Bill 1814 — Children, Youth and Families Act (48th General Assembly, 3rd Session)
Bill 1814
Newfoundland and Labrador — Bills
Third
Session, 48th General Assembly
Elizabeth II, 2018
BILL 14
AN ACT RESPECTING CHILDREN, YOUTH
AND FAMILIES
Received
and Read the First Time ................................................................
Second
Reading ............................................................................................
Committee .....................................................................................................
Third
Reading ...............................................................................................
Royal
Assent .................................................................................................
HONOURABLE LISA
DEMPSTER
Minister of Children,
Seniors and Social Development
Ordered to be printed by
the Honourable House of Assembly
EXPLANATORY NOTES
This Bill would repeal and replace the Children and Youth Care and Protection Act .
The Bill would
recognize the role of family in
promoting the safety and well-being of children and youth;
increase the scope of the duty
to report to require a person who has information that a youth is, or may be, in
need of protective intervention to immediately report that information;
remove restrictions so that all
youth under a youth services agreement can receive services until he or she
reaches the age of 21;
remove the option for youth in
the continuous custody of a manager to leave custody before he or she reaches
the age of 18;
require that a cultural
connection plan for an Indigenous child or Indigenous youth who is removed from
his or her family be included in the plan that is filed with the court for the Indigenous
child or Indigenous youth;
establish the ability for
Indigenous representatives of prescribed Indigenous governments or
organizations to be heard in court;
require specific placement
considerations for Indigenous children and Indigenous youth who are in the care
or custody of a manager;
require that notice of hearings
relating to the supervision and custody of an Indigenous child or Indigenous
youth be served to Indigenous representatives;
establish a process so that
children and youth who are declared in need of protective intervention by a
judge can be placed in the permanent custody of a person other than a manager;
establish a licensing process
for agencies, family-based placement providers and residential placement
providers;
appoint inspectors and
establish the powers of inspectors to carry out inspections of licensees;
establish the process for
issuing orders when a licensee violates the Act or the regulations;
establish new parameters around
the disclosure of information obtained under the Act; and
provide authority to delegate
functions and services under the Act to an Indigenous government or
organization.
A BILL
AN ACT RESPECTING CHILDREN, YOUTH AND
FAMILIES
Analysis
Short title
PART
INTERPRETATION
Interpretation
Labrador Inuit rights
Managers
Social worker not available
Provincial directors
Protection from liability
PART
PURPOSE AND GENERAL PRINCIPLE
Purpose
General principle
PART
III
PROTECTIVE INTERVENTION
Definition of child in need of
protective intervention
Duty to report
Determining need for protective
intervention
Family group conference and alternate
dispute resolution
Interview of child
Manager denied access to child
Location of child not disclosed
Order to produce record
Order to prohibit contact
Short term care in home
Removal of child
Removal of youth
Telewarrants
Notice of removal of child
Interim care of child after removal
PART
COURT PROCEEDINGS
Where child is not removed
Where child has been removed
Notice of hearings where child removed
When sixteenth birthday intervenes
Plan for child
Order for medical treatment
Presentation hearing
Protective intervention hearing
Time limits for temporary custody orders
Adjournment
When time limits expire
Subsequent order
Bridging provision
Effect of interim custody order
Effect of temporary custody order
Effect of continuous custody order
Financial responsibility
When continuous custody order ceases to
have effect
Permanent transfer of custody after
continuous custody order
Effect of permanent transfer of custody
order
Rescinding continuous custody order
Transfer of care, supervision or custody
between managers
Child returned any time
Child returned within 72 hours
Child returned after 72 hours
Child returned after protective
intervention hearing
PART
GENERAL COURT MATTERS
Proceedings and evidence
Method of proceeding
Appearance in court
Application to be heard
Publication ban
Participation by child
Variation of notice requirements
Service of documents
Disclosure to parties in court
proceedings
Confidentiality of information
Court order with consent
Matters heard together or consolidated
Variation of order
Effect of out of province order
PART
PLACEMENT OF CHILDREN AND YOUTH
Placement considerations
Persons who provide care
Agreement for services
Information re child's or youth's care
Change of placement of child or youth
without notice
Counselling for child or youth after
removal
PART
VII
LICENCES
Issuance of licences
Renewal and variation
Refusal to issue, renew or vary
Licences generally
Duties of licensee
Variation, suspension or revocation
Consequences of suspension or revocation
Payments to licensee
PART
VIII
INSPECTIONS, INVESTIGATIONS AND VIOLATION ORDERS
Inspectors
Investigations
Inspections
Warrants
Telewarrants
Inspection report
Consequences of non-compliance
Requirements of violation orders
Review of violation orders
PART
YOUTH SERVICES AGREEMENT
Youth services agreement
Effect of agreement
PART
CONFIDENTIALITY AND DISCLOSURE OF INFORMATION
Access to Information and Protection of
Privacy Act, 2015 does not apply
Definition
Persons who may obtain information
Information not to be disclosed
Disclosure without consent
Information sharing agreements
Right to information
Internal review
PART
OFFENCES AGAINST CHILDREN
General offence
Contributing to offence
Offence to remove child or youth from
manager
Liability for offence
PART
XII
ACCOUNTABILITY PROVISIONS
Statutory review
Monitoring plans
Appeals
PART
XIII
DELEGATION
Delegation
PART
XIV
GENERAL
Collection of overpayment
Ministerial regulations
Lieutenant-Governor in Council
regulations
Schedule
Fees and forms
PART
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT
Transitional provisions
SNL2015 cA-1.2 Amdt.
RSNL1990 cA-2 Amdt.
SNL2013 cA-3.1 Amdt.
SNL2011 cA-4.01 Amdt.
SNL2001 cC-12.01 Amdt.
SNL2014 cC-11.01 Amdt.
RSNL1990 cC-13 Amdt.
RSNL1990 cF-2 Amdt.
SNL2005 cF-3.1 Amdt.
SNL1995 cF-6.1 Amdt.
RSNL1990 cJ-4 Amdt.
RSNL1990 cL-14 Amdt.
SNL2009 cM-1.02 Amdt.
SNL2008 cP-7.01 Amdt.
SNL2009 cP-46.1 Amdt.
SNL2016 cS-12.3 Amdt.
SNL2009 cV-6.01 Amdt.
NLR 39/17 Amdt.
NLR 28/07 Amdt.
SNL1986 c42
Schedule D Amdt.
Repeal
Commencement
Schedule
Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Children, Youth
and Families Act .
PART I
INTERPRETATION
Interpretation
(1) In
this Act
(a) "agency licence" means a licence
issued under paragraph 71(1)(a);
(b) "alternate dispute resolution" means
a process for resolving disputes,
other than litigation, that is approved by a provincial director;
(c) "care" means the physical daily care
and nurturing of a child or youth;
(d) "child" means a person actually or
apparently under 16 years of age;
(e) "court" means the Supreme Court -
Family Division or the Provincial
Court ;
(f) "cultural connection plan" means a
description of the arrangements made or being made to foster an Indigenous
child's or Indigenous youth's connection with his or her culture, heritage,
traditions, community, language and spirituality to preserve the Indigenous
child's or Indigenous youth's cultural identity;
(g) "custody" means the rights and
responsibilities of a parent in respect of a child or youth;
(h) "department" means the department
presided over by the minister;
(i) "facility" means a residence owned
or operated by a licensee where a child or youth placed with that licensee
resides;
(j) "family-based placement provider
licence" means a licence issued under paragraph 71(1)(b);
(k) "family group conference" means a
formal planning and decision making meeting, facilitated by an independent
co-ordinator, which brings together the parent, family or other person
significant to the child, social workers and other service providers to develop
a plan for a child's safety, permanency and well-being;
(l) "foster care placement" means
placement of a child or youth who is in the care or custody of a manager
(
i) with a foster parent,
(ii) in a residential placement,
(iii) with a family-based placement provider
licensee, or
(iv) with a residential placement provider
licensee;
(m) "foster parent" means a person with
whom a child or youth, who is in the care or custody of a manager is placed and
by agreement with a manager, has assumed responsibility for the daily care and supervision
of the child or youth in a family environment, and includes kin but does not
include the parent;
(n) "Indigenous child" means
(
i) an Inuit child,
(ii) a Mtis child,
(iii) an Innu, Mi'kmaq or other First Nations child,
(iv) a child who has a parent who considers the
child to be Indigenous, or
(
v) a person who is at least 12 years of age but under
the age of 16 and who considers himself or herself to be Indigenous;
(o) "Indigenous government or
organization" means the entities prescribed in the Schedule;
(p) "Indigenous representative" means a
person designated by an Indigenous government or organization;
(q) "Indigenous youth" means
(
i) an Inuit youth,
(ii) a Mtis youth,
(iii) an Innu, Mi'kmaq or other First Nations youth,
(iv) a youth who considers himself or herself to be
Indigenous;
(r) "judge" means a judge of the court;
(s) "kin" means family and other persons
who are significant to a child or youth or with whom a child or youth has a
connection;
(t) "licence" means
(
i) an agency licence,
(ii) a family-based placement provider licence, or
(iii) a residential placement provider licence;
(u) "manager" means a manager appointed
under
section 4;
(v) "mediation" means a voluntary
process in which a mediator assists the parent, family, other person
significant to the child, social workers, lawyers and other service providers
to discuss and resolve the referred issues;
(w) "minister" means the minister
appointed under the Executive Council Act
to administer this Act;
(x) "parent" means
(
i) the
custodial mother of a child or youth,
(ii) the
custodial father of a child or youth,
(iii) a
custodial step-mother of a child or youth,
(iv) a custodial step-father of a child or youth,
(
v) a
non-custodial mother of a child or youth who regularly exercises or attempts to
exercise rights of access,
(vi) a
non-custodial father of a child or youth who regularly exercises or attempts to
exercise rights of access,
(vii) a
person to whom custody of a child or youth has been granted by a written
agreement or by a court order, or
(viii) a
person who is responsible for the child's or youth's care and with whom the
child or youth resides, except a foster parent;
(y) "peace officer" means a member of
the Royal Newfoundland Constabulary, a member of the Royal Canadian Mounted
Police and a person approved by the Attorney General to perform the duties of a
peace officer;
(z) "provincial director" means a provincial director appointed under
section
(aa) "public body" means public body as
defined in the Access to Information and
Protection of Privacy Act, 2015 ;
(bb) "qualified health practitioner"
means a physician, nurse, nurse practitioner, licensed practical nurse, dentist
or dental hygienist;
(cc) "residential placement" means a
residence for children and youth in the care or custody of a manager in which
staff provide daily care and supervision;
(dd) "residential placement provider
licence" means a licence issued under paragraph 71(1)(c);
(ee) "social worker" means a person
(
i) registered under the Social Workers Act , and
(ii) employed by the department; and
(ff) "youth" means a person who is at
least 16 years of age but under 18 years of age.
(2) Notwithstanding paragraph (1)(r), in the
expanded service area referred to in subsection 43.5(5) of the Judicature Act, "judge" means
a Provincial Court judge.
(3) For the purpose of sections 20 and 22, in the
judicial area referred to in subsection 43.5(4) of the Judicature Act , "judge" means a judge of the Supreme
Court - Family Division or a Provincial
Court judge.
Labrador Inuit
rights
3. This
Act and regulations made under this Act shall be read and applied in conjunction
with the Labrador Inuit Land Claims
Agreement Act and, where a provision of this Act or regulations made under this
Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act ,
the provision, term or condition of the Labrador
Inuit Land Claims Agreement Act shall have precedence over the provision of
this Act or a regulation made under this Act.
