Janine’s Story: A Single Mother Facing Incarceration in Ontario
This paper chronicles the situation of a young Aboriginal mother[i] who has come into contact with the criminal justice system. The goal of telling this story is to highlight the pertinent issues for Aboriginal mothers who are facing incarceration. Specifically, it will demonstrate how certain time-related provisions in the Child and Family Services Act[ii] have a disproportionate impact on Aboriginal mothers who are interacting with the criminal justice system. This story is meant to demonstrate the circumstances and challenges facing a subset of Aboriginal women and is not intended to be used to make any generalizations about Aboriginal peoples or women.
How it Begins: Contact with the Criminal Justice and Child Welfare System for an Aboriginal Mother
“Aboriginal women and their children suffer tremendously as victims in contemporary Canadian society.”[iii]
Janine is a 24 year old Aboriginal woman. She is a single mother of two children. Janine lives in an apartment off reserve in a town in northern Ontario but is within close proximity to the reserve where she was born. She has developed strong ties to her community. Janine and her kids visit the reserve often and regularly participate in cultural activities in her community.
One afternoon, the police arrive at Janine’s apartment that she shares with her two children, Nathan, who is six, and Carrie, who is three. A witness has identified Janine as being involved in a theft. When the police arrive, they search Janine’s house and find the stolen goods. Janine is arrested. Because Janine is the sole caregiver for her two children, the police officers call the local Children’s Aid Society, who arrive shortly thereafter and apprehend Nathan and Carrie.
Janine is charged with theft under $5,000 and breach of probation. The Crown is concerned that Janine may not appear in court because she has family in another province. Subsequently, she is denied bail on the ground that she may flee from justice. Janine is moved to the Vanier Centre for Women in Milton, four and a half hours away from her home community, to be held in remand awaiting her trial. As evidenced through her breach of probation charge, this is not the first time Janine has run into trouble with the law as an adult. She pled guilty to a theft charge two years prior and was ordered to pay a fine and was put on probation.
While Janine is being transferred to the Vanier Centre, the Children’s Aid Society begins working on finding a placement for Nathan and Carrie. Janine is concerned. If convicted, her lawyer told her she is potentially facing up to two years in provincial prison. Janine was in and out of foster care as a child and does not want her children to grow up in a foster home. She also does not want to lose her children. The minute Nathan and Carrie come into the care of the Children’s Aid Society either by way of agreement or court order a clock starts ticking to find a suitable long-term solution for their placement.[iv]
The Clock is Running: Section 70 of the Child and Family Services Act
“Studies have shown that native children admitted into care are less likely than non-native children to be returned to their parents.”[v]
Once Nathan and Carrie were taken into the care of the Children’s Aid Society, the society has a certain period of time to determine where they should be placed permanently. Section 70 of the Ontario CFSA articulates the time limits that a Children’s Aid Society has to find a plan of permanency for a child that has been taken into its care or custody.
Section 70(1) states that:
Subject to subsections (3) and (4), the court shall not make an order for society wardship[vi] under this Part that results in a child being a society ward for a period exceeding,
(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or
(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.
Section 70(2) clarifies that when calculating the time period, temporary care or special needs agreements under ss. 29(1) or 30(1) and temporary orders under s. 51(2)(d) shall be counted.[vii] Section 29(1) refers to agreements where a parent, such as one in Janine’s current situation, is temporarily unable to care for his or her child(ren), while s. 29(6) sets out parallel time limits as in s. 70(1). Therefore, even if a court order was not granted for society wardship and an agreement was made for temporary care, the same time limits would apply.[viii]
Nathan has been in the care of a Children’s Aid Society on one other occasion. He spent three months in foster care after his junior kindergarten teacher called the society with concerns about Nathan being malnourished. The Children’s Aid Society visited Janine’s home and interviewed neighbours. The child protection worker suspected Janine had problems with substance abuse and apprehended Nathan under s. 37(2)(b) of the CFSA. Janine completed a treatment program and the society concluded that Nathan was able to return home. This is relevant because s. 70(2.1) stipulates that the time in care within the past five years referred to in s. 70(1) is cumulative.[ix] Therefore, any time that a child has been in a society’s care within the last five years counts toward the time limit.
There are only two statutory exceptions to the time limits in s. 70.[x] The first exception is an extension where an appeal has been commenced under s. 57(1) of the CFSA but has not yet been concluded or where the court has adjourned a status review hearing under s. 65 of the CFSA.[xi] The extension is granted only until an appeal has been disposed of (including the completion of any new hearing ordered on appeal) or an order is made to vary a child’s status under a s. 65 order.[xii] The second exception is where the court may grant a one time six month extension if it is in the child’s best interests to do so, subject to paragraphs 2 and 4 of s. 57(1).[xiii]
The applicable timeline for Janine is 12 months since both her children are under the age of six.[xiv] The implications of s. 70 (and s. 29) are that if the child welfare matter is not resolved within a year, the society must either return Nathan and Carrie to Janine’s custody or make an application for Crown wardship (following which a child may remain in a foster or group home, or may be adopted). If Janine is incarcerated, the former option may not be available.
It is important to note that s. 70 (and s. 29) refers to a time limit for a child to be in society care. Therefore, if a child were apprehended from a parent or guardian and placed with a family member or in a customary care arrangement[xv] the clock would stop running and there would be no statutory time frame in which a permanent decision must be made.
An All Too Familiar Pattern: Intersection of the Child Welfare and Criminal Justice Systems
“The endless cycle of Native incarceration and recidivism will only be broken if the underlying causes of this situation are identified, addressed and dealt with in a realistic and holistic fashion. Otherwise, the endemic poverty, under-education and ensuing frustration will continue to generate anti-societal responses.”[xvi]
When she was a child, Janine’s father was physically and verbally abusive toward Janine, her older brother and her mother, Paula. When Janine was five years old, her father went to jail on an assault conviction. Shortly after he returned home, he left and Janine has not seen him since. Paula struggled with alcohol abuse and had difficulty caring for Janine and her brother, especially after Janine’s father left. As a result, Janine was in and out of foster care, while her brother spent much of his youth in group homes. Eventually, Janine went to live with her grandmother. In her teen years Janine got involved with a rough crowd and got into trouble with the law. She has a minor youth criminal record but had never spent a protracted period of time in youth detention.
As an Aboriginal person interacting with the criminal justice system, Janine’s story is not unique. A joint study by the Correctional Service of Canada, the Department of Justice Canada and the Assembly of First Nations found that approximately two thirds of Aboriginal people in prison stated they had interacted with the child welfare system (spent time in foster or group homes or had been adopted) during their childhood, compared to about one third of non-Aboriginal inmates.[xvii] This same study notes that Aboriginal inmates were more likely to have had interaction with the criminal justice system as youths and to have had family members involved in crime.[xviii] Moreover