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C.C.S.M. c. C80

The Child and Family Services Act

(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.

S.M. 2008, c. 33, s. 1.

In furtherance of these principles,

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

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 »)

"child pornography" means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a child engaged in, or depicted as engaged in, explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ of a child or the anal region of a child,

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a child that would be an offence under the Criminal Code (Canada),

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a child that would be an offence under the Criminal Code (Canada), or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a child that would be an offence under the Criminal Code (Canada); (« pornographie juvénile »)

"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 »)

"reporting entity" means an organization, agency or person designated as a reporting entity by a regulation made under clause 86(w); (« entité compétente »)

"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; S.M. 2008, c. 9, s. 2.

Best interests

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.

Duties of director

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.

Powers of director

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.

Delegation by 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.

Powers of administrator

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.

Directors may continue to 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.

Directors to assist

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.

Termination of appointment

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.

S.M. 2002, c. 35, s. 33.

5           Repealed.

S.M. 2002, c. 35, s. 33.

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.

Mandating a regional office

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.

Contents of mandate

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.

Notice to minister of mandate

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.

S.M. 2002, c. 35, s. 33.

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.

S.M. 2002, c. 35, s. 33.

Varying an agency's mandate

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.

S.M. 2002, c. 35, s. 33.

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.

S.M. 2002, c. 35, s. 33.

Rates for services

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.

Effective date of order

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.

Emergency services, etc.

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.

Duties of agencies

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.

S.M. 1997, c. 47, s. 131.

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.

Appeal to director

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.

Action by 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.

Offence and penalty

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.

Continuing offence

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.

S.M. 1997, c. 48, s. 5.

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.

Officer of Legislature

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.

Term of office

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.

Re-appointment

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.

Resignation

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.

Removal or suspension

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.

Acting children's advocate

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.

Salary

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.

Reduction of salary

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.

Expenses

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.

Oath of office

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.

Oath of staff

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

Duties of children's advocate

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.

Annual report to be tabled

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.

Referral to standing committee

8.2(3)      The annual report of the children's advocate stands referred to the Standing Committee of the Assembly on Legislative Affairs.  The committee must begin considering the report within 60 days after it is tabled in the Assembly.

S.M. 1992, c. 28, s. 4; S.M. 1998, c. 6, s. 5; S.M. 2010, c. 34, s. 2.

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.

Referral by minister

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.

Report to minister

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.

S.M. 1998, c. 6, s. 6.

REVIEW OF SERVICES AFTER DEATH OF CHILD IN CARE

Review after death of child

8.2.3(1)    After the death of child who was in the care of, or received services from, an agency under this Act within one year before the death, or whose parent or guardian received services from an agency under this Act within one year before the death, the children's advocate

(a) must review the standards and quality of care and services provided under this Act to the child or the child's parent or guardian and any circumstances surrounding the death that relate to the standards or quality of the care and services;

(b) may review the standards and quality of any other publicly funded social services that were provided to the child or, in the opinion of the children's advocate, should have been provided;

(c) may review the standards and quality of any publicly funded mental health or addiction treatment services that were provided to the child or, in the opinion of the children's advocate, should have been provided; and

(d) may recommend changes to the standards, policies or practices relating to the services mentioned in clauses (a) to (c) if, in the children's advocate's opinion, those changes are designed to enhance the safety and well-being of children and reduce the likelihood of a death occurring in similar circumstances.

Purpose of review

8.2.3(2)    The purpose of the review is to identify ways in which the programs and services under review may be improved to enhance the safety and well-being of children and prevent deaths in similar circumstances.

Report

8.2.3(3)    Upon completing the review, the children's advocate must prepare a written report of his or her findings and recommendations and provide a copy of it

(a) to the minister;

(b) to the Ombudsman; and

(c) to the chief medical examiner under The Fatality Inquiries Act.

Children's advocate not to determine culpability

8.2.3(4)    The report must not express an opinion on, or make a determination with respect to, culpability in such a manner that a person is or could be identified as a culpable party in relation to the death of the child.

Report is confidential

8.2.3(5)    The report is confidential and must not be disclosed except as required by subsection (3) or as permitted by subsection (6) or Part VI.

Summary of recommendations in annual report

8.2.3(6)    The children's advocate's annual report under clause 8.2(1)(d) for a year may include a summary of the recommendations included in the reports made that year under this section.

"Publicly funded"

8.2.3(7)    For the purpose of this section, a program or service is publicly funded if it is operated or provided by the government or by an organization that receives funding from the government for the program or service.

Independent review in case of conflict

8.2.3(8)    If services provided by the office of the children's advocate come within the scope of a review under this section, the children's advocate must arrange for that part of the review to be conducted and reported on by an independent person qualified to conduct that review.  Subsections (3) to (5) and section 16.1 of The Ombudsman Act apply with necessary changes to that report.

No effect on Fatality Inquiries Act

8.2.3(9)    Nothing in this section limits the power or responsibility of any person under The Fatality Inquiries Act.

S.M. 2007, c. 14, s. 1.

POWERS

Powers of children's advocate

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 in the possession or control of

(i) the director, an agency, an authority, or the person in charge of a place mentioned in clause (b), or

(ii) in the case of a review under section 8.2.3, any person or organization referred to in subclause (i) or any other person, government department or organization,

if, in the opinion of the children's advocate, it relates to the matter under investigation or review;

(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; S.M. 2007, c. 14, s. 1.

Delegation

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.

Right of entry

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.

Information to be furnished

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 or reviewed 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 or reviewed 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.

S.M. 1992, c. 28, s. 4; S.M. 2007, c. 14, s. 1.

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 or review by the children's advocate.

S.M. 1992, c. 28, s. 4; S.M. 2007, c. 14, s. 1.

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.

Report to parent and child

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.

Report to placement centre

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.

Report to complainant

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.

Application

8.8(5)      This section does not apply to a report under section 8.2.3.

S.M. 1992, c. 28, s. 4; S.M. 2002, c. 35, s. 33; S.M. 2007, c. 14, s. 1.

Communication by child

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.

S.M. 1992, c. 28, s. 4.

Secrecy

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.

Disclosure in reports

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.

Disclosure in annual reports

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.

S.M. 1992, c. 28, s. 4.

Offence and penalty

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.

S.M. 1992, c. 28, s. 4.

8.13        Repealed.

S.M. 1992, c. 28, s. 4; S.M. 1998, c. 6, s. 10.

Rules by Assembly

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.

S.M. 1998, c. 6, s. 11.

PART II

SERVICES TO FAMILIES

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.

Services to minor parent

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.

Information to minor parents

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.

Special needs services

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.

Emergency assistance

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.

Programs for volunteers

11(2)       An agency may establish service programs to facilitate the participation of volunteers in the provision of ongoing services.

Day care service

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.

S.M. 2004, c. 42, s. 11.

Homemaker service

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.

Notification of parent

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.

Parent aide

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.

Agreement regarding service

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.

Voluntary placement agreement

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.

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.

Termination of agreement

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.

Parent leaving province

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.

Transition

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).

