Manitoba Committee Hansard — 4 July 1985 (Public Expenditures Committee, Sitting 1, 32nd Legislature, 4th Session)

32-4-pe1

Manitoba — Debates (Hansard)

Fourth Session - Thirty-Second Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on PRIVILEGES and ELECTIONS 34 Elizabeth 11 Chairman Mr. Phi/ Eyler Constituency of River East VOL. XXXIII No. 1 - 10:00 a.m., THURSDAY, 4 JULY, 1985. Printed by the Office of the Queens Printer, Province of Manitoba ISSN 0713�9543

MANITOBA LEGISLATIVE ASSEMBLY Thirty-Second legislature Members, Constituencies and Political Affiliation Name ADAM, A.R. (Pete) ANSTETT, Hon. Andy ASHTON, Steve BANMAN, Robert (Bob) BIRT, Charles T. BLAKE, David R. (Dave) BROWN, Arnold BUCKLASCHUK, Hon. John M. CARROLL, Q.C., Henry N. CORRIN, Q.C., Brian COWAN, Hon. Jay DESJARDINS, Hon. Laurent DODICK, Doreen DOERN, Russell DOWNEY, James E. DRIEDGER, Albert ENNS, Harry EVANS, Hon. Leonard S. EYLER, Phil FILMON, Gary FOX, Peter GOURLAY, D.M. (Doug) GRAHAM, Harry HAMMOND, Gerrie HARAPIAK, Hon. Harry M. HARPER, Elijah HEMPHILL, Hon. Maureen HYDE, Lloyd JOHNSTON, J.

Frank KOSTYRA, Hon. Eugene KOVNATS, Abe LECUYER, Hon. Gerard LYON, Q.C., Hon. Sterling MACKLING, Q.C., Hon. AI MALINOWSKI, Donald M. MANNESS, Clayton McKENZIE, J. Wally MERCIER, Q.C., G.W.J. (Gerry) NORDMAN, Rurik (Ric) OLESON, Charlotte ORCHARD, Donald PAWLE Y, Q.C., Hon. Howard R. PARASIUK, Hon. Wilson PENNER, Q.C., Hon. Roland PHILLIPS, Myrna A. PLOHMAN, Hon. John RANSOM, A. Brian SANTOS, Conrad SCHROEDER, Hon. Vie SCOTT, Don SMITH, Hon. Muriel STEEN, Warren STORIE, Hon. Jerry T. URUSKI, Hon. Bill USKIW, Hon. Samuel WALDING, Hon. D. James Constituency Ste.

Rose Springfield Thompson La Verendrye Fort Garry Minn edosa Rhineland Gimli Brandon West Ell ice Churchill St. Bonif ace Aiel El mwood Kildonan Arthur Em erson Lakeside Brandon Ea st River Ea st Tuxedo Con cordia Swan River Virden Kirkfield Park The Pas Rupertsland Logan Portage la Prairie Sturgeon Creek Seven Oaks Niakwa Radisson Charleswood St. James St. Johns Morris Roblin- Russell St. Norbert Assiniboia Gladstone Pembina Selkirk Transcona Fort Rouge Wolseley Dauphin Turtle Mountain Burrows Rossmere lnkster Os borne River Heights Flin Flon lnterlake Lac du Bonnet St.

Vi tal Party NDP NDP NDP PC PC PC PC NDP IND ND P NDP NDP NDP IN D PC PC PC NDP NDP ·PC NDP PC PC PC NDP NDP ND P PC PC NDP PC NDP PC NDP ND P PC PC PC PC PC PC NDP ND P NDP NDP NDP PC NDP NDP NDP NDP PC NDP NDP NDP NDP

LEGISLATIVE ASSEMBLY OF MA NITOBA THE STANDING COMMITTEE ON PRIVILEGES AND ELECTIONS Thursday, 4 July, 1985 riME - 10:00 a.m. .OCATION -Winnipeg, Manitoba :HAIRMAN -Mr. P. Eyler (River East) nTENDANCE - QUORUM - 6 Members of the Committee present: Hon. Mrs. Smith, Hon. Mr. Uruski Messrs. Ashton, Enns, Eyler, Harper, Kovnats, Nordman and Scott tiiTNESSES: Mr. Craig Posner - Private Citizen Ms. Deborah Shelton, Messrs. Albert Gazan and Arnie Peltz - Child in Care Alumni Inc orporated Ms. Lisa Fainstein - Manitoba Association for Rights and Liberties Mr.

Paul Swartz - Family Su bsection of the Canadian Bar (M anitoba Branch) Mr. Richard Folster - Southeast Child and Family Services Mr. Vie Savino - Dakota Ojibway Child and Family Services MATTERS UNDER DISCUSSION: Bill No. 12 -T he Child and Fam ily Services Act;

Loi sur les services a I' enfant et a la fam ille. MR. CHAIRMAN: Committee, come to order. We are considering Bill No. 12 , The Child and Family Services Act. I have a list of several members of the public who would like to make presentations. I believe the normal procedure is to ask if there is anyone here from out of-town and to put those people first, and then follow them up with the people wh o are from the Winnipeg area. Are there any people here who are from outside of Winnipeg who would like to make their presentations? Ever yone's from Winn ipeg . Okay, I will go down the list as I have got it here.

The first person on my list is Mr. Craig Posner. MR. C. POSNER: Good morning. As you know, my name is Craig Posner. I'm a psy chiatric social worker, a family therapist and an adoptive parent. The very brief presentation I am making this morning is as a private citizen, and the views presented here are solely my own . I would like to thank this legislative committee for granting me time to speak today.

Before I beg in addressing subsection 74(2) of Bill 12, this committee should kno w that I phoned the Leg islature about two months ago to determine when 1 these hearings would be, and was given less than 24 hours notice of today's hearings. Furthermore, I only knew of these hearings because of my own personal interest and willingness to pursue it. More should be done to help the public be involved in this process. The main purpose of my appearance is to comment on the decision to allow adoptive children to initiate unions with their birth parents. This is on Page 65,

section 74(2) of Bill 12 . Very briefly, No. 1., a child should be at least 21 ye ars of age, if not older, before such reunions should be sanctioned. Children remain in modern fam ilies well be yo nd the age of 18 while completing their training for life. Furthermore, 18 -y ear-old children can initiate such contacts without their parents' knowledge. In most cases, this would not happen but, in the case of an 18 -year-old challenging the authority of his/her parents, such a move could be quite disruptive to fam ily life.

This could not happen at present in Ontario where the adoptive parent is part of the process. Un der these potential circumstances, this amendment could be viewed as anti-family , not pro-fam ily. Secondly , this amendment now is a total breach of commitment made to adoptive parents and bi ologica l parents at the time of adoption. These changes give imbalanced support to the act of giving birth and diminish the 24-hour per day act of raising a child.

In April, the Supreme Court of Canada took into account past comm itments and the pre- eminence of psy chological ties in deny ing a birth parent the return of "her child". This decision demonstrated the reality that chang ing the rules in midstream could be damaging to both the child and the family. No. 3, also before such cha nges are made to The Child Welfare Act, the motivation for reunions should be studied more conclusively. This will determine if the quality of one's upbringing aff ects the desire for such reunions. Some studies suggest this to be the case.

In short, caution should be taken by this Leg islature when it makes legal changes that affect many Manitoba fam ilies. I recommend a one-year delay of this amendment for further study . However, if this Assemb ly insists on passing this amendment, then adoptive child-initiated unions with their birth parents, as I stated earlier, should not beg in before the age of 21. Thank you for your attention. I know my remarks were very brief, but I wanted them on the record. MR.

CHAIRMAN: One moment please. it's usual for members of the committee, if they have any questions for clarification of your presentation, if you want to answer them they would be happy to ask them. MR. C. POSNER: Sure. MR. CHAIRMAN: Are there any qu estions of clarification for Mr. Posner? Mrs. Smith.

Thursday, 4 July, 1985 HON. M. SMITH: Yes, I wanted to thank Mr. Posner for his thoughtful comments. You referred to the motivation for reunion, that it should be reviewed. Could you just expand on that? Who would do it and what would be acc eptable motivations? MR. C.

POSNER: Well, the motivation, there has been studies and one in Scotland that I do kno w of, that has indicated that motivation for reunion has usually bee n based on situations where the fam ily experience has been not acceptabl e to the child; where children have had good upbringings or wh at they view as good upbringin gs, they haven't sought these kind s of reunions. The question that one must ask then is, does this then. create in a sense, a type of discrimina tion against one set of fa milies as opposed to the rest of the fam ilies in the community?

There is no doubt, though, that the trend now is that this kind of thing should happen, and I am not saying that one can stop that, but based on the fact that most people who seek these reunions are generally people who have had disappointing, or wha t they view as disappointing experiences, that this should be done in such a way as to make it not as disruptive to the fam ily situation. MR. CHAIRMAN: Are there any further questions? Mr. Ha rper. MR. E. HARPER: Yes. Mr.

Posner, you mentioned that the un ion shouldn't be taken place or studied before they went back, say , to their fam ilies, like the real mother and the real parents. Are you suggesting that this be not proceeded with, like the sort of news there has been reunions between especially the Ind ian children with their real parents? Are you suggesting that there has been disappointments, or could you elaborate on that? MR. C. POSNER: What I am saying is that if someone has been adopted into a fa mily and has spent their whole life in this fam ily , that becomes their family, especially in a psychological sense.

They have had no contact with the birth parent or parents. If a reunion is going to take place, it should be done in keeping with the way that the fa mily now operates. In most fam ilies, children do not leave the fam ily at the age of 18; they leave the fam ily at a much later age. As for situations where multi-racial adoptions, I am really not commenting on that very much, but that may be a different situation that requires a different kind of solution. I don't know if that answers your question or not. MR. E. HARPER: Yes, becaus e I wan ted you to elaborate on wha t the fa mily, wha t they adapt. MR. C.

POSNER: My view basically is that family life doesn't end at the age of 18 because someone is legally able to vote and drink, and that reunions with other people who have not been part of this person's life up to that point should take place in a natural way at a point when the child is in a sense leaving the family. Children generally do not leave the fam ily at the age 2 of 18 anymo re. They will generally stay well into their 20s in the fam ily, and this should be, I think, respected. MR. E.

