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C.C.S.M. c. C80
The Child and Family Services Act
| Table of Contents | Regulations |
(Assented to July 11, 1985)
Declaration of Principles
The Legislative Assembly of Manitoba hereby declares that the fundamental principles guiding the provision of services to children and families are:
1.
The safety, security and well-being of children and their best interests are fundamental responsibilities of society.
2.
The family is the basic unit of society and its well-being should be supported and preserved.
3.
The family is the basic source of care, nurture and acculturation of children and parents have the primary responsibility to ensure the well-being of their children.
4.
Families and children have the right to the least interference with their affairs to the extent compatible with the best interests of children and the responsibilities of society.
5.
Children have a right to a continuous family environment in which they can flourish.
6.
Families and children are entitled to be informed of their rights and to participate in the decisions affecting those rights.
7.
Families are entitled to receive preventive and supportive services directed to preserving the family unit.
8.
Families are entitled to services which respect their cultural and linguistic heritage.
9.
Decisions to place children should be based on the best interests of the child and not on the basis of the family's financial status.
10.
Communities have a responsibility to promote the best interests of their children and families and have the right to participate in services to their families and children.
11.
Indian bands are entitled to the provision of child and family services in a manner which respects their unique status as aboriginal peoples.
In furtherance of these principles,
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
1(1) In this Act
"abuse" means an act or omission by any person where the act or omission results in
(a) physical injury to the child,
(b) emotional disability of a permanent nature in the child or is likely to result in such a disability, or
(c) sexual exploitation of the child with or without the child's consent; (« mauvais traitements »)
"agency" means a child and family services agency that is
(a) a corporation without share capital mandated under subsection 6.1(1),
(b) continued under section 6.2,
(c) a regional office, or
(d) Jewish Child and Family Service; (« office »)
"authority" means a Child and Family Services Authority established in The Child and Family Services Authorities Act; (« régie »)
"child" means a person under the age of majority; (« enfant »)
"child care facility" means a foster home, a group home, a treatment centre, or any other place designated in the regulations as a child care facility; (« établissement d'aide à l'enfant »)
"children's advocate" means the Children's Advocate appointed under subsection 8.1(1) and includes a person appointed under subsection 8.1(9) to act as the Children's Advocate; (« protecteur des enfants »)
"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; (« conjoint de fait »)
"court" means the Court of Queen's Bench of Manitoba (Family Division) or the Provincial Court (Family Division) in Part II, Part III other than in clauses 19(4)(a) and (a.1) and subsections 19(6) and (7), Part VI other than subsection 75(1.1), clauses 76(3)(a) and (b), 76(12)(a), 76(14)(a), and subsection 76(21), and in Part VII; and the Court of Queen's Bench of Manitoba (Family Division) in Part V; (« Cour »)
"director" means the Director of Child and Family Services appointed under this Act; (« Directeur »)
"family" means a child's parent, step-parent, siblings, grandparent, aunt, uncle, cousin, guardian, person in loco parentis to a child and a spouse or common-law partner of any of those persons; (« famille »)
"foster home" means a home other than the home of the parent or guardian of a child, where not more than four children who are not siblings are placed by an agency for care and supervision but not for the purposes of adoption; (« foyer nourricier »)
"General Authority" means the General Authority established under The Child and Family Services Authorities Act; (« Régie générale »)
"group home" means a home where ordinarily not fewer than five or more than eight children are placed by an agency for full time care and supervision; (« foyer de groupe »)
"guardian" means a person other than a parent of a child who has been appointed guardian of the person of the child by a court of competent jurisdiction or to whom guardianship has been surrendered under section 16; (« tuteur »)
"master" means a master as defined in The Court of Queen's Bench Act; (« conseiller-maître »)
"minister" means the member of the executive council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)
"parent" means a biological or adoptive parent of a child and includes a person declared to be the parent of a child under Part II of The Family Maintenance Act; (« parents »)
"place of safety" means any place used for the emergency temporary care and protection of a child as may be required under this Act and includes treatment centres; (« lieu sûr »)
"prescribed" means prescribed by regulation; (« prescrit »)
"record" means a record of information in any form, and includes information that is written, photographed, recorded or stored in any manner, on any storage medium or by any means, including by graphic, electronic or mechanical means, but does not include electronic software or any mechanism that produces records; (« dossier »)
"regional office" means a regional office of the department of the government for which the minister is responsible; (« bureau régional »)
"registry" except in Part V, means the child abuse registry established and maintained under subsection 19.1(1); (« registre »)
"treatment centre" means any place established or designated by the minister primarily for the care and treatment of more than 8 children and includes facilities operated by any government department for those purposes but does not include facilities for the reception and temporary detention of a child; (« centre de traitement »)
"ward" means a child of whom the director or an agency is the guardian. (« pupille »)
Registered common-law relationship
1(2) For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.
S.M. 1989-90, c. 3, s. 2; S.M. 1992, c. 28, s. 2; S.M. 1996, c. 4, s. 2; S.M. 1997, c. 48, s. 2; S.M. 1998, c. 6, s. 2; S.M. 2002, c. 24, s. 10; S.M. 2002, c. 35, s. 33; S.M. 2002, c. 48, s. 28.
2(1) The best interests of the child shall be the paramount consideration of the director, an authority, the children's advocate, an agency and a court in all proceedings under this Act affecting a child, other than proceedings to determine whether a child is in need of protection, and in determining best interests the child's safety and security shall be the primary considerations. After that, all other relevant matters shall be considered, including
(a) the child's opportunity to have a parent-child relationship as a wanted and needed member within a family structure;
(b) the mental, emotional, physical and educational needs of the child and the appropriate care or treatment, or both, to meet such needs;
(c) the child's mental, emotional and physical stage of development;
(d) the child's sense of continuity and need for permanency with the least possible disruption;
(e) the merits and the risks of any plan proposed by the agency that would be caring for the child compared with the merits and the risks of the child returning to or remaining within the family;
(f) the views and preferences of the child where they can reasonably be ascertained;
(g) the effect upon the child of any delay in the final disposition of the proceedings; and
(h) the child's cultural, linguistic, racial and religious heritage.
Child 12 years of age to be advised
2(2) In any proceeding under this Act, a child 12 years of age or more is entitled to be advised of the proceedings and of their possible implications for the child and shall be given an opportunity to make his or her views and preferences known to a judge or master making a decision in the proceedings.
Child's views may be considered
2(3) In any court proceeding under this Act, a judge or master who is satisfied that a child less than 12 years of age is able to understand the nature of the proceedings and is of the opinion that it would not be harmful to the child, may consider the views and preferences of the child.
S.M. 1992, c. 28, s. 3; S.M. 1997, c. 48, s. 3; S.M. 2002, c. 35, s. 33; S.M. 2008, c. 33, s. 1.
PART I
ADMINISTRATION
Director of Child and Family Services
3 A Director of Child and Family Services shall be appointed as provided in The Civil Service Act.
4(1) Under the control and direction of the minister, the director shall
(a) administer and enforce the provisions of this Act;
(b) advise the minister on matters relating to child and family services;
(b.1) in accordance with the regulations, license child care facilities other than foster homes and hear and decide appeals from agencies with respect to the licensing of foster homes;
(c) advise agencies;
(d) ensure the development and establishment of standards of services and practices and procedures to be followed where services are provided to children and families, including standards, practices and procedures relating to a child's safety and security that must include
(i) assessing risks to a child's life, health or emotional well-being in his or her present circumstances or any proposed placement, and
(ii) determining the nature and frequency of contact that an agency should have with a child to ensure that the child is safe and secure and receiving appropriate services;
(e) ensure that agencies are providing the standard of services and are following the procedures and practices established pursuant to clause (d) and by the provisions of this Act and the regulations;
(f) receive and hear complaints from any person affected by the administrative actions of an agency;
(g) exercise the powers and duties of an agency in any area in which no agency is functioning;
(h) supervise or direct the supervision of children in care, and receive and disburse moneys payable for their maintenance;
(i) protect children in need of protection;
(j) ensure the development of appropriate placement resources for children;
(k) submit a yearly budget for the child and family services system and keep books of account of all moneys received and disbursed by the director;
(l) prepare and submit an annual report to the minister;
(l.1) communicate to authorities the primary importance of a child's safety and security in the provision of child and family services and monitor the oversight provided by authorities of agencies in this regard;
(m) perform such other duties as may be prescribed by this Act, by the regulations, or as may be required by the minister.
