Skip to main content
The Child and Family Services Act

S.M. 1985-86, c. 8

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 best interests of children are a fundamental responsibility 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 wellbeing 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 remove or place children should be based on the best interests of the child and not on the basis of the family's financial status.

10. Communities have a responsibility to promote the best interests of their children and families and have the right to participate in services to their families and children.

11. Indian bands are entitled to the provision of child and family services in a manner which respects their unique status as aboriginal peoples.

In furtherance of these principles,

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

Definitions.

1

In this Act

"abuse" means an act or omission by a parent, guardian or a person in whose care a child is which results in

(i) physical injury to the child,

(ii) emotional disability of a permanent nature in the child or is likely to result in such a disability, or

(iii) sexual exploitation of the child with or without the child's consent;

"agency" means

(i) a child and family services agency incorporated under this Act,

(ii) a regional office of the department of the executive government of the province of which the minister charged with the administration of this Act is the chief administrative officer, and

(iii) a corporation created pursuant to an agreement under subsection 6(14);

"child" means a person under the age of majority;

"court" means

(i) in Parts III and VI the Family Division of the Court of Queen's Bench or the Provincial Court, and

(ii) in Part V, the Court of Queen's Bench, and

(iii) in Part VII, the Court of Queen's Bench, or the Provincial Court;

"director" means the Director of Child and Family Services appointed under this Act;

"family" means a child's parent, step-parent, siblings, grandparent, aunt, uncle, cousin, guardian, person in loco parentis to a child and a spouse of any of those persons;

"foster home" means a home other than the home of the parent or guardian of a child, in which the child is placed by an agency for care and supervision but not for the purpose of adoption;

"group home" means a home where not less than 4 or more than 8 children are placed by an agency for full time care and supervision;

"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;

"master" means a master or referee of the Court of Queen's Bench;

"minister" means the member of the executive council charged by the Lieutenant Governor in Council with the administration of this Act;

"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;

"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;

"prescribed" means prescribed by regulation;

"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;

"ward" means a child of whom the director or an agency is the guardian.

Best Interests.

2(1)

The best interests of the child shall be the paramount consideration of the director, 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 the best interests of the child all 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 and linguistic 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.

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;

(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;

(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;

(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) 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;

(b) examine the records respecting a child in any of the places mentioned in clause (a);

(c) conduct enquiries and carry out investigations with respect to the welfare of any child dealt with under this Act;

(d) establish boards to hear complaints under clause (1)(f);

(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.

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.

Existing societies preserved.

5

A society incorporated or child welfare committee established under The Child Welfare Act, which is in existence on the coming into force of this Act shall be continued in existence and deemed to be an agency incorporated under this Act and its by-laws remain in effect until repealed or amended under this Act.

Application for incorporation.

6(1)

Any 3 or more persons over the age of 18 years, who desire to associate themselves together for the purpose of providing child and family services, may make an application to the minister for incorporation as an agency in a prescribed form.

Incorporation.

6(2)

Where the minister approves of the application, the Lieutenant Governor in Council may by order provide that the persons who have signed the application, and such others as thereafter become members, shall be a body corporate by the name "Child and Family Services Agency of _______" (the remainder of the name to be added where indicated) or such other name as the Lieutenant Governor in Council may establish.

First directors.

6(3)

The first directors and members of an agency shall be those named in the application which shall have attached, in the prescribed form, the consent of any first director and member who is not an applicant.

Corporations Act to apply.

6(4)

Subject to the provisions of this Act, The Corporations Act shall apply to all agencies incorporated pursuant to this Act.

Directors.

6(5)

The affairs of an agency shall be managed by a board of not fewer than 3 directors or such greater number as shall be prescribed from time to time by order of the Lieutenant Governor in Council.

Composition of directors.

6(6)

The directors of an agency shall be composed of

(a) persons appointed by order of the Lieutenant Governor in Council; or

(b) persons elected by the members; or

(c) persons elected by employees of the agency; or

(d) a combination of persons appointed under clause (a) and persons elected under clauses (b) and (c);

as the by-laws may prescribe.

Appointed directors.

6(7)

The Lieutenant Governor in Council may, by order, provide that the directors of an agency be appointed by the Lieutenant Governor in Council and may thereupon appoint not fewer than 3 persons as members and directors of the agency.

Elected directors cease to hold office.

6(8)

Upon the appointment of directors of an agency under subsection (7), the directors of the agency in office prior to the appointment cease to hold office as directors of the agency and cease to have any power, authority, duties or functions as directors of the agency and the directors appointed under subsection (7) are and shall be conclusively deemed to be the board of directors of the agency and, notwithstanding the by-laws of the agency, a majority of the directors so appointed constitute a quorum for meetings of the board of directors.

Reversion to elected directors.

6(9)

The Lieutenant Governor in Council may rescind an order made under subsection (7) and thereupon the directors shall arrange for a general meeting of the members of the agency to elect new directors in accordance with the agency's by-laws but, notwithstanding the rescinding of the order, the directors of the agency appointed under subsection (7) shall continue to hold office as directors of the agency until the new directors of the agency are elected.

Powers of directors.

6(10)

Subject to this Act, the directors of an agency shall

(a) exercise the powers of the agency directly or indirectly through the employees and agents of the agency; and

(b) direct the management of the business and affairs of the agency.

No personal liability of director or officer.

6(11)

Neither the president, nor any officer or director of an agency, nor any person acting under the instructions of any of them or under the authority of this Act is personally liable or answerable for any

(a) debt, liability or obligation of an agency or in respect of any act, error or omission of an agency or any of its officers, employees or agents; or

(b) loss or damage suffered by any person by reason of anything in good faith and without negligence, done or omitted to be done, or caused, permitted, or authorized to be done or omitted to be done, pursuant to, or in exercise of, or supposed exercise of, the powers given by this or any other Act of the Legislature.

Dissolving of agency.

