Should section 64 of the Child, Family and Community Service Act be amended to conform with case-law stipulations on what a director should disclose?

Brief description of the issue

Section 64 of the Child, Family and Community Service Act sets out the general disclosure obligations for child protection proceedings under the Act. The section’s provisions are rather skeletal. As a result, a body of case law has developed, which has interpreted the section and elaborated on its requirements. Should any of these case-law stipulations on disclosure be incorporated directly into section 64?

Discussion of options for reform

The main advantage to amending section 64 to incorporate case-law stipulations on disclosure is that it would help to clarify the law in this regard. This section is potentially deficient, as it requires disclosure in a broad sense and does not necessarily encompass the full scope of what the courts have mandated that a director must disclose in child protection matters. Amending section 64 can help alleviate fair-trial concerns by providing a greater sense of clarity and transparency to one of the main disclosure provisions in the Child, Family and Community Service Act. In addition to helping practitioners on both sides of a child protection matter, parents should know the case they need to meet. This is vital to correct the power imbalance that pits a parent, who is typically relying on legal aid or is self-representing, against the greater resources of the Ministry of Children and Family Development, and who is facing the possibility of permanently losing guardianship of a child.

A disadvantage of amending section 64 to encompass what courts have mandated a director must disclose is that it would alter a status quo that appears to be working. Currently, the courts have worked out how to resolve the deficiency in this section of the Child, Family and Community Service Act. The legislation has provided a general outline with respect to disclosure requirements and the courts have taken it upon themselves to fill in the details, such as the 11 general principles noted in the leading case, providing guidance for practitioners in this area. This could simply be an example of the law working as it should.

The committee’s recommendations for reform

The committee noted that the case law is well-settled. It has helped to fill in some of the details that are lacking in the minimal requirements set out in section 64. That said, it would be difficult to incorporate all of the stipulations found in the case law. Some of the items on the lengthy list set out in the leading case, for example, would be too onerous to comply with in practice. Others would not translate easily into legislation.

The committee favoured a targeted approach to amending section 64. In its view, the section is clearly deficient in some areas. One of these areas relates to the timing of disclosure. In the committee’s view, it would be preferable for the section to clearly spell out that disclosure is required before a case conference. Currently, the section calls for disclosure “if requested”—language that the committee viewed as problematic. It sets up a rote requirement for experienced lawyers. But it may also prove to be a stumbling block for self-represented litigants, who may not be aware of the need to make a request.

There were other aspects of section 64 that the committee favoured clarifying. In the committee’s view, the section should clearly spell out that all relevant documents must be disclosed, even those that are adverse to the director’s position. Even though child protection proceedings are semi-adversarial in nature, the committee was of the view that the director should not withhold such documents and that the legislation should expressly set out this requirement.

The committee also decided that the reference in subsection (1) (c) to “the party’s intended evidence” could be clearer and more prescriptive. The committee favoured replacing this provision with a requirement to disclose all documents to which a party intends to refer at trial. This language should be familiar to most practitioners in this area because it is used in the Supreme Court Family Rules.

There was strong support for the committee’s tentative recommendations among consultation respondents. One respondent did urge the committee to go a step further and recommend that section 64 expressly provide that the onus is on the director to disclose all material that comes within the scope of the section (except for material covered by solicitor-client privilege) or to prove that the material should not be disclosed. The committee accepted this proposal, and decided to make a further recommendation on this point. In the committee’s view, this recommendation will clarify the law and help to ensure that it is applied consistently across the province.

The committee recommends:

Section 64 of the Child, Family and Community Service Act should be amended by striking out the words “If requested” and substituting “Prior to a case conference under rule 2 of the Provincial Court (Child, Family and Community Service Act) Rules, or at least 30 days prior to a contested hearing, except when a hearing is scheduled within these 30 days, then as soon as practicable.”

Section 64 (1) (c) of the Child, Family and Community Service Act should be repealed and the following substituted: “all documents to which the party intends to refer to at trial.”

