opposed to servi ces for adop ting a child. MR.

CH AIRMAN: Any further di scussion on the pro posed motion? Pass. Page 12, any further admend ments, dis cus sion- pass. Page 13 - Mrs. Hammond. MRS. G. HAMMOND: Mr. Chairman, excuse me. Was this is the area that Mr. Murdoch had sug gested that there be appeal proced ure in this sec tion, and was there going to be any consid eration to ad ding that? HON. M. SMITH: Yes, we did look at the appeals qu es tion in depth and decided that it was better to have an appeal proced ure rather than a board . We're concerned that the result would be tha t all contentious issues would end up at an app eal board .

We believe child welfare is different than social assistance and day care in that confl ict is almo st between adul ts or agencies acting on behalf of a child,

whereas in the other cases it's between recipient and the agen cy. The problem is to get those acting or say they're acting on behalf of childr en to accept resp onsibi lity to resolve their dif ferences together, so the proced ures req uire consulta tion by the respective groups. If they canno t resolve the issue within a time frame, they may refer it to the director who can set up a board, designa te people. There remai ns the Omb udsman , appeal to the Minister and appeal to the court. We feel this procedure is most appropria te for this type of conflict. MR. CHAIRMAN: Page 13- pass. Page 14 - Mrs. Smith. HON.

M. SMITH: I move THAT the 2nd line of 9( 1) , tha t "shal l" be changed to "m ay" . This is in response to the concern rais ed this morning by Susan Devine about the obliga tion versus the attempt to resolv e the issues, provide the service. MR. CHAIRMAN: Any dis cussion of the proposed motion? Page 14. as amended - pass; Pages 15 to 19 were each read and passed .

Monday, 8 July, 1985 Page 20 - Mrs. Smith. HON. M. SMITH: I move THAT proposed su bsect ion 16 ( 13) of Bill 12 be struck out and the following su bsect ion be su bstituted therefor: Action prior to accept ing surren der. 16 ( 13 ).

Prior to accepting a su rrender of guardianship under this sect ion, an agency shall explain fully to the person considering surrenderi ng, the effect of the ag reement and shall advis e that person of his or her right to have independent legal advice and, after the execution of the agre ement, a represe nta tive of the agency shall swear an affida vit in pres cribed form, that the provisions that this su bsec tion have been com plied with.

This clari fies the affida vit of execution and the rights of a mother in voluntar y surrender . it's been sug gested by various Indian organ izations and in the past by the Fam ily Law Subsect ion and again today by a Miss Lucas. MR. CHAIRMAN: Any dis cussion of the motion? Page 20, as amended -pa ss; Page 21- pass; Page 22- pass. Page 23 - Mrs. Hammo nd. MRS. G. HAMMOND: This is the area tha t deals with the regist ry. The Minis ter had indi cated that they were going to bring in protect ion under regula tion .

Would it not be better in this area to be bringing in an amend ment to this bili to at least assur e people get ting their names taken off a regis try once they get on? HON. M. SMITH: There's been a co-opera tive group working on this issue and their interim report is ready. it's our preference to work via regulations for the coming year and then to put it into legisla tive form. The recom mendations that we have received to da te are sayi ng that we should record the child's name and not record the abuser's name unless there has been a charge that has been proven.

They also are working on a mechanism for removing names from the record. We jus t feel it's premature to put it into leg isla tive form. MR. CHAIRMAN: Any further dis cussion on Page 23 ? Pages 23 to Page 28 were each read and passed . Page 29 - Mrs. Hammond. MRS. G. HAMMOND: Mr. Chairman, there had been a suggestion that the time limit here was too short. Ha d any consid eration been given to changing the tim e frame? This is in 29( 1) . HON. M. SMITH: I'm sorry, I didn't hear the full MRS. G.

