086 Hansard
Whitehorse, Yukon
Tuesday, April 15, 2008 — 1:00 p.m.
Speaker: I will now call the House to order. At this time, we will proceed with prayers.
Prayers
DAILY ROUTINE
Speaker: We will now proceed with the Order Paper.
Are there any tributes?
Introduction of visitors.
INTRODUCTION OF VISITORS
Speaker: Fellow members, it is my distinct pleasure to welcome Mr. Don Taylor. He is sitting in the Speaker’s gallery. Don was the Member for Watson Lake from 1961 to 1985, and he was Speaker of this Assembly from 1974 to 1985. Mr. Taylor was personally responsible for having a green Legislative Assembly — or so it is my understanding. Thank you very much for coming.
Applause
Speaker: Are there any other introductions of visitors?
Returns or documents for tabling.
Reports of committees.
Are there any petitions?
Are there any bills to be introduced?
Notices of motion.
NOTICES OF MOTION
Mr. Cardiff: I give notice of the following motion:
THAT it is the opinion of this House that:
(1) in November of 2004, the minister responsible for the Access to Information and Protection of Privacy Act said there were 23 items to be reviewed in a full consultation of the act;
(2) in his 2006 annual report, the former Information and Privacy Commissioner called the Access to Information and Protection of Privacy Act “flawed legislation that is badly in need of review and amendment”;
(3) the Yukon government has made zero progress to date on the ATIPP file; and
THAT this House urges the Yukon government to immediately launch a comprehensive review of the Access to Information and Protection of Privacy Act and seek public input into amendments that would improve public access to government information while still providing necessary protection of private information.
Speaker: Are there further notices of motion?
Hearing none, is there a statement by a minister?
This then brings us to Question Period.
QUESTION PERIOD
Question re: First Nations, government relations with
Mr. Fairclough: I have a question for the Minister of Education. Good faith goes far beyond the words and flashy rhetoric we heard in the House yesterday. Good faith is an essential precursor to any kind of negotiation. Good faith can be lost in a minute but can take years to restore. Good faith must be demonstrated. This government had such an opportunity last week. The Premier could have said that in his opinion witnesses were not necessary, but if the First Nations felt strongly about it, he would do it. He could have supported the motion from the Member for Copperbelt, but he chose not to and that was an opportunity lost. Now, here we go again. The Premier says, “Trust me, and I mean it this time.” Well, we’re going to need very, very strong assurance that this government is dealing in good faith.
What can the minister tell Yukoners today to assure them that this government will finally deal with First Nations on a fair basis that demonstrates good faith?
Hon. Mr. Rouble: I appreciate the question coming from the member opposite. It’s always a good opportunity to get up and talk about what this government is doing in education and what this government is doing in relations with First Nations.
Mr. Speaker, it was just earlier this morning when I had a meeting with the chair of the Chiefs Committee on Education. This chief represents a Yukon First Nation and sits as the chair of a committee within the Council of Yukon First Nations. He and I, as well as officials from the Department of Education, and the Council of Yukon First Nations, were discussing ways of going forward with the education reform project with the New Horizons project and working cooperatively in order to ensure that we have the best education system on the planet that meets the needs of our students and of our communities. We will continue to work with the Council of Yukon First Nations, our other partners in education, including teachers, administrators, school boards and school councils.
Mr. Fairclough: On December 13, 2006, in reply to a question from the Member for Mount Lorne, the Premier said, “I want to quickly move to the issue of governance. If the third party's position with respect to the issue of governance is devolving public jurisdictions or diluting public jurisdiction, that is their position, not the government's position.”
The Premier doesn’t get it and he doesn’t understand it. He’s still living in the past and this is very unfortunate for the Minister of Education. As we’re all aware here, the Premier is the minister’s boss and, if the boss doesn’t get it, then we have a problem here.
What does the minister propose to do in light of the Premier’s demonstrated stubbornness and lack of understanding of this issue?
Hon. Mr. Rouble: I and other members of this government suggest that we cooperate in governance. There was the Cooperation in Governance Act, which was passed by this Assembly and created the Yukon Forum, which can be used as a vehicle to have government-to-government negotiations and discussions.
I’ll continue to meet with the Chiefs Committee on Education; we’ll continue to work with our other partners and stakeholders in education; we’ll continue to use the governance structures we have in place.
We’ll work with the Commission scolaire francophone du Yukon; we’ll work with our school councils to help them achieve their potential, and we’ll work with our other partners and stakeholders in education to ensure we meet the needs of students and the community.
Mr. Fairclough: He didn’t answer the question. He could have said that he would meet with the Premier and get him up to speed on the issue.
Mr. Speaker, there is a need for the minister himself to set the record straight. He also said in this House on December 13, 2006, and I quote: “We are committed to working with our partners in education and the stakeholders. Those include First Nations; those include the Teachers Association; those include the school councils; those include the school committees; those include the French language school board.”
I wish to give the minister an opportunity to clarify. Does the minister consider, as his statement would indicate, that he considers a First Nation government to be equal to the Teachers Association, the school councils, the school committees and the French language school board? Would the minister please make the record clear on this point?
Hon. Mr. Rouble: Mr. Speaker, this is an excellent opportunity to set the record straight for the member opposite. The Government of Yukon certainly recognizes the Yukon First Nation governments as orders of government — that is clear. It is offensive to me to hear people not want to refer to them as that.
Mr. Speaker, we will work with other orders of government. We will also work with our other partners and stakeholders in education. Those include students, parents, teachers, administrators, the Commission scolaire francophone du Yukon, the Association of School Councils and Boards and Committees, the individual school councils, the many not-for-profit organizations that all play a very important role in educating our youth.
Mr. Speaker, the government will continue to work with Yukon First Nations, with the Council of Yukon First Nations and I will work with the chair of the Chiefs Committee on Education. The department will work with the First Nation Education Advisory Committee to ensure that we are meeting the needs that we have in our communities.
Question re: Education reform project
Mr. Fairclough: I know that the minister has a well-stocked briefing book full of pat answers for anticipated questions concerning education reform.
However, Mr. Speaker, I am very concerned about the government’s inability to be objective, and I don’t believe that this government has the credibility to move forward with the implementation of education reform.
Members of this government, including the Premier, have destroyed the good faith needed to take our education system into the 21st century.
Will the minister concede that his government’s adamant position toward First Nation governments is now a roadblock to any meaningful progress in education reform?
Hon. Mr. Rouble: Mr. Speaker, for once I wish the member opposite would deviate from the script, the standard script that is read every time wherein he stands up and says, “the minister opposite did not answer the question.”
Mr. Speaker, I have answered the member’s questions. I have given him details about how this government is going forward. I will be happy to provide additional details. I would be happy to talk about how the Government of Yukon is working in conjunction with the Council of Yukon First Nations on the New Horizons project. I would be happy to talk to the member opposite and tell him how those two groups are making joint presentations to the Pan-Canadian Interactive Literacy Forum. I would be happy to inform him how those groups will be working with the Yukon Association of School Councils, Boards and Committees.
I would be happy to tell him how those two groups have gotten together and have made joint presentations to First Nations, to school administrators, to the Yukon Teachers Association and to the Secondary School Planning Committee.
Mr. Speaker, there is a very strong relationship that has been created between the Council of Yukon First Nations and the Department of Education. We will continue to work closely with them and we will continue to work very closely with our other stakeholders and partners in education.
Mr. Fairclough: Saying one thing and actually following up and doing what they said they were going to do is another.
Now, we’re not surprised at the minister’s answers at all. All Yukoners want and deserve is to have an educational system that reflects what they want for their children and for themselves. In order to make that happen, there must be a system in place that allows them to have input and some degree of control. The status quo is not good enough. This government has made it abundantly clear that they don’t believe in letting Yukoners have that degree of input. They made it clear they do not have a plan to take the evolutionary steps that people want and deserve. This government is stuck in the past, despite what the minister is saying.
Is the minister prepared to accept the challenge and push forward with education reform?
Hon. Mr. Rouble: Yes, the Government of Yukon is moving forward with education reform. The project is titled “New Horizons” and we’ll be working on the good work that the education reform team did; we’ll be working with our stakeholders and we will be working with our school councils and other bodies to encourage them to participate in education. We’ll work with the school councils who already, under our act, have the ability to call for the creation of local instructional material and programming. We’ll work with our school councils to empower them to be more involved in the decision-making in their school. We’ll work with the school councils to create the school plans. We’ll work with our administrators to ensure that the wishes and desires of the community are reflected in the school plan and are carried out in our educational system. The Yukon education system has an awful lot to be proud of; we’re going to build on our successes and build on the involvement of others.
Mr. Fairclough: Mr. Speaker, this government and the Department of Education have an opportunity to move forward — an opportunity to have a bottom-up — a bottom-driven — system as opposed to the top-down one that we have now. I am disappointed to hear some of the answers from the minister opposite.
Yukoners, and that includes First Nations, have been very patient. They went through the Education Act review some years ago. They went through the education reform project and now they want action and not further delays.
Will the minister commit to get this government out of the time warp they have locked themselves into, and move forward in meaningful and progressive education reform?
