Children and the Law (3:XII): Difference between revisions

Latest revision as of 00:39, 3 September 2024

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 23, 2024.

A. Relevant Ages

1. Age of Majority

The Age of Majority Act, RSBC 1996, c 7, s 1 states that the age of majority in B.C. is 19 years. Section 1 also applies to private documents, such as wills. A person’s age is determined by the provisions set forth in s 25(8) of the Interpretation Act, RSBC 1996, c 238.

2. Other Relevant Ages

a) Sexual Consent

As of 1890, the age of consent for sexual activity was set at 14 years. Recently, the age of consent in Canada has been changed from 14 to 16 years (Tackling Violent Crime Act, Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, 39th Parliament, 2nd Session, October 2007, effective May 1st, 2008). However, if the sexual activity involves exploitative activity, such as prostitution, pornography or where there is a relationship of trust, authority or dependency, the age of consent is 18 years.

Section 150.1(3) of the Criminal Code provides what is often referred to as a “close in age” or “peer group” exception: a 12 or 13-year-old can consent to engage in sexual activity with another person who is less than two years older and with whom there is no relationship of trust, authority or dependency. A 14 or 15-year-old can consent to engage in sexual activity with a partner who is less than five years older with whom there is no relationship of trust, authority or dependency. An exception is also available for pre-existing marriages and equivalent relationships.

b) Marriage

Both parties to the marriage must be at least 19 years old. However, the Marriage Act, RSBC 1996, c 282, provides that individuals between the ages of 16 and 19 may marry without the consent of anyone if they are a widower or widow (s 28(1)), and that other persons between the ages of 16 and 19 may marry if they have the consent of:

- a) Both parents or of the parent having sole guardianship, or the surviving parent (s 28(1)(a);
- b) A lawfully appointed guardian of that person (s 28(1)(b));
- c) The Public Guardian or the Supreme Court if both parents are dead and there is no lawfully appointed guardian (s 28(1)(c)); or
- d) A judge of the Supreme Court where the person whose consent is required cannot be located, or where their consent is unreasonably withheld (s 28(2)).

No person under the age of 16 can marry unless the marriage is shown to a Supreme Court judge to be expedient and in the interest of the parties (s 29). If the parent or guardian “unreasonably or from undue motives refuses or withholds consent to the marriage,” a minor may apply to court for a declaration to allow the marriage (s 28(2)).

Section 28(6) provides that a marriage of a minor must not be solemnized, and a license must not be issued, unless a birth certificate or other satisfactory proof of age has been produced to the issuer of marriage licenses or to the religious representative.

However, s 30 provides that failure to comply with ss 28 or 29 will not invalidate a marriage that has taken place. In other words, if someone manages to get married at 15 and obtains a valid marriage license, the marriage is valid.

B. Child Abduction

1. Criminal Code

Sections 280 to 285 of the Criminal Code deal with the offences of abduction. Section 282(1)provides that:

Everyone who, being the parent, guardian or person having the lawful care or charge of a person under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that person in contravention to the parenting time provisions of a parenting order in relation to that person made by a court anywhere in Canada with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person of the possession of that person is guilty of an indictable offence (maximum 10 years imprisonment)... or an offence punishable on summary conviction.

Section 283 creates a similar offence for circumstances in which there is no parenting order.

NOTE: One should be especially careful when giving advice in parenting time disputes to avoid inadvertently giving advice that may lead to the commission of these offences. If there is evidence that a parent may abduct a child, or if there is evidence that visits are very “disturbing and harmful”, access may be denied. See Re Sharp (1962), 36 DLR (2d) 328 (BCCA).

2. Child Abduction Convention

The Hague Convention on the Civil Aspects of International Child Abduction enables a person whose parenting time rights have been violated to apply to a “Central Authority” (each party to the convention must create such a body) for the voluntary return of the child, or to apply for a court order. Keep in mind that not every country is a signatory to the Hague Convention. Applications can be made either in the person’s jurisdiction or in the jurisdiction to which the child has been abducted.

Each Central Authority has several tasks:

i) To discover the whereabouts of the child;
ii) To take precautions to prevent harm to the child;
iii) To encourage voluntary return of the child or some other agreeable arrangement;
iv) To facilitate administrative processes; and
v) To arrange for legal advice where necessary.

