Child Placement Under The Child and Family Services Act: Does s. 53 Prioritize the Child’s Best Interest?

by Grace Gardner

Introduction

The first paragraph of Article 3 in the Convention on the Rights of the Child, which Canada has abided by since 1991, states that, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” ¹ Regarding the topic of this paper, in order to establish what is the in the best interests of the child, one must look to s. 4 of The Child and Family Services Act (CFSA), which states:

4 If a person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of a child, the person or court must take into account:
(a) the quality of the relationship that the child has with any person who may have a close connection with the child;
(b) the mental, emotional, physical and educational needs of the child and the appropriate care or treatment, or both, to meet those needs;
(c) the child’s cultural and spiritual heritage and upbringing;
(d) the home environment proposed to be provided for the child;
(e) the plans, with respect to the care of the child, of the person to whom it is proposed that the custody of the child be entrusted;
(f) if practicable, the child’s wishes, having regard to the age and level of the child’s development;
(g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and
(h) the effect on the child of a delay in making a decision.²

As it will be discussed later in this paper, this section as well as various other informed opinions imply that it is in the best interests of the child to be placed with an extended family member before they are placed in a foster home. The child’s reaction to being placed in a foster home with people they do not know may be much more severe than their reaction to being placed in the home of a familiar relative. The psychological effects of being put in foster care will take a toll on the child no matter where they are placed, but being placed with a family member would help establish greater possibilities for a healthier lifestyle.

Even though the child’s best interests are acknowledged in both the Convention and the CFSA, statistics have shown that practicing this principle may not always be considered as a priority by the courts. According to the Government of Saskatchewan, 3,565 children were in care as of December 31^st, 2021.³ Out of those children, 60% are placed with an extended family member.⁴ If the language used in s. 53 of the CFSA were adjusted to better suit the child’s best interests, the percentage of foster care children being placed with extended family members would most likely be raised. Section 53 of the CFSA reads:

53 In any case where an officer is arranging residential services for a child or an order is to be made by the court pursuant to subsection 37(1), the officer or court shall, having regard to the best interests of the child:
(a) consider the feasibility of placing the child with a member of the child’s extended family; and
(b) if practicable, attempt to maintain the child in an environment that is consistent with the child’s cultural background.⁵

Comparing this section of the Act to other provincial and federal legislation shows that s. 53 is worded in a way that does not prioritize the child being placed with an extended family member, which has been established as the child’s best interest.

When trying to interpret s. 53 of the CFSA, the Legislation Act ought to be considered. The section of the Legislation Act that is important to note is s. 2-30 which reads:

2‑30(1) In the English version of an enactment:
(a) “shall” shall be interpreted as imperative;
(b) “must” shall be interpreted as imperative; and
(c) “may” shall be interpreted as permissive and empowering.⁶

This section is important because it expresses that when the word “shall” is used in legislation, it is vital that the law is practiced accordingly and exactly how it is read. However, as it will be discussed more thoroughly later in this paper, using words such as “consider” and “attempt” in s. 53 of the CFSA seems to contradict the usage of the word “shall”. Adjusting s. 53 of the CFSA in a way that better aligns with the best interests of the child and keeping the word “shall” in the section will strengthen the section’s alignment with the purpose of the act.

Due to the lack of case law under the new legislation, this paper will mainly focus on legislative analysis, rather than judicial interpretation. While keeping the child’s best interests at the core of the argument, this paper will first analyze the purpose of the CFSA and how the language used in s. 53 ought to be adjusted in order to better align with the purpose. From there, the paper will then argue that the language of s. 53 should also be adjusted in order to better align the child’s best interests that are established in s. 4 of the CFSA. Second, s. 53 of the CFSA will be compared to s. 16 of An Act respecting First Nations, Inuit and Metis children, youth and families, and the benefits of the latter. Finally, a multijurisdictional comparison will be done between Saskatchewan, British Columbia, and Newfoundland and Labrador in order to acknowledge how s. 53 of Saskatchewan’s Act could be adjusted to better suit the child’s best interests. While making final conclusions, I will review the suggested reform that has been discussed throughout the paper and analyze possible outcomes if s. 53 of the CFSA were to be adjusted.