Hon. Mr. Rouble: Mr. Speaker, I am not sure if the member opposite has heard my responses. I have detailed what is being done and what is going on.
I could come up with other lists where we have been responsive to wishes of school councils or of other groups, and we will continue to work with other groups.
We will continue to explore new ideas — some that I am sure the member opposite will agree with and some that I am sure he will disagree with. We will continue to look at new avenues and new ways of educating.
We have heard from parents who want to see changes in the outcome of the system. If you continue to do things over and over again the same way, you will get the same results. We recognize that and we are willing to make some changes.
That being said, we will continue to work with all our partners in education, with the orders of government, with the employees in the Department of Education, with teachers, school administrators and councils, and we’ll look at using our resources wisely, efficiently and effectively.
Question re: Child and Family Services Act
Mr. Edzerza: It is unfortunate that the Minister of Health and Social Services has made it necessary to continue with questioning about the Child and Family Services Act. Yesterday I tried to clarify with the minister why many First Nations and others are calling the act flawed and are asking for amendments. I pointed out that one of the key issues is the discretion that is allowed for decision-making by the director. All the minister would say is that I should read the act and that inclusive collaborating and planning is threaded throughout.
Well, I have read the act, so let me give the minister a concrete example of the problem. The cooperative planning process outlined under section 44(1) only starts after the fact, after the director came to a conclusion about a child’s need for protection/intervention. Will the minister acknowledge that the cooperative planning process does not kick in until the director has already made decisions about the child?
Hon. Mr. Cathers: The member is mistaken in his assertion. I think what may be confusing the member — and I don’t have the exact clause in the act in front of me — but the member is referring to the term “intervention” and I think that the member is confusing “intervention” with “apprehension”. “Intervention” simply includes supports being offered to a family by the department or by a First Nation service authority.
Cooperative planning, I would remind the member, is a new section of the act that was not and is not in the current Children’s Act. It is part of the new section of the act that is aimed at ensuring a cooperative and inclusive process. The cooperative planning, specifically, is a process where extended family and formal community supports, service providers and professionals join with the family in developing a plan to meet the needs of the child and family and is an approach aimed at strengthening and empowering families to protect and nurture their children. Cooperative planning must be offered when a child is in need of protection and when a child is leaving the custody of a director, and it may be offered in any other situation. The process encourages collaborative planning and avoids the need to proceed with adversarial court situations.
Mr. Edzerza: It appears the minister is confused; he didn’t answer the question.
Section 44(1) says that cooperative planning is offered, “…if the director believes that a child is in need of protective intervention and the director (a) has commenced or intends to commence an application to a judge…”
That is what the act says, but First Nations and others want to be involved in decisions about their children from the beginning. As for the question of accountability, the minister didn’t even reply to my question yesterday. After years of intimidation and fear, trust needs to be built by the minister with First Nations and other families. One way to do this is to provide for an independent review and possible appeal of decisions of the director.
Will the minister consider amendments to allow for an independent review and appeal process in this act?
Hon. Mr. Cathers: I have answered this question before. The member would note if he reviews the act that there are, in fact, two provisions. One provision is that a committee must be established within five years of a proclamation date to review the operations of the act. Secondly, there are procedures in there to allow other areas to be reviewed by a committee if deemed appropriate — but again, the requirement is to review those operations within five years.
As well, further steps will be taken when we establish the act to create the office of the child advocate. That will provide one more step of independent accountability for those who feel their needs may not be addressed within the system. The member, when referring to the area of accountability — in fact, he would note that I answered this extensively in Committee of the Whole debate yesterday afternoon. I read out sections, made reference to sections for the review of members where the new portions of the act referred to accountability.
I remind the member that in the cooperative planning section, he is misinterpreting what an intervention is. Intervention applies to any involvement. Of course, there must be a determination by a duly designated official that there is a need to take some steps to trigger the whole process. But there is a requirement to involve the First Nation at the earliest possible opportunity and a requirement to involve extended family.
Mr. Edzerza: The minister certainly is confused. He didn’t answer the question again.
We don’t dispute that the new act is an improvement; we’re just trying to point out that it still doesn’t go far enough to meet the concerns expressed by many people during the consultations. In the consultation papers, the minister keeps bringing up presenters’ talk about innovation, negotiation of First Nations, political will to make changes, stronger opinions, and resources at the front end. One presenter put it this way: “My concern is primarily with how the words of the legislation are put into action.” These are worries that the act only tinkers with problems and that departmental practices and policies will not respond to the real needs.
Will the minister undertake to evaluate the policies and practices of his department to ensure they fully support the implementation of the intent and spirit of the new act?
Hon. Mr. Cathers: Of course, steps will be taken to ensure the act is effectively implemented and the commitments and legislative changes made are honoured and implemented. What the member is failing to recognize is this is the result of nearly five years of work. For him to suggest it’s tinkering minimizes and is not respectful of the involvement by First Nations, stakeholders and officials of the Department of Health and Social Services, who have invested countless hours on these matters. They are very committed to these matters, because we believe we have an act that will be the best in Canada. It will be the most inclusive in involving First Nations and them being informed and involved in cooperative planning at the earliest possible opportunity. All this, while maintaining the provisions that a director of family and children’s services, or a First Nation service authority established under the act, can take the steps necessary if immediate intervention is required to protect the health, safety and perhaps life of a child. Those steps are in there; it is a balanced act.
I would remind the member that steps such as cooperative planning are completely new in this act. It was not in the old act and this is part of the increased focus on trying to avoid going to court when it is possible to do so and, instead, engage First Nations, extended families and others in cooperative planning.
Question re: Child and Family Services Act
Mr. Edzerza: In the What We Heard papers on philosophy and principles, we read that the project team took up the work in a spirit of trust and with the firm belief that the law can be made better. We agree with that goal. That is why we are trying to question the minister in the spirit of trust.
The What We Heard papers all mentioned recognition of cultural differences and the need to be child-centred and family-focused, as these are important principles that need to be integrated into the act.
Many presenters said the legislation should incorporate specific recognition of First Nation values, traditional First Nation laws, and beliefs.
My question is to the Premier: will the Premier explain specifically how the new act incorporates First Nation traditional laws, values and beliefs, which many First Nations say it fails to do?
Hon. Mr. Cathers: Mr. Speaker, much of this can best be answered when we get into the line-by-line debate in Committee of the Whole, hopefully this afternoon, or in general debate when the member has the opportunity to ask questions.
I would also refer him to Hansard from yesterday afternoon. Some of these questions I answered extensively during the many hours of debate we had on this topic.
I would remind the member opposite that the guiding principles are new in the act; they were not in the previous legislation. Service delivery principles are also new. Both set the context in which the entire act must be read. They are right up front to provide that context. Both contain recognition and note that First Nations must be involved at the earliest possible opportunity. As well, there is recognition of the desire to ensure that extended family and others are involved to the greatest extent possible and appropriate, while always ensuring the safety of the child. There is also recognition of the desire to have children who must be taken out of the care of their parents placed with an extended family member in foster care or adoption, as a preference, which was not in the old act.
The recognition of custom adoptions, something that was heard clearly from First Nations that they wanted in the legislation, is also in the act.
I look forward to more detailed debate, referring to the clauses and showing the member that. I am sure he will be pleased with what he sees.
Mr. Edzerza: Mr. Speaker, it’s good the minister referred to Hansard. Yesterday the Premier stated bluntly that he would not go down the road of co-governance. He said that they would maintain the liability and the responsibility for all Yukon children and they would not devolve it.
What we can’t understand is why the public government can’t maintain that responsibility and still incorporate First Nation traditions, values and beliefs into this legislation. Surely, it does not have to be all one or all the other. We are one community. Surely we can evolve legislation that includes everyone. How can the Premier reconcile his claim that he is responsible for all Yukon children when 80 percent of children in care are First Nations and their values and traditions are paid mere lip service in the act?
Hon. Mr. Cathers: Again, the member is mistaken. When he suggests there is no recognition of First Nation involvement, I will encourage him to read sections including section 2 and 3. Let me refer the member to sections that recognize cultural heritage. There is significant recognition of the importance of culture and community in the lives of children. All that I am going to read out here are new sections.
The principles and best interest factors identified the importance of preserving culture. Case plans for children in the care or custody of a director will stress steps to preserve a child’s identity as guided by the participants of a cooperative planning process. The priority for placement of a child in care is with extended family and in their cultural community. The rights of children in care also now include the right to maintain cultural heritage, participate in community activities, pursue spiritual development and visit with extended family members.
And I would refer the member to sections 2 and 3, section 4, sections 6, 7, 22, 44, 88 and 89.
Mr. Edzerza: The government’s philosophy is to maintain the liability and the responsibility for all Yukon children and to not devolve it. What the Premier’s words illustrate is a complete clash of philosophies.
First Nations are talking about respect, including the sharing of responsibilities. What the Premier is talking about is hanging on to power. There’s no middle ground with this Premier. Because of this inflexible approach, First Nations are developing their own legislation to meet their cultural values and beliefs. At least one First Nation has expressed a desire to work with the public government to make their legislation and the new act work in harmony.