S.M. 1993, c. 29, s. 172.

Agreements by minor valid

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.

Reduction of contribution

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.

Variation

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.

Approval by director

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.

S.M. 1997, c. 48, s. 6.

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.

Agreements by minor

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.

Effect of agreement

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.

Child returned

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.

Application to director

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.

Appeal to court

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

Child in need of 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, including where the child is likely to suffer harm or injury due to child pornography;

(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; S.M. 2008, c. 9, s. 3.

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.

Reporting child pornography

18(1.0.1)   In addition to the duty to report under subsection (1), a person who reasonably believes that a representation, material or recording is, or might be, child pornography shall promptly report the information to a reporting entity.

Seeking out child pornography not required or authorized

18(1.0.2)   Nothing in this section requires or authorizes a person to seek out child pornography.

Reporting to agency only

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.

Duty to report

18(2)       Notwithstanding the provisions of any other Act, subsections (1) and (1.0.1) apply 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; S.M. 2008, c. 9, s. 4.

Protection of informant

18.1(1)     No action lies against a person for providing information in good faith and in compliance with section 18.

Identity of informant

18.1(2)     Except as required in the course of judicial proceedings, or with the written consent of the informant, no person shall disclose

(a) the identity of an informant under subsection 18(1) or (1.1)

(i) to the family of the child reported to be in need of protection, or

(ii) to the person who is believed to have caused the child to be in need of protection; or

(b) the identity of an informant under subsection 18(1.0.1) to the person who possessed or accessed the representation, material or recording that is or might be child pornography.

Retaliation against informant prohibited

18.1(3)     No person shall dismiss, suspend, demote, discipline, harass, interfere with or otherwise disadvantage an informant under section 18.

S.M. 1989-90, c. 3, s. 5; S.M. 2008, c. 9, 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.

Requirement to investigate

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.

Offences

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) dismisses, suspends, demotes, disciplines, harasses, interferes with or otherwise disadvantages 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; S.M. 2008, c. 9, s. 6.

Agency to investigate

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.

Police to provide information

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).

Report of conclusion

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.

Restrictions on disclosure

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

(i) is based on an alleged act or omission by the accused person in relation to a child, or

(ii) is in relation to child pornography; 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; S.M. 2008, c. 9, s. 7.

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).

S.M. 1997, c. 48, s. 9.

Director to investigate

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.

S.M. 1997, c. 48, s. 9.

Action by reporting entity re child pornography report

18.7(1)     If, after reviewing a report made under subsection 18(1.0.1), the reporting entity reasonably believes that the representation, material or recording is or might be child pornography, it shall take action to protect a child by reporting the matter to a child and family services agency or a law enforcement agency, or to both as necessary, and take any further action as may be set out in the regulations.

Annual report by reporting entity

18.7(2)     A reporting entity must prepare an annual report with respect to its activities and actions taken under this Part, and the minister must table a copy of it in the Legislative Assembly within 15 days after receiving it, if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

S.M. 2008, c. 9, s. 8.

Agency child abuse committees

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.

Joint committee

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.

Review process

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.

Notice of intent to register

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.

Hearing

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).

Rules for hearing

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.

Decision of court

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.

Report to director re. abuser

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).

Reporting by court

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.

Excluded offences

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.

Child abuse registry

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.

Entry in registry

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.

Information confidential

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.

Access by agencies

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.

Access by adoption agency

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.

Access by peace officers

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).

Objection to information

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.

S.M. 1987-88, c. 68, s. 1.

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.

Notice of application

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.

Order

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.

Extension of order

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.

Consent orders

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.

Offence

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.

S.M. 2005, c. 3, s. 3.

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.

Warrant to search for 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.

Child need not be named

21(4)       It is not necessary in the application or the warrant to describe a child by name.

Assistance of peace officer

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.

S.M. 2005, c. 8, s. 11.

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.

Notification of agency

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.

Care while under apprehension

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.

Notice of application

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.

Abridging notice

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 that the court considers to be in the best interests of the child.

Child's consent to order required if 16 or older

25(9)       The court shall not make an order under subsection (8) with respect to a child who is 16 years of age or older without the child's consent unless the court is satisfied that the child is unable

(a) to understand the information that is relevant to making a decision to consent or not consent to the medical examination or the medical or dental treatment; or

(b) to appreciate the reasonably foreseeable consequences of making a decision to consent or not consent to the medical examination or the medical or dental treatment.

Protection from liability

25(10)      If a child is examined or treated under this section, no liability attaches to the agency, the hospital or other facility where the examination or treatment is provided, or the person examining or treating the child by reason only that a parent or guardian of the child, or the child, did not consent to the examination or treatment.

S.M. 1995, c. 23, s. 2.

Leaving child pending protection hearing

26(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 leave the child with or return the child to the person in whose charge the child is and notify that person that an application respecting the child will be made to court pursuant to the provisions of this Part.

Agency to be notified

26(2)       A person who proceeds under subsection (1) shall forthwith notify the agency having jurisdiction where the child is and provide all particulars with respect to the child.

Deemed apprehension

26(3)       Notwithstanding the fact that the child has been left with or returned to the person in whose charge the child was under subsection (1) the child shall solely for the purposes of a hearing under subsection 27(1) be deemed to be under apprehension.

Application to court for protection hearing

27(1)       The agency shall, within 4 juridical days after the day of apprehension or within such further period as a judge, master or justice of the peace on application may allow, make an application for a hearing to determine whether the child is in need of protection.

Access pending protection hearing

27(2)       The agency shall at the time of making the application under subsection (1) state at what times, if any, and on what conditions it will allow access by the parents or guardian to the child pending the hearing.

Hearing re access by parents or guardian

27(3)       Where the parents or guardian do not consent to the access provided by the agency, they may make application to court for a hearing to determine what access provisions are appropriate in the circumstances.

Burden of proof

27(4)       The agency shall bear the burden of proof at the hearing under subsection (3) that any limitation of access is reasonable.

Variation of order

27(5)       Either party may make an application for a variation of an order under subsection (3) at any time on the grounds that there has been a change in circumstances since the order was granted justifying a change in access or that the access permitted has been shown to be in practice contrary to the best interests of the child.

S.M. 2005, c. 8, s. 11.

Transfer of proceedings to another court

28(1)       A judge or master who on application made prior to a hearing under this Part is satisfied that it is appropriate may transfer any proceedings under this Part to a court in another jurisdiction.

Another agency carrying case

28(2)       On application made prior to a hearing under this Part by the agency that apprehended the child, a judge or master may order that another agency be substituted for the agency that apprehended for the purposes of the hearing.

S.M. 2005, c. 42, s. 3.

Date when application returnable

29(1)       An application under subsection 27(1) shall be returnable within seven juridical days of being filed, or, where there is no sitting of the court in which the application was filed in that period, on the date of the next sitting of the court, or within such further period as a judge, master or justice of the peace may, on application, allow.

Adjournment

29(2)       Upon application, a judge, master or justice of the peace may adjourn the hearing from time to time as may be required.

S.M. 1997, c. 48, s. 16; S.M. 2005, c. 8, s. 11.

