A closer look at the Report on Modernizing the Child, Family and Community Service Act: Consent orders
14 July 2021
By Kevin Zakreski
This post is part of a series highlighting recommendations in the Report on Modernizing the Child, Family and Community Service Act. For other posts in the series click here.
Should section 60 of the Child, Family and Community Service Act be amended to enable the court to dispense with the requirement that consent to an order under the section must be in writing?
Brief description of the issue
This issue for reform concerns two points about section 60. The court has some discretion under the section, but it only extends so far as dispensing with the consent itself. In some cases, a practical issue may arise in connection with one of the safeguards that the section has erected around the written-consent requirement. This safeguard is the written requirement. Sometimes, the people required to consent may be present before the court and may offer consent to an order, but their written consent isn’t recorded. Should the court’s powers be expanded to encompass the discretion to dispense with the requirement that consent under section 60 must be in writing?
Discussion of options for reform
The first option to consider is proposing an amendment to the Act giving the court the discretion to dispense with the written requirement. This would directly address the practical concern. It would also build in some flexibility to the section.
Such an amendment wouldn’t be out of keeping with the legislative history of section 60, which has been amended many times since it was enacted in 1996. An early comment (PDF) on section 60 described it as a “provision [that] can be the most helpful and the most frustrating aspect of the case conference.” Many of the amendments to section 60 have involved either extending a helpful feature or addressing a frustration that had arisen. This proposed amendment would be in line with this aspect of the section’s development.
Another option to consider would be to give the court discretion to dispense with the written requirement, but to make that discretion depend on the satisfaction of legislative conditions or to render it subject to guidelines. This approach could be seen as being a more cautious, balanced reform. But the danger is that such conditions or guidelines could make the section more complex and could create their own practical problems.
Finally, it’s worth considering whether to endorse remaining with the status quo. It could be argued that the written requirement is an integral safeguard for a provision that was meant to provide an out-of-court mechanism for settling issues.
The committee’s recommendation for reform
Even though this issue is small in scale, the committee decided that it should be addressed by legislative reform. The committee was concerned about inconsistencies that have appeared in the case law that considers and applies section 60. In particular, a hard line toward the written requirement has appeared in some cases. In these cases, the written requirement is insisted upon, even when it appears to frustrate the broader goal of section 60 to streamline child protection proceedings. In other cases, the courts have adopted a view that is more consistent with the position in most other areas of civil procedure, which would allow the court to make a consent order if the parties are before the court and all consent, even if the parties themselves don’t provide their written consent.
Section 60 does provide that a court may dispense with a person’s consent, if it is in the child’s best interests to do so. But some courts have taken a strict approach to section 60. This may cause delays, as the matter could be adjourned to allow time to obtain the written consent. And, since it’s clearly not possible to force a person to consent to an order, proceeding under section 60 would have to be abandoned in the absence of written consent from one of the people listed.
In the committee’s view, section 60 was never intended as a means of circumscribing the court’s discretion to make a consent order. Treating it in this way, by strictly applying the written requirement, has created delays and frustration in practice. It would be helpful to clarify that the court does have the discretion to make a consent order even in the absence of written consent. Without such a clarifying amendment to the section, it will be always be possible for courts to point to the written requirement and insist on strict compliance with it.
A solid majority of consultation respondents agreed with the committee’s proposal on this issue.
The committee recommends:
Section 60 (3) of the Child, Family and Community Service Act should be amended by adding “, including the requirement that consent be in writing,” after “dispense with any consent under subsections (1) and (6).”