4(2) For the purpose of carrying out the provisions of this Act, the director may
(a) enter and inspect the premises of an agency, a child care facility or other place where a child is placed under this Act;
(b) inspect and obtain a copy of any record, paper or thing, or a sample of any material, food, medication, or thing that, in the opinion of the director, relates to an agency, a child, a child care facility, or to any matter being investigated by the director and that is in the possession or under the control of an agency or a person in charge of any place mentioned in clause (a);
(b.1) require any person who in the opinion of the director is able to give information relating to any matter being investigated by the director
(i) to furnish information to the director, and
(ii) to produce and permit the director to make a copy of any record, paper, or thing that, in the opinion of the director, relates to the matter being investigated and that may be in the possession or under the control of the person,
but nothing in this clause abrogates any privilege that may exist because of the relationship between a solicitor and the solicitor's client;
(b.2) do any thing in relation to the licensing of child care facilities other than foster homes and the hearing and determination of appeals from agencies concerning the licensing of foster homes that may be prescribed by the regulations or otherwise considered necessary;
(c) conduct enquiries and carry out investigations with respect to the welfare of any child dealt with under this Act;
(d) establish procedures to hear complaints under this Act;
(e) solicit, accept and review reports from individuals or organizations concerned or involved with the welfare of children, families, or both;
(f) designate in writing a place or type of places as a place of safety for the purposes of this Act;
(g) issue a written directive to an agency;
(h) do any other thing in accordance with the provisions of this Act that the minister may require.
Proceedings re furnishing information prohibited
4(2.1) No proceedings lie against a person by reason of the person's compliance with a requirement of the director to furnish information or produce any record, paper or thing, or by reason of answering any question in an investigation by the director.
4(3) The director may, in writing, authorize a person or an agency to perform any of the director's duties or exercise any of the director's powers and may pay reasonable fees and out-of-pocket expenses therefor.
S.M. 1997, c. 48, s. 4; S.M. 2008, c. 33, s. 1.
Director may appoint an administrator
4.1(1) The director may at any time, by order, appoint a person as administrator to act in the place of an agency and its board, if the director is of the opinion that
(a) the agency or its board is not properly carrying out or exercising its responsibilities, duties or powers under this Act; or
(b) the health and safety of children is threatened.
4.1(2) Unless the appointment order states otherwise, and subject to the direction of the director, an administrator
(a) has the exclusive right to exercise all the powers and authority of the agency and its board;
(b) must carry out all of the responsibilities and duties of the agency and its board; and
(c) is to be paid, out of the funds of the agency, the remuneration and expenses determined by the director.
Directors cease to hold office
4.1(3) Unless the appointment order states otherwise, on the appointment of an administrator, the directors of the board of the agency cease to hold office and must cease to perform any duties or exercise any powers assigned to them under this or any other Act.
4.1(4) If the appointment order states that some or all of the directors continue to have the right to act respecting a matter, any such act of the directors is valid only if approved by the administrator.
4.1(5) Upon the appointment of an administrator, the directors or former directors must
(a) immediately deliver to the administrator all of the agency's funds, and all books, records and documents respecting the management and activities of the agency; and
(b) give the administrator all information and assistance required to enable the administrator to carry out and exercise his or her responsibilities, duties and powers.
4.1(6) When the director is of the opinion that an administrator is no longer required, the director shall terminate the administrator's appointment on any terms and conditions the director considers advisable.
Corporations Act, by-laws and articles not applicable
4.1(7) This section applies despite The Corporations Act or the articles of incorporation or bylaws of an agency.
5 Repealed.
6(1) to (12) Repealed, S.M. 2002, c. 35, s. 33.
6(13) Renumbered as section 7.1.
6(14) to (17) Repealed, S.M. 2002, c. 35, s. 33.
6(18) to (21) Renumbered as subsections 6.6(1) to (4).
S.M. 1986-87, c. 19, s. 8; S.M. 1997, c. 47, s. 131; S.M. 2002, c. 35, s. 33.
Authority may mandate agencies
6.1(1) An authority may, by resolution, mandate a corporation without share capital as an agency for the purpose of providing child and family services under this Act or The Adoption Act to persons for whom the authority is responsible to provide services under section 17 of The Child and Family Services Authorities Act, if the authority is satisfied that the corporation meets the standards established by the minister.
6.1(2) The General Authority may mandate a regional office as an agency under subsection (1) even though it is not a corporation without share capital.
6.1(3) A resolution by an authority mandating an agency must state
(a) the proposed name of the agency; and
(b) whether the services are to be provided throughout Manitoba or, if not, the geographic region in which they are to be provided.
6.1(4) When an authority mandates an agency, the authority shall give written notice of the mandate to the minister in a form acceptable to the minister.
Regulation by minister setting out agency's mandate
6.1(5) On receiving notice from an authority, the minister shall, without delay, make a regulation setting out the mandate of the agency in accordance with the notice given by the authority.
Transitional — continuing agencies under Corporations Act
6.2(1) A child and family services agency that was incorporated under subsection 6(2) before the coming into force of this section is continued as a corporation without share capital under The Corporations Act and as an agency under this Act.
6.2(2) Repealed, S.M. 2004, c. 42, s. 11.
Transitional — continuing First Nations agencies
6.2(3) A child and family services agency that was incorporated pursuant to an agreement under the former subsection 6(14) is continued as an agency under this Act, subject to the terms of any agreements referred to in subsection 6(14).
S.M. 2002, c. 35, s. 33; S.M. 2004, c. 42, s. 11.
Minister to determine initial mandates
6.3 For the purpose of ensuring that agencies are mandated by authorities on the day The Child and Family Services Authorities Act comes into force, the minister may, after consulting with the authorities, by regulation,
(a) deem each agency that is continued under section 6.2, each regional office that is an agency and Jewish Child and Family Service to be mandated by an authority specified in the regulation; and
(b) set out a geographic region for each agency.
6.4(1) An authority may, by resolution, change an agency's name or vary the geographic region in which it provides services.
Regulation amended if mandate varied
6.4(2) If an authority varies the mandate of an agency,
(a) the authority shall give the minister written notice of the variation in a form acceptable to the minister; and
(b) the minister shall, without delay, amend the regulation respecting agencies accordingly.
Withdrawing mandate from an agency
6.5(1) An authority may, by resolution, withdraw from an agency its mandate to provide child and family services to persons for whom the authority is responsible to provide services. In that case,
(a) as of the date specified in the resolution, the agency is no longer mandated to provide those services;
(b) the authority shall ensure the transfer to another agency of all responsibilities, obligations and duties towards any child who is a ward of the agency or under apprehension by the agency or for whom the agency had undertaken to provide care and treatment; and
(c) despite The Corporations Act or the provisions of the agency's articles of incorporation or by-laws, the assets and liabilities of the agency shall be assumed by the authority, unless there is an agreement between the authority and the agency to the contrary.
Regulation amended if mandate withdrawn
6.5(2) If an authority withdraws the mandate of an agency,
(a) the authority shall give the minister written notice that the mandate has been withdrawn in a form acceptable to the minister; and
(b) the minister shall, without delay, amend the regulation respecting agencies accordingly.
6.6(1) The minister may fix rates payable for services provided under this Act.
Rates payable to agencies or treatment centres
6.6(2) The minister may fix rates for services provided under this Act that shall be chargeable to and payable by the director to an agency or treatment centre.
6.6(3) The rates fixed under subsection (1) or (2) shall be effective on such date as may be fixed by the order of the minister which date may be retroactive.
6.6(4) Where a rate for a service under this Act has not been fixed by the minister or where emergency services are provided, the minister shall determine what is the reasonable amount to be paid.
S.M. 1986-87, c. 19, s. 8; S.M. 1997, c. 47, s. 131; S.M. 2002, c. 35, s. 33; S.M. 2004, c. 42, s. 11.
