CHILD PLACEMENT AND THE LEGAL CLAIMS OF FOSTER CAREGIVERS.

• Author: Wiegers, Wanda

1. INTRODUCTION

   Family-based care has been the dominant form of placement for children taken into state care in Canada over the last century. While 47,885 children were reported to be living in foster care in 2011, (1) there have been many signs of a system both in transition and in crisis. (2) Some jurisdictions are experiencing a chronic shortage of families willing to act as foster parents and an overcrowding of children in existing homes. (3) Reports of critical or fatal injuries suffered by children while in foster care have also raised questions as to whether children are safer or better off in foster than in parental care, (4) and criticism of disproportionately high foster care rates for Indigenous children and in some locales, African-Canadian children, has intensified over the past decade. (5) At the same time, more foster caregivers are claiming the right to maintain children in their home or adopt them, prompting one Indigenous scholar to complain of a "foster care scoop". (6) Traditionally, foster parents have been seen only as temporary caregivers, contracted with and paid simply to provide physical care without having legal custody or the authority to decide a child's future. As I will demonstrate in this article, however, this temporary contractual status is increasingly challenged by or at odds with legislative reforms and judicial outcomes in some jurisdictions.

   To date, very little has been written on the full range of legal issues arising from foster care in Canada. (7) I attempt to address this gap by canvassing the rights foster care providers currently have to challenge ministerial or agency decisions to remove children and return them to parents or to place them with kin or other foster or adoptive parents. I do not provide an analysis of all cases involving foster parents and child placement. Rather, I present a mapping or framing of the relevant legal issues and principles found in leading cases in common law provinces, with an emphasis on judicial outcomes in British Columbia, Alberta, Saskatchewan, and Ontario. Canvassing both statutory reforms and court-based challenges, I review rights to seek administrative review of agency or ministerial decisions with respect to child placements and rights to participate in proceedings or seek custody under child protection legislation as well as under other family law-related statutes. There is a complex interplay of statutes, particularly between child custody, adoption, and child protection, with a panoply of differences as one moves across jurisdictions. In addition, I briefly review the possibility of constitutional claims by foster parents under section 7 and section 35 of the Charter (8) through the practice of custom adoption.

   The objectives of this article are largely descriptive: to provide a doctrinal analysis of the leading cases, to illustrate the substantial differences in legislative policy and judicial outcomes across jurisdictions, and to provide some insight into the underlying and competing values or concerns that might explain such differences. In Part II, I review the context for fostering, including the responsibilities, rewards, and trends in the delivery of foster care, which are plausibly linked to the emergence of and continuing pressure for enhanced legal rights. In what follows, I examine the grounds upon which administrative tribunals and courts may favour retention or resumption of care of a child by foster caregivers. I structure this discussion according to the legal avenues available for such challenges, identifying the advantages or disadvantages for foster parents in advancing the different claims.

   The analysis of case law suggests that where foster care providers are able to advance claims to custody or guardianship, they typically rely on attachment or bonding with the child in their care to argue that removal of the child is not in the child's best interests. Given the disproportionate number of Indigenous children in foster care, many such disputes have raised issues regarding the significance of culture, ancestry, or racialized identity relative to that of attachment or bonding in a best interests assessment. (9) When subject to a best interests test, foster caregivers who have established secure longstanding relationships with children are largely successful in their claims. (10) Some child welfare agencies may favour policies recognizing cultural or race-based connections; however, with some notable exceptions, courts in most jurisdictions appear resistant to disrupting attachments that children have formed with their immediate caregivers over a lengthy period of time.

   Yet, the case law survey also suggests that there are other apparently neutral legal categories or concepts that can have a decisive impact by finding that foster parents have or lack standing to even advance a claim. These outcomes depend on questions of statutory interpretation such as: how judges choose to characterize a legislative gap, where the doctrine of parens patriae may be relied upon;(11) or how they choose to characterize a statutory conflict where claims are made outside the scope of child protection statutes. The willingness of judges to rely on these characterizations in addition to assessments of a child's best interests or to construe them narrowly or broadly to favour a particular outcome appears to correlate with a number of factors. Such factors include: the statutory language; the stage of proceeding; the time spent in foster care; deference to the expertise of ministries or agencies and concerns with opportunism or strategic delays; the nature of the child's relationship with other disputants; the child's age, culture, community of origin, and wishes; the availability of openness agreements or access; the contractual status of foster caregivers or their desire to adopt from the outset of placement; and occasionally the views of birth parents. In applying or weighing these factors, however, we see substantial differences in statutory policy and case outcomes between jurisdictions, which I suggest reflects confusion or at least controversy regarding the underlying objectives of child protection. Also visible is increasing complexity, not only due to an increase in the number of potential disputants (including foster caregivers and kin relations) but also because attachment and racially- or culturally-based factors may be interconnected and both may favour one or more parties.

   Of fundamental concern in resolving the scope of foster parent rights is the weight to be given to parental ties and interests, and those of kin relations, both independently and with regard to children's best interests. Where the care of Indigenous or racialized children has been at issue, the resolution of claims by foster care providers has also often had implications for the development of a positive racial identity and for cultural continuity and community survival. A normative evaluation of the many policy issues and options relevant to this subject would require an extensive empirical analysis that is beyond the scope of this article. In the conclusion, I highlight the most significant concerns that emerge from the case law survey, emphasizing the importance of the stage of proceedings and the drawbacks of multiple proceedings where claims by foster caregivers are made. I also briefly address other policy issues and options, including the impact of recent developments by the federal government regarding child welfare for Indigenous children and Indigenous nations and communities. (12)

2. THE SOCIAL CONTEXT OF FOSTER CARE

   As recognized by the Supreme Court of Canada, child protection proceedings frequently involve "already disadvantaged members of society such as single-parent families, aboriginal families and disabled parents". (13) Over a third of substantiated maltreatment investigations involve neglect as the primary category and neglect is significantly correlated with low income and the multiple stressors associated with poverty. (14) In Ontario in 2013, women were identified as the primary caregivers in 90% of all substantiated investigations. (15) In every province and territory, except Prince Edward Island, Indigenous children are overrepresented in the population of children placed in state care, mostly on grounds of neglect. (16) In 2011, almost 50% of children in foster care in Canada were identified as Aboriginal, even though Aboriginal children comprised only 7% of the child population. (17) These rates reflect the long-term destructive impacts of settler colonialism (the loss of traditional territories, political systems, and economies) and assimilationist policies (like residential schools and the Sixties Scoop that displaced traditional parenting practices and exposed children to cultural loss and high rates of abuse) (18) as well as federal funding formulas on reserves that have been found to favour child apprehension over prevention and discriminate on the grounds of race and ethnic ancestry. (19) Recent studies suggest that the overrepresentation of African-Canadian children in care in locales such as Toronto may also be linked to poverty as well as intergenerational trauma arising from colonialism, slavery, and ongoing racism. (20)

   Whereas in past centuries, poor children were indentured as servants or apprentices or housed in poor houses, orphanages, residential schools, and asylums, a preference for formalized family-based care began to emerge in Canada in the late 1800s. In Ontario, foster care was believed to be less costly than institutional care and more likely to reduce the risk of disease, to provide individualized care, and to integrate children in communities. (21) However, as Chen notes, abuse was also more difficult to detect within the private sphere of the family and maintaining visits with parents often proved more difficult as well. (22) While many foster parents have provided loving care...