Ontario Human Rights Commission’s (OHRC) submission to the legislated review of the Child, Youth and Family Services Act (CYFSA)

 

Overview

July 14, 2023 - The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide input to the government’s legislated review of the Child, Youth and Family Services Act (CYFSA)[1].

The OHRC made previous submissions in 2014[2], and in 2017[3] regarding Bill 89 Supporting Children, Youth and Families Act. The OHRC is pleased that many of its recommendations were incorporated into the current legislation.

In 2018, the OHRC released Interrupted Childhoods[4], its report on its public interest inquiry into the over-representation of First Nations, Inuit and Métis (Indigenous) and Black children in Ontario’s child welfare system. Despite the limitations of the race-based data the OHRC received from mainstream Children’s Aid Societies, the OHRC observed disproportionately high incidences of Indigenous and Black children in admissions into care at many of these agencies across the province. The report included recommendations[5] for the Government of Ontario, the Ontario Association of Children’s Aid Societies and mainstream and Indigenous Children’s Aid Societies. In 2019, the OHRC responded[6] to the government’s public consultation on Ontario’s child welfare system, highlighting the findings of the Interrupted childhoods report and underlining the urgency of implementing all recommendations.

Section 1 of Ontario’s Human Rights Code (the Code) prohibits discrimination in services, including services to children, youth and their families because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, marital status, family status or disability.[7]

Canada’s Charter of Rights and Freedoms[8], as well as international human rights instruments, like the United Nations Convention on the Rights of the Child[9] and the United Nations Declaration on the Rights of Indigenous Peoples[10], inform how Ontario’s Code is interpreted and applied.

The government must interpret and apply the CYFSA by the Code. Similarly, any interpretive policies, directives or guidance developed by the government must be consistent with the Code. Boards and committees established under the CYFSA, service providers and any individuals or organizations responsible for applying the CYFSA and delivering related programs and services must comply with the Code in developing and delivering those services.[11]

 

Child and youth rights

The OHRC supports the recommendations the government has heard[12] about opportunities to improve child and youth rights to ensure that they are being protected and promoted under the CYFSA, including:

• further clarifying and defining the rights of children and youth, including the right to be connected to family, community and culture as well as to other caring adults
• articulating CYFSA-related rights of First Nations, Inuit and Métis children and youth as well as their families and communities
• providing children and youth receiving services with ongoing and accessible opportunities to have their rights explained to them and to speak to someone who can help them if their rights are violated
• increasing the role of children and youth in their own care and in giving feedback on services
• enhancing standards for how rights are upheld in out-of-home care and youth justice settings
• increasing the ability of children and youth to access their own information and ensuring that the privacy of former children and youth in care is respected.

Additionally, the OHRC makes the following recommendations:

Restrictions on restraint and punishment

1. The OHRC has ongoing concerns about the harms caused by various forms of secure isolation, including “secure de-escalation” as provided for under the CYFSA. The CYFSA should be designed and implemented to ensure that secure de-escalation is minimized and does not cause harm to children or youth. This includes:

• developing, implementing and funding meaningful alternatives to secure de-escalation, consistent with the best interests of the child, least restraint practices and the duty to accommodate Code-related needs to the point of undue hardship
• reducing the current maximum durations for secure de-escalation
• creating an express prohibition on the use of secure de-escalation as punishment for children or youth
• prohibiting the use of secure de-escalation for children or youth with mental health disabilities
• mandating the collection of data relating to the use of secure de-escalation and its effects on Code-protected children and youth, and providing for the public reporting of that data
• establishing a system of independent and external review and oversight for any use of secure de-escalation, including judicial review.

Right to be heard

2. Section 8(1) reads, “For greater certainty, the rights under section 3 of a child in care apply to decisions affecting them, including decisions with respect to, (b) the child’s or young person’s creed, community identity and cultural identity.” The OHRC recommends that s.8(1)(b) include linguistic identity. In addition, Section 12(b) should include the right to receive instruction and participate in activities of their choice related to their linguistic identity.[13]

 

​First Nations, Inuit and Métis children, youth and families

The OHRC supports the recommendations the government has heard about opportunities to improve how the CYFSA governs services for First Nations, Inuit and Métis children, youth and families, including:

• continuing to enable and support Indigenous peoples to design and deliver their own models of child and family services, including those governed under Indigenous law
• increasing the availability, accessibility and delivery of culturally appropriate services for First Nations, Inuit, Métis and urban Indigenous children, youth and families
• harmonization between the CYFSA and the federal legislation, An Act respecting First Nation, Inuit and Métis children, youth and families[14] to ensure that all Indigenous children, regardless of the system under which they receive services, have access to supports they need
• ensuring that data collection and its approach are trauma-informed and that it considers an individual’s lived experience, including the effects of inter-generational trauma.

Additionally, the OHRC makes the following recommendations:

 

Recognizing diversity within Indigenous groups

3. The preamble of the CYFSA has a section dedicated to the unique rights and relationships with First Nations, Inuit and Métis children. The OHRC recommends that the preamble also recognize the diversity within Indigenous groups.
   This principle must also be respected throughout the CYFSA. For example, subsection 101(5)(a) reads, “Where the child referred to in subsection (4) is a First Nations, Inuk or Métis child, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with a member of the child’s extended family if it is possible or, if it is not possible, (a) in the case of a First Nations child, another First Nations family…”. It would not be sufficient to place a First Nations child with any First Nations family, without first making every effort to put them with a family of their specific cultural group. For example, every effort should be made to place a Mohawk child with a Mohawk family.