6(12)

The Lieutenant Governor in Council may by order dissolve an agency in which case

(a) the agency is dissolved on such date as may be specified in the order;

(b) the assets and liabilities of the agency shall be assumed by the government; and

(c) the director shall assume all the 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.

Transfer of assets of Children's Aid Society of Winnipeg.

6(13)

The Lieutenant Governor in Council may by order provide that

(a) all or any of the assets, property, contracts, rights and privileges of the Children's Aid Society of Winnipeg including its funds, securities and investments, whether held by it beneficially or in trust or held beneficially by others on its behalf, be transferred to other agencies specified in the order; and

(b) all or any of the liabilities or obligations of the Children's Aid Society of Winnipeg be assumed by other agencies specified in the order.

Agreements with Indian band.

6(14)

The minister with the approval of the Lieutenant Governor in Council may enter into agreements with an Indian band or Tribal council and the Government of Canada for the incorporation by the band or council of an agency to provide services under this Act and the provisions of this Act except subsections (4), (5), (6), (7), (8), (9) and (12) shall apply to that agency.

Mandate may be withdrawn from Indian agency.

6(15)

Notwithstanding the provisions of an agreement entered into under subsection (14), the minister with the approval of the Lieutenant Governor in Council may withdraw from the agency incorporated pursuant to the agreement the authority to provide the services under this Act.

Obligations of Indian agency.

6(16)

Where the order under subsection (15) withdraws from the agency guardianship or supervision of children and the Government of Canada does not assume the obligations of the agency towards the children, the director shall assume those obligations and any ward of the agency shall be deemed to be a ward of the director.

Grants to agencies.

6(17)

From the Consolidated Fund, with moneys authorized by an Act of the Legislature to be paid and applied for the purposes of this Act, the Minister of Finance may pay to an agency in any fiscal year of the province such grants as may be specified by an order of the Lieutenant Governor in Council.

Rates for services.

6(18)

The minister may fix rates payable for services provided under this Act.

Rates payable to agencies or treatment centres.

6(19)

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(20)

The rates fixed under subsection (18) or (19) 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(21)

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.

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 where appropriate for children in its permanent care;

(j) provide post-adoption services to families and adults;

(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 regulations;

(r) provide any other services and perform any other duties given to it by this Act or by the director in accordance with this 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.

License required for facilities.

8(1)

No person shall operate a foster home, group home, treatment centre, or other child care facility, without a licence from the minister for the purpose, issued in accordance with the regulations under this Act or under The Social Services Administration Act or The Community Child Day Care Standards Act.

Information for director.

8(2)

A person licensed under subsection (1) shall at least once annually, and more frequently when requested, supply the director with all information and particulars regarding the licensed operation that the director may require.

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 Day Care Standards Act or obtain a suitable alternative.

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 6 months; and

(b) subject to the approval of the director, renew the agreement with the parent or guardian for one or more periods each of which shall not exceed 6 months with such variations in the terms as the parties consider necessary.

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 mentally retarded, 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).

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..

Contribution.

15(2)

An agreement under section 12, 13 or 14 may provide that the person pay to the agency all or part of the cost incurred by the agency under the agreement but the cost to the agency shall be calculated in all cases in accordance with 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.

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.

Voluntary surrender of guardianship by parents.

16(1)

The parents of a child or the surviving parent may, by agreement on a prescribed form, surrender guardianship of the child to an agency.

Voluntary surrender of guardianship by mother.

16(2)

The mother of a child who is

(a) unmarried; or

(b) married but had ceased cohabiting with her husband 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 where child under 7 days.

16(5)

No agreement shall be entered into under subsection (1) or (2)

until the expiration of at least 7 clear days after the date of birth of the child.

No placement until 2 juridical days after agreement.

16(6)

Subject to subsection (7), no child surrendered under subsection (l) or (2) shall be placed for adoption until the expiration of at least 2 juridical days after the execution of the agreement.

No placement where declaration of parentage being sought.

16(7)

No child shall be placed for adoption after the director has been served with notice of an application under Part II of The Family Maintenance Act by a man that he be declared to be the father of the child in question unless

(a) the application is withdrawn; or

(b) the court dismisses the application and all appeals from the dismissal have been exhausted.

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 at any time prior to the day that the child is placed in a home for the purpose of adoption or within 1 year from the date of the agreement, whichever is earlier, but not thereafter.

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)

Notwithstanding any other provision of this Act, 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.

PART III

CHILD PROTECTION

Child in need of protection.

17

In this Act, a child in need of protection includes a child

(a) without adequate care, supervision or control;

(b) in the care 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 may endanger the life, health, or emotional well-being of the child, or

(iii) who neglects or refuses to provide or obtain proper medical, surgical or other remedial care or treatment necessary for the health or well-being of the child or refuses to permit such care or treatment to be supplied to the child when it is recommended by a duly qualified medical practitioner;

(c) who is abused or is in danger of abuse;

(d) who is beyond the control of the person caring for him or her;

(e) who by his or her behaviour, condition, environment, or association is likely to injure himself, herself or others;

(f) who refuses or is unable to provide adequately for the health needs of herself or her child;

(g) who, being under the age of 12 years, has been left unattended and without reasonable provision having been made for his or her supervision and safety; or

(h) who is the subject of activities in violation of section 63 or section 84.

Reporting a child in need of protection.

18(1)

Any person who has information that a child may be in need of protection shall forthwith report the information to the director or an agency and any person who fails to do so commits an offence punishable on summary conviction.

Duty to report.

18(2)

Notwithstanding the provisions of any other Act, subsection (1) applies even where the person has acquired the information through the discharge of professional duties or within a confidential relationship, but nothing in this subsection abrogates any privilege that may exist because of the relationship between a solicitor and the solicitor's client.

Further consequences of non-reporting.

18(3)

Where there are reasonable grounds to believe that any person who in the course of professional or official duties had reason to suspect that a child may be in need of protection and failed to comply with subsection (1), the director may report the matter to any professional society, association or other organization authorized under the laws of the province to regulate the professional activities of the person, and that professional society, association or organization shall cause an investigation to be made into the matter.

