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Representing Children in a Multicultural Context

Representing Children in a Multicultural Context. Office of the Children’s Lawyer Toronto, Ontario, Canada Lucy McSweeney and Katherine Kavassalis Presentation to the 6 th World Congress on Family Law and Children’s Rights, Sydney, Australia – March 18 th , 2013. Canada.

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Representing Children in a Multicultural Context

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  1. Representing Children in a Multicultural Context Office of the Children’s Lawyer Toronto, Ontario, Canada Lucy McSweeney and Katherine Kavassalis Presentation to the 6th World Congress on Family Law and Children’s Rights, Sydney, Australia – March 18th, 2013

  2. Canada • Consists of 10 provinces and 3 territories • Is the second largest country in the world by total land area • Has a total population of approximately 35 million • Is a constitutional democracy and Queen Elizabeth II serves as its current head of state • Has two official languages (French and English) • Has recognized over 630 Aboriginal communities that are composed of First Nations, Métis, and Inuit peoples

  3. The Canadian Constitution • Guarantees equal protection of the law to all regardless of gender, race, colour, ethnicity, nationality, religion, age, sexual orientation, gender identity, mental or physical disability. • Aboriginal and treaty rights of Aboriginal peoples affirmed • Multicultural heritage of Canadians affirmed • French and English equal language rights 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  4. Map of Canada • To be added with animation that highlights Ontario and possibly zooms in on the province

  5. Ontario • Ontario is the mostpopulous province in Canada (total population of almost 13 million) • Ontario has roughly the same land mass as Victoria and New South Wales or France and Germany combined • Ontario’sclimate ranges frommoderate continental to sub-arctic • Ontario’s population continues to growsteadily • Over 80% of Ontarians live in cities • Many rural Northerncommunities are veryremote and are oftenonly accessible by air • 46% of Ontario’s population lives in the Greater Toronto Area (Toronto Area) 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  6. Diversity in Ontario • 23% of Ontario’s total population and 47% of those living in the Toronto Area consider themselves to be members of a visible minority group • More than 25% of Ontarians do not have French or English as a first language • There are 116 different languages spoken in the Toronto area with the top three being English, Italian and Chinese • Only 56% of Toronto area residents speak English as their first language

  7. Recent Immigration Trends • Canada is home to people from all around the world • Canada resettles more than 1 in 10 of the world’s refugees • Ontario received half of all recent immigrants to Canada (approximately 250,000 persons/year) • Over 25% of Ontarians were born outside of Canada • Over 40% of Canada’s recent immigrants have settled in the Toronto area

  8. Diversity in the Legal and Clinical Professions in Ontario • Historically not representative of the cultural diversity of the province • Lack of First Nations family law lawyers and social workers • Increasing diversity among minority groups in young lawyers (aged 25-34) • Only 2% in 1981 • 20% as of 2006 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  9. Office of The Children’s Lawyer • An independent law office operating within the Ministry of the Attorney General • Children’s Lawyer is appointed by Order-in-Council • Provides lawyers and social workers to assist the courts across Ontario in identifying the best interests of children in Child Protection and Custody/Access proceedings • Hires, supervises and trains these lawyers and social workers in their work with children • Training includes cultural competency professional development

  10. Legal Personal Rights Department Clinical Department Legal Property Rights Department 400 Legal Agents 250 Clinicians (primarily Social Workers) Who We Are The Office of the Children’s Lawyer (Toronto) Supervises Supervises Supervises 100 Legal Agents All across Ontario 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  11. 81 In-house Staff : 13 In-house Personal Rights Lawyers 11 In-house Property Rights Lawyers 11 In-house Social Workers 46 Support Staff (intake, accounting, law clerks, legal assistants, etc.) Agents across Ontario: 750 fee-for-service (“panel”) Lawyers and Clinicians In-house Personal Rights Lawyers and Social Workers provide regional supervision of the panel Our People

  12. We serve over 20,000 childrenat a time

  13. Our Case Numbers Budget: $34 million (CAD) annually 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  14. Family Law Services • Custody/Access • Lawyer and/or Social Worker assigned • Intake process to determine highest need and prioritized acceptance of referrals from the court • Child Protection • Lawyer only assigned to file • OCL is required to assign a lawyer in a child protection proceeding when ordered by the court 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  15. Custody and Access Intake • Currently, over 65% of court referrals are accepted • Most of our cases are high conflict and involve families with multiple issues • Mental health challenges • Allegations of domestic violence/sexual abuse • Young parents with little resources who are experiencing parenting challenges • Significant substance abuse • Mobility • Alienation • Children with special needs • Many children under the age of six