HARPER: That is one of the things that the Ind ian people are trying to correct is the situation where Indian children were taken away at an early age and in some instances where Indian people weren't allowed to be represented or else were involved in a legal process. Throughout the history, when you talk about taking children at an early age, it has always been the case if ... MR. C. POSNER: There is no doubt if children are taken away in an illegal fa shion or without proper consultation or permission by the birth parents, then that is a different situation.

I'm talking about situations where the birth parent has given consent, knew what was happening, signed papers, the adoptive parents signed papers, that process. MR. E. HARPER: Well, let me finish first. MR. C. POSNER: Sure. MR. E. HARPER: I didn't want to get into a debate, I just wanted to ask you some questions. At an early age when children were taken away, a lot of times it was without the knowledge of parents. That practically existed in the early times before the Ind ian people were given the right to vote.

Also, it was the practice of the government at that time to take away students, children at an early age, to isolate them from their parents. I think you would realize that a lot of people went to residential schools, so there was a lot of traumatic and psychological effect on the se children. What we're trying to do as Ind ian people, is to get these children back to their natural parents and also to their identity and their culture.

I think you would find a lot of the children who were taken away had to live through some traumas and some through experiences that wouldn't have really left them because they were Ind ian children. What I am getting at is that we should, as a government, try to support the In dian people in achieving that. MR. C. POSNER: I can't argue against that.

I'm just sayi ng , from my point of view, that because discrimination took place against one group of citizens at one point, that when you bring in a correction of that situation, you shouldn' t then set up a situation that complicates fam ily life for many other fa milies. MR. CHAIRMAN: Are there any further questions? Seeing none, I would like to thank you, Mr. Posner, for taking the time and making the effort to come here today. MR. C. POSNER: Thank you very much. MR. CHAIRMAN: The next group on my list is Ms. Deborah Shelton, Mr. Albert Gazan and Mr. Arnie Peltz who represent the Children in Care Alumni Inc.

Who will be making the presentation on behalf of this group?

Thursday, 4 July, 1985 MS. D. SHELTON: I will be making the presentation and Albert and Arnie will be tak ing questions. MR. CHAIRMAN: Ms. Shelton. MS. D. SHELTON: We appreciate the opportunity to present Law Amendm ents this morning. As president of Children in Care Alumni Inc.. a voluntary service organization, I am here today to speak on behalf of our membership which is composed of former consumers of child welfare services. As former consumers of service, we understand how legislation directly affects the lives of people, in this case children who require protective services.

In our organization all our members have had some form of substitute care be it various Canadian provinces, the U.S. and Eu rope. Because of our fa miliarity with the impact of legislation on the lives of our members, we have a real investment in assuring that the legislation has a positive impact on the many thousands of children in care. Last year, there were approximately 3,000 children in care. The legislation affects these children and thousands of fam ilies.

Our membership has very carefully reviewed both the draft-legislation and Bill 12 and we have been able to compare the effects of legislation from several provin ces. Ou r perspective is uniqu e in that it has been influenced by the fact that we'v e experienced the effect s, both positive and negative, of child welfare legislation. In general terms, we appreciate the intent of Bill 12 with its emphasis on providing services to children and their fa milies in the community, and stressing placement away from the fam ily as a last resort.

Our experience is that although some of our members required care for some periods of time, other members could have been much more easily accommodated with less pain and disloca tion with mem bers of their extended family. We have noticed with our Native members especially that extend ed fam ilies were very often not considered as a placement source when natural parents were unable to provide care. We assume that parents do not deliberately fail at parenting, but rather that economic pressures and unfortunate life circumstances play a major role in family breakdown.

The trend towards supporting the fa mily in the community, including the extended family, in being the primary care givers, is one that we endorse. We believe that every effort should be made to support the family. We are aw are, however, that, in spite of these effo rts, some children will require protective services including state care. We note that in Bill 12, the emphasis on decentralized community agencies responsible for service provision is balanced off by an increased role of the Child Welfare Directorate in maintai ning quality of service accountability. In terms of the duties of the director,

section 4 gives the director the responsibility to monitor and check some of the problems children may experience while in care. At the same time, decentralization of service provides opportunity for greater communit y involvement. 3 By mandating the directorate to keep the system more accountable for child welfare services provided, as we ll as greater community participation, we feel that the needs of children can be more effect ively met. Nevertheless, in spite of these positive trends, there is an inherent weakness in the system.

What is missing in Bill 12 as it now stands is a vehicle for monitoring the appropriateness and effe ctiveness of services provided to children in care. We would strongly urge the committee to consider legislation which would establish an ombudsman for children in care. An om budsman for children who are in care could inde pendently review reports of mistreatment of children in child welfare placements.

This is particular important in light of the recent press release from the na tional meeting of Canadian ombuds men who expressed concern about inadequate and sometimes abus ive practice in child welfare operated programs. We have several conc rete examples from our mem bers who, as children, were in detrimental placements and who, in spite of their requests to be removed, were ignored. The importance of a community based child welfare system, an accountable directorate, and a childrens' ombudsman all contribute to a system which, in the event of fam ily breakdown, works in the best interests of the child.

I would like now to focus on several other aspects of Bill 12 which also concern our membership. Articles referred to under

section 33 deal with various aspects of representin g a child's views in court proceedings. We believe that the child has a very significant investment in the outcome of court and social work decision making and, as a matter of right, must be consulted. We agree with Mr. Birt's comments in the House on June 19 - and I am paraphrasing - when he discussed that court is generally an intimidating environment where children may not be able to express their views without hesitation.

We recommend, therefore, that the legislation assures that a child has access to mediating services and be supported in the court setting, as well as legal counsel in those cases where this is required, to assure that the child's opinion is represented in court. One thing our membership shares in common, whether our experience in care was positive or negative, is that we all wonder wha t really happened.

Not knowing, and therefore having little or no information with which to understand events, leaves one with a sense of helplessness, This is because we were not included in making vital decisions affe cting our entire lives. The bill is somewha t unclear regarding how the views of the child will be represented in court. We feel strongly that the child's views must be represented. Another concern raised in the House on June 19 th deals with the Abus e Registry. We feel that every precaution must be taken to protect children from abu se.

We support the procedure of maintaining the names of persons who have been confirmed as child abusers on a registry. However,

section 19 of the bill does not make provision for removing the names of individuals who are found not to be child abusers, and there does not appear to be closure on this section. Another matter of concern to our membership is

section 7 4, the Post Adoption Registry.

Thursday, 4 July, 1985 We do not wish to belabour the wel l-documented concerns about loss of identity in both same race and cross-cultural adoptions, the need for a complete genetic history, and the overwhe lming, alm ost universally-felt desire to know one's biological roots, personal origins and history. With respect for such human strivings other provinces, for example Nova Scotia, are introducing open adoptions and active adoption registries are being activated in other parts of Canada. We support the intent of

section 74(1) to open up the information system for adult adoptees. We think this is a progressive move. However, we feel that the present bill does not go far enough.

Section 74(6) should be amended to bestow a right to as much non-ide ntifying information as possible from agency files, including medical records, genetic history and other information, which enhanc es the adoptees desire to learn more about him or herself. We believe that an individual's desire to know more about him or herself has little or nothing to do with the quality of their adopted experience. The interest any individual has in searching for their fa mily tree is an example of how it is very human to want to know more about where one comes from.

Presently, this right is denied to children who have been adopted. One of our members, now in his fifties, has a curiosity about his origin. He has reason to believe that his natural mother has died and there may be no siblings. As a result, because of how the bill now reads, he will not have access to information. We recommend, therefore, that the committee seriously consider that the Post Adoption Reg istry include an obligation by the child welfare directorate to contact next of kin. Next of kin should be included in the list of persons covered by

section 74(1) in the maintenance of the Post Adoption Reg istry. The desire of an individual to learn more about themselves should be viewed as a sign of health. To grant adults any less is patronizing and demeaning. The last area which CICA wishes to bring to the attention of the committee is

section 76 of the act dealing with confidentiality and access. First, we strongly recommend that the act make it mandatory that agencies maintain comprehensive and accurate developmental records with respect to each ward in state care. Such an historical record is essential in filling in information gaps. lt should contain all the relevant fam ily information, including ba ckground information; the reasons for state care; the disposition concerning siblings; a record of placements and reasons for movement between placements; school and medical records and so forth.

Such information is available for children who live in fam ilies through the oral tradition of communicating family histories. Wards and former wards often do not have access to such important information which is critical in developing a sense of personal identity and historical continuity. The duty to maintain such a developmental record could be included in an

article in

Part VI , or may belong in

section 7( 1) of the act under Duties of Agencies. The right of access enshrined in

section 76(4 ) of the act appears to be totally nega ted by

section 76(5). First, the non- retroactive clause is a major exemption. In eff ect, it means that for many years former wards will be unable to obtain a complete picture of their past history. 4 Secon d,

section 7615 )(

b) which states that the "Righl of access does not apply to a record which relates tc services provided under Parts Ill and IV " is a ver} serious exemption.

Part Ill of the act sets forth child protection services; while

Part IV is concerned with services related to children in care. This may mean, in eff ect, that none of the relevant information i� accessible. We fail to understand the purpose of these vast exemptions and request that the committee give consideration to revising this part of the bill. Certainl}

Part IV of the bill should be completely accessible since it deal directly with services to children in care.

Section 76(7) sets out further restrictions on access. Although subsection 76(7X

a) may be reasonable,

section 76(7) (

b) exempts information provided by persor outside the child welfare and would undoubtedly include a great deal of extremely pertinent information for former wards: medical records, school reports and assessments, public health documents, psychological reports, etc. Children in Care Alumni Inc. does not see the justification for this exception since, following the proclamation of the bills, all parties are on notice that access will ultimately be available to the ward at the age of majority.

Children in Care Alumni is deeply concerned about the lack of legisla tive support for establishin g confidentiality as an inexorable right of former wards. The bill, as indicated by sections 76(13) and 76(1 4), leaves it to the discretion of the director or agency personn el whether files of former wards are to be reopened. This means that information about a former ward remains available in perpetuity and the right to privacy can be violated at the discretion of service personnel, even when a former ward reaches the age of majority. Society would not tolerate such licence with any other client group.

