Bill 126 - Act to tighten the regulation of educational childcare
Deputy members of the Commission des relations avec les citoyens,
Thank you for your invitation.
Although I am in favour of the basic principles of Bill 126, I would like to share some comments on particular aspects of it. First I would like to specify that the Ministry of Families and Seniors comes under the jurisdiction of the Québec Ombudsman, but that educational childcare services do not. The complaints we have received relate mainly to the accessibility of places in subsidized childcare and problems between parents and childcare workers. We also receive complaints about the Ministry from workers in the childcare network or from citizens. I will draw from these complaints and from our watch over the childcare service sector to illustrate my comments with regard to Bill 126.
Bill 126 amends the Educational Childcare Act (R.S.Q., chapter S-4.1.1) and the Educational Childcare Regulation (R.R.Q., chapter S-4.1.1, r.2) to introduce provisions that tighten the regulation of childcare services. The guidelines retained consist of:
- Creating a new attribution process for subsidized places
- Curtailing the development of childcare chains
- Making shareholders accountable
- Introducing a new penalty regime
- Creating new powers to put an end to illegal childcare services
Create a new transparent and independent attribution process for subsidized places
Analysis criteria, advertisement and stability
In light of the findings of our recent investigations into the attribution process for the reduced contribution places introduced in 2008, I welcome the creation of consultation committees to analyse projects and make recommendations to the Minister on eligible projects and the distribution of new subsidized places. The Ministry’s willingness to work in partnership with the regional communities will definitely improve the fairness and transparency of the process and increase its credibility.
I note that the recommendations of the consultation committees will have to be included in the needs and priorities set by the Minister. This assumes that they will be established and discussed before the committees are consulted. It seems to me that regional criteria could be added by the consultation committees to deal the reality of each territory. In the name of fairness, I feel that the Ministry should make a commitment that the rules will remain public and not be modified in the course of the process.
In this regard, our investigations have revealed a few problems arising from a change in the rules during the attribution process for reduced contribution places in 2008. Changes made after the launch of the call for proposals for 9,000 places ended up excluding promoter groups that had been invited to participate. The decision to stop accepting proposals from unsubsidized daycares who wanted to convert their existing places took several promoters by surprise and put them in a difficult situation.
We also noted another problematic situation. This same call for proposals, launched on April 15, 2008, was originally supposed to be followed by another one, but during the process, the government modified the operation to attribute 18,000 places. Given the preparations required to plan such a proposal, especially for promoters without existing facilities, several decided to wait for the second call in order to present a more nuanced proposal. Unfortunately, the decision made halfway through the process deprived them of the opportunity to present their project.
Composition of consultation committees for place distribution
In section 11, the Bill specifies the composition of the consultation committees. Paragraphs 1 to 3 of section 101.2 confirm that a person is designated respectively by the conférence régionale des élus, the health and social services agency and the school boards of the territory in question. Paragraphs 4 and 5 do not refer to the territorial origin of the people representing the early childhood centres (CPEs) and daycares. We assume that the purpose of the proposal is to resolve the situation for regions that do not have subsidized daycares in the territory, but what about CPEs? To ensure that all of the regions have recourse to the expertise of people from their own territory, I propose that the wording of paragraphs 4 and 5 of section 101.2 be changed to give precedence to representatives designated by the CPEs and daycares in the territory in question.
Need for integrated planning
With the adoption of Bill 126, the responsibility for analysing and recommending proposals will be given to the consultation committees. The Ministry, however, will maintain the task of evaluating needs to establish them as fairly as possible in each region of Québec. The Bill does not address the way to handle the division of existing unsubsidized places (11,173 places in 227 daycares on March 31, 2010). These unsubsidized places are offered by daycares subject to the same legal and regulatory requirements as the CPEs and subsidized daycares. Their existence is supported by income tax credits granted to the parents who do not have subsidized places, and the Ministry of the Family and Seniors places accounts for them.
We wish to point out the impact of not considering these places in planning for daycare needs. Indeed, failure to do so has and may continue to lead to financial difficulties for some of these daycares, mainly when there is a relative balance in offer and demand and a subsidized daycare is authorized to set up shop nearby. To ensure that results comply with the objective of creating new places to meet the demand, the Ministry should undertake integrated planning that takes existing daycare services into account, whether subsidized or not.
This reality should also be taken into consideration in the criteria that the consultation committees have to uphold, to avoid having government intervention result in a shift of clients from private unsubsidized daycare services to subsidized services. This client shift, which we have observed, has the impact of keeping unsubsidized daycares in a permanently precarious financial situation. They are constantly seeking new clients and, as their financial situation is precarious, they lose their staff and have to try to cut corners wherever they can, which pushes parents to look for another daycare service for their children.