7(1) According to standards established by the director and subject to the authority of the director every agency shall:
(a) work with other human service systems to resolve problems in the social and community environment likely to place children and families at risk;
(b) provide family counselling, guidance and other services to families for the prevention of circumstances requiring the placement of children in protective care or in treatment programs;
(c) provide family guidance, counselling, supervision and other services to families for the protection of children;
(d) investigate allegations or evidence that children may be in need of protection;
(e) protect children;
(f) develop and provide services which will assist families in re-establishing their ability to care for their children;
(g) provide care for children in its care;
(h) develop permanency plans for all children in its care with a view to establishing a normal family life for these children;
(i) provide adoption services under The Adoption Act;
(j) provide post-adoption services to families and adults under The Adoption Act;
(k) provide parenting education and other supportive services and assistance to children who are parents, with a view to ensuring a stable and workable plan for them and their children;
(l) develop and maintain child care resources;
(m) provide services which respect the cultural and linguistic heritage of families and children;
(n) provide such reports as the director may require;
(o) take reasonable measures to make known in the community the services the agency provides;
(p) conform to a written directive of the director;
(q) maintain such records as are required for the administration or enforcement of any provision of this Act or The Adoption Act or the regulations;
(r) provide any other services and perform any other duties given to it by this Act or The Adoption Act, or by the director in accordance with this Act or The Adoption Act.
Director party to court proceedings
7(2) In all court proceedings brought by or against an agency which is a regional office, the director shall be named the party to the proceedings and any order shall also be in the name of the director.
Gifts to Children's Aid Society of Winnipeg
7.1 Where in any will there is a bequest to the Children's Aid Society of Winnipeg and the bequest has not at the time of coming into force of this section been distributed, the bequest shall be deemed to be a bequest to the Children's Foundation of Winnipeg Incorporated.
S.M. 1986-87, c. 19, s. 8; S.M. 1997, c. 47, s. 131; S.M. 2002, c. 35, s. 33.
Licence required for foster home
8(1) No person shall operate a foster home without a licence for the purpose from an agency issued in accordance with the regulations.
8(2) A person who is refused a foster home licence or whose licence is suspended, cancelled or not renewed by an agency may, within 10 days after receiving notice of the refusal, suspension, cancellation or non-renewal, appeal the matter to the director.
8(3) On receiving notice of an appeal under subsection (2), the director shall, within 30 days, consider the matter and in writing advise the appellant of his or her decision.
Licence required for other child care facility
8(4) No person shall operate a child care facility other than a foster home without a licence for the purpose from the director issued in accordance with the regulations.
Appeal to Social Services Advisory Committee
8(5) A person who is refused a licence for the operation of a child care facility other than a foster home or whose licence is suspended, cancelled or not renewed by the director may, within 10 days after receiving notice of the refusal, suspension, cancellation or non-renewal, appeal the matter to the Social Services Advisory Committee continued under The Social Services Administration Act.
Action by Social Services Advisory Committee
8(6) On receiving notice of an appeal under subsection (5), the Social Services Advisory Committee shall, within 30 days, consider the matter and in writing advise the appellant of its decision.
Transitional: existing licences and pending appeals
8(7) Where, on the date this section comes into force,
(a) a person holds a valid and subsisting letter of approval or licence issued with respect to a child care facility under The Social Services Administration Act, the letter of approval or licence continues to be valid as a licence under this Act until its expiry date but is subject to any regulation made under this Act; and
(b) an appeal concerning a letter of approval for a foster home to the Social Services Advisory Committee has not been finally disposed of, an appeal shall be deemed to have been made under subsection (2) and the matter shall be considered afresh by the director under subsection (3).
Appointment of provisional administrator
8(8) The director may, by written order, appoint a provisional administrator of a child care facility other than a foster home if the operator's licence in respect of the facility has expired or is suspended or cancelled.
Powers of provisional administrator
8(9) On the appointment of a provisional administrator under subsection (8), the rights of the operator of the child care facility with respect to the operation of the facility are suspended and the provisional administrator has all the powers, duties, privileges and authority of the operator for the purpose of carrying on the operation of the child care facility and
(a) may enter, and authorize others to enter the child care facility for the purpose of carrying on its operation;
(b) may name persons to assist in the operation of the child care facility; and
(c) shall have the use of all the moneys, books and records of the operator of the child care facility that pertain to its operation.
Expenses of provisional administration
8(10) Where a provisional administrator is appointed under subsection (8), the expenses of the provisional administration of the child care facility, including reasonable remuneration of the provisional administrator and staff employed by the provisional administrator for the purpose of carrying on the operation of the child care facility, shall, as far as possible, be paid from the funds of the former operator of the child care facility pertaining to its operation and, where the provisional administrator or any of the staff employed by him or her to carry on the operation of the child care facility are paid from the Consolidated Fund, the government may recover the amount of salary or wages paid to them from the former operator of the child care facility in a court of competent jurisdiction.
8(11) Every person who contravenes subsection (1) or (4) is guilty of an offence and liable, on summary conviction, to a fine of not more than $1,000.
8(12) Where a contravention referred to in subsection (11) continues for more than one day, the person is guilty of a separate offence for each day that the contravention continues.
PART I.1
CHILDREN'S ADVOCATE
OFFICE OF CHILDREN'S ADVOCATE
Appointment of Children's Advocate
8.1(1) The Lieutenant Governor in Council shall, on the recommendation of the Standing Committee of the Assembly on Legislative Affairs, appoint a Children's Advocate.
Recommendation of Committee on Legislative Affairs
8.1(2) Where
(a) the office of the children's advocate is vacant;
(b) the term of the children's advocate in office will expire within 12 months; or
(c) the children's advocate has tendered his or her resignation to take effect within 12 months;
the President of the Executive Council shall convene a meeting of the Standing Committee of the Assembly on Legislative Affairs which shall consider persons suitable to be appointed as children's advocate and shall make a recommendation respecting an appointment to the President of the Executive Council.
8.1(3) The children's advocate is an officer of the Legislature and is not eligible to be nominated for, elected as, or sit as, a member of the Assembly.
8.1(4) The children's advocate shall hold office for three years from the date of appointment, unless he or she sooner resigns, dies or is removed from office.
8.1(5) The children's advocate may, after a review by the Standing Committee of the Assembly on Legislative Affairs, be re-appointed for a second term of three years, but the children's advocate shall not hold office for more than two terms of three years.
8.1(6) The children's advocate may resign at any time by notifying the Speaker of the Assembly or, if there is no Speaker or the Speaker is absent, the Clerk of the Assembly.
8.1(7) The Lieutenant Governor in Council shall remove the children's advocate from office or suspend the children's advocate on a resolution of the Assembly carried by a vote of 2/3 of the members present in the Assembly.
Suspension when Assembly not sitting
8.1(8) If the Assembly is not sitting, the Lieutenant Governor in Council may suspend the children's advocate for cause or incapacity, but the suspension shall not continue in force beyond the end of the next session of the Legislature.
8.1(9) The Lieutenant Governor in Council may appoint an acting children's advocate if the office of children's advocate is vacant or if the children's advocate is suspended or removed or is absent for an extended period because of illness or another reason.
Term of acting children's advocate
8.1(10) An acting children's advocate holds office until
(a) a person is appointed under subsection (1);
(b) the suspension of the children's advocate ends; or
(c) the children's advocate returns to office after an extended absence;
as the case may be.
8.1(11) The children's advocate shall be paid a salary fixed by the Lieutenant Governor in Council, which shall be charged to and paid out of the Consolidated Fund.
8.1(12) The salary of the children's advocate shall not be reduced except on a resolution of the Assembly carried by a vote of 2/3 of the members present in the Assembly.
8.1(13) The children's advocate shall be paid for travelling and out of pocket expenses incurred in the performance of duties.
Application of The Civil Service Superannuation Act
8.1(14) The children's advocate, and all persons employed under him or her, are employees within the meaning of The Civil Service Superannuation Act.
Application of The Civil Service Act
8.1(15) The children's advocate is not subject to The Civil Service Act except section 44 as it applies to elections other than provincial general elections and by-elections.
Privileges and perquisites of office
8.1(16) The children's advocate is entitled to the privileges and perquisites of office, including holidays, vacations, sick leave and severance pay, of a member of the civil service who is not covered by a collective agreement.