For example, would society accept that medical files, psychiatric files or school guidance files be opened in perpetuity at the discretion of service personnel? This

section is a violation of privacy and completely unne cessary when the full force of the act can be invoked in any situation where there are reasonable grounds to believe that a child is in need of protective services. Children in Care Alumni requests, therefore, that the committee give consideration to amending this

section of the bill to provide access to files of former wards, without the consent of the ward, only by an order of a court. In addition, since confidentiality is a fund amental principle of service providers, Children in Care Alumni believes that it is important to include a penalty clause to discourage any breaches of confidentiality. Thank you for considering our presentation. We would be very pleased to answer any questions or clarify any points. Albert Gazan and Arnie Peltz will be looking after the questions mostly. MR. CHAIRMAN: Are there any questions for this organization? Mrs. Smith. HON. M.

SMITH: Just again I want to thank Deborah Shelton for giving a very important perspective on the legislation.

Thursday, 4 July, 1985 I would just like to ask, in view of her concerns about review of placement and evaluation, whether she fee ls that the

section 54, under

Part IV, where the director is required to review placement and plan for every child in care at least once a yea r; and also that the Ombudsman is currently allowed to review child welfare cases, may do so whether she or the organ ization feel that that goes at least part way along to meeting the need . MR. A. GAZAN: I guess the problem for us is that if the child welfare system itself finds itself in a situation where it has not or is not providing appropriate or adeq uate care, chances are that that might not be investigated as fully because it's a matter of the system investigating itself in a sense.

The Ombudsman's Office may not be contacted because children, generally speaking, particularly when they are younger, don't have the savoir-faire to approach an Ombudsman to complain about service providers. So we would like to recommend a build-in sort of advocacy Ombu dsman- type person who is known and identified clearly as a person who would complete investigations of reported abuse or maltreatment in the system itself. MR. CHAIRMAN: Are there any further questions? Mr. Enn s. MR. H. ENNS: Just one, Mr. Chairman.

I, along with other committee members I am sure, appreciate the rather thorough ana lysis of the bill by this presentation. We were wondering whether or not it would be possible for committee members to receive a copy of the presentation just made. I appreciate the notice was short for this meeting, but if arrangements could be made with the Clerk to photocopy the presentation, it would be appreciated. MR. A. GAZAN: I am sure, Mr. En ns, that if the government is prepared to provide typing services, we are certainly prepared to proofread it. MR. CHAIRMAN: I would like to remind Mr.

Enns that this will be in Hansard. MR. H. ENNS: Well, Mr. Chairman, I would like to remind the committee, I would like to remind them, Mr. Chairman, the way this government runs Ha nsard along with many other things, Ha nsard doesn't always arrive when it ought to arrive at the time that we have to give clause- by-c lause consideration for this bill. it's a normal practice, and many people that appear before this committee avail themselves to either office facilities of the government or of their own to provide copies for the presentations they are making. I am not making an issue of this, Mr.

Chairman, just being helpful. MR. CHAIRMAN: Are there any further questions? MR. H. ENNS: You can't build buses any better either. MR. CHAIRMAN: Order please. Mrs. Hammond. MRS. G. HAMMOND: Yes, in the presentation, the last was sugges ting a penalty clause. What type of penalty wou ld one have in mind? 5 MR. A. GAZAN: I would appreciate it if Mr. Peltz could an swer that question. MR. CHAIRMAN: Mr. Peltz. MR. A.

PELTZ: Yes, I think the point we made here is that where the Leg islature feels it's important enough to express a duty on people enforcing the act, or dealing with the act to maintain confidentiality, that it should be backed up with the kind of specific penalties that occur in other places in this act or in other legislation. You might want to look, for example, although I don't necessarily recommend the same penalty, at

section 75 which was designed to ensure that legal proceedings were maintained in confidentiality by the media. I should say, in fairness, that The Summa ry Convictions Act is available whene ver there is a breach in a provincial statute if there is no specific penalty provided. I think wha t the group here is saying is that confidentiality is very important and that all those who are dealing with the act should have clearly before them the consequences of a breach of legal duty. MR. CHAIRMAN: Are there any further questions?

Seeing none, I would like to thank these people for coming today and making their presentation. MR. A. GAZAN: I am left a bit confused after the deb ate, however, as to whether I should send it to a typist or should not send it to a typist. MR. CHAIRMAN: Mrs. Hammond. MRS. G. HAMMOND: Mr. Chairman, we would be very happy with just a rough copy; it doesn't have to be any thing formal. - (Int erjection) - That's fine, we'll hope for Hansard. Thank you. MR. CHAIRMAN: The next person on my list is Donna Wiebe. Is Donna Wiebe present? Lisa Fainstein. MS. L. FAINSTEIN: Good morning.

My na me is Lisa Fainstein, as you've been told. I would like to thank the committee for this opportunity for my organ ization to present our comments. I am from the Ma nitoba Association for Rights and Liberties. We are a non profit organization dedicated to the protection and enhan cement of human rights and civil liberties for all Ma nitobans. I will be reading extensively from our brief because I realize that you only received a written copy of it this morning and in this wa y, I will be certain that you will get a fair viewing of it.

This brief was submitted to the Legislative Review Commit tee, and they studied and discussed the provisions of this proposed Child and Family Act, Bill 12, from the point of view of civil liberties and human rights. I am the convenor of the children's rights, the children's concerns group of MARL ad we prepared this brief with the assistance of Sybil Sh ack an d Lisa Caldw ell. Our first area of concern is in the declaration of principles and although we agree with the intents that

Thursday, 4 July, 1985 have been set forth in this section, we question the order of priority of the principles as they are set forth. The protection of the fam ily seems to be given higher priority than the protection of the child. Second ly, in the declaratio n the word "community" is one which we feel ought to be defined. There are many ways of defining a community, be it ethnic, relig ious or geograp hic and many times these com mun ities will overlap.

Which commun ity, for example, has the responsibility in an urban area where the population of a geographic community is scattered through it has 25 to 30 ethnic communities? We recommend that "community" be specifically defined in this bill. "Best In terests,"

section 2, this

section states wha t the bill deems to be in the best interests of the child. We believe that the physical and emotional well-being of the child should be given priority. Sometimes the attempt to save a family can result in the abuse and permanent damage to the child. Without denying the importance of the stability in family relationship, we believe the best interests of the child should come first. We recommend a reordering of

section 2( 1) , and the reordering as given to you in the brief. Regard ing the "Application for In corporation,"

section 6( 1) , this

section as well as the subsequent subsections 6( 2) to 6( 12) provide for the establishment and dissolution of regional and small agencies, which would provide child and fam ily services. We wish to express concern regarding the overriding powers of the Lieutenant-Governor-in-Council and the powers vested in the director. There seems, in our opinion, to be a contradiction in the establishment of regional and small agenci es, and then the vesting of such omnipotence in the central directorate. In

Part I, Administration, "Duties of Agencies,"

section 7( 1 ), this

section sets forth the duties of agencie s according to standards established by the director and subject to the authority of the director. The distinction between subsection (e) "protect children ," and (g) "provide care for children in its care," is not clear. Therefore, we rec ommend that clarification of the difference between these two items be made.

Section 7( 1)(j ), provides parenting education and other supportive assistance to children who are parents, with a view to ensuring a stable and workable plan for them and their children. However, at present there is a gap between these children and being a registrant for social allowance. A child-mother is considered the responsibility of her parents and so is her child if the minor parent is unmarried, living alone or in a common law relationship even where her parents have given consent to the relationship. Becaus e of this, we recommend that Clause (

q) be added which perhaps might read: "may undertake such other actions as are in conformity with this Act and the by-l aws of the individual agency ." The effect would be to provide some leeway to the agencies to meet situations not explicitly covered by this section. We would like to see this

section clarified and expanded, as we have sugge sted. I would just like to emphasize the problem of the minor parent in obtaining any type of social allowance, and their diff iculties in dealing with the agencies. In

Part 11, Services to Fam ilies, Services to Minor Parents,

section 9(2). This

section states that an agency, on application by a minor parent, shall provide services. 6 We believe the onus should not be on a minor paren to apply but, as stated in the present act, an automatij refe rral should be implemented . The present ac provides for the reporting of all children born to mino single parents so that social services may be offere< before the mothers leave the hospital. We also believ< no distinction should be made between married an< single minor parents. The marital status of a child parent should not be a fact or.

Accord ingly , wj recommend the obligatory reporting of all children borr to minor parents, and thus an automatic referral fo the offering of social services. Ag ain, here I would like to emphasize that, wherE you have a minor parent in this situation, to put thE added onus on them to apply for social services i! probably unrealistic. The offering of services to all o these individuals will ensure that all children born o minor parents are protected. On Page 3, Notice to director of birth of child to ar unmarried child,

section 9(4). This

section states tha· where a hospital or other institution has received fo1 care during preg nancy or accouchement an unmarriec child, or a child with respect to whose marriage there exists reasonable doubt, the person in charge of the hospital or institution shall forthwith notify the directo1 or an agency on the birth of the child. As recommended above, we believe the procedure ought to apply to all minor parents, regardless of marita status. In the event of a common-law or marriage tc two minor parents, they still may be in need of suppon services. We, therefore, recommend that all child rer born to minor parents be reported to the director. Assistance to community groups.

Section 11 ( 1 ). Thi"

section states that any interested community group or individual may apply to an agency for assistance in resolving community problems which are affec ting the ability of fam ilies to care adequately for their children. We have some reservations regarding the wording, if not the intent of this section.

We have alread} com mented on the diff iculty of defi ning what a community is, and are somewhat concerned about "any interested community group or individual" being given specific rights to offer "assistance in resolving community problems." lt seems to us that there are negative possibilities such as one "community group" creating hostility against another "community group" whose cultural background is dif fer ent, and of individuals interfering with the rights and motives in the interests of "resolving community problems." We recommend that, if this

section is retained, terms such as "community problems" and "affecting the ability of fam ilies to care adequately for their children" be carefully defined to prevent undue interference and invasion of privacy. The next section, Programs for volunteers,

section 11 ( 2). This

section permits an agency to es tablish service programs to fa cilitate the participation of volunteers in the provision of ongoing services. As a volunteer agen cy, MARL favou rs the principle of volunteerism. However, in the delicate situations which develop in relationships between parents and children and between an agenc y and its clients, it is important that the roles of volunteers be clearly defined, that volunteers work under careful supervision, that there be adequate training of volunteers who are expected to work with or in child care agencies, and that provision be made for such training.

