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

The [http://canlii.ca/t/84gw ''Age of Majority Act'', RSBC 1996, c 7], s 1 provides 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 [http://canlii.ca/t/84gw ''Interpretation Act'', RSBC 1996, c 238].

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.

**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)).  

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

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 [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.

* 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 www.cecw-cepb.ca/publications/946.

* 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.  

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 are in immediate danger, a police officer may take charge of the child (s 27).

* 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 custody 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).

* 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.

 

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 [http://www.bclaws.ca/civix/document/id/roc/roc/533_95 ''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.  

 

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.  

*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.  

Parents can apply to set aside both temporary and continuing (permanent) orders under s 54. 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).

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: 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.