Managers
(1) The
minister shall appoint one or more managers who shall exercise the powers and
perform the duties that are conferred or imposed upon them by this Act and the regulations.
(2) An appointment under subsection (1) shall be
advisable.
(3) A manager appointed under subsection (1) may
designate a person who is a social worker as an acting manager to exercise the
powers and perform the duties of that manager where the manager is absent or unable
to act.
(4) A person appointed as a manager under
subsection (1) shall be a social worker.
Social worker not
available
5. Where
a social worker is not available, the minister may authorize another person to
perform the duties or exercise the powers of a social worker under this Act and
Provincial directors
(1) The minister shall appoint one or more
provincial directors who shall perform the duties and exercise the powers that
are conferred or imposed upon them by this Act and the regulations.
(2) A provincial director shall be responsible for
(
a) establishing
province-wide policies, programs and standards;
(
b) evaluating
and monitoring adherence to the established policies, programs and standards;
and
(
c) advising and reporting to the minister on
matters related to this Act and the regulations.
Protection from
liability
7. A
manager, social worker, provincial
director or other person, except a licensee or a director, officer, employee,
consultant or agent of a licensee, is not personally liable for anything done
or omitted in good faith in the exercise or performance, or intended exercise
or performance, of
(
a) a
power, duty or function conferred upon him or her by this Act or the regulations;
(
b) a
power, duty or function on behalf of or under the direction of a person on whom
the power, duty or function is conferred by this Act or the regulations,
or for the costs in connection with an
action or proceeding.
PART II
PURPOSE AND GENERAL PRINCIPLE
Purpose
8. The
purpose of this Act is to promote
the safety and well-being of children and youth who are in need of protective
intervention by offering, where available and appropriate, services that are
designed to maintain, support and preserve the family where it is in the best
interests of children and youth.
General principle
(1) This
Act shall be interpreted and administered in accordance with the principle that
the overriding and paramount consideration in a decision made under this Act
shall be the best interests of the child or youth.
(2) In determining a child's or youth's best
interests, all relevant factors shall be considered, including
(
a) the child's or youth's safety, health and
well-being;
(
b) the child's or youth's physical, emotional and
developmental needs;
(
c) the child's or youth's relationship with
family or a person significant to the child or youth;
(
d) the child's or youth's opinion regarding his
or her care and custody or the provision of services;
(
e) the child's or youth's identity and cultural
and community connections;
(
f) the importance of preserving an Indigenous
child's or Indigenous youth's unique cultural identity;
(
g) the importance of stability and permanency in
the context of the child's or youth's care; and
(
h) the importance of family as the preferred environment
for the care and upbringing of a child or youth.
(3) Where there is a conflict between paragraphs
(2)(
a) and (h), paragraph (2)(
a) shall prevail.
PART III
PROTECTIVE INTERVENTION
Definition of
child in need of protective intervention
(1) A
child is in need of protective intervention where the child
(
a) is being, or is at risk of being, physically
harmed by the action or lack of appropriate action by the child's parent;
(
b) is being, or is at risk of being, sexually
abused or exploited by the child's parent;
(
c) is being, or is at risk of being, emotionally
harmed by the parent's conduct and there are reasonable grounds to believe that
the emotional harm suffered by the child, or that may be suffered by the child,
results from the actions, failure to act or pattern of neglect on the part of
the child's parent;
(
d) is being, or is at risk of being, physically
harmed by a person and the child's parent does not protect the child;
(
e) is being, or is at risk of being, sexually
abused or exploited by a person and the child's parent does not protect the
child;
(
f) is being, or is at risk of being, emotionally
harmed by a person and the child's parent does not protect the child;
(
g) is in the custody of a parent who refuses or
fails to obtain or permit essential medical, psychiatric, surgical or remedial
care or treatment to be given to the child when recommended by a qualified
health practitioner;
(
h) is abandoned;
(
i) has no living parent and no adequate provision
has been made for the child's care;
(
j) has no parent available to care for the child
and the parent has not made adequate provision for the child's care;
(
k) has no parent able or willing to care for the
child;
(
l) is living in a situation where there is
violence or is living in a situation where there is a risk of violence;
(
m) is living with a parent whose actions show a
propensity to violence or who has allegedly killed or seriously injured another
person;
(
n) has a parent who exercises access whose
actions show a propensity to violence or who has allegedly killed or seriously
injured another person;
(
o) has been left without adequate supervision
appropriate to the child's developmental level; or
(
p) is actually or apparently under 12 years of
age and has
(
i) allegedly killed or seriously injured another
person or has caused serious damage to another person's property, or
(ii) on more than one occasion caused injury to
another person or other living thing or threatened, either with or without
weapons, to cause injury to another person or other living thing, either with
the parent's encouragement or because the parent does not respond adequately to
the situation.
(2) For the purposes of paragraphs (1)(
c) and (f),
the indicators of emotional harm exhibited or demonstrated by a child may include
(
a) depression;
(
b) significant anxiety;
(
c) significant withdrawal;
(
d) self-destructive behaviour;
(
e) aggressive behaviour; or
(
f) delayed development.
(3) For the purposes of paragraph (1)(c), parental
conduct or living situations that may lead to emotional harm or risk of emotional
harm to the child may include
(
a) rejection;
(
b) social deprivation;
(
c) deprivation of affection;
(
d) deprivation of cognitive stimulation;
(
e) subjecting the child to inappropriate
criticism, threats, humiliation, accusations or expectations;
(
f) living in a situation where the mental or
emotional health of a parent is negatively affecting the child;
(
g) living in a situation where a parent is an
abuser of alcohol or drugs; or
(
h) living in a situation where there is violence.
Duty to report
(1) Where
a person has information that a child or youth is or may be in need of
protective intervention, the person shall immediately report the information to
a manager, social worker or peace officer.
(2) For the purposes of this section, a youth is
in need of protective intervention if the youth meets one or more of the
criteria set out in
section 10.
(3) Where a person makes a report under subsection
(1), the person shall report all the information of which he or she has knowledge.
(4) Where a report is made to a peace officer
under subsection (1), the peace officer shall, as soon as possible after
receiving the report, inform a manager or social worker.
(5) This
section applies, notwithstanding the
provisions of another Act, to a person referred to in subsection (6) who, in
the course of his or her professional duties, has information that a child or
youth is or may be in need of protective intervention.
(6) Subsection (5) applies to every person who
performs professional or official duties with respect to a child or youth,
including
(
a) a health care professional;
(
b) a teacher, educational psychologist, guidance
counsellor, school principal, social worker, family counsellor, member of the
clergy or religious leader, persons involved in operating or providing a child
care service or agency, a youth worker and a recreation worker;
(
c) a peace officer; and
(
d) a solicitor.
(7) This
section applies notwithstanding that the
information is confidential or privileged, and an action does not lie against
the informant unless the making of the report is done maliciously or without
reasonable cause.
(8) A person shall not interfere with or harass a
person who gives information under this section.
(9) A person who contravenes this
section is guilty
of an offence and is liable on
summary conviction to a fine not exceeding
$10,000 or to imprisonment for a term not exceeding 6 months, or to both a fine
and imprisonment.
(10) Notwithstanding
section 7 of the Provincial Offences Act , an information or complaint under this
section may be laid or made within 3 years from the day when the matter of the
information or complaint arose.
Determining need
for protective intervention
(1) Where a manager or social worker receives information in the form of
(
a) a
request for protective intervention services with respect to a child;
(
b) a
report under
section 11 with respect to a child; or
(
c) other
evidence that a child may be in need of protective intervention,
the manager or social worker shall
investigate whether the child is in need of protective intervention unless,
upon assessment, the manager or social worker is satisfied that the information
provided was without merit or without reasonable grounds.
(2) Where,
after an investigation referred to in subsection (1), the manager or social worker has determined that the child is in need of
protective intervention, the
manager or social worker shall
(
a) enter
into a written agreement with the parent outlining the plan for the child and
the child's parent with respect to the required services; or
(
b) where
the manager or social worker is not satisfied that the child's need for
protective intervention can be met under paragraph (a), take whatever action
under this Act or the regulations that the manager or social worker considers
appropriate.
(3) Where,
(
a) upon assessing information received under
subsection (1), a manager or social worker is satisfied that the information
provided was without merit or without reasonable grounds; or
(
b) after an investigation referred to in
subsection (1), a manager or social worker has determined that the child is not
in need of protective intervention,
the manager or social worker may, where
appropriate, refer the child or the child's parent to health care, social, legal
or other services which may assist the child or the child's parent and may, in
exceptional circumstances, enter into a written agreement outlining the plan
for the child and the child's parent with respect to the required services.
(4) Where a manager or social worker receives
information in the form of
(
a) a request for protective intervention services
with respect to a youth;
(
b) a report under
section 11 with respect to a
youth; or
(
c) other evidence that a youth may be in need of
protective intervention,
the manager or social worker shall attempt
to engage the youth to assess the youth's need for protective intervention and
may enter into an agreement for services with the youth in accordance with
section 88.
(5) Where a manager or social worker has information
that the youth may be unable to protect himself or herself due to a lack of mental
capacity, the manager or social worker shall assess whether the youth is in
need of protective intervention unless, upon assessment, the manager or social
worker is satisfied that the information provided was without merit or without
reasonable grounds.
(6) For the purposes of this section, a youth is
in need of protective intervention if the youth meets one or more of the
criteria set out in
section 10.
(7) An agreement under this
section shall set out
the responsibilities of each party to the agreement.
Family group
conference and alternate dispute resolution
(1) A
manager or social worker may use a family group conference, mediation or
another form of alternate dispute resolution to establish, replace or amend the
plan referred to in
section 12.
(2) Where a family group conference, mediation or
another form of alternate dispute resolution is agreed upon, the parties shall
enter into a written agreement to participate in the process.
(3) An issue with respect to a plan referred to in
section 12 may be included in a family group conference, mediation or another
form of alternate dispute resolution, other than the determination by a manager
or social worker that the child is in need of protective intervention and the
factors that led to that determination.
Interview of
child
(1) Where a person has custody, care or supervision of a child and that child is
the subject of an investigation under this Act or has been determined to be in
need of protective intervention, that person shall when requested by a manager
or a social worker
(
a) identify the child; and
(
b) permit
the child to be visited, observed and interviewed by a manager or social worker,
in private where in the opinion of the manager or social worker it is
appropriate, at a place where the child is located.
(2) A manager or social worker shall, before or
after an interview under subsection (1), notify the parent of the interview.
Manager denied
access to child
(1) Where
a manager or social worker is denied access to a child and he or she believes
that access to the child is necessary to determine if the child is in need of
protective intervention, the manager or social worker may, without notice,
apply to a judge for an order and the judge may make an order
(
a) that a person disclose the location of the
child;
(
b) that a person permit the manager or social
worker or another person to interview or visually examine the child;
(
c) authorizing the manager or social worker to
remove the child from the place where the child is located for an interview or
medical examination; and
(
d) authorizing a qualified health practitioner to
examine the child.
(2) The judge may attach those conditions to an
order under this
section that the judge considers appropriate.
(3) Where a child is removed from the place where
the child was located for an interview or medical examination, a manager or
social worker shall return the child to the parent or other person from whom
the child was removed unless the manager or social worker proceeds under
section
(4) At the request of a manager or social worker,
a peace officer shall assist in enforcing an order made under this section.
Location of child
not disclosed
(1) Where
a person does not comply with an order under
section 15, a judge may issue a
warrant for the person's arrest to bring him or her before the judge to explain
why the order should not be enforced.