It appears that the Convention applies where the parents are formally separated and the child has been in the sole parenting time of one parent.

Finally, it should be noted that the Central Authority does not decide the merits of any parenting order. It is merely an enforcement agency.

A federal coordinator of the Department of Justice deals with abductions to France, Switzerland, Portugal, and Canada. The contact number is (613) 995-6426.

If the child has been taken to another jurisdiction, contact the Department of External Affairs, 125 Sussex Drive Ottawa, K1A 0G2. Attention: J.L.A. The contact number is (613) 995-8807.

A further resource in the case of abductions and violations of parenting time orders is the office of the Child Youth and Family Advocate, 600-595 Howe Street, Vancouver, BC. The contact number is (604) 775-3203.

C. Discipline

The Criminal Code (s 43) allows a parent, a person standing in the place of a parent, or a school teacher to discipline a child, by way of correction, provided that only reasonable force is used. However, section 76(3) of the School Act, RSBC 1996, c 412 requires that teachers ensure the discipline is similar to that of a kind, firm, and judicious parent, and must not include the use of corporal punishment.

The Supreme Court of Canada examined s 43 in Canadian Foundation for Children, Youth and the Law v. Canada, [2004] SCC 4, 16 C.R. (6th) 203. The Court held that section 43 does not violate the constitutional rights of children. The discipline must be “by way of correction” meaning “only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of their behaviour” (para 24). Furthermore, the Court provided a comprehensive definition of “reasonable force”:

Generally, section 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman, or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver's frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered.

D. Child Protection

Under the Child, Family and Community Service Act [CFCSA], a Director or member of the municipal or provincial police forces can apprehend any child under the age of 19 years when the child is believed to be in need of protection or care. Section 6 lists conditions justifying temporary protective custody under this Act.

Within seven days after the child’s removal, a Director must attend Supreme or Provincial Court for a presentation hearing. The Director must, if possible, inform the child, if 12 years of age or over, and each parent of the time, date, and place of the hearing. If the situation warrants it, a hearing may result in temporary (or permanent) custody of the child being given to the Director or some other agency.

1. Principles

The CFCSA codifies child protection remedies available in B.C. It also gives specific rights to children in care under the Act (section 70). The Representative for Children and Youth Act, SBC 2006, c 29 s 6 provides that it is the responsibility of the Representative to:

Support, assist, inform and advise children and their families respecting designated services;
Monitor, review, audit and conduct research on the provision of a designated service by a public body or director for the purpose of making recommendations to improve the effectiveness and responsiveness of that service, and comment publicly on any of these functions
Review, investigate and report on the critical injuries and deaths of children as set out in Part 4

The guiding principles in section 2 of the CFCSA provide that:

Children are entitled to be protected from abuse, neglect, harm, or threat of harm;
The family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;
If, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;
The child’s views should be considered when decisions relating to that child are made;
Kinship ties to extended family should be maintained;
The cultural identity of Aboriginal children should be preserved; and
Decisions relating to children should be made and implemented in a timely manner.

B.C. Children and Youth Review: An Independent Review of B.C.'s Child Protection System (April 7, 2006) recommends a number of changes to the sections discussed in this chapter, including the appointment of a Representative for Children and Youth. The full report can be viewed online at https://cwrp.ca/sites/default/files/publications/en/BC-HuguesReviewReport.pdf.

2. Best Interests of the Child

Section 4 of the CFCSA defines “best interests of the child” somewhat differently than does the FLA. Factors that must be considered under the CFCSA include:

The child’s safety;
The child’s physical and emotional needs and level of development;
Continuity in child care;
The quality of relationships with parents;
The child’s cultural, racial, linguistic and religious heritage;
The child’s views; and
The effect on the child of any delays in making a decision.

Section 4(2) mandates that, in assessing the best interests of Aboriginal children, the importance of preserving the child’s cultural identity must be considered.

The CFCSA definition of when a child needs protection includes the following (s 13):

Situations where there is a risk of physical or sexual abuse, harm, or exploitation;
Emotional harm by a parent’s conduct;
Deprivation of necessary health care;
Situations where the parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care; and
Where the child has been abandoned and adequate provision has not been made for the child’s care.

See s 13 for a complete enumeration of circumstances where children need protection.

3. Duty to Report Need for Protection

The CFCSA s 14(1) requires that someone who believes a child is being or is likely to be physically harmed, sexually abused, or exploited to report the matter to the Ministry of Children and Family Development. The Helpline for Children (310-1234) provides 24-hour access to social workers in case of an emergency.

Reports to the Ministry are anonymous. No action lies against a person making a report unless it is made maliciously or without reasonable grounds. Failure to report cases of abuse or exploitation constitutes an offence (s 14(3)), even when the information was confidential or privileged, except for when the information was obtained through a solicitor-client relationship (s 14(2)). The Director under the CFCSA must assess the information reported (s 16). Case law has demonstrated that the duty of the director to act is actually broader than the legislated duty: see BS v British Columbia (Director of Children, Family, and Community Services), [1998] 8 WWR 1 (BCCA).

4. Removal

Under the Child, Family and Community Service Act [CFCSA], the Ministry for Children and Families has different options to deal with an unattended child (s 25), or a lost or runaway child (s 26). Pursuant to these sections, the Ministry can take the child for up to 72 hours without formally removing the child from their parents. Furthermore, the Ministry can take a child away to provide essential health care without legally removing the child, provided that the Ministry first obtains a court order under s 29 of the CFCSA. In situations where there are reasonable grounds to believe that the child’s health or safety is in immediate danger, a police officer may take charge of the child (s 27).

5. Removal Procedure

Under the CFCSA, Directors are appointed to enforce the Act. A Director may, without a court order, remove a child if there are reasonable grounds to believe that the child needs protection and that the child’s health or safety is in immediate danger, or no other less disruptive measure that is available is adequate to protect the child (s 30). When removing a child, a Director must make all reasonable efforts to notify each parent of the child’s removal (s 31). Practically speaking, the Director delegates their duty to social workers who then carry out the removal procedure.

6. Presentation Hearing

The Director must attend a presentation hearing within seven days of the removal (CFCSA, s 34) and present a written report that includes:

The circumstances of the removal;
Information about less disruptive measures considered before removal; and
An interim plan of care for the child, including, in the case of an Aboriginal child, the steps to be taken to preserve the child’s aboriginal identity (s 35).

A child who is removed under the CFCSA is put under the care of the Director until the Court makes an interim order about the child, the child is returned, or until the Court makes a parenting or supervision order (s 32). A presentation hearing is a summary hearing and must be concluded as soon as possible (normally within 30 days) (s 33.3).

If the parents consent to the interim removal, an order will be made that the child remain in the custody of the Director pending a protection hearing (see below). If the parent(s) disagree with the removal, a presentation hearing will be scheduled as soon as possible (s 33.3) to determine where the child should live pending the full protection hearing. The presentation hearing may proceed by way of affidavits or viva voce evidence. At the conclusion of the presentation hearing, the child may stay in the custody of the Director, may be returned to their parent(s) or may be returned to their parent(s) under supervision(s 35(2)). It is important to note that the notice of the presentation hearing need not be formally served, and informal notice is adequate.

7. Protection Hearing

A protection hearing must start within 45 days after the conclusion of the presentation hearing (CFCSA, s 37(2)). The purpose of the protection hearing is to determine whether the child needs protection (s 40(1)). The Director must return the child to the parent(s) as soon as possible if it is determined that the child does not need protection (s 40(2)). A child can be returned and still be under minimum supervision of the Director, or returned without supervision. If the child is returned without supervision, the proceedings are at an end (s 37(1)).

8. Orders

Section 41 of the CFCSA outlines orders that can be made at a protection hearing:

An order to return the child to the custody of the parents while being under the Director’s supervision for a period of up to six months;
An order that the child be placed in the custody of a person other than the parent (e.g. a relative) with the consent of that other person and under the Director’s supervision for a specified period of time;
An order that the child remain or be placed in the custody of the Director for a specified period of time; or
An order that the child be placed in the continuing (permanent) custody of the Director. Continuing (permanent) orders should be made under s 49.
1. The parents may consent to or oppose the order. If the parents oppose the order, a Rule 2 case conference is scheduled as soon as possible and a judge will attempt to resolve any issues in dispute (see Provincial Court (Child, Family and Community Service Act) Rules, BC Reg 533/95 for a complete description). If the matter is not settled at the case conference, a date is scheduled to determine whether the child needs protection.
2. The content of supervision orders is outlined in the CFCSA, section 41.1. Terms and conditions that may be attached to a supervision order include:
services for the child’s parent(s);
day-care or respite care;
the Director’s right to visit the child; and
the Director’s duty to remove the child if the person with custody does not comply with the order.

Section 43 outlines the time limits for temporary custody orders and s 47 outlines the rights and responsibilities of a Director who has custody of a child either under an interim or temporary custody order. These rights and responsibilities include:

consenting to health care for the child;
making decisions about the child’s education and religious upbringing; and
exercising any other rights to carry out any other responsibilities as guardian of the child, except consent to adoption.

Temporary orders can be extended under section 44.

When a continuing custody order is made, the Director becomes the sole guardian of the person of the child and the natural parents’ legal rights to the child are extinguished. The Director may then consent to the child’s adoption. The Public Guardian becomes the sole guardian of the estate of the child. The order, however, does not affect the child’s rights with respect to inheritance or succession of property (s 50(1)). In certain cases, the Director can seek a last-chance order of up to six months (s 49(7)).

Parents can apply to set aside both temporary and continuing (permanent) orders under s 54. They are also entitled to full disclosure under s 64. Temporary custody orders may also be extended where a permanent transfer of custody is planned under s 54.01. For more information, see British Columbia (Director of Family and Child Services) v K(TL), [1996] BCJ No. 2554 (Prov Ct FD) (QL).

9. Access and Consent Orders

Section 55 of the Child, Family and Community Service Act [CFCSA] allows parents, or other persons, to apply for an access order at the time of or after, an interim or temporary custody order is made. Section 56 provides for applications for access by parents or other persons after a continuing custody order is made. This entitles parents to apply for access visits during any apprehension, whether interim or permanent, if the Director opposes access.

Consent orders under the CFCSA may be an advisable option for parents. A consent order is outlined in s 60, which provides that the Court may make any custody or supervision order without a finding of fact that their child actually needed protection, and without an admission of any of the grounds alleged by the Director for removing the child (ss. 60(4) and (5)). A consent order requires the written consent of:

a) The Director;
b) The child, if 12 years of age or older;
c) Each parent of the child; and
d) Any person with whom the Director may be placing the child in temporary custody.

Children 12 years of age or older must be given notice of the hearings, report copies, etc.

10. Rights of Children in Care of the Director

Section 70 of the Child, Family and Community Service Act [CFCSA] sets out the rights to which children are entitled while in care of the Director. Children in care have the right to be fed, clothed, and nurtured according to community standards; be informed about plans regarding their care; be consulted with respect to decisions affecting them; reasonable privacy and possession of their personal belongings; be free from corporal punishment; and receive medical and dental care when required. For a complete list of enumerated rights, see s 70.

11. Priority in Placing Children with a Relative

When deciding where to place a child, the Director must consider the child’s best interests (s 71(1)). The Director must give priority to placing the child with a relative before considering a foster parent, unless that is inconsistent with the child’s best interests (s 71(2)).

Children under protection can be placed in the custody of extended family or other concerned parties (s 8). This is known as a “kith and kin” agreement. The Director may also refer the matter to a familyconference co-ordinator to allow the family to reach an agreement on a ‘plan of care’ that serves the best interests of the child (ss 20, 21).

Until March 31, 2010, a relative caring for a child residing in their home may have been eligibleto receive monthly Child in the Home of a Relative (“CIHR”) benefits from the Ministry of Social Development (previously the Ministry of Employment and Income Assistance). As of April 1, 2010, these benefits are no longer available to new applicants. In the absence of the CIHR benefits, relatives looking after a child in their home may be eligible for the child tax benefit, the B.C. family bonus, the universal child care benefit, and/or the child disability benefit. For more information, see:

https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/child-in-home-of-relative.

An alternative (but not a substitute) for relatives to consider is the Extended Family Program benefits available through the Ministry of Children and Family Development (see https://www2.gov.bc.ca/gov/content/family-social-supports/fostering/out-of-care-kinship-care-options-for-children-and-youth-in-bc/temporary-out-of-care-arrangements).

These benefits are intended to be temporary and the relative is not eligible if they have a guardianship order. The application for benefits must be initiated by the child’s parent.

12. Priority in Placing Aboriginal Children with an Aboriginal Family

The Director must give priority to placing an Aboriginal child with the child’s extended family within the child’s Aboriginal community or with another Aboriginal family (s 71(3)). Section 39(1) mandates notification of the band. See also ss 2(f), 3(b) and (c), and 4(2) of the CFCSA. If a child is of mixed heritage, the Ministry will generally treat the child as an Aboriginal child and notify the band accordingly.

Certain additional considerations are provided throughout the Act for an Aboriginal, Nisga’a or treaty First Nations child.

E. Child Leaving Home or Parent Giving Up Custody of a Child

Children may leave home before the age of majority, or alternatively, parents may voluntary give up legal custody of their children. Please note that “emancipation” (a legal mechanism by which a person may be legally separated from their parents before the age of majority) is not a legal remedy for children in BC as it is in some parts of the United States.

1. Rights of the Child

Children may leave home as soon as they are able to support themselves. The following considerations should be kept in mind:

a) Under the School Act, a child must attend school until age 16 (s 3(1)(b)). It would be extremely difficult for the child to go to school and maintain a job to support themselves sufficiently at a younger age than this;
b) A child under 15 needs written permission from their parent or guardian prior to working (Employment Standards Act, RSBC 1996, c 113, s 9(1)). Additionally, a child under 12 needs the written permission of the Director of Employment Standards prior to working (s 9(2));
c) Pursuant to s 26(1) of the Child, Family and Community Service Act [CFCSA], a Director may take charge of a child for a period of up to 72 hours if it appears that the child is lost or has run away. If the person responsible for the child is not located by the end of the 72-hour period, the Director no longer has charge of the child (s 26(5)). (Note that “child” is defined in the CFCSA as a person under the age of 19 years, and includes a youth.); and
d) A child under 19 may qualify for social assistance if they do not live with a parent or guardian, and if the ministry is convinced that no parental support is being provided.

2. Giving Up Custody of a Child

There are two basic ways that a parent can voluntarily give up legal custody of a child. This is done by transferring the rights that the parent possessed through one of the following mechanisms:

a) By the parent(s) consenting to the adoption of the child by other persons (Adoption Act, RSBC 1996, c 5, s 13(1)); or
b) By a written agreement between the parent and the Director of Child, Family and Community Service where the parent transfers their rights to the Director (s 23).

F. Child Benefits

1. Child Disability Benefit

The Child Disability Benefit (CDB) is a non-taxable supplement to the Canada Child Tax Benefit (CCTB) and Children’s Special Allowance. To receive the CDB, a child must be eligible to receive the CCTB and must also qualify for the Disability Tax Credit (DTC). Not all children with disabilities qualify. For more information about eligibility visit the Canada Revenue Agency website or call 1-800-387-1193.

The CDB provides up to $2,730 per year, per child who qualifies for the disability amount, for low- and modest-income families caring for children under the age of 18 who have a severe and prolonged mental or physical impairment.

2. Canada Child Benefit

In July 2016, the Government replaced the Universal Childcare Benefit (UCCB) and the Canadian Child Tax Benefit (CCTB) with the Canada Child Benefit (CCB), a benefit paid monthly to help eligible families provide child care for their children under 18 years of age. The CCB provides families up to $6,400 annually for a child less than 6 years of age, and up to $5,400 annually for a child aged 6 to 17. The CCB benefit is reduced based on the family’s income and the number of children. When the family’s income exceeds $30,000 or there is more than one child in a family whose income exceeds $30,000, the CCB starts being reduced, and, eventually, the CCB benefit reaches $0. The CCB benefit is tax free. One must apply for CCB through Canada Revenue Agency.

For more information on eligibility, the application process, the calculation of the amount of the benefit based on number of children and household income, and access to an online application, visit the Canada Revenue Agency website at https://www.canada.ca/en/revenue-agency.html or call 1-800-387-1193 Monday to Friday from 8am to 8pm or Saturdays from 9am to 5pm.