Notice of hearing

30(1)       The agency shall give two clear days notice of the date the application under subsection 27(1) is returnable or is set for hearing, together with particulars of the grounds that are alleged to justify a finding that the child is in need of protection, to

(a) the parents;

(b) the guardians;

(c) the child where the child is 12 years of age or more;

(d) the person in whose home the child was living at the time of apprehension or immediately prior to placement in hospital or other place of safety; and

(e) the agency serving the appropriate Indian band if the agency making the application has reason to believe that the child is registered as an Indian under the Indian Act (Canada);

and no further notice is required to be given by the agency thereafter.

Notice regarding filing of financial information

30(1.1)     A notice to a parent or guardian under subsection (1) shall also notify the parent or guardian of the requirements of subsection (1.2).

Filing and service of financial information

30(1.2)     A parent or guardian who is given notice under subsection (1) shall, within 10 days of the giving of notice to the parent or guardian, 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

30(1.3)     Where a parent or guardian fails to comply with subsection (1.2), a judge may, in addition to or in substitution for any other order, on application by the agency order that the parent or guardian pay to the agency an amount not exceeding $5,000. and any such order may be enforced as a judgment of the court.

Reduction in time of notice and waiver of notice

30(2)       Notwithstanding subsection (1), a person entitled to receive notice under that subsection may agree

(a) to a reduction in the number of days within which notice shall be given; or

(b) to a complete waiver of notice at any time up to and including the hearing of the application notwithstanding that the hearing may be in progress.

Service of notice

30(3)       Unless a judge or master on application directs some other manner of effecting service, notice under subsection (1) shall be

(a) by personal service in the case of an individual; and

(b) in the case of the agency serving the Indian band, either by delivery to an officer of that agency or by registered mail addressed to the head office of that agency.

Judge may dispense with service of notice

30(4)       Where under subsection (1) an agency is required to serve a notice of hearing upon an individual, a judge or master may abridge the time for or dispense with service of notice or may direct a manner of effecting substitutional service on that individual.

S.M. 1997, c. 48, s. 17.

Application to intervene

31(1)       Prior to the commencement of a hearing under subsection 27(1) and upon giving two clear days notice to the persons entitled to notice under subsection 30(1) any person may apply to court to intervene in the proceedings.

Order

31(2)       Upon being satisfied that the person applying under subsection (1)

(a) has or has had a significant relationship with the child; and

(b) can make a significant contribution to the hearing which will be in the child's best interests;

a judge or master may order that the person intervene in the proceedings upon the terms and conditions and with the rights and privileges the judge or master determines.

S.M. 1997, c. 48, s. 18.

32(1)       Repealed, S.M. 1997, c. 48, s. 19.

Order for further particulars

32(2)       A person who is not satisfied with the particulars provided under subsection 30(1) may apply to court for an order that the agency provide further particulars.

Queen's Bench rules re: discovery not to apply

32(3)       The rules of the Court of Queen's Bench regarding examination for discovery and examination of documents do not apply to a hearing under this Part.

S.M. 1997, c. 48, s. 19.

Presence of child under 12 not required

33(1)       In proceedings under this Part, the presence of a child less than 12 years of age is not required unless a judge or master on application so orders.

Presence of child 12 or over required

33(2)       In proceedings under this Part, the presence of a child 12 years of age or older is required unless a judge or master on application orders that the child not be present.

Right to counsel

34(1)       Subject to subsections (1.1) and (2), a judge or a master shall, before the commencement of a hearing under section 27, advise any person who was given notice of the hearing under section 30 and who is present at the hearing that the person has the right to be represented by legal counsel.

Legal counsel for parent who is a child

34(1.1)     Where a parent of a child who is the subject of a hearing under section 27 is a child and is 12 years of age or older, the parent has the right to retain and instruct legal counsel in respect of the hearing without having a litigation guardian appointed for the parent.

Counsel for child

34(2)       In the case of the child who is the subject of the hearing, a judge or master may order that legal counsel be appointed to represent the interests of the child and, if the child is 12 years of age or older, may order that the child have the right to instruct the legal counsel.

Factors affecting need for counsel for child

34(3)       In making an order under subsection (2), the judge or master shall consider all relevant matters including,

(a) any difference in the view of the child and the views of the other parties to the hearing;

(b) any difference in the interests of the child and the interests of the other parties to the hearing;

(c) the nature of the hearing, including the seriousness and complexity of the issues and whether the agency is requesting that the child be removed from the home;

(d) the capacity of the child to express his or her views to the court;

(e) the views of the child regarding separate representation, where such views can reasonably be ascertained; and

(f) the presence of parents or guardians at the hearing.

S.M. 1992, c. 29, s. 24; S.M. 1993, c. 48, s. 4.

Cross-examination of parents

35          Notwithstanding any other provision of this or any other Act, an agency may, by serving notice of its intention to do so 14 days before a hearing under this Part, or such shorter period as the court may allow, call the parent or guardian or both of the child who is the subject of an application under this Part as a witness and any person so called shall be treated as a hostile witness.

Proceedings informal

36          Proceedings under this Part may be as informal as a judge or master may allow and no order under this Part shall be set aside because of any lack of formality at the hearing or for any other technical reason not affecting the merits of the case.

Power of court

37(1)       A judge or master may for the purposes of a hearing under this Part

(a) compel on his or her own motion the attendance of any person and require that person to give evidence under oath and to produce such documents and things as may be required;

(b) accept evidence by affidavit;

(c) accept as evidence a report completed by a duly qualified medical practitioner, dentist, psychologist or registered social worker as evidence without proof of the signature or authority of the person signing it.

Court may direct investigation

37(2)       In a proceeding under this Part, and upon being satisfied that it is necessary in order to determine the best interests of the child, a judge or master may direct an investigation into any matter by a person who has had no previous connection with the parties to the proceeding or to whom each party consents.

Refusal to co-operate

37(3)       Where the court directs an investigation pursuant to subsection (2) and a party refuses to co-operate with the investigator, the investigator shall so report to the court which may draw any inference therefrom it considers appropriate.

Orders of the judge

38(1)       Upon the completion of a hearing under this Part, a judge who finds that a child is in need of protection shall order

(a) that the child be returned to the parents or guardian under the supervision of an agency and subject to the conditions and for the period the judge considers necessary; or

(b) that the child be placed with such other person the judge considers best able to care for the child with or without transfer of guardianship and subject to the conditions and for the period the judge considers necessary; or

(c) that the agency be appointed the temporary guardian of a child under 5 years of age at the date of apprehension for a period not exceeding 6 months; or

(d) that the agency be appointed the temporary guardian of a child 5 years of age or older and under 12 years of age at the date of apprehension for a period not exceeding 12 months; or

(e) that the agency be appointed the temporary guardian of a child of 12 years of age or older at the date of apprehension for a period not exceeding 24 months; or

(f) that the agency be appointed the permanent guardian of the child.

Consent orders

38(2)       Where all persons who have received notice under subsection 30(1) consent, a judge or master may, without receiving further evidence, make an order respecting the child under subsection (1), and a person who was served but does not appear or with respect to whom an order was made dispensing with service is deemed to consent.

