First Nations Child Welfare in Ontario (2011)

This information sheet presents an overview of the current structure of First Nations child welfare in Ontario as it was in 2011. It builds on work done for the First Nations component of the Canadian Incidence Study of Reported Child Abuse and Neglect (FNCIS-2008), a collaboration between university researchers and representatives of major Aboriginal child welfare organizations, to analyze, contextualize and disseminate research investigations involving First Nations children included in the Canadian Incidence Study of Reported Child Abuse and neglect (Sinha, et al., 2011). Basic information about the structure of First Nations child welfare was compiled in order to contextualize FNCIS-2008 findings. FNCIS-2008 advisory committee members completed 2-page information sheets consisting of closed and open-ended questions about the historical trajectories, umbrella/support organizations, legislative/policy frameworks, funding models, and scope of First Nations child welfare agencies in their jurisdictions. Research team members followed up by collecting and reviewing government documents, child welfare legislation, court documents and research reports in order to verify, refine, and provide formal references for the information provided by committee members.

In 2006, there were 158,395 First Nations people in Ontario; they represented 23% of the total First Nations population in Canada and 1.3% of the population in Ontario (Statistics Canada, 2006). First Nations children (aged zero to 19) constituted 2% of the child population in Ontario; an additional 1% of the child population was non-First Nations Aboriginal (Statistics Canada, 2006 Census). There are three groups of Aboriginal peoples in Canada recognized by the Constitution Act (1982): First Nations, Métis, and Inuit. Aboriginal children made up 3% of the child population in Ontario, yet comprised 21% of all provincial Crown wards i.e. children legally under the protection of the provincial government (Ontario Ministry of Children and Youth Services, 2010a; Statistics Canada, 2006 Census).

First Nations communities in Ontario have long worked to re-gain control over child welfare practices related to their children. The results of their efforts are demonstrated by the existence of five delegated First Nations child welfare agencies and an urban Aboriginal agency, which serves Aboriginal families in Toronto. In addition to the growing scope of First Nations agencies, the legislative and child welfare standards governing Ontario’s provincially run child welfare agencies acknowledge the importance of community, heritage, and cultural ties for Aboriginal children.

The History of the First Nations Child Welfare System in Ontario

Ontario shares a common national history with other provinces in regards to the development of First Nations child welfare. Residential schools served as the primary mechanism of First Nations child welfare in Canada between 1879 and 1946 (Milloy, 1999). During this period, the Canadian government’s policy regarding First Nations child welfare was to assimilate Aboriginal peoples into Anglo-European culture by separating Aboriginal children from their families. In 1920 an amendment to the Indian Act made attendance at designated state sponsored (day, residential, institutional) schools mandatory for all children “between the ages of seven and fifteen years” who were physically able to attend (An Act to amend the Indian Act, 1920, A10). It also allowed truant officers to enforce attendance, giving them the right to, “enter any place where he has reason to believe there are Indian children” of school age and to arrest and convey to school truant children. (An Act to amend the Indian Act, 1920, A10). There were 18 residential schools operating between 1838 and 1974 in Ontario (Assembly of First Nations, 2010).

In 1951, the introduction of Section 88 to the Indian Act made “all laws of general application from time to time in force in any province applicable to and in respect of Indians in the province” (Indian Act, s. 88, c. 9, s. 151, 1985). Section 88 made it possible to enforce provincial child welfare legislation on-reserve. For the first time provincial child welfare authorities began to apprehend Aboriginal children living on-reserve; this resulted in a sharp increase of First Nations children placed in care (Royal Commission on Aboriginal Peoples, 1996). In Ontario, before the introduction of Section 88, less than one percent of children in care were Aboriginal; by 1977, approximately 8.6% of all children in out-of-home care in Ontario were Aboriginal (Royal Commission on Aboriginal Peoples, 1996).

In 1965 Indian and Northern Affairs Canada (INAC) and the Ontario government signed the 1965 Indian Welfare Agreement that deemed INAC responsible for reimbursing the Ontario government 93 cents for every dollar spent on Aboriginal child welfare services on reserve (First Nations Child and Family Caring Society of Canada, 2010; Indian Welfare Services Act, R.S.O. 1990, c.I.4). By the 1970s First Nations groups began to publicly demand greater control of child welfare services within their communities and expressed dissatisfaction with provincially run child welfare programs (Auditor General of Canada, 2008). During this time, First Nations communities began to develop federally funded child welfare agencies within their communities (Auditor General of Canada, 2008). In 1981, Band Chiefs in Ontario demanded that all Aboriginal children removed in Ontario by provincially run child welfare authorities be returned to their Aboriginal communities and that any removal of Aboriginal children stop (Mandell, Blackstock, Clouston Carlson, & Fine, 2006). The Ontario government, in 1984, made provisions to the Child and Family Services Act recognizing the rights of Aboriginal children (Mandell, et al., 2006). Revisions to the child welfare legislation included statements allowing for the development of First Nations child welfare agencies and allowing the Lieutenant Governor in Council to exempt by regulation First Nations agencies from requirements of the Child and Family Services Act (Mandell et al., 2006).