Curtail the development of daycare chains
With the addition of sections 93.1 and 93.2, the Bill limits to five the number of subsidized daycare permits that can be held by one person or related persons. It also limits to 300 the number of places that can be offered by a CPE or a person with a daycare permit and related persons.
I understand the Ministry’s intentions in wanting to prevent the development of daycare chains. I also appreciate that these provisions take into account the specific reality of certain regions by not limiting the number of facilities that can be part of the same CPE. Indeed, a CPE serving several small communities may have to set up more facilities without surpassing the 300 subsidized places.
As for the matter of existing daycare chains, while I ascribe to the principle of acquired rights, I encourage the Ministry to examine the transactions that led to their constitution. If this examination reveals that illegal actions were taken or that the law was circumvented, it would be appropriate to retract the principle of acquired rights for every such case. To this end, an amendment to the Bill is required.
Implement a new penalty regime
Upholding the Act respecting administrative justice
The Educational Childcare Act and the Educational Childcare Regulation already provide the Ministry with the means to deal harshly with infractions. The Minister can suspend, revoke or refuse to renew a permit, as well as cancel, reduce or suspend a subsidy. Furthermore, a set of penal provisions is also at the Ministry’s disposal to impose sanctions for breaches of the law and the regulations.
The Ministry rarely makes use of the penal provisions, largely because of the complexity and length of the process. Other than receiving a notice of non- compliance, the offender rarely has to face any consequences for their actions. The Bill proposes the use of administrative fines in order to take quick action, creating a dissuasive effect.
I am pleased to note that the imposition of these administrative fines upholds the Act respecting administrative justice. The possibility of requesting a review and subsequently contesting before the Tribunal administratif du Québec is essential to correct possible errors. It should also be remembered that under the principles set out in this law, the administrative authority must justify any unfavourable rulings it makes.
You will understand that I intend to pay special attention to this matter.
Create new powers to put an end to illegal childcare services
To more specifically confront the phenomenon of illegal daycares, which contravene section 6 of the Act, the Bill calls on the Ministry of the Family’s power of order and proposes an increase in the fines that can be imposed. The Minister would be able to forbid a person who offers childcare services in contravention of the Act to offer any kind of childcare services if the Ministry deems that the health and safety of the children may be compromised. The fines for breaching the Act with regard to illegal childcare will be doubled from a minimum of $500 to a minimum of $1,000 and from a maximum of $5,000 to a maximum of $10,000.
I will not hide a certain discomfort that the word “illegal,” as used in this Bill, applies to several situations that merit some nuance among them. The same term is used for a person who cares for a few children in addition to their own and gives income tax receipts to the parents and for a person who knowingly circumvents the law by offering daycare services to a large number of children. Beyond the matter of illegality, I am particularly concerned by the situation of parents who, from one day to the next, are likely to find themselves with no service and no alternative. I recommend that the Ministry minimize the impact for the parents of any actions taken and provide transitional measures wherever possible. For any action taken to this end, the interest and wellbeing of the children must take precedence.
Fairness and balance of fines
A person who offers childcare services to seven children without holding a permit or recognition is contravening section 6 of the Act. This illegal childcare service may lead to the evacuation and closure of the daycare, the imposition of a fine from $1,000 to $10,000, and an order forbidding the person from offering childcare services for a period of two years.
On the other hand, a daycare service with a permit for 30 places but which has 40 children in care during the Ministry inspector’s visit is contravening section 13 of the Act. According to the provisions of the Bill, this daycare service will be given a notice of non-compliance and will be subject to a fine of $500 if it does not respond to the notice, or to a fine of between $500 and $5,000 if the Ministry proceeds with a penal suit, which is rarely the case.
I clearly understand the differences in the requirements demanded of a permit holder compared to a person who offers childcare to a maximum of six children. Whether one is called “illegal” and the other an “excess,” the main concern should be the risk to the children’s health and safety. I question, therefore, the assessment of the severity of the offense compared to the possible penalty. To my mind, the penalties imposed by the Act should be more balanced.
Furthermore, the Bill introduces the possibility of issuing an order forbidding a person to offer or provide any childcare service under conditions that might compromise the children’s health or safety. This order may be contested before the Tribunal administratif du Québec. The ultimate consequence, however – that is, the cessation of activities – would only be achieved through the evacuation of the premises, under the current section 120 of the Act. In these circumstances, I am of the opinion that a closure, under section 120, should be able to be contested before the Tribunal administratif du Québec. Moreover, since the matter of urgency would be dealt with in this way, it seems to me that the order should be subject to a review mechanism such as the one provided for administrative fines, in compliance with section 5 of the Act respecting administrative justice.