Child support orders

38(3)       Where an order is made under clause (1)(b), (c), (d) or (e) with respect to a child, the judge at the time of making the order, or any judge at a subsequent time, shall order the parent or guardian to pay to the agency such maintenance for the child by way of lump sum, periodic payments, or both, as is appropriate.

Factors in making order

38(3.1)     Subsection 15(3.4) applies with such modifications as the circumstances require to an order under subsection (3).

Maintenance effective from provision of services

38(3.2)     An order under subsection (3) may be made effective from the date of the apprehension of the child.

Variation of order

38(4)       Upon application made by any person who is affected by an order made under subsection (3) and upon sufficient cause being shown, a judge may alter, vary, or discharge the order.

Effective date of order

38(5)       An order made under this section is effective from the date of pronouncement.

Right to enter home

38(6)       Where a judge or master makes an order under clause (1)(a) or (b) any representative of the agency under whose supervision the child is placed has the right to enter the home where the child is to provide guidance and counselling and to ascertain that the child is being properly cared for and maintained and any person who obstructs the representative in so doing 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.

Further apprehension of child

38(7)       Where an agency that is authorized pursuant to subsection (1) to exercise supervision over a child finds that the child is not being properly cared for and maintained or that the child is in need of protection, the child may be apprehended notwithstanding the order made under subsection (1).

Distribution of order

38(8)       A copy of an order made under subsection (1) or (2) shall be mailed or delivered by the court to

(a) the director;

(b) the agency;

(c) the parents and guardian unless they were served substitutionally or service was dispensed with;

(d) the child where the child is 12 years of age or older;

(e) the agency serving the Indian band with which the child is registered, if applicable; and

(f) any person granted status under section 31.

S.M. 1997, c. 48, s. 20; S.M. 2005, c. 3, s. 4.

Joint orders prohibited

38.1        No court shall make an order under which the director or an agency is appointed the guardian of a child jointly with any other person.

S.M. 1997, c. 48, s. 20.

Access by parents during temporary order

39(1)       Where a judge or master makes an order under clause 38(1)(b), (c), (d) or (e), the parents or guardian shall have reasonable access to the child.

Application to determine access during temporary order

39(2)       Where the parents or guardian and the agency are unable to agree as to what constitutes reasonable access to the child, either party may make an application to the judge or master who made the order for an order determining what provisions as to access are appropriate in the circumstances and the agency shall bear the burden of proof that any limitation of access is reasonable.

Access by parents during permanent order

39(3)       Subject to subsection (4), where a judge makes an order under clause 38(1)(f) the agency shall have complete discretion as to the access, if any, which the parents or guardian shall have to the child.

Application to determine access where permanent order

39(4)       Where the parents or guardian are dissatisfied as to the access, if any, which the agency is willing to grant them under subsection (3) they may make an application to the judge who made the order for an order determining what provisions as to access, if any, are appropriate.

Variation of order under subsec. (2) or (4)

39(5)       Either party may make a further application to the judge or master who made the order under subsection (2) or (4) for a variation of the order on the grounds that there has been a change in circumstances or that the access permitted has been contrary to the best interests of the child.

No application where child placed for adoption

39(6)       No application shall be made under subsection (4) or (5) where the child has been placed for adoption under The Adoption Act.

Where judge unable to act

39(7)       Where the judge or master who made the order is unable for any reason to hear an application under subsection (2), (4) or (5) any judge of the same court may hear the application.

S.M. 1997, c. 47, s. 131.

Further hearings

40(1)       Notwithstanding an order under clause 38(1)(a), (b), (c), (d) or (e), any judge may, at any time the order is in force and upon application by the agency, parent or guardian of the child or person with whom the child was placed under clause 38(1)(b), hold further hearings to determine whether the child would be in need of protection if returned to the parents or guardian.

Former order deemed to be continued

40(2)       Where the date fixed for the hearing of an application under subsection (1) falls on or after the expiry date of the former order, the former order shall be deemed to continue until the application is either withdrawn or is disposed of.

Further orders

40(3)       Upon the conclusion of the hearing, the judge,

(a) if satisfied that the child would not be in need of protection, shall order that the child be returned to the parents or guardians;

(b) if satisfied that the child would be in need of protection, shall extend the previous order or make any of the other orders under section 38.

Consent orders

40(3.1)     Where all persons who have received notice of an application under subsection (1) consent, a judge or master may, without receiving further evidence, make an order respecting the child under subsection (3), and a person who was served but does not appear or with respect to whom an order was made dispensing with service is deemed to consent.

Provisions of Part apply

40(4)       The provisions of this Part apply with the necessary changes to a hearing under this section.

S.M. 1997, c. 48, s. 21.

Maximum period of temporary guardianship

41(1)       The total period of temporary guardianship shall not exceed

(a) 15 months with respect to a child under 5 years of age; or

(b) 24 months with respect to a child 5 years of age or older and under 12 years of age.

Extension of guardianship for child over 12

41(2)       A judge may extend the order of guardianship of a child 12 years of age or over for further periods not exceeding 24 months each.

Age for purposes of subsecs. (1) and (2)

41(3)       A child who was under 5 years of age when apprehended, shall be deemed for the purposes of clause (1)(a) to be a child under 5 years of age even if at the time of making the order the child is 5 years of age or more but in all other cases the court shall be governed by the age of the child at the time of making the order.

Child in care of the agency appearing

42          The judge or master making an order that an agency shall be a guardian shall appoint as guardian either the agency appearing at the hearing or another agency when the agency appearing files that other agency's consent.

Appeal from order of master

43(1)       An order of a master under this Part may be appealed to a judge of the Court of Queen's Bench of Manitoba (Family Division) within 21 days from the date on which the master signed the order appealed against or within such further time as a judge of that court may allow.

Notice of appeal from master

43(2)       A true copy of a notice of appeal filed under subsection (1) shall be served personally or by registered mail or by such other means as a judge may direct within 10 days from the date of filing thereof upon

(a) all parties affected thereby; and

(b) the director.

Hearing de novo

43(3)       An appeal under subsection (1) shall be a hearing de novo.

S.M. 1987-88, c. 34, s. 2; S.M. 1997, c. 48, s. 22.

Appeal from order of a judge

44(1)       An order of a judge under this Part may be appealed to the Court of Appeal within 21 days from the date on which the judge signed the order appealed against.

Extension of time for appeal

44(2)       The time for appeal under subsection (1) may be extended by a judge of the Court of Appeal sitting in chambers if good cause is shown for the delay and if the child has not been placed for adoption.

Filing and service of notice of appeal

44(3)       Within 10 days from the date of the filing of the notice of appeal a true copy thereof shall be served personally or by registered mail or by such other means as the court may direct, upon

(a) all parties affected thereby; and

(b) the director.

Status of child during appeal

44(4)       Where a judge has found that a child is not in need of protection or made an order under clause 38(1)(a) or (b) the agency shall release the child from its care and control in accordance with the terms of the order within 14 days of the date on which the judge pronounced the order, unless within that period it obtains from a judge of the Court of Appeal in chambers an order that the child remain in the care and control of the agency pending the disposition of the appeal.

