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AN ACT FOR STRONG FAMILIES BUILDING STRONGER COMMUNITIES

Bill 22

AN ACT FOR STRONG FAMILIES
BUILDING STRONGER COMMUNITIES

Chapter 24

(Assented to December 11, 2018)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Amends RSA 2000 cC‑12

1   The Child, Youth and Family Enhancement Act is amended by this Act.

 

2   Section 1 is amended

                            (a)    in subsection (1)

                                  (i)    by repealing clause (a);


                                 (ii)    by adding the following after clause (j.2):

                                    (j.3)    “First Nation Individual” means an Indian as defined in the Indian Act (Canada);

                                (iii)    by repealing clause (m);

                                (iv)    by adding the following before clause (m.1):

                                (m.01)    “Indigenous” includes First Nations, Metis and Inuit;

                           (b)    in subsection (3)(a)(ii)(C) by striking out “domestic violence” and substituting “family violence”.

 

3   The following is added after section 1:

Guiding principles

1.1   This Act must be interpreted and administered in accordance with the following principles:

                                 (a)    the best interests, safety and well‑being of children are paramount;

                                 (b)    the well-being of families and communities is crucial to the well-being of children;

                                 (c)    children benefit from

                                        (i)    lasting relationships with people with whom they have connections, including family, friends, caregivers and other significant individuals,

                                      (ii)    connections with their culture and cultural communities and opportunities to form those connections, and

                                     (iii)    permanent, formalized ties with people who care about them;

                                 (d)    Indigenous people should be involved with respect to the planning and provision of services to and decisions respecting Indigenous families and their children.

 

4   Section 2 is repealed and the following is substituted:

Matters to be considered

2(1)  If a child is in need of intervention, a court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider the following as well as any other relevant matter:

                                 (a)    the child’s family has the primary responsibility for the safety and well‑being of the child and the family’s well‑being should be supported and preserved;

                                 (b)    if the child is capable of forming an opinion, the child’s opinion should be taken into account;

                                 (c)    in the case of an Indigenous child, the importance of respecting, supporting and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions;

                                 (d)    the benefits to the child of lasting relationships with the people with whom the child is connected, including family, friends, caregivers and other significant individuals;

                                 (e)    the benefits to the child of connections with the child’s culture and cultural communities and opportunities to form those connections;

                                 (f)    the child’s race, spiritual beliefs, colour, gender, gender identity, gender expression, age, ancestry, place of origin, family status, sexual orientation and any disability the child may have;

                                 (g)    the importance of stability, permanence and continuity of care and relationships to the child’s long‑term safety and well‑being;

                                 (h)    any decision concerning the removal of the child from the child’s family should take into account the risk to the safety, security or development of the child if the child remains with the family, is removed from the family or is returned to the family;

                                  (i)    subject to clause (h), if the child has been exposed to family violence within the child’s family, intervention services should be provided to the family in a manner that supports family members and prevents the need to remove the child from the custody of an abused family member;

                                  (j)    any decision concerning the placement of the child outside the child’s family must include a plan to address the child’s need for permanent, formalized ties to people who care about the child and must take into account

                                        (i)    the benefits to the child of a placement within the child’s extended family, or with persons who have a significant relationship with the child,

                                      (ii)    the benefits to the child of a placement within or as close as possible to the child’s home community,

                                     (iii)    in the case of an Indigenous child, the benefits to the child of a placement where the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved,

                                     (iv)    the benefits to the child of a placement where the child’s familial, cultural, social, linguistic and spiritual heritage are valued as central to the child’s safety, security and development, and

                                       (v)    the mental, emotional, spiritual and physical needs of the child and the child’s mental, emotional and physical stage of development;

                                 (k)    in the case of a child who has a disability, planning for the care of the child should address the need for resources and supports adequate to the unique needs of the child;

                                  (l)    in the case of a youth who is being provided with care under this Act, the plan for the care of the youth should address the youth’s need for preparation for the transition to independence and adulthood;

                                (m)    there should be no unreasonable delay in making or implementing a decision respecting the child.

(2)  Nothing in subsection (1) shall be interpreted as derogating from the obligation to report a child in need under section 4.

 

5   Section 52 is amended

                            (a)    by adding the following after subsection (1):

(1.01)  Notwithstanding any other enactment, a person may not apply to any court to be appointed as a guardian of a child who is in the custody of a director, or is the subject of a temporary guardianship order or a permanent guardianship agreement or order, except under this Act.

                           (b)    by repealing subsection (1.3) and substituting the following:

(1.3)  If an applicant has reason to believe that the child is an Indigenous child, the application under subsection (1) must include a plan, made in accordance with the regulations, that addresses how the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.