Protection of informant.

18(4)

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

Identity not revealed.

18(5)

Any person who reveals to the family of the child except in the course of judicial proceedings the identity of a person who has given information under subsection (1) without that person's written consent commits an offence punishable on summary conviction.

Interference and harassment is an offence.

18(6)

Any person who interferes with or harasses any person as a result of that person providing information in compliance with subsection (1) commits an offence punishable on summary conviction.

Agency to investigate.

19(1)

Where an agency receives a report or information that causes it to suspect that a child may be in need of protection, the agency shall immediately investigate and shall take such steps as are prescribed and as it considers necessary to protect the child.

Report of abuse.

19(2)

An agency shall report any information respecting suspected abuse of a child to the director who shall maintain a register for recording the information.

Communication of findings from investigation of abuse.

19(3)

Upon completion of an investigation with respect to the abuse of a child, the agency shall advise the parent or guardian of the child and may advise (a) the person who provided the information respecting the abuse;

(b) any person identified during the investigation as a person alleged to be subjecting the child to abuse; and

(c) the child, if in the opinion of the agency the child is capable of understanding the information and it is in the best interests of the child;

as to the findings and conclusions of the investigation.

Director to provide information re register.

19(4)

The director shall provide to any person who applies information contained on the register under subsection (2) respecting that person other than information which might identify the person who provided the information leading to the investigation.

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 commits an offence punishable on summary conviction.

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, magistrate 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.

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)

During the time that a child is apprehended an agency

(a) is responsible for the child's care, maintenance, education and well-being; and

(b) may authorize the provision of medical or dental care as may be recommended by a duly qualified medical practitioner or dentist without the consent of the parent or guardian and without an order of the court.

No liability.

25(2)

No liability attaches to the agency or to a duly qualified medical practitioner or dentist or to a hospital by reason only that a child is provided with medical or dental care under subsection (1).

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, magistrate 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.

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.

Date when application returnable.

29(1)

An application under subsection 27(1) shall be returnable within 30 days of being filed or within such further period as a judge, master, magistrate or justice of the peace may, on application, allow.

Adjournment.

29(2)

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

Notice of hearing.

30(1)

The agency shall give 10 clear days notice of the date the application under subsection 27(1) is returnable or is set for hearing on a prescribed form 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 or is entitled to be registered as an Indian under the Indian Act (Canada);

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

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.

Application to intervene.

31(1)

Prior to the commencement of a hearing under subsection 27(1) and upon giving 7 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.

Particulars to be supplied on request.

32(1)

A person entitled to notice under subsection 30(1) may serve the agency with a demand for particulars of the grounds which are alleged to justify a finding that a child is in need of protection and the agency shall as soon as it reasonably can provide full particulars.

Order for further particulars.

32(2)

A person who is dissatisfied with the particulars provided under subsection (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.

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 legal counsel.

34(1)

A judge or master prior to a hearing under section 27 shall advise those persons other than a child affected by a hearing under this Part that they have the right to be represented by legal counsel.

Counsel for child.

34(2)

In the case of a child, 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.

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 in accordance with clause (1) (a), (b), (c), (d) or (e) and a person who was served but does not appear or who by an order under subsection 30(4) was not required to be served shall be deemed to consent.

Parents ordered to contribute.

38(3)

A judge or master who makes an order under clause (1) (b), (c), (d) or (e) may at the time of granting the order or subsequently, upon application by an agency, order the parents or guardians to contribute to the cost of the child's maintenance or to refund to the agency the whole or any part of the sum that has been expended for maintenance of the child prior to the making of the order.

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 or master 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 punishable on summary conviction.

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 this section 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.

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.

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.

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.

Provisions of Part apply.

40(4)

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

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 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.

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.

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.

Parents applying to terminate permanent guardianship.

45(3)

Where more than 1 year has elapsed since an order of permanent guardianship was pronounced, and the child has not been placed for adoption, the parents may apply to court for an order that the guardianship be terminated.

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.

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.

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.

Child mistreatment an offence.

47(1)

Any person having the care, custody, control or charge of a child who abuses or neglects the child or fails to protect the child commits an offence punishable on summary conviction.

Child under 12 not to be left unattended.

47(2)

Any person having the care, custody, control or charge of a child under the age of 12 years who leaves the child unattended for an unreasonable time without making reasonable provision for the supervision and safety of the child commits an offence punishable on summary conviction.

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.

Expiration of guardianship.

50(1)

Subject to subsection (2), guardianship shall be deemed to expire with the marriage of the ward or when the ward attains the age of majority.

Support for transitional planning.

50(2)

Where an order of permanent guardianship expires as a result of a child attaining the age of majority, an agency may, with the written approval of the director, continue to provide care and maintenance for the former ward for the purpose of completing the transition to not being a ward for any period after the expiration of the order of guardianship which does not extend beyond the date when the former ward attains the age of 21 years.

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.

Foster parents may request review.

51(2)

Where a child is removed under subsection (1) from a foster home, and the foster parents object to the reason for the removal of the child by the agency the executive director of the agency shall review the matter and where the foster parents are not satisfied with the executive director's decision, they may request the director to review the matter and the director's decision is final.

Interference with children in care.

52

Any person who

(a) 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) 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) 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) 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) 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;

commits an offence punishable on summary conviction.

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, magistrate 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.

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

ADOPTIONS

General Provisions

Definitions.

55

In this Part

"agency" includes

(i) an agency as defined in section 1,

(ii) the minister or other official of any government of a province of Canada charged with the administration of the adoption of children in that province, and

(iii) any other association, society, person, corporation or government official or department, outside Manitoba, having the right under the laws of a province, state or country to provide adoption services;

"extended family" includes in addition to the persons in the definition of "family" in section 1, any unmarried adult cohabiting with any of those persons of the opposite sex who is an unmarried adult in a relationship of some permanence.

Person adopting must be older than adoptee.

56

A person may only be adopted by an adult who is older than the person being adopted.

Adoption in another jurisdiction.