Part I: Saskatchewan’s Child and Family Services Act and Establishing What is in the Child’s Best Interests

As it was briefly mentioned above, in s. 2-30 of the Legislation Act, the word “shall” must “be interpreted as imperative”.⁷ This implies that s. 53 is expressing that it is imperative that a child be placed with a member of their family and that they should be placed in an environment that matches their cultural background. At the forefront, it appears that this section is mainly concerned with preserving the family as much as possible. However, the rest of the language used in the section could be read in a way that contradicts the importance of placing a child with an extended family member. By including expressions like “consider” and “attempt”, the importance of where the child is placed is less evident. If additional language was added alongside of the language that is already used, the priority of placing a child with an extended family member would be more evident.

As defined by the Oxford English Dictionary, to “consider” something is “to view or contemplate attentively, to survey, examine, inspect, scrutinize.”⁸ Even though the possibility of this word being used in a stern tone exists, the section is lacking the sense of priority by only including this word. By using language similar to the federal legislation, which will be discussed in more detail later in the paper, a higher sense of priority would be conveyed. Furthermore, when one looks up the word “attempt” in the Oxford English Dictionary, they will find that it means “To make an effort, to use one’s endeavour to do or accomplish some action”.⁹ Even though the maximum effort should be made, this word could be interpreted in a way that allows the judge to only make a slight effort. The leniency of this section could pull the court away from the importance of the word “shall” and implies that it is justifiable if the court implements this law to their own discretion or convenience. If more stringent wording was used, the court may feel more compelled to ensure that the child is placed with an extended family member.

A. Section 3 – The Purpose of the Act

In doing the analysis of s. 53 in the CFSA, it is important to acknowledge the purpose of the entire Act, which can be found in s. 3. The section reads: “The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner.”¹⁰ Being that the entire purpose of the Act is to preserve the family as much as possible, it is justifiable to say that the language in s. 53 ought to be adjusted in order to better align with this purpose. It should be noted that by including the statement that expresses how all child placement decisions must be decided based on the best interests of the child, it is ensuring that a child would not be placed with a family member if it was not in their best interests. However, to ensure that the family will be kept together as much as possible, s. 53 of the CFSA would need to be adjusted in a way that better prioritizes extended family placement whenever the opportunity is available.

B. Section 4 – Establishing the Child’s Best Interests

Another important section of the CFSA to keep in mind while analyzing s. 53 is s. 4, which discusses the factors to consider when determining the best interests of the child. Section 4 was outlined earlier in this paper; however, the relevant factors relating to extended family placement are the following:

(a) the quality of the relationship that the child has with any person who may have a close connection with the child;
(b) the mental, emotional, physical and educational needs of the child and the appropriate care or treatment, or both, to meet those needs;
(c) the child’s cultural and spiritual heritage and upbringing;
…
(g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity¹¹

Even though it is useful to consider all of the factors that are listed in s. 4, the factors that are outlined above should be highlighted when deciding on the residence placement for a child who has been removed from their home. If, however, a full analysis is done and it is proven that extended family placement is not in the child’s best interests, then the court would proceed with foster home placement. The possibility may arise where it would be in the child’s best interests to be placed with a foster family due to the lifestyle they have already established. A foster family may be in closer proximity to the child’s school, friends, and other important aspects of their life. In this instance, being placed with a foster family may benefit the child more than being placed with an extended family member.

Another important perspective to consider is the possibility of a situation arising where a family member is not willing or able to take the child in. In this instance, a foster family placement would also benefit the child more than an extended family placement. It is important to keep in mind that each analysis should be done on a case-by-case basis, and that by doing so will establish whether or not extended family placement is in the best interest of the child. However, in analyzing the factors that have been listed, it will be acknowledged that if the opportunity is possible, being placed with an extended family member is in the child’s best interest.

i.) Maintaining Close Relationships

The first factor that is listed discusses how the quality of any close relationship that the child has should be taken into consideration. This is an important aspect of the child’s best interests because removing them from close relationships and connections will most likely affect the child in a negative way. This will often go unnoticed if the child fails to express how they are feeling, which may happen if they do not feel comfortable around the new people in their life. As it is discussed by Monique Mitchell in her article, even though a child may need to be removed from their home to ensure their safety, they still experience loss. Even if the child was in an unsafe situation, they still may miss their parents and any other loved one. Mitchell explains it by stating:

Unlike bereaved children who grieve the death of their parents, children in foster care grieve non-death losses of parents, siblings, and other loved ones. Specifically, as a result of their “temporary” placement in foster care, children experience multiple non-death losses: ambiguous loss of family and friends… the loss of community… the loss of identity… and the loss of normalcy.¹²

By prioritizing extended family placement, the child will have better opportunities to keep the relationships they have with their family and anyone else they are close to. Keeping the child around family will ultimately decrease their likelihood of feeling grief and loss.

