Child Protection

State intervention has potentially profound effects on both parent and child. The best interests, protection and well-being of the child, as well as the primacy of the family, underlie child protection laws and the Convention on the Rights of the Child (CRC):

as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children . . . [that] . . . should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.

CRC Preamble

The State intervenes in child protection matters when the level of care parents provide to children falls below minimum standards. Child protection laws, regulations and practices that provide for this intervention, particularly when the child is removed from the home, must conform with the child’s Charter rights and, presumptively, the child’s rights under the CRC. Where there are gaps in domestic legislation, the CRC may assist. For example, where legislation is silent on reviewing a child’s placement, CRC Article 25 may assist so the placement order includes a review at a future date. See more in the Fundamentals and Charter sections of this Toolkit for the underlying rationale.

When a child is in need of protection or certain needs, as defined by provincial and territorial legislation, are not being met by their family, then the child’s rights and best interests may require a removal from the home. In rare instances, troubled parents may be removed from the home instead of the child. For example, in 2015, a Manitoba Band Council passed such a resolution. This was seen as essential to maintaining the children’s stability, allowing them to remain in the family home under the supervision of an adult able to care for them.

Although domestic legislation and the CRC recognize that the best interests of the child may necessitate separation from parents where there is abuse, neglect or maltreatment, States Parties are encouraged to respect the right of the child to maintain personal relations and direct contact with parents on a regular basis, except if it is contrary to the best interests of the child (Article 9).

As the overarching consideration in child protection legislation across Canada, the ‘best interests of the child’ is in accordance with Article 3 of the CRC which requires that it be a ‘a primary consideration’ in all actions concerning children. However, there is a lack of consistency in applying this principle; for example, in the various tests for access to a child who has been made a permanent ward of the State. A child’s participation and the opportunity to be heard in child protection matters also varies from jurisdiction to jurisdiction, requiring vigilance in advocacy and decision-making, and in some cases, reform.

International Law

  • CRC Articles, 2, 3, 5, 6, 8, 9, 12,16 and 18-39
  • Guiding Principles:
    • Article 2 (non-discrimination)
    • Article 3 (best interests as a primary consideration)
    • Article 6 (right to life, survival and development)
    • Article 12 (right of child to express views freely and to have due weight given to those views)
  • Article 5 (responsibility of parents to provide direction/guidance to the child re his/her rights under the CRC consistent with the child’s evolving capacities)
  • Article 8 (right to preserve identity, including nationality, name and family relations)
  • Article 9 (non-separation from parents / right to maintain contact with parents, except if contrary to best interests)
  • Article 16 (child’s right to be free from arbitrary or unlawful interference with his or her privacy or family and the right to the protection of the law against such interference)
  • Article 18 (primary responsibility of parents and legal guardians for the upbringing and development of the child, guided by the best interests of child, with State Parties having a corresponding duty to provide appropriate assistance to parents in the performance of this goal)
  • Article 19 (right of child to be free from all forms of violence and State parties’ responsibility to take appropriate protective measures)
  • Article 20 (special protection/assistance by the state when child deprived of family environment)
  • Article 21 (safeguards re inter-country adoption)
  • Article 22 (appropriate protection for refugee child, whether accompanied or unaccompanied)
  • Article 23 (special care and assistance for disabled child)
  • Article 24 (right to highest attainable standard of health and the need for access to education and support in regard to basic child health and nutrition, including preventative health care and guidance for parents)
  • Article 25 (periodic right of review re placement for care, protection or treatment of physical or mental health)
  • Article 27 (right to adequate standard of living, including responsibility of State Parties to take appropriate measures to assist parents in securing the conditions of living necessary for the child’s development by providing material assistance and support programmes, particularly with regard to nutrition, clothing and housing)
  • Article 28 (right to education)
  • Article 29 (education directed to development of child’s full potential, including respect for cultural identity, language and values)
  • Article 30 (right to culture, religion and language for minority and indigenous children)
  • Article 31 (right to rest, leisure, play and recreational activities)
  • Article 33 (protection from the illicit use of narcotic drugs and psychotropic substances)
  • Article 34 (right to be protected from sexual exploitation and abuse)
  • Article 35 (measures to protect against abduction and trafficking)
  • Article 36 (protection against all other forms of exploitation)
  • Article 37 (protection against torture or other cruel, inhuman or degrading treatment or punishment and deprivation of liberty)
  • Article 39 (measures to promote physical and psychological recovery of child victims)

Other International Instruments

Interpretive Sources

Laws of Indigenous Peoples

Parents’ counsel can actively seek the involvement of a child’s Aboriginal community in CFCSA matters. Aboriginal communities may be able to provide supports to help parents heal. If parents cannot restore their ability to safely parent, a child’s Aboriginal community can identify permanency options that can keep parents involved in their child’s life and ensure that the children maintain or develop connections to their Aboriginal culture and identity.

