Canada

Canada[1] [print]

Last edited: May 2005

Summary and Analysis

Canada ratified the Convention on the Rights of the Child [CRC] on December 13, 1991.  Like other international human rights treaties, the CRC was not automatically given domestic authority upon ratification.  Still, courts may use the Convention in interpreting and applying existing law.[2]  In Canada, child abuse and exploitation are prohibited by the Criminal Code.  However, all child protection legislation that permits intervention to ensure children’s safety and welfare is done at the provincial/territorial level.  We focused on Alberta as a case study of Canadian child protective law.

Alberta Summary and Analysis

In Alberta, the statute that provides representation and protection for children during child protection proceedings is the Child, Youth, and Family Enhancement Act, promulgated in 2004.  This Act replaces the longstanding Child Welfare Act. Alberta has a sophisticated child protection system governed by the Enhancement Act.  It states generally that in all matters governed by the Act the child’s opinion should be considered. The Act also provides for a Child and Youth Advocate in Alberta.  Currently, there is a Child and Youth Advocate office.  This Advocate’s office, as provided by the Act, receives and reviews complaints and concerns about children who are involved in the child protection system in Alberta. These complaints may come from a child or from a guardian or other person who represents a child. The Act also provides that children twelve years of age or older must consent to any intervention or provision of services agreements.  They must also give consent for adoption orders concerning themselves. Further, children twelve years of age or older must be given notice of hearings related to their welfare, as well as to any appeals from court orders related to their welfare.  Children twelve and older can also bring appeals themselves.  In child protection proceedings where an application is made for a supervision order or a temporary or permanent guardianship order, the Court may direct that the child be represented by a guardian if the child or the guardian of the child requests that the court do so and the Court believes that the interests or views of the child would not otherwise be adequately represented.  Thus, children do not automatically receive legal representation in such proceedings.

If a Court does direct that a child be represented by a lawyer, the case first goes to the Legal Aid Society of Alberta.  If there is no legal aid assistance available to the child, then the case goes to the Minister of Justice and the Attorney General.  If a referral is made to the Minister of Justice and Attorney General because there is no legal assistance available for the child, they are required to appoint or cause to be appointed a lawyer to represent the child.  Further, if an appointment is made because the child does not qualify for legal aid, the Court may order that the cost of the lawyer by paid by the child, the guardian of the child or a director or apportioned among all or any of them, having regard to the means of the child and the guardian.

Sources of Law (In Order of Authority)

Statutes

Child, Youth, and Family Enhancement Act, R.S.A.[3]

Table of Contents

2. Matters to be considered

If a child is in need of intervention, a Court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests

of the child and must consider the following as well as any other relevant matter: …

(d) a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by

those making decisions that affect the child;

2.1   Procedural Rights

A director, when it is appropriate, must inform a child of the child’s procedural rights under this Act.

3. Office of Child and Youth Advocate

(1)  The Lieutenant Governor in Council may, on the recommendation of the Minister, appoint a Child and Youth  Advocate, who shall hold office for a term not exceeding 5 years.

(2)  The Minister may authorize and provide for the payment of the remuneration and expenses of the Child and Youth Advocate and for the office and staff of the Child and Youth Advocate.

(3)  The Child and Youth Advocate shall

(b) receive and review complaints or concerns that come to  the attention of the Child and Youth Advocate respecting children who receive services under this Act or the Protection of Children Involved in Prostitution Act;

(c) represent the rights, interests and viewpoints of children who receive services under this Act or the Protection of Children Involved in Prostitution Act;

(d) facilitate the involvement of family or community members in assisting in advocating for a child who is receiving services under this Act or the Protection of Children Involved in Prostitution Act; …

Part 1

(5)  For the purpose of performing the duties and functions of the Child and Youth Advocate, the Child and Youth Advocate may

(a) communicate with and visit a child who is receiving services under this Act or the Protection of Children Involved in Prostitution Act or a guardian or other person who represents the child; …

(c) at the request of a child who is receiving services under this Act or the Protection of Children Involved in Prostitution Act, the Minister or any person acting on the child’s behalf, review and make recommendations regarding any matter relating to the provision of services to the child under this Act or the Protection of Children Involved in Prostitution Act;

(d) provide information relating to, speak on behalf of and otherwise represent a child who is receiving services under this Act or the Protection of Children Involved in Prostitution Act when major decisions relating to the child are being made under this Act or the Protection of

Children Involved in Prostitution Act;

(e) on the initiative of the Child and Youth Advocate or at the request of a child who is receiving services under this Act or the Protection of Children Involved in Prostitution Act,

assist in appealing or reviewing a decision of a director relating to the child;

(6)  The Child and Youth Advocate may delegate any duty or function conferred or imposed on the Child and Youth Advocate under this Act, the Protection of Children Involved in Prostitution

Act or the regulations under either Act in respect of a child

(a) to a person employed or engaged in the administration of this Act or the Protection of Children Involved in Prostitution Act,

(b) to a person who provides care to the child, represents the child or is concerned about the welfare of the child, or

(c) to a family or community member referred to in subsection (3)(d) who is assisting in advocating for the child.