Robin Sen and Karen Broadhurst have reviewed studies where children in the foster care will often want to be placed with an extended family member but fail to express this wish. They go on to discuss that:

Currently the weight of research evidence suggests that kinship placements promote greater parental contact than other out-of-home placements… with a number of studies reporting that kinship carers tend to display higher levels of commitment in regard to the maintenance and promotion of contact.¹³

As it is suggested by Sen and Broadhurst, being placed with an extended family member will be the child’s best possibility of keeping relationships they have already formed prior to being removed from their home. In acknowledging this, it is justifiable to say that when considering the first factor of s. 4 in the CFSA, ensuring that a child is placed with an extended family member is in their best interest.

ii.) The Mental, Emotional, and Physical Needs of the Child

When looking at the second factor that ought to be considered when trying to establish the child’s best interests, the importance of a child’s physical, emotional, and mental needs is expressed. It is important to consider this factor because depending on the age of the child, if they are taken away from their family it may be difficult to build an emotional connection with foster parents who they do not know. When a child has dealt with trauma in their home, they may not always feel comfortable speaking about it to people who they are not close with. Failing to build the emotional relationship that is needed would affect the child’s mental development and needs. Taking this into consideration, Williams-Mbengue expresses the impact it could have on brain development by stating that:

chronic or extreme adversity, such as extreme poverty, caregiver substance abuse or mental illness, exposure to violence or family hardship without appropriate adult support, can cause excessive amounts of the cortisol hormone to be produced resulting in toxic stress, which disrupts developing brain circuits. This kind of prolonged activation of the stress response systems can not only disrupt the development of brain architecture and other organ systems, but can also increase the risk for stress related disease and cognitive impairment well into the adult years.¹⁴

By ensuring that a child is placed with a family member who they are already familiar with, it would be less challenging for the child to build the emotional relationship that has been discussed. Placing the child with an extended family member would increase the odds of that child having an adult to turn to when a discussion needs to happen about the trauma they have been through.

Decreasing the amount of trauma that the child has endured may also help strengthen the child’s needs that are outlined in the second factor of s. 4. As it is acknowledged in s. 11 of the CFSA, if a child needs to be removed from their home, it is because they have suffered some type of traumatic neglect. In reviewing s. 11, it is justifiable to say that when a child’s safety has been questioned in regard to this section of the Act, odds are that the child has gone through a great deal of personal trauma. Williams-Mbengue suggests that being removed from the family might add on to the already established trauma by stating that “Trauma can be compounded by the removal of children from their families, loved ones, and communities and by adverse experiences in foster care.”¹⁵ By suggesting that being taken away from family may contribute to the trauma a child endures during their lifetime, it is justifiable to state that it would be in the child’s best interest’s to be placed with an extended family member. When placed with a relative, it is less likely that a child will be removed from other relationships that they have already formed.

iii.) The Child’s Cultural and Spiritual Heritage and Upbringing

The third factor that is crucial in regard to extended family placement expresses that it is important to consider the child’s cultural and spiritual heritage and upbringing. As it will be analyzed more thoroughly later in this paper, An Act respecting First Nations, Inuit and Metis children, youth and families establishes the importance of allowing Indigenous children to remain in atmospheres that encourage them to practice their cultural heritage. The priority that is given to this law in the federal legislation should be carried over into all provincial child protection legislation. If extended family placement was similarly prioritized throughout all of the provincial legislation, then the child’s cultural and spiritual heritage would be increasingly ensured. There are various other cultural backgrounds outside of Indigenous ones that ought to be considered when deciding where to place a child. Canada is a diverse country with multiple cultures, so there are other cultures that should be acknowledged in this regard.