 

6   Section 53 is amended

                            (a)    in subsection (1) by striking out “cultural connection”;

                           (b)    by adding the following after subsection (1):

(1.1)  In addition to serving notice on the persons listed in subsection (1), if the child is a First Nation Individual or a member of a band, the applicant shall serve notice of the nature, date, time and place of the hearing of the application under section 52 not less than 30 days before the date of the hearing on the band or bands identified by a director as the band or bands of which the child is a member or is entitled to be a member.

                            (c)    in subsection (2)

                                  (i)    in clause (a) by striking out “cultural connection”;

                                 (ii)    in clause (c) by adding “any band or” after “service on”.

 

7   The following is added after section 53:

Band participation in proceedings

53.1(1)  A band that is required to be served with notice of an application under section 53(1.1) may attend Court the first time the matter is heard in Court and may make submissions to the Court regarding the band’s participation in the proceedings.

(2)  In any proceedings before the Court relating to the application, a band that is required to be served under section 53(1.1) and that attends Court the first time the matter is heard in Court may

                                 (a)    appear,

                                 (b)    be represented by a lawyer,

                                 (c)    make representations to the Court, and

                                 (d)    if the Court grants leave, and subject to any conditions the Court may impose, take further part in the proceedings.

(3)  If a band is served in accordance with section 53(1.1) and does not attend Court the first time the matter is heard in Court, no further notice to the band is required, and the Court may proceed to hear the application if the Court considers it to be in the best interests of the child to do so.

(4)  A band that makes submissions to the Court regarding the band’s participation in the proceedings may appeal the Court’s decision referred to in subsection (2)(d) to the Court of Queen’s Bench.

 

8   Section 55(1) and (2) are repealed and the following is substituted:

Consent to guardianship

55(1)  A private guardianship order shall not be made without the consent in the prescribed form of

                                 (a)    the guardian of the child, and

                                 (b)    the child, if the child is 12 years of age or older.

(2)  Notwithstanding subsection (1), the Court may make an order dispensing with the consent of

                                 (a)    the guardian of the child, or

                                 (b)    the child,

if the Court is satisfied that it is in the best interests of the child to do so.

 

9   Section 56(2) is amended by striking out “and” after clause (c), by adding “and” after clause (d) and by adding the following after clause (d):

                           (e)    any other person that the Court directs.

 

10   Section 56.1 is repealed.

 

11   Section 58.1 is amended

                            (a)    in clause (b) by adding “, permanence” after “stability”;

                           (b)    in clause (c) by adding “, spiritual” after “emotional”;

                            (c)    in clause (d) by striking out “social and religious” and substituting “social, linguistic and spiritual”;

                           (d)    by repealing clause (g) and substituting the following:

                                 (g)    in the case of an Indigenous child, the importance of respecting, supporting and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions.

 

12   Section 63 is amended

                            (a)    by repealing subsections (1)(f) and (2)(f) and substituting the following:

                                 (f)    if the applicant has reason to believe that the child is an Indigenous child, a plan, made in accordance with the regulations, that addresses how the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.

                           (b)    by repealing subsection (3)(e) and substituting the following:

                                 (e)    in the case of an applicant who is not a step‑parent of the child, if the applicant has reason to believe that the child is an Indigenous child, a plan, made in accordance with the regulations, that addresses how the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.

 

13   Section 75(1)(c)(iv) is amended by striking out “Indian”.

 

14   Section 81 is repealed.

 

15   Section 105.71 is repealed and the following is substituted:

Definitions

105.71   In this Part,

                                 (a)    “action” means action as defined in the Alberta Evidence Act;

                                 (b)    “business day” means a day other than a Saturday or a Sunday or other holiday;

                                 (c)    “designated individual” means an individual designated under section 105.771(1);

                                 (d)    “serious injury”, in respect of a child, means

                                        (i)    a life‑threatening injury to the child, or

                                      (ii)    an injury that may cause significant impairment of the child’s health.

 

16   Sections 105.72 and 105.73 are repealed.

 

17   Section 105.74 is repealed and the following is substituted:

Director’s duty

105.74   When a director becomes aware of

                                 (a)    an incident giving rise to a serious injury to or the death of a child that occurred while the child was receiving intervention services, or

                                 (b)    an incident referred to in section 105.771(1)(b)

the director must, as soon as practicable, report the incident to the Minister.

 

18   Sections 105.75, 105.76 and 105.77 are repealed.

 

19    Section 105.771 is repealed and the following is substituted:

Review by designated individual

105.771(1)  A director may, in writing, designate individuals to review

                                 (a)    incidents giving rise to the serious injury to or death of a child that occurred while the child was receiving intervention services, and

                                 (b)    any other incident that, in the opinion of the director, is a serious incident and that occurred in respect of a child while the child was receiving intervention services.