Is the Premier willing to work in good faith with First Nations who are developing their own legislation, or does he still insist that they either do things his way or draw down authority for child welfare altogether?
Hon. Mr. Fentie: I recognize the emotional attachment the Member for McIntyre-Takhini has in this area, but I want to help him correct the record. The government’s position is quite clear. This act goes as far as it can while respecting jurisdiction. It’s all about respect, Mr. Speaker.
The Yukon government cannot fetter the minister’s discretion, because we have the responsibility and the liability for children in care, and that’s absolute. However, I would not diminish — as the Member for McIntyre-Takhini has — what the First Nations have negotiated in their final agreements.
There’s good reason why they negotiated the provision that allows them the option of occupying this authority. Yes, a First Nation has developed their own act; yes, the Yukon government is cooperating and working with that First Nation with respect to their act. If First Nations want to go further in terms of taking on this responsibility and this liability for children in care, we would encourage them to exercise that option they’ve negotiated in their agreements and occupy the authority — we will support it.
Question re: Nurse shortage
Mr. Mitchell: Mr. Speaker, I would like to ask the Minister of Health and Social Services about his failure to provide Yukoners with an adequate number of nurses. It is obvious that this minister’s efforts to date on this issue are not sufficient. We are still hearing from the nurses themselves, from the public and from other health care professionals about how dire the situation is. It is probably only a matter of time before this file too is taken away from this minister — given his inability to get anything done.
Now, last spring the minister announced that a task force would be set up at the hospital to deal with this issue among others. Can the minister confirm that the task force has now been abandoned? If not, why has it not been meeting?
Hon. Mr. Cathers: Mr. Speaker, it is interesting to hear the member suggest that the government has done nothing when the member ought to know full well that his statement is inaccurate. This is the first government in Yukon history to develop a comprehensive health human resources strategy, including a significant increase to the previous existing nurse bursary, which was the only program in place for this purpose. We doubled the support for that, as well as doubling the number of applicants who would be accepted. We developed a nurse mentoring programming, which is a program that groups such as the Yukon’s Registered Nurses Association have been calling for for years and have seen inaction from the Liberals and the NDP on this file — we acted. We acted in other areas such as incentives internally and the new LPN program — licensed practical nurse program — which will be up and running at Yukon College this fall.
All together, the health human resources strategy is $12.7 million and that does not include the allocation for the LPN program. We have acted in this area. The member, of course, voted against all of these matters and the member ought to know full well that this government has acted far beyond what any previous Yukon government did in this area. We will continue to work on this file with health professionals and others.
Mr. Mitchell: While this minister continues to develop strategies, he also tells us that nurses are leaving the territory and he has had to close the beds that had just been recently reopened at Copper Ridge Place.
Nurses that we spoke to want the task force to be given a chance, but instead it has been shelved. Last spring the minister stood in this House and said he had full confidence in the former CEO of the hospital. Then as soon as the House rose, the CEO was gone.
This minister is obviously in over his head with this entire portfolio, and as we have seen over the last few months, things keep getting taken away from him as a result.
Just last week we learned, for example, that management of the new Watson Lake hospital has been transferred to another department.
One of the biggest shortages at the hospital is in the surgical ward. Will the minister confirm that they are short at least four full-time nurses in that department?
Hon. Mr. Cathers: It is unfortunate that the member is continuing his approach of petty name-calling rather than addressing matters —
Speaker’s statement
Speaker: Order please. The language on both sides of this Legislature today is getting quite strong. I find there have been accusations against individual ministers, as opposed to party policy. I would ask both sides of the floor to watch their words, please.
You have the floor, Minister of Health and Social Services.
Hon. Mr. Cathers: In respect for your ruling, let me try to rephrase my comments. The member ought to know — the member does know — there are national shortages of health care professionals. The member knows that this government has invested many millions more in this area than any previous government.
The member knows that we increased the annual funding for the Whitehorse General Hospital by roughly 50 percent over the level it was at under the Liberals, or $10 million.
Mr. Mitchell: Yukoners don’t want to hear this minister’s list of excuses about national shortages. They want to hear what this minister is going to do to solve problems for Yukoners. This minister has no idea what’s happening at the hospital. It’s all someone else’s fault. It’s national shortages.
We saw that last spring with the bungled dismissal of the former CEO of the hospital. One day the minister had full confidence in him; the next day, he’s gone with a big severance cheque in hand.
We continue to hear very discouraging reports about grievances against the hospital, filed by nurses who are unhappy. We have the unsafe situation caused by a shortage of psychiatric nurses. We have the 12 beds at Copper Ridge Place closed because there are no nurses in Yukon to staff them.
The Thomson Centre remains closed, despite promises that it would be open six months after the last election, at least partly because of no nurses. Perhaps we should send a calendar over.
When is the minister going to admit he hasn’t done enough and make nurse recruitment the priority it needs to be?
Hon. Mr. Cathers: We know what’s happening here. There’s collective bargaining underway at the hospital. It’s unfortunate that the member appears to be trying to influence that by his comments here.
Let me remind the member what happened with regard to the debate last spring regarding the then CEO of the Yukon Hospital Corporation. At that time, the Leader of the Liberal Party attacked that individual, an individual in my department and an individual on the board, in his attempt to gain political credit. This government will never dignify those attacks.
Some Hon. Member: (Inaudible)
Point of order
Speaker: Order please. Mr. Mitchell, on a point of order.
Mr. Mitchell: I have a point of order on Standing Order 19(g). The minister is imputing about three different motives in that response and I don’t think he should be doing that in this Assembly.
Speaker's ruling
Speaker: I agree. There is a point of order. Honourable minister, be very careful or I’ll ask you to sit down. You have the floor.
Hon. Mr. Cathers: Thank you, Mr. Speaker, and I would encourage the member to be similarly careful when he stands in the House, with the comments he makes around dedicated public servants.
I would again remind the member that we have increased annual funding to the Yukon Hospital Corporation by roughly $10 million. That’s an increase of roughly 50 percent from the level it stood at under the Liberals. We have significantly acted in this area — again, a $12.7-million health human resources strategy, including nurse mentoring and nurse bursaries. I could go on if I were not out of time.
Speaker: The time for Question Period has now elapsed.
Notice of opposition private members’ business
Mr. Cardiff: Mr. Speaker, pursuant to Standing Order 14.2(3), I would like to identify the items standing in the name of the third party to be called on Wednesday, April 16. They are Motion No. 373 and Motion No. 376.
Mr. McRobb: Pursuant to Standing Order 14.2(3), I would like to identify the items standing in the name of the Official Opposition to be called on Wednesday, April 16, 2008. They are Bill No. 103, standing in the name of the Member for Porter Creek South, and Bill No. 106, standing in the name of the member for beautiful Kluane.
Speaker: We will now proceed with Orders of the Day.
ORDERS OF THE DAY
Hon. Mr. Cathers: I move that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.
Speaker: It has been moved by the Government House Leader that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.
Motion agreed to
Speaker leaves the Chair
COMMITTEE OF THE WHOLE
Chair: Order please. Committee of the Whole will now come to order. The matter before the Committee is Bill No. 50, Child and Family Services Act.
Do members wish to take a brief recess?
All Hon. Members: Agreed.
Chair: We will take a 15-minute recess.
Recess
Chair: Order please. Committee of the Whole will now come to order.
Bill No. 50 — Child and Family Services Act — continued
Chair: The matter before the Committee is Bill No. 50, Child and Family Services Act.
Mr. Mitchell: Thank you, Mr. Chair. This has been an interesting and frustrating debate that we have had to date on this act. I just want to recap a little bit.
This bill, Bill No. 50, is a very large and somewhat complex piece of legislation. What we have heard to date are two very different versions of what can only be one reality.
We’ve heard from the minister that there was full and more than sufficient consultation with First Nations for five years, that their issues had been incorporated in this legislation, their concerns have been addressed, and this legislation has resolved all of the outstanding issues that First Nations raised.
What we’ve heard from First Nation leaders is very different from that. We’ve heard that they raised many issues but that, when they finally received the draft legislation in November of last year, many of their concerns were not addressed at all; others were addressed, but in their minds, inadequately.
Now it was because of that complete disconnect between First Nations and so many of the children — up to 80 percent of the children in care or in custody affected by this bill are First Nation children that they feel that this bill goes a ways but not far enough.
The minister says that it completes the picture. That is why we wanted to have witnesses here. That is why we asked for the witnesses to come, so that instead of the minister and me debating this and each asserting what is or isn’t being done on behalf of First Nations, the First Nation leaders could have sat on the floor of this Assembly, asked questions and answered questions for themselves. Perhaps then the minister could have convinced the First Nation leaders of his position and we would have had a better informed debate. It is very unfortunate that the members opposite prevented that from happening.
Thank you, Mr. Chair. I can see that my time is up.
Hon. Mr. Cathers: It is a pleasure to rise here. I’d like to focus on the members in debate — it is unfortunate, but again we’re seeing a very negative debate rather than recognizing the new features of this bill and the fact that it is a significant improvement over the Children’s Act, that it is a significant step forward.