Employees under children's advocate
8.1(17) The Civil Service Act applies to persons employed under the children's advocate.
8.1(18) Before beginning to perform his or her duties, the children's advocate shall take an oath before the Speaker of the Assembly or the Clerk of the Assembly to faithfully and impartially perform the duties of office and to not, except as provided in this Act, divulge any information received by him or her under this Act.
8.1(19) Every person employed under, or acting as a delegate of, the children's advocate shall, before beginning to perform his or her duties, take an oath before the children's advocate to not divulge, except as provided in this Act, any information received by him or her under this Act.
S.M. 1992, c. 28, s. 4; S.M. 1998, c. 6, s. 3; S.M. 2004, c. 42, s. 98.
DUTIES
8.2(1) The children's advocate shall
(a) advise the minister on matters
(i) relating to the welfare and interests of children who receive or may be entitled to receive services under this Act, or
(ii) relating to services provided or available to children under this Act;
(b) review and investigate complaints that he or she receives
(i) relating to children who receive or may be entitled to receive services under this Act, or
(ii) relating to services provided or available to children under this Act;
(c) in response to a request, represent, other than as legal counsel, the rights, interests and viewpoints of children who receive or may be entitled to receive services under this Act;
(d) prepare and submit an annual report to the Speaker of the Assembly respecting the performance of the duties and the exercise of the powers of the children's advocate.
8.2(2) The Speaker shall lay a copy of the report of the children's advocate before the Legislative Assembly within 15 days of receiving it if the Legislative Assembly is then in session, or if it is not then in session, within 15 days of the beginning of the next session.
S.M. 1992, c. 28, s. 4; S.M. 1998, c. 6, s. 5.
REFERRALS
Referrals by committee of Assembly
8.2.1(1) The Standing Committee of the Assembly on Legislative Affairs may refer to the children's advocate for review, investigation and report any matter relating to
(a) the welfare and interests of children who receive or may be entitled to receive services under this Act; or
(b) services provided or available to children under this Act.
Report to committee by children's advocate
8.2.1(2) Upon receiving a referral under subsection (1), the children's advocate shall
(a) subject to any special directions of the committee, review and investigate the matter to the extent that it is within his or her jurisdiction; and
(b) make any report to the committee that he or she considers appropriate.
S.M. 1998, c. 6, s. 6; S.M. 2004, c. 42, s. 98.
8.2.2(1) The minister may refer to the children's advocate for review, investigation and report any matter relating to
(a) the welfare and interests of children who receive or may be entitled to receive services under this Act; or
(b) services provided or available to children under this Act.
8.2.2(2) Upon receiving a referral under subsection (1), the children's advocate shall
(a) subject to any special directions of the minister, review and investigate the matter referred to the extent that it is within his or her jurisdiction; and
(b) make any report to the minister that he or she considers appropriate.
POWERS
8.3 The children's advocate may exercise the following powers:
(a) to conduct inquiries, investigate, report on, and make recommendations regarding any matter
(i) relating to children who receive or may be entitled to receive services under this Act, or
(ii) relating to services provided or available to children under this Act;
(b) to inspect any treatment centre, group home or other home or place in which a child is placed in accordance with the provisions of this Act;
(c) to examine and obtain a copy of any record, paper or thing which, in the opinion of the children's advocate, relates to any matter being investigated by him or her, and which is in the possession of an authority, the director, an agency or the person in charge of any of the places mentioned in clause (b);
(d) to communicate with and visit a child who is receiving or has received services under this Act, or a guardian or other person who represents the child;
(e) other than as legal counsel, to represent the rights, interests and viewpoints of a child who is receiving services under this Act when decisions relating to the child are being made under this Act;
(f) to solicit, accept and review reports from individuals or organizations concerned or involved with the welfare of children or families, or both.
S.M. 1992, c. 28, s. 4; S.M. 2002, c. 35, s. 33.
8.4 The children's advocate may in writing authorize any person to perform any of the duties or exercise any of the powers of the children's advocate except the power of delegation under this section and the power to make reports under this Act.
S.M. 1992, c. 28, s. 4; S.M. 1998, c. 6, s. 8.
8.5 The children's advocate may, for the purposes of carrying out his or her duties or powers under this Act, at any reasonable time enter the premises occupied by an authority, the director or an agency, or a treatment centre, group home or other home or place in which a child is placed in accordance with the provisions of this Act.
S.M. 1992, c. 28, s. 4; S.M. 2002, c. 35, s. 33.
8.6 The children's advocate may require any person who in the opinion of the children's advocate is able to give any information relating to any matter being investigated by him or her
(a) to furnish the information to the children's advocate; and
(b) to produce any record, paper or thing which, in the opinion of the children's advocate, relates to the matter being investigated and which may be in the possession or under the control of that person;
but nothing in this subsection abrogates any privilege that may exist because of the relationship between a solicitor and the solicitor's client.
Proceedings re furnishing information prohibited
8.7 No proceedings lie against a person by reason of his or her compliance with a requirement of the children's advocate to furnish information or produce any record, paper or thing, or by reason of answering any question in an investigation by the children's advocate.
Report to director, authority and agency
8.8(1) After making an investigation under this Act, the children's advocate shall make a written report to the director and to any authority or agency involved setting out his or her conclusions as to the matter being investigated and reasons for the conclusions, and may make such recommendations as the children's advocate considers appropriate.
8.8(2) Where an investigation by the children's advocate involves a review of a complaint about services to a child, the children's advocate, in such manner as he or she considers appropriate,
(a) shall report the results of the investigation to the parent or guardian of that child;
(b) shall report the results of the investigation to the child if he or she is 12 years of age or more; and
(c) may report the results of the investigation to the child if he or she is less than 12 years of age and the children's advocate considers it appropriate to do so.
8.8(3) Where an investigation by the children's advocate involves a treatment centre, group home or other home or place in which a child is placed in accordance with the provisions of this Act, the children's advocate may report the results of the investigation to the person in charge of that place, in such manner as the children's advocate considers appropriate.
8.8(4) The children's advocate may report the results of an investigation to a complainant in such manner as the children's advocate considers appropriate.
S.M. 1992, c. 28, s. 4; S.M. 2002, c. 35, s. 33.
8.9 Where a child in a treatment centre, group home or other home or place in which he or she is placed in accordance with the provisions of this Act
(a) asks to communicate with the children's advocate, that request shall be forwarded to the children's advocate immediately; or
(b) writes a letter addressed to the children's advocate, the person in charge of the place shall forward the letter immediately, unopened, to the children's advocate.
8.10(1) The children's advocate shall maintain secrecy in respect of all matters that come to his or her knowledge in the performance of duties or the exercise of powers under this Act, and shall not disclose any matter except as provided in this Act.
Disclosure re duties and power
8.10(2) Subject to subsections (3), (4) and (5), in the performance of duties or the exercise of powers the children's advocate may disclose any matter which the children's advocate considers necessary.
8.10(3) Subject to subsection (5), in a report referred to in section 8.8, 8.2.1 or 8.2.2 the children's advocate may disclose any matter which the children's advocate considers necessary relating to his or her conclusions, reasons and recommendations.
8.10(4) Subject to subsection (5), in an annual report made under clause 8.2(1)(d) the children's advocate may disclose any matter which he or she considers necessary relating to the performance of the duties and exercise of the powers of the children's advocate, but shall not disclose the name of any individual, or any identifying information as to any child involved in an investigation, any parent or guardian of such a child, or any complainant.
Disclosure re adoption records
8.10(5) The children's advocate shall not disclose identifying information relating to the granting of an order of adoption under The Adoption Act.
S.M. 1992, c. 28, s. 4; S.M. 1997, c. 47, s. 131; S.M. 1998, c. 6, s. 9.
Proceedings against children's advocate prohibited
8.11 No proceedings lie against the children's advocate for any act done in good faith in the performance or intended performance of a duty or in the exercise or intended exercise of a power under this Act, or for any neglect or default in the performance or exercise in good faith of such duty or power.
