Focus On: Family Law/Trusts & Estates
“With any legislation, there is room for improvement,” says Katherine Kavassalis, deputy legal director, personal rights, Office of the Children’s Lawyer. “This is a step in the right direction.
A lot of thought has gone into making the new legislation child focused.”
The preamble of the bill specifically emphasizes that “children are individuals with rights to be respected and voices to be heard.”
It also commits the government to provide services that are “child-centred” and “build on a family’s strengths, respect their diversity and the principle of inclusion, (and) help maintain connections to their communities.”
The OCL has been involved in the consultation process that preceded the drafting of the bill and has carried out a provision-by-provision comparison of the old statute and the new.
“We are working hard to ensure it’s one of the best statutes,” says Kavassalis.
The private bar is also scrutinizing the bill and preparing its thoughts and submissions.
“It’s an extremely long act and it’s going through very fast,” observes Jessica Gagné, a Toronto family and child protection lawyer.
“It’s important that practitioners take the time to read about it.”
John Schuman, a partner at Devry Smith Frank LLP, says he is pleased with the increased emphasis on the inclusion of children’s views and preferences.
“There have been obvious cases where kids should have been listened to and weren’t, which resulted in really bad things happening, even death. The preamble says that the judge must consider their views and preferences and decide what weight to give them,” he says.
Before, Schuman says, children’s views were included if they could be ascertained.
“With this bill, you can’t just brush it off and say you can’t determine their views or that they are too young to even ask,” he says. “You have to hear them and then decide if their age or development makes it unhelpful.”
Kavassalis says she is pleased with the emphasis on supporting the integrity of the family.
“Similar wording has been in the statute for decades,” she says. “It’s not a new idea, but this bill is moving it up in the importance of things.”
Gagné would like to see this concept given more emphasis in the work of the children’s aid societies.
“I personally feel that certain societies are much quicker to go to court without any attempt to support the parents,” she says. “I often think, ‘Why was this option one?’ It’s very common and I am slightly pessimistic that that will change.”
The new act also has a renewed emphasis on the treatment of indigenous children, who now include Métis children. The act explicitly states that the provincial government “is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.”
Schuman notes that, in this bill, “religion is less important, but being indigenous is not any less important.”
“The indigenous population and minorities are overrepresented in child protection matters,” he says.
“It’s good to have it addressed so that First Nations have more power to get involved, especially with respect to adoptions and openness. We want to ensure a child has access to [their] heritage.”
Gagné is pleased that the exclusion of Métis children has finally been corrected. However, she is concerned about the definition of Métis and believes it requires a tweak.
“This definition requires you to identify as Métis and prove a connection to Métis community registered under the Act, unlike the B.C. legislation, which only requires that you identify as such,” she says.
“Is the government going to make a list of communities? Will it designate the whole of Toronto as a Métis community? It’s an additional barrier associated with the definition, another hurdle.”
Gagné also wishes to draw attention to the fundamental concept of being “at risk,” as the act defines it.
“My biggest disappointment regarding the new act is that it does not change s. 37(2) of the current act, which provides that a child is in need of protection where there is ‘a risk’ of physical or emotional harm,” she says. “In my experience, these particular grounds are being claimed by the CAS in about 90 per cent of my cases because they are the easiest to establish. The standard is way too low and way too amorphous.”
Gagné says that, in her view, all children and young adults are at risk of physical or emotional harm at all times.
“It used to be that there had to be a ‘substantial risk’ and then they got rid of ‘substantial,’” she says. “The new act doesn’t add a modification to the word ‘risk,’ and it’s going to continue to result in children being apprehended, in my view, unjustifiably.”
Kavassalis identifies the OCL’s biggest goal as the revamping of the access provisions.
“I don’t think the present provisions that apply once a child is a crown ward are child focused,” she says. “They make it difficult for sibling connections to be maintained. You have to show that it’s beneficial to maintain contact and that it won’t impair adoption. It’s hard for a child to get that evidence.”
She stresses the importance of children, at the very least, maintaining sibling relationships.
“If they are going to lose some relationships, they shouldn’t lose all of them,” she says. “We want more of a best interests test.”
Schuman applauds the extension of protection to older children.
“There is an issue with the current act so that 16- or 17-year-olds can basically be left on the street,” he says. The OCL is already taking steps to prepare for this change.
“Representing 16- and 17-year-olds for the first time in child protection proceedings is very different to representing young children,” advises Kavassalis. “I’m hoping that ADR will be used primarily, as opposed to the court process. At that age, they have to be part of the decision-making. ”
In the broader picture of Children’s Aid Society oversight and organization, lawyers are pleased to see additional oversight but eager to see more movement on amalgamation of societies.
“This doesn’t quite go far enough,” says Gagné.
Schuman says his biggest concern is that even if the act gets everything right, it may fail through lack of resources. Kavassalis believes the OCL is already getting the resources it needs to meet its obligations.
“That’s not just financial resources but human resources — lawyers to do the work and lawyers trained to do it properly, especially with regard to indigenous families. It’s important that our lawyers put in the effort to be well prepared,” she says.