(2)  A designated individual must be

                                 (a)    an individual employed in the public service of the Province, or

                                 (b)    an individual to whom the director has delegated authority under section 121(4).

(3)  A designated individual must provide the director with a report on a review conducted under subsection (1) that includes the designated individual’s findings and recommendations, if any, within one year after the day on which the incident reviewed occurred.

(4)  The Minister may specify a longer period for the provision of a report under subsection (3) if the Minister is satisfied that extenuating circumstances exist.

(5)  On receiving a report under subsection (3), the director shall provide any findings and recommendations included in the report to the Minister.

 

20   Sections 105.78 to 105.791 are repealed and the following is substituted:

Designated individual must not give evidence

105.78   A designated individual must not give or be compelled to give evidence in an action in respect of any matter coming to the designated individual’s knowledge in the exercise of powers and the performance of duties and functions under this Part, except in a prosecution for perjury.

Communications privileged

105.79   The following information, records and reports are privileged and not admissible in evidence in an action, except in a prosecution for perjury:

                                 (a)    anything said, any information supplied or any record produced during a review under section 105.771(1) by a designated individual;

                                 (b)    any report referred to in section 105.771(3).

Protection from liability

105.791(1)  Subject to subsection (2), no action lies or may be commenced or maintained against a designated individual in respect of anything done or omitted to be done in the exercise or intended exercise of any power under this Part or in the performance or intended performance of any duty or function under this Part.

(2)  Subsection (1) does not apply to a designated individual in relation to anything done or omitted to be done by the designated individual in bad faith.

 

21   Section 105.792 is repealed.

 

22   The following is added before section 105.793:

Public reporting of serious injury,
death or incident

105.7921   Subject to sections 126 and 126.1, the Minister shall publicly report

                                 (a)    an incident giving rise to the serious injury to or death of a child that occurred while the child was receiving intervention services, or

                                 (b)    an incident referred to in section 105.771(1)(b)

within 4 business days after being notified of the incident under section 105.74.

 

23   Section 105.793 is repealed and the following is substituted:

Publication of statistics, findings, recommendations

105.793   Subject to sections 126 and 126.1, the Minister shall publish the following information on the Minister’s department’s website and shall update the information at least once a year:

                                 (a)    statistical data about children who are receiving or have received intervention services;

                                 (b)    statistical data about

                                        (i)    incidents giving rise to serious injuries to and deaths of children that occurred while the children were receiving intervention services, and

                                      (ii)    incidents referred to in section 105.771(1)(b);

                                 (c)    findings and recommendations provided to the Minister under section 105.771(5);

                                 (d)    the response of the Minister’s department to recommendations in a report made by the Child and Youth Advocate under section 15 of the Child and Youth Advocate Act, if the recommendations relate to this Act or the administration of it;

                                 (e)    the response of the Minister’s department to recommendations in a report made under section 53 of the Fatality Inquiries Act, if the recommendations relate to this Act or the administration of it;

                                 (f)    the response of the Minister’s department to recommendations made in any other report specified in the regulations made under section 131(2)(ss), if the recommendations relate to this Act or the administration of it.

 

24   The following is added before section 105.8:

Financial assistance for children formerly
under permanent guardianship

105.795(1)  A director may, in accordance with the regulations, provide financial assistance in respect of a child who was the subject of a permanent guardianship agreement or order to

                                 (a)    a person who is appointed a guardian of the child under a private guardianship order,

                                 (b)    a person who adopts the child if, immediately before the adoption order was made,

                                        (i)    the child was the subject of a permanent guardianship agreement or order, or

                                      (ii)    the person was a guardian of the child under a private guardianship order,

                                      or

                                 (c)    a person who becomes a guardian of the child, or adopts the child, after a guardian is appointed as referred to in clause (a) or the child is adopted as referred to in clause (b).

(2)  If a guardian or adoptive parent referred to in subsection (1)(a), (b) or (c) is unable or unwilling to continue to care for the child, a director may, in accordance with the regulations, provide financial assistance to an adult person who is caring for the child and who has applied to a court for guardianship of the child or to adopt the child.

(3)  The director may review the financial assistance from time to time and may vary or terminate the financial assistance in accordance with the regulations.

 

25   The heading before section 107 is amended by striking out “Indian” and substituting “First Nation”.

 

26   Section 120 is amended in subsection (2)(f.1) by striking out “section 56.1 or 81” and substituting “section 105.795”.

 

27   Section 121 is repealed and the following is substituted:

Delegation

121(1)  The Minister may delegate to any person or government any power, duty or function of the Minister under this Act.

(2)  The Minister may delegate to any person or government

                                 (a)    any power, duty or function of a director under this or any other Act, or

                                 (b)    any power, duty or function conferred or imposed on a director by a court,

including, without limitation, the function of receiving reports under section 4 or 5 and any power, duty or function that involves a director forming an opinion.

