Posts mislead on Ontario child welfare law

·4 min read

Social media posts and online articles claim that a law in Canada allows the government to take away custody if a parent rejects a child's gender identity. This is misleading; the act referenced is provincial, not federal, and while it expanded Ontario's definition of child welfare, refusal of a child's gender identity alone will not cause parents to lose custody, according to the government and independent experts.

Facebook and Instagram posts from April 2022 circulated a screenshot of an October 10, 2017 Facebook post about changes to a child welfare law in Ontario. The post shared an article with the headline: "Canada's new law allows government to take children away if parents don't accept kids' 'gender identity.'"

Screenshot taken on May 10, 2022, shows an Instagram post

The article is no longer available on the website, but it, and other articles with similar claims about Ontario's Bill 89, which passed into law in 2017, has been shared tens of thousands of times on Facebook since, according to the social media monitoring tool CrowdTangle.

Bill 89 was introduced in late 2016 to amend the Child and Family Services Act. It sought to incorporate recommendations from an inquest into the death in 2008 of a young girl killed by her guardians.

It led to the Child, Youth and Family Services Act, 2017 (CYFSA).

Part one of the act does say that gender identity, among other factors, must be taken into account in the evaluation of the child's welfare.

Screenshot of Part I of Ontario's Child, Youth and Family Services Act, taken on May 9, 2022

But claiming that this language allows the government to take children away from parents solely because they do not accept their child's gender identity is inaccurate, according to the Ontario government.

"Child protection workers cannot remove children from their families solely on the basis of a parent refusing to accept a child's gender identity or expression," a spokeswoman for the provincial Ministry of Children, Community and Social Services told AFP.

In Ontario, the government does not directly deliver child protection services. This is a function of children's aid societies -- independent legal entities under the authority of the CYFSA.

Section 74 (2) of the Act lays out situations that could lead to an intervention, which include physical harm, sexual abuse, emotional harm and neglect. To determine if a child is in need of protection, investigators refer to the Ontario Child Welfare Eligibility Spectrum.

"If a society received a report that a child was in need of protection because the child's parent did not accept the child's gender identity or expression, the society would need to determine whether the parent's conduct amounted to abuse or neglect," the spokeswoman said.

"The society would only intervene where it determined that the child was in need of protection based on the grounds set out in subsection 74(2) of the CYFSA," she said.

Susan Cadell, a professor of social work at Renison University College, which is affiliated with the University of Waterloo, said that the claim is "an oversimplification of the Act and the changes."

She told AFP that most of the work of the child welfare system "is done to try to avoid removing children from their homes."

If a child welfare worker found non-acceptance of a child's gender to be putting the child at risk, it could be grounds for removal, she said, but the same could be said for the other factors mentioned in the Act, like race or disability.

As such, "many factors are taken into consideration when working with a family, including the child or youth's views and wishes," she said.

Nicholas Bala, professor of family law at Queen's University, called the claim a "misrepresentation."

"Failing to recognize the child's gender identity or sexual orientation could be a factor that is taken into account in making a decision about the care of the children, and indeed there is a small number of cases where the parent's response to the child's gender identity has been a factor," he said, but added: "It's never the sole factor."

Bala said that courts more commonly see cases involving a child's gender "in the context of parents who are separated or are getting divorced and disagree about how to deal with a child's gender transition or gender identity issues."

The social media claims are also misleading because Bill 89 was not only about gender identity but was a major reform of child welfare that sought to enshrine in law what the courts had already been ruling on for decades, according to Bala.

"Adding gender identity to that list was just one way of bringing something in recognition of what the courts were doing. In fact, we had very few court cases, but many of them predate the legislation anyway," he said.

AFP Fact Check previously examined misleading claims about a reform of child protection in the neighboring province of Quebec, here.

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