Mr. Chair, I’d just like to highlight some of the new areas, as members have certainly not got around to that in areas of debate.
Changes here are all new areas incorporated in the new child and family services draft legislation now before this Assembly. They are not in the current Children’s Act. Those include the fact that there are now guiding principles and service delivery principles that set the overall context in which the act is to be interpreted. Those are included at the front of the bill and take precedence over other matters within the bill and set the overall context for interpreting clauses of the bill. That’s a new approach to legislation. It is a legislative approach that has become more common in recent years in jurisdictions that have tried to take a more modern approach to legislation. It provides that context — that umbrella — under which everything is to be interpreted and sets the stage for when it is interpreted by lawyers or, ultimately, by the courts, if that comes to pass, making it clear how the overall bill is to be considered.
These guiding principles and service delivery principles are new. They include principles that recognize the importance of supporting families, the recognition of the importance of preservation of culture, the involvement of extended family, of the First Nation and the community in collaborative planning.
Those are up front in sections 2 and 3 of the new legislation for any who wish to read and review that. Of course for anyone who is listening or watching or reading, all of this is available on-line through either the department Web site or through the Legislative Assembly Web site as well, as this is currently a bill under progress.
Another new feature in the bill not found in the Children’s Act is cooperative planning. This is put in place and is part of the entirely new focus that is being adopted in this legislation to attempt to avoid court, to involve the First Nation extended family and others who have significant relationships with the child in a cooperative planning process, involving those extended families, the informal community supports, service providers, appropriate professionals, et cetera in joining with the family to develop a plan to meet the needs of the child and the family.
This is done in an effort to attempt to avoid court, and to reach mutual agreement on the steps that need to be taken rather than getting into the adversarial court process. This is a significant improvement in this legislation in that it is attempting to avoid the adversarial court process and avoid litigation, but instead focus on cooperation.
Cooperative planning is aimed at strengthening and empowering the families to protect and nurture their children and provides the ability, under other areas of the act as well if there is a need. If the parents are not able to take care of the child, it provides recognition of extended family first. If there is a suitable individual able and willing to take on the care of the child, that can be done by voluntary agreement.
Cooperative planning also must be offered when a child is in need of protection and when a child is leaving the custody of a director. As I’ve mentioned previously to members, this act is structured so it can also be used by a First Nation service authority. There is an obligation in the legislation where, if a First Nation wishes to establish such an authority, the minister must negotiate to establish the authority in accordance with the act. This does not diminish the rights of First Nations who have self-government agreements to occupy this authority and establish their own legislation, if they so choose. However, it is a process that falls in line with what the Member for McIntyre-Takhini was urging us to do earlier — and unfortunately has not recognized that it has been done through the good work of officials during the consultation and the joint development of policy and joint informing of the legal drafting. There has been a step taken that provides a measure that does not force First Nations into the position of choosing to draw down and negotiate their PSTA — program service transfer agreement — for occupying that authority. It provides a mechanism, as has been done in other jurisdictions, but not many to date, to establish a First Nation service authority, if they so choose and, if they establish that, it operates in the identical manner to the director of family and children’s services. They must follow this legislation if they choose to create such an authority.
The powers of a director of such a service authority are identical to the powers of the director of family and children’s services and subject to the same review and same accountability reports to the minister, and so on and so forth.
In answer to members opposite, cooperative planning is referred to in sections 6 and 7, section 44 and section 98.
Other areas that are new in this legislation include voluntary supports for parents. This provides the ability to give support to parents that was not previously in the bill. This is in sections 2 and 3, part II, sections 6 to 20, section 34 and section 29. It includes supports for parents to fulfill their parental role and be actively involved in planning and decision-making for their children.
It supports a focus on early intervention. Our aim is to promote and strengthen families through voluntary services. For example, a parent of a child with a disability maintains their parental role to the extent possible in a special needs agreement, and supports for the special needs child may be made until he or she reaches the age of 19, and does not require the child to go into care or custody of a director.
Previously, if parents needed such a service for their child, or needed mental health services, for example, outside the territory — which is not required in many cases but is necessary for a small number of children with complex behavioural or psychological problems — they did not have the ability to enter into a voluntary agreement. They had the choice — they could transfer the custody of their child over to the director, but they were not provided the ability, as this now does, to transfer decision-making power to the government for such matters as are necessary for certain specific decisions, for liability reasons and for simply executing those supports and implementing them.
There is a need for the director to have some decision-making powers and be able to undertake decisions as a guardian of the child; however, there was not previously a flexible structure in place. Parents had the choice of either having their child in custody or not in custody. We are changing this through this act and, in fact, as I have indicated before, in some areas such as out-of-territory mental health treatment, we have already implemented that programming in advance of the act and made those changes in policy and regulations.
Another area is supports for youth — a new area in the act, a new focus on voluntary supports for youth, including those age 19 to 24 who are leaving care and transitioning back to their home community. In addition, youth age 19 to 29 may receive support services if the youth cannot return home. Of course, attempts are made to return them home, but there are some youth between the ages of 16 and 19 who have been identified through the consultation processes — an area whereby some are not able to return home and are capable of taking care of themselves. This change will provide the ability for the department to provide increased support to those children. It would also of course apply to a First Nation service authority if one were established. It would create that mechanism for providing voluntary supports to those youth. Those supports can range, for example, from counselling to tuition fees.
Another new area in the legislation is the recognition and provision for family and extended family involvement. Family and extended family involvement is emphasized in the principles and is found throughout the bill. There is a significant decision-making and planning role for families and extended families provided in sections that refer to cooperative planning.
As well, there is the ability for extended family to care for a child without the child needing to go into care through what is referred to as an extended family agreement. It is again an area I referred to earlier that is done by mutual agreement of the parties involved.
The new court order provision also would allow a child to be placed with an extended family member or other person significant to the child if there were a need to remove them from the care of the parent. Again, this is referred to within the bill and is a new provision that provides recognition of extended family first for placement of a child in foster or adoptive care if such is necessary.
For members’ reference, sections in the act referring to this include sections 2 and 3, section 4, sections 6 and 7, section 14, section 44, section 55(2), section 52(c), section 55, section 57(3), and section 88.
As well, there is a provision under this area for the right of a child in care to visit extended family, and the opportunity for family and extended family to seek a timely review of decisions. This is provided through recognition of the language in the act that makes it very clear that there is a desire to include family, even if it is not safe. If it is identified by the court that it is not safe for the child to remain with their parents, there is provision for contact to continue as long as it does not endanger the physical safety or emotional well-being of the child.
As I referred to in Question Period, there is the recognition of cultural heritage, which is new in this act, and was not in the old Children’s Act. There is significant recognition of the importance of culture and community in the lives of children. The principles and best interest factors include identifying the importance of preserving culture to the well-being of children, particularly of First Nation children.
Case plans for children in the care or custody of the director will address steps to preserve a child’s identity as guided by the participants in the cooperative planning process. As I indicated, priority for placement of a child in care is with extended family and, if that is not possible, within their cultural community as the second choice. This is also new in this legislation.
The rights of children in care also include the right to maintain cultural heritage, participate in community activities, pursue spiritual development and visit with extended family members. The relevant sections members will find dealing with this are sections 2 and 3, section 4, sections 6 and 7, section 22, section 44, section 88 and section 89(3).
Community involvement is another area that is newly recognized and provided for in this legislation. It is addressed in the principles as well as in the recognition of a community’s role in the section referring to mandatory reporting of child abuse and neglect. That, as I have mentioned to members, also includes the requirement for mandatory reporting of child pornography. It is encompassed within that section of the act and makes us one of the first jurisdictions in Canada to include that mandatory reporting as a requirement.
Community members may also be invited to participate in the cooperative planning process, and there is a provision for community representation on the committees that may be established under this bill in reviewing the legislation. Relevant sections to community involvement include sections 2 and 3, sections 6 and 7, section 22, section 44, sections 88 and 89, section 167, section 175 and section 183.
Involvement of First Nations in decision-making is also addressed in the principles and reflected throughout the bill. First Nations will be involved in planning at the onset of involvement with a family. Again, as I reminded members, it makes it explicitly clear that First Nations must be involved at the earliest opportunity while recognizing that in some cases of urgent need for action to address child safety, there may be a requirement for a director — whether it be the director of family and children services or a director of a First Nation service authority — to act very quickly to keep that child safe. However, again, I mention that there is a requirement to involve First Nations in that planning and to inform them at the earliest possible opportunity. This includes requirements to involve First Nations on investigations and reporting back when a child is brought into care. In court hearings, First Nations will now have status as a recognized party in such hearings, which also is new and is something that was important from the joint consultations conducted by Department of Health and Social Services and the Council of Yukon First Nations.
As well, First Nations will be involved in cooperative planning for adoption. Relevant sections to this include sections 2 and 3, sections 6 and 7, sections 27 and 28, section 32, section 41, section 44, sections 47 and 48, section 60, sections 88 and 89 and section 98. Again, as I’ve indicated to members, many of the themes I previously referred to in debate are threaded throughout the bill, and that’s why I’m referring to these sections for the benefit of members.