(3)  Subsection (1) does not apply

                                 (a)    to any power or duty of the Minister to make regulations as defined in the Regulations Act, or

                                 (b)    to the power of the Minister under subsection (2) to delegate a power, duty or function of a director.

(4)  A director may delegate to any of the following any power, duty or function of the director referred to in subsection (2):

                                 (a)    a person employed or engaged in the administration of this Act;

                                 (b)    a foster parent in respect of a particular child;

                                 (c)    a person who is providing care to a child in respect of that child;

                                 (d)    any other person or any government.

(5)  A delegation under subsection (1) or (4) may include the power to subdelegate.

(6)  A delegation under subsection (2) may include the power to subdelegate the director’s powers.

(7)  The Minister or a director is authorized to receive any authority delegated to the Minister or director by a government or child welfare authority relating to a child who is in the custody or under the guardianship of that government or authority.

 

28   Section 131 is amended

                            (a)    in subsection (1)

                                  (i)    by adding the following after clause (e.1):

                                 (e.11)    respecting notice to bands under section 53 and band participation in proceedings as provided for under section 53.1;

                                 (ii)    by repealing clause (e.3);

                           (b)    in subsection (2)

                                  (i)    by repealing clause (j);

                                 (ii)    in clause (hh) by striking out “sections 56.1” and substituting “sections 105.795”;

                                (iii)    by repealing clause (rr) and substituting the following:

                                      (rr)    respecting the contents of plans for the purposes of sections 52 and 63;

 

29   The heading to Part 5 is amended by adding Review,before Transitional”.

 

30   The following is added before section 132:

Review

131.2(1)  In this section, “review committee” means the committee appointed under subsection (2).

(2)  At least once every 5 years, a comprehensive review must be undertaken of this Act by a committee appointed by the Lieutenant Governor in Council.

(3)  The review committee must be composed of

                                 (a)    one or more persons representative of

                                        (i)    Indigenous communities,

                                      (ii)    guardians and caregivers of children, and

                                     (iii)    providers of services to children and families,

                                      and

                                 (b)    one or more members of each caucus represented in the Legislative Assembly.

(4)  The review committee must submit to the Minister a report that includes any amendments recommended by the committee within one year after commencing its review.

(5)  On receiving a report under subsection (4), the Minister shall lay the report before the Legislative Assembly if it is then sitting or, if it is not then sitting, within 15 days after the commencement of the next sitting of the Legislative Assembly.

(6)  The first review must commence within 5 years after the day this section comes into force.

(7)  Each subsequent review must commence within 5 years after the day the report on the previous review was required to be submitted.

 

31   Section 134 is repealed.

 

32   The following sections are amended by striking out “survival” wherever it occurs and substituting “safety”:

section 1(2);
section 3.1(3)(d);
section 8(1)(b);
section 9(b);
section 16(1);
section 17(b);
section 18(1)(b);
section 28(1)(b);
section 31(1)(b);
section 34(1)(b);
section 57.2.

 

33   The following sections are amended by striking out “aboriginal” wherever it occurs and substituting “Indigenous”:

section 56(1.2);
section 57.01;
section 70(2.1);
section 71.1;
section 74.4(1).

 

34   The following sections are amended by striking out “cultural connection”:

section 57.01(a);
section 71.1(1)(a).

 

35   The following sections are amended by striking out “an Indian” wherever it occurs and substituting “a First Nation Individual”:

section 57.01(b);
section 63(1)(a)(v) and (2)(a)(iii);
section 67(1) and (2);
section 71.1(b);
section 73.1(4)(b);
section 74(1)(d);
section 107(1) and (3).

Consequential amendments

36   The Family Law Act is amended in section 23 by adding the following after subsection (5):

(5.1)  If a child is in the custody of a director under the Child, Youth and Family Enhancement Act or is the subject of a temporary guardianship order or a permanent guardianship agreement or order under the Child, Youth and Family Enhancement Act, a person may not apply to be appointed a guardian of the child under this Act.

Transitional

37(1)  Notwithstanding the coming into force of an amendment to the Child, Youth and Family Enhancement Act enacted by section 5, 6, 7, 8 or 9 of this Act, any proceeding commenced but not fully disposed of under the Child, Youth and Family Enhancement Act or another enactment before the coming into force of that amendment is not affected by that amendment and the proceeding shall be continued and disposed of as though that amendment had not come into force.

(2)  Notwithstanding the coming into force of the amendment to the Family Law Act enacted by section 36 of this Act, any proceeding commenced but not fully disposed of under the Family Law Act before the coming into force of that amendment is not affected by that amendment and the proceeding shall be continued and disposed of as though that amendment had not come into force.

Coming into force

38   This Act comes into force on February 28, 2019.