(2) Where a person referred to in subsection
(1) appears before a judge and the judge believes that the person's reasons for
being unable or unwilling to comply with the order are not valid, the judge may
order that the person be imprisoned for 30 days or until the person complies
with the order, whichever is the shorter period of time.
Order to produce
record
(1) Where a manager or social worker files an application with the court, a judge
may order a person or public body to produce information that is written,
photographed, recorded or stored by other means for inspection by the manager
or social worker where
(
a) the requirements of paragraphs 96(1)(
a) and
(
b) are met or there are
reasonable grounds to believe that the information is necessary for determining
whether a child is or remains in need of protective intervention;
(
b) there
are reasonable grounds to believe that the person or public body has possession
or control of the information; and
(
c) the
person or public body has neglected or refused, upon request of the manager or
social worker, to produce the information.
(2) Not later than 2 days before the date set for
hearing an application under subsection (1), notice of the date, time and place
of the hearing shall be served on the person or public body against whom the order
is sought.
(3) Notwithstanding subsection (2), where a
manager or social worker believes on reasonable grounds that the information
may be destroyed if notice is given, application may be made under subsection
(1) without notice.
Order to prohibit
(1) Where
there are reasonable grounds to believe that contact between a child and
another person would cause the child to be in need of protective intervention,
a manager or social worker may file an application with the court for an order
to prohibit contact between the child and that person.
(2) The date set for hearing the application under
subsection (1) shall be not later than 2 days after the application is filed,
and notice of the hearing shall be served on the day the application is filed.
(3) Notice of the date, time and place of the
hearing shall be served on
(
a) the person against whom the order is sought;
(
b) a parent; and
(
c) the child, where the child is 12 years of age
or older.
(4) When a person against whom an order is sought
or a parent is served with notice under subsection (3), that person shall also
be served with a copy of the application.
(5) Where a hearing under this
section has not
been concluded and it is in the best interests of the child, the judge may do
one or more of the following:
(
a) prohibit
the person against whom the order is sought from contacting or interfering
with, or trying to contact or interfere with, the child, or from entering a
place where the child is located, until the conclusion of the hearing under
this section;
(
b) prohibit
the person against whom the order is sought from residing with the child, or
entering premises where the child resides including premises that the person
owns or has a right to occupy, until the conclusion of the hearing under this
section; and
(
c) impose those conditions that the judge
considers appropriate for implementing the order and protecting the child.
(6) Where a judge is satisfied that there are
reasonable grounds to believe that contact between a child and a person named
in an application under subsection (1) would cause the child to be in need of
protective intervention, the judge may do one or more of the following:
(
a) prohibit the person against whom the order is
sought from contacting or interfering with, or trying to contact or interfere
with, the child, or from entering a place where the child is located, for a
period of up to 6 months;
(
b) prohibit the person against whom the order is
sought from residing with the child, or entering premises where the child
resides, including premises that the person owns or has a right to occupy, for
a period of up to 6 months; and
(
c) impose those conditions that the judge
considers appropriate for implementing the order and protecting the child.
(7) Before an order to prohibit contact between a
child and another person expires, a manager, social worker or person named in
the order may file an application with the court and the judge may
(
a) make another order;
(
b) vary the order; or
(
c) rescind the order.
(8) Where a person is subject to an order to
prohibit contact and an
application for a subsequent order to prohibit contact is filed but not heard
before the expiration of the existing order, the person shall remain subject to
the order until the application is heard and decided.
(9) At the request of a manager or social worker,
a peace officer shall assist in enforcing an order made under this section.
(10) An order under this
section may be made at any
time, including before, during or after another hearing.
Short term care
in home
(1) Where
a manager or social worker believes a child is without adequate supervision
when premises are entered under this Act, the manager or social worker may
arrange for short term care in the home to be provided until other supervision
considered adequate by the manager or social worker is available for the child,
but the period of care shall not exceed 72 hours.
(2) Where short term care is provided under subsection
(1), a person approved by the manager or social worker may enter the premises
where the child is located and care for the child.
(3) A manager or social worker shall make all
reasonable efforts to notify a parent of an action taken by the manager or social
worker under this section.
Removal of child
(1) A
manager or social worker shall apply to the court for a warrant to remove a
child where he or she believes
(
a) that the child is in need of protective
intervention; and
(
b) a less intrusive course of action that would
adequately protect the child is not available.
(2) A judge may issue a warrant authorizing a
manager or social worker to enter a premises or vehicle or board a vessel or
aircraft, by force if necessary, to remove a child where he or she is satisfied
on the basis of a manager's or social worker's sworn information that there are
reasonable grounds to believe that
(
a) the child is in need of protective
intervention; and
(
b) a less intrusive course of action that would
adequately protect the child is not available.
(3) Notwithstanding subsection (1), where a
manager or social worker has reasonable grounds to believe there would be an
immediate risk to the child's health and safety if no action were taken during
the time required to obtain a warrant, the manager or social worker may enter a
premises or vehicle or board a vessel or aircraft, by force if necessary, to
remove a child without a warrant.
(4) At the request of a manager or social worker,
a peace officer shall assist in enforcing a warrant issued under subsection
(2), or if a warrant is not obtained, the peace officer shall assist a manager
or social worker under subsection (3).
(5) A warrant issued under subsection (2) need not
describe the child by name or specify a particular premises.
(6) Notwithstanding subsection (1), a warrant is
not required for the removal of a child where the child is in the care of a
manager under an agreement between a manager and a parent entered into under
section
12, and the agreement expires or is about to expire or is repudiated or is
about to be repudiated by the parent, and a manager or social worker believes
the child is in need of protective intervention.
Removal of youth
(1) A
manager or social worker may remove a youth where he or she determines that
(
a) the youth is in need of protective
intervention;
(
b) a less intrusive course of action that will
adequately protect the youth is not available; and
(
c) the youth is unable to protect himself or
herself due to a lack of mental capacity.
(2) For the purposes of this section, a youth is
in need of protective intervention if the youth meets one or more of the
criteria set out in
section 10.
(3) Where a youth is removed under this section,
Part
V and the provisions of this Act that apply to the removal of a child and determining
the need for protective intervention, except
section 33, apply as if that youth
were a child.
Telewarrants
(1) Where,
in the opinion of a manager or social worker it would not be practical to
appear in person before a judge to apply for a warrant, the manager or social
worker may make the application by telephone or other means of
telecommunication.
(2) Where a manager or social worker removes a
child under the authority of a warrant obtained under this section, the manager
or social worker shall provide the person from whom the child was removed with
a facsimile of the warrant.
(3) In subsection (2), "facsimile"
includes a record produced by electronic means or a written record of a
telephone conversation made by both parties to the conversation while it is in
progress and which the parties have confirmed as to its accuracy by reading
their record of the conversation to one another at the end of the conversation.
Notice of removal
of child
(1) Where
a child is removed, with or without a warrant, from the care of a parent or
other person, a manager or social worker shall serve written notice of the
removal on the parent, and the child, where the child is 12 years of age or older,
within 24 hours after the removal stating the reason why the child was removed.
(2) A parent who is given a notice under
subsection (1) shall be informed that he or she may be represented by legal
counsel.
Interim care of
child after removal
(1) Where
a child is removed under
section 20, a manager has interim care of the child
until
(
a) the child is returned under
section 48 to the
parent from whom the child was removed; or
(
b) a judge makes an order at a presentation
hearing under
section 31.
(2) While the manager has interim care of the
child, the manager or a social worker may
(
a) authorize a qualified health practitioner to
examine the child; and
(
b) consent to necessary health care for the child
where the parent cannot be contacted if, in the opinion of a qualified health
practitioner, the health care should be provided without delay.
(3) On consenting to necessary health care for the
child, a manager or social worker shall notify the parent from whom the child
was removed.
(4) Where a child is removed, while hospitalized,
from his or her parent by a manager or social worker, the hospital
administration and the attending physician shall be advised that the child has
been removed from the parent and that the manager has interim care of the
child.
PART IV
COURT PROCEEDINGS
Where child is
not removed
(1) Where
a manager or social worker believes on reasonable grounds that
(
a) a child is in need of protective intervention;
(
b) the
child's safety
(
i) could
be assured without removing the child with the provision of protective intervention
services, or
(ii) could
not be assured without removing the child and a warrant under
section 20 has
been denied; and
(
c) a parent is unwilling to accept protective
intervention services for the child,
the manager or social worker shall file an
application with the court for a protective intervention hearing and an order
that the child is in need of protective intervention.
(2) A
hearing under this
section shall be held within 10 days of the filing of the
application under subsection (1).
(3) Notice of the time and place of a hearing
under this
section shall be served not later than 3 days after the date for the
hearing is obtained on
(
a) a parent;
(
b) the child, where the child is 12 years of age
or older; and
(
c) the Indigenous representative of the
appropriate Indigenous government or organization, where a manager or social
worker believes the child is an Indigenous child.
(4) When a parent is served with a notice under
subsection (3), that parent shall also be served with a copy of the application.
(5) Where an application is made under this section,
a judge may make an order under
section 32.
Where child has
been removed
26. Where
a child has been removed, the manager or social worker shall, within 24 hours
after the removal of the child, file an application with the court for a
protective intervention hearing, which shall be held not later than 30 days
after the child's removal, and for an order that the child is in need of
protective intervention.
Notice of hearings
where child removed
(1) Where a child has been removed and a manager or social worker applies for a
protective intervention hearing, he or she shall at the same time be given a
date for a presentation hearing, which shall be held not later than 10 days
after the date on which the application is filed.
(2) Notice of the time and place of a presentation
hearing and a protective intervention hearing shall be served not later than 3
days after the dates for the hearings are obtained on
(
a) a parent;
(
b) the child, where the child is 12 years of age
or older; and
(
c) t he
Indigenous representative of the appropriate Indigenous
government or organization , where
a manager or social worker believes the child is an Indigenous child.
(3) When a parent is served with a notice under subsection
(2), that parent shall also be served with
(
a) a copy of the application;
(
b) a written report of the circumstances that led
to the removal of the child; and
(
c) the manager's or social worker's plan for the
child until the protective intervention hearing.
When sixteenth
birthday intervenes
(1) An order for supervision, interim custody or temporary custody ceases to have
effect on the child's sixteenth birthday.
(2) Notwithstanding subsection (1), where an
application for an order of continuous custody has been filed before the
child's sixteenth birthday, the order for supervision, interim custody or
temporary custody has effect until that application is heard and decided.
(3) Notwithstanding another provision of this Act,
where a person was a child when an application for an order of continuous custody
was filed, the court may hear and determine the matter as if the person were
still a child even though the person has had his or her sixteenth birthday
before the order was made.
(4) Where the court hears a matter referred to in
subsection (3), the judge shall order that
(
a) the child be placed in the continuous custody of a manager;
(
b) custody of the child be permanently
transferred to a person other than
a parent from whom the child was removed with the consent of that person; or
(
c) the child be returned to the parent from whom the child was removed.
(5) An order made under paragraph (4)(
a) may
contain reasonable conditions.
(6) An
order made under paragraph (4)(
b) may contain reasonable conditions that apply
to the person to whom custody of the child is permanently transferred but shall
not contain conditions that apply to a manager, a social worker or the department.
(7) An order made under paragraph (4)(
c) shall not
contain conditions.
(8) A continuous custody order made before a child's
sixteenth birthday shall continue in effect until terminated in accordance with
section 42 and any provisions of this Act which apply to the order shall apply
to him or her as if he or she were a child.
Plan for child
(1) A
manager or social worker shall file with the court, not later than noon on the day before the
presentation hearing or a hearing referred to in
section 25 is scheduled, a
plan for the child and provide a copy to those persons who have been served
with a copy of the application.
(2) A person who has received a plan under subsection
(1) may respond to the plan by filing an alternate plan with the court and, in
that case, shall provide a copy of that alternate plan to the manager or the social
worker.
(3) A plan filed under subsection (1) shall include
(
a) a description of the services required to
address the situation or issues on the basis of which the child was determined
to be in need of protective intervention;
(
b) a description of the indicators by which the
manager or social worker will determine when custody or supervision may no
longer be required;
(
c) an estimate of the time required to achieve
the purpose of the intervention;
(
d) information respecting previous involvement
with the child, or a parent, under this or a predecessor Act, that is relevant
to the plan;
(
e) where
the child has been removed from a parent's care,
(
i) an
explanation of why the child cannot be adequately protected while in the parent's
care and a description of past efforts to do so,
(ii) an
explanation of the efforts planned to maintain the child's contact with the
parent, family or other person significant to the child,
(iii) a
description of the arrangements made or being made for the child's stability
and permanency, and
(iv) a description of the arrangements made or
being made to recognize the importance of the child's identity and cultural and
community connections, or, where the child is an Indigenous child, a cultural
connection plan.
(4) A revised plan may be filed before the
conclusion of the protective intervention hearing.
Order for medical
treatment
(1) Where
a manager or social worker believes a child is in need of protective
intervention because of his or her parent's refusal or failure to obtain or
permit essential medical, psychiatric, surgical or remedial treatment that is
recommended for the child by a qualified health practitioner, the manager or
social worker may file an application with the court for an order authorizing
the treatment.
(2) A parent and the child, where he or she is 12
years of age or older, shall be served with notice of the time and place of a
hearing under this
section which shall be held within one day after filing the
application.
(3) A judge may
(
a) hear the application at any time or place;
(
b) receive evidence by telephone or other means
of telecommunication; and
(
c) administer an oath or affirmation by telephone
or other means of telecommunication.
(4) Where a judge finds that a child is in need of
protective intervention for a reason referred to in subsection (1), the judge
may so declare and make an order authorizing the treatment recommended by a
qualified health practitioner.
(5) Where a child's treatment is authorized by an
order under this section, no liability attaches to the person treating the
child by reason only that the parent did not consent to the treatment.
Presentation hearing
(1) A
presentation hearing
(
a) may be conducted by a judge in an informal
manner; and
(
b) shall be concluded within one day, unless
extended by the judge.
(2) At the conclusion of a presentation hearing, a
judge may
(
a) dismiss the application for a protective
intervention hearing;
(
b) order that the child be returned to or remain
with the parent under the supervision of a manager until the conclusion of the
protective intervention hearing;
(
c) order that the child be placed in the custody
of a parent, other than the parent from whom the child was removed, under the
supervision of a manager until the conclusion of the protective intervention
hearing;
(
d) order that the child be placed in the care of
the child's family or a person significant to the child, other than the parent
from whom the child was removed, under
the supervision of a manager until the conclusion of the protective
intervention hearing;
(
e) order that the child be placed in the custody
of a manager until the conclusion of the protective intervention hearing; or
(
f) make a declaration that the child is in need
of protective intervention and make an order under subsection 32(2).
(3) Where a judge makes an order under paragraphs
(2)(
a) to (e), the judge may attach reasonable conditions to that order,
including conditions with respect to
(
a) the child's contact with a parent, unless the
judge is satisfied that continued contact with the parent would not be in the
best interests of the child;
(
b) the child's contact with a person significant
to the child; and
(
c) the assessment, treatment or services to be
obtained by the child or the child's parent,
but an order shall not contain conditions
with respect to the type or the geographic location of the placement for the
child.
Protective
intervention hearing
(1) At
a protective intervention hearing, a judge shall determine whether a child is
in need of protective intervention.
(2) Where a judge finds that a child is in need of
protective intervention, the judge shall so declare and order that
(
a) the child be returned to or remain with the
parent and under a manager's supervision for a specified period of up to 6
months;
(
b) the child be placed in the temporary custody
of the child's family or a person significant to the child, other than the
parent from whom the child was removed, with the consent of that person and
under a manager's supervision, for a specified period in accordance with
section 33;
(
c) the child be placed in the temporary custody
of a manager for a specified period in accordance with
section 33;
(
d) the child be placed in the continuous custody
of a manager; or
(
e) custody of the child be permanently transferred
to a person, other than the parent from whom the child was removed, where
(
i) the person to whom custody is to be permanently
transferred consents,
(ii) the child consents, where the child is 12
years of age or older, and
(iii) the child has been residing with the person to
whom custody is to be permanently transferred for a period of 6 consecutive
months immediately before the application for the protective intervention
hearing is filed.
(3) Where a judge makes an order for supervision
under paragraph (2)(a), the judge may attach reasonable conditions to that
order, including conditions with respect to the assessment, treatment or services
to be obtained by the child or the child's parent.
(4) Where a judge makes an order for temporary
custody under paragraph (2)(
b) or (c), the judge may attach reasonable conditions
to that order, including conditions with respect to
(
a) the
child's contact with a parent, unless the judge is satisfied that continued
contact with the parent would not be in the best interests of the child;
(
b) the
child's contact with a person significant to the child; and
(
c) the
assessment, treatment or services to be obtained by the child or the child's
parent.
(5) Notwithstanding subsection (4), an order under
paragraph (2)(
c) shall not contain conditions with respect to the type or
geographical location of the placement of the child.
(6) Where a judge makes an order for continuous
custody under paragraph (2)(d),
(
a) the
judge may attach reasonable conditions to that order; and
(
b) the manager has custody of the child and has
all the rights and responsibilities of a parent for the child's care and future
planning.
(7) Where a judge makes an order for a permanent
transfer of custody under paragraph (2)(e), the order may contain reasonable conditions
that apply to the person to whom custody of the child is permanently transferred
but shall not contain conditions that apply to a manager, a social worker or the department.
(8) Where the judge finds that the child is not in
need of protective intervention, the judge shall so declare and shall make an
order that the child remain with or be returned to the parent from whom the
child was removed and the order shall not contain conditions.
(9) Where
a judge makes an order for supervision under paragraph (2)(
a) or an order for
temporary custody under paragraph 2(
b) and a person fails to comply with the
order, the manager or social worker may make an application to the court to
vary the conditions of the order or request another order under paragraphs
(2)(
a) to (e).
(10) The date set for the hearing of the
application under subsection (9) shall be not later than 5 days after the
application is made.
(11) Notice of the time and place of the hearing under
subsection (9) shall be served on the day the application is filed on all
persons who were served with notice of the protective intervention hearing at
which the order was made.
(12) When a parent is served with a notice under
subsection (11), that parent shall also be served with a copy of the application.
(13) Where a manager or social worker makes an
application under subsection (9), a judge may
(
a) vary the conditions of the order issued under
paragraph (2)(
a) or (b); or
(
b) make another order under paragraphs (2)(
a) to
(e).
Time limits for
temporary custody orders
(1) Where
a judge makes an order for temporary custody under paragraph 32(2)(
b) or (c),
the term of the order shall not exceed
(a) 6 months for a first order;
(b) 3 months for a second order where the child
who is the subject of the order is under 6 years of age when that order is
made; and
(c) 6 months for a second order where the child
who is the subject of the order is 6 years of age or older when that order is
made,
with a maximum of 2 orders in total during
the child's life.
(2) Notwithstanding subsection (1), a third order
may be made where
(
a) there are exceptional circumstances that in
the opinion of the judge warrant exceeding the lifetime maximum of 2 orders;
and
(
b) the parent has demonstrated that he or she may
reasonably be expected to resume the custody of the child within a reasonable period,
but the term of a third order shall not
exceed
(c) 3 months where the child who is the subject of
the order is under 6 years of age when that order is made; or
(d) 6 months where the child who is the subject of
the order is 6 years of age or older when that order is made.
Adjournment
(1) A
judge may adjourn a proceeding under this Act one or more times, for a total
period of up to 3 months, to allow
(
a) a judicial case conference, family group
conference, mediation or another form of alternate dispute resolution to proceed;
(
b) an assessment to be completed, where that
assessment is considered necessary by a judge, manager or social worker.
(2) Where a proceeding is adjourned under
subsection (1) a time limit applicable to the proceeding is suspended.
(3) Where, as a result of a family group
conference or mediation, a written agreement is made, a manager or social
worker shall file the agreement with the court.
When time limits
expire
(1) Where all of the time limits contained in
section 33 have expired, a judge
shall order that
(
a) the child be placed in the continuous custody
of a manager;
(
b) custody of the child be permanently transferred
to a person, other than a parent from whom the child was removed; or
(
c) the child be returned to the parent from whom
the child was removed.
(2) An order made under paragraph (1)(
a) may
contain reasonable conditions.
(3) An order made under paragraph (1)(
b) may
contain reasonable conditions that apply to the person to whom custody of the
child is permanently transferred but shall not contain conditions that apply to
a manager, a social worker or the department.
(4) An order made under paragraph (1)(
c) shall not
contain conditions.
Subsequent order
(1) Before
an order for supervision or an order for temporary custody expires, a manager
or social worker may file an application with the court for another order under
subsection 32(2).
(2) The manager's or social worker's plan for the
child shall include the content required for a plan under subsection 29(3) and
shall be attached to an application under subsection (1).
(3) Notice of the time and place of a hearing with
respect to an application under subsection (1) shall be served not later than
10 days before the hearing on
(
a) a parent;
(
b) the child, where the child is 12 years of age
or older; and
(
c) the Indigenous representative of the appropriate
Indigenous government or organization, where a manager or social worker believes
the child is an Indigenous child.
(4) When a parent is served with a notice under subsection
(3), that parent shall also be served with a copy of the application and the
manager's or social worker's plan for the child.
(5) At least 3 days before the date set for a
hearing, a parent who received a copy of a plan under subsection (4) may
respond to the manager's or social worker's plan for the child by filing an
alternate plan with the court and providing a copy to the manager or social
worker.
Bridging
provision
37. Where
a child is under the supervision of a manager under an order for supervision,
or is in the custody of a manager or another person under an order for
temporary custody, and an application for another order is filed but not heard
before the expiration of the order for supervision or order for temporary
custody, the child shall remain under the supervision of a manager under the
order for supervision, or in the custody of a manager or other person to whom
custody was granted under the order for temporary custody, until the application
is heard and decided.
Effect of interim
custody order
38. Where
an order for custody is made under paragraph 31(2)(e),
(
a) the
manager has custody of the child until the conclusion of the protective
intervention hearing and the manager or a social worker has the right to make all
decisions regarding the child until the conclusion of the protective
intervention hearing; and
(
b) the manager or a social worker may consent to
necessary health care for the child as recommended by a qualified health
practitioner, where the child's parent is unavailable or refuses to consent to
the health care.
Effect of
temporary custody order
39. Where
an order for temporary custody is made under paragraph 32(2)(c),
(
a) the manager has custody of the child for the
specified period and the manager or a social worker has the right to make all
decisions regarding the child during the specified period;
(
b) the manager or a social worker may consent to
necessary health care for the child as recommended by a qualified health
practitioner, where the child's parent is unavailable or refuses to consent to
the health care; and
(
c) the manager shall not consent to an adoption
of the child under the Adoption Act, 2013
without the consent of the parent from whom the child was removed.
Effect of continuous
custody order
(1) Where
an order for continuous custody is made under paragraph 32(2)(d),
(
a) the manager becomes the sole custodian of the
child and has the right to make all decisions regarding the child;
(
b) the manager or a social worker may consent to
the provision of health care for the child; and
(
c) the manager may consent to the adoption of the
child under the Adoption Act, 2013.