8.12 Every person who
(a) without lawful justification or excuse wilfully obstructs, hinders, or resists the children's advocate in the performance of his or her duties or the exercise of his or her powers under this Act;
(b) without lawful justification or excuse refuses or wilfully fails to comply with any lawful requirement of the children's advocate; or
(c) wilfully makes any false statement to or misleads or attempts to mislead the children's advocate in the performance of his or her duties or the exercise of his or her powers under this Act;
is guilty of an offence and liable, on summary conviction, to a fine of not more than $500. or to imprisonment for a term not exceeding three months, or to both.
8.13 Repealed.
S.M. 1992, c. 28, s. 4; S.M. 1998, c. 6, s. 10.
8.14(1) The Assembly may make general rules for the guidance of the children's advocate in the performance of duties and the exercise of powers under this Act.
Procedure of children's advocate
8.14(2) Subject to this Act and any rules made under subsection (1), the children's advocate may determine his or her procedure.
PART II
SERVICES TO FAMILIES
9(1) A member of a family may apply to an agency for and may receive from the agency counselling, guidance, supportive, educational and emergency shelter services in order to aid in the resolution of family matters which if unresolved may create an environment not suitable for normal child development or in which a child may be at risk of abuse.
9(2) An agency on application by a minor parent shall provide services under this Part to establish a plan which is in the best interests of the parent and child.
9(3) An agency shall work with other interested professionals and institutions to ensure that minor parents are informed of services which are available to them.
Notice to director of birth of child to an unmarried child
9(4) Where a hospital or other institution has received for care during pregnancy or accouchement an unmarried child or a child with respect to whose marriage there exists reasonable doubt, the person in charge of the hospital or other institution shall forthwith notify the director or an agency on a prescribed form; and shall in like manner, on the birth of the child in the hospital or other institution, report the fact to the director forthwith.
10(1) An agency may provide or purchase such prescribed supportive and treatment services as may be required to prevent family disruption or restore family functioning.
10(2) An agency may provide prescribed emergency financial and material assistance to prevent family disruption.
Assistance to community groups
11(1) Any interested community group or individual may apply to an agency for assistance in resolving community problems which are affecting the ability of families to care adequately for their children.
11(2) An agency may establish service programs to facilitate the participation of volunteers in the provision of ongoing services.
12 Where it appears to an agency that a child is in need of care outside the home for varying periods of time during the day, the agency may, by agreement in a prescribed form with the parent or guardian of the child, place the child in a day care facility licensed under The Community Child Care Standards Act or obtain a suitable alternative.
13(1) Where it appears that there is temporarily no person able to care for a child in the child's home and the child needs such care, and agency may
(a) with the consent of the parent or guardian; or
(b) in the absence of the parent or guardian;
place a homemaker in the home to care for the child during that temporary period.
13(2) Where an agency has placed a homemaker under clause (1)(b) the agency shall
(a) forthwith attempt to notify the parent or guardian of the child of the placement; and
(b) where no person able to look after and care for the child in the home has been found, after the expiration of 7 days from the date of placement of the homemaker, proceed under Part III.
Rights and responsibilities of homemaker
13(3) A homemaker placed under subsection (1) may
(a) enter the home;
(b) live in the home;
(c) use any equipment, apparatus, tools, fixtures or implements on the premises normally used in housekeeping or maintaining the home, and carry on normal housekeeping activities on the premises in such manner and to such extent as is reasonably necessary to care for the child properly;
(d) exercise reasonable control and discipline over the child;
(e) provide goods and services necessary to care for the child on the premises;
(f) provide training, teaching and counselling to parents or guardians to assist them in properly caring for the child in the home.
13(4) Where it appears that the parent or guardian requires training in homemaking and child care, the agency may with the consent of the parent or guardian place a parent aide in the home of the parent or guardian in order to provide the training.
13(5) Where an agency has placed a homemaker under subsection (1) or a parent aide under subsection (4) the agency may
(a) enter into an agreement on a prescribed form respecting the placement with the parent or guardian for a period not exceeding six months; and
(b) renew the agreement with the parent or guardian for one or more periods each of which shall not exceed six months, with such variations in the terms as the parties consider necessary.
S.M. 1987-88, c. 34, s. 1.
14(1) An agency may enter into an agreement with a parent, guardian or other person who has actual care and control of a child, for the placing of the child without transfer of guardianship in any place which provides child care where that person is unable to make adequate provision for the care of that child
(a) because of illness, misfortune, or other circumstances likely to be of a temporary duration; or
(b) because the child
(i) is a child with a mental disability as defined in The Vulnerable Persons Living with a Mental Disability Act, or
(ii) is suffering from a chronic medical disability requiring treatment which cannot be provided if the child remains at home, or
(iii) is 14 years of age or older and beyond the control of the person entering into the agreement.
14(2) An agreement under subsection (1) shall be on a prescribed form for a period not exceeding 12 months and, subject to subsection (3), may be renewed.
Limit on renewals of agreement
14(3) The period of an agreement entered into under clause (1)(a) together with all renewals shall not exceed 24 months but agreements under clause (1)(b) may be renewed on an annual basis until the child reaches the age of majority.
14(4) An agreement entered into under this section and any renewal may be terminated at any time, upon the execution of a prescribed form, either by the agency or person who entered into the agreement and notice of the termination shall be given by the agency to the director.
14(5) Where a person who has entered into an agreement with an agency under this section takes up residence outside the province without the prior approval in writing of the agency, the agency may immediately terminate the agreement and shall notify the director in writing.
14(6) Where the Director of Psychiatric Services has placed a child under the care of the director under section 14 of The Child Welfare Act, the child shall be deemed to be under the care of an agency pursuant to an agreement under clause 1(b).
15(1) An agreement under section 12, 13 or 14 is valid notwithstanding that the person entering into the agreement is a minor.
Financial information and maintenance agreement
15(2) On the execution by a parent or guardian of an agreement under section 12, 13 or 14 with respect to a child, the parent or guardian shall provide to the agency the financial information prescribed by the regulations, and the agency shall request the parent or guardian to execute a further agreement under which the parent or guardian agrees to pay to the agency maintenance for the child in accordance with the regulations.
15(3) Notwithstanding subsection (2), where the director determines there are special circumstances, the amount payable by the person to the agency may be reduced as determined by the director.
Order for payment of maintenance
15(3.1) On application by the agency, a judge shall order the parent or guardian
(a) where an agreement under subsection (2) is executed by a parent or guardian, to pay to the agency maintenance for the child in accordance with the agreement; and
(b) where a parent or guardian does not execute an agreement under subsection (2), to pay to the agency such maintenance for the child by way of lump sum, periodic payments, or both, as is appropriate.
Filing and service of financial information
15(3.2) On an application for an order under clause (3.1)(b), the parent or guardian shall, within 10 days from the date on which the parent or guardian is served with notice of the application, file with the court and serve on the agency the financial information prescribed by the regulations, and, on application without notice, a judge or master may order the parent or guardian to file and serve such information.
Penalty for not filing financial information
15(3.3) Where a person fails to comply with subsection (3.2), a judge may, in addition to or in substitution for any other order, on application by the agency order that the person pay to the agency an amount not exceeding $5,000. and any such order may be enforced as a judgment of the court.
Factors affecting order under section 15(3.1)(b)
15(3.4) In determining what provisions an order under clause (3.1)(b) should contain, a judge shall consider the following factors and any additional factors he or she considers relevant:
(a) the cost of maintaining the child, including residential accommodations, housekeeping, food, clothing, recreation and supervision;
(b) the need for and cost of providing a stable environment for the child;
(c) the financial circumstances, including other financial obligations, of the parent or guardian.
Maintenance effective from provision of services
15(3.5) An agreement under subsection (2) and an order under subsection (3.1) may be made effective from the date of the placement of a child in day care under section 12, the date of the placement of a homemaker or parent aide under section 13, or the date of the placement of the child under section 14.
15(3.6) On application by a parent, guardian or agency affected by an order made under subsection (3.1), and on sufficient cause being shown, a judge may alter, vary, or discharge the order.
15(4) The director may require an agency to submit all or any agreements under sections 12, 13 or 14 to him or her for approval.
Voluntary surrender of guardianship by parents
16(1) The following persons may, by agreement on a prescribed form, surrender guardianship of the child to an agency:
(a) the parents of the child;
(b) if a parent is deceased, the surviving parent; or
(c) if both parents are deceased, the individual who is the child's guardian appointed by court order.