Reframing the argument back to the topic of this paper, if the CFSA were to reword the importance of extended family placement, every culture that exists within Saskatchewan would be better prioritized. This is because it is more likely that the child will remain involved in their culture if they are placed with a family member who practices the same cultural beliefs, rather than being placed with a foster family who may practice different beliefs. As it has been discussed, ensuring extended family placement will guarantee that the child will not be taken away from their spiritual or cultural upbringing. Even though this cultural importance is acknowledged in s. 53(b) of the CFSA, the language used does not establish this factor as a priority. By reframing the importance of this factor in a way that is similar to the federal legislation, the priority of extended family placement would be better acknowledged.

iv.) The Importance of Continuity

The final factor that helps establish that extended family placement is in the best interests of the child is the seventh factor that is listed. This factor expresses that it is important to consider continuity in the child’s life and effects that could come from disrupting that continuity. There is a lot of uncertainty when a child is not placed with a family member because it is more likely that they will have multiple foster homes. As it was suggested by Williams-Mbengue:

The longer a child is in placement, the greater the chance that he or she will move from one foster placement to another, placing the child at further risk of negative social and emotional outcomes. Frequent moves mean that the child faces continuing disruption of relationships with friends, siblings and other relatives, coaches, teachers, classmates, religious leaders and others. Children may move from their original schools multiple times during the school year. Frequent changes in caseworkers, judges and legal representation also interfere with child well-being and achievement of a permanent home.¹⁶

By prioritizing extended family placement, there is a greater chance of the continuity being undisrupted for that child. There is a greater chance that an extended family member will know about the lifestyle of that child more than foster parents. Being placed with a family member who is already familiar with the child’s lifestyle will ensure the continuity of that lifestyle, which would ultimately be in the child’s best interests.

As it was mentioned above, there are other factors listed in s. 4 that have not been discussed in this paper, but they would need to be analyzed when determining what type of placement is in the best interests of the child. In a full analysis of s. 4, there may be situations where being placed with an extended family member would not be in the child’s best interests. However, that is why the beginning of s. 53 includes a statement acknowledging that each case should be analyzed “while having regard to the best interests of the child”. ¹⁷ Thus, if it is not in the best interests of the child to be placed with a family member, then it would not happen. However, if the language throughout s. 53 was slightly adjusted in a way that better prioritizes extended family placement when the availability arises, then s. 53 would ultimately better align with the child’s best interests and the purpose of the CFSA.

Part II: Child Placement in An Act respecting First Nations, Inuit and Metis children, youth and families

On January 1, 2020, a federal Act representing Indigenous child protection law came into force. As it is discussed by the Government of Canada, the Act respecting First Nations, Inuit and metis children, youth and families:

• affirms the rights of First Nations, Inuit and Métis peoples to exercise jurisdiction over child and family services,
• establishes national principles such as the best interests of the child, cultural continuity and substantive equality,
• contributes to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples; [and]
• provides an opportunity for Indigenous peoples to choose their own solutions for their children and families. ¹⁸

As it was suggested by Kylee Wilyman, “When Indigenous children are raised apart from their families, they are stripped of their identity, culture, and language. This trauma is then passed down from one generation to the next, contributing to the propagation of the high number of Indigenous children in the system.”¹⁹ With this outlook on the foster care system for Indigenous children, one could adopt the same reasoning to all children who are removed from their home. When a child is taken away from their home, they are being taken away from the life they are familiar with, and the lifestyle they may have come to love. Even though there may be some aspects of the child’s life that need to be adjusted, it is highly likely that there are also aspects that they enjoy and will miss if they are taken away from it. By prioritizing extended family placement, just as the federal legislation does, the child’s chance of being taken away from the lifestyle they are familiar with will decrease.

As it has been discussed, the topic of this paper is that the language in s. 53 of the CFSA ought to be adjusted in order to better align with the child’s best interests. It has also been suggested in this paper that it is usually in the child’s best interests to be placed with an extended family member. Having come to this conclusion, the main suggestion for reform is to word s. 53 in a way that is similar to the language used in s. 16 of the federal legislation. The relevant parts of s. 16 reads:

Priority
16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child’s parents;
(b) with another adult member of the child’s family;
(c) with an adult who belongs to the same Indigenous group, community or people as the child;
(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or
(e) with any other adult.