(2) An order for continuous custody of a child
does not affect the child's rights respecting inheritance or succession to
property.
(3) At
least 30 days before consenting to the adoption of the child under the Adoption Act, 2013 , the manager or a
social worker shall inform a person who, as a condition of an order for
continuous custody under paragraph 32(2)(d), was granted access with the child
or youth, of the manager's intention to consent to the adoption.
(4) An application for custody of or access to a
child under the Children's Law Act
shall not be made with respect to a child who is the subject of a continuous
custody order made under this Act.
Financial responsibility
(1) Where
a child or youth is in the interim, temporary or continuous custody of a
manager, upon application by a manager or social worker, a judge may order that
the obligation of the parents to provide support to the child or youth shall
continue subject to
Part III of the Family
Law Act .
(2) An order under subsection (1) shall be for the
benefit of the Crown or some other
person on the conditions and for the period the judge considers appropriate.
When continuous
custody order ceases to have effect
42. An order for continuous custody ceases to have
effect when
(
a) the
youth reaches 18 years of age;
(
b) the
youth marries;
(
c) custody of the child or youth is permanently
transferred to another person, other than to another manager under
section 46,
in accordance with an order issued under subsection 43(5); or
(
d) the
court rescinds the order.
Permanent
transfer of custody after continuous custody order
(1) Where
a manager or social worker believes it is in the best interests of a child or
youth and the child or youth is in the custody of a manager under a continuous
custody order, the manager or social worker may file an application with the
court for an order to permanently transfer custody of the child or youth to a
person other than a parent from whom the child or youth was removed.
(2) An application under subsection (1) shall not
be filed unless
(
a) all appeals related to the continuous custody
order have been heard and the continuous custody order has been upheld; and
(
b) the child or youth has been residing with the
person to whom custody is to be permanently transferred for at least 6
consecutive months immediately before the application.
(3) A hearing under this
section shall be held
within 30 days of the filing of the application under subsection (1).
(4) Notice of the time and place of a hearing
under this
section shall be served not later than 3 days after the filing of
the application under subsection (1) on
(
a) a person to whom custody is to be permanently
transferred;
(
b) the child, where the child is 12 years of age
or older, or the youth;
(
c) the
Indigenous representative of the appropriate Indigenous government or
organization, where a manager or social worker believes the child is an
Indigenous child or the youth is an Indigenous youth; and
(
d) a
person who, under an order for continuous custody under paragraph 32(2)(d), has
been granted access with the child or youth.
(5) A judge may make an order permanently
transferring custody of the child or youth from a manager to a person where
(
a) the person to whom custody is to be
permanently transferred consents;
(
b) the child, where the child is 12 years of age
or older, or the youth consents; and
(
c) he or she believes it is in the best interests
of the child or youth to do so.
(6) Where a judge makes an order permanently
transferring custody under subsection (5), the order may contain reasonable conditions that apply to the person to whom
custody of the child or youth is permanently transferred but shall not contain conditions
that apply to a manager, a social worker or the department.
Effect of permanent
transfer of custody order
(1) Where an order permanently transferring custody of a child or youth is made
under paragraph 28(4)(b), 32(2)(
e) or 35(1)(
b) or subsection 43(5), the person
to whom custody is transferred becomes the sole custodian and guardian of the
child or youth and has the right to make all decisions regarding the child or
youth.
(2) Notwithstanding subsection (1), the child's or
youth's rights respecting inheritance or succession to property are not
affected.
(3) An order permanently transferring custody of a
child or youth ceases to have effect when the youth reaches 18 years of age.
Rescinding continuous
custody order
(1) With
the leave of a judge, and where
(
a) the circumstances have changed significantly
since the time an order for continuous custody was made; and
(
b) a manager has not consented to the adoption of
the child or youth under the Adoption
Act, 2013 ,
a party to a hearing at which the order
was made may file an application with the court for the rescission of the
order.
(2) Where
a judge grants leave under subsection (1), notice of the time and place of a
hearing under this
section shall be served not later than 10 days before the
hearing on
(
a) the
manager;
(
b) a
parent;
(
c) a
child, where the child is 12 years of age or older, or a youth;
(
d) the
Indigenous representative of the appropriate Indigenous government or
organization, where a manager or social worker believes the child is an
Indigenous child or the youth is an Indigenous youth; and
(
e) any
other party to the continuous custody application.
(3) When a manager, a parent or another party to
the continuous custody application is served notice under subsection (2) he or
she shall also be served with a copy of the application.
(4) The
judge may make an order to rescind an order for continuous custody where he or
she believes it is in the best interests of the child or youth to do so.
Transfer of care,
supervision or custody between managers
(1) A
manager who has care, supervision or custody of a child or youth may transfer
care, supervision or custody to another manager.
(2) Where the care, supervision or custody of a
child or youth is transferred from one manager to another manager,
(
a) the other manager has care, supervision or
custody of the child or youth with the same rights and responsibilities as the
manager who made the transfer; and
(
b) the manager who made the transfer ceases to
have care, supervision or custody of the child or youth.
(3) The transfer of care, supervision or custody
is effective upon the filing of an amended order with the court which made the
original order.
Child returned
any time
47. A
child may be returned to the parent from whom the child was removed where
(
a) the circumstances have changed so that the
child in the opinion of a manager or social worker is no longer in need of
protective intervention; or
(
b) the parent enters into a written agreement
that is considered by a manager or social worker to be adequate to protect the
child.
Child returned
within 72 hours
48. Where
a child is returned to the parent from whom the child was removed within 72
hours of removal and an application has been filed with the court for a
protective intervention hearing, a manager or social worker shall
(
a) file a notice of discontinuance with the
court;
(
b) provide notice of the discontinuance to the
persons who received notice of the application for a protective intervention
hearing; and
(
c) file with the court and provide to a parent
who received notice of the discontinuance, a written explanation of the change
of circumstances referred to in paragraph 47(
a) or a copy of the agreement
referred to in paragraph 47(b).
Child returned
after 72 hours
(1) Where
a child is returned to the parent from whom the child was removed 72 hours or
more after removal but before the protective intervention hearing, a manager or
social worker shall
(
a) seek leave of a judge to withdraw the
application for a protective intervention hearing;
(
b) provide notice of the intention to seek leave
to withdraw the application to the persons who received notice of the application
for a protective intervention hearing; and
(
c) file with the court, and provide to a parent
who received notice, a written explanation of the circumstances referred to in
paragraph 47(
a) or a copy of the agreement referred to in paragraph 47(b).
(2) Where leave of a judge is sought under this
section, the matter shall be heard no later than the date set for the
protective intervention hearing and the judge may rescind an outstanding order
made in relation to the child.
Child returned
after protective intervention hearing
(1) Where
a child is returned to the parent from whom the child was removed after a
protective intervention hearing but before the expiration of an order for
temporary custody made under
section 32, a manager or social worker shall file
an application with the court to rescind or vary an outstanding order made in
relation to the child and shall
(
a) not
later than 10 days before the date set for a hearing, provide notice of the
application to
(
i) a parent,
(ii) the child, where the child is 12 years of age
or older, and
(iii) the Indigenous representative of the appropriate
Indigenous government or organization, where a manager or social worker believes
the child is an Indigenous child; and
(
b) file with the court, and provide to a parent
who received notice, a written explanation of the circumstances referred to in
paragraph 47(
a) or a copy of the agreement referred to in paragraph 47(b).
(2) Where an application is made under this
section, the judge may rescind or vary an outstanding order made with respect
to the child.
PART V
GENERAL COURT MATTERS
Proceedings and
evidence
(1) A
proceeding under this Act
(
a) is civil in nature;
(
b) may be as informal as a judge may allow; and
(
c) shall be held in private, unless otherwise
ordered by the judge.
(2) In a proceeding under this Act, a judge may
admit and act upon
(
a) the evidence, including hearsay, that the
judge considers relevant and reliable in the circumstances;
(
b) an oral statement which has been video-taped;
(
c) a written statement;
(
d) the notes and other documentation made in a
departmental file in relation to a child, a youth, his or her family or
placement;
(
e) a report the judge considers relevant,
including a transcript, exhibit or finding in an earlier civil or criminal
proceeding; and
(
f) evidence taken and a declaration made at a
prior proceeding under this Act or under a similar statute.
Method of proceeding
52. A
proceeding under this Act may be conducted by means of teleconference,
videoconference or other means of telecommunication.
Appearance in
court
53. A
manager or social worker may appear in court in respect of a matter arising
under this Act.
Application to be
heard
54. The
following persons may apply to be heard at a proceeding under this Act:
(
a) a person significant to a child; and
(
b) an Indigenous representative of the appropriate
Indigenous government or organization.
Publication ban
55. A
person shall not, with respect to a proceeding under this Act, publish or make
public information that has the effect of identifying
(
a) a child who is a witness at or a participant in
a proceeding or who is the subject of a proceeding;
(
b) a parent or foster parent; or
(
c) a member of the child's family.
Participation by
child
56. Where
a child who is the subject of a proceeding under this Act requests that his or
her views be known at the proceeding, a judge shall
(
a) meet with the child with or without the other
parties and their legal counsel;
(
b) permit the child to testify at the proceeding;
(
c) consider written material submitted by the
child; or
(
d) allow the child to express his or her views in
some other way.
Variation of
notice requirements
57. A
judge may
(
a) shorten the time period to serve a notice
under this Act; or
(
b) dispense with a requirement to serve notice of
a proceeding under this Act.
Service of documents
(1) Where
a manager, social worker or another person is required under this Act to serve
a document, service shall be made by personally serving a copy of the original
document on the person to be served.
(2) Where it is impractical to personally serve a
document on a person, the document may be served in another manner permitted by
the Rules of the Supreme Court, 1986
or the rules of the Provincial
Court .
(3) Personal service under subsection (1) may be
proved by a written or oral statement under oath by the person who served the
document.
Disclosure to
parties in court proceedings
(1) A
party to a proceeding under this Act, including a parent, shall disclose in a
timely manner all the information relevant to the proceeding in his or her possession
where requested to do so by another party to the proceeding.
(2) Information identifying a person who has
provided information under
section 11 with respect to a child or youth shall
not be disclosed unless the person who provided the information consents or a
judge orders its disclosure.
(3) Subsection (2) does not apply to information
identifying parties to a proceeding.
Confidentiality
of information
60. A
person shall not disclose, or be compelled to disclose, at a proceeding under this
Act, information obtained in a formal process under
section 13 or subsection 34(1),
except
(
a) with the consent of all persons who
participated in the process;
(
b) to the extent necessary to make or implement a
plan with respect to a child;
(
c) where the information is disclosed in an
agreement filed with the court under subsection 34(3); or
(
d) where the disclosure is necessary for a
child's safety or is required under
section 11.
Court order with
consent
(1) Where
a parent consents to an order made under this Act, a judge shall be satisfied
that
(
a) the opinion of the child has been considered;
and
(
b) the parent consenting to the order has been
informed that he or she may be represented by legal counsel and understands the
nature and consequences of the consent.
(2) A consent by a parent under this Act is not an
admission by the parent of a ground for protective intervention alleged by a
manager or social worker.
Matters heard
together or consolidated
(1) Where a proceeding under this Act is taking place at the same time as
custody of a child is being determined under another Act, a party may apply to
have the 2 matters heard together or consolidated, whether the different
proceedings are heard by the Provincial
Court or the Supreme Court.
(2) Notwithstanding subsection (1), where a matter
relates to an application made under the Divorce
Act ( Canada ),
the consolidated matter or the 2 matters shall only be heard by the Supreme
Court.