Effect of order of permanent guardianship

45(1)       An order of permanent guardianship operates as an absolute termination of parental rights and obligations and the agency may, following the expiration of the allowable period of appeal under section 44, place the child for adoption in accordance with The Adoption Act.

Termination of permanent guardianship on application

45(2)       The agency having permanent guardianship of a child may apply to court for an order that the guardianship be terminated.

Application by parents to terminate permanent guardianship

45(3)       The parents of a child with respect to whom an order of permanent guardianship has been made may apply to court for an order that the guardianship be terminated if

(a) the child has not been placed for adoption; and

(b) one year has elapsed since the expiry of the parents' right to appeal from the guardianship order or, if an appeal was taken, since the appeal was finally disposed of.

Order

45(4)       A judge hearing the application under subsection (2) or (3) may

(a) terminate the permanent order and return the child to the parents; or

(b) terminate the permanent order and make an order under clause 38(1)(a), (b), (c), (d) or (e); or

(c) dismiss the application.

Consent orders

45(4.1)     A judge or master may, without receiving further evidence, make an order under subsection (4) where

(a) the agency that has permanent guardianship of the child consents; and

(b) the parents of the child consent.

Deemed consent

45(4.2)     For the purpose of clause (4.1)(b), a person is deemed to consent if

(a) the person was served but does not appear at the hearing; or

(b) an order was made dispensing with service on the person.

No application for another year

45(5)       Where the judge dismisses the application, the parents may not bring another application under subsection (3) until 1 year has elapsed from the dismissal.

S.M. 1997, c. 47, s. 131; S.M. 1997, c. 48, s. 23; S.M. 2012, c. 40, s. 6.

Family member assuming care

46          Where prior to apprehension a member of the child's family had in fact assumed care and control of the child, that member has the same rights as a guardian under this Part.

47          Repealed.

S.M. 1989-90, c. 3, s. 10.

PART IV

CHILDREN IN CARE

Authority of the guardian

48          Where the director or an agency is the guardian of a child under this Act unless the guardianship is limited by the court, the director or agency shall

(a) have the care and control of the child;

(b) be responsible for the maintenance and education of the child;

(c) act for and on behalf of the child; and

(d) appear in any court and prosecute or defend any action or proceeding in which the child's status is or may be affected.

Transfer of guardianship

49(1)       The minister may transfer guardianship of a child from the director or agency having guardianship to another agency or to the director.

Transfer of supervision

49(2)       The director may transfer an order of supervision of a child from the agency having supervision to another agency.

Consequences of transfer

49(3)       Where a transfer is made under subsection (1) or (2), the agency or the director to whose guardianship or supervision the child is transferred shall from the date of the transfer be deemed to be for all purposes the agency named in an order respecting the child.

Termination of guardianship

50(1)       The guardianship of the director or an agency terminates when a ward marries or attains the age of majority.

Support beyond termination of guardianship

50(2)       The director, or an agency with the written approval of the director, may continue to provide care and maintenance for a former permanent ward for the purpose of assisting the ward to complete the transition to independence, but not beyond the date when the former permanent ward attains the age of 21 years.

S.M. 1997, c. 48, s. 24.

Removal of child

51(1)       An agency may at any time remove a child in its care from the person with whom the child was placed, if the agency considers that it is in the child's best interests to do so.

Child in foster home

51(2)       If foster parents object to a decision to remove a child from a foster home, the child is to remain in the home until a final decision is made in accordance with this section, except in the following circumstances:

(a) the child is or might be in need of protection;

(b) the child has lived with the foster parents for less than a year and is being removed because of a planned adoption placement;

(c) the child is no longer in the care of an agency because a voluntary placement agreement or court order has been terminated;

(d) the child is being removed because of a planned placement, and pre-placement visits have taken place.

Foster parents may request review

51(3)       When an agency decides to remove a child from a foster home under subsection (1) and the foster parents object, the executive director of the agency shall review the matter.

Reconsideration by the authority

51(4)       If the foster parents are not satisfied with the executive director's decision, they may ask the appropriate authority to reconsider the matter.  The authority must do so promptly and must

(a) confirm the agency's decision; or

(b) require the agency to return the child to the foster home or, if the child has not yet been removed, allow the child to remain in the home.

Right to an independent appeal

51(5)       If the foster parents are not satisfied with the authority's decision, they are entitled to an independent appeal of the decision in accordance with the regulations.

Hearing

51(6)       The independent appeal must be heard by a person or persons appointed by the minister from a roster of persons established by the minister after consulting with authorities and other affected persons.

Regulations

51(7)       After engaging in consultation with authorities and other interested persons, the minister may make regulations respecting the procedure for determining appeals and respecting any other matter that the minister considers necessary or advisable for the purpose of this section.

Authority may recommend regulations

51(8)       An authority may make recommendations to the minister about regulations and amendments to regulations under subsection (7).

S.M. 2002, c. 35, s. 33.

Interference with children in care

52          Any person

(a) who removes a child who is in the care of an agency, or a treatment centre from premises in which the child is placed, without authority; or

(b) who induces or attempts to induce, helps or attempts to help a child who is in the care of an agency or treatment centre to leave the premises in which that child is placed; or

(c) who detains or harbours a child who is in the care of an agency or treatment centre and who is absent from the premises in which that child is placed without authority; or

(d) other than the children's advocate, who visits, writes to or telephones a child without the consent of the person or agency or treatment centre in whose care or under whose supervision the child is, which consent shall not be unreasonably withheld; or

(e) who interferes with a child who is placed in a foster home or other place, or interferes with the foster parents of the child in a manner that detracts from the ability of the foster parents to care for the child;

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. 1992, c. 28, s. 5; S.M. 2005, c. 3, s. 5.

Apprehending a child who absconds

53(1)       Any child who

(a) absconds from any premises where the child is lawfully placed under this Act; or

(b) without the express permission of the agency or any person in charge of the premises where the child is lawfully placed leaves such premises or any other place where the child is permitted to be;

may be apprehended with or without warrant by a peace officer or any person and returned forthwith to the premises where the child was lawfully placed or to an agency.

Warrant for apprehension

53(2)       Upon application by a peace officer or an agency, a judge, master or justice of the peace, who is satisfied that a child has absconded from any premises where the child is lawfully placed, may issue a warrant for the apprehension of the child so that the child may be returned to the premises where the child is lawfully placed or to such other premises as the agency may designate.

S.M. 2005, c. 8, s. 11.

Review by director

54          The director shall, during each 12 month period in care, review the placement, care and treatment of and the permanency plans for every child in the care of agencies.

PART V

55 to 74    Repealed.

S.M. 1986-87, c. 19, s. 8; S.M. 1987-88, c. 34, s. 3 to 11; S.M. 1989-90, c. 90, s. 3; S.M. 1990-91, c. 12, s. 2; S.M. 1992, c. 28, s. 6; S.M. 1995, c. 22, s. 9; S.M. 1997, c. 47, s. 131.