Thursday, 4 July, 1985 We have a great concern here with laypeople coming in and trying to do work which is in a professional field, and that children will be the ones to suffer for this. The

section on the Report of Ab use has already been commented on by the Children in Care Alumni In c. We would also like to comment on that section. lt allows an ag enc y to report any inf ormation respecting suspected abuse of a child to the director, who will maintain a register for recording the information. We acknowledge the need for reporting of suspected cases of abuse. Howe ver, an adeq uate investigation by the director should be unde rtaken befo re such information is recorded in a registry. lt is reasonable to assume that some "suspected" cases would prove to be invalid.

We, therefore, recommend that only verified information be recorded. Director to provide information regarding this register,

section 19( 4), this

section stipulates that the director shall provide to any person access to the information contained in the register, other than the identity of the person who provided the information. We believe that this

section is too broad, especially considering the provisions outlined in

section 19 (2). As a civil liberties association, we believe in public ac cess to information. In this case, however, there is often an overriding need for protection of privacy through confidentiality and, therefore, the limited withholding of information is justified. We believe the director should be given some discretion when releasing information to protect individuals unjustly accused. We recommend that the word "shall" be changed to "may" in order to allow for a discretionary power for the director to withhold potentially damaging information. The next section, Presence of a child 12 or over required.

Section 33(2), this

section states that the presence of a child 12 years of age or older is required unless a judge or master on application orders that the ch ild not be present. We endorse the intent of this change, and we recommend that the child should be informed of his/her right to cou nsel . We also recommend that a subsection be added to provide for financial remuneration for a child's counsel. Removal of a child,

section 51 (1) . This

section allows an ag ency to at any time remove a child in its care from the person with whom the child was placed. If an agency removes a child it should only be done with justifiable cause. We, therefore, recommend that the

section read as follows: "An agency may at any time, with cause, remove a child in its care from the person with whom the child was placed." Consents required for agency placement,

section 58 ( 1 ), this

section stipulates that a judge may not make an order for adoption of a child placed for adoption by an agenc y unless written consent is given by the director and the child if she/he is 12 years of age or older. If the child does not wish to be adopted or does not wish to be adopted by the designated adoptive parents, the child should have the right to counsel. We recommend that children in this situation be informed of their right to counsel, and appropriate provisions be made for the financial remuneration for the child's counsel. Consents required for non-a genc y placement,

section 58(2), this

section states that a judge shall not make an order for adoption of a child in the care of an agenc y unless the consent of the legal guardians and the child 7 if she/he is 12 years of age or older is obtained. Ev en if the adoption seems to be in the best interests of the chilrl the guardian(

s) may not consent, nor may the child consent, or the guardian(

s) and the child may disagree. it is essential that all parties involved have their own counsel so, in complex situations, a solution may be fou nd. We, therefore, recommend that the legal guardians and the child be informed of their right to legal counsel and be assisted in obtaining such coun sel. Wishes of child under 12 to be taken into account,

section 58 (9), this

section instructs the judge to take into account the wishes of a child under 12 who is to be adopted where the child's consent is not required or has been dispensed with for other reasons. Age is not always the most appropriate criterion to use in determining whether child ren should consent to an adoption. We recommend that children under 12 who are to be adopted should be asked for consent, as long as they are able to understand the situation. We also recommend that children should be informed of their right to legal counsel under these circumstances. Surviving spouse may apply for an order of adoption,

section 66( 10), this

section states that where a child is placed for adoption in the home of a husband an d wife or a man and a woman who are cohabitating, an d before an application is made for an order of ad option one of them dies, the surviving person may apply for the order of adoption; and a judg e may grant the order of adoption in the name of the applicant and of the deceased person, and in that case the child shall be deemed for all purposes to have been adopted by both the applicant and the deceased person.

For the purposes of inheritance, to consider the child to be adopted by the applicant and the deceased, is understandable. However, if the applicant is the survivor of the biological parent of the child to be adopted or if the survivor remarries before the order for adoption is approved or the child raises obje ctions to the adoption, the child should have an advocate, either legal counsel or other expert advice. Access order,

section 67(7), this

section allows a parent, a person who marries the parent of a child, or a male and fema le cohab iting, one of whom is the parent of the child, to apply for an ac cess order to the child as part of an adoption application or in a separate application after the adoption order is granted. The judge may place conditions on the access order. This

section does not specify that the person applying for the access order should be investigated in the same way as the person applying for guardianship of a child is investigated. We recommend that, in order to ensure that a child is protected and to uphold the best interests of the child , any person, rega rd lesss of his/her relationship with the child's parent, should be investigated if he/she is to have access to the child. Documents to be filed in support of application,

section 72(4), this

section outlines the documentation required by the applicant for the adoption of an adult. This includes the consent of the person to be adopted, birth certificates of the adoptee and the applican t and, if applicable, marriage certificate of married applicants, declaration of commitment of cohabiting couples, decrees nisi and absolute of divorce, and/or the death certificate of the applicant's spouse. MARL believes and so recommends that any adult who may be adopted should be informed of his/her

Thursday, 4 July, 1985 right to legal counsel in such a situation, and it should be an informed and willing decision on the part of the adult to be adopted. Notice of objection,

section 76(8), this

section states that if a person given access to a record believes the document is in error, he/she may submit a written objection. We recommend that a person should have the right to ask for the removal of inaccurate information from the file, and if such request is denied, they should have a right to appeal. Fees -

section 76( 16 ). This

section states that a person who is given access to a record or an excerpted

summary of a record under this

section shall, prior to examining the record or

summary or obtaining a copy thereof, pay to the agency which has custody or be prescribed by regulation, a fee . Excessive fees might be used to limit access to information and would certainly penalize the less affluent and favour the affluent in attempts to receive such information. We, therefore recommend that a maximum fee be set in the bill and not left to regulation. In our comments, we have sugg ested a reorganizing of the principles, for example, to give priority to consideration due the child rather than placing the family first.

There are occasions where the best interests of the child and the fam ily situation do not coincide. In our comments on the principles we suggested that the principles dealing with the child be placed ahead of those dealing with the family to indicate that the protection and care of children are of greater concern than the preservation of a family setting. We believe that a child in trouble or at risk deserves an advocate.

Although in theory the Children's Aid agencies serve that purpose, in effect they often become one of the protagonists when disagreements arise regarding what is in the be st interests of the child. We have, therefore suggested in various sections of the act that legal counsel be available to present the case of the child and that provision be made for the costs. We recommend the right to counsel for the child be included in this act.

A child who is mature enough to understand the circumstan ces of his/her case, whether it be for temporary placement, long term guardianship or adoption, should have every opportunity to express his/her views, concerns and wishes. They should be taken into account in the making of the final decision. We are pleased to note that the proposed act does give consideration to the children's preferences and opinions. As we said initially we are in general ag reement with the intention of the act and hope that in its final form it will provide a protective framework for the children of Man itoba who need its shelter.

Thank you for giving us your consideration, and I am av ailable to answer any questions that you might have. MR. CHAIRMAN: Are there any questions for Lisa Fainstein? Mrs. Smith. HON. M. SMITH: Aga in, you have presented a very detailed report. There are some of your concerns which we feel are dealt with already, and we can perhaps on 8 another occasion discuss those. But there are just twc points I wanted to raise, one the principles in th•

preamble have been rearranged from earlier drafts anc the best interest of the child is Principle No. 1. So, ir a sense we have recognized that concern and that': been our intent all along. With regard to your concern about decentralizin! authority versus maintaining some central authority witt the director, we aren't changing any thing that hasn' been in eff ect, and I just wond ered if you were awan that the current act leaves the director responsible fo1 the allocation of resource, the setting and maintainin! of standards. lt is the service delivery that i: decentralized. MS. L.

FAINSTEIN: Yes, I am aware of that. MR. CHAIRMAN: Are there any further questions fo1 Ms. Fainstein? Seeing none, on behalf of the committee I would likE to thank you for taking the time and trouble to comE here today. MS. L. FAINSTEIN: Thank you, and I would just likE to point out that, due to the short notice, we did no· have time to proof read our submission and any erron are due to our lack of time. Thank you very much. MR. CHAIRMAN: Thank you. The next presentation on my list is by Sam Mala muc and Paul Swartz. Who will be making the presentation? MR. P.

SWARTZ: My name is Paul Swartz and I am € member of the Ma nitoba Bar Association, Fam ily Lav. Subsection. Mr. Malamud who is the president is no1 in Winnipeg unfortunately and, fortunately perhaps for both him and I, this task has fallen on my shoulders on short notice. I do not have any written brief before you because I don't myself have a written brief. I am going to proceed firstly to go through some of the sections in the ac1 that we have reviewed and have some comments to make.

And then secondly, I'd like to deal generally with the notion of children and their rights, or the lack thereo1 in Ma nitoba and in this act in particular. On reviewing the draft and the leg islation, the committee looked at many of the sections and, o1 course, we 're looking at it strictly from a lawy er's poin1 of view. What lawyers are often accused of doing is bec oming highly techn ical and missing the guts of the matter. Nevertheless, wha t I think can often happen is that the legislators fail to sometimes, and without intention, see that the very minute difference in wording of a

section makes a !ot of difference in practice wh en you come before a judge and try and convince him that your clients' rights fall within a

section or do not; that's why in some of these specific wordings we have the following comments to make. Turning firstly to

section 18, when we' re looking to defining wha t child in need of protection is, the group that reviewed the sections felt that although there might be other areas that would cover it,

section 18 (b) (ii) should not only read, "whose conduct endangers", but

Th ursday, 4 July, 1985 ilso should say, "whose conduct or neg lect endangers". 3orry,

section 17 is wha t I'm talking about - 17 (b) (ii), ·ather than "whose conduct endange rs", I think it ;hould say, "conduct or negle ct". Similarly, as you can see it would have been very 1elpful to have a complete version in front of you. I'm �oing to deal in general terms with the proceedings. When la wye r s end up in court on protection :>roceedings, wha t they often experience or have in the Jast experienced is difficulty in obtaining full particulars 'rom the agencies involved. In particular,

section 29( 1) , Nhich provides that the hearing "shall be returnable Nithin 30 days ... "That is more honoured in the t>reach than in its observance. Hearings are very rarely �oncluded by that time. Sometimes you don't even have particulars of the case before that period of time ands. The committee that I dealt with felt that, in order to put an end to these delays, there ought to be a maximum time period within which a hearing should t>e completed. The general consensus was that hearings of this nature ought to be completed within six months.

When it comes to the fact of obtaining the particulars at the outset it was felt that, although the agenc y has a duty put upon it to provide the particulars, there is no penalty for not doing so within a reasonable time. Reasonable time is something, I suppose, that a judge could determine but, in all litigation before the courts, costs are at issue. A party who loses or is otherwise either causing delays or seeking adjournments can be orde red to pay costs. We're suggesting that should not be dif ferent for an agen cy .