Voluntary surrender of guardianship by mother
16(2) The mother of a child who is
(a) unmarried and without a common-law partner; or
(b) married or had cohabited with a common-law partner, but ceased cohabiting with her spouse or common-law partner 300 days or more before the child was born;
may, by agreement on a prescribed form, surrender guardianship of the child to an agency.
Agreements in name of director
16(3) An agreement under subsection (1) or (2) by an agency that is a regional office shall be in the name of the director.
16(4) An agreement under subsection (1) or (2) is valid notwithstanding that the person surrendering guardianship is a minor.
No surrender until 48 hours after birth
16(5) No agreement shall be entered into under subsection (1) or (2) until the expiration of at least 48 hours after the time of the birth of the child.
16(6) and (7) Repealed, S.M. 1997, c. 47, s. 131.
Agreement subject to approval of director
16(8) The director may require an agency to submit all or any agreements entered into under this section to him or her for approval.
16(9) Upon the signing of a surrender of guardianship under this section, the rights and obligations of the person surrendering guardianship with respect to the child are terminated.
Withdrawal of voluntary surrender of guardianship
16(10) A person who has voluntarily surrendered guardianship of a child under this section may, by written notice to the director or to the agency to whom guardianship was surrendered, withdraw the voluntary surrender of guardianship within 21 days after the date of the agreement.
16(10.1) Where a person withdraws a voluntary surrender of guardianship under subsection (10), the child and family services agency to whom guardianship was surrendered shall return the child to the person who withdraws the voluntary surrender of guardianship.
16(11) Where more than 1 year has expired since the signing of a surrender of guardianship under this section and the child has not been placed for adoption, the person who surrendered guardianship may apply to the director to have the surrender of guardianship withdrawn and upon the director approving the application in writing the agreement is terminated.
16(12) Where the director refuses the application under subsection (11), the person may apply to the Court of Queen's Bench for an order that the agreement be terminated and the court may grant the order subject to such terms and conditions as the court considers appropriate.
Action prior to accepting surrender
16(13) Prior to accepting a surrender of guardianship under this section, an agency shall explain fully to the person considering surrendering, the effect of the agreement and shall advise that person of his or her right to have independent legal advice and, after the execution of the agreement, a representative of the agency shall swear an affidavit in prescribed form, that the provisions of this subsection have been complied with.
No notice of adoption application
16(14) A person who has surrendered guardianship under this section shall not be given notice of an application for an order of adoption of the child under The Adoption Act.
S.M. 1997, c. 47, s. 131; S.M. 2002, c. 24, s. 10.
PART III
CHILD PROTECTION
17(1) For purposes of this Act, a child is in need of protection where the life, health or emotional well-being of the child is endangered by the act or omission of a person.
Illustrations of child in need
17(2) Without restricting the generality of subsection (1), a child is in need of protection where the child
(a) is without adequate care, supervision or control;
(b) is in the care, custody, control or charge of a person
(i) who is unable or unwilling to provide adequate care, supervision or control of the child, or
(ii) whose conduct endangers or might endanger the life, health or emotional well-being of the child, or
(iii) who neglects or refuses to provide or obtain proper medical or other remedial care or treatment necessary for the health or well-being of the child or who refuses to permit such care or treatment to be provided to the child when the care or treatment is recommended by a duly qualified medical practitioner;
(c) is abused or is in danger of being abused;
(d) is beyond the control of a person who has the care, custody, control or charge of the child;
(e) is likely to suffer harm or injury due to the behaviour, condition, domestic environment or associations of the child or of a person having care, custody, control or charge of the child;
(f) is subjected to aggression or sexual harassment that endangers the life, health or emotional well-being of the child;
(g) being under the age of 12 years, is left unattended and without reasonable provision being made for the supervision and safety of the child; or
(h) is the subject, or is about to become the subject, of an unlawful adoption under The Adoption Act or of a sale under section 84.
S.M. 1986-87, c. 19, s. 8; S.M. 1989-90, c. 3, s. 3; S.M. 1997, c. 47, s. 131.
Reporting a child in need of protection
18(1) Subject to subsection (1.1), where a person has information that leads the person reasonably to believe that a child is or might be in need of protection as provided in section 17, the person shall forthwith report the information to an agency or to a parent or guardian of the child.
18(1.1) Where a person under subsection (1)
(a) does not know the identity of the parent or guardian of the child;
(b) has information that leads the person reasonably to believe that the parent or guardian
(i) is responsible for causing the child to be in need of protection, or
(ii) is unable or unwilling to provide adequate protection to the child in the circumstances; or
(c) has information that leads the person reasonably to believe that the child is or might be suffering abuse by a parent or guardian of the child or by a person having care, custody, control or charge of the child;
subsection (1) does not apply and the person shall forthwith report the information to an agency.
18(2) Notwithstanding the provisions of any other Act, subsection (1) applies even where the person has acquired the information through the discharge of professional duties or within a confidential relationship, but nothing in this subsection abrogates any privilege that may exist because of the relationship between a solicitor and the solicitor's client.
S.M. 1989-90, c. 3, s. 4; S.M. 1996, c. 4, s. 3.
18.1(1) No action lies against a person for providing information in good faith and in compliance with section 18.
18.1(2) No person shall, except as required in the course of a judicial proceeding, disclose to the family of a child reported in need of protection the identity of the informant under section 18 without the written consent of the informant.
18.1(3) No person shall interfere with or harass an informant under section 18.
S.M. 1989-90, c. 3, s. 5.
Reports regarding professionals, etc.
18.2(1) Where the director has reasonable grounds to believe that a person has caused a child to be in need of protection or has failed to report information in accordance with section 18, the director may report the matter to the body or person that governs the professional status of the person or certifies, licenses, or otherwise authorizes or permits the person to carry on his or her work or occupation.
18.2(2) A body or person who receives a report under subsection (1) shall
(a) investigate the matter to determine whether any professional status review or disciplinary proceedings should be commenced against the person; and
(b) on conclusion of the investigation and any proceedings, advise the director of the determination under clause (a), the reasons for the determination, and, if applicable, the results of any professional status review or disciplinary proceedings.
S.M. 1989-90, c. 3, s. 5; S.M. 1997, c. 48, s. 7.
18.3 Where a person,
(a) through an act or omission of the person, causes a child to be a child in need of protection as provided in section 17;
(b) fails to report information as required under section 18;
(c) discloses the identity of an informant in contravention of subsection 18.1(2); or
(d) interferes with or harasses an informant in contravention of subsection 18.1(3);
the person is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000. or imprisonment for a term of not more than 24 months, or both.
S.M. 1989-90, c. 3, s. 5; S.M. 2005, c. 3, s. 2.
18.4(1) Where an agency receives information that causes the agency to suspect that a child is in need of protection, the agency shall immediately investigate the matter and where, upon investigation, the agency concludes that the child is in need of protection, the agency shall take such further steps as are required by this Act or are prescribed by regulation or as the agency considers necessary for protection of the child.
18.4(1.1) An agency may request from a peace officer, and the peace officer shall provide, any information in the officer's possession or control that the agency reasonably believes is relevant to an investigation under subsection (1).
18.4(2) Subject to subsection (3), where an agency concludes, after an investigation under subsection (1), that a child is in need of protection, the agency shall report its conclusion
(a) to the parent or guardian of the child;
(b) where there is no parent or guardian of the child, a person having full-time custody or charge of the child;
(c) to the person, if any, who is identified by the investigation as the person who caused the child to be in need of protection;
(d) in the case of a person under clause (c) whose employment
(i) involves the care, custody, control or charge of children, or
(ii) permits unsupervised access to children,
to the employer or the manager or supervisor at the place of employment;
(e) where the child attends school, to the principal of the school or the superintendent of the school division in which the school is located;
(f) to the child where, in the opinion of the agency, the child is capable of understanding the information and disclosure to the child is in the best interests of the child; and
(g) to the person who reported the information that gave rise to the investigation, except where disclosure is not in the best interests of the child.
Report of conclusion where child not in need of protection
18.4(2.1) Subject to subsection (3), where an agency concludes, after an investigation under subsection (1), that a child is not in need of protection, the agency shall report its conclusion
(a) to the parent or guardian of the child;
(b) where there is no parent or guardian of the child, a person having full-time custody or charge of the child;
(c) to the person, if any, who is identified by the investigation as the person who was alleged to have caused the child to be in need of protection;
(d) to the child where, in the opinion of the agency, the child is capable of understanding the information and disclosure to the child is in the best interests of the child; and
(e) to the person who reported the information that gave rise to the investigation, except where disclosure is not in the best interests of the child.
18.4(3) An agency shall not report its conclusion under subsection (2) or (2.1) where a criminal investigation into the matter is pending and the peace officer in charge of the investigation requests the agency not to report its conclusion because it would jeopardize the investigation.
Peace officer to report charges
18.4(4) Where a peace officer lays an information charging a person with an offence under the Criminal Code or under this Act and
(a) the offence is based on alleged acts or omissions by the accused person in relation to a child; and
(b) the employment of the accused person
(i) involves the care, custody, control or charge of children, or
(ii) permits unsupervised access to children;
the peace officer shall immediately advise the employer, or, if the identity of the employer is not known or the employer cannot be promptly reached, the manager or supervisor at the place of employment, that the accused person has been charged.
S.M. 1989-90, c. 3, s. 6; S.M. 1997, c. 48, s. 8.
Reference to child abuse committee
18.5 Where an agency receives information that causes it to believe that a child is or might be abused, the agency shall, in addition to carrying out its duties under subsection 18.4(1), refer the matter to its child abuse committee established under subsection 19(1).
18.6 Where an agency receives information that a child was or might have been abused by a person who provides work for or services to the agency or to a child care facility or other place where a child has been placed by the agency, the agency shall, in addition to carrying out its duties under subsection 18.4(1) and section 18.5, immediately report the matter to the director and the director shall investigate the matter and take such further steps as are required by this Act, prescribed by regulation, or as the director considers necessary.
19(1) Each agency shall, in accordance with the regulations, establish a child abuse committee to review cases of suspected abuse of a child and to advise the agency concerning what actions, if any, may in its opinion be required to protect the child or other children.
19(2) Agencies may, with the approval of the director, establish a joint committee and that committee shall be the child abuse committee for all the participating agencies.
Actions on referral to committee
19(3) Where a child abuse committee suspects a person of having abused a child, the committee shall, in the prescribed manner, give to the person who is suspected an opportunity to provide information to it and shall
(a) form an opinion whether the person abused the child;
(b) form an opinion whether the name of the person should be entered in the registry; and
(c) report its opinions and, where it has formed the opinion that the person has abused the child, the circumstances of the abuse to the agency.
19(3.1) Subject to any procedural requirements in the regulations, the proceedings of a committee acting under subsection (3) shall be conducted in an informal manner and no opinion or report of a committee shall be invalidated because of any lack of formality.
19(3.2) On receipt of a report under clause (3)(c) that the committee is of the opinion that a person has abused a child and that the person's name should be entered in the registry, the agency shall give notice in the prescribed manner of the opinions and circumstances reported to it, of its intention to submit the name of the person for entry in the registry, and of the right to object under subsection (3.3), to the following persons:
(a) the person who the committee believes has abused the child, where the person is 12 years of age or older;
(b) the parent or guardian of the person who the committee believes has abused the child, where the person has not reached the age of majority;
(c) the parent or guardian of the child;
(d) the child, where the child is 12 years of age or older; and
(e) the director.
Objection to entry in registry
19(3.3) A person who is the subject of a report referred to in subsection (3.2) may, within 60 days of the giving of notice to the person under subsection (3.2), object to the entry of the person's name in the registry by
(a) filing with the Court of Queen's Bench of Manitoba (Family Division) a notice of application for a hearing together with a true copy of the notice given under subsection (3.2); and
(b) serving a true copy of the notice of application on the agency.
Report to director where no objection
19(3.4) Where no notice of application is received by the agency before the expiration of the 60-day period referred to in subsection (3.3), the agency shall report the name of the person and the circumstances of the abuse to the director for entry in the registry.
19(3.5) Where a notice of application is filed and served in accordance with subsection (3.3), the court shall consider the matter by way of a hearing in accordance with subsection (3.6).
19(3.6) At a hearing,
(a) the agency has the burden of proof on the balance of probabilities;
(b) all parties may be represented by counsel and shall, subject to clauses (c) and (d), be given full opportunity to present evidence and to examine and cross-examine witnesses;
(c) the court is not bound by the rules of evidence in relation to the evidence of a child who the agency alleges was abused by the applicant and may receive the child's evidence through hearsay, by way of a recording, a written statement, or in any other form or manner that it considers advisable; and
(d) a child who the agency alleges was abused by the applicant shall not be compelled to testify.
19(3.7) The court shall determine whether the person has abused a child and record the reasons for its decision, and its decision is final and not subject to appeal.
Transitional: no review committee decision
19(3.8) Where, immediately before this subsection comes into force,
(a) a notice has been given under subsection 19.1(3), as it read immediately before the coming into force of this subsection, concerning abuse by a person, and the time within which the person might have made an appeal to the registry review committee has not expired; or
(b) the registry review committee has not given its decision on an appeal by the person;
the agency is deemed to have received a report mentioned in subsection (3.2) with respect to the person and shall give the notice required by that subsection and thereafter the matter shall be dealt with under the provisions of this section.
Transitional: appeal permitted or pending
19(3.9) Where, immediately before this subsection comes into force, the registry review committee has given its decision on a matter but the time within which an appeal to the Court of Queen's Bench under subsection 19.2(6), as it read immediately before the coming into force of this subsection, has not expired, or an appeal under that subsection has not been finally disposed of, that subsection continues to apply until the time for an appeal expires or any appeal is finally disposed of.
19(4) An agency shall report to the director for entry in the registry maintained under section 19.1 the name of a person who has abused a child and the circumstances surrounding the abuse where
(a) the agency has information that the person, in a court in Manitoba, was found guilty of, or pleaded guilty to, an offence involving abuse of a child;
(a.1) the agency has information that the person is, or is likely to be, present in Manitoba and the person, in a court outside Manitoba, was found guilty of, or pleaded guilty to, an offence involving abuse of a child; or
(b) the person has been found by a court in a proceeding under this Act to have abused a child;
(c) repealed, S.M. 1997, c. 48, s. 10.
Where report under subsection (4) not required
19(5) No report is required under subsection (4) where a report concerning the person and circumstances has been made to the director under subsection (6) or (7).
19(6) Where a person, in a court in Manitoba, is found guilty of, or pleads guilty to, an offence involving abuse of a child, or is found in a proceeding under this Act to have abused a child, the court shall report the name of the person, the circumstances of the abuse and, if applicable, the particulars of the offence and any sentence imposed to the director for entry in the registry.
Reporting by peace officer re offence
19(7) If a peace officer, in the course of conducting an investigation or carrying out other duties, obtains information that a person present, or likely to be present, in Manitoba, was found guilty of, or pleaded guilty to, an offence involving abuse of a child
(a) in a court outside Manitoba; or
(b) in a court in Manitoba prior to the coming into force of this subsection;
the peace officer shall report to the director the name of the person and the details of the offence for entry in the registry maintained under section 19.1.
19(8) For the purpose of this section, "offence involving abuse of a child" does not include an offence excluded from the application of this section by regulation.
S.M. 1987-88, c. 68, s. 1; S.M. 1989-90, c. 3, s. 7 to 9; S.M. 1996, c. 4, s. 4; S.M. 1997, c. 48, s. 10.
19.1(1) The director shall establish and maintain a child abuse registry in which the director shall enter the information that is required to be entered pursuant to this Act.
19.1(2) On receipt of a report under subsection 19(3.4), (4), (6) or (7), the director shall enter the name and circumstances in the registry.
S.M. 1987-88, c. 68, s. 1; S.M. 1989-90, c. 90, s. 3; S.M. 1996, c. 4, s. 5; S.M. 1997, c. 48, s. 11.
19.2 Repealed.
S.M. 1987-88, c. 68, s. 1; S.M. 1997, c. 48, s. 12.
19.3(1) All names and information on the child abuse registry are confidential and the director shall allow access to it only in accordance with this section and section 76.
19.3(2) An agency, on application to the director, shall be given access to the registry where the director is satisfied that the access is reasonably required to assist the agency
(a) in investigating whether a child is in need of protection;
(b) in assessing any person who provides work for or services to the agency, whether as an employee, foster parent, homemaker, parent aide, volunteer, student trainee or in any other way, or any person who applies or proposes to provide work for or services to the agency; or
(c) in assessing an adoptive applicant.
19.3(2.1) An adoption agency licensed under The Adoption Act, on application to the director, shall be given access to the registry where the director is satisfied that the access is reasonably required to assist the adoption agency
(a) in assessing an adoptive applicant; or
(b) in assessing any person who provides work or services to the adoption agency, whether as an employee, volunteer, student trainee or in any other way, or any person who applies or proposes to provide such work or services to the adoption agency.
19.3(3) A peace officer, on application to the director, shall be given access to the registry where the director is satisfied that the access is reasonably required to assist the peace officer in carrying out the officer's duties.
Access by employers and others
19.3(3.1) On application by an employer or other person, the director shall disclose to the applicant whether the name of a person is entered in the registry if the director is satisfied that the information is reasonably required to assist the applicant in assessing the person whose work, whether paid or unpaid,
(a) involves or may involve the care, custody, control or charge of a child; or
(b) permits or may permit access to a child.
Director to provide information re register
19.3(4) The director shall provide to any person who applies any information contained on the registry respecting that person other than information that may identify a person who made a report under subsection 18(1.1).
19.3(5) Subsections 76(9), (10) and (11) apply with such modifications as the circumstances require to a person who has been given information under subsection (4).
S.M. 1987-88, c. 68, s. 1; S.M. 1990-91, c. 12, s. 2; S.M. 1997, c. 47, s. 131; S.M. 1997, c. 48, s. 13.
Removal of identifying information re abused
19.4(1) The director shall delete from the registry all identifying information relating to a child who is listed as an abused child upon that child attaining 18 years of age.
Removal of identifying information re abuser
19.4(2) Subject to subsection 19.2(8), the director shall remove from the registry all identifying information relating to a person who is listed as an abuser on the later of the day on which
(a) 10 years have elapsed since the last entry relating to the person; or
(b) the child who was abused attains 18 years of age.
19.5 Repealed.
S.M. 1987-88, c. 68, s. 1; S.M. 1989-90, c. 90, s. 3; S.M. 1997, c. 48, s. 15.
Application for an order not to contact child
20(1) Where an agency has reasonable and probable grounds to believe that a person has subjected a child to abuse or is likely to subject a child to abuse, it may apply to court for an order that the person
(a) cease to reside in the same premises in which a child resides;
(b) refrain from any contact or association with a child.
20(2) The agency shall give 7 clear days notice of the hearing on a prescribed form to
(a) the parents or guardian of the child;
(b) any adult residing in the same premises as the child;
(c) the person against whom the order is sought; and
(d) the child where the child is 12 years of age or more.
20(3) Upon completion of the hearing, a judge, if satisfied that the person against whom the order is sought has subjected the child to abuse or is likely to subject the child to abuse, may grant the order with such conditions as the judge considers appropriate for a period not to exceed 6 months.
20(4) On application at any time by an agency, a judge may extend the order under subsection (3) for further periods each of which shall not exceed 6 months.
20(5) Where all the parties consent, a judge or master may, without receiving further evidence, make an order under subsection (3) or (4).
Agency to serve copies of order
20(6) The agency shall cause a true copy of the order to be served upon all persons served with notice of the application.
20(7) Any person who violates the provisions of an order made under this section is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000. or imprisonment for a term of not more than 24 months, or both.
Apprehension of a child in need of protection
21(1) The director, a representative of an agency or a peace officer who on reasonable and probable grounds believes that a child is in need of protection, may apprehend the child without a warrant and take the child to a place of safety where the child may be detained for examination and temporary care and be dealt with in accordance with the provisions of this Part.
Entry without warrant in certain cases
21(2) The director, a representative of an agency or a peace officer who on reasonable and probable grounds believes
(a) that a child is in immediate danger; or
(b) that a child who is unable to look after and care for himself or herself has been left without any responsible person to care for him or her;
may, without warrant and by force if necessary, enter any premises to investigate the matter and if the child appears to be in need of protection shall
(c) apprehend the child and take the child to a place of safety; or
(d) take such other steps as are necessary to protect the child.
21(3) On application, a judge, master or justice of the peace who is satisfied that there are reasonable and probable grounds for believing there is a child who is in need of protection, may issue a warrant authorizing an agency or a peace officer
(a) to enter, by force if necessary, a building or other place specified in the warrant and search for the child; and
(b) if the child appears to be in need of protection,
(i) to apprehend the child and to take the child to a place of safety, or
(ii) to take such other steps as are necessary to protect the child.
21(4) It is not necessary in the application or the warrant to describe a child by name.
21(5) The director or a representative of an agency who needs assistance in apprehending a child may seek the assistance of a peace officer and the peace officer shall provide the assistance.
Child in care may be apprehended
22(1) The fact that a child is under the care of an agency or in a treatment centre, hospital or day care facility or the fact that an agency has placed a homemaker or parent aide in the home in which the child has been left does not prevent
(a) a person authorized to do so from apprehending the child as provided in this Part; or
(b) a judge from finding the child to be in need of protection.
Child remaining in hospital as a patient
22(2) Where a child is a patient in a hospital, the person who apprehended the child under this Part may, if so advised by a duly qualified medical practitioner, leave the child in the hospital; and for the duration of the hospitalization the hospital shall be deemed to be a place of safety.
23 Where a child is apprehended under this Part by a person other than a representative of the agency having jurisdiction in the area where the child was apprehended, the person apprehending shall forthwith notify that agency and provide all particulars with respect to the child.
Parents to be notified of apprehension
24 Where a child has been apprehended and brought to a place of safety, an agency shall make reasonable efforts to notify the parents or guardian of the apprehension of the child.
25(1) Where a child has been apprehended, an agency
(a) is responsible for the child's care, maintenance, education and well-being;
(b) may authorize a medical examination of the child where the consent of a parent or guardian would otherwise be required; and
(c) may authorize the provision of medical or dental treatment for the child if
(i) the treatment is recommended by a duly qualified medical practitioner or dentist,
(ii) the consent of a parent or guardian of the child would otherwise be required, and
(iii) no parent or guardian of the child is available to consent to the treatment.
Child's consent required if 16 or over
25(2) Notwithstanding clause (1)(b) or (c), if the child is 16 years of age or older, an agency shall not authorize a medical examination under clause (1)(b) or medical or dental treatment under clause (1)(c) without the consent of the child.
Application to court to authorize examination or treatment
25(3) An agency may apply to court for an order
(a) authorizing a medical examination of an apprehended child where the child is 16 years of age or older and refuses to consent to the examination; or
(b) authorizing medical or dental treatment for an apprehended child where
(i) the parents or guardians of the child refuse to consent to the treatment, or
(ii) the child is 16 years of age or older and refuses to consent to the treatment.
25(4) The agency shall notify the parents or guardians of the child and the child, if the child is 16 years of age or older, of the time and place at which an application under subsection (3) is to be heard, and shall do so not less than two days before the time fixed for the hearing.
25(5) Notwithstanding subsection (4), the court may authorize the giving of a shorter period of notice.
If court documents not filed before hearing
25(6) A judge may hear an application referred to in subsection (3) even though the agency has not filed documents initiating the application in the court if
(a) the judge is satisfied that the life or health of the child would be seriously and imminently endangered by waiting for the necessary court documents to be filed before the application is heard; and
(b) the agency undertakes to file the necessary documents in the court within 24 hours after the hearing.
Evidence received by telephone
25(7) Where an application is made under subsection (3), the judge may receive evidence from a person by telephone or other means of telecommunication if the judge is satisfied that the life or health of the child would be seriously and imminently endangered by waiting to receive the person's evidence in person.
Court order authorizing examination or treatment
25(8) Subject to subsection (9), upon completion of a hearing, the court may authorize a medical examination or any medical or dental treatment