Commitment to the United Nations Declaration on the Rights of Indigenous Peoples and Truth and Reconciliation Commission of Canada Calls to Action

4. The preamble also reads, “the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.” In addition to a commitment to the spirit of reconciliation, the government should also commit to fully implementing the United Nations Declaration on the Rights of Indigenous Peoples and the Truth and Reconciliation Commission of Canada’s Calls to Action[15].

Indigenous languages

5. Section 1(2)(6) states that First Nations, Inuit and Métis peoples should be entitled to provide their own child and family services, in a manner that recognizes their cultures, heritages, traditions, connections to their communities, and the concept of the extended family. The OHRC also recommends that languages should be recognized.

Coming into force

6. All amendments to the CYFSA addressing First Nations, Inuit and Métis child and family services that have already received Royal Assent[16] should be proclaimed in force as soon as possible.

Equitable funding

7. First Nations, Inuit and Métis child and family service providers and prevention-focused Indigenous service providers should receive equal, adequate and sustainable funding. Their employees should receive pay and benefits equivalent to mainstream service providers.

Including urban Indigenous children, youth and families

8. Access to customary care (s. 80) should include urban Indigenous children, youth and families who may not be a member of, or identify with, a specific band or First Nation, Inuit or Métis community.
    
9. Provisions related to the adoption of First Nations, Inuit and Métis children (ss. 186 and 187) should be inclusive of urban Indigenous children, youth and families who may not be a member of, or have community ties to, a specific band or First Nation, Inuit or Métis community.

Equity and anti-racism

The OHRC supports the recommendations the government has heard about opportunities to address anti-racism within services provided under the CYFSA, including:

• strengthening supports and requirements to reduce the over-representation of specific communities in child, youth and family services
• improving practices to better protect children, youth and families from racism and discrimination in services
• increasing equity and cultural competency, as well as trauma-informed practices, in services for children, youth and their families
• ensuring that the policies, tools and protocols used in services are equity-based and culturally appropriate and that they are delivered appropriately and free of bias
• improving how identity-based data collection is used to improve service delivery under the CYFSA.

Additionally, the OHRC makes the following recommendations:

 

Implementing Interrupted childhoods

10. The government should review and implement all recommendations from the OHRC’s Interrupted childhoods: Over-representation of Indigenous and Black children in Ontario child welfare[17] report.
     
11. In addition, the OHRC recommends that the current legislative review examine and publicly report on the disproportionate incidences of Indigenous and Black children in care.

Prevention and community-based care

The OHRC supports the recommendations the government has heard about opportunities to better support service providers to deliver prevention and community-based services, including:

• reducing legislative barriers to collaboration across sectors so that more holistic services can wrap around a child, youth or family in times of need
• increasing the availability of, and access to, community-based services that support family and community well-being and healthy child and youth development 
• recognizing the safety and well-being of children and youth is tied to the well-being of their families, caregivers and communities
• increasing access to prevention, early identification and early intervention services to better support healthy child development and family well-being, and respond to issues like mental health, substance use, intimate partner violence, human trafficking and sexual exploitation.

Additionally, the OHRC makes the following recommendations:

 

Adequate and sustainable funding

12. Besides increasing access and availability to prevention and community-based care, the government should prioritize these services and provide adequate and sustainable funding for related programs and service providers.

Quality services

The OHRC supports the recommendations the government has heard about opportunities to improve quality in CYFSA-governed services, including:

• identifying ways to improve how societies can more effectively deliver services that are high quality
• improving the quality of services that children and youth receive in out-of-home care settings
• improving policies, standards, protocols, training and qualifications used in CYFSA-governed services
• identifying and addressing barriers that prevent more effective coordination across services, systems and jurisdictions.

Additionally, the OHRC makes the following recommendations:

 

Data collection

13. The government should require the collection of identity data based on Code grounds for persons providing care for children and youth (e.g., foster parents) so that children and youth can be appropriately matched with care providers.

Accountability

The OHRC supports the recommendations the government has heard about opportunities to ensure greater accountability, including:

• strengthening the accountability of societies and other CYFSA-governed service providers through increased oversight, complaints mechanisms, data collection and outcomes measurement
• increasing compliance of societies and other service providers in meeting distinct obligations when serving Indigenous children, youth and families
• better use of data to monitor, assess and drive improvements in services, including addressing the overrepresentation of communities
• increasing oversight of out-of-home care providers 
• supporting a modern and sustainable private adoption sector through greater accountability and consistent practices
• reducing unnecessary reporting that limits front-line providers’ capacity to spend time building sound relationships with children, youth and families.

Additionally, the OHRC makes the following recommendations:

 

Support for engagement and consultation

14. Section 25(c) lists entities and purposes for which the Minister may provide funding. The OHRC recommends that this list include funding for meaningful engagement and consultation with representatives of all Code-protected groups, including Black and other racialized people and First Nations, Inuit, Métis and urban Indigenous communities and organizations. Also, the government should create timelines and processes for meaningful engagement and consultation.

Advisory committee representation

15. Section 27 allows the Minister to appoint members to a Minister’s advisory committee to advise the Minister on child and family well-being. Such an advisory committee should include representation from all Code-protected groups, especially Black[18] and Indigenous people who are over-represented[19] and face disproportionate systemic discrimination in child welfare.

Accountability for data collection

16. Accountability agreements between the Minister and children’s aid societies should specifically refer to the requirement to collect, analyze, action and report publicly on identity data based on Code grounds.

Periodic review requirements

17. Sections 336-338 regarding the periodic review of the CYFSA and written report should require analysis of information obtained through identity-based data collection, including analysis of:
     

• disproportionate incidences of Indigenous and Black children in admissions into care, and
• the extent to which the provision of services considers the child or youth’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression.