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

{{REVIEWED LSLAP | date= July 18, 2019}}

==== a) Criminal Liability ====

 

 

 

 

 

 

 

 

 

 

 

==== f) Sexual Consent ====

==== g) Marriage ====

Both parties to the marriage must be at least 19 years old. However, the [http://canlii.ca/t/846b ''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,

*other persons between the ages of 16 and 19 may marry if they have the consent of:  

**c) the Public Guardian if both parents are dead and there is no lawfully appointed guardian (s 28(1)(c)); or  

**d) a judge of the Supreme Court (usually only where the parent’s consent is unreasonably withheld) (s 28(2)).  

The Supreme Court of Canada examined s 43 in [http://canlii.ca/t/1g990 ''Canadian Foundation for Children, Youth and the Law v. Canada'', [2004<nowiki>]</nowiki> 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 his or her behaviour” (para 24). Furthermore, the Court provided a comprehensive definition of “reasonable force”:  

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

== E. 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 childfrom his or her 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 are in immediate danger, a police officer may take charge of the child (s 27).

=== 1. 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 his or her duty to social workers who then carry out the removal procedure.  

=== 2. Presentation Hearing ===

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 his or her parent(s) or may be returned to his or her 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.

=== 3. Protection Hearing ===

=== 4. Orders ===

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 successionof property (s 50(1)). In certain cases, the Director can seek a last chance order of up to six months (s 49(7)).  

=== 5. Access and Consent Orders ===

=== 6. Rights of Children in Care of the Director ===

=== 7. Priority in Placing Children with a Relative ===

Until March 31, 2010 a relative caring for a child residing in his or her 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: www.gov.bc.ca/meia/online_resource/verification_and_eligibility/cihr. 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 www.mcf.gov.bc.ca/alternativestofostercare/extended_family.htm). 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.

=== 8. Priority in Placing Aboriginal Children with an Aboriginal Family ===

== F. 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 his or her 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.   

*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 him or herself sufficiently at a younger age than this;  

*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.);  

*d) a child under 19 may qualify for social assistance if he or she does not live with a parent or guardian, and if the ministry is convinced that no parental support is being provided; and

*e) pursuant to s 91 of the ''Family Relations Act'' a child may be eligible for child support payments from their parents. However, children have been found to have withdrawn from their parents’ care and control when they live with a boyfriend or girlfriend who provides for their needs, have moved out of their parents’ home and refuse to return, or live on their own and have demonstrated they are capable of independently supporting themselves financially.   

There are four 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 a custody and guardianship order under the ''Family Relations Act'' (s 30);

*c) by the parent(s) consenting to the adoption of the child by other persons (''Adoption Act'', RSBC 1996, c 5, s 13(1)); or  

*d) by a written agreement between the parent and the Director of Child, Family and Community Service where the parent transfers his or her rights to the Director (''CFCSA'', ss 6 and 7)

== G. Child Benefits ==

The CDB provides up to $2,455 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. Universal Childcare Benefit ===

In July 2006, the Government launched the Universal Childcare Benefit (UCCB), a new benefit paid monthly to help eligible families provide child care for their children less than 6 years of age. The UCCB will provide families a $100 monthly payment (up to $1,200 annually) for each child 3-57 less than six years of age. It is paid separately from the Canada Child Tax Benefit (CCTB). The UCCB is taxable. One must apply for UCCB through Canada Revenue Agency.  

For more information on eligibility, the application process and access to an online application, visit the [http://www.cra-arc.gc.ca/bnfts/ccb/menu-eng.html Canada Revenue Agency website] or call 1-800-387-1193.