If the agency in the proce edings fails to provide particulars in a timely fashion, there ought to be some remedy available for the litigants. That remedy, we're suggesting, ought to be costs. When we turn to

section 37, the court is given the power, firstly, to call witnesses. We feel that it should specifically say that, if the court is going to call a witness, this person is there for cross-examination by any party to the proceedings. lt has often been confusing. it's not often the case that a judge calls a witness but, when the judge does, wh ose witness is it? Who has the right to question? We're suggesting that it might be clearly stated that the person is there to be cross examined by any of the party to the proceedings. Part (

b) says that evidence can be accepted by affidavit, some lawyers would get concerned that you might think that a hearing could be conducted by affidavit evidence entirely. There are some strictures as to wha t kind of affidavit evidence and in wha t circumstances it ought to be admitted. There is a La tin term, "de bene esse." The feeling of the group was that only in those particular circumstances where that kind of evidence is allowed should there be affidavit evidence allowed in these proceedings.

We're also concerned that in Part (c), you can accept as evidence a re port comple ted by a medical practitioner, dentist, psychologist or registered social worker, etc. We're conce rn ed that the procedural safegua rds provided in The Evid ence Act of Manitoba are not also provided in that clause. For example, The Evid ence Act provides that the report must be provided to the other parties at least 14 days prior to the trial. That is not included in this act. We don't know wha t the intention is.

We would like to have that clarified, and we would like those protections. 9 Returning to an earlier comment I made but it's now in line, it's

section 30(2). I was talking about the agency's requirement to provide particulars. I repeat that we would like to see the possibility of costs being awarded against the agenc y for failing to do so in a timely fashion. But, generally, the group felt that we should not be restricted to particulars. The Queen's Bench rules in relation to Exam ination for Discovery are specifically excluded.

We recognize that involves delay in these proceedings. lt involves extra proceedings, but there are cases where it is necessary. lt is doing more mischief by not allowing the full range of procedures to counsel involved in these cases than to remove it for those situations where it is felt that matters ought to proceed more quickly. Just to stop for a moment, one of the concerns of the group in particular was that, once a child ends up in care or is under apprehension, the parent or guardian has basically no access to any information at all with respect to the child's care. This is often the case.

They are not informed regularly of any treatment or of the wel l-being of the child in care, except to the extent that the agenc y feels they might be willing to share the agen cy, and it's usually not very much. This is felt to be detrimental, not only to wha t can be called the parents' rights, but also to the children, the interests of the child. We could not see any justification for an agency refusing to share any information or records with respect to the child in care.

Therefore, it was felt that the act should clearly state that the parents or guardian and the child should have access to any information or records on the ch ild while in care. This information should be provided upon demand. Turning back to the act,

section 35 talks about the right to call the parents of the children apprehended and cross-examine them. lt was tossed around and it certainly can be argued that the parents' counsel or parents themselves ought to have the right to call the worker involved who did the apprehension to cross examine. Now, in practicality, it may well be that in almo st every case the worker gi ves evidence.

Nevertheless, if a right is given to cross-examine parents - and I say parents usually give evidence in cases - why oughtn't there be a right to cross-examine the worker, to call that worker and treat that worker as a hostile witness and cross-examine that worker? In general terms, the act does not remedy the situation perceived by lawyers to be a problem with workers, and that is this: the worker has to play two roles; one is investigative, and then once in court the worker who has gained the confidence of these parents turns and must give evidence that is contrary to the parents.

All the confidences somehow come pouring out, and the parent is left feeling totally betrayed . it's a diffi cult situation, but we fe lt that there ought to be a requirement that a worker must make it clear to a parent that that potential situation arises; and there must be, we feel, definition in the act saying that there is an obligation upon a worker, once a decision is made to apprehend the child, to then hand over the case, either to another worker or to take on an entirely different role.

Section 38 (2) deals with consent orders. There is one specific wording recommendation that we have. The act says, I believe, "a judge may, without receiving

Thursday, 4 July, 1985 further evidence, make an order", and this contemplates a situation where all the parties may come and consent. But it ought to say, "without receiving any evidence". At the conclusion of a hearing, when a judge is deciding wha t order to make, it is felt that there ought to be reasons given by the judge for his decision. Based on the evidence before him, he ought to state why he or she has chosen to remove the child from the home; why the child was apprehended.

He ought to give reasons for making the order that he's making, and what plan is proposed attached to his orders so that, when and if it comes back to court for a review, there is a clear record of what was expected, what was done, why it was done. lt is felt that is very important for all parties concerned for there to be reasons. I would like to ask a question of the committee. I'd like to know why it is that, when the act is called "The Child and Fam ily Services Act", why it is that the child is not given any rights to participate in the proceedings in which he or she is most seriously affected.

Wha t I mean by participate is I mean an effective right to either appeal decisions; to be present and act as a party to the proceedings; to be legally represented if the child has the capacity to instruct counsel; to be legally represented in a different way if the child does not have the capacity to instruct counsel.

Why is it that all the sections that deal with review of protection orders, or review of access that is allowed or not allowed by the agen cy, why does the act not say that the child has the right to question those things? lt only talks about the parent or the gua rdian or the society; it does not, in any way , say that the child has any right to question any of those proceedings. The act talks about children who are over the age of 12 having the right to be present in court, but I ask you why? Why would they be present in court, if not to participate?

If they're over the age of 12 and are thereby, I would assume, considered competent to understand the nature of the proceedings, why are they not also considered competent to instruct counsel? Why are they not parties to the proceedings where they have a right, whether on their own, through a lawyer or otherwise, to question the evidence that is going in?

In Ontario in 19 80, the Attorney-G eneral's ministry, the Min istry of the Attorney-General had a comm ittee that considered for Ontario the new act that was being proposed at the time, and they went ahead and specified very specific provisions for there to be independent legal representation for children.

Although this act carries forward a watered-down version, it seems to be inconsistent with the socio-psychological notions these days of when children can understand these proceedings; whether they have the capacity to instruct counsel, and the act is contradictory in that way. lt recogn izes that children over the age of 12 ought to be there, but not participate. Why? In 19 74, this Legislature created a

section in the then Child Welfare Act that said that a judge could appoint counsel for children, but it did not go on to say in which situations or how to decide that. Then in 19 78, I believe, or 19 79, this Leg islature amended the act, and set out specific guidelines that a judge had to consider in deciding whether or not to appoint a lawyer for a child in protection proceedings. Yet, throughout that period of time, I could probably 10 count on one hand, maybe two hands, the numb er of times that lawyers have been appointed for children.

Now that doesn't mean that those are only the number of cases where it has been in the best interests of the child for there to be that kind of representation; it simply means that there has not been a system set up whereby those appointments could take place. I am asking the committee to consider amend ing those sections that deal with legal representation of children to give it more meat, to make it consistent with the other provisions in the act that recognize the capacity of children and their rights, so to speak, to participate in proceedings at the age of 12 or more.

I am asking the committee to specifically authorize fundin g, or undertake further study, to determine the ways and means of providing legal representation for children in these proceedings. I apologize for the apparent, d isjointed comments. Nevertheless, it was short notice that we received, and had not completed our entire review of the act. We thank you for listening to my comments. MR. CHAIRMAN: Are there any questions for Mr. Swartz? Mrs. Smith. HON. M. SMITH: Again , I thank Mr. Swartz for his f airly technical view of the bill, but a very important element in the total process.

We are favourably persuaded on a couple of points: cross-examination of a worker, and a judge being required to give reasons for a decision. The other points, we are reviewing. At the moment I think perhaps the chief difference might be in the participation of the child. We believe we' re going partway along, but perhaps not quite as far to legitimize the full legal participation, as you're recommending. But again, I want to thank you for your contribution. MR. P. SWARTZ: Thank you. MR. CHAIRMAN: Are there any further questions? Seeing none, then I would like to thank you, Mr. Swa rtz, for coming today.

The next person on my list is Mr. Robert Dan iels; Mr. Robert Daniels. Mr. Murray Sinclair; Mr. Mu rray Sinclair. Ch ief Ed An derson; Ch ief Ed An derson. Ms. Norma McCormick; Norma McCormick. Ken Murdoch; Ken Murdoch. Richard Folster; Richard Folster; Vi e Savino and Es ther Siedel. MR. R. FOLSTER: Excuse me, I'm Richard Folster. MR. CHAIRMAN: Richard Folster. MR. R. FO LSTER: The reason I'm here today is to indicate that Mr. Dwayne Ward is representing our agenc y in this particular matter. He is not available today. We would like to be able to still have that opportunity to make a presentation.

I am not in a position to be able to do that. MR. CHAIRMAN: Okay, if presentations do come in late, they can always be written. If it's after the oral presentations are made, the committee will still be accepting written presentations.

Thursday, 4 July, 1985 Mr. Vie Savino or Es ther Siedel. . Mrs. Hammond on a point of order. MRS. G. HAMMOND: Ex cuse me, Mr. Chairman, but I wonder if you could make it clear to Mr. Folster that the committee may be dealing with the bill as early as tomorrow afternoon and the presentation should be in before that time. MR. CHAIRMAN: Mr. Folster, the bill will be considered fairly shortly. MR. R. FO LSTER: Right. My only response to it is, that from my point of view it's unfair that I would be able to make a presentation on such short notice. I was ca lled last night at a quarter to five. MR. CHAIRMAN: Mr.

Savino. MR. V. SAVINO: Thank you , Mr. Chairman. Mr. Chairman, Ma dam Minister, members of the comm ittee, first of all, I wanted to exp ress Es ther Siedel's regrets that she couldn't be here today. She wanted to be here today to address you and discuss this bill with you but, unfortunately matters arose at the agency which has its headquarters in Bran don which required her to be there today. So I'm on my own this morning.

Ma dam Minister and members of the committee, on behalf of Dakota Ojibway Child and Fam ily Services, I want to thank you for this opportunity to address you on what we consider to be a vitally important bill. We are aware that this bill has been over three years in the making and that the consultation process involved in producing this bill was very extensive and, by and large we would say thorough. Our agency and, as you know, the other Ind ian child welfare agencies in the province have participated in this process and, we feel and hope, significantly contributed to the contents of this bill.