Ardith Walkem, Wrapping Our Ways Around Them:

Aboriginal Communities and the Child, Family and Community Service Act Guidebook,
ShchEma-mee.tkt Project (Nlaka’pamux Nation Tribal Council), p. 7

Consider traditional protocols, laws and legal orders that apply to cases involving Indigenous children, in which case Indigenous communities can provide guidance. See also Indigenous Children section of the Toolkit.

Also consider laws made by Indigenous peoples that apply to your case. For example:

Canadian Law

The quality of decision-making about a child under Canadian law is enhanced by adhering to CRC Article 12 which gives children: “who have to live with the decisions made by others, the ability to share their concerns about the impact of those decisions on their lives” (A.C. v. Manitoba (Director of Child and Family Services, [2009] 2 S.C.R. 181, 2009 SCC 30, at para. 92; and Children’s Aid Society of Toronto v. E.U., [2014] O.J. No. 2939 (O.C.J.), at para. 264).

Federal Law

  • Charter of Rights and Freedoms
  • The Supreme Court of Canada has recognized that child protection proceedings engage not only a parent, but the child’s s. 7 interests under the Charter. Interference in the parent-child relationship may only be justified if it is in accordance with the principles of fundamental justice.

Provincial and Territorial Statutes

Most child protection cases in Canada occur under these provincial or territorial laws:

Case Law

New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47 - Do indigent parents have a constitutional right to state-funded counsel when a government seeks to suspend the custody of their children? S. 7 of Charter applies, and the state must ensure that the hearing is fair. Depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may need to provide state-funded counsel to avoid an unacceptable risk of error in determining the child’s best interests. State removal of a child from parental custody engages both the parent’s and the child’s s. 7 rights to security of the person.

Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, [2000] S.C.J. No. 48 - Are apprehensions in non-emergency situations without prior judicial authorization constitutionally sound? Interim removals do not require prior judicial authorization where harm or risk of serious harm to the child is possible, but given the seriousness of the interests at stake, disrupting the parent-child relationship should be minimized where possible and the principles of fundamental justice require a fair and prompt post-apprehension hearing. A fair process in child protection must reflect that children’s lives and health may need to take priority where protecting those interests diverges from parents’ rights to freedom from state intervention.

A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, [2009] S.C.J. No. 30 – Is the Director of Child and Family Services authorized to order unwanted medical treatment for an adolescent under Manitoba’s Child and Family Services Act? While infringing the adolescent’s liberty and security of the person, the decision was in accordance with principles of fundamental justice. The Court found that ‘best interests’ under Manitoba’s child welfare legislation operates as a sliding scale of scrutiny, with the child's views becoming increasingly determinative depending on his or her maturity, and endorsed an interpretation of the ‘best interests of the child’ in a manner consistent with the CRC.

First Nations Child and Family Caring Society of Canada v. Canada (Attorney General), 2016 CHRT 2 - Does the Department of Indian and Northern Affairs Canada (now Indigenous Affairs) provide inequitable levels of child welfare funding to First Nations children living on reserve, contrary to s. 5 of the Canadian Human Rights Act? Yes. The Tribunal concluded that First Nations children and families living on reserve and in the Yukon are subject to discrimination in the provision of child and family services by the Canadian Government. Specifically, they are adversely impacted by the provision of services and are sometimes denied services because of the Government’s involvement. Race and/or national or ethnic origin are factors in those adverse impacts and denials.

Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603;  2015 ONCJ 229 – Can a hospital make determinations for an 11-year-old Aboriginal child when the child’s mother decides to discontinue chemotherapy? The Court agreed with the hospital that the child lacked capacity to make such a life-and-death decision. The child’s mother, who was the substitute decision-maker and was found to be a loving parent, wished to pursue alternative traditional treatment. The hospital’s application was dismissed, as the Court found that s. 35 of the Constitution protects the mother’s right to treat the child using traditional Aboriginal medicine. However, “recognition and implementation of the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount.”

Brown v. Canada (Attorney General), 2017 ONSC 251 - In this proceeding initiated on behalf of survivors of the “Sixties Scoop” in Ontario, the Court found that there was a certifiable class action related to the following question: “In Ontario, between December 1, 1965 and December 31, 1984, when an Aboriginal child was placed in the care of non-Aboriginal foster or adoptive parents who did not raise the child in accordance with the child’s Aboriginal customs, traditions, and practices, did the federal Crown have and breach a fiduciary or common law duty of care to take reasonable steps to prevent the aboriginal child from losing his or her Aboriginal identity?” After eight years of protracted procedural litigation, the Court found in favour of the class Plaintiffs, determining that Canada is liable in law for breaching a common law duty of care to take steps to prevent Indigenous children who were placed in the care of non-Indigenous foster or adoptive parents from losing their Indigenous identity.  Similar class actions in relation to the Sixties Scoop have been initiated in British Columbia, Alberta, Saskatchewan and Manitoba.