In comments made by the Leader of the Liberal Party in his introduction, he suggested that, of the number of children in care, First Nation children represented 80 percent of the total. That is not accurate. If the member will review the statistics presented in the budget book, he’ll see that First Nation children in care were 68 percent of the total number of children in care for the year of 2006-07. For the member’s information, as of March 31, 2008, First Nation children represented 66.4 percent of children in care.
We recognize that this disproportionate representation of First Nation children is still a cause for concern, but I think the members would note that, as a result of cooperative and collaborative work in part, as well as other areas that are addressing some of the root causes of the challenges within communities — such as the Domestic Violence Treatment Option Court, Community Wellness Court and the substance abuse action plan, as well as other community initiatives — have resulted in lowering some of these numbers.
I think members will join with me in being pleased to see these numbers dropping, while we recognize that there is still cause for concern and further action, which this bill — if passed by the Legislature — will assist us with.
Another new provision within the act is providing for First Nation service authorities and allowing them to deliver services. The bill sets out flexible options for First Nations to deliver services, including the establishment of a First Nation authority or authorities which would be autonomous authorities will full administrative and policy-making powers and their own directors.
A director established under this act may also delegate the delivery of services to an organization or First Nation. A self-governing First Nation, of course, has the option under their final agreement to exercise their own powers and enact their own legislation, if they prefer to do so. Relevant sections of the act are sections 2 and 3, sections 168, 172, and sections 173 to 180.
Another new area within this act is clarifying the court process. Court processes have been streamlined and clarified to clearly establish the purpose and process of each step. Timely decision-making is emphasized and there are limitations on adjournments of a matter that can occur.
There is also more flexibility in the orders made, including the order to place a child with another person — for example, an extended family member. Again, a new provision is that First Nations will have party status in court hearings.
Other new provisions include quality and accountable services. There are mechanisms in the bill that ensure quality and accountable services are delivered. Cooperative planning will allow for collaborative decision-making and is expected to reduce areas of non-agreement.
A complaint process is required to be established by a director and must be known and accessible to children and families.
In addition, there are provisions to establish minimum standards and demonstrate compliance with standards, and for submitting annual reports.
There is also provision for requiring involvement of cooperative planning participants in an annual review of case plans, and an advisory committee will review the act every five years.
I understand I am out of time, Mr. Chair. Thank you.
Mr. Mitchell: I thank the minister for his comments. Some of them were very specific, and I would think no doubt we will get into them in even more detail when we go through the bill clause by clause, perhaps later today.
There are a couple of things I would like to comment on. The minister says that the figure of 80 percent is not a current figure in regard to the percentage of children in care who are of First Nation descent. He quotes figures of approximately 67 percent in the more recent statistics — up to 68 percent. While on the one hand we are pleased to hear the numbers have dropped, the 80-percent figure has certainly appeared in the past in a number of publications, and 64 or 68 percent is still — as I am sure the minister would agree — far too high. Certainly, it’s high enough to cause First Nation governments to pay particular attention to this act.
As the minister says, there are some positive steps in this legislation. The minister commented on the new supports for youth ages 19 to 24. I think I previously commented on that, but we think these are good provisions. We’re glad to see this continued support in place for children who have been in care. We think that that transitional support is important and will hopefully assist — as the minister says — for these young people to transition back into society in a healthier and more productive manner.
The minister states that parents are now provided the ability to voluntarily transfer some responsibilities to the director over some decision-making powers based on liability and other issues. Those sound like positive provisions, but there are still issues being raised to us by First Nations in particular.
I’m going to elaborate on a few of them here, and I think there are other members who wish to speak. I know the third party wishes to get into this debate, and all of us want to get into the clauses of the bill, so I’m not going to go on at great length.
For one thing, family conferencing — which the minister made reference to in yesterday’s debate — and the cooperative planning process are only used — by our understanding, and I’m sure the minister will correct us when we’re wrong; this is how the First Nations are viewing it — when the social worker decides that a child is in need of protection, and the social worker has either commenced, or intends to commence, a court proceeding.
So there are two points: first, this is already the status quo — the social worker already involves the family and First Nations in case planning, once a court process has been started. It’s not entirely accurate for the minister to say the requirement to offer family conferencing will reduce the need to go to court because, in many cases, the social worker has already decided there will be a court application, and that’s why it then goes on to include the First Nation and family conferencing or cooperative planning. There’s not necessarily anything in the act that suggests the family conference can be used to avoid court, other than if — as already mentioned — the voluntary care agreement is being contemplated, and that is a rare occurrence.
Secondly, there’s no way that anyone — First Nation or family member — can participate in the social worker’s decision that a child is in need of protection. The social worker retains all the decision-making powers, so the question has been asked: how can we prevent a child from being taken into care if we’re not providing the social worker with all the family information?
First Nations feel these sections are inconsistent with the guiding principles — which the minister has referred to — and the prevention mandate of the new law.
First Nations are notified, as the minister has said, in section 27(1), when an investigation has been commenced, but that is notification not consultation. There’s no mechanism in the act to recognize a duty to consult.
One question we would have: should Bill No. 50 become law, is it possible that First Nations could challenge in court the lack of a consultation requirement, should a social worker fail to notify adequately?
This begs the question — I did ask this the other day: what is consultation and notification? Is it a phone call or is it something more than a phone call? What will be meant by this?
First Nations, as we’ve said, are only involved in a cooperative planning process or a family conference once the social worker decides that a court application is necessary or a voluntary care agreement will be made. The First Nation can then participate in the development of a case plan.
This is not that different from the status quo. First Nations, as the minister knows, are already involved in the case planning process and, most times, First Nation officials are asked to sign the documents for court. This is therefore why First Nations want to be involved in decision-making. The social worker already has the authority to use voluntary care agreements. It’s status quo. They’ve rarely been used because the social workers also say — and sometimes correctly so, obviously — that the parents must be cooperating. Of course, these affidavits, when it goes to court, are generally adversarial, and the parents don’t want to cooperate.
Another point involves the alternative dispute resolution or ADR process in section 8. First Nations are telling us that they would like clarification of that. The process or the service has not been defined in the act. Their question is — and since they can’t ask it here, we’ll ask it on their behalf: does this section mean that an ADR process can be used instead of the court process? If it can, then it should say so in the act, and, therefore, First Nations concerns would be alleviated. If not, they are asking if these are the improvements that they thought were coming.
It has also been pointed out — I think yesterday the minister said, “Even in instances where court proceedings have been started, an agreement can be reached on a plan before the hearing and the matter can be withdrawn from court — which is not currently the case.”
We have been informed since the minister made these statements that he is wrong about that because several of these situations have only recently been negotiated that way under the existing legislation. The minister says that this is new and First Nations are saying that it is not new and that those abilities already exist.
First Nations want to be involved in the process of development of the child advocate. For example, it has been pointed out that British Columbia has a very progressive child advocate who is serving as a very good watchdog. As I have asked before: can the minister illuminate us on whether the child advocate is seen as an arm’s-length stand-alone sort of position, much like the Ombudsman, or a reporting position, more like how the worker advocate is being viewed? It is not in the current act but only contemplated in an act to come back over a year from now when this act has been proclaimed.
We are looking, as are First Nations, other advocates and NGOs, for an explanation from this minister as to what he contemplates in the position of child advocate. What is the role, the powers, and how would that position integrate with this legislation since it is not within this legislation?
Extended family agreements — again, a social worker has discretion to decide if such an agreement is appropriate and whether funds may be available. As I suggested the other day, there should be mandatory funding for kinship care — not only to alleviate First Nation concerns, but the concerns that I raised yesterday on behalf of a constituent — as opposed to this being discretionary or even requiring involvement such as applying for foster care status.
Those are some of the questions I have for the minister. I do look forward to a more in-depth discussion when we go through the bill clause by clause.
I think it would be more productive to carry forward that way, because what the minister is now doing is referring to clauses throughout the act in response to the general debate questions, and it is difficult for us to follow along that way. It will probably be better for both sides if we do that within a clause-by-clause question and answer session.
That is the bulk of what I want to ask at this point. I would point out that First Nations have another stake in this, besides the obvious stake, in that we are talking about so many of their children, whether it be 68 percent, higher or lower; it is still an awful lot of First Nation children. They are the majority of children in care. I think we can agree on that.
With respect to child welfare, the federal government devolved this to First Nation agencies down south. The Government of Canada has jurisdiction over First Nations through the Constitution. In the provinces it was devolved to First Nation agencies. That hasn’t happened in a similar manner in Yukon, but of course through the final agreements, First Nations have the ability to take responsibility for that. The Premier suggested as recently as yesterday that they should do so if they are not happy with this act. I know that a number of First Nations, perhaps as many as seven, are now contemplating that.
In the meantime, millions of dollars are coming to the Yukon government on behalf of First Nation children and families. In effect, the Yukon acts as a fiduciary for First Nations in some cases. Serious money comes here and the First Nations are concerned with how that money is spent.