PART VI

CONFIDENTIALITY

Proceedings open to media

75(1)       All proceedings under Parts II, III and V, other than a proceeding under The Summary Convictions Act, shall be closed to the general public but shall be open to representatives of the press, radio and television unless the court, on application, is satisfied that the presence of such representatives would be manifestly harmful to any person involved in the proceedings.

Proceedings open to public and media

75(1.1)     With respect to a proceeding under The Summary Convictions Act pertaining to an offence under this Act, upon the application of a person who is involved in the proceeding or a portion of the proceeding, a court, where it is satisfied that conducting the proceeding or the portion in public would be harmful or injurious to the personal well-being of a person and that conducting the proceeding or portion in private would not be contrary to the public interest in the administration of justice, may, by order, direct

(a) that the proceeding or the portion be closed to the public and conducted in private; and

(b) that news reporters in attendance at the closed proceeding or portion not publish or broadcast evidence that is produced at or testimony that is given in the closed proceeding or portion.

Reporting not to identify persons involved

75(2)       No press, radio or television report of a proceeding under Part II, III or V shall disclose the name of any person involved in the proceedings as a party or a witness or disclose any information likely to identify any such person.

Offence and penalty

75(3)       A person violating subsection (2) commits an offence punishable on summary conviction and is liable, if an individual, to imprisonment for 2 years or to a fine of $5,000 or both and, if a corporation, to a fine of $50,000.

Offence by an officer, etc. of corporation

75(4)       Where a corporation is guilty of an offence under this section, any officer, director or agent of the corporation who directed, authorized, participated in, or acquiesced in, the commission of the offence, is party to and is also guilty of the offence and is liable to the penalties set out in subsection (3).

S.M. 1989-90, c. 3, s. 11 and 12; S.M. 1997, c. 48, s. 25.

Meaning of access

76(1)       A person who is given access to a record or an excerpted summary of a record under this section has, subject to subsection (19), the right

(a) to examine the record or summary; or

(b) to obtain a copy of the record or summary.

Access with consent of subject

76(2)       For purposes of this section, where a person is entitled to be given access to a record by virtue of the consent of another person who is the subject of the record, the agency which has custody or control of the record or the director may

(a) prior to giving access to the person, require a written acknowledgement or other evidence of informed consent from the subject of the record; and

(b) comply with the requirement to give access by giving access directly to the subject of the record rather than the person entitled to access.

Records are confidential

76(3)       Subject to this section, a record made under this Act is confidential and no person shall disclose or communicate information from the record in any form to any person except

(a) where giving evidence in court; or

(b) by order of a court; or

(c) to the director or an agency; or

(d) to a person employed, retained or consulted by the director or an agency; or

(d.1) to the children's advocate; or

(d.2) where the disclosure is by the children's advocate under section 8.10; or

(e) by the director or an agency to another agency including entities out of the province which perform substantially the same functions as an agency where reasonably required by that agency or entity

(i) to provide service to the person who is the subject of the record, or

(ii) to protect a child; or

(f) to a student placed with the director or an agency by contract or agreement with an educational institution; or

(g) where a disclosure or communication is required for purposes of this Act; or

(h) by the director or an agency for the purpose of providing to the person who is the subject of the record, services under Part 2 of The Vulnerable Persons Living with a Mental Disability Act, or for the purpose of an application for the appointment of a substitute decision maker under Part 4 of that Act.

Right of access

76(4)       An adult is entitled to be given access to

(a) his or her own record; and

(b) the record of a child who is in the adult's legal care.

Exceptions

76(5)       Subsection (4) does not apply to

(a) any part of a record which was made prior to the day this section comes into force and which discloses information provided by another person about the subject of the record, unless the other person consents to access being given; and

(b) a record which relates to services provided under Part III;

(c) repealed, S.M. 1997, c. 47, s. 131.

Excerpted summary

76(6)       Where the director or an agency refuses to give access to part of a record under clause (5)(a), the director or agency shall, upon the written request of an adult person who would otherwise be entitled to be given access to that part of the record under subsection (4), provide the person with an excerpted summary of the information provided by the other person.

Preparation of summary

76(7)       Where an excerpted summary is provided under subsection (6), it shall be prepared by the person who provided the information, if that person is available and willing to do so, but otherwise it shall be prepared as directed by the director or agency.

Restricted access

76(8)       The director or an agency may refuse to give a person access to any part of a record referred to in subsection (4) where

(a) there are reasonable grounds to believe that disclosure of that part might result in physical or serious psychological harm to another person; or

(b) that part contains information which was provided by any person not employed by the director or an agency or appointed under this Act; or

(c) that part discloses the identity of a person who is not employed by the director or an agency or appointed under this Act, and who has supplied information in confidence to the director or an agency for any purpose related to the administration or enforcement of this Act or the regulations;

and the director or agency shall notify the person in writing of the reasons for refusing access to that part of the record.

Information filed by person given access

76(9)       A person given access to a record under subsection (4) is entitled to submit to the director or agency

(a) a written objection respecting any error or omission of fact which the person alleges is contained in the record; and

(b) a written objection to, or explanation or interpretation of, any opinion which has been expressed by another person about any person referred to in subsection (4) and which is contained in the record.

Information becomes part of record

76(10)      As of the date of its submission, any objection, explanation or interpretation submitted under subsection (9) becomes part of the record and shall not be destroyed, altered or removed therefrom.

Correction of factual error

76(11)      Where the director or agency is satisfied that a record referred to in subsection (9) contains an error or omission of fact, the director or agency shall cause the record to be corrected.

Voluntary service records

76(12)      Where the subject of a record is a person who has applied voluntarily to an agency for services under Part II and the agency has no reasonable grounds to believe that a child of that person, or a child who is under that person's guardianship or actual care and control, is in need of protection, the agency shall not disclose or communicate the contents of the record to any person outside the agency except

(a) by order of a court; or

(b) in accordance with subsections (4) to (8); or

(c) subject to subsection (15), with the consent of the person who is the subject of the record, but only if the subject is an adult.

Transition to mandatory services

76(13)      Where the agency referred to in subsection (12) subsequently believes on reasonable grounds that a child referred to in subsection (12) is in need of protection, the agency shall immediately give notice of that fact to the person who is the subject of the voluntary service record, and all information entered in the record after the date of the notice is subject to subsection (3).

Closed records

76(14)      Where a ward, or a child placed under an agreement referred to in section 14, has reached the age of majority and the record of the wardship or placement has been closed, the record shall be sealed in a separate file and stored in a safe depository, and information from the record shall not be disclosed to any person except

(a) by order of a court; or

(b) subject to subsection (8), to the subject of the record, but in the case of a record made before this section comes into force, the information shall be in the form of an excerpted summary; or

(c) subject to subsection (15), with the consent of the person who is the subject of the record; or

(d) in accordance with subsection (16); or

(e) by the director in the course of carrying out searches of the post-adoption registry under The Adoption Act; or

(f) where disclosure is necessary for the safety, health or well-being of a person; or

(g) where disclosure is necessary for the purpose of allowing a person to receive a benefit.