57

An adoption granted according to the law of any other province, territory of Canada or of any other state or country that is substantially similar in effect to an adoption under this Part shall be recognized in the province and shall have the same force and effect as if made under this Part.

Consents required for agency placement.

58(1)

A judge shall not make an order for adoption of a child placed for adoption by an agency unless

(a) written consent on a prescribed form has been given by the director who, or an agency which, has been given permanent guardianship of a child either by voluntary surrender of guardianship or by an order of the court; and

(b) written consent of the child on a prescribed form is obtained if the child is 12 years of age or older.

Consents required for non-agency placement.

58(2)

A judge shall not make an order for adoption of a child who has not been placed for adoption by an agency unless written consent to the adoption on a prescribed form is given by

(a) the persons who may surrender guardianship of a child under section 16; and

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

No consent until 10 clear days after birth.

58(3)

No person shall execute or give consent to the adoption of a child under subsection (2) and no person shall take, request or solicit the consent of any person to the adoption of a child until the expiration of at least 10 clear days after the date of the birth of the child.

Copy of consent to director.

58(4)

A copy of the consents required under subsection (2) shall be given to the director at least 30 days prior to the date set for the hearing of the application for adoption or within such shorter time as a judge or master may allow.

No adoption pending declaration of parentage.

58(5)

Notwithstanding subsection (2), the court shall not grant an order of adoption under this section where the director certifies to the court that an application under the Family Maintenance Act by a man that he be declared to be the father of the child in question was served prior to placement unless the application is withdrawn or dismissed and all appeals from the dismissal have been exhausted.

Affidavit of execution of consent.

58(6)

An affidavit of execution shall form part of every consent other than one given by the director.

Waiver of consent.

58(7)

A judge may dispense with the requirement that any person, other than the person to be adopted, consent under this Part if satisfied there are valid reasons to do so including that the person

(a) has abandoned or deserted the child;

(b) cannot be located after all reasonable attempts have been made to find the person;

(c) has been and remains incapable of caring for the child for a period of time of sufficient duration to be detrimental to the best interests of the child;

(d) while liable to maintain the child has persistently neglected or refused to do so; or

(e) has not had an ongoing parental relationship with the child and a delay in securing a home for the child would be detrimental to the best interests of the child.

Waiver of consent of person 12 years of age and older.

58(8)

Where a person to be adopted is 12 years of age or older and is unable to understand or give consent, a judge may dispense with the requirement for that person's consent.

Wishes of child under 12 to be taken into account.

58(9)

Where the child's consent is not required under this Part, or has been dispensed with under subsection (8), the judge hearing an application under this Part shall, where appropriate and feasible, take into account the wishes of the child.

Withdrawal of consent.

58(10)

Any person who has consented under subsection (2) to the adoption may withdraw the consent by giving written notice of the withdrawal to the director at any time prior to the granting of the order of adoption and upon request the director shall certify to the court whether a withdrawal of consent was served.

Consent executed outside Manitoba.

58(11)

Where the laws of a locality outside Manitoba provide for the adoption of children by persons other than their natural parents, for similar results and consequences to follow upon an adoption as are provided by the laws of Manitoba, and for written consent to the adoption by the parents or guardian, then a consent by a person residing in that locality in a form that is good and sufficient consent to the adoption of the child under the laws of that locality executed before a person authorized to take consents in that locality is as good and sufficient as if it had been executed on the prescribed form within Manitoba.

Validity of prior consent.

58(12)

A consent obtained under The Child Welfare Act is valid and binding for the purposes of this Part, notwithstanding the repeal of that Act.

Substitutional service.

59

Where an application is made for an order of adoption under this Part, if a judge or master is satisfied that a parent or guardian of the child

(a) has not in any way been involved in a parental relationship with the child, the judge or master may dispense with service of the copy of the application on that parent or guardian; or

(b) cannot be located after reasonable efforts have been made, the judge or master may authorize and direct the manner of effecting substitutional service of a copy of the application or may dispense with service.

Order of adoption.

60(1)

Where an application for an order of adoption is filed and all the applicable requirements of this Part have been complied with, a judge may, having regard to all the circumstances of the case, make an order of adoption.

Adoption order on prescribed form.

60(2)

An order of adoption shall be on a prescribed form, and shall not, except as provided in subsection (3), show the surname of the child prior to adoption, but shall identify the child by the birth registration number of the birth record.

Surname of adopted child.

60(3)

An adopted child shall, as determined by the adopting parents, either retain the surname under which the child's birth was registered or be given a surname chosen from the allowable surnames for registering a child's birth under The Vital Statistics Act.

Distribution of order.

60(4)

The original of every order of adoption made under this Part shall be kept in the court; and the court shall mail or deliver a certified copy

(a) to the adopting parents;

(b) to the director, with the exception of orders made under section 66, 67 or 71;

(c) to the Director of Vital Statistics; and

(d) to the agency concerned.

Distribution of order where child born outside Manitoba.

60(5)

The original of every order of adoption made under this Part with respect to a child that was born outside of Manitoba shall be kept in the court and the court shall mail or deliver certified copies of the order in the following manner (a) 1 to the adopting parents;

(b) 1 to the director;

(c) 2 to the Director of Vital Statistics who shall in turn forward a copy to the person responsible for recording vital statistics in the place, state or country outside of Manitoba where the child was born; and

(d) 1 to the agency concerned.

Copy of order to Registrar under Indian Act (Canada).

60(6)

Where the adoption order is with respect to a child who is a member of a band within the meaning of the Indian Act (Canada), a certified copy of the order shall be forwarded to the Registrar under that Act.

Status of adopted child.

61(1)

For all purposes of the law of Manitoba, as of the date of the making of an adoption order,

(a) the adopted child becomes the child of the adopting parent and the adopting parent becomes the parent of the adopted child; and

(b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, as if the adopted child had been born to the adopting parent.

How relationships determined.