Placement with or near other children
(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child.²⁰

In reviewing this section, the priority of extended family placement is much more evident than it is in s. 53 of the CFSA.

A. Subsection 1 – Priority

Focusing on the first subsection of the federal legislation, the language used implies how important it is to keep the family together as much as possible. Using phrases such as “is to occur in the following order of priority” or using the word “priority” in the heading acknowledges how much effort ought to be put into placing the child with an extended family member. One adjustment that could be made to s. 53 of the CFSA is including a similar phrase that states that placement options must be considered in a certain order. Furthermore, in order to preserve the family as much as possible, the CFSA could add an option to s. 53 before the other two that are already listed stating that placing the child with one of the parents must be considered first. There may be situations where a child needs to be removed from their primary residence, but that residence may only be with one parent. If s. 53 were to add a statement saying that placement consideration must be done in a specific order, and if an option were added before the existing ones stating that placement with both of the parents’ must be considered, then s. 53 of the CFSA would be worded in a way that better prioritizes extended family placement and preservation of the family, which would ultimately align better with the child’s best interests.

B. Subsection 2 – Placement With or Near Other Children

In the second subsection of s. 16 in the Act respecting First Nations, Inuit and metis children, youth and families, it is important to note the use of the word “must”. When the word “must” is looked at in the dictionary, it is defined as “to express a command, obligation, or necessity; (hence) an obligation, a duty; a compulsion.”²¹ By including this word in the section, it strengthens the priority and ensures that the child’s best interests will be met. It should also be acknowledged that the word “must” is defined in the same way that “shall” is defined in the Legislation Act. Including both of these words in the section would make the priority of extended family placement more evident. Language like this ought to be adopted in the CFSA because as it was discussed earlier, instead of expressing importance, the current language used in s. 53 establishes a higher degree of leniency. The priority of extended family placement would be improved if the word “must” was included before the word “consider” in the first option of s. 53. If the word “must” was also included in the second option, before the word “attempt”, it would imply that the court must put as much effort as possible into maintaining the child’s cultural background. Finally, if a section similar to s. 16(2) was included in s. 53 of the CFSA, the child’s best interests would be better prioritized. By including a subsection that ensures that the child will be kept near their siblings, the priority of preserving the family is better acknowledged.

C. Section 17 – Attachment and Emotional Ties

In analyzing the federal legislation, s. 17 also needs to be taken note of. This section discusses the importance of keeping the child in a location where their attachment and emotional ties to their family will be promoted. The section reads:

17 In the context of providing child and family services in relation to an Indigenous child, if the child is not placed with a member of his or her family in accordance with paragraph 16(1)(a) or (b), to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each such member of his or her family are to be promoted.²²

If the CFSA were to include a similar provision, the child’s best interests would be better prioritized. This section expresses that if extended family placement is not in the best interests of the child, then the child must be placed in a location that will ensure the promotion of continuing the emotional ties and attachment that child has with their family. By including a section similar to this, the child’s best interests will be more evident because it is expressing that even if extended family placement is not possible, the child will still get to maintain the relationships they have already established. In adding a section that allows the child to maintain these relationships regardless of where they are placed, consideration of the factors that were discussed earlier in the paper regarding the best interests of the child will be better acknowledged.

D. The Effectiveness of the Federal Legislation

As it was briefly mentioned above, this legislation is fairly new in Canadian law. With it being so new, there has been a lack of case law that has applied the new legislation. Due to how new the legislation is, it is difficult to gather statistics to show how effective it has been. The federal Indigenous Services Minister Marc Miller has commented on this issue stating that:

This is a process that will be continual throughout the next few years, and the system which is broken will continue to be so for some time, … Each community has different capacities and preparedness, … Some of the most vulnerable will just simply not be, because of issues of capacity, in a position to exercise the whole suite of options that would be available under the law… Change will not come overnight, … The only way to achieve this is to continue to work with our partners through this transition period to make sure the law works for First Nations, Inuit and Metis people, and most importantly, for their children.²³

Even though it has been acknowledged that it may take a few years before Canada will see improvement in this area, it should also be noted that this piece of legislation is a major improvement in child protection law. A piece of legislation that prioritizes the child’s best interests as much as this one does is guaranteed to improve the disheartening statistics that exist today about Canadian Indigenous children in foster care.