Restricted access by other person

76(15)      The right of access conferred by clauses (12)(c) and (14)(c)

(a) does not apply to a record which was made prior to the day this section comes into force; and

(b) is subject to subsection (8), with necessary modifications.

Application to disclose record

76(16)      Upon application by the director or an agency, the court may order that all or part of a record referred to in subsection (14) be opened or disclosed where there are reasonable grounds to believe that a child or sibling of the adult who is the subject of the record, or a child who is under that adult's actual care and control, is likely to suffer physical or serious psychological harm if the record is not opened or disclosed.

Notice to adult

76(17)      The director or an agency acting under subsection (16) shall give the adult 7 clear days notice of the hearing of the application unless a judge on application reduces the time of giving notice or dispenses with notice entirely on the grounds that a person mentioned in subsection (16) is in immediate danger.

Access for research purposes

76(18)      The director, or an agency with the director's written consent, may give a person access to all or part of a record for bona fide research or statistical purposes if the director or agency obtains from the person a written undertaking not to disclose the contents of the record or part thereof in any form which could reasonably be expected to identify any other person who is identified in the record, and

(a) the other person consents to the giving of access; or

(b) the director is satisfied that the research or statistical purpose cannot reasonably be achieved unless the record or part thereof is provided in a form which identifies the other person.

Fees

76(19)      A person who is given access to a record or an excerpted summary of a record under this section shall, prior to examining the record or summary or obtaining a copy thereof, pay to the agency which has custody or control of the record or to the director such fees as may be prescribed by regulation.

Request for review

76(20)      A person whose request for access to a record under this section has been refused in whole or in part, or who alleges that all or part of his or her record has been disclosed in contravention of this section or that there has been a failure to comply with subsection (9), may within 30 days of the refusal, or the alleged disclosure or failure to comply, request the director to review the matter and, subject to subsection (21), the decision of the director in the matter is final.

Review from denial of access

76(21)      A person who is denied access to all or part of a record by virtue of the director's decision under subsection (20) may apply for a further review or appeal of the matter in accordance with any law of general application in the province which provides a right of review or appeal to a court, or to any other person or agency outside the government and Crown agencies, on any question of access to records in the custody or under the control of government departments or Crown agencies.

Retention, storage and destruction of records

76(22)      Subject to subsection (14), an agency shall retain, store and destroy records made under this Act in accordance with the regulations.

S.M. 1986-87, c. 19, s. 8; S.M. 1987-88, c. 34, s. 12 and 13; S.M. 1989-90, c. 3, s. 13; S.M. 1992, c. 28, s. 7; S.M. 1993, c. 29, s. 172; S.M. 1997, c. 47, s. 131; S.M. 1997, c. 48, s. 26.

PART VII

PRIVATE GUARDIANSHIP OF THE PERSON AND ACCESS

Court may appoint guardian of person

77(1)       Upon application to court by an adult, a judge may appoint the applicant a guardian of the person of a child and may remove a guardian so appointed with or without appointing another guardian.

Interim order

77(1.1)     The court may make an interim order with respect to an application under subsection (1).

Review of order

77(1.2)     An order under this section may require the parties to return after a specified interval to the court making the order for a review of the provisions of the order.  Upon review the court may vary or terminate the order.

Notice

77(2)       No order shall be made under subsection (1) unless the person applying has given at least 30 days notice of the time, date and place of the hearing to

(a) the parents of the child;

(b) the guardian of the child;

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

(c.1) the agency that has care of the child;

(c.2) the agency serving the appropriate Indian band if the person making the application has reason to believe that the child is registered or is entitled to be registered as an Indian under the Indian Act (Canada); and

(d) such other person as a judge or master may direct.

Judge may reduce or dispense with notice

77(3)       Where notice is required under this section, a judge or master may

(a) abridge the time within which notice shall be given;

(b) authorize substitutional service of the notice; or

(c) dispense with the requirement to give notice.

Effect of order

77(4)       Where an order is made under this section, the applicant is for all purposes the guardian of the person of the child and has the care and control of the child and is responsible for the maintenance, education and well-being of the child.

S.M. 1997, c. 48, s. 27; S.M. 2006, c. 30, s. 2.

Access — purpose of section

78(1)       The purpose of this section is

(a) to facilitate relationships between children and their grandparents and other family members, when those relationships are in the child's best interests;

(b) to recognize, on applications by grandparents for access, that children can benefit from a positive, nurturing relationship with their grandparents; and

(c) to recognize that in exceptional circumstances children can benefit if non-family members are given access.

Access application by grandparent or other family member

78(1.1)     Subject to subsection (6), a grandparent, step-parent or other member of a child's family who does not have a right to apply for access to the child under any other provision of this Act or under a provision of another Act may apply to court for access to the child.

Application for access by others

78(2)       Subject to subsection (6), in exceptional circumstances, a person who does not have a right to apply for access to a child under any other provision of this Act or under a provision of another Act may apply to court for access to the child.

Notice

78(3)       The person applying under subsection (1.1) or (2) shall give 10 days' notice of the hearing of the application to

(a) the parents of the child;

(b) the guardian of the child;

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

(d) any person with access to the child under an order of any court; and

(e) any other person that the court directs.

Court may reduce or dispense with notice

78(3.1)     Subsection 77(3) applies, with necessary changes, where notice is required under subsection (3).

Access order

78(4)       On an application under this section, a judge may make an order granting an applicant access to a child in such manner, at such times and subject to such conditions as the judge considers to be in the best interests of the child, as determined in accordance with subsection (4.2).

Access provisions

78(4.1)     An order for access may include, but is not limited to, provisions requiring that

(a) the child spend specified periods of time, with or without supervision, with the applicant;

(b) the child have the opportunity to have the applicant attend specified activities of the child;

(c) the child be able to receive gifts from, or send gifts to, the applicant, directly or indirectly;

(d) the child be able to receive communications from, or send communications to, the applicant, directly or indirectly, whether orally, in writing, or by another means of communication; or

(e) a specified person provide the applicant with pictures of the child and information about the child's health, education and welfare.

Child's best interests

78(4.2)     In making an order for access under this section, in addition to considering the best interests criteria set out in subsection 2(1), the court shall consider all relevant matters, including

(a) the mental, emotional and physical needs of the child;

(b) the nature of any pre-existing relationship between the applicant and the child; and

(c) where the application is made by a grandparent, that a child can benefit from a positive, nurturing relationship with a grandparent.

Consent orders

78(5)       Where all persons who have received notice of an application under this section consent to the terms of the order, a judge may, without receiving further evidence, make the order consented to.

Interim order

78(5.1)     The court may make an interim order with respect to an application under this section, and the provisions of this section apply, with necessary changes, to the interim order.

No application during placement period

78(6)       No application may be made under subsection (1.1) or (2) in relation to a child who is placed for adoption during the period beginning when the child is placed for adoption and ending when an order of adoption is made or the placement is otherwise terminated.