61(2)

The relationship to one another of all persons, including the adopted child, the adopting parent, the kindred of the adopting parent, the parent before the adoption order was made and the kindred of that former parent shall for all purposes be determined in accordance with subsection (1).

Reference in will or other document.

61(3)

In any will or other document made at any time before or after the day this section comes into force, and whether the maker of the will or document is alive on that day or not, a reference to a person or group or class of persons described in terms of relationship by blood or marriage to another person shall be deemed to refer to a person who comes within the description as a result of an adoption, unless the contrary is expressed.

Application of section.

61(4)

This section applies and shall be deemed always to have applied with respect to any adoption made under any Act heretofore in force, but not so as to affect,

(a) any interest in property or right of the adopted child that has indefeasibly vested before the date of the making of an adoption order; and

(b) any interest in property or right that has indefeasibly vested before the day this section comes into force.

Exception where adoption by spouse.

61(5)

Where the adopting parent has a spouse who is a parent of the person to be adopted and that parent chooses not to apply for the adoption jointly with the adopting parent, the relationship of that parent and of his or her kindred with the adopted person shall continue and shall not be altered in any way by the order for adoption.

Exception re prohibited marriages.

61(6)

Subsections (1) and (2) do not apply for the purposes of the laws relating to incest and the prohibited degrees of consanguinity for marriage to remove a person from a relationship that would have existed but for those subsections.

Other provisions do not affect rights.

61(7)

No provision of this Act other than this section affects a child's right to inherit from his or her parents or kindred.

Preservation of records.

62(1)

All records and documents in the office of the director or of an agency related to the granting of an order of adoption shall be confidential and following the granting of the order shall be maintained in a separate file and secured in a safe depository.

Disclosure of information restricted.

62(2)

Notwithstanding subsections (1) and 74(5), the director may in writing authorize the disclosure of information contained in a record under subsection (1) where

(a) the child who is the subject of the record returns to the care of an agency and the agency requests disclosure of information in the record; or

(b) the adoptive parents of the child who is the subject of the record consent in writing to the disclosure.

Court records.

62(3)

All records and documents related to the granting of an order of adoption in a court shall be confidential, and no search of such records or making of any copies thereof or extracts therefrom shall be permitted except under an order made by a judge or master after reasonable notice for that purpose is given to the director.

Court may issue certified copy of order.

62(4)

Notwithstanding subsection (3), the court may on written request issue a certified copy of an order of adoption to an adoptive parent or to the adult adoptee or to both, but where the original surname of the child appears on the order of adoption the original surname shall be deleted from the certified copy and the birth registration number substituted therefor.

Penalty for taking payment for adoption.

63

Subject to section 73, any person, other than a lawyer acting for any party involved who receives reasonable remuneration for professional services, who gives or receives or agrees to give or to receive any payment or reward, either directly or indirectly;

(a) in consideration for the adoption of a child under this Part, or

(b) to procure or assist in procuring a child for the purpose of adoption;

commits an offence punishable on summary conviction and is liable to a fine of not less than $1,000.00 and not more than $10,000.00 or to imprisonment for a term not exceeding 6 months, or both.

Application to approve out of province placement.

64(1)

A person who intends to place a child out of Manitoba for the purposes of adoption shall apply to the director or an agency for approval of the placement.

Investigation by agency or director.

64(2)

The director or an agency may approve a request to place a child within Canada where upon investigation of the proposed placement it is determined that the adoption can be legally completed in the jurisdiction where the child is proposed to be placed.

L.G. in C. must approve out of Canada placement.

64(3)

The director or an agency shall not approve a request to place a child out of Canada without first obtaining the approval of the Lieutenant Governor in Council.

Offence to place outside Manitoba.

64(4)

Any person who takes or sends or attempts to take or send a child out of Manitoba for the purpose of placing the child for adoption without the prior written approval of the director or an agency commits an offence punishable on summary conviction.

Exception.

64(5)

This section does not apply to the placement of a child with the spouse of a parent of the child.

Director's approval for newspaper advertisement.

65(1)

Every publisher of a newspaper or magazine published in Manitoba who receives any advertisement dealing with the adoption of a child, except from an agency, shall receive approval in writing from the director prior to the first publication of the advertisement.

Penalty.

65(2)

A person who fails to comply with subsection (1) commits an offence punishable on summary conviction.

ADOPTION PLACEMENT BY AGENCY

Application for placement.

66(1)

A husband and wife or a man and a woman who are not married but are cohabiting as spouses or a single adult may, if they desire to have a child placed in their home with a view to adopting that child, make an application to an agency for that purpose.

Suitability of applicants.

66(2)

Upon receiving an application under subsection (1), an agency shall ascertain the suitability of the applicants as adoptive parents and upon being satisfied that they are suitable, it shall forward to the director the relevant particulars respecting the applicants and the director shall enter the names and particulars of the applicants in a central registry.

Applicants may request the director to review.

66(3)

Applicants who are informed by the agency that they are in the opinion of the agency unsuitable to become adoptive parents may request the director to review the matter and the director's decision is final.

Foster parent adoption.

66(4)

Where a child has been placed in a foster home and in the opinion of the agency having guardianship the child should be placed for adoption, the foster parents may apply under this section to have the child placed with them for adoption.

Placement subject to approval of director.

66(5)

An agency may recommend applicants whose names have been entered in the central registry referred to in subsection (2) for the adoption of a particular child and upon approval of the director the agency may place the child in the home of the applicants.

Manitoba placement preferred.

66(6)

An agency shall attempt to place all children for the purposes of adoption first in Manitoba and then elsewhere in Canada but an agency shall not place a child outside of Manitoba except with the written consent of the director or outside of Canada except by order of the Lieutenant Governor in Council.

Agreement regarding adoption placement.

66(7)

When a child is placed by an agency in a home for adoption, an agreement on a prescribed form shall be entered into with the applicants setting forth the terms and conditions of the placement and the date of the placement shall be the date on which the agreement was completed.

Removal of child.