In addressing the committee it is necessary at the outset again to clearly state the position of Manitoba's status India ns with respect to Child Welfare and Family Service s. Und er

section 91 (24) of our Constitution, jurisdiction over Ind ians falls within the leg islative purview of the Federal Parliament and nowad ays we maintain, under the jurisdiction of Indian governments. This legislative jurisdiction encompasses both the child welfare field and services to Indian fam ilies. Now, unfortunately despite years of lobb ying, the Fede ral Government has not yet chosen to exercise its jurisdiction in these areas.

Therefore, Indian fam ilies and children have, in provinces across this country, fallen victim to jurisdictional buck-passing and provincial child welfare systems which were insensitive to the needs of Indian fam ilies and children. As we' re all aware, the child welfa re system in this province was no exc eption and years ago resulted in what the Honourable Judge Kimelman described in his report as "cultural genocide" in the form of breakup of Indian fam ilies and placement of Indi an children in inappropriate homes, often out of the province and too often out of the country.

Over the past several years, the Indian people have developed their own delivery vehicles for Child and 11 Family Services and in Ma nitoba have been leading the way across the nation. lt is to the credit of you r government, Madam Minister, that you have been supportive of these developments and have shown some understanding of the needs of Indian people in this vitally important area.

Un der the Tripartite Child Welfare Ag reements entered into by Indian governments, the province and the Federal Government, the Ind ian people have agreed on an interim basis to co-operate with the province in the provision of Child and Family Services. In the ab sence of National Indian Child Welfare legislation, the In dian people have been forced to work with provincial laws and, I think have participated very fully in the process to ensure that these laws are sensitive to the needs of Ma nitoba's aboriginal peoples.

This relationship as you know, Ma dam Minister, has not always been harmonious, however I believe it has been cordial and one of mutual respect. Through this relationship we believe that the Provincial Government and its child care delivery system has be gun to appreciate and respect the needs of In dian people and their child and family service delivery system. In de ed, there are provisions contained in this bill that are testimony to the fact that you, the government, have been listening to Ind ian people. How ever, this does not change the ultimate objective of In dian people in Child and Family Services.

While Indian governments are prepared to work to improve provincial laws in the absence of federal laws, the chiefs continue to maintain their position and strive for their goal of a national Ind ian child welfare system. This goal includes the development of a "Tribal Court System" to deal with child and fam ily issues in Indian communities.

In the meant ime, our agency and the Indian communities that it represents are satisfied, that in general terms at least this legislation will enable the Indian people in Ma nitoba to continue to develop a core of services, controlled and delivered by Ind ian people for In dian people in an atmosphere of mutual respect and co-operation with the other governments involved. lt was some 18 months ago that our agency with other Ind ian child- caring agencies in Ma nitoba presented a comprehens ive 63-page brief to the committee reviewing the child welfare legislation.

In that paper we presented our areas of concern, together with some specific recommendations as to wha t we felt should be in the provincial laws. At this time, now that we have the bill, I feel it would be appropriate to review the concerns that we expressed in our initial paper and indicate how the bill has addressed those concerns. In addition to that area there are some specific sections of the bill that we feel need some improvement, and my presentation will conclude with our sugg estions in that regard. Now everyone has a copy in the committee, I believe, of the brief which I am presenting.

On pages 5 and 6 is a

summary of the overview of major areas of conce rn that we presented to the committee reviewing the child welfare legislation over the past couple of ye ars. I won't repeat those at this time but instead I will deal with them one at a time. Our first concern in 19 84 was timing of the legislation and we objected at that time to the hasty timetable

Thursday, 4 July, 1985 we felt that the government was proposing for this, the first major overhaul of The Child Welfare Act in over 10 years. We pointed out that the objective of the exercise was to produce the most advanc ed child welfare legislation in the country, and that we should not be constrained in that task by artificial time guidelines. As it happened the process was extended and the bill was introduced in this Session rather than the last.

We wish to extend deserved credit to the Minister for the consultation process that was extended and the careful consideration that was given to all subm issions resulting in, we feel, a better bill. Our second concern in 198 4 revolved around the statement of principles. At that time the Revie w Committee was considering deleting the statement of principles from the proposed act. The In dian agenc ies fought hard to preserve the statement of principles and we are pleased to note that there is indeed a statement of principles in this proposed bill. We would urge you to keep it there.

The main reasons we would urge you to keep it there is because we feel that the statement of principles will give some funda mental, philosophical underpinnin gs to the new reg ime of Child and Fam ily Services in Manitoba. I would also point out that virtually every other province who has enga ged in a major review of their child welfare legislation has a statement of principles as wel l.

The second reason we feel a statement of principles is important is that it will give judges interpreting the legislation some assistance in interpreting sections which may be ambiguous and , hopefully giving those sections the mean ing which the draftspeople of this act intended.

On the statement of principles we are particularly pleased that it recognizes that fam ilies are entitled to services which respect their cultural and linguistic heritage; that decisions to remove children or place children should be based on the best interests of the child and not on the basis of the family's financial status; and that Ind ian bands are entitled to the provision of Child and Family Services in a manner which respects their unique status as aboriginal peoples.

The third area which we dealt with the committee on was the area of the Review Board, the review of the decisions made by people involved in the child ca re system. At the time we made our submission to the committee another thing that was contemplated being abandoned was the concept of a Review Board. lt was sug gested that this should be referred to the Ombud sman. DOCFS and the other agencies objected to this approach, pointing out that the Ombuds man was not equipped to deal with child welfare agencies, and he had his plate full as it was.

Our suggestion was that the Review Board or any other body performing review functions should specialize in and be representative of the Child and Fam ily Service s field_ The other concern that we had at that time - and we still have it- is that Judge Kimelman had specifically mentioned "review" and "child protector" provisions in his interim report , and specifically stated that he was going to be making detailed recommendations in that regard in his final report .

So we felt that the proposal by the committee under those circumstances was 12 premature, and that some form of Review Board should remain in place pending receipt of Judge Kimelman's report. Now I don't know where it's at, at this point in time, but apparently we still don't have Judge Kimelman's final report. What we do have is a review system whereby the Director of Child and Family Services can receive and hear complaints. In doing so, he can establish a board to hear those complaints.

We are satisfied that this proposal is a workable interim measure pending consideration of Judge Kimelman's final recommendations, whe never they are received. There are, however, two concerns which we want to put on record with this committee about the review process:

(1) Where Ind ian children or fam ilies are involved in such complaints, we feel it is essential that there be Ind ian representation on any board hea ring the complaints. I think that's pretty well basically a common sense principle. I am sure that the Minister's office will pass that concern on to the Director of Child and Family Services.

(2) We hope that the review process is an interim one, and that the whole question will be reconsidered in light of Judge Kimelman's recommendations when he does complete his final report. Our fourth concern during the review process was strengthening the definition of "best interests of the child" and "the fam ily". As you know, it has been a major concern of Indian child welfare authorities for quite some time that there has been no expressed recognition of the importance of cultural and linguistic heritage in court decisions dealing with the best interests of the child.

In this bill, we' re very pleased to see that the government has seen fit to include this concept in the statutory definition of "best interests," and we urge its retention in the bill to give both agencies and the courts guidance in this respect. On the fam ily, Indian people have long urged that any legislation dealing with families should recogn ize the traditional In dian family unit, the extended family. The definition that was worked out in this bill, I believe, will cover that concern.

I now move on to our fifth and sixth points, na mely, placement priorities for Ind ian ch ildren. and notification of Indian people where an Indian child is involved with the child welfare system. I would stress that these two areas and the following area of adoption, of course, are the major areas of concern for the Indian child welfare agencies in Ma nitoba.

Throughout the review process, we have urged that priorities of placement for Ind ian children should be enacted in the legislation. lt was strongly felt by my clients that legislation, rather than policy or regulation, was the appropriate route to go to avoid a recurrence of the "cultural genocide" docume nted by Ju dge Kimelman. Ind ian people cannot feel secure that the integrity of Indian fa milies and Ind ian communities can be preserved unless we have laws which require the placement of Indian children in homes that respeci their culture, their langua ge and their heritage.

The government has responded with a moratorium on out-o f-province placements, recognition of culture and heritage in best interests, and the Director of Child Welfare's placement guidelines for Native children. We

Thursday, 4 July, 1985 are not yet convinced that this route, rather than the legislated route, for example, as set out in the United States National Ind ian Child Welfare Act, gives the best protection. However, we do respect your government's right to do it your way. We urge that this question of placement be monitored very closely and, if there is any slippage, you can rest assured that Ind ian people will be back at your door deman ding a legislative solution. In the meantime, let us see how the new system is going to work, and let us work together in good faith and mutual respect to ensure that the errors of the past are not repeated. Now I have something further to add to that

section of our brief. This morning, when I was talking to Es ther about her inability to come here, she mentioned to me that the In dian child care agencies felt that they had an understanding with the Minister that the procedures that have been put forward by the Director of Child Welfare would be reviewed in six months. I believe that six-month period has now expired and, to the best of my knowledge, there has been no review.

The Indian agencies are concerned that the placement priorities are not being used as consistently as should be, and we question whether they are operating as effectively as we intended them to operate. Madam Min ister, we would urge that review that was discussed six or seven months ago take place at the earliest possible moment.

On the issue of notification of Ind ian people where an Ind ian child is involved with the system, we have pointed out in the past that many of the problems respecting placement of Ind ian children have arisen because child-caring agencies or courts have been under no obliga tion to notify the Ind ian child's community of origin when the child comes into care or is the subject of a voluntary surrender of guardianship or a gua rdianship or adoption or other court application.

The main purpose of the notification provisions which we have been urging is to ensure that the Indian commun ity from which the child originates is involved in planning for that child. Under

section 30 of this bill, any agenc y making an application for temporary or permanent wardship of an Ind ian child is required to serve the agency which serves the appropriate ba nd. This, in our view, is the very least that the legislation should do, and it's not enoug h. lt does provide that, in such a case, an agency could intervene in child protection cases in appropriate circumstances. This is a positive step forward, but we feel there are areas which have been left out in the legislation which should be covered . These areas are listed on Page 14 .

We feel that, not only should there be a requirement for notice where there's a child protection application before the court, but also whene ver a single mother voluntarily surrenders gua rdianship of an In dian child; whene ver an application for an adoption of an Indian child is made; whene ver application for guardianship of Ind ian children is made; and whe never an Ind ian child is placed under temporary contract care, we feel that the community of origin should be notified of those circumstances.

We can 't understand why the bill restricts the notice requirement to court applications for protective gu ardianship. Volu ntary surrender of gua rdianship, adoptions, temporary contract placement and 13 gua rdianship applications are all part of the process of planning for children involved in the child-care system. Past experience has taught Indian people in Manitoba that they cannot rely on the goodwill of non lndian, child-caring agencies or the government to ensure that the child's community is involved in the planning for the child.

So we're suggesting that the legislation should expand the requirement to notification to all aspects of the child-care system involving planning for Indian children. We would submit that if the government does believe - and we believe it does - in involvement of the In dian community in planning for their children , then why not extend the notice requirements to all aspects of the system, rather than just the narrow one of court proceedings for protective guardianship?

On this point, we are urging, recommending whatever you want to call it, an amendment requiring notice to the appropriate agenc y or band in all circumstances where an Indian child is being planned for by the system. Speaking of the system, we move now to the adoption system. Of course, the main concern of In dian people in the area of adoption has been and continues to be that the process of "cultural geno cide" through inappropriate adoption placement of Ind ian children be terminated in this province forever.

The moratorium on out of province adoptions must be continued and efforts strengthened to find appropriate Ind ian homes in the Province of Man itoba. We note that the legislation prefers Mani toba placements and requires the consent of the Lieutenant Governor-in-Council for out of Cana d a placements. We hope that this is a legislative commitment to the indefinite continuation of the moratorium and would ask the Minister to clarify this point for us that the moratorium will inde ed continue on the basis that it has been in place in the past. This particular

section I refer to deals only with out of Canada placements. For placements out of Manitoba and within Canada, only the approval of an agency or the director is needed. We appreciate that the bill deals with all Man itoba children, not just Ind ians, and therefore you ne ed flexibility within the bill.

But Ind ian people have a sad sense of deja vu, if I may use that expression from our other official langu age, when they see provisions which fa cilitate easy out of province placements, and we need the Minister's assurance that the moratorium with respect to all out of province placements is indeed still in place, that it will remain in place indefinitely, and that it will not be broken except in exce ptional circumstances and after extensive consultations with the agenc y and/or Ind ian band involved.

Now I wanted to comment for a few moments on the Ex tended Family Adoption provision which has been introduced through

section 68 of this bill. We have a couple of problems with the wording of this legislation, and on this point also we are urging an amendment to make the

section more useful. The concept of the introduction of such a

section is something which our agency certainly supports. lt provides a simple procedure to legally regularize the long- standing Ind ian practice of extended fam ily adoptions. But there are some serious problems in the drafting which will render

section 68 of little use to its intended users we feel, if it is not corrected.

Thursday, 4 July, 1985 I refer you specifically to

section 68( 2) of the bill which requires that an application under this

section shall be made no later than 12 months from the date of placement. In other words, as a lawyer what that means to me is that if an application is made more than 12 months after the child is placed with the extended fam ily member, the court has no jurisdiction to hear the application under this section. On the other hand, the

section requires that the child must have resided with and been in the care of the applicant at least six months prior to the hearing, and this requirement can be waived by the judge if he fee ls it is in the child's best interest. My clients, quite frankly on this particular point, are baffled by this one-y ear time frame. lt doesn't make any sense, we fee l. We don't know wha t the rationale is for it. We have been unable to fa thom any plausible rationale for it, and the result as far as we' re concerned will be that the

section is not available to many of the very people who might use it. Many extended fam ily adoptions have been in place for years without any legal sanction, and this restriction will prevent these extended fam ily adoptions receiving legal sanction under this

section of the act. We have another serious problem with this

section which I'm hoping is a problem in draftsmanship. One of the requirements that the judge must be satisfied with has been met in this particular

section in order to grant an order is, that the conduct of the applicant towards the child and the conditions under which the child has lived justify the making of the order. Now I would point out, ladies and gentlemen, that nowhere else in the adoption provisions of this legislation is the court required to look at conduct, which is something that I thought we threw out in the fam ily law review a long time ago, or living conditions of the applicant or child.

This is not to say that the court will not in all cases judge the suitability of adoption applicants as parents in the context of the best interests of the child, but it seems passing strange to us that conduct and living conditions is raised in isolation in this section. lt is almost as if the draftspersons of this

section lacked confidence in the abilities of In dian people to conduct themselves as good parents or to provide adequate living conditions for children.

We have to assume that this provision, which we regard as discriminatory, was an oversight on the part of the legislators, and we would respectfully request that the same standards of parental suitability be applied to extended family adoptions as to any other form of adoptions rather than in isolation, presenting a requirement of conduct and living conditions which you know the judg es are going to interpret in a conservative manner when they see it in isolation in this particular section. Another area of concern that we have in the adoption system is Access after Adoption.

Now this legislation like all Manitoba Child Welfare acts before it, is based on the deep, dark, secretive system of closed adoptions as opposed to the Ind ian custom and tradition of open adoption.

We thought we had made some progress in this cultural gap and that the government and society at large was beg inning to realize some of the benefits of a more open system of adoption which permits contact between the adopting parents and child and the child's natural family. 14 However, it seems that we have much more work tc do in this regard and will continue to work towards ar open system of adoption by agreement of the parties I am not going to comment on all the specific provisiom which keep the deep, dark, secretive adoption systerr in place, but we are urging or suggesting at this poin in time that the legislation should at least recognizE and permit parties to an adoption to ag ree to a morE open form of adoption than that which has beer traditionally legislated in The Child Welfare Act.

Our next point, Mr. Chairman, relates to the age-olc controversy between gov ernment and Indian peoplE and agencies on this whole question of Su bsidizec Adoption. Of course, wha t is meant here is that therE are many good adoptive homes available for childrer who are in care which cannot be utilized as placemen· options, because of the financial circumstances of thE family. That is much more the case with Indian fam ilie! than it is with most other people.

There are man) situations where we have good homes where childrer could be placed for adoption, but the fam ily budget i! already stretched to the point where, without somE assistance, that fam ily cannot take on that extra chile or children. 1t was with dismay to say the least, that we notee the provision for subsidized adoptions had been passee in 19 74, and never proclaimed, has been deleted frorr the act. lt has been replaced by a very na rrow provisior that provides subsidized adoption only where a chile who has a physical or mental condition which involve! considerable expense, which would be a very rare case given our universal Medicare system in this province and/or there are siblings who should be adoptee together.

The issue of subsidized adoption is a basic and vita one for Ind ian communities. There are many gooe adoptive homes for In dian children which cannot bE utilized simply because the family's economic resource! are stretched beyond the point where they can takE in another child. We feel that failure to proceed wilt subsidized adoption is something that is a backware step and reduces the available resources for placemen· of Indi an children. We urge this committee tc reintroduce the 197 4 provision, and retain it and thi! time, proclaim it.

Now in the discussion over this qu estion thE government has always been concerned about the cos· of implementing such a provision and controlling cost! of implementing such a provision. The provision tha· we had would have allowed that and I would sugges· again as we have sugge sted in the past, certainly wher we' re dealing with Indian children there should be cos! sharing of such costs with the Federal Government I'm sure that is possible. We're very concerned that this subsidized provisior that was recognized as an important principle o Manitoba law in 197 4 appears to be being aband onee by this government.

We're even more concerned wher we appreciate that there are five provinces represent in� over 75 percent of the population of this country whe have subsid ized adoption provisions and havE proclaimed them and lived with them a long time ago I would refer the committee to the legislation in thE following provinc es. In Saskatche wan subsid izec adoption was recogn ized and proclaimed in 19 73; ir Ontario, in 19 78; in Quebec, in 19 82; and Alberta, thal

Thursday, 4 July, 1985 most conservative of conservative provinces, it took them a little longer, 19 84; and New Brunswick, 198 0. Now why, in 198 5, is Ma nitoba not prepared to provide the kind of subsidy that 75 percent of the rest of the country is prepared to provide for fa milies who are prepared to adopt children, but need a little bit of help? Lad ies and gentlemen of the committee, I urge you to reconsider the removal of the previous Sub sidized Adoption

section from the bilL We urge that it be reinserted and proclaimed as soon as possible. Our next point is on post-adoption services. Here we move from criticism to congratulations. The Minister we feel should be congratulated on the provisions of

section 7 4, which will make the presently passive and dormant post-adoption registry more active. In concept, we feel that this provision fairly balanc es the interests of parties involved in the search of adult adoptees and natural parents. We hope that the proposed new system will work. We feel it should be monitored closely and, if there are problems with it, it should be reviewed and change d as required. One very important aspect of post-adoption services for Indian people is the whole area of repatriation and assistance for the "lost children," referred to by Judge Kimelman in his reports.

While this may not necessarily need to· be the subject of actual legislation, we urge the government to continue to develop an affirmative policy to assist Ind ian child-ca ring agencies, children of wh atever age who are subjects of adoption breakdowns and fam ilies in overcoming the tragic effects of the inappropriate adoption placements of the past. The In dian people did not create the problem of the "lost children." The problem was created by agencies sanctioned by Ma nitoba's Government.

We fee l it is therefore incumbent upon the government to provide resources to assist in the reuniting of families broken up by the misguided policies which preceded the moratorium. Our next concern, Mr. Chairman, revolved around the protection of the rights of the participants in the Child and Family Services system. We are pleased in the statement of principles that fam ilies and children are entitled to be informed of their rights and to participate in decisions affecting their rights. However, our calls for stronger protections within the legislation itself beyond a statement of principles have gone unheeded.

We still maintain that young women , particularly minors, who sign voluntary surrenders of guardianship or other forms of consensual agreements respecting the legal status of their children should have the benefit of independent legal advice, and that this should be expressly stated in the legislation. Also, I'm sure that neither the Min ister nor the people involved in the Directorate of Child Welfare Office would be surprised to hear us say again that we feel the two day cutoff for the revocation of a voluntary surrender of gua rdianship is not sufficient. Our next point, Mr.

Chairman , deals with the recognition of Ind ian child and family agencies and their continued participation in the system while we have the present arrangement. We feel the bill does go a long way to recognizing the legitimacy of the Indian child-ca ring and family service agencies in Manitoba. lt recog nizes their manda te, and it recognizes their unique position in the 15 child care system. We do give credit where credit is due and for this legislative recognition and the thorough and sometimes difficult consultative process we give the Minister and her government full marks.

On this issue, we just wish to reiterate our minimal expectations so long as we continue to partipate in this act.

The Ind ian agencies would expect at a minimum as participants in the system that they would be able to participate fully in any future legislative review, such as some of the areas which we' ve mentioned today; that we would be able to participate fully in the development of policies, protocols and procedures flowing out of this bill; that we 'd be able to participate fully in the promulgation of any regulations flowing out of this bill, whether it be in one or the other of the official languages; full participation in any "Review Boards", "Placement Panels" and the like arising out of the bill, and we made a point on that earlier; full participation in the development of preventive services for fam ilies and children; and full participation in the development of court services arising out of the bilL We believe, ladies and gentlemen of the committee, that process to ensure that recognition and participation is well under way.

We are simply putting it on record at this committee to ensure that everyone's aware of wha t the expectations of the Ind ian agencies are. I'm sure that with mutual co-operation and respect our expectations will be met. On the final point of the development of court services arising out of the bill, it has long been a goal of Indian people to establish a tribal court system to service In dian communities. We invite the Attorney-General who is not here today, but I'm sure the invitation will be extended to him, to work with us to ensur e the devolution of such a system in the Province of Ma nitoba.

Fina lly, ladies and gentlemen of the committee, we had a concern throughout that the legislation support, as strongly and as thoroughly as possible, the desirability of preve ntive services to fa milies and children. We're very pleased that one of the statement of principles recognizes this by stating that: "Families are entitled to receive preventive and supportive services directed to preserving the fam ily unit." Ma ny provisions of the bill are consistently true to this principle.

For far too long, our child welfare system has relied on the backward principle of apprehending the child and doing nothing to assist the fam ily that was having the problems. The provisions for emergency assistance, assistance to community groups, volunteer programs, day-care service, homemaker and parents' aide services, and I would add the support and recog nition of Indian child and family services establishes a sound framew ork, we believe, for a more supportive and preventive approach than we have had to experience in the past.

All that is needed now - and I think this point has to be stressed in times when governments intend to cut back where ever they can cut back - is the political will to follow through on the preventive promise of this bill and we urge the government to ensure that the Minister, her department, and the agencies associated with Commun ity Services, have the fin ancia l and personnel resources to give meaning to the promises contained in this legislation. Now, Mr. Chairman, ladies and gentlemen , I have just a couple of other points relating to mostly technical

Thursday, 4 July, 1985 provisions that is in the bill and one that is not in the bill, which I'll deal with briefly. We're concerned about the legisla ted effect of permanent orders and the legal effect of a mere placement of a child for adoption. This relates back to our earlier discussion about the cultural gap between the deep dark secret of the adoption system and the tradition of Ind ian people. Sec tion 39(6) provides that there can be no applications for access where a child has been placed for adoption, not where a child has been adopted, but where a child has been pl aced for adoption. In

section 45( 1) states that a permanent order of guardianship operates as an ab solute termination of parental rights and obligations and allows the agency to place for adoption and so on. We point out that these provisions are in direct conflict with the philosophy of

section 27 which permits access after a permanent order. They also go in the opposite direction of that which we have been urging, that is, a more open adoption system and continuation of an Ind ian child's contact with the culture, langua ge and heritage of his/her community of origin. We urge the - committee to reconsider these provisions in light of the needs of the Ind ian community. There should be room in the legislation for people to opt out of this no contact after a permanent order or no-contact after adoption placement or no-contact after an adoption order.

We're not asking you to change the entire system which seems to be accepted and suitable by non-lnd ian people, but we're asking you to give people an option, whether they be Ind ian people or non-lndian people, that they can ag ree to enter into some kind ::>f arrangement other than the strict kiddy bar the door, shut and cut everything off, as of a particular legal event happen ing. Finally, we have had for some time a concern about interprovincial and interjurisdictional transfers of guardianship orders.

Now this problem arises because a great deal of our work of the Ind ian child-caring agencies, as you will appreciate, involves repatriation of children wh ose foster or adoption placements in other jurisdictions have broken down, other provinces in Canada, states in the Un ited States and so on. We have encountered in this process a great deal of confusion and lack of direction from the courts and the office of the Director of Child Welfare when these cases arrive. We feel it's necessary for the Leg islature to facilitate easier transfer of our children back to Ma nitoba.

The department has indicated that there is not sufficient time to adequately deal with this issue at this Session. A review and consultation process of some 16 to 20 months has been suggested, after which legislative proposals could be brought forward. We appreciate the Minister's undertaking to deal with this problem, but we would hope that we won 't have to wait almost two years for a solution.

We are prepared to work with you to speed up this process and bring the legislative proposals forward in the next Session of the Leg islature rather than in the timetable which seems to have been proposed, which is the next one after that. Mr. Chairman, Ma dam Minister, members of the comm ittee, the next several pages are simply a 16

summary of all of the recommendations that the Dakot; Ojibway Child and Fam ily Services has for you. I an not going to bore you by reading through them. I an sure that you will read them at your leisure when ym have it in the Leg islature and that those respsonsibl1 for the bill will pay due heed to it.

There is one item which I have added, which wa sn' discussed in the earlier part of the brief, and it's ir capital letters on Page 32 and of course that is just ; statement with respect to the recent Supreme Cour decision that we hope that all of the regu lation governing our functioning as agencies will soon be giver legal validity by being promulgated in the other officia langua ge.

In conclusion I must say, Madam Minister, that overal the DOCFS is very supportive of this bill and th1 direction in which it is taking us. lt will be, when it i� passed by this Le gislature, the most sensitive an< progressive child and family legislation in the nation lt does recognize the unique position and special need� of the In dian people of Manitoba and subject to thr concerns and recommendations which I have relate< to you , we would urge speedy passage an1 proclamation of this bill.

Once again on behalf of the Dakota Ojibway Chill and Family Services, and Esther, who couldn't be hen this morning, thank you for the opportunity to speal with you about this vitally important legislation. MR. CHAIRMAN: Are there any questions for Mr Savino? Mrs. Smith. HON. M. SMITH: Yes, I want again to express ver: warm appreciation to Mr. Savino and through him t< DOCFS, and indeed to all the Native groups who hav1 participated very long hours and a great deal o thoughtful input to the consultation process in th1 development of this legislation.

Just to run through and hit a few highlights and asl a question or two, Native representation on Revie� Boards can be guaranteed. it's implied now througl the guideline procedure. As for making it firmer in th1 legislation, it's always under review - legislation - SI that we would be open to that. Notification of communities is included now in thr guidelines.

There is a commitment to the moratorium The only rare exceptions that would occur were if thr Native community had been unable to find a placemen and there were some very very special circumstance: where we would want the authority to be able to mov1 a youn gster out, but that would only take place if then were no Na tive placement possible. With regard to extended fa mily adoption we an moving, in a sense, into new territory.

We feel the 12 month limit gives us some parameters and that any d1 facto adoption that is in place in a Native communit: after three years could get legal recognition througl the de facto route which is in

section 71(1) . With regard to the 68(4), the criteria to be looke< at when looking at adoptions with Native parents, wr ag ree that the criteria should be the same as they an for other fa milies. I would like to ask a question, would "best interes of the child" be an acceptable replacement for wha now says "conduct of applicant toward"?

Th ursday, 4 July, 1985 Again, it isn't just conduct of applicant in general, but cond uct of applicant toward the child and other living conditions, but we would be willing to replace those with "best interests of the child" if you would find that acceptable or, at least, not only if you would find it acceptable, but I would be interested in your opinion. MR. V. SAVINO: Thank you, Ma dam Minister. Dealing with your last point first, I believe the earlier broader statement about best interests would probably imply its application in

section 68 as we ll. We would have no problem with that proposal, or simply using the same langua ge as is used in the general adoption provision as to suitability. HON. M. SMITH: With regard to open adoption, it is an option now that a natural family and an adoptive fam ily could ag ree to access, but if the adoption had been completed and there hadn't been an agreement at the beginning, we haven't provided for it to surface later on. With reg ard to subsid ized adoption, the other provinces that do that, do keep rather tight controls.

I guess there's a fear that the bill might be higher than any province could agree to. We 'd certainly be interested in looking at cost-sharing with the Federal Government. The question I would have is, can poor Native families which now could not afford to adopt a child, receive social assistance to help them support such a child? MR. V. SAVINO: I don't know if I can really answer that question. I suppose it depends on the community involved and, of course, not all fam ilies in need are on social assistance.

There are many families that are on minimum wage, or sea sonal employment, or unemployment insurance and that sort of thing, I think probably in the social assistance situations, there is some assistance available in most circumstances but, of course, we are not talking only of social assistance fam ilies. HON. M. SMITH: With regard to repatriation, we currently have a staff person who is developing a policy.

We are working in consultation with groups that are interested and we have in fact been dealing case by case with assisting in some repatriation. 17 With regard to the right of minor mothers to legal counsel, we understand that is being implied in the judicial process. You certainly have our commitment to full participation of In dian agencies as we review the legislation and develop regulations and services. With regard to the evolution of the court system, aga in, it's not my department, but I would be very interested in watching that evolution.

The guide to preventive services and adeq uate resourcing; again, although we have been through very difficult economic times, this government has been maintaining and improving resources to this service. I expect we will continue, but there is always going to be a great shortage between the need to be met at the optimum and what we can make available. However, our commitment is to carry on with gradual progress. MR. CHAIRMAN: Are there any questions for Mr. Savino? Seeing none, I would like to thank you, Mr. Savino, for taking the time to come and make your presentation today. MR. V.

SAVINO: Thank you very much, Mr. Chairman, Madam Minister, and members of the committee. MR. CHAIRMAN: The time is 12 :27. We normally adjourn at 12 :30. What is the will of the committee? A MEMBER: Committee rise. MR. CHAIRMAN: Committee rise. Before rising, I would like to just advise members of the public that it is unfortunate that sometimes there is not very much notice given . The people who have not yet given their presentation to this committee will be advised when the next committee meeting will take place as soon as possible and as far in advance as possible.

I don't know when that will be right now. lt will be done by consultation between the Government House Leader and the Opposition House Leader. They have not yet set a time, but the Clerk's Office will be informing the remaining people on the list as soon as possible. Committee rise. COMMITTEE ROSE AT: 12: 28 p.m.

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Collection	Manitoba — Debates (Hansard)
Citation	32-4-pe1
Type	hansard
Volume / chapter	32nd 4th hansardpdf pe1.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	7091c66af8b718191bc05a5462cacd278c142fa4

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