HAMMOND: Well, ins tead of 30 da ys or within such further period as the judge, magis trate, may allow, that the time be comp leted in six months. I was wonder ing if any consi deration had been given to that. HON. M. SMITH: This is the same as the old act. This is the process at the start of a hearing. There st ill is the six-month time frame for com pletion. We don't yet have a mechanism for req uiring that courts comp lete within a time frame, so we don't yet have a time frame for com pletion . MR. CHAIRM AN: Page 29- pass; Page 30- pass. Page 31 - Mrs. Smith. HON. M.

SMITH: I move THA T pr oposed su bsect ion 34(2) of Bill 12 be amended by ad ding thereto, at the end th ereof, the words "an d, if the child is 12 years of age or older, may order that the child have the right to ins truct the legal counsel ". This ensur es the child not only has couns el, but also has the right to ins truct couns el . it's been sug gested by the Ind ian organi zations and Fam ily Law Subsect ion. MR. CHAI RMAN: Any dis cussion of the proposed motion ? Is it agre ed ? (Agreed) Pass. Page 31, as amended -p ass. Page 32 - Mrs. Hammond. MRS. G.

HAMMOND: In 35, it has been sug gested that the cross-exa mina tion should be of parents and of case workers, I think the sugges tion was. The Minis ter, I think at the time, had see med in agreement with that. Has there been a provision to make a change? HON. M. SMITH: Because it is our belief that it's the social worker who is al ready a party to the action on behalf of the agen cy, they're al ready sub jected to cross exam ination. So it's un necessary to change the other expert evidence clause. MR. CHAIRMAN: Page 32 - Mr. Penner . HON. R.

PENNER: Fine, I was just going to note that the only thing in this sect ion 35 which is - you really wouldn't req uire it except for the last five words, "shall be treated as a hostil e witnes s," because the agency can call anyone it chooses as a witne ss, whether a parent or a gua rdian or a social worker. But then they're their own witness, and th ey can only do dir ect exam inat ion. This allo ws them to call someone who would ord ina rily be su bject only to direct exam ination, and allo ws them to cros s-e xamine. qu est ion. MRS. G. HAMMOND: So tha t covers it? MRS. G.

HAMMOND: I'm lo oking at just such abbreviated notes here that I real ize now tha t when I'm looking at it that the suggestion had been that the applic ation be com pleted in six months, that a firm time be ... HON. M. SMITH: Ins tead of being 30 da ys. 30 HON. R. PENNER: Yes. MR. CHAIRM AN: Pages 32 to 43 were each read and passed . Page 44 - Mrs. Smith. HON. M. SMITH: I move

Monday, 8 July, 1985 THA T pr opos ed subsect ion 58( 1) of Bill 12 be amended by ad ding thereto, imm ed iately after the word "di rector" in cla use (

a) thereof, the words "w ho, or an agency which, has been given permanent guard iansh ip of a child either by voluntary surrender of guard ian ship or by an order of the court" . This was a drafting error. The correction al lows agencies to provide consent for their childr en in care. MR. CHAIRMAN: Any di scussion on the proposed motion? Page 44, as amended - pass. Pages 45 to 51 were each read and pass ed . Page 52 - Mrs. Smith. HON. M.

SMITH: I move THAT und er sect ion 66(6) tha t the word "Cana da" be de leted, and - (Interj ection) - well all right, jus t the way I - " ... a child outside of Man itoba with the written consent of the director and outside of Canada, except by order of the Lieutenant-Go vernor-in-Cou ncil. A MEMBER: Could you read it as a whole then? HON. M. SMITH: Yes. I left out one word .

"An ag ency shall at tempt to pla ce all childr en for the purposes of ad option first in Man itoba and then elsewhere in Canada but an agenc y shall not pla ce a child outside of Manitoba except with the written consent of the di rector or outside of Canada except by order of the Lieutenant-Gov ernor-in- Council." MR. CHAIRMAN: I'm afraid I need the exact word ing of your amend ment, rather than the correction as it stan ds. Do uou have an amen dment? You have to read it. HON. M. SMITH: Okay.