  16. What Are Our Cases Like? Custody/Access Alienation Substance Abuse allegations Mental health issues Mobility Re-integration of Access Borderline protection concerns Children with special needs 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  17. Legal representation Clinical investigation and report Legal representation with clinical assistance What We Do in Custody/Access Cases We shift the focus to the children’s interests and away from the conflict between the parents (and other caregivers) 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  18. How We Develop A Position/ Recommendation in a Custody/Access Case 1. Review court documents 2. Meet with both parents/parties 3. Meet with child client(s) 4. Talk to collateral sources of information, such as: • Teachers • Doctors • Social workers • Psychiatrists • Police • Child welfare authorities

  19. Child Protection • The OCL’s most visible role takes place in court • The majority of representation in child protection matters is ordered by the court • The OCL’s input is particularly valuable for older children when they disagree with child welfare authorities • Process for developing a recommendation is similar to approach for Custody/Access cases except the child’s lawyer does not always meet with the parents 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  20. Dispute Resolution • An equally important role (but one that usually takes place outside of court) is the dispute resolution role • In all Custody/Access cases, the OCL places a high priority on assisting parents to focus on their children’s needs and resolve their issues outside of the court • In Ontario child welfare matters, it is becoming increasingly commonplace for children’s lawyers to advocate for their child clients within an Alternative Dispute Resolution (ADR) process rather than settling in court 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  21. Dispute Resolution • ADR can occur prior to the initiation of court proceedings or at any point during the court process • Children’s Aid Societies are required to use one of three prescribed methods: • Child protection mediation • Family group conferencing • Aboriginal approaches (traditional methods of dispute resolution, including circle methods, established by First Nations or Aboriginal child welfare agencies) 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  22. Our Goals • Our goals in delivering family law services are: • Timely, responsive, inclusive and culturally appropriate representation for children • A sustainable model for service delivery • Provide legal and clinical assistance to more children 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  23. Ontario’s First Nations • Of the 630 Aboriginal communities in Canada, 133 of them are located within Ontario • Some Aboriginal people live in traditional communities on designated Crown lands called Reserves • As of 2006, 30% of Aboriginal people lived on Reserves, most of which are spread out across northern Ontario in remote regions • Majority of Aboriginal people live “off-reserve” in urban centres • Ontario’s Aboriginal people account for only 2% of population (approximately 260,000 persons) but is expanding faster than the Ontario average 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  24. Historical Relationships • Aboriginal peoples occupied North America for thousands of years before Europeans first arrived in the 11th century • Colonial period began in the late 15th century with expeditions by Britain and France • Early colonial relationships were based on commercial and military interests • As military role waned, British administrators looked to control and assimilate Canada’s Aboriginal peoples • This “civilisation” program would form the basis of Aboriginal policy and legislation for the next 150 years in such measures as: the Indian Act, theCrown Lands Protection Act, Management of Indian Lands and Property Act and the creation of residential schools 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  25. Indian Residential Schools • Indian Residential Schools were run by churches in partnership with the Canadian government between 1857-1996 • More than 150,000 Aboriginal children were forcibly removed from their homes/communities to attend one of the 132 schools • These schools were seen by British/Canadian government as a way to assimilate the Aboriginal population in Canada • Expressed objective was to “kill the Indian in the child” • Students suffered extensive sexual/physical abuse at the hands of religious and lay staff • Denial of access to language and culture was intended to destroy the children’s cultural and linguistic identity and connections with family and home community • Indian Residential School system was the most sustained and systematic human rights violation in Canadian history 6th World Congress on Family Law and Children’s Rights - March 18th, 2013 Map of Residential Schools in Canada