(3) Where a judge makes an order to have 2 matters
heard together under subsection (1), the judge shall make an order setting out
the information to be disclosed to each party in each matter.
Variation of order
63. Where
an order has been made under this Act, a judge may, upon application
accompanied by evidence to the satisfaction of the judge that the circumstances
relating to the child have changed since the original order was given, vary the
order.
Effect of out of
province order
64. Where
an order has been made by a judge in another province under legislative
provisions similar in effect to the provisions of this Act, the order has the
same effect in this province as if it were an order made under this Act, unless
the judge otherwise orders.
PART VI
PLACEMENT OF CHILDREN AND YOUTH
Placement considerations
(1) The placement of a child or youth shall be conducted in a
manner which is least disruptive to the child or youth and recognizes the
importance of placement with his or her siblings and contact with his or her
parents and kin.
(2) A manager or social worker shall first
consider placement of a child or youth with kin and, where that is not in the
best interests of the child or youth, the manager or social worker shall place
the child in a foster care placement.
(3) Notwithstanding subsection (2), where a child
is an Indigenous child or a youth is an Indigenous youth, a manager or social
worker shall first consider placing the Indigenous child or Indigenous youth
with kin within his or her community or where that is not in the best interests
of the Indigenous child or Indigenous youth, consider placing him or her
(
a) with a non-relative foster parent with the
same cultural background within the Indigenous child's or Indigenous youth's
community; or
(
b) with kin outside the Indigenous child's or Indigenous
youth's community.
(4) Where a manager or social worker is satisfied
that an Indigenous child or an Indigenous youth cannot be placed in accordance
with subsection (3), the Indigenous child or Indigenous youth shall be placed in
a foster care placement that supports the Indigenous child's or Indigenous youth's
connection with his or her culture, heritage, traditions, community, language
and spirituality.
Persons who
provide care
66. A
person who provides care under this Part shall be
(
a) approved by
(
i) a manager,
(ii) a social worker, or
(iii) an agency licensed under paragraph 71(1)(a);
(
b) operating under a licence issued under
paragraph 71(1)(
b) or (c).
Agreement for
services
(1) A manager or social worker may make an agreement for
services, including financial support, with a person with whom a child or youth
has been placed for care.
(2) Where an agreement is made under subsection
(1) with a non-custodial mother or non-custodial father, the non-custodial mother
or non-custodial father is not entitled to financial support.
(3) A person who enters into an agreement under
this
section shall be approved by
(
a) a manager;
(
b) a social worker; or
(
c) an agency licensed under paragraph 71(1)(a).
Information re
child's or youth's care
(1) A manager or
social worker shall provide information relevant to the care of a child or
youth to a person with whom a child or youth has been placed for care.
(2) A manager or social worker shall provide
relevant information concerning the foster care placement of a child or youth
to the child or youth and the parent of the child or youth, but may withhold
information where, in the opinion of the manager or social worker, doing so is
in the best interests of the child or youth.
Change of placement
of child or youth without notice
69. A manager or social worker may move a child or youth from a foster
care placement with whom the manager or social worker has placed the child or
youth, without notice, where necessary for the safety of the child or youth.
Counselling for
child or youth after removal
70. A child or youth shall be entitled to counselling where he or she is
(
a) removed from his or her parents; or
(
b) moved from a foster care placement.
PART VII
LICENCES
Issuance of
licences
(1) A provincial director may issue the following licences:
(
a) agency licence;
(
b) family-based placement provider licence; and
(
c) residential placement provider licence.
(2) An agency licence authorizes a person to
(
a) recruit and assess potential foster parents;
(
b) provide training to potential foster parents;
and
(
c) approve foster parents for the placement of
children or youth in the care or custody of a manager.
(3) A family-based placement provider licence
authorizes a person to
(
a) establish and operate one or more homes where
daily care and supervision is provided in a family-based environment to a child
or youth who is in the care or custody of a manager;
(
b) recruit and assess caregivers to provide care
and supervision to children or youth in the home;
(
c) provide training, support and services to
caregivers; and
(
d) monitor and assess the day to day operations
of the home.
(4) A residential placement provider licence
authorizes a person to
(
a) establish and operate one or more residences
where 24 hour care and supervision is provided by employees of the licensee to
children or youth who are in the care or custody of a manager;
(
b) hire and train employees to provide care and
supervision to children or youth in the residences; and
(
c) monitor and assess the day to day operations
of the residences.
(5) An applicant may be issued a licence where the
applicant
(
a) submits an application in writing in the
prescribed form to a provincial director, including the documents and other
information prescribed in the regulations;
(
b) pays the required fee; and
(
c) satisfies the other requirements for the
licence prescribed in the regulations.
(6) A provincial director may attach terms and
conditions to a licence.
Renewal and
variation
(1) A licensee shall apply in writing in the prescribed form to a provincial
director to renew or vary a licence under this Act before the licence expires.
(2) Where an application to renew a licence is
made at least 60 days before the day the licence expires, the existing licence
is considered to be valid until the licensee receives the decision of a
provincial director on the licensee's application for renewal.
Refusal to issue,
renew or vary
(1) A
provincial director may refuse to issue, renew or vary a licence where
(
a) the applicant does not meet the requirements
for the issuance of a licence prescribed in this Act or the regulations;
(
b) the applicant fails to provide the documents
and other information required by this Act and the regulations;
(
c) the applicant was previously issued a licence
that was later revoked;
(
d) the provincial director is satisfied that the
applicant made one or more false or misleading statements in the application or
in the information provided in support of the application; or
(
e) the provincial director is satisfied that it
would not be appropriate to issue, renew or vary a licence.
(2) Where a provincial director refuses to issue,
renew or vary a licence, he or she shall
provide written reasons for the refusal to the applicant.
Licences
generally
(1) A
licence shall set out
(
a) the name of the licensee;
(
b) the type of licence;
(
c) the commencement and expiration dates of the
licence;
(
e) other information prescribed in the regulations.
(2) In addition to the requirements under
subsection (1), a family-based placement provider licence and a residential
placement provider licence shall set out
(
a) the maximum number of children or youth
permitted in each home or residence; and
(
b) the minimum and maximum age of the children or
youth in each home or residence.
(3) Licences are not transferable or assignable.
Duties of
licensee
75. A
licensee shall
(
a) keep all personal information confidential,
except where information is required to be disclosed under this Act, the regulations
or by a provincial director, manager or social worker;
(
b) maintain insurance coverage in accordance with
the regulations;
(
c) prepare, maintain and keep documentation,
books and records in accordance with this Act and the regulations; and
(
d) comply with this Act, the regulations and any
terms or conditions of the licence.
Variation, suspension
or revocation
(1) A
provincial director may vary, suspend or revoke a licence where he or she is
satisfied
(
a) that the licensee violated this Act, the regulations
or a term or condition of the licence;
(
b) a person recruited or hired by the licensee is
not providing proper care to a child or youth; or
(
c) the licensee made one or more false or
misleading statements in the application, the information provided in support
of the application or to an inspector.
(2) A provincial director shall not suspend a
licence for more than 30 days.
(3) Where a licence is suspended and the terms and
conditions necessary to lift the suspension are met in the time set by a provincial
director and to the satisfaction of a provincial director, the provincial
director shall reinstate the licence with or without terms or conditions.
(4) Where a licence is suspended and the terms and
conditions necessary to lift the suspension are not met in the time set by a provincial
director and to the satisfaction of a provincial director, the provincial
director shall revoke the licence.
(5) Where a licence is varied, suspended or
revoked, a provincial director shall serve a notice of variation, suspension or
revocation and written reasons for the decision on the licensee.
(6) A licensee whose licence is varied, suspended
or revoked may request a review of the suspension or revocation.
(7) A request for review under subsection
(6) shall be in writing and made to the minister within 30 days from the date the
licensee receives written reasons for the variation, suspension or revocation.
(8) A review shall be performed within 60 days of
the receipt of the written request and a written decision including reasons
shall be sent to the person who requested the review within 5 business days of
being decided.
(9) An appeal lies from the decision of the minister
to a judge of the Supreme Court.
Consequences of
suspension or revocation
(1) Where a licence is suspended or revoked the licensee shall cease operations.
(2) Where a licence is revoked, the licensee shall
immediately return the licence to a provincial director.
Payments to
licensee
78. The
department shall compensate a licensee in accordance with the regulations.
PART VIII
INSPECTIONS, INVESTIGATIONS AND VIOLATION ORDERS
Inspectors
(1) The
minister shall appoint one or more inspectors who shall exercise the powers and
perform the duties and functions that are conferred or imposed on them by this
Act and the regulations.
(2) A manager or social worker may be appointed as
an inspector under this Act.
(3) Inspectors appointed under this Act may be
accompanied by one or more persons when exercising the powers or performing the
duties or functions conferred or imposed on inspectors by this Act and the regulations
and those other persons shall have the rights and powers given to an inspector
under this Act while accompanying the inspector.
(4) Nothing in this Act or the regulations limits
inspectors appointed under other Acts and regulations from exercising powers or
carrying out duties or functions conferred or imposed on them by other Acts and
regulations.
Investigations
(1) Where
a manager or social worker receives information that a child or youth was or
may have been maltreated or harmed while in the care of a licensed family-based
placement provider or a licensed residential placement provider, an inspector
shall investigate the allegation and provide a report to the manager.
(2) Where a manager or social worker receives information
under subsection (1), a provincial director may, to ensure the safety and best
interests of the child or youth during the course of the investigation, add
subsection (2) shall remain in place until removed by the provincial director.
(4) A licensee, owner or operator of a facility or
premises and their employees, caregivers, students and volunteers shall not
obstruct an inspector while the inspector is investigating an allegation under
this section.
Inspections
(1) An
inspector appointed under this Act may, at all reasonable times and without a
warrant, for a purpose related to the administration or enforcement of this Act
or the regulations, inspect or examine the facilities, premises, processes,
books and records of a licensee or a person the inspector may consider relevant
for the purpose of determining compliance with this Act or the regulations and
the inspector may do one or more of the following:
(
a) enter
(
i) a facility,
(ii) premises where property, books or records
relating to a licensee are or may be kept, or
(iii) premises where anything is done or is
suspected of being done in connection with a requirement of this Act or the regulations;
(
b) make copies, extracts, photographs or videos
the inspector considers necessary; or
(
c) require a licensee, caregiver, owner of a
facility or premises or their employees, students or volunteers to
(
i) give the inspector all reasonable assistance,
including the production of books and records as requested by the inspector and
to answer all questions relating to the administration or enforcement of this
Act or the regulations and, for that purpose, require a person to attend at a
facility or premises with the inspector, and
(ii) make available the means to generate and
manipulate books and records that are in machine readable or electronic form
and any other means or information necessary for the inspector to assess the
books and records.
(2) Notwithstanding subsection (1), an inspector
appointed under this Act shall not enter a dwelling-house, other than a
facility, without the consent of the occupant except under the authority of a
warrant.
(3) A person shall not knowingly make a false or
misleading statement, either orally or in writing, to the inspector while he or
she is exercising powers or carrying out duties or functions under this Act or
the regulations.
Warrants
(1) Where an inspector appointed under this Act
(
a) is denied entry to a facility, premises or dwelling-house
to carry out an inspection; or
(
b) believes on reasonable and probable grounds
that there has been a contravention of this Act or the regulations,
the inspector may file an application with
the Provincial Court
for a warrant.