66(8)

Where a child is placed by an agency in a home for adoption, the agency may remove the child from the home at any time prior to an order of adoption being made and the applicants may request the director to review the matter and the director's decision is final.

Application for adoption order in agency placement.

66(9)

The persons into whose home a child is placed for adoption under this section may, with the written approval of the agency, apply on a prescribed form to the court for an order of adoption after the expiration of 6 months from the date on which the child was placed with the applicants or within such lesser or greater time as the agency may authorize.

Surviving spouse may apply for order of adoption.

66(10)

Where a child is placed for adoption in the home of a husband and wife or a man and a woman who are cohabiting and before an application is made for an order of adoption one of them dies, the surviving person may apply under subsection (9) for the order of adoption; and a judge may grant the order of adoption in the name of the applicant and of the deceased person, and in that case the child shall be deemed for all purposes to have been adopted by both the applicant and the deceased person.

Documents to be filed in support of application.

66(11)

An application for an order of adoption under this section shall be supported by

(a) the required consents to the adoption;

(b) a copy of the agreement mentioned in subsection (7);

(c) the birth certificate or registration of the live birth of the child;

(d) the order of permanent guardianship or the voluntary surrender of guardianship agreement;

(e) the family and developmental history of the child identified by adoptive name and birth registration number only;

(f) a summary of the study of the applicants;

(g) the report and recommendation of the agency;

(h) certification by the director that a withdrawal of consent was not served under subsection 58(10);

and where applicable

(i) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple; and

(j) the authorization of the agency where it extended or reduced the time for the making of the application;

(k) decrees nisi and absolute of divorce;

(l) the death certificate of the applicant's spouse.

ADOPTION BY PERSON WHO HAS MARRIED PARENT

Application.

67(1)

A person who marries the parent of a child or a man and a woman who are not married but are cohabiting as spouses, one of whom is the parent of a child may, together with that parent or alone but with the consent of that parent, apply to the court on a prescribed form to adopt the child if the child is living with the applicants and is being cared for by them.

Service of copies of application.

67(2)

An application under subsection (1) shall not be heard unless a copy thereof is served, at least 30 days prior to the date of the hearing of the application, or within such other period as a judge or master may allow, on

(a) the parent of the child who is not a party to the application; and

(b) such other persons as a judge or master may direct.

Documents in support of application.

67(3)

An application for adoption under this section shall be supported by

(a) an affidavit from the applicants setting forth their names, addresses and marital status;

(b) the required consents to the adoption;

(c) the birth certificate or registration of the live birth of the child;

(d) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(e) certification by the director that a notice of application under The Family Maintenance Act by a man that he be declared to be the father of the child was not served prior to placement;

(f) certification by the director that a withdrawal of consent under subsection 58(10) was not served;

and where applicable

(g) the death certificate of a deceased parent of the child;

(h) the order of a court of competent jurisdiction relating to the custody of the child; and

(i) decrees nisi and absolute of divorce.

Report of agency.

67(4)

The judge hearing an application under this section may request an agency to provide the court with a written report on the applicants and any other matters the judge deems relevant and the agency shall comply with the request.

Order where one applicant dies.

67(5)

Where pursuant to subsection (1) a person and the parent of a child applied jointly and one of the applicants dies prior to the making of an order of adoption by the judge, the judge may nevertheless grant the order of adoption in the names of both applicants; and in that case the child shall be deemed for all purposes to have been adopted by both the applicant and the deceased person.

Application for access.

67(6)

The parent who is served with a copy of an application under subsection (1) may apply to the court for an order granting access to the child.

Access order.

67(7)

An application under subsection (6) may be heard either as part of the application for adoption under this section or as a separate application after the adoption order has been granted; and the judge hearing the application may grant the access with or without conditions.

EXTENDED FAMILY ADOPTIONS

Placement of a child with member of extended family.

68(1)

Notwithstanding any other provision of this Act, a parent may place a child with a member of the extended family for the purposes of adoption without prior notification of the director and without the director's approval.

Application for order of adoption.

68(2)

An application for an order of adoption under this section shall be made to the court no later than 12 months from the date of placement.

Notice of application for order of adoption.

68(3)

Any person applying for an order of adoption under this section shall serve a copy of the application at least 14 days prior to the date fixed for the hearing thereof on

(a) any person whose consent to the adoption is required;

(b) such other persons as a judge or master may direct.

Matters to be considered.

68(4)

No adoption order may be made under this section unless the judge is satisfied as to the suitability of the applicants and that the child has, for a period of at least 6 months prior to the date fixed for the hearing of the application, resided with and been in the care and control of the applicants.

Judge may waive requirements of subsec. (4).

68(5)

A judge may dispense with the requirements of subsection (4) if satisfied that the best interests of the child are served.

Report of agency.

68(6)

The judge hearing an application under this section may request an agency to investigate the matters referred to in subsection (4) and provide the court with a written report and the agency shall comply with the request.

Documents in support of application.

68(7)

An application for an order of adoption under this section shall be supported by

(a) an affidavit of the applicants on a prescribed form;

(b) the required consents to the adoption;

(c) the birth certificate or registration of the live birth of the child;

(d) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(e) proof that the applicants are part of the child's extended family;

(f) certification by the director that a notice of application under The Family Maintenance Act by a man that he be declared to be the father of the child was not served prior to placement;

(g) certification by the director that a withdrawal of consent under subsection 58(10) was not served;

and where applicable

(h) the report of the agency;

(i) the death certificate of the applicant's spouse; and

(j) decrees nisi and absolute of divorce.

PRIVATE ADOPTIONS

Who may place.

69(1)

An adult entitled to surrender guardianship of a child under section 16 may, in accordance with this section, place the child for the purpose of adoption.

Placing person to notify agency.

69(2)

The person who intends to place the child for adoption shall notify the agency having jurisdiction in the area where the child is to be placed of the proposed placement by registered mail not later than 10 juridical days prior to the placement, stating

(a) the name and birthdate of the child, or in the case of an unborn child the expected date of birth;

(b) the names and address of the prospective adoptive parents;

(c) the name and address of the person who is placing the child and whose consent is required; and

(d) the address where the child resides, if applicable.

