A closer look at the Report on Modernizing the Child, Family and Community Service Act: Promoting contact
June 16, 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 the Child, Family and Community Service Act be amended to adopt new provisions promoting contact between children and their parents, siblings, and other extended family?
Brief description of the issue
There are provisions in the Child, Family and Community Service Act that relate to orders for a child’s access to a parent in specific circumstances. Should this concept of access be expanded to cover other circumstances and to acknowledge contact with siblings and other extended family members?
Discussion of options for reform
This issue is primarily a yes-or-no choice between proposing to add new provisions on contact to the Child, Family and Community Service Act or to retain the status quo.
Enhancing a child’s relationships with parents and other family members is generally seen to be in the best interests of children. It supports some of the guiding principles of the Act. Promoting contact may be seen as “a positive force in a child’s life and in the development of that child to a mature adult.”
Even though the benefits of contact are acknowledged in the Child, Family and Community Service Act, there may be gaps in the Act’s approach to contact. One gap may relate to the period between a child being removed and an interim custody order being made. Another gap may be that the existing provisions only mention parents, leaving siblings and other extended family members outside their scope. Amendments to the Act can directly address these concerns.
On the other hand, it could be argued that the provisions currently in the Act adequately deal with the issue of contact. These provisions are more focused in nature. This could be seen as a better approach. Expanding the Act’s reach on this issue could create additional costs, administrative issues, and court proceedings.
The committee’s recommendations for reform
The committee decided that there are gaps in the Child, Family and Community Service Act that could be filled by new provisions promoting contact. The committee pointed to two areas of concern.
The first area relates to the period after a child is removed but before an interim order is made under section 55. Even though the committee understands that, in practice, the director often does try to establish access during this period, the committee felt it was significant that the legislation doesn’t address access during the period. In the absence of legislation, it was felt that practices varied throughout the province. In the committee’s view, it was important to establish a clear principle in the legislation. The committee pointed to section 32, which deals with care of a child if a child has been removed, as a logical place for a new provision.
The second area relates to the list of the rights of children in care, which is found in section 70. In the committee’s view, it would be beneficial to establish that children have a right to contact with parents, siblings, and other extended family members, as one of a list of rights that children in care have. In its consideration of this issue, the committee noted that section 70 doesn’t contain an enforcement mechanism for the rights listed in subsection (1). In the committee’s view, this point didn’t attenuate the value of establishing this principle among the rights set out in this section. Section 70 (1) may primarily have an educational value. That said, the proposed amendment to section 32 would carry consequences in the event that its provisions on contact were not met, so the right set out in section 70 (1) is not simply a paper tiger.
The committee also favoured covering siblings and other extended family members in its proposals. The committee noted that, in some cases, a parent may have been absent throughout a child’s life. A relationship with another family member might be more important to the child. The legislation should recognize the importance of such relationships.
The vast majority of consultation respondents agreed with the committee’s proposals on this issue.
The committee recommends:
Section 32 of the Child, Family and Community Service Act should be amended by adding a new subsection that provides “A director must use best efforts to arrange parenting time or contact with the child for parents, siblings, or other extended family, prior to an order being made under section 55 for parenting time or contact, unless the director is satisfied that parenting time or contact is not consistent with the child’s safety or well-being.”
Section 70 (1) of the Child, Family and Community Service Act should be amended by adding a new paragraph that provides “to contact with parents, siblings, and other extended family, except where such contact could compromise the child’s safety and well-being, and subject to any order of the court under this Act.”