I move THAT the proposed su bsect ion 66(6) of Bill 12 be amended by ad ding imme diately aft er the word "child " in the 4th line, the words "outside of Manitob a except with the written consent of the di rector, or" . MR. CHAIRMAN : Is th ere any di scussion of the proposed amendment? Page 52, as amended - pass. Page 53- pass; Page 54- pass; Page 55- pass. Page 56 - Mrs. Smith . HON. M. SMITH: I move THA T pro posed subs ec tion 68(4) of Bill 12 be amended (

a) by ad din g thereto, immed iately after the word "s at is fied" in the 2nd lin e thereof, the words "as to the su itab ility of the appl icants and" ; and (

b) by st riking out all the words aft er the word "ap plicant" in the 5th line thereof. MR. CHAIRMAN: Is there any dis cussion on the proposed motion? Page 56. as amended - pass. Pages 57 to 66 were each read and passed . Page 67 - Mrs. Ha mmond. MRS. G. HAMMOND: Mr. Chai rman, this morninc �- ' Lugtig from the Manitoba Associa tion of Social Workers raised concerns about the media presence. This is the 31 area I bel ieve, 75 (1) , th at he was ref erring to. Considering the concerns tha t he raised , has the Min is ter gi ven any consider at ion to ma king any amendments to this area? HON. M.

SMITH: We thought the ind ividual made very persuasiv e points this morn ing but, because it has to do with court procedure, we feel that we couldn't real ly alter this until we had taken time to consult with the courts. So we feel that this is a procedure we can go with for this year, and consult for possi ble change next year. HON. R. PENNER : I would jus t like to no te there has been gratuitously a lot of work in recent days on the question of the courts and the media.

I'm sa tisfied beyond any doubt that the proposal that was made would, in fact, be cont rary to the Charter, just too swe eping in the way in which it is proposed . A lot of thought has to be given to very specific kinds of lim itations when you real ly interfere not only with freedom of the press but what is clos ely assoc iated with it, the right of the public to know in most ins tan ces . Now tha t right of the public to know about the openne ss and fairness of the system has to be tem pered with privacy and the protection of dependent individu als.

I think everybody will accept that as a princi ple, but it will take time to work it out in some detai l. MR. H. ENNS : But we 're pas sing leg isla tion in the interests of the child here. HON. R. PENNER : That's right, and I think tha t there is ad equa te protection. MR. CHAIRMAN: Any further dis cussion of Page 66? Mrs. Ha mmond. MRS. G. HAMMOND: I jus t have a further concerr here with the Attorney-General pres ent. I hope that he has this brief, because the concerns really were ver) credible.

I think that it's a shame that we're in a positior that we can 't protect the child in better manner thar we're doing, especial ly in the courts, and that some thin� can 't be done very qu ickly about this. I hope that bott Ministers will take this into conside ration and ge some thing done tout de suite. MR. CHAI RMAN: Page 66- pass; Page 67- pass . Page 68 - Mrs. Smith . HON. M. SMITH: I move THAT proposed su bsect ions 76(5) and (6) of Bill 1: be struck out and the following subs ect ions b• su bstituted therefor: Exceptions. 76(5) Subsect ion (4) does not ap ply to (

a) any part of a record which was made v .r to the day this sect ion comes into force and which di sclo ses information provided by another person about the su bject of the record, unless the other person consents to qccess be'rr ·· iven; i

b) a sc<Hd w, ""� � relates to se: ' 1ces pr � V�ded und er

Part li!; and

Monday, 8 July, 1985 (

c) a record which relates to the adoption of a child und er

Part V. Excerpted Summ ary. 76(6) Where the di rector or an agency refuses to give access to part of a record under cla us e (5)(a), the director or agency sha ll, upon the written request of an adult person who would otherwise be entitled to be given access to that part of the record under su bsect ion (4), provide the person with an excerpted sum mary of the informa tion provided by the other perso n.