The Current Structure of First Nations Child Welfare (2011)

In Ontario child welfare service agencies are called Children’s Aid Societies; the Ontario Association of Children’s Aid Societies (OACAS) provides support to four of six delegated Aboriginal Children’s Aid Societies and has total a membership of 50 Children's Aid Societies (Gough, 2005, Ontario Association of Children’s Aid Societies, 2010a). The Association of Native Child and Family Services Agencies of Ontario (ANCFSAO) works with the OACAS and represents the interest of Aboriginal Children's Aid Societies in Ontario (Commission to Promote Sustainable Child Welfare, 2010). Currently there are twelve First Nations child welfare agencies that serve on-reserve children and families, but still the majority of Aboriginal children and families do not reside in an area served by a First Nations agency (Commission to Promote Sustainable Child Welfare, 2011). Five First Nations societies are delegated to conduct child welfare investigations; they have signed agreements with the provincial government that give them authority to enforce the Child and Family Services Act (Ontario Child and Family Services Act, 1990). These agencies are listed in table one. In addition, the Native Child and Family Services of Toronto, an Aboriginally governed, provincially designated children`s aid society has served Aboriginal children and families since 1986 (Native Child and Family Services of Toronto, 2010). Ontario also has six, pre-mandated,  First Nations child and family services (Mandell, Clouston Carlson, Fine and Blackstock, 2007). These agencies do not offer the complete range of child welfare services provided by delegated child welfare authorities; they do not have authorization to apprehend children and to apply the Child and Family Services Act (Ontario Child and Family Services Act, 1990). These agencies are listed in table two. Aboriginal pre-mandated agencies have the right to develop their own standards of practice and, like delegated agencies, are funded in accordance with the 1965 Indian Welfare Agreement; they are not given the right through the legislature to be called Children's Aid Societies as this right is retained only for those agencies that are fully delegated (Mandell et al., 2006). 

The Ontario Child and Family Services Act, allows “Indian or native child and family service authority, a band or native community or specified persons or classes of persons, including persons caring for children under customary care” to be exempt from any provision of the Child and Family Services Act (S.223 1990). This clause is meant to allow First Nations child welfare agencies to develop more culturally appropriate services (Mandell, et al., 2006). In accordance with this section of the act, there are child welfare agencies that have agreements with the provincial government that permit them to be exempt from applying portions of the provincial child welfare legislation (Mandell et al., 2007). The Ontario Child and Family Services Act also contains several other Aboriginal-specific provisions. It states the following regarding out-of-home placement decisions related to Aboriginal children: “unless there is a substantial reason for placing the child elsewhere, the court shall place the child with, a member of the child’s extended family, a member of the child’s band or native community or another Indian or native family” (Ontario Child and Family Services Act, 1990, Section 57.4). Although the above legislative clause does not prohibit placements of Aboriginal children outside of their communities it requires that agencies make efforts to place children within their community and to secure a permanency plan for children. There are several options available to child protection workers when placing a child into permanent out-of-home care two of these are: kinship care and customary care. Kinship care is defined as a child welfare placement where the child is placed with a family member. Customary care is specific to aboriginal children and is defined as “the care and supervision of an Indian or native child by a person who is not the child’s parent, according to the custom of the child’s band or native community” (Child and Family Services Act, 1990).

In 2010, the Ontario government funded a review of the Child and Family Services Act. One of the objectives of this report was to review the degree of compliance among children’s aid societies with “the Indian and Native provisions of the Act” (Ontario Ministry of Children and Youth Services, 2010b). The report found that “during the period covered by the review, overall compliance with the Indian and Native provisions for all aspects of the files reviewed was 79%” and that “the lowest overall rate of compliance (at 55%) was with the requirement to explore culturally appropriate permanency options for Crown wards” but that Aboriginal children’s aid societies were much more likely to comply with this provision (p.8). The Ontario Association of Children’s Aid Societies (2010) explains this non-compliance as resulting from a lack of clarity and oversight in the use of customary care as a placement option. The findings of the report also suggest that despite efforts to secure and advance the rights of Aboriginal peoples in Ontario may be compromised by non-compliance to these important developments. Native Child and Family Services of Toronto (2012) also published a report on the ways in which budget constraints and legal agreements affect child welfare service provision to Aboriginal children and families in Toronto. The authors argue for the development of a new funding approach for Aboriginal Children's Aid Societies that allows for manageable caseloads, appropriate administrative supports and sufficient services to assist families with multiple risk factors.