(2) Where a Provincial Court judge is satisfied on
the basis of an inspector's sworn information that there are reasonable grounds
to believe that the inspector has been denied entry to a facility, premises or dwelling-house to carry out an inspection
or there has been a contravention of this Act or the regulations, the judge may
issue a warrant authorizing the inspector to do one or both of the following:
(
a) enter the facility, premises or
dwelling-house and carry out an inspection under this Act; or
(
b) seize or remove any of the books or records
that may be required as evidence of contravention and may retain those
documents until the time they are required in a court proceeding.
(3) A
Provincial Court judge may receive and consider an
application for a warrant or extension of warrant without notice to the
licensee or the owner of the facility, premises or dwelling-house.
(4) A licensee, an owner or operator of a facility,
premises and their employees, students and volunteers or an occupant of a
dwelling-house shall not obstruct an inspector while the inspector is
exercising the powers and performing the duties and functions as authorized by
the warrant.
(5) At the request of an inspector, a peace
officer shall assist in enforcing a warrant.
Telewarrants
(1) Where, in the opinion of an inspector, it would not be practical to appear in
person before a Provincial Court
judge to apply for a warrant, the inspector may make the application by
telephone or other means of telecommunication.
(2) Where an inspector acts under the authority of
a warrant obtained under this section, the inspector shall provide a facsimile
of the warrant to an employee of the licensee, to the owner, operator or an
employee of the facility or premises or an occupant of the dwelling-house present
at the time the warrant is carried out.
(3) In subsection (2), "facsimile"
includes a record produced by electronic means or a written record of a
telephone conversation made by both parties to the conversation while it is in
progress and which the parties have confirmed as to its accuracy by reading
their record of the conversation to one another at the end of the conversation.
Inspection report
84. An
inspector appointed under this Act shall prepare a written report of each
inspection within 30 days of the inspection and provide it to
(
a) a manager; and
(
b) the licensee who was the subject of the
inspection.
Consequences of
non-compliance
(1) Where
a licensee fails to comply with this Act or the regulations, a manager may
(
a) issue a written violation order against the
licensee requiring the licensee to comply with this Act and the regulations; or
(
b) recommend that a provincial director vary, suspend
or revoke the licence.
(2) Where a violation order was issued under
subsection (1) and the licensee fails to comply with the order in the time
period required under the order, the manager may recommend that a provincial
director vary, suspend or revoke the licence.
Requirements of
violation orders
86. A
violation order shall
(
a) include the name of the licensee;
(
b) describe the violation of this Act or the regulations;
(
c) where applicable, set out the time within
which the licensee is required to comply with this Act or the regulations;
(
d) include the date it was issued;
(
e) state that where a licensee fails to comply
with the order in the required time period the licence may be varied, suspended
or revoked;
(
f) be signed by the manager who issued it;
(
g) be served on the licensee; and
(
h) include the other requirements prescribed in
the regulations.
Review of
violation orders
(1) A
licensee who receives a violation order may request a review of the violation
order.
(2) A request for review under subsection
(1) shall be in writing and made to the minister within 30 days from the date the
licensee receives the violation order.
(3) A review shall be performed within 60 days of
the receipt of the written request and a written decision including reasons
shall be sent to the person who requested the review within 5 business days of
being decided.
(4) An appeal lies from the decision of the
minister to a judge of the Supreme Court.
PART IX
YOUTH SERVICES AGREEMENT
Youth services
agreement
(1) A
manager or social worker may enter into a written agreement for services with a
youth who, in the opinion of the manager or social worker, is in need of protective
intervention.
(2) Before an agreement under this
section is
signed, the manager or social worker shall ensure that the effect of the
agreement is explained to the youth.
(3) Where the youth is engaged in a plan approved
by a manager or social worker, an agreement under this
section may be extended
until the youth reaches the age of 21.
(4) Where a youth is provided with services, the
cost of those services may be recovered and an action or other proceeding for
the recovery of the cost may be commenced.
Effect of
agreement
89. Where
a manager or social worker enters into an agreement with a youth under this Act,
the agreement is binding on the youth and enforceable against him or her notwithstanding
he or she is less than 19 years of age.
PART X
CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION
Access to Information
and Protection of Privacy Act, 2015 does not apply
90. Notwithstanding
the Access to Information and Protection
of Privacy Act, 2015 , the collection of, use of, disclosure of and access
to information in records pertaining to the care and protection of children and
youth obtained under this Act, regardless of where the information or records
are located, shall be governed by this Act.
Definition
91. In
this Part, "information" means personal information obtained under this
Act or a predecessor Act which is held in government records by, or is in the
custody of or under the control of, the department, and includes information
that is written, photographed, recorded or stored in any manner.
Persons who may
obtain information
(1) A
person over 12 years of age has the right to and shall, on request, be given
information relating to himself or herself.
(2) A person over 12 years of age who is, or has
been, in the care or custody of a manager has the right to and shall, on
request, be given information relating to himself or herself including
(
a) information relating to his or her birth
family that the minister determines is appropriate to release;
(
b) the reasons why he or she was removed from his
or her parent and information relating to the continuation of a court order
relating to him or her; and
(
c) the identity of a former foster parent, family-based
caregiver or the name of a former
residential placement.
(3) A person who has custody of a child has the
right to and shall, on request, be given information about himself or herself
and the child.
(4) A person who had custody of a child has the
right to and shall, on request, be given information about himself or herself
and the child, but only for the period of time that the person had custody.
(5) Where information excepted from disclosure under
section 93 can reasonably be severed, a person who is otherwise permitted to
receive information under this
section shall be given the remainder of the information.
Information not
to be disclosed
93. Notwithstanding
section 92,
(
a) a
provincial director or a manager shall not disclose information where
(
i) the disclosure is prohibited under the Adoption Act, 2013 , the Young Persons Offences Act or the Youth Criminal Justice Act ( Canada ),
(ii) there
are reasonable grounds to believe that the disclosure might result in physical
or emotional harm to that person or to another person,
(iii) the
disclosure would identify a person who made a report under
section 11, or
(iv) the
disclosure could reasonably be expected to jeopardize an investigation under this
Act or a criminal investigation; and
(
b) a
provincial director or a manager may refuse to disclose information that is a
transitory record as defined in the Management
of Information Act .
Disclosure
without consent
A provincial director or a manager
may, without the consent of another person, authorize the disclosure of
information obtained under this Act or the regulations where the disclosure is
(
a) in the best interests of a child or youth;
(
b) provided
to persons with whom a child or youth has been placed for care;
(
c) for case planning or integrated service
delivery purposes, including disclosure for these purposes to Indigenous representatives;
(
d) for
research or evaluation purposes and the person to whom that information is
disclosed has signed an agreement to comply with conditions set by the
minister;
(
e) for
a criminal proceeding or an investigation by the Chief Medical Examiner or the
Child Death Review Committee under the Fatalities
Investigation Act and the person to whom that information is disclosed has
signed an agreement to comply with conditions set by the minister;
(
f) for a review or investigation of a matter
relating to a child or youth by the Child and Youth Advocate under the Child and Youth Advocate Act and the person to whom that information is
disclosed has signed an agreement to comply with conditions set by the minister;
(
g) necessary for the administration of this Act.
Information
sharing agreements
95. The
minister may enter into an agreement with an Indigenous government or
organization with respect to the access to or disclosure of information under this Act.
Right to information
(1) A
manager or social worker has the right to information where that information
(
a) relates to
(
i) a child,
(ii) a youth, or
(iii) a parent;
(
b) is necessary to enable the manager or social
worker to exercise his or her powers or perform his or her duties or functions
under this Act or the regulations, including powers, duties or functions
relating to investigations, assessments or determining whether a child is or
remains in need of protective intervention;
and
(
c) is in the custody or under the control of
(
i) a person, or
(ii) a public body.
(2) A
public body or a person referred to in subsection (1) that has custody or
control of information to which a manager or social worker is entitled under
subsection (1) shall disclose that information to the manager or social worker.
(3) Notwithstanding
subsections (1) and (2), information that is subject to solicitor-client
privilege is not required to be disclosed unless the information is required to
be disclosed under
section 11.
(4) Notwithstanding
subsections (1) and (2), a peace officer may refuse to disclose information
where
(
a) the disclosure would be an offence under an
Act of Parliament; or
(
b) the disclosure would be harmful to law
enforcement or could reasonably be expected to interfere with public safety,
unless the information is required to be disclosed under
section 11.
Internal review
(1) The
minister shall appoint a person to perform an internal review of a matter
referred to in subsection (2).
(2) A person who requests information under
section 92 and who is not given the information requested may apply to a person
appointed under subsection (1) for an internal review of the refusal to give
that information.
(3) An application under subsection (2) shall be
made in writing no later than 30 days after the person is notified that he or
she will not be given the information requested.
(4) An internal review shall be performed within
30 days of the receipt of the written application, and the results of an
internal review shall be provided to the person who requested the review, in
writing, within 5 business days of being decided.
(5) An appeal lies from the decision of the person
conducting the internal review to a judge of the Supreme Court.
PART XI
OFFENCES AGAINST CHILDREN
General offence
98. A
person who by commission or omission wilfully contributes to a child being a
child in need of protective intervention is guilty of an offence and liable on
summary conviction to a fine not exceeding $10,000 or to imprisonment for a
term not exceeding 6 months, or to both a fine and imprisonment.
Contributing to
offence
99. A
person who sells, gives or causes to come into the possession of a child
(
a) a drug which is or, in quantity, may be,
harmful to the child;
(
b) an obscene book or other printed material,
copies or written obscene matter;
(
c) an obscene picture, photograph, or
pornographic material, model or pornographic material available through
electronic means; or
(
d) another obscene object,
is guilty of an offence and liable on
summary conviction to a fine not exceeding $10,000 or to imprisonment for a
term not exceeding 6 months, or to both a fine and imprisonment.
Offence to remove
child or youth from manager
100. A
person shall not remove or attempt to remove a child or youth, or entice a
child or youth to leave, the care or custody of a manager, or harbour a child
who has left the care or custody of a manager.
Liability for
offence
101. Unless specifically stated otherwise, a person
who
(
a) fails to comply with or otherwise contravenes
a provision of this Act or the regulations for which a penalty has not been
specifically provided; or
(
b) fails to comply with an order made under
section 17 or 18 of this Act,
is guilty of an offence and liable on
summary conviction to a fine not exceeding $5,000 or to a term of imprisonment
not exceeding 3 months, or to both a fine and imprisonment.
PART XII
ACCOUNTABILITY PROVISIONS
Statutory review
(1) The
minister shall, every 5 years, conduct a review of this Act and the principles
on which it is based and consider the areas which may be improved.
(2) A review conducted under subsection (1) shall
include public consultations.
Monitoring plans
103. There
shall be a process to regularly monitor plans for children who are under the
supervision or in the care or custody of a manager.
Appeals
104. An
appeal lies from a decision of a judge under this Act to
(
a) the Supreme Court where the order, decision or
judgment under appeal was made by a Provincial Court judge and the provisions
of the Judicature Act and the
applicable rules of that court shall govern the proceedings on the appeal; or
(
b) the Court of Appeal where the order, decision
or judgment under appeal was made by a judge of the Supreme Court, and the
provisions of the Court of Appeal Act
and the applicable rules of that court shall govern the proceedings on the
appeal.
PART XIII
DELEGATION
Delegation
(1) The
minister may negotiate an agreement with an Indigenous government or
organization who satisfies the eligibility requirements prescribed in the
regulations for the provision of services or the administration of all or a
part of this Act by the Indigenous government or organization.
(2) With the approval of the Lieutenant-Governor
in Council the minister may enter into an agreement negotiated under subsection
(1).