Prepara tion of Summa ry. 76(6. 1) Wh ere an excerpted sum mar y is provided under subs ection (6), it shall be prepared by the person who provided the informa tion, if that person is available and willing to do s<J, but otherwise it shall be prep ared as di rected by the director or agency . MR. CHAIRM AN: Is there any dis cussion of the motion? Mrs. Hammond. MRS. G. HAMMOND: Pos sibly the Minis ter could explain . HON. M. SMITH: The first change allo ws greater access to reco rds by former clients ..

This was sug gested by the Childr en in Care Alumni. lt also makes the sect ion consis tent with Freed om of Informa tion, as amended . The 76(6) change, the word ing is clarified . it's mainly a dr af ting problem. The change to 76 (6. 1) is as sug gested by the Attorne y-General 's Department to be consistent with The Freedom of Informa tion bill. MR. CHAIRMA N: Any fur ther di scussion of the proposed amendment? Pass. Page 68, as amended pass. Page 69 - Mrs. Smith. HON. M.

SMITH: I move THAT su bsect ion 76(8) of Bill 12 be struck out and the following su bsect ions be su bstit uted therefor: Information filed by a person given access . 76(8) A person given access to a record under subs ection (4) is enti tled to submit to the di rector or agency (

a) a written objection respect ing any error or omis sion of fact which the person al leges is contained in the record; and (

b) a written ob jection to, or explanation or interpretat ion of, any opinion which has been exp ressed by another person about any person referred to in subsect ion (4) and which is containe d in the record.

Information becomes part of record. 76(8. 1) As of the da te of its submission, any objection, explanation or interpr eta tion subm itted under subs ection (8) becomes part of the record and sha ll not be de st royed , alter ed or removed therefrom. 32 Correction of factual error. 76(8 .2) Where the director or agency is satisfied that a record referred to in subs ection (8) contai ns an error or omission of fact , the director or agency shall caus e the record to be corrected . MR. CHAIRMAN: Any dis cussion of the proposed motion? Pass. Page 69, as amended - pass; Page 70- pass. Page 71 - Mrs. Smith. HON. M.

SMITH: I move THAT proposed su bsec tions 76( 13) and (1 4) of Bill 12 be struck out and the fol lo wing su bsect ions be su bstituted therefor: Appl ication to dis close record. 76( 13) Upon appl ication by the director or an agen cy, the court may order tha t all or part of a record referred to .in su bsect ion ( 11 ) be opened or discl osed where there are reaso nable grounds to belie ve that a child or sibling of the adult who is the su bject of the record, or a child who is under that adult's actual care and control, is likely to su ffer physical or serious psychological harm if the record is not opened or dis closed .

Notice to Adult. 76( 14 ) The director or an agency acting under su bsection (13 ) shall give the ad ult 7 clear da ys notice of the hearing of the appl ication unless a judge on appl ication red uces the time of giving notic e or disp ens es with notice entirely on the grounds tha t a person mentione d in su bsect ion (13 ) is in im media te danger . MR. CHAI RMAN: Any discussion of the motion? Pass. Mrs. Smith. HON. M. SMITH: I move THAT proposed su bs ection 76( 15 ) of Bill 12 be amended by adding thereto, immedia tely after the word "for" in the third line thereof, the words "b ona fide" . MR.

CHAIRMAN: Any discussion of the motion? Pass. Page 71, as amen ded - pass; Page 72- pass; Page 73 - pass; Page 74-pa ss; Page 75- pass; Page 76- pass; Page 77 -p ass. Page 78 - Mrs. Smith. HON. M. SMITH: I have a general motion. I move THA T Le gi sla tiv e Council be author ized to renumb er the provisions of Bill 12 in order to (

a) elimi na te decimal points; and (

b) take into account provisions which have been struck out. MR. CHAI RMAN: Any disc ussion? Pass. Title- pass;

Preamble- pass. Bill be reported . Mrs. Hammond. MRS. G. HAMMOND: Yes, I jus t have one ques tion. lt was to do with the regis try and I just can 't remem ber. Is the person that is put on the registr y not ified of that?