Permit attribution time
The Bill seeks to effectively combat illegal childcare. It is foreseeable that its entry into force, associated with a major increase in the number of inspectors at the Ministry, will result in an increase in the number of people who, wishing to put their situation in order, will apply for a permit. Because of the lack of daycare spaces, this phenomenon will be magnified every time an illegal childcare service is closed and the parents find themselves without service and without an alternative. When the service provider is in good faith and wants to remedy the situation by applying for a permit, I believe we have to support them as much as possible in the process. Our investigations have shown, however, that the time required for permit attribution or recognition entails major delays.
For example, among the various steps to follow to get a permit, the approval of the plans of the childcare premises is a mandatory step. Section 19 of the Act stipulates that the Minister must render a decision within 60 days of the receipt of the plans. We have noted that, at present, this timeline is not respected and that the approval can easily take 90 days. Promoters have to make financial and mortgage commitments for their projects. Long waiting times can harm them financially and increase the risk that the projects will be simply abandoned. I therefore recommend that the Ministry take the necessary steps to reduce permit attribution time, not only to comply with its own law, but also to meet the clear needs of families.
Moreover, we observe that the recognition process for the person in charge of an unsubsidized home childcare service can be long and tedious because this “clientele” is not the priority for the coordinating bureaus. In fact, recognition for a person in charge of a home childcare service requires the same work load, and the follow-up and support to be provided are the same, whether or not there are subsidized places. But the financing provided to the coordinating bureaus depends on the number of subsidized places they manage. I therefore recommend that the Ministry come to an agreement with the coordinating bureaus concerning the timeline and the means to implement to accelerate the recognition of people in charge of unsubsidized home childcare services.
Delays in the development of subsidized places
I want to emphasize that the difficulties this Bill is attempting to resolve would not be so great if the subsidized places announced in the 2008-2010 development plan had been offered as planned. I have noted major delays. Our sectoral watch indicates that as of October 1, 2010, 7,560 reduced contribution places, representing over 180 projects, had yet to be established, although all 18,000 places were supposed to have been available by last March 31. It should be noted that access to these places would reduce the extent of illegal care.
I am wholly in favour of the efforts outlined by the Bill’s provisions to introduce a new attribution process for subsidized places, provide better structure for the services offered by service providers, improve the administrative penalty regime and combat illegal childcare services. It is indeed imperative to safeguard the health and security of young children cared for by the childcare network. Parents must be able to entrust their children to a childcare service with complete confidence.
I note however that the Bill does not address the quality of services and the application of the educational program by reinforcing the implementation of good educational practices. The new administrative penalty regime for the failure to uphold certain provisions of the Act and its regulations involves several types of infractions, but does not include infractions related to the educational aspect.
The “Grandir en qualité” investigation, numerous studies and the many complaints received annually by the Ministry (1,467 complaints upheld concerning educational childcare services in 2009-2010) seem to indicate that certain services are still struggling to achieve the desired level of quality. Poor educational practices may prove to be more harmful to the health and safety of the children and their future than poorly maintained premises or improper staff ratios. As such, would it not be desirable for the new penalties to also seek to improve the application of the educational program by increasing educational inspections and subjecting these audits to the new regime? I recommend this.
In conclusion, I recommend that the following changes be made to the Bill:
- Change the composition of the consultation committees to favour representatives designated by the CPEs and daycares in the territory in question
- Consider the possibility of having the consultation committees add regional criteria to the needs and priorities determined by the Minister
- Link the extension of acquired rights for daycare chains to the legality and compliance of their original conferral, attested by a Ministry audit
- Establish balance between the fine for overcapacity for a licensed childcare service and the fine for illegal care provided by a person with no
- Introduce inspection for the educational program and service quality, and subject shortfalls in this regard to the new penalty regime
- Allow recourse to the Tribunal administratif du Québec for closure under section 120, and subject the order to a review mechanism such as the one
provided for administrative fines
Furthermore, I recommend that the Ministry of the Family and Seniors make the following amendments in the application of the Act:
- Ensure that government priorities governing the attribution of subsidized places are not subject to change while the process is in progress, and that these priorities, as well as the recommendations of the consultation committees, are made public
- Plan the distribution of subsidized places in an integrated manner, taking into consideration the existence of unsubsidized daycares, in order to avoid having the government intervention result in a shift of clients from private unsubsidized care to subsidized care
- Minimize the impact for parents of any actions taken to curtail illegal childcare services and provide transitional measures where possible
- Take whatever steps are necessary to reduce permit attribution time, to allow illegal childcare services to comply with the law
- Come to an agreement with the coordinating bureaus on timelines and the means to implement to accelerate the recognition of people in charge of
home daycares that do not have subsidized places