J.T. v. Newfoundland and Labrador (Child, Youth and Family Services), 2015 NLCA 55 – Does legislation preventing conditions (ie. access) to a continuous custody order infringe Charter s. 7? The trial judge held that a continuous custody order was the only option given ongoing risks to the children because of the mother’s inability to leave an abusive relationship and stop substance misuse. The Children and Youth Care and Protection Act precluded access with conditions although access was appropriate in the circumstances. On appeal, the provision was found to breach s. 7 of the Charter and could not be saved by s. 1, as it precluded access even where in the child's best interests. Several CRC articles were also considered. Denying access may engage both a parent and child’s s. 7 Charter rights.

Verdict of Coroner’s Jury: Inquest into the Death of Katelynn Angel Sampson, 2016 CanLII 60525 (ON OCCO)

For further case excerpts, including significant provincial and territorial decisions, and child rights analysis, see Child Protection Backgrounder by Caterina Tempesta and Jennifer Shaften and other resources below.

Special Considerations

  • Balancing seemingly conflicting rights and interests is common in child protection matters: children have both rights to be raised within and by their natural families, and to state protection when their level of care is below minimum standards
  • Promoting children’s participatory rights under CRC Article 12 is essential as there is no statutory guarantee that the child will be heard in every case, and even though a child’s views are to be considered as a factor in a best interests analysis, the processes for hearing the child’s views and putting them before the court vary
  • Contextualize the CRC within domestic law to determine if a statute complies with the CRC. Even if it does, consider whether courts comply in promoting and protecting the importance of the child’s place within the family, the child’s right to know his or her family, and the right not to be arbitrarily separated from that family according to the CRC
  • Consider the cultural background of a child to appreciate how cultural identity may be affected by separation from family and community
  • Pay special attention to the rights and interests of Indigenous and minority children who are overrepresented within the child protection system:
    • Non-discrimination and a child’s right to culture, religion and language are found in CRC Articles 2 and 30, and in other international instruments (e.g. UN Declaration on the Rights of Indigenous Peoples)
    • Some child protection legislation provides that services provided to Indigenous children and their families must recognize their culture, heritage and traditions and the concept of the extended family
    • Given the legacy of colonialism, residential schools and the Sixties Scoop, the need for culturally appropriate services and recognition of the Indigenous child’s place within the child’s community are the lens for viewing the rights of the Indigenous child
  • Be aware of the implications of a child’s age:
    • The CRC considers those under 18 to be a ‘child’, unless under the applicable law majority is attained earlier
    • Regional variations impact the availability and provision of child protection services. In Ontario, a child must be under 16 at the time of a child protection agency’s initial involvement (s. 37(1), Child and Family Services Act, R.S.O. 1990, c. C. 11); in British Columbia, protective services may be provided up to the age of 19 (s. 1, Child, Family and Community Service Act, [RSBC] Ch. 46)
    • Age distinctions are relevant for unaccompanied minors, whose ability to access the services and care of a child welfare authority will be dictated by the child's port of entry where they entered Canada