Monday, 8 July, 1985 HON. M. SMITH: Under this act , yes. MA. CHAIR MAN: Mr. Penn er. HON. A. PENNEA: Mr. Chairp erson , there are I think two separate Native groups who unf ortunately arrived la te; and they un ders tand the pro ced ure of the comm ittee, that once we started clause-by -clause, we complete; but they are here. They have come a long way and there's alwa ys the possi bility, of course, of amend ments at report stage.

I would sug gest , and I hope everybody ag rees with me, that we take the remai ning time - and understand the time lim itation - and divide it up between the two groups so that they can make their pres enta tion; and then be advis ed that if they have had insuf ficient time, that time may be found to meet with the Minister or the Minister's staff later in the da y. MA. CHAIRMA N: Is that ag reed ? (Agreed ) Wo uld it be the will of the comm ittee to report the bill before hearing? (Agreed) Bill be reported . The two groups are whom, Mr. Penner? MA. CHAIRMA N: DeWayne Ward ? HON. R. PENNER: Chief Jim Bear. MR.

CHAIRMA N: Chief Jim Bear. CHIEF JIM BEAR: Thank you very much, I'm Chief Jim Bear, Southeast Resou rce Dev elopment Counc il. First of all, I'd like to apolog ize for being late, but I guess we were originally here first and we not only lost our land but our childr en, so I'm trying a different app roach. We have a written presenta tion that we're also pas sing out, but I'm not going to get into most of it; I'll jus t head up on some of the general areas.

I'd like to start off by sa ying that we regard this legis lation as interim transit ional mechan ism only, to atte mpt to meet the express needs of our pe ople. You all know that there's a cons titutiona l process going on right now, and hopefully tha t In dian governments will be recogn ized shortly in the com petence to enter into trila teral and bila teral agre ements, covering services with the Federal and Provincial Governments.

The ag reements with the Indian Bands, Page 11 , sect ion 6( 14 ), (15 ), (16 ): Incorporated bod ies do not fit into our concept of Ind ian self-gov ernment, si nce once ag ain, it su bjects our ins titutions to provincial laws. We would prefer a more fle xible term , perhaps, "es tabl ishment" repla ce the term "i ncorpora tion" in subs ections (14 ) and (15 ). The sec tions which do not apply to an Indi an agency should be clarified . "The Director of Child and Family Services" is na med as the final authority to enforce the provisions of this act .

This is cont rary to the concept of Indian self government and we propose more autonomy be given to Indi an agencies to report to their Board of Chiefs as a final authorit y to enforce the provisions in this act . Best Int erests - Page 4, 5, Sections 2(h).

Definitions which are used as the "paramount consid erations" in judicial decisions now inclu des considerations of the child's culture and langua ge. The exact me aning of 33 this, however, remains uncertain and caus es concern . In this regard, we wish to bring to your att ention that Bill C-31,

an Act to amend The Ind ian Act, recently passed by Parli ament and now awaiting Royal Assent redefine s an Ind ian "child" as follo ws: "child" includes a child born in or out of wedlock, a legally adop ted child and a child adopted in accordance with Ind ian custom ... " Emergency Assis tance - Page 15 ,

Section 10 (2). How will this overlap or not with the income mai nten ance prog ram? Documents in suppor t of appl ication - Page 57,