Section 64 of the Child, Family and Community Service Act should be amended to add a new subsection (1.1), which should read as follows: “The director must disclose to the other parties all documents that are or have been in the director’s possession or control and that could be used by any party at trial to prove or disprove a material fact.”

For more information, visit the Modernizing the Child, Family and Community Service Act Project webpage or read the Report on Modernizing the Child, Family and Community Service Act.

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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).”

For more information, visit the Modernizing the Child, Family and Community Service Act Project webpage or read the Report on Modernizing the Child, Family and Community Service Act.

The post A closer look at the Report on Modernizing the Child, Family and Community Service Act: Consent orders first appeared on British Columbia Law Institute.

Should the ground for protection relating to emotional harm of a child be expanded from circumstances in which a child is emotionally harmed to embrace circumstances in which a child has been or is likely to be emotionally harmed?

Brief description of the issue

The Child, Family and Community Service Act’s ground for protection relating to emotional harm of a child only applies if the child is emotionally harmed. That is, its focus is only on past or ongoing current events, which place the child at need of protection. In contrast, four other grounds for protection apply to past, current, and future events, by virtue of language stating, if the child has been, or is likely to be. Should the ground for protection for emotional harm be amended to adopt similar language, which would expand its reach to embrace events that may occur in the future?

Discussion of options for reform

There are essentially two options to consider for this issue. The first would be to propose an amendment to section 13 (1) (e), replacing the word is with has been, or is likely to be. This would make paragraph (e) consistent with paragraphs (a) to (d) and would broaden the reach of the provision to incorporate cases in which emotional harm of the child is a likely future event. Extending the reach of section 13 (1) (e) could be seen as an amendment that is in harmony with the broader purposes of section 13 and the Act as a whole, which have been described as being “to provide for the protection of every child who needs protection.” This proposed change would also bring paragraph (e) into line with the preceding four paragraphs of the subsection, promoting consistency of language within the provision.

The other option would be to endorse the status quo. Retaining the current provision could be appropriate if it’s seen to be functioning well. It may also be seen as a better option than extending the ground for protection to embrace the potential of emotional harm to a child in the future. This extension could make decision-making more difficult, by focusing attention on forecasting possible developments in the future. It could also lead to more children being taken into care. There has been academic criticism of the existing provisions that contain the words likely to be.

The committee’s recommendation for reform

In the consultation paper, the committee tentatively recommended making the ground for protection relating to emotional harm consistent with the four grounds for protection that precede it. This would mean replacing the word is with the formulation used in the other four grounds: has been, or is likely to be.

Although the committee was concerned that this proposal would broaden the ground for protection relating to emotional harm, which could result in more children being taken into care, the committee initially felt that there are ways to mitigate this concern. In particular, there is the existing interpretive provision in section 13, which limits the reach of emotional harm to only those cases that produce specific effects in children (“anxiety, depression, withdrawal, or self-destructive or aggressive behaviour”).

Consultation respondents were divided in their responses to this proposal. While many agreed with the committee, a slight majority disagreed. The respondents who disagreed with the committee’s tentative recommendation tended to cite the concern mentioned in the previous paragraph. Revising this ground for protection, even if the revision is only intended to harmonize its language with that used in the other grounds for protection, poses too great a risk that the legislative change will in practice result in more children being taken into care.

These consultation responses gave the committee pause. It reconsidered this issue for reform in light of them. While committee members have some sympathy with the goal of making the language in section 13 (1) consistent, the committee ultimately decided that the gains from this reform would be outweighed by the risks it could create regarding taking more children into care.

The committee recommends:

Section 13 (1) (e) of the Child, Family and Community Service Act should not be amended by striking out “is” and replacing it with “has been, or is likely to be.”

For more information, visit the Modernizing the Child, Family and Community Service Act Project webpage or read the Report on Modernizing the Child, Family and Community Service Act.

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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.”

For more information, visit the Modernizing the Child, Family and Community Service Act Project webpage or read the Report on Modernizing the Child, Family and Community Service Act.

The post A closer look at the Report on Modernizing the Child, Family and Community Service Act: Promoting contact first appeared on British Columbia Law Institute.