Division 2 - Agreements

8. Family enhancement agreement

(1)  A director may enter into an agreement in the prescribed form with the guardian of a child or with another person who, with the express or implied consent of the guardian or pursuant to a Court order or an agreement, has custody of the child with respect to the provision of services to the family or the child if, in the opinion of the director,

(a)  the child is in need of intervention, and

(b)  as a result of the provision of the services, the child’s survival, security or development will be adequately protected if the child remains with the child’s guardian or

the person who has custody of the child, as the case may be.

(3)  No agreement under subsection (1)(b) relating to a child who is 12 years of age or older shall be made without the consent of the child.

Division 3 – Court Orders

23. Notice of application

(1)  Notice of the nature, date, time and place of every hearing under this Division shall be served by the applicant on

(c)  the child, if the child is 12 years of age or older,

(2)  Notice under subsection (1) shall be served personally on

(b)  the child, if the child is 12 years of age or older.

PART 2 - Adoption

58.1   Matters to be considered

A Court and all persons who exercise any authority or make any decision under this Act relating to the adoption of a child must do so in the best interests of the child, and must consider the

following as well as any other relevant matter:

(e) the child’s views and wishes, if they can be reasonably ascertained;

Division 1 - Adoption Process

59(1). Consent to adoption

An adoption order in respect of a child must not be made without the consent in the prescribed form of

(b)  the child, if the child is 12 years of age or older.

PART 4 - General

112. Legal representation

(1)  If an application is made for a supervision order or a temporary or permanent guardianship order or a child is the subject of a supervision order or a temporary or permanent guardianship  order and the child is not represented by a lawyer in a proceeding under Part 3 or 4, the Court may direct that the child be represented by a lawyer if

(a)  the child, the guardian of the child or a director requests

the Court to do so, and

(b)  the Court is satisfied that the interests or views of the child would not be otherwise adequately represented.

(2)  If the Court directs that a child be represented by a lawyer pursuant to subsection (1),

(a)  it shall refer the child to the Legal Aid Society of Alberta, or

(b)  it shall refer the matter to the Minister of Justice and Attorney General, if it is satisfied that there is no legal aid assistance available to the child.

(3)  If a referral is made under subsection (2)(b), the Minister of Justice and Attorney General shall appoint or cause to be appointed a lawyer to represent the child.

(4)  If a referral is made under subsection (2)(b), the Court may make an order directing that the costs of the lawyer be paid by the child, the guardian of the child or a director or apportioned among all or any of them, having regard to the means of the child and the guardian.

114. Appeals to Court of Queen’s Bench – Time for Appeal

(1)  An order of the Court made under this Act may be appealed to the Court of Queen’s Bench not more than 30 days after the date on which the order is made or renewed by

(c)  the child, if the child is 12 years of age or older,

(d)  the child, if the child is the subject of a secure services order,

(3)  The appellant shall serve the notice of appeal on         

(b)  the child, if the child is 12 years of age or older,

(c)  the child, if the child is the subject of a secure services order

119. Power of the Appeal Panel

(4)  An appellant or a child who is the subject of an appeal may be represented at the hearing of the appeal by a lawyer or by any other person.

(5)  If no one is present at the hearing of an appeal to represent the interests of a child who is the subject of the appeal, the Appeal Panel may direct that the child be represented at the hearing.

International Law

Convention on the Rights of the Child, [4] ratified Dec. 13, 1991.

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Local Contact Information

John Mould

Children’s Advocate Office

Children’s Services

9910-103 Street

Edmonton, Alberta

T5K 0X8

John.Mould@gov.ab.ca

Additional Resources and Links

Website of Alberta’s Children’s Services

http://www.child.gov.ab.ca/

Public Health Agency of Canada

http://www.phac-aspc.gc.ca/cm-vee/links_e.html

Website with links to the child welfare organizations of the provinces/territories and national organizations that focus on children’s rights.

Website of Senator Landon Pearson.

http://sen.parl.gc.ca/lpearson/index-e.html

Pearson is a Senator from Ontario.  She called herself “A Canadian Senator for Children’s Rights.”  Her website contains links about children’s rights efforts in Canada, speeches she has given on the issue, publications related to the issue, etc.

Website of the Child Welfare League of Canada

http://www.cwlc.ca/index_e.htm

Provides information about child welfare services and child welfare issues on the forefront throughout Canada. 

Link to study detailing how many of Alberta’s statutes measure up to upholding the UN CRC.

http://www.aclrc.com/CRC%20book/crctoc.html

Website of Alberta’s Child and Youth Advocate Office. http://www3.gov.ab.ca/cs/ocya/main_about_67.html

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[4] G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989).