Part III: Multi-Jurisdictional Comparison Between Child Placement Laws

Several other provinces have established similar legislation that expresses the importance of placing the child into extended family care, just as the federal Indigenous legislation has. The language that has been used in multiple jurisdictions may also lend some influence on how s. 53 of the CFSA ought to be adjusted. By putting more priority into the list of placement options, as it is done in other jurisdictions and the federal legislation, the child’s best interests are better acknowledged and will be considered in a more serious manner. If all provincial child placement laws were worded in a way that acknowledges extended family placement better, it would seem that the best interests of the child would be better prioritized across the country. Even though the topic of this paper is a provincial matter, as a country it is our job to enact laws that serve the child’s best interests. As it was mentioned at the beginning of this paper, the Convention on the Rights of the Child discusses the importance of keeping the child’s best interests in mind. By ratifying the Convention in 1991, Canada has agreed to adhere to the principles that are discussed within it.

A. British Columbia – The Child, Family and Community Service Act

The first Act to consider is British Columbia’s Child, Family and Community Service Act. It discusses child placement in s. 71, which states:

Out-of-home living arrangements
71 (1) When deciding where to place a child, the director must consider the child’s best interests.
(2) The director must give priority to placing the child with a relative or, if that is not consistent with the child’s best interests, placing the child as follows:

(a) in a location where the child can maintain contact with relatives and friends;
(b) in the same family unit as the child’s brothers and sisters;
(c) in a location that will allow the child to continue in the same school.

(3) If the child is an Indigenous child, the director must give priority to placing the child as follows:

(a) with the child’s extended family or within the child’s Indigenous community;
(b) with another Indigenous family, if the child cannot be safely placed under paragraph (a);
(c) in accordance with subsection (2), if the child cannot be safely placed under paragraph (a) or (b) of this subsection. ²⁴

In reviewing this section of the act, the way it is worded implies how important extended family placement is. The first aspect of the section that exemplifies the importance is the second subsection. Instead of including it as one of the options, the section states that priority must be given to extended family members first, and then lists other options if being placed with a family member is unavailable for that child.

Not only does including this in the opening statement imply how important extended family member placement is, but so does the language used in this section. As it was discussed above, using more stringent language such as “must”, and “priority” significantly strengthen the importance of extended family placement. If s. 53 of the CFSA were to add similar language, the section would then better prioritize extended family placement, and ultimately, the best interests of the child. Another suggestion that would strengthen s. 53 of the CFSA could be including extended family placement in the beginning of the section, and then listing the other options following it, similar to how it is worded in s. 71(2) of the Child, Family and Community Service Act.

The second aspect of the British Columbia legislation that could influence suggested reform to s. 53 of the Saskatchewan legislation are the options that are listed s. 71(2) of British Columbia’s Act. In this section, it outlines that priority must be given to keeping the family together as much as possible. By acknowledging that the child must be placed in a location where they can maintain contact with their relatives, siblings and friends, the section is ensuring the continuity in the child’s life and expresses the importance of maintaining close relationships. Considering the fact that these are two factors that must be considered while establishing the best interests of the child, adding similar options to s. 53 of the CFSA would strengthen any argument stating that s. 53 values the child’s best interest and preservation of the family as much as possible.

The final aspect in s. 71 of the British Columbia legislation that should be taken note of is s. 71(3). In this subsection, the importance of placing the child in a location that prioritizes the continuance of their cultural upbringing is evident. By dedicating a whole subsection to where Indigenous children must be placed, the province is acknowledging how important it is to ensure that the child’s culture is encouraged and supported throughout their life. The CFSA fails to acknowledge the importance of maintaining the cultural background of the child. Even though it is mentioned in s. 53 of the CFSA, the importance becomes less evident because of the placement and language used. To strengthen the acknowledgement of maintaining the child’s cultural heritage, one suggestion would be to create a separate subsection for it, and add words that imply how important it is, such as “must” and “priority”.

