Bill 22 raises serious concerns

Proposed legislation has worrisome changes hidden among the good

This fall, the Alberta NDP introduced Bill 22, An Act for Strong Families Building Stronger Communities. The bill is largely a response to the tragic death of four-year-old Serenity, a First Nations girl who died in kinship care due to neglect.

Bill 22, if passed, will improve the law by requiring home assessments for any placement, including with relatives, and by improving the reporting of deaths or serious injuries of children in government care.

However, buried in the details of Bill 22 are some serious concerns which MLAs have yet to address in debate. It appears the NDP government is looking to use this need for improvement to unnecessarily change fundamental aspects of family law, undermining other protections for families from state intervention.

Some sections of Bill 22 can, and should, be supported. For example, Bill 22 allows First Nations to have a formal role in any court processes which involve children from their communities. The bill also includes better public reporting requirements and has a prominent focus on the safety and well-being of children. The bill also rightly recognizes the importance of a child’s religious or cultural community. These changes are valuable, and deserve widespread support.

However, there are three major concerns. First, Bill 22 undermines a fundamental definition of family. The current Child, Youth and Family Enhancement Act states, “the family is the basic unit of society and its wellbeing should be supported and preserved.” Bill 22 seeks to delete this definition of the family and rephrase it to read, “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.” The current law defines what the family is: the fundamental unit on which society is built, a distinct institution that precedes the state. The proposed rewording merely states what the family does. Within the context of the law, if the family does not fulfil its responsibility as the state wishes, that family may be subject to unnecessary state intervention.

Second, Bill 22 takes the long list of protected identity groups from the Human Rights Act and inserts it into family law. What it does not do is include other sections of the Human Rights Act, which clarify certain exceptions to actions that might be considered discriminatory. For example, a religious charity may hire others adhering to the same beliefs, legally “discriminating” against other religions in its hiring policy. This is a good exception to have in human rights law. But these necessary exceptions are not being transferred into family law in Bill 22. The result is that the state becomes the defender of children’s rights against and above parents, even on contentious issues like religious practice, sexual ethics or gender expression.

Tied to this concern is the problem of incorporating gender identity and gender expression into family law. Scientific studies on gender dysphoria are inconclusive, and experts disagree strongly on how to respond to children who experience gender dysphoria. How would child services deal with parents who they believe are not responding “properly” to a child’s gender dysphoria? Bill 22 should be amended to remove the list of protected identity groups that is better explained and protected by the Human Rights Act.

Finally, Bill 22 proposes to delete an important safeguard in the existing law. The current law states that intervention should be done in a way that “ensures the least disruption to the child” and requires that the removal of a child from their family should only be done “when other less disruptive measures are not sufficient to protect the survival, security or development of the child.” In other words, children should only be removed from the home in extreme circumstances. The attempt by Bill 22 to delete this safeguard would give too much power and discretion to the state in intervention services.

The government of Alberta claims to be supporting and protecting families and children, but should improve the proposed legislation by addressing these concerns. The implementation of Bill 22 without amendment will make families more vulnerable to actions by the state. I’m glad the Alberta NDP has started this important discussion, but hope they are willing to hear advice on how to improve this important bill.

André Schutten, Hons.B.A., LL.B., LL.M., is a constitutional lawyer and serves as the Director of Law & Policy with the Association for Reformed Political Action (ARPA) Canada, based in Ottawa.