Again, if the minister chooses to disagree, I will have to tell him that it is unfortunate that he couldn’t disagree directly with the First Nations. We are forced to bring these issues forward on behalf of constituents as they present them to us. As I have pointed out, we are not lawyers or experts, and we would have preferred if the First Nations, under legal counsel, could have made these points or asked these questions directly of the minister, and the minister could have responded and perhaps convinced the First Nations of his position and convinced us likewise. It would have been better to do it directly, but we know that’s not going to happen.
Hon. Mr. Cathers: It’s interesting; again, the member is engaging in debate and he’s failing to recognize the process that was entered into. We followed that process. As I said yesterday to members regarding the November 7 consultation draft of the legislation, the only substantive issue identified with that by the First Nations Health Commission was the desire to have a child advocate incorporated. That is why the provision has been made in the legislation to establish an act.
The member asked about what that will be and how that will go on. Well, the member knows — I’ve answered the question. We will be consulting on that; we will be working with First Nations, stakeholders and the public on developing exactly what the role of a child advocate is and developing that piece of legislation. That will occur roughly over the next year to meet the commitments that have been made in this area. We will then move forward with establishing that legislation.
In a number of cases, the member is referring to areas and bringing forward disputes on this topic, trying to create an issue. I would encourage the member — I did answer much of this yesterday. I would refer him to Hansard for some of that. One area I will agree with him about is it would be helpful if we got into line-by-line debate on some of these matters. I will continue to provide, in some of the overall areas that have been identified as issues and concerns by the members opposite, references to sections of the act that contain portions relevant to that. As the member will note from my last response, in some cases there are a number of sections that are relevant.
Mr. Chair, the member is raising the issue of foster parents, kinship care and suggesting that the act should say the government “shall” provide reimbursement and “shall” provide financial assistance. I would point out to the member that if a child is adopted or is in foster care, the desire is to ensure they have sufficient resources to take care of that child.
This is a new section in the act that was not previously there. Although it has been offered in policy, recognizing it in the act is new. The desire of that area is to ensure that anyone who takes on the care of a child is not put into financial hardship. Of course there the ability already exists through social assistance — if someone is on social assistance — to provide for them and the child, no matter whether that child is theirs, adopted or in foster care. This area of the legislation is designed to provide for those who are in the middle, in between being on social assistance and being sufficiently well off financially that it will cause them no concern. This provides the ability to assist them in caring for a child they have agreed to take on, who is part of their family and ensures that it won’t cause undue financial hardship.
This would apply, for example, to a multi-millionaire. If one agreed to take on a child of their sister or brother, cousin — it doesn’t really matter — and they were very financially well off, and that taking care of such a child would cause no hardship and no stress, would the member really suggest that because they were taking that child on, that there is a need to provide them with financial compensation for doing so? The intent of the structure of the act that we have proceeded with is to assist those who require that assistance and to allow the officials to provide appropriate support to those who need it.
The member ought to know by now that legislation prescribing an obligation to pay is something that is not commonly entered into in legislation because of the potential legal implications of such a clause. Commonly, legislation is enabling and allows the appropriate arrangements to be entered into in policy and/or regulation and, in this case, to base it on the needs of the child and those of the extended family, rather than basing it on a legislative obligation to pay.
I want to make sure the member recognizes that I believe the vast majority of individuals who would agree to take on a child would do so out of a desire to keep their family together and to help that child. Frankly, some might be insulted if the member is inferring there is a need to pay them for services. What we want to do is provide the ability to assist them appropriately, if indeed they need assistance, and to do so in a respectful and appropriate manner.
Moving on to other areas, on the alternative dispute resolution, the member suggested it’s not sufficiently recognized or supported, or sufficiently in there. What the member fails to recognize is this is a new provision in the act. It’s not in the Children’s Act; it’s in the new Child and Family Services Act. Some of the procedures and practices the member was referring to in his comments — he says, “Well, they already happen.” What the member is failing to recognize is there are a number of areas, through the new First Nation child welfare policy — which we acted on in March 2007 — that flowed from the consultations and what was heard during consultations on the child act. We have acted in this area but it is not in legislation; it is merely in policy. The legislation is now moving forward to identify and recognize those practices.
Also, currently there exists no legal obligation to continue some of these practices. This is to entrench in law some of the practices that have been successful, as well as provide the legal mechanism to allow for new practices, such as cooperative planning and increased alternative dispute resolutions.
The member is entirely missing the point if he thinks that alternative dispute resolution would be entered into and a court process would still occur. Alternative dispute resolution is intended to be an alternative to court. That is why it is entitled “alternative dispute resolution”. If an alternative dispute resolution process is successful, it is aimed at avoiding the court system.
In alternative dispute resolution, the act promotes the use of cooperative, collaborative, inclusive processes through the guiding principles. It will reduce the adversarial and confrontational nature of court proceedings, and the requirement to offer family conferencing and other alternative dispute resolutions is designed to reduce the need to go to court and avoid it entirely, if possible.
The court is required to promote the use of cooperative planning processes. If the matter comes to court, a judge is required to determine if a family conference was held and the outcome of the conference. If a family conference was not held, the court can be adjourned so that a family conference can be held prior to the court hearing. That is in section 79.
A director will work with the family to achieve agreement on a plan, and if a child requires out-of-home care, then the family and the director can enter into a voluntary care agreement. Again, this is another alternative to court.
Even in instances when court proceedings have been started, if an agreement can be reached on a plan before the hearing, there is now the ability to withdraw the matter from court, which was not previously an option under the legislation. Previously, once the court process was launched, it had to be concluded. That is in section 56 of the act.
Part 2 of the new Child and Family Services Act is all new provisions, for the members’ ease of reading. These are new provisions aimed at more collaborative, cooperative planning processes, alternatives to court, avoiding court, involving First Nations, involving extended family and, whenever possible, reaching mutual agreements on how to proceed and provide the appropriate support for the child and the family.
Some of the alternative dispute resolution processes include mediation, which is provided for in section 8. A family can use that or any other alternative dispute resolution process at any time when they are receiving services under the act.
Moving on, other areas that provide for First Nation involvement include the guiding principles, as I have noted; there is a statement in section 2 — under “Guiding principles,” section 2(j), provides for involvement of First Nations in decision-making processes as early as practicable.
In reference to cooperative planning, First Nation involvement is required at the onset of involvement with the family — sections 6 and 7 of the act.
The child’s First Nation shall be invited to participate in planning for the safety of the child and for supports to be provided for the child and family. Cooperative planning must be offered when a child is believed to be in need of protection, when a child is leaving the custody of a director and for adoption planning, and may be offered in any other circumstance as well. The relevant sections are section 44 and section 98 of the act.
There is a requirement for the involvement and/or notification of a First Nation in a number of sections — involvement in the cooperative planning process and other matters, and notification of steps taken under the act.
Cooperative planning — the stages at which that is required include cooperative planning, initial contact and investigation, reporting back to a First Nation, a child who needs to be protected from contact with someone, notification when the child is brought into care, documents to be served in respect of a court application, parties to a court hearing, application for subsequent order, rights of a child in care, and cooperative planning for adoption. The relevant sections are sections 6 and 7, section 44, section 27, section 28, section 32, section 41, section 47, section 48, section 60, section 88 and section 98.
First Nation delivery of service — there is flexibility in how First Nations are able to delivere services to their members, including the option of establishing a First Nation service authority or authorities where First Nations can deliver some or all the services provided for under the act.
The authority would be autonomous and have full administrative and policy-making powers with its own director, and a First Nation services authority would be initiated by agreement and is responsible to the Minister of Health and Social Services, as that is where the act falls under. As I indicated before, if a First Nation requests to negotiate an agreement to establish such a service authority, there is a requirement to enter into those negotiations.
Another option is that the director can delegate the delivery of parts of the act to a First Nation or to an organization. The third option that is available to all self-governing First Nations is that if they wish to exercise the power of their self-government agreement through the program service transfer agreement process, they can enter into that arrangement.
Should they choose one of the options provided within the act, the relevant sections for the first option are sections 168 to 172, and in the second option, section 176.
Other areas of recognizing involvement and providing for First Nation involvement include preserving the cultural identity of a First Nation child. Again, these are new areas within the legislation.
The guiding principles identify the importance of knowledge about family origins in section 2(c); the cultural identity of a child in section 2(d); extended family members’ involvement in health, safety and well-being of a child in section 2(h); involvement in decision-making of a child, parent and extended family members in section 2(i); First Nation involvement in decision-making processes in section 2(j); as well as in the service delivery principles, which identify the importance of programs and services that should be planned and delivered in ways that are sensitive to cultural heritage of families in section 3(c); communities and First Nations should be involved in the planning and delivery of programs — covered in sections 3(d) and (e).
Best interests of a child: the importance of preserving the cultural identify of a First Nation child must be considered in determining the best interests of a child and is provided for in section 4(2).
Cooperative planning: with guidance from the family and a First Nation, cooperative planning will be offered in a culturally relevant manner, which may involve ceremonies, food, elders or other relevant activities. While a family conference is named as one example of cooperative planning, the bill allows for other approaches, including those that are practised within First Nation communities.