Table 1: Fully Delegated First Nations Children's Aid Societies in Ontario in 2011*

* In addition to these 5 delegated First Nations agencies, Ontario is home to the Native Child and Family Services of Toronto, a provincially designated children`s aid society, which is Aboriginally governed and specializes in working with Aboriginal children and families.

** Anishinaabe Abinoojii Family Services has service agreements to provide prevention and/or protection services to Ochiichagwe’babigo’ining Ojibway Nation, Wabigoon Lake Ojibway Nation, Northwest Angle, Wabauskang, Shoal Lake #39, Shoal Lake #40, Northwest Angle #33, Migisi Sahgaigan, Lac Seul (prevention only).

*** Aroland First Nation is within the jurisdiction of the Children's Aid Society of the District of Thunder Bay. Tikinagan provides child protection services to Aroland under an agreement with the Thunder Bay CAS.

**** Lac Seul First Nation is within the jurisdiction of Kenora-Patricia Child and Family Services. Tikinagan provides child protection services to Lac Seul under an agreement with Lac Seul and Kenora-Patricia.

Table 2: Non-Delegated First Nations Child Welfare Agencies in Ontario in 2011

References:

An Act to Amend the Indian Act. (1920). Retrieved from http://epe.lacbac.gc.ca/100/205/301/ic/cdc/aboriginaldocs/stat/html/1920jl01.

Assembly of First Nations. (2010). History of Indian Residential Schools. Retrieved from http://www.afn.ca/residentialschools/history.html.

Auditor General of Canada. (2008). First Nations child and family services program –Indian and northern affairs Canada. In Auditor General of Canada, Report of the Auditor General of Canada to the House of Commons. Retrieved from http://www.oag-bvg.gc.ca

Commission to Promote Sustainable Child Welfare. (July, 2010). Aboriginal Child Welfare in Ontario: Discussion Paper. Government of Ontario.

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

First Nations Child and Family Caring Society of Canada. (2010). First Nations Child and Family Services Funding. Retrieved from http://www.fncfcs.com/projects/child-welfare-funding.

Gough, P. (2005). Ontario’s Child Welfare System. CECW Information Sheet #31E. Toronto, ON: University of Toronto, Faculty of Social Work. Retrieved from http://www.cecw-cepb.ca/publications/483.

Indian Act, R.S., (1985). c.I-5, S88. Retrieved from: http://laws.justice.gc.ca/en/I-5/

Mandell, D., Blackstock, C., Clouston Carlson, J. & Fine, M. (2006). From Child Welfare to Child, Family and Community Welfare: The Agenda of Canada’s Aboriginal Peoples. In N.Freyomd and G.Cameron (eds). Towards Positive Systems of Child and Family Welfare (p.211-233). Toronto, ON.: University of Toronto Press, Scholarly Publishing Division.

Mandell, D., Clouston Carlson, J., Fine, M., & Blackstock, C. (2007). Aboriginal Child Welfare. In G.Cameron, N. Coady, & G.R. Adams (eds). Moving Towards Positive Systems of Child and Family Welfare (p.115-159). Waterloo, ON: Wilfred Laurier University Press.

Milloy, J. (1999). A National Crime: The Canadian Government and the Residential School System 1879-1986. Winnipeg: University of Manitoba Press.

Native Child and Family Services of Toronto (2012). Our Head's Above Water: Minimizing Risk in Toronto Aboriginal Child Welfare Toronto: Native Child and Family Services of Toronto.

Ontario Association of Children’s Aid Societies. (January 2010). Review of the Child and Family Services Act: Recommendations of the Ontario Association of Children’s Aid Societies. Retrieved from http://www.oacas.org/pubs/index.html.

Ontario Child and Family Services Act, S223a (1990).

Ontario Ministry of Children and Youth Services. (April 14, 2010a). Improving Supports to Aboriginal Children and Youth. Retrieved from http://news.ontario.ca/mcys/en/2010/04/improving-supports-to-aboriginal-children-and-youth.html.

Ontario Ministry of Children and Youth Services. (2010b). Report on the 2010 review of the Child and Family Services Act. Ottawa: ON.

Royal Commission on Aboriginal Peoples. (1996). The report on the Royal Commission on Aboriginal Peoples. Retrieved from http://www.ainc-inac.gc.ca/ap/rrc-eng.asp.

Statistics Canada. (2006). Aboriginal Peoples in Canada in 2006: Inuit, Métis and First Nations, 2006 Census. http://www12.statcan.ca/census-recensement/2006/dp-pd/hlt/97-558/index.cfm?Lang=E.