Section 68(7)(e). What proof will be req uired that appl icants are part of a child's extended fam ily? What forms or documents? A genomap/ fam ily tree? I'll get right into the Areas of Dis ag reement. In several sect ions here the "Dir ector of Child and Fam ily Services" mus t app rove pla cements. In keeping with Indian self-gov ernment this authorit y should be first in the Director of Southeast Child and Fam ily Services, acting on behalf of the Board of Southeast Child and Fam ily Services with the final autho rity being in the Board of Chiefs of Southeas t . In addition , sev eral sect ions lea ve unclear when Directive 18 would apply,

Section 58( 1 ), Page 44;

Section 64( 1) , Page 50;

Section 66(4), Page 52;

Section 66(6), Page 52. The Appl ica tion to Appr ove Out of Provi nce Pla cement - Page 50,

Section 64( 1) . Does this mean the moratorium does not apply any more? Post Adoption Services - Repa triation . The Provincial Government held ultima te authority in adoption of our Indian childr en outside of the reserves at the tim e that those adoptions took pla ce. In our experience the repatriation of "l ost" children is an expen sive undertak ing in both man power and fina ncing. lt is the resp ons ibility of the Provincial Government to clearly identi fy adeq ua te funding sou rces and contin ued supp ort for our efforts.

A particular concern is tha t of those young people who are over age of majority who need to return and can not due to legisla tive and fina ncial ina deq uacies. Post Adoption Services. The provision for a mo re activ e Post Adoption Reg istry is a positiv e st ep. However, the provision is only for ad ult adoptiv e and biologic al parents and ad ult siblin gs. lt res tricts the na tu ral rights of und erage Ind ian childr en to be conta cted by their siblings who were adopted out.

We know some children, particul arly those who are in care as permanent wards are fa llin g into this crevice of isolation from natu ral fami ly. Voluntar y Surrender of Guardiansh ip - Page 19, 20,

Section 16 (4), (9).

(4) Di sag ree st rongly that a minor can sign an agreement to su rrender her child without the agreement of her parents.

(9) However, term ina tion of her rights could mean the rights of a Treaty child to be placed under Directive 18 could apply? The Recog nition of Indi an Child and Family Agencies and their contin ued Participation in all Aspects of the System. The In dian agencies wou ld expect full par tici pa tion in any future le gisla tive revi ew; fu ll nerti:-;ir� 'inn ir ;ne de :elopment of policies, p. otocal& and proc .ure� flowing out of this bill; full participation in the promulg ation of any reguiations flowing out of

Monday , 8 July, 1985 1is bill; full participation in any "R eview Boards ", Placement Panels" and the like arising out of the bill; 111 participatio n in the devel opment of preventa tive �rvices; full participation in the development of Court ervices arising out of the bill. With respect to this last point, we reiterate the ecessity for the development of a Tribal Court System ) service Ind ian com mun itie s and we in vite the ttorney-General to work with us to ensur e the evolution f such a sys tem. Thank you for your tim e. IR. CHAIRMAN: Mrs. Smith. ON. M.

SMITH: I jus t want to ackno wledge the ·emendous inp ut by the Native agencies in developing 1is act and to reass ure him that with regard to the 1or ato rium, it was strengthened in the act and, in fact , 1 amendments made this morn ing. even further trengthened . IR. CHAI RMAN: Are there any further qu esti ons? Seeing none, I would like to thank you, Chief Jim . ear, for coming today and making a presenta tion. Cop ies are available from the Clerk . Was there a seco nd person wish ing to make a rese nta tion? Awasis. Your name please. :HIEF R. SPENCE: Rod ney Spence.

Ho nourable �inis ters, we wish to thank this Comm ittee for the pportun ity to add ress Bill 12, The Child and Family ;ervices Act and to state the fears of the Manitoba :eewat inowi Okemakana c and the Awasis Agency of lorthern Mani toba on a subje ct matter of fundamental npor tanc e to the right of Indian self-gov ernment and . f the future of Indian children and fam ilies. lt is our view that the right of Indi an self-gov ernment oes not derive from statute but exists as Aboriginal 1ght.