(3) An Indigenous government or organization that
enters into an agreement under subsection (1) is responsible for the services
it provides and for the administration of those parts of the Act the Indigenous
government or organization is delegated under the agreement.
(4) An agreement entered into under this
section
shall include
(
a) the term of the agreement;
(
b) the powers, duties and functions delegated to
the Indigenous government or organization;
(
c) a requirement that the Indigenous government
or organization report to the minister when required by the minister and in the
form, manner and time period directed by the minister;
(
d) a requirement that the Indigenous government
or organization submit an annual report to the minister in the form, manner and
time period prescribed in the regulations;
(
e) a requirement that the Indigenous government
or organization carry insurance coverage satisfactory to the minister;
(
f) a requirement that the Indigenous government
or organization comply with the monitoring and auditing requirements set by the
minister;
(
g) a requirement that the Indigenous government
or organization comply with the access to information and protection of privacy
requirements set by the minister;
(
h) a requirement that the persons performing the
powers, duties and functions delegated to the Indigenous government or
organization satisfy the minimum qualifications set by the minister;
(
i) a requirement that an Indigenous government or
organization use and maintain financial and information management systems
satisfactory to the minister;
(
j) a requirement that an Indigenous government or
organization use and maintain documentation standards and system requirements
satisfactory to the minister;
imposed on the Indigenous government or organization;
(
l) mechanisms for the settlement of disputes
arising from the agreement;
(
m) funding arrangements;
(
n) the obligations of the parties if the
agreement is terminated; and
(
o) other provisions prescribed in the regulations.
(5) An agreement entered into under subsection
(1) may be renewed or amended in the form, manner and time period prescribed in the
regulations.
(6) Notwithstanding the terms of an agreement
entered into under subsection (1) or anything in this Act, the regulations or
another Act, the minister may terminate an agreement or a part of an agreement
entered into under subsection (1) in the form, manner and time period
prescribed in the regulations where, in the opinion of the minister, it is in
the public interest to terminate the agreement or a part of the agreement.
(7) The minister may, in accordance with the
regulations, enter into those agreements that are necessary to give effect to
an agreement under this section.
PART XIV
GENERAL
Collection of overpayment
106. Where
the department makes an overpayment to a person, the department may collect the
amount of the overpayment from the person by either or both of the following
methods:
(
a) one or more payments from the person to the
department; or
(
b) reducing the amount of future payments from
the department to the person.
Ministerial regulations
107. The
minister may make regulations
(
a) prescribing the powers and duties of
provincial directors, managers, social workers and inspectors under this Act;
(
b) respecting provincial directors, managers,
social workers and inspectors appointed under this Act including the
qualifications, experience and other requirements of those persons;
(
c) respecting the designation of Indigenous
representatives by Indigenous governments or organizations;
(
d) respecting the placement of children and youth
in foster care placements;
(
e) respecting applications for licences;
(
f) respecting licences, including the
requirements that shall be met before a licence is issued, the information that
(
g) respecting the variation, suspension and
revocation of licences;
(
h) prescribing the qualifications, experience,
training and other requirements of licensees as well as employees, students, volunteers
and caregivers of licensees;
(
i) respecting requirements for programming and
services provided by licensed family-based placement providers and licensed
residential placement providers;
(
j) respecting the maximum number of children or
youth that may be placed in each type of foster care placement;
(
k) prescribing the furnishings, materials and
equipment required in a facility;
(
l) prescribing requirements for the supervision,
health, safety, and nutrition for children and youth in a foster care placement;
(
m) prescribing the method of discipline and crisis
intervention for children and youth in a foster care placement;
(
n) prescribing when managers and social workers
shall be notified of information regarding children and youth residing in a
foster care placement;
(
o) prescribing restrictions on licensees in
relation to advertising and promotional materials;
(
p) respecting the insurance coverage that shall
be carried by licensees;
(
q) respecting violation orders, including when
what information shall be included in a violation order;
(
r) prescribing the documentation, books and
records that shall be kept by licensees, the manner in which they shall be kept
and in what circumstances they shall be disclosed to a provincial director,
manager, social worker or inspector;
(
s) respecting the information, documents and
reports licensees are required to submit to a provincial director, manager, social
worker or inspector, the frequency of the submission of information, documents,
reports and the assessment of the information, documents and reports by a
provincial director, manager, social worker or inspector;
(
t) respecting the processes for investigations
and inspections;
(
u) exempting a licensee from a part of the Act or
(
v) respecting financial compensation for
licensees, including
(
i) method, time and manner of payments,
and
(iii) suspension or withholding of payments;
(
w) defining a word or phrase used but not defined
in this Act; and
(
x) generally to give effect to the purpose of
this Act.
Lieutenant-Governor
in Council regulations
108. The
Lieutenant-Governor in Council may make regulations
(
a) prescribing eligibility requirements that an
Indigenous government or organization is required to satisfy in order for the
minister to negotiate an agreement with them under
section 105;
(
b) prescribing additional requirements of an
agreement under
section 105; and
(
c) respecting the renewal, amendment and
termination of an agreement under
section 105.
Schedule
(1) The Lieutenant-Governor in Council may, by
order, add or remove an Indigenous government or organization to or from the
Schedule.
(2) An order made under subsection (1) is
subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act .
Fees and forms
110. The minister may set fees and establish forms
for the purpose and administration of this Act and the regulations.
PART XV
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT
Transitional provisions
111. An
order made and a proceeding commenced under the Children and Youth Care and Protection Act shall, on the coming
into force of this Act, be considered to be an order made and a proceeding commenced
under this Act.
SNL2015 cA-1.2
Amdt.
112. Paragraph (
d) of
Schedule A of the Access to Information and Protection of
Privacy Act, 2015 is repealed and the following substituted:
(
d) sections 90 to 96 of the Children, Youth and Families Act ;
RSNL1990 cA-2
Amdt.
113. Subsection 33(3) of the Accident and Sickness Insurance Act
is repealed and the following
substituted:
(3) An order is not necessary for payment into
court under subsection (1), but the public trustee shall receive the money upon
the insurer filing with him or her an affidavit showing the amount payable and
the name, date of birth and residence of the minor, and upon that payment being
made the insurer shall notify the provincial director appointed under the Children, Youth and Families Act of the
province and deliver to him or her a copy of the affidavit.
SNL2013 cA-3.1
Amdt.
(1) Paragraph 2(
m) of the Adoption Act, 2013 is repealed and the
following substituted:
(m) "manager" means a manager appointed
under the Children, Youth and Families
Act ;
(2) Subsection 6(1) of the Act is repealed and the following substituted:
Managers
(1) A manager appointed under the Children,
Youth and Families Act shall
exercise the powers and perform the duties that are conferred or imposed upon a
manager by this Act and the regulations.
SNL2011 cA-4.01
Amdt.
(1) Paragraph 2(
b) of the Adult Protection Act is repealed and the following substituted:
(b) "adult" means a person who is not a
child or youth within the meaning of the Children,
Youth and Families Act ;
(2) Subsection 4(1) of the Act is repealed and the following substituted:
Application
(1) This Act applies to every person who is not a child or youth as defined in the Children, Youth and Families Act , including a person who is a
patient or resident in
(
a) a facility operated by an authority
established under paragraph 6(1)(
b) of the Regional
Health Authorities Act ;
(
b) a personal care home as defined in the Personal Care Home Regulations ;
(
c) a long term care home;
(
d) a community care facility; and
(
e) an assisted living facility.
SNL2001 cC-12.01
Amdt.
(1) Subparagraph 2(g)(
i) of the Child and Youth Advocate Act is repealed
and the following substituted:
(
i) in care or custody under the Children, Youth and Families Act ,
(2) Paragraph 21(1.3)(
a) of the Act is repealed and the following
substituted:
(
a) information that could reasonably be expected
to reveal the identity of a person who has made a report under
section 11 of
the Children, Youth and Families Act ; and
SNL2014 cC-11.01
Amdt.
117. Subparagraph 2(n)(iii) of the Child Care Act is repealed and the
following substituted:
(iii) a foster parent as defined in the Children, Youth and Families Act , and
RSNL1990 cC-13
Amdt.
118. (1) Subsection 27(2) of the Children's Law Act is repealed and the
following substituted:
(2) Notwithstanding subsection (1), an application
respecting custody of or access to a child may not be made under this Act where
the child is the subject of an order for continuous custody under the Children, Youth and Families Act.
(2) Section 40 of the Act is repealed and the
following substituted:
Supervision of
custody or access
(1) Where
an order is made for custody of or access to a child, a court may give the
directions that it considers appropriate for the supervision of the custody or
access by a person or a manager appointed under the Children, Youth and Families Act .
(2) A court shall not direct a person or a manager
appointed under the Children, Youth and
Families Act to supervise custody
or access as mentioned in subsection (1) unless the person or manager has
consented to act as supervisor.
(3) A manager appointed under the Children, Youth and Families Act may designate a social worker to
carry out the directions of the court in subsection (1) where the manager
consents to act as a supervisor.
RSNL1990 cF-2
Amdt.
119. Subsection 69(1) of the Family Law Act is repealed and the following substituted:
Paternity agreements
(1) Where
2 persons who are not spouses enter into an agreement for
(
a) the payment of the expenses of a child's
prenatal care and birth;
(
b) support of a child; or
(
c) funeral expenses of the child or mother,
on the application of a party, or a
manager appointed under the Children,
Youth and Families Act , to the
court, the court may incorporate the agreement in an order, and
Part III
applies to the order in the same manner as if it were an order made under that
Part.
SNL2005 cF-3.1 Amdt.
(1) Subsection 13(1) of the Family
Violence Protection Act is repealed and the following substituted:
Effect of
emergency protection order
(1) An emergency protection order prevails over
(
a) a prior, subsisting order respecting custody
of or access to a child, including an order made under the Divorce Act (Canada) or
Part III of the Children's Law Act ; and
(
b) a provision of a subsisting agreement made
under
Part IV of the Family Law Act
respecting the custody of or access to a child,
(1.1) An emergency protection order does not prevail
over
(
a) a prior, subsisting order under the Children, Youth and Families Act that
places a child in the care or custody of a manager appointed under that Act or
a person other than the parent from whom the child was removed; or
(
b) a prior, subsisting order under the Adult Protection Act that places an
adult in the care and custody of the provincial director appointed under that
Act or another person.
(2) Section 19 of the Act is repealed and the
following substituted:
Duty to report
continued
19. Nothing
in this Act affects a duty set out in
section 11 of the Children,
Youth and Families Act or
section
12 of the Adult Protection Act .
SNL1995 cF-6.1
Amdt.
121. Paragraph 7(
c) of the Fatalities Investigations Act is repealed and the following
substituted:
(
c) while in the custody of a manager under the Children, Youth and Families Act ; or
RSNL1990 cJ-4
Amdt.
122. Paragraph 43.9(1)(
l) of the Judicature Act is repealed and the
following substituted:
(
l) protective intervention matters relating to
children under the Children, Youth and
Families Act ;
RSNL1990 cL-14
Amdt.
123. Subsection 52(3) of the Life Insurance Act is repealed and the following substituted:
(3) An order is not necessary for payment into
court under subsection (1), but the public trustee shall receive the money upon
the insurer filing with him or her an affidavit showing the amount payable and
the name, date of birth and residence of the minor and upon the payment being
made the insurer shall immediately notify a provincial director appointed under
the Children, Youth and Families Act
and deliver to him or her a copy of the affidavit.
SNL2009 cM-1.02
Amdt.
124. Paragraph 19(1)(
c) of the Marriage Act is repealed and the following substituted:
(
c) a manager of child, youth and family services
under the Children, Youth and Families
Act , where the party is a person in
the co