Practice Essentials

  • Think about child rights generally and your individual child-client rights specifically
  • Promote and protect your child-client’s rights when the state intervenes to protect them from their family
  • Recognize an ‘interest’ as compared to a ‘right’, especially when they diverge
  • Know the CRC in the child protection context and refer to relevant Articles in your oral and written submissions: for example, in addition to the right to be free from all forms of violence, children who are removed from the care of their families, have a right to maintain personal relations and direct contact with both parents on a regular basis except as contrary to the child’s best interests; the right to be heard; the right to enjoy their own culture, religion and language; the right to receive an education that corresponds to a child’s aptitudes and abilities; the right to medical and dental care (health); and the right to participate in recreational and athletic activities that are appropriate for the child’s aptitudes and interests (see also International Law section above, at 4.3.1)
  • Review the General Comments from CRC (see International Law, Interpretive Sources above and Overarching Framework)
  • Consider whether s. 7 Charter rights are engaged when a child protection authority:
  • Removes the child from a parent’s care
  • Has terminated or severed access to a parent or other family member
  • Acts against principles of fundamental justice (ie. lack of a timely hearing; lack of legal representation, etc.)
  • Consider independent legal representation for the child – does the governing child welfare statute provide for this? If not, can an argument for state-funded legal representation be made?
  • Think about other means of communicating a child’s views to the court, in accordance with his or her age and maturity (e.g. ‘Views of the Child’ report; assessment; evidence of social worker; judicial interview; child’s evidence)
  • Explore the child’s views about possible living arrangements, including alternatives to state care (kinship or community plans), and the people with whom he or she wants to maintain contact if removed from the family home. Ensure those views are before the court
  • Advise the child of the viability of any proposed plans and visiting arrangements and explore the child’s views regarding alternate plans if it is unlikely that a court will endorse the child’s position. Also explore any terms and conditions that may mitigate risk (e.g. safety plans, supervision of access by a third party, counselling or other programming for the parent and/or child)
  • Canvass the child’s ability and willingness to receive notice and/or be present at the child protection hearing (for example see s. 39(4),(5) and (6) of Ontario’s Child and Family Services Act, R.S.O. 1990, c. C.11)
  • Explain proceedings in a manner that the child understands – this may include explaining court documents or assessments commensurate with the child’s age, maturity and cognitive development
  • Consider the child’s right to participate in developing plans of care or service plans
  • Maintain regular contact with the child so any issues related to placement, contact with significant persons, access to needed services (ie. counselling), appropriate educational programs and participation in recreational or other activities, are addressed in a timely way
  • Canvass the child’s right to participate in developing a permanency plan if unable to return to the care of their parents or previous caregivers, including plans for permanent state care, adoption, customary care, kinship care, other custodial arrangements or transitions to independent living
  • For youth transitioning to adulthood and/or independent living, consider on-going supports through child protection agencies (financial support, housing, educational subsidies, medical benefits)
  • Monitor timelines and their impact on the child, including statutorily-imposed timelines for various steps in the court process, particularly those relating to the need for permanency (i.e. limitations on temporary in-care orders), the adjournment of court dates and the impact on the child of delays in decision-making
  • Consider less-intrusive options (like, voluntary services or preventative or community services rather than residential care, the possibility of ADR processes rather than court proceedings, etc)
  • Consider the child’s privacy in regard to personal and service information, and participation in decisions about access to and sharing of that information
  • Tell the child about any complaint or review mechanisms regarding services provided by a child protection agency, including to the services of an advocate or ombudsman
  • Consider the impact of intersecting proceedings/issues (YCJA, family law, immigration status issues) and how an order made in the child protection context, or vice versa, may impact the child’s rights – liaise and/or consult with criminal law and/or immigration counsel

For Indigenous Children

  • See Indigenous Children for an overview
  • Be aware of and consider the impact of colonialism, residential schools and the Sixties Scoop on Indigenous families, the effects of intergenerational trauma and the consequent relationship with child welfare systems
  • Indigenous persons should be entitled to provide their own child and family services, wherever possible, and all services to Indigenous children should recognize their culture, heritage and traditions and the concept of the extended family
  • the number of Delegated First Nations Agencies (DFNA) have increased over the years, to provide more culturally appropriate services to Aboriginal children in care. However, consider funding inequalities facing DFNA, where staff often have higher caseloads, work more hours and have fewer resources than counterparts (Fact Sheet – Child Welfare, October 2013, Assembly of First Nations). In Alberta, children are more likely to die in a DFNA home than anywhere else in the foster care system (Deaths of Alberta Children in Care No Fluke of Statistics, Darcy Henton, Calgary Herald, January 8, 2014)
  • Consult with (and ensure that child protection agencies consult with) the child’s band and/or community about culturally appropriate services and placements
  • Consider the preferred options of customary and kinship care to residential placement in the upbringing of First Nations, Metis, Inuit and urban Aboriginal children & youth
  • If a child is placed outside of his or her community, ensure that child protection agencies work to ensure that cultural and community ties are available for the child
  • Consider reports that take into account Gladue factors in the child protection context

Resources

Background Documents

Precedents - Pleadings, Facta

  • A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, [2009] S.C.J. No 30 (Factum of the Intervener, Justice for Children and Youth) online.
  • Catholic Children’s Aid Society of Toronto v. S.S.B., [2013] O.J. No. 6117, 2013 ONSC 7087 (Notice of Constitutional Question of the Children’s Lawyer for Ontario).
  • B.M and M.M. v. Dilico Anishinabek Family Care, Child and Family Services Review Board, Court File No. 15-0027 (Notice of Constitutional Question of the Children’s Lawyer for Ontario).
  • Factum of the Children’s Lawyer for Ontario in Children’s Lawyer v. N.N.D., [2014] O.J. No. 6396 (O.C.J.)

Publications

Reports

Guides

Social Science Articles