B. Newfoundland and Labrador – The Children, Youth and Families Act

The other legislation that s. 53 of the CFSA will be compared to is Newfoundland and Labrador’s Children, Youth and Families Act. Child placement is discussed in s. 65, which states:

Placement considerations
65. (1) The placement of a child or youth shall be conducted in a manner which is least disruptive to the child or youth and recognizes the importance of placement with his or her siblings and contact with his or her parents and kin.
(2) A manager or social worker shall first consider placement of a child or youth with kin and, where that is not in the best interests of the child or youth, the manager or social worker shall place the child in a foster care placement.
(3) Notwithstanding subsection (2), where a child is an Indigenous child or a youth is an Indigenous youth, a manager or social worker shall first consider placing the Indigenous child or Indigenous youth with kin within his or her community or where that is not in the best interests of the Indigenous child or Indigenous youth, consider placing him or her

(a) with a non-relative foster parent with the same cultural background within the Indigenous child’s or Indigenous youth’s community; or
(b) with kin outside the Indigenous child’s or Indigenous youth’s community.

(4) Where a manager or social worker is satisfied that an Indigenous child or an Indigenous youth cannot be placed in accordance with subsection (3), the Indigenous child or Indigenous youth shall be placed in a foster care placement that supports the Indigenous child’s or Indigenous youth’s connection with his or her culture, heritage, traditions, community, language and spirituality.²⁵

The first aspect of s. 65 that ought to be acknowledged is the first subsection. Even though suggestions have been given throughout this paper about how s. 53 of the CFSA could be adjusted, s. 65 of Newfoundland and Labrador’s legislation also lends itself as another example. By stating in the first subsection how important it is to maintain the family relationships as much as possible, it implies that the province considers the preservation of the family as its main priority. One suggestion that would improve s. 53 of the CFSA would be to add a subsection right at the beginning that acknowledges the importance of placing the child with an extended family member, so that contact with the rest of their family is encouraged.

Another aspect of s. 65 that ought to be acknowledged is the second subsection. The importance of placing the child with an extended family member is evident in this section because there seems to be a lack of lenient language used. It implies that priority must be given to the kin first, and then if this consideration is not in the best interests of the child, then they may be placed in foster care. Not only does the language imply how important extended family placement is, but how it is laid out in the section also implies it. By acknowledging the importance of preserving the family in the first subsection, and then reiterating the importance in the second subsection by prioritizing kinship placement, the section has shown that the best interests of the child must be given a lot of consideration. If s. 53 of the CFSA were to reframe the child placement considerations in a way that similarly expresses the importance in a more specific tone, just as s. 65 in Newfoundland and Labrador’s legislation does, then the child’s best interests would be better acknowledged.

The final aspect of s. 65 that should be noted is the fourth subsection. This subsection states that if an Indigenous child cannot be placed with any of the suggestions given in subsection three, then the child must be placed in a foster home that supports their cultural heritage and practices. This is an important subsection because it states that if placement with an extended family member or with their Indigenous community is unavailable for the child, the importance of their cultural heritage and practices are still relevant and must be ensured. If a subsection was added to s. 53 of the CFSA that acknowledged the importance of the child’s cultural and spiritual upbringing, regardless of whether extended family placement was possible for them, then the child’s best interests would be better prioritized.

Conclusion

The purpose of the CFSA is to offer services to children who are in need of protection. These services are supposed to support the well-being of the child and are supposed to be designed in a way that promotes the preservation of the family as much as possible. The Act acknowledges that keeping the family together as much as possible is the greatest priority. However, this priority does not carry over into the placement considerations that are expressed in s. 53. As it has been discussed throughout this paper, it is usually considered as the child’s best interests to be placed with an extended family member once they are removed from their home. In order to align more with the purpose of the Act, as well as better align with the child’s best interests, this paper argues that s. 53 must be adjusted.

There have been multiple suggestions that have been given throughout this paper about ideas that could strengthen s. 53 of the CFSA, all of which have been taken from other pieces of legislation. To conclude, this paper will summarize the suggestions that have been given and the potential outcomes if these changes were made. The first suggestion that was made included adding more stringent language throughout s. 53. If more stringent wording was used, as it is in the federal legislation, then the vitalness of extended family placement would more evident. The language that has been suggested are words such as “must” and “priority”. Another suggestion that was taken from the federal legislation was including a phrase that states that the placement considerations must be done in a specific order. In doing this, the section would be interpreted in a way that acknowledges extended family placement as its top priority, which would mean that the child’s best interests are of top priority as well. The final major suggestion from the federal legislation that gets discussed in the paper is including a subsection that states that if extended family placement is not available for that child, then the child will be placed in a location that promotes the continuity of the attachment and emotional ties to the family. By including a section like this, the CFSA will contribute to healthier lifestyles for the children who are put into care.