Case plans for children in the care and custody of a director address steps to preserve a child’s identity and culture. Case plans will be developed with the input of First Nations at the cooperative planning process. The relevant sections are sections 6 and 7, section 44 and section 98.
Priority of placement: provisions include the priority placement of a First Nation child. When a child cannot live at home, placement should be sought with extended family first or within the First Nation community. The relevant section is section 89.
Rights of children in care: section 88 sets out the rights of children in care and includes the rights of children to receive guidance and encouragement to maintain their cultural heritage — section 88(1)(i); to participate in community activities — section 88(1)(g); to pursue spiritual development — section 88(1)(h); speak to and receive visits with members of the child’s extended family — 88(1)(d); and the right to privacy during discussions with a representative of the child’s First Nation — 88(1)(j).
Provisions for the involvement of family, extended family and others significant to the child are recognized in the guiding principles. They speak to the importance of the involvement of family and extended family, noting that family is the primary influence on a child and should be supported to provide for the care and well-being of a child — section 2(g); extended family members’ involvement in the health, safety and well-being of a child is provided for in section 2(h); extended family members’ involvement in decision-making process — section 2(i).
Service delivery principles speak to the importance of involvement of family and extended family, noting that families and children should receive the least disruptive form of support that is appropriate — section 3(b); “collaboration builds on the collective strengths and expertise of children, families, First Nations, and communities” — section 3(f); and “a child and members of the family and extended family should have an opportunity to seek a timely review of decisions…” provided for in section 3(g).
Cooperative planning emphasizes the central role of parental involvement in planning for their children and encourages the involvement of extended family members as well as others with significant relationships with the child and is provided for in sections 6, 7 and 44.
Another new provision includes provision for agreements with extended family to care for a relative’s child without needing to take the child into care, and section 14 refers to that process.
If an agreement cannot be reached in the cooperative planning process and the matter proceeds to court, the family or extended family now has the ability to submit their own plan for the child to the judge for his consideration. The relevant section to that is section 55.
If the matter goes to court, a provision for a new court order has been added, whereby a judge can order a child to be placed with a person other than the parent — for example, an extended family member under a director’s supervision. The relevant sections are 52 and 57.
Thank you, Mr. Chair.
Mr. Edzerza: I’ve heard a lot of comments today, some coming from the Premier, that stated that I had kind of a close attachment to this particular subject. He’s right, I do, and for good reason. The minister may have been involved with this kind of work for two, three, four years; I’ve been involved with it for 20 years plus, not as a minister, but as one who had to interpret the law of family and children’s services, one who had to constantly go to bat for the individual citizen out there who was having much hardship from their children being apprehended and not understanding the process of the law.
I don’t pass myself off as being one who has a legal counsel background; however, I have had the opportunity to work with the old act and to find out that it was very weak with regard to any First Nation involvement during the apprehension of their children. I also know that there was a great imbalance here with respect to the individual citizen having the financial resources to be able to properly have representation in the court system.
The imbalance is that with government, they have an abundance of funds. They have the opportunity to select numerous legal counsel who are professionals in determining the law on child welfare versus a family in a community of poverty that has no other option but to ask Legal Aid to provide their counsel. They do not have the finances to be able to select the best legal counsel to represent them in court.
I have seen this on numerous occasions, and one example I will give today is that many years ago — 25 years ago plus — I was driving downtown. I saw two people walking on the side of the road so I picked them up; they were friends of mine. I asked them where they were going and they said, “Down to the courthouse.” Upon questioning them further, they told me that they were going to court to try to keep their son. I asked them out of interest who was representing them. They said, “Nobody.”
So I went to the courthouse with them, and lo and behold they were telling the truth. There was no legal representation there for this family. The family and children’s services branch had, I believe, three legal counsel sitting there.
Upon having dealt with these situations on numerous occasions, I voluntarily offered to support this family. A lot of things went on in that courtroom that I brought to the judge’s attention — one of them being the imbalance of representation for the parents in question versus the government. I thought it was very unfair that two individual citizens had to face a department full of legal counsel who all specialized in child welfare law.
It ended up that the judge did side with me on a lot of the things that I raised and, to make a long story short, at the end of the day the children stayed with the parents. I can testify on the floor of the Legislature today that I talked to this young fellow as recently as a month ago, and he is doing very well. He survived without going into the care of the director. Had I not been there at that particular point in time, this young fellow would have been in protective custody. Obviously he didn’t need it. He survived by not going into the care of the director.
I wanted to bring that to the attention of the minister of today. The real sad story that comes out after all the consultations that took place with regard to this act is that those very people are still unhappy. They are still unhappy.
This leads me to a quote that was made by Chief Seattle in 1854 — and this whole thing about consultation has to do with respect: “Respect means listening until everyone has been heard and understood, only then is there a possibility of ‘balance and harmony’…”
Well, this is where this act falls short. There is no balance and harmony; otherwise, you would not have had the galleries filled here a week ago with First Nations who are saying that they haven’t been heard. As I go through some of the documents that were handed out at the briefing, I tend to believe that they are correct.
I know the minister is going to stand up and cite something I said about moving forward with this act. I know he’s going to say that, because he can’t pass it up. It’s the only line he has to deal with me. My answer to that now is: so what? So what if I said that?
There is a time when someone says something — and I am always of the opinion that a person should always have an open mind and should be able to stand up and be accountable for what they say and be able to say, “Yes, I made a mistake,” or “I wasn’t accurate,” or whatever it might be. I am that kind of a person. I am willing to say, you know, after talking to the First Nations and having gone through these documents — which we did not have back in April; these were just given to us at the briefing — it’s very easy to look at this document called, What We Heard, on the Children’s Act revision. Mr. Chair, I can’t help but come to the conclusion that the philosophy and principles of the First Nations were really brought forward in good spirit and sincerity, believing wholeheartedly that this government is going to consider giving us some responsibility.
Well, Mr. Chair, I believe where the barrier was put up was exactly what the Premier said in the House here just yesterday: “That is co-governance. We have no desire to go down the road of co-governance. We maintain the liability and the responsibility for all Yukon children, and we will not devolve it.”
Now go and consult with the people in the territory and come back with something that we can live with. Well, the problem here, Mr. Chair, is that this comes out when the act is being brought into the House. The Premier should have said this right from day one. He should have said to the First Nations, “This is our guiding principle here. This is what we’re going to stick to and nobody is moving us off of this position.” I can guarantee you almost 100 percent today that the First Nations would have told you to go wherever.
When you came to their community they would have said, “Nope, we’re not interested in talking to you. You go do what you want because your guiding principle is that you have no desire to go down the road of co-governance.”
Now, one of the major problems that I have with this is that the government is willing to make all kinds of collaboration agreements when it comes to economic development ventures. They are willing to do anything when it comes to economic development, but when it comes to social problems and social agendas, the answer is: “No, we don’t want to include you in the decision-making power, because it is our money.” That is basically where the barriers are and where they will remain.
I also want to put on the record that I have great concerns when the Premier would allow MLAs to have a free vote when it came to increases in MLA salaries, but he would not allow a free vote on such an important piece of legislation as the Child and Family Services Act.
I find that unacceptable. It’s not right; it’s totally wrong. As long as these kinds of barriers are put up between First Nations and the government, there will never be a working relationship.
I also want to say I was appalled at the comments made by the Member for Pelly-Nisutlin. She was appalled at First Nation people coming here, saying they have some issues with this act. I think there will be a lot of people appalled at that comment that was put in the paper and made on the floor of this Legislature.
But it’s like First Nations know —
Some Hon. Member: (Inaudible)
Point of order
Chair: Mr. Cathers, on a point of order.
Hon. Mr. Cathers: Under our Standing Orders, 19(g), one may not impute false or unavowed motives to another member. Certainly the Member for McIntyre-Takhini is using remarks made by the Member for Pelly-Nisutlin out of context to express a motive entirely different from that which the member expressed in debate the other day. Mr. Chair, I would ask you to have him temper his remarks and respect the Standing Orders.
Chair’s ruling
Chair: On the point of order, there is no point of order, but I would remind the members not to personalize debate. Mr. Edzerza, you have the floor.
Mr. Edzerza: Thank you, Mr. Chair. It’s something that was said on the floor of the Legislature and nobody disputed it when it was said. It’s something that First Nations also understand, and that is everybody is entitled to an opinion.
I would like to look at some of the guiding principles here. Philosophies and principles are critical in the development of a document — not to the government, but to the receiving end of this legislation. That is who it is critical to. This is going to affect a lot of First Nation people. A lot of people in my riding are going to be affected by this legislation, and that is why First Nations wanted to have a little bit more of their values and their philosophies put into this act.
It is not a big thing to correct. I think if there was a political will on the part of this government toward the social agenda like there is toward economic development, the social problems would be inundated with funding. You wouldn’t have to keep trying to twist someone’s arm to put a land-based treatment centre in place; it would already have been done. There is no question about it.
