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

{{REVIEWED LSLAP | date= August 18. 2021}}

**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)).  

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).

The [https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 ''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.  

*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 time order. It is merely an enforcement agency.  

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.

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.  

* 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  

* 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.  

* 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.  

* 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.  

* 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).  

* 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.

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)).  

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.  

*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 ([http://www.bclaws.ca/Recon/document/ID/freeside/00_96113_01 ''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.   

*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).  

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 [hhttps://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-disability-benefit.html Canada Revenue Agency website] or call 1-800-387-1193.