  26. The Truth and Reconciliation Commission • Arose from increasing litigation from survivors including class actions against the government • Was established as part of settlement in order to address the serious human rights violations in the Indian Residential Schools • Additionally, the Government of Canada agreed to write a formal apology to all Aboriginal people that was issued on June 11, 2008 • All attendees of residential schools received compensation • Reconciliation hearings and processes are still ongoing 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  27. Challenges facing the OCL • Geographic challenges • Considerations in the First Nations context • Resource challenges 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  28. Geographic Challenge • Service needs vary by region and cost varies • Limited or no availability of community services for children/families living in many northern or remote rural areas • Family doctors • Therapists • Custody assessors • Mediators • Parenting coordinators 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  29. Geographic Challenge:Ontario’s Fly-in Courts • Many Aboriginal communities in northern Ontario are not accessible except by air • Legal and clinical staff have to travel by air to these communities for all face to face meetings • In order to provide court services to these communities, the province has established 28 temporary fly-in courts where the court can travel to a remote location for a limited period of time to conduct proceedings 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  30. Map of Fly-In Courts in Ontario 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  31. Unique Considerations in the First Nations Context • In child protection cases, there is a statutory requirement that judges take culture in consideration when determining the best interests of a child • There are additional requirements that place emphasis on the child’s Aboriginal cultural heritage and traditions with the intention of preserving the child’s cultural identity • Customary Care • “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” • Removes the proceedings from the courts to be dealt with internally by the community • Designed to ensure that cultural, historical and linguistic identity of the child is protected

  32. OCL’s Resource Challenges • Age demographics of current panel requires succession planning and mentoring of new agents • Lack of diversity on clinical and legal OCL panels including under representation of Aboriginal professionals • Finite financial resources • Fixed head office staffing levels limit speed of service delivery 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  33. Strategies for Change • Outreach and Relationship Building • Education/Training • Technology • Innovation in our products and services 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  34. Outreach • To Courts • To Youth • To First Nation Communities • To Community Organizations • To International Professionals 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  35. Cultural Competency of Panel Agents • Actively trying to increase the diversity (age, culture, language) of our panel members • Commitment to ensure that our lawyers and clinicians take a proactive approach in identifying and advancing cultural issues at the early stages of a proceeding • Continuing to focus on education/training on cultural competencies and developing programs in partnership with local community partners 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  36. Thank you!!! Contact Information: Office of the Children’s Lawyer http://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/ Lucy McSweeney Children’s Lawyer for Ontario (416) 314-8011 (direct line) Email: lucy.mcsweeney@ontario.ca Katherine Kavassalis Legal Director, Personal Rights (416) 314-8085 (direct line) Email: katherine.kavassalis@ontario.ca 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  37. Online Resources • Government of Canada: http://www.canada.gc.ca/home.html • Government of Canada, Department of Justice: http://www.justice.gc.ca/eng/ • Aboriginal Affairs and Northern Development Canada: http://www.aadnc-aandc.gc.ca/ • Canadian Charter of Rights and Freedoms : http://laws-lois.justice.gc.ca/eng/Const/page-15.html • Statistics Canada: http://www.statcan.gc.ca/start-debut-eng.html • Map of Canada on slide 4 : http://www.readingesl.ca/provinces.htm • Ontario Trillium Foundation: http://www.otf.ca/en/index.asp • Canadian Bar Association: www.cba.org • Ontario Bar Association: www.oba.org • Law Society of Upper Canada: http://www.lsuc.on.ca/ 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  38. Online Resources • Truth and Reconciliation Commission of Canada: www.trc.ca • Assembly of First Nations: http://www.afn.ca/ • Inuit TapiriitKanatami: https://www.itk.ca/ • The Congress of Aboriginal Peoples: www.abo-peoples.org • Métis National Council: www.metisnation.ca • Native Women’s Association of Canada: www.nwac.ca • Toronto Aboriginal Research Project 2011 Report: http://www.toronto.ca/housing/pdf/tarp-final-report2011.pdf • Paintings on slide 23 : “Pride” by Daphne Odjig(right) and “Mother and Child” by NorvalMorrisseau(left) • First Nations Representation on Ontario Juries 2013 Report: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/pdf/First_Nations_Representation_Ontario_Juries.pdf • Toronto Aboriginal Research Project 2011 Report: http://www.toronto.ca/housing/pdf/tarp-final-report2011.pdf 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

  39. Online Resources • Ministry of the Attorney General (Ontario): http://www.attorneygeneral.jus.gov.on.ca/ • Ministry of Children and Youth Services (Ontario): http://www.children.gov.on.ca/ • Ministry of Community Safety and Correctional Services (Ontario): http://www.mcscs.jus.gov.on.ca • Office of the Children’s Lawyer http://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/ • Courts of Justice Act: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c43_e.htm • Child and Family Services Act: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c11_e.htm 6th World Congress on Family Law and Children’s Rights - March 18th, 2013

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