We begin our presenta tion, therefore, by asser ting •ur right to India n self-gov ernment which we interpr et :l mean the free det ermina tion of our polit ical , so cial, ·conomic, religious and cultural institutions including ne power to make and enforce the laws as Ind ian First lations.

We acknowledge the problem and fai lure of Federal ,nd Provincial Govern ments to accommo da te the right o self-gov ernment, but this does not in any way nega te he existence of that right to control over our des tin ies. o deter min e, for ins tance, how we will provide for our :hildren and fam ilies is a basic Ind ian right. In our presentat ion, we wanted to provide the :ommittee mem bers with background knowledge of \wasis Agenc y and the tripartite agreement before we nake com ments on Bill C- 12, but time do esn't permit, . o what we're going to do at this time is present our :omments on Bill C- 12.

I'll ask Ovide here to make a .resentat ion on our behalf. Thank you . AR. 0. MERCREDI: Thank you, Chief Rodney Spence. Honourable mem bers of the comm ittee, I think it vould be useful to put this in perspective.

I mean the 1articipation of the Awasis Agency and the presentat ion 'Y the Man itoba Keewa tino wi Okem akana c to this �omm ittee . 34 We are here primarily for one reaso n only, and that is we have at the current time in pla ce in this province a compromise position that does not accommo date the full range of views and aspira tions of the Ind ian people in Northern Manitoba in relation to how they want to control Child and Fam ily Services for their own people.

That is why we thought it would be use ful to review the ag reement to see how the proposed legislation that's in front of you now im pacts upon tha t present ag reement or whether, in view of the fact that time is a factor here, we will reserve those comments and take the suggestion that was given here and meet with the officials or the Minis ter to deal in gr eater detail with tho se concerns tha t we have with the pr esent arrangement.

I wish , however, to revie w very qu ickly jus t some of •the basic concerns that we have identified with your legisla tion, as well as highlight for you some of the provisions of the ag reement that we are happy with. I think perhaps before ge tting inv olved with the concerns, I will highlight for you some provisions of your statute that reflect , to some extent, the goals of the Ind ian people in Man itoba . For ins tance, when it comes to your principl es in the first part of the bill, we supp ort very st rongly Principle 7, Principle 8 and Principle 11. I will not read them becaus e of the time factor.

When it comes to the Definition Section, deal ing with the test of the best interests of the child, I can ind icate to this comm ittee that we are pleased to have a provision there where the cultural and lingu istic heritage of the child will be taken into account for the purposes of this act . We are also impr essed with

Section 68 of this bill which recogn izes for the first time the concept of pla cement to an extended member of the fa mily . However, we have some difficulty with putting such a res triction, a 12 -month res triction, to the exercise of the right to adop tion . Perhaps I sho uld give some background why we have concerns with

Section 68. The practice in the Ind ian commun ity has always been to pla ce children in extended fa mil ies where the parents are either not willing or are unable to care for their own childr en. However, having placed their children with a mem ber of the exten ded family does not mean that at some point in tim e a grand parent or any mem ber of the extended fam ily will want to exercise that right beyond the pla cement, that is, beyond jus t keeping the child for the natural parent.

I note that whenever there is an inten tion to ad opt, for ins tance, it has to be acted upon within 12 months, but in the Ind ian com muni ty it may never be acted upon; and yet that arrangement migh t in fact exist for a long period of time and I think perhaps tha t is one area that we want to draw to your atte ntion . Our basic problem with the stat ute is the withdr awal of the mand ate in

Section 15 where there ap pears to be absolut ely no control on the exercise of tha t power and it makes it possi ble for the Minister to rem ove the manda te tha t is giv en , pur suant to our current agreement, to the Awasis Agency. We don't know under what circums tanc es, for ins tance, that power would be exercised , but we feel that there should be some controls in the exercise of that power. We have concerns particula rly with

Section 16 that deals with the notion of provincial respo nsibil ity, in

Monday, 8 July, 1985 situations where the manda te is withd rawn , assu ming that the Federal Government does not exercise their jur isdiction over Indian child welfare matters. We see this as having some negative im pacts on a numb er of princi ples, two of which I will name. First of all, if the province takes over Child Care Services after it's removed the manda te, say, from Awasis, does it mean that the province assu mes fiscal responsi bility for their services? And if the ans wer is in the affirma tive, then we have a great problem with that possi bility.

