Nunavut's child welfare officials say it's time to change the Child and Family Services Act, especially in the wake of a stinging court ruling this week.
Nunavut court Justice Robert Kilpatrick has ruled that parts of the act violate the Canadian Charter of Rights and Freedoms, in that it takes too long from the time a child is removed from his or her family until a hearing must take place to determine whether that apprehension was justified.
In his written decision, released on Wednesday, Kilpatrick gave the territorial government one year to make changes to the Child and Family Services Act or declare parts of the legislation invalid.
"The decision wasn't exactly unexpected. We've been aware that our act is outdated," Norm Murray, Nunavut's director of child welfare services, told CBC News on Thursday.
Murray added that the current legislation dates back to when Nunavut was still part of the Northwest Territories.
Waited 8 months
The court case behind this week's ruling was brought forward by a Nunavut parent who spent eight months trying to find out why a child protection officer took her children away in February 2009.
A judge ruled in October 2009 that the children be brought back to the parent, who was identified in Kilpatrick's ruling as "P.E." in order to protect her children's identity.
Under Nunavut's Child and Family Services Act, child welfare officials have up to 135 days — about 4½ months — from the date of a child apprehension to hold a hearing.
Other Canadian provinces and territories have much shorter waiting periods, between five and 37 days.
In his decision, Kilpatrick noted that the Supreme Court of Canada declared in 2000 that there must be a "fair and prompt judicial screening" of the grounds in which a child is apprehended.
Other provinces and territories amended their child protection laws in light of that ruling, but Nunavut never did so. Murray said he does not know why the territory lagged so far behind.
"This is the fundamental law of the country and the citizens of Nunavut are entitled to the benefit of it, the same as everybody else in the country," said Iqaluit lawyer Paul Lesarge, who represented P.E.
Wait period already shortened
When Lesarge brought forward the parent's case last year, the Nunavut Court of Justice issued a "practice directive" that forced child welfare officials to hold prompt hearings on child apprehensions.
"We have four days in which to file court documents to say why the apprehension was required. Once we do that, the court has nine days from the date of apprehension to have a hearing," Murray said.
This week's court ruling will formalize that practice. It has also forced child welfare officials to change its policy on disclosing reasons for apprehending a child.
Murray said officials used to require a court order before releasing those reasons, but not anymore.
A full review of the Child and Family Services Act is already underway, but that process is expected to take at least a year.
As a result, the court-ordered changes to the existing legislation may have to be made before a new law is drafted.