Variation

78(7)       The court may on application vary or terminate an order under this section, and the provisions of this section apply with such modifications as the circumstances require to an application under this subsection.

Review of order

78(8)       An order under this section may require the parties to return to the court after a specified interval for a review of the provisions of the order, and upon review the court may vary or terminate the order.

S.M. 1997, c. 48, s. 28; S.M. 2006, c. 30, s. 3.

Court may direct investigation

79(1)       In a proceeding under this Part, and upon being satisfied that it is necessary in order to determine the best interests of the child, a judge or master may direct an investigation into any matter by a person who has had no previous connection with the parties to the proceeding or to whom each party consents.

Refusal to co-operate

79(2)       Where the court directs an investigation pursuant to subsection (1) and a party refuses to co-operate with the investigator, the investigator shall so report to the court which may draw any inference therefrom it considers appropriate.

Orders not to molest

80(1)       Upon application by a person having lawful care and control of a child, a judge may make an order that a person shall not molest, annoy or harass the child and may require that person to enter into such recognizance, with or without sureties, or to post such bond as the court considers appropriate.

Interim order

80(2)       The court may make an interim order with respect to an application under subsection (1).

S.M. 2006, c. 30, s. 4.

Appeals

81          An appeal from an order under this Part lies to the Court of Appeal.

PART VIII

GENERAL

Foreign orders

82(1)       Where by an order made by a court of competent jurisdiction in any other province or territory of Canada or in any other state or country, lawful parental rights and responsibilities in respect of a child have been legally vested in any person, organization, province, state, country or legal representative thereof, the order so made shall for all purposes in Manitoba have the same force and effect as if made under this Act.

Effect of foreign documents

82(2)       Any statement, consent, declaration or similar document made in writing by the person, organization, province, state, country or legal representative thereof in whom or in which lawful parental rights and responsibilities have been legally vested by an order referred to in subsection (1) shall for all purposes in Manitoba have the same force and effect as if made under this Act.

Immigrant children

83          The minister, director or an agency may enter into an agreement with the Government of Canada or a minister or person authorized for the purpose by the Government of Canada to provide for the placing of children who have been brought into the province from another country for the purpose of settlement.

Sale of child-offence

84          Any person who gives or receives or agrees to give or to receive any payment or reward either directly or indirectly in consideration for

(a) the purported sale of a child for any purpose; or

(b) procuring or assisting in procuring the purported sale of a child for any purpose;

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. 2005, c. 3, s. 6.

Proceedings prohibited

85          No proceeding lies against the director, any person employed by the director or an agency, any person appointed under this Act, or the government, for

(a) the giving of access in good faith to any record under this Act; or

(b) any consequences which flow from such access; or

(c) the failure to give any notice required under this Act with respect to access to records, if reasonable care was taken to give the required notice.

Regulations

86          For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make such regulations and orders, not inconsistent with any other provision of this Act,

(a) prescribing forms for the purposes of this Act;

(b) providing for or respecting the classification, establishment, designation, regulation, registration and licensing of child care facilities including, without limitation,

(i) respecting the conditions to be met and maintained to obtain, retain, or renew a licence,

(ii) respecting the suspension and cancellation of licences, and

(iii) respecting the keeping of records, the inspection of facilities and records, and the information, documents or reports that child care facilities or classes of child care facilities are required to submit to the director, and the frequency of such submissions;

(c) prescribing the conditions under which day care for children may be provided;

(d) prescribing functions of, duties of, or actions to be taken by the director;

(e) prescribing fees under this Act;

(f) prescribing standards for the operation of treatment centres;

(g) establishing guidelines for determining the amount of maintenance to be paid for a child by a parent or guardian of the child under an agreement under this Act;

(g.1) prescribing financial information to be provided or filed by a parent or guardian under a provision of this Act;

(h) prescribing the action to be taken by the director or an agency upon notification of a child being in need of protection;

(i) prescribing procedures for the maintenance and operation of registries established pursuant to this Act;

(j) repealed, S.M. 1997, c. 47, s. 131;

(k) establishing agencies;

(k.1) respecting the qualifications to be met by persons who provide services to or for agencies;

(l) repealed, S.M. 1997, c. 47, s. 131;

(m) respecting the services to children and families pursuant to section 10;

(n) repealed, S.M. 1997, c. 48, s. 29;

(o) respecting access to information contained in the files of the director, an agency or a reporting entity;

(o.1) respecting the retention, storage and destruction of records in the custody or control of an agency or a reporting entity;

(p) prescribing provisions to be contained in the by-laws of an agency;

(q) prescribing placement procedures with respect to children;

(r) respecting the establishment of child abuse committees by agencies and prescribing their procedures;

(r.1) prescribing the procedures of an agency under subsection 19(3.2);

(s) repealed, S.M. 1997, c. 48, s. 29;

(t) respecting procedures applicable to reporting information under section 18 and to actions by the director, an agency or a reporting entity upon receipt of such information;

(u) repealed, S.M. 1998, c. 6, s. 12;

(v) prescribing offences excluded from the application of section 19;

(w) designating one or more organizations, agencies or persons as reporting entities for the purpose of receiving reports of child pornography under subsection 18(1.0.1).

S.M. 1987-88, c. 68, s. 2 and 3; S.M. 1989-90, c. 3, s. 14; S.M. 1989-90, c. 90, s. 3; S.M. 1992, c. 28, s. 8; S.M. 1996, c. 4, s. 6; S.M. 1997, c. 47, s. 131; S.M. 1997, c. 48, s. 29; S.M. 1998, c. 6, s. 12; S.M. 2008, c. 9, s. 9.

Conflict with The Freedom of Information and Protection of Privacy Act

86.1        If a provision of this Act is inconsistent or in conflict with a provision of The Freedom of Information and Protection of Privacy Act, the provision of this Act prevails.

S.M. 1997, c. 50, s. 88.

Repeal

87(1)       The Child Welfare Act, being chapter 30 of the Statutes of Manitoba, 1974 (chapter C80 of the Continuing Consolidation of the Statutes of Manitoba), is repealed.

Transitional provision

87(2)       Notwithstanding subsection (1), where prior to the coming into force of this Act any action, proceeding or matter was taken or commenced under The Child Welfare Act, it shall be continued and completed in accordance with the provisions of that Act and regulations made thereunder, as if this Act had not been enacted.

Wards of Director of Child Welfare

88(1)       An order of a judge making a child a ward of the Director of Child Welfare under The Child Welfare Act shall have the same effect as if that child was made a ward of the director under this Act.

Wards of child caring agencies

88(2)       An order of a judge making a child a ward of a child caring agency under The Child Welfare Act shall have the same effect as if that child was made a ward of an agency under this Act.

Reference in Continuing Consolidation

89          This Act may be referred to as chapter C80 of the Continuing Consolidation of the Statutes of Manitoba.

Commencement of Act

90          This Act comes into force on a day fixed by proclamation.

NOTE: S.M. 1985-86, c. 8, was proclaimed in force March 1, 1986, except for subsections 74(2) and 76(1), (2), and (4) to (22), which were proclaimed in force on April 1, 1986.

 

 


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