Like I stated before, when you deal with social programming, they are not finance-generating initiatives and that creates a problem for this government. I sincerely hope that someday they will see the value in dealing with the social agenda as expeditiously as they do with creating jobs. The lack of qualified tradespeople is really reflected in the extent of the social problems in the community.
I know several First Nation operators who are very good operators. They are all very dependable, and they do a good job when they are at work. I know a lot of young people who are around the community today who would love to have a land-based treatment centre right in town where they don’t have to go a long way from their families.
I want to talk about some of the general principles. This is coming right out of the document What We Heard: “Child protection has a bad reputation. To help correct this it’s important to state in the act that the principle of taking the least intrusive action is important. This should be in the preamble.”
“I want prevention to be the central feature of the philosophy of the new act. I also want it to be child-centred and family-focused. Building stronger families should be our main job as social workers.” That came right from the social workers. If a social worker is concerned that things are not family focused, then obviously there are some concerns that need to be addressed.
“The foundation of principles should include recognition of cultural differences when looking at individual rights versus collective rights. This is particularly important in First Nation cultures.” That statement speaks a thousand words. Cultural differences — ever since I was elected as an MLA, I’ve been talking about cultural differences and cultural clashes on the floor of this Legislature. When I was in government within Kwanlin Dun, I always talked about the cultural clashes and the cultural differences because, even in First Nation governments, some things were not clear as to why the First Nation government wanted to go in one direction but the federal government or the territorial government had their own agenda.
Again, it was all due specifically to the difference in cultures.
It is very obvious to First Nations that, being a minority, we have to follow and be dictated to by the bigger governments. First Nations don’t have the financial support or the finances in place to take on the federal government regarding cultural differences. They wrote the Indian Act; you live under it or you go to jail.
Now we have an opportunity to develop legislation today that can be more culturally friendly. I know the minister is going to get up and go through all these notions that he has about what is going to address the cultural differences, so I’d like to hear what he has to say.
Hon. Mr. Cathers: The member suggested that I was going to spend all my time pointing out remarks he has made before, but I won’t. I appreciate that the member is expressing a different point of view then he did before; however, the member should recognize and be accountable for his words as members of the government are expected to be. The member himself did note in the media on February 15 that consultation had been going on for five years and I quote: “The longer it’s delayed, the more negative impact it has on the citizens who really needed something in place 20 years ago.”
I remind the member that we spent five years consulting. We embarked on a process, jointly consulting, jointly going out with CYFN to consult, jointly developing the policy and jointly informing the legal drafting. The member suggested that we should listen to everyone, until everyone has been heard. The opportunity was provided for everyone who wished to come forward to do so. As I read out yesterday in debate, the attendance at some of the meetings makes it very clear that there was large participation in this process.
But we have to move forward, as the member himself noted on more than one occasion. We cannot spend another 20 years consulting on this to ensure that everyone has spoken on the issue, if they did not previously take the opportunity that was provided to them to make their views known.
The member’s words were, “Everybody’s entitled to an opinion.” Well, as the member knows, there are always differing opinions on significant policy matters. What we did in this context, in this process, in this review of the Children’s Act, is embark upon a historic process. This is the first time in Yukon history that the government has moved out and gone with the Council of Yukon First Nations to jointly do public consultation, to jointly develop the policy, to jointly inform the legal drafting. We have fully honoured our commitments; we have listened to First Nations, to stakeholders and to the public.
I refer to the 12 topics in What We Heard and the significant stack of comments heard from the public. I have mentioned a number of the areas where these have been incorporated into the act. I have reminded the members or made them aware of new sections in the act, including the fact that part 2 is an entirely new section and is related to the new emphasis on cooperative planning, on alternative dispute resolutions, to avoid court, except when absolutely necessary, and provides far more ability and requirement for involvement of the First Nation and extended family and the prioritization of extended family for placement of a child, if a child must be taken into care.
Now, the What We Heard document — the member suggests that he has only had a short time to review it; that it was only available at the briefing provided by officials, that it was the first time he had an opportunity to see it. The Leader of the Third Party — the member’s colleague — was concerned yesterday and in fact, rose on a point of order, thinking the document I was reading from was one they had not seen before. Well, as the member has now recognized, stacks were provided at the briefing by officials of Health and Social Services. This document, as the Member for McIntyre-Takhini — and indeed, all members of this Assembly — should be well aware, has been public and posted on the Children’s Act review Web site which is http://www.yukonchildrensact.ca/ since September 2004.
The Member for McIntyre-Takhini, at that point, was a member of this side, a member of the government caucus and of Cabinet, and was aware of the discussion that included the desire to ensure that this is publicly available on the Web site, as it has been since September 2004.
Officials from Health and Social Services did, once again, provide that to members at the briefing on the legislation. It’s unfortunate that they had not read it before, and I am pleased to see that some of them have apparently taken steps to read it now.
The member bridged into other areas to talk about the social agenda and stated that this government has not acted on the social agenda. Mr. Chair, if the member will review his memory, the member will recall what has been done and will realize that the statement he made is not accurate and does not reflect the facts. This government has acted in areas of the social agenda far beyond what previous governments have done, including social assistance reform, significant increases to non-government organizations we work with, a five-step FASD action plan — including investing and increasing the resources to groups such as FASSY, and Options for Independence Society — as well as increased resources to groups such as Challenge, increased resources to women’s shelters, collectively amounting to — with Kaushee’s Place, Help and Hope for Families Society, and the Dawson City Women’s Shelter — an annual increased funding of roughly $1.2 million since this government came into office.
Those are just a few examples off the top of my head. If the member would like, I can come forward with more information and notes on some of the investments the government has made on the social side of the ledger. The member ought to be well aware that, in fact, we have acted in a number of areas that other governments did not. Other areas that spring to mind: increased funding to YFSA — now known as Many Rivers Counselling — funding for youth outreach workers, funding for the Outreach van. These are just a few examples off the top of my head — not to mention the substance abuse action plan, which the member had a hand in developing and, unfortunately, the member did not carry it through and continue on with that involvement.
The member was referring to the intrusiveness of actions and suggested that a desire for less intrusive services and no intervention should be in the preamble of the act.
The member should note that this is right up front in the act under “Service delivery principles”. These principles begin a new section of the act setting the context for how the rest of the act must be interpreted and delivered and how all policies and programs pursuant to this legislation must be implemented.
“Service delivery principles” begins by noting:
3 “The following principles apply to the provision of services under this Act
“(a) in making decisions, providing services and taking any other actions under this Act, a child’s sense of time and developmental capacity should be respected;
“(b) families and children should receive the most effective but least disruptive form of support, assistance and protection that is appropriate in the circumstances…”
Again, right up front at the beginning of the act, service delivery principles set the context for how the act must be interpreted. It says right there “the most effective but least disruptive form of support, assistance and protection…”
Section 3(c) notes:
“(c) programs and services should be planned and delivered in ways that are sensitive to the cultural heritage of the families participating in the programs or receiving the services…”
Again, there is recognition of culture and the importance of that has been identified, particularly by First Nations, but is also important to non-First Nations citizens as well.
Carrying on in section 3:
“(d) communities should be involved in the planning and delivery of programs and services to their residents;
“(e) First Nations should be involved in the planning and delivery of programs and services to their members…”
Again, this is under “Service delivery principles”, noting that First Nations should be involved in the planning and delivery of programs and services, and they are provided for right up front in the act.
Subsection 3(f) “collaboration builds on the collective strengths and expertise of children, families, First Nations, and communities; …” That again, is in reference to matters such as collaborative planning and provides the clarity that a service delivery principle should build on that collective strength and expertise of children, families, First Nations and communities. In 3(g) “a child and members of the family and extended family should have an opportunity to seek a timely review of decisions made under this Act which affect them.”
Moving on, Mr. Chair, and I note from the member that the guiding principles are key to the act as are the service delivery principles and the next section, “Best interests of the child”, expands in — I believe there was one line in the child act referring to “considering the best interests of the child.” This has been expanded to take up one clause with two subclauses and one of them has 10 various subclauses, to describe the best interests of the child. So, this includes 4(1): “In determining the best interests of the child all relevant factors shall be considered, including
“(a) the child’s safety, health and well-being;
“(b) the attachment and emotional ties between the child and significant individuals in the child’s life;
“(c) the views and preferences of the child;
“(d) the child’s physical, cognitive and emotional needs and level of development;
“(e) the importance of continuity and the resulting stability to the child, and the effect of any disruption in that continuity;
“(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; …”
Again, if the member notes, this is a specific reference to cultural, linguistic, religious and spiritual heritage and their upbringing — a recognition under best interests of the child to be used not only by the director of family and children’s services or the director of a First Nation service authority, but also to be used by the courts if the matter gets to a court process and is not able to be resolved earlier through cooperative planning or alternative dispute resolution.
“(g) the importance to the child of an on-going, positive relationship with their parents and with members of their extended family;
“(h) the ability of a proposed care provider for the child to fulfill parental responsibilities;
“(i) the role assumed by a proposed care provider during the child’s life; and
“(j) any history of family violence or child maltreatment perpetrated by a prospective care provider, and the effect on the child