This paper also recommends that the legislation used in British Columbia and Newfoundland and Labrador lends themselves as examples as to how s. 53 of the CFSA could improve. The British Columbia legislation lends itself as an example in regard to the options it provides for placement considerations. This paper suggests that s. 53 of the CFSA should include options that ensure that the child will be placed in a location that promotes the continuity of their relationships with family and friends. Furthermore, this paper suggests that an option be added that ensures that the child will be placed in the same house as their brothers and sisters. By including these options, preservation of the family and the child’s best interests will be considered as a higher priority in s. 53 of the CFSA. Finally, this paper recommends that s. 53 of the CFSA includes an entire subsection dedicated to the placement of Indigenous children, just as the British Columbia legislation does. By separating this from the rest of the options, it displays that encouragement of cultural heritage must be considered as priority in its own sense. In analyzing s. 65 of Newfoundland and Labrador’s legislation, this paper argues that s. 53 of the CFSA ought to be reframed in a way that mirrors the language that is used in Newfoundland’s legislation, because it would convey a more specific and stern tone. The last subsection that is analyzed in Newfoundland and Labrador’s legislation is the fourth one. This paper argues that a similar subsection ought to be added to s. 53 of the CFSA because acknowledging that the child’s cultural heritage must still be encouraged, even if extended family placement is not an option, ultimately promotes the child’s best interests.

If s. 53 were adjusted in a way that better prioritizes extended family placement, the CFSA would benefit as a whole because it would better align with the Act’s purpose set out in s. 3 and the child’s best interests outlined in s. 4. Furthermore, if this piece of legislation were adjusted in the ways that have been discussed throughout this paper, then the CFSA would adhere more to the child’s best interests, which would ultimately align better with the Convention that our country has abided to. Even though Canada made significant progress when the federal legislation came into force, there is still a significant amount of work that needs to be done in the provincial legislation. By reframing the child placement considerations in a way that resembles the federal legislation, the child’s best interests would be better adhered to.

BIBLIOGRAPHY

Legislation

An Act respecting First Nations, Inuit and Metis children, youth and families, SC 2019, c 24.

Child, Family and Community Service Act, [RSBC 1996], 46.

Child and Family Services Act, SS 1989-90, c C-7.2.

Children, Youth and Families Act, SNL 2018, c-12.3.

Legislation Act, SS 2019, c L-10.2.

Secondary Material

Alessandra Carneiro “Number of children in foster care too high, Sask. NDP and FSIN say”, CTV News (5 June 2020) online.

Attempt. 2022. In OED.com. online: English Oxford Dictionary (15 March 2022).

Consider. 2022. In OED.com. online: English Oxford Dictionary (15 March 2022).

Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3 [accessed 27 March 2022].

Government of Canada, “Reducing the number of Indigenous children in care” (17 January 2022), online: The Government of Canada.

Government of Saskatchewan, “Putting Children First”, online: Saskatchewan.ca.

Kylee Wilyman, “A Nation of Hollow Words: An Act Respecting First Nations, Inuit and Metis Children, Youth and Families” (22 June 2020), online: Law Society of Saskatchewan.

Monique B. Mitchell, ““No One Acknowledged My Loss and Hurt”: Non-death Loss, Grief, and Trauma in Foster Care” (5 May 2017) at 4, online (pdf): SpringerLink.

Must. 2022. In OED.com. online: English Oxford Dictionary.

Nina Williams-Mbengue, “The Social and Emotional Well-Being of Children in Foster Care” (2016) at 2, online (pdf): ncsl.

Robin Sen and Karen Broadhurst, “Contact between children in out-of-home placements and their family and friends networks: a research review” (15 February 2011), online.

Terry Pedwell, “New Indigenous child-welfare law takes effect, but minister says change will be slow” (2 January 2020), online: Global News.

Endnotes