Receiving person to notify agency.

69(3)

The person who intends to receive the child for adoption shall notify the agency having jurisdiction in the area where the child is to be placed of the proposed placement by registered mail not later than 10 juridical days prior to receiving the child into a home for the purpose of adoption, stating

(a) the name and birthdate of the child, or in the case of an unborn child, the expected date of birth;

(b) the names and birthdates of the parents of the child;

(c) the names and address of the prospective adopting parents; and

(d) the address where the child resides, if applicable.

Director may waive or extend time for notification.

69(4)

Where there is a valid reason the director may either waive or extend the time for notification.

Investigation by agency.

69(5)

Upon receipt of notification under subsection (2) or (3), the agency shall forthwith conduct an investigation into the matter and upon completion of the investigation may approve or not approve the placement of the child and shall notify the parties accordingly.

Supervision of placement following approval.

69(6)

Where the placement under this section has been approved the agency shall supervise the placement until the order of adoption has been made.

Procedure after placement not approved.

69(7)

Where the placement under this section has not been approved, the agency shall, by registered mail, notify both the person placing the child and the person receiving the child of this fact and where the child has been already placed the agency may

(a) cause the child to be returned to the parent of the child; or

(b) enter into a voluntary surrender of guardianship agreement with the parent of the child pursuant to section 16; or

(c) take steps to protect the child in accordance with the provisions of Part III of this Act.

Application to court.

69(8)

A person who receives notice under subsection (7) that the agency does not approve of a placement may within 21 days from receipt of the registered letter apply to court for an order that the placement be approved.

Application for order of adoption.

69(9)

An application for an order of adoption under this section shall be made on a prescribed form to the court no earlier than 6 months and no later than 12 months from the date of the placement which has been approved under subsection (5) or within such lesser or greater time as the agency may authorize.

Notice of application for order of adoption.

69(10)

Any person applying for an order of adoption under this section shall serve a copy of the application at least 14 days prior to the date fixed for the hearing on

(a) the agency serving the area in which the applicants reside;

(b) any person whose consent to the adoption is required; and

(c) such other persons as a judge or master may direct.

Documents in support of application.

69(11)

An application for an order of adoption under this section shall be supported by

(a) an affidavit of the applicants on a prescribed form;

(b) the required consents to the adoption;

(c) the birth certificate or registration of the live birth of the child;

(d) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(e) the report and recommendation of the agency;

(f) certification by the director that he has not been served with a notice of application under The Family Maintenance Act by a man that he be declared to be the father of the child;

(g) certification by the director that he has not been served with a withdrawal of consent under subsection 58(10);

and where applicable

(h) the death certificate of the applicant's spouse; and

(i) decrees nisi and absolute of divorce.

Order of judge.

69(12)

After hearing the applicants, the parents of the child and the agency as the case may require and after considering the report of the agency, the judge may

(a) grant the order of adoption; or

(b) order that the care and custody of the child be turned over to the parents; or

(c) appoint the agency guardian of the child.

INTERNATIONAL ADOPTION

Application for placement from another country.

70(1)

Applicants who have been placed on the central registry under subsection 66(2), may request that their home be considered for the placement of a child who resides in another country and who is legally available for adoption.

Provisions of sec. 66 apply.

70(2)

Where the applicants referred to in subsection (1) agree to accept the placement of a child from another country, all provisions of section 66 shall apply.

Application in another country.

70(3)

A person who is applying in another country to adopt a child shall notify the director or an agency and the director or that agency shall,

(a) verify that the application has been completed and accepted by a court of competent jurisdiction in the other country;

(b) verify that the government of the country where the child resides supports the application and the adoption of the child; and

(c) provide supporting documentation required by the authorities of the child's country of residence in order to facilitate the finalization of the adoption in the other country.

Adoption of immigrant child.

70(4)

A person or a husband and wife jointly who desire to adopt a child who has been legally admitted into Canada, may, subject to the Immigration Act (Canada), apply to adopt the child.

DE FACTO ADOPTION

Application.

71(1)

An application may be made on a prescribed form to a judge for an order of adoption

(a) jointly by a husband and wife or a man and woman who are not married but are cohabiting as spouses where

(i) at the time the application is made they are jointly caring for and maintaining the child, and

(ii) either applicant has had care and control of the child and has maintained the child for 3 consecutive years;

(b) by a person who at the time that application is made

(i) is caring for and maintaining the child, and

(ii) has had care and control of the child and has maintained the child for 3 consecutive years.

Consent not required.

71(2)

No consent of the parents or guardian of a child is required in support of an application under subsection (1).

Notice of application.

71(3)

A person applying for an order of adoption under this section shall serve a copy of the application at least 30 days prior to the date fixed for the hearing of the application on

(a) the agency serving the area in which the applicant resides;

(b) the parents or guardian of the child; and

(c) any other person a judge or master may direct.

Investigation.

71(4)

Upon receiving a copy of an application under this section, the agency shall investigate and report to the court on the circumstances surrounding the child.

Documents in support of application.

71(5)

An application under subsection (1) shall be supported by

(a) an affidavit of the applicants in a prescribed form;

(b) the birth certificate or registration of the live birth of the child;

(c) the consent of the child 12 years of age or over, unless dispensed with by the judge;

(d) the report of the agency;

and where applicable

(e) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(f) decrees nisi and absolute of divorce; and

(g) the death certificate of the applicant's spouse.

Order of judge.

71(6)

After hearing the applicants, the parents of the child and the agency as the case may require and after considering the report of the agency, the judge may

(a) grant the order of adoption; or

(b) order that the care and custody of the child be turned over to the parents; or

(c) appoint the agency guardian of the child.

ADOPTION OF AN ADULT

Conditions for adoption of an adult.

72(1)

Any adult may be adopted where

(a) the person adopting is older by a reasonable number of years than the person to be adopted; and

(b) the reason for the adoption is acceptable to the judge hearing the application.