The reaso n why that problem would exis t is because of the principle that we em brace, i.e., federal fiscal respo nsi bility for services to Treaty Ind ian people, regardle ss of residence. Quite apar t from that, it also nega tes our position that the Ind ian people have the right to control their own des tiny , in relation to things like child welfare and that the unila teral power to rem ove a manda te from an agency that was negoti ated with heads of Ind ian government is, in effect , not a recognition of that right, but the opposite of it.

Under the powers of the di rector, when we negotia ted the initial ag reem ent, our concern was not to come under Provi ncial Civil Service control .

The In dia n el<perienc e has been that Federal Civil Service control is enough of a hind rance to the prog ress of the Ind ian com muni ty and that we did not want - and we st ill do not want - the Director of Child Welfare to exercise all kinds of extra ordina ry power on how and what the Ind ian agencies do; but I am pleased to note that und er this provision of the act ther e is room ther e for delegation of power and delegation of authorities and we look forward , at least on the part of the agen cy, to begin dis cussions for the next agreement to include some of those dut ies and some of those powers as part of the functions of the Awasis Agen cy.

On Page 48 of the sta tute dealing with the status of ado pted child, this is comp letely cont rary to an Indian tradition and value. The idea that parental rights can be term ina ted for all time is totally una cceptable. The Indian tradition has always been that parents, if they can not provide for their childr en, will not lose their rights because someone else in the community provides for their childr en.

Our position has always been that in cases where a mem ber of the exten ded fam ily takes over a resp onsi bility for a parent that, at some point 35 in time, when that parent is able and willing to provide for tha t child or children, that that right to assume authority over their own childr en will be respected by whoever has control of the childr en at the time. We note that, with respect to adopt ed children, this law would not - of course the current law doesn 't either - respect that Indi an value.

We acknowledge tha t this law was not made for Indian people, but we also see evidence in this bill that there was in fact some serious considera tion given to accommoda te and to provide for the flexi bility of the Indian age ncies.

I think what I'll do, at this point, before I close my comments, I also want to highlight one other important consid era tion and th at is, when it comes to the regula tory powers of the statute, when we negotia ted the Child Welfare Agreement for Northern Man itoba, one of the conditions that we put into effect was that any regulations that are passed by the province wou ld not apply to the Awasis Agen cy, because we see that as an int erference with the way in which an Indian child care agency might want to organ ize or provide servic es to their own people.

I note that under the provisions of regulations, there was no provision there that would take that into account; that current arrangement that we now have under the current agre ement. At this point I'd like to thank you for allo wing us to make these brief comments and I look forward to more detailed dis cussions with the officials of the Minister of Communi ty Services. Thank you. HON. M. SMI TH: Aga in, jus t in appr eciation , Mr. Mercredi, for the long way the Native agencies and the Provincial Govern ment have moved from very different star ting points to some workable compromis es.

We ag ree there are some different assu mptions and goals, but I look forward to us continuin g to work these thin gs through. I want to thank you very much for your presenta tion. MR. CHAIRMAN: Are there any further quest ions? Seeing none, what is the will of the commit tee - rise? Comm ittee rise. COMMIT TEE ROSE AT: 12 :40 p.m.

Document details

Collection	Manitoba — Debates (Hansard)
Citation	32-4-pe2
Type	hansard
Volume / chapter	32nd 4th hansardpdf pe2.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	32f23b07d659795df02e520bae957f38e54ccabd

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