Support during minority to be considered by judge.

72(2)

Where an application is made to adopt an adult the judge shall take into consideration, in addition to any other relevant considerations, whether the care, support and control of the person to be adopted has been provided by the person applying to adopt for a reasonable time during the minority of the person to be adopted.

No service of the application on an agency.

72(3)

An order of adoption of an adult may be made under this Part without service of the application for adoption on an agency and without requiring an investigation and report from the agency and the provisions of subsection 58(4) and clauses 60(4)(b) and (d) and 60(5)(b) and (d) do not apply to the adoption of an adult.

Documents to be filed in support of application.

72(4)

An application for an order of adoption under this section shall be supported by

(a) the consent of the person to be adopted;

(b) the birth certificates of the person to be adopted and of the applicants;

and where applicable

(c) the marriage certificate of married applicants or the prescribed declaration of commitment of the cohabiting couple;

(d) decrees nisi and absolute of divorce; and

(e) the death certificate of the applicant's spouse.

SUBSIDIZED ADOPTION

Provision for subsidy.

73

Where a child to be adopted has a physical or mental condition which will make caring for that child far more expensive than the care usually provided to a child or there are siblings who should be adopted together, the director may authorize the payment of a subsidy to the adopting parent in an amount and under the conditions prescribed in the regulations.

POST-ADOPTION REGISTRY

Information volunteered to be on registry.

74(1)

The director shall maintain a registry and record thereon information made known voluntarily and in writing by adoptive parents, adult adoptees, biological parents and adult siblings of an adoptee who wish to be known to one another and to have personal contact with one another.

Limited contact.

74(2)

Where an adult adoptee wishes to contact biological parents or adult biological siblings and their wishes are not on the registry under subsection (1), the director shall make reasonable efforts to contact biological parents or adult biological siblings who are not adopted to determine their wishes.

Director to convey identifying information.

74(3)

Where any 2 or more of

(a) the adult adoptee;

(b) the adoptive parents who may register at any time when the adoptee is a minor but who may only register with the consent of the adoptee when the adoptee is an adult;

(c) the biological parents of the adoptee;

(d) the biological adult siblings of the adoptee; and

(e) the adult adoptive siblings with the consent of the adult adoptee;

have registered their reciprocal wishes to be known to one another and to have personal contact with one another, the director or an agency with the approval of the director shall

(f) provide identifying information from the record maintained by the director or an agency relating to the granting of an order of adoption or from the registry maintained under subsection (1) to the persons referred to in this subsection; and

(g) facilitate personal contact between those persons after they have received preparation for personal contact through counselling if necessary.

Information after death.

74(4)

Where information is being sought about a deceased person, the director, if in possession of that information, shall so inform the person seeking the information without divulging any identifying information about the deceased unless

(a) the deceased person had indicated to the director that he had no objection concerning the divulging of the information and that fact was recorded in the register; or

(b) the transfer of guardianship was by a court order and not by a voluntary surrender of guardianship agreement.

Divulging of information from register.

74(5)

The register maintained by the director pursuant to subsection

(l) shall not be opened for inspection except by the director or upon the director's written order; but the director may authorize the giving of non-identifying information to adoptive parents, adult adoptees and their adult siblings or the natural parents of adoptees.

Divulging information from agency files.

74(6)

The director or the executive director of the agency may authorize the giving of non-identifying information from agency files to adoptive parents, adult adoptees and their adult siblings or the natural parents of adoptees.

PART VI

CONFIDENTIALITY

Proceedings open to media.

75(1)

All proceedings under Parts III and V 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.

Reporting not to identify persons involved.

75(2)

No press, radio or television report of a proceeding under Parts III and 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).

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 (16) , 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 to a person employed, retained or consulted by the director or an agency or appointed under this Act, in the course of administering or enforcing any provision of this Act or the regulations.

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;

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

(c) a record which relates to the adoption of a child under Part V.

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).

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 schedules.

76(22)

Subject to subsection (14) and subsection 62(1), the director or an agency shall retain, store, and destroy records made under this Act in accordance with schedules prescribed by regulation.

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.

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 where the child is over 12 years of age; 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.

Application for access.

78(1)

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 a child.

Notice.

78(2)

The person applying under subsection (1) shall give 10 days notice of the hearing of the application to

(a) the parents or guardian of the child; and

(b) the child where the child is 12 years of age or more.

Order.

78(3)

A judge, or where all persons served consent, a judge or master may grant the person access at the times and subject to the conditions the judge or master considers appropriate.

Variation.

78(4)

The court may on application vary or terminate an order under subsection (3) and the provisions of this section apply with the necessary changes to the application under this subsection.

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

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.

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 punishable on summary conviction and liable to a fine of not less than $1,000.00 and not more than $10,000.00 or to imprisonment for a term not exceeding 6 months or both.

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 the establishment, designation, regulation, registration and licensing of foster homes, group homes, treatment centres, and other child care facilities;

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

(d) prescribing functions and duties of the director;

(e) prescribing fees under this Act;

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

(g) prescribing rates and amounts to be paid under sections 12, 13 and 14 and the manner in which the rates and amounts are to be determined;

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

(i) prescribing procedures for the maintenance and operation of the registries established under subsection 19(2) or 66(2) or section 74;

(j) prescribing procedures for the placement of children for adoption under section 66;

(k) establishing agencies;

(l) prescribing the conditions and rates under which a subsidy may be granted to an adopting parent;

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

(n) prescribing procedures to be followed by the director under clause 4(1)(f) and subsections 51(2), 66(3) and (8) and 76(17);

(o) respecting access to information contained in the director's or an agency's files;

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

(q) prescribing placement procedures with respect to native children.

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: This Act, except subsections 74(2), 76(1), (2) & (4) to (22), was proclaimed in force March 1, 1986. Subsections 74(2), 76(1), (2) & (4) to (22) were proclaimed in force April 1, 1986. See Manitoba Gazette No. 9 March 1, 1986, page 377.