Chapter 7 CHILD AND FAMILY SERVICES

Although the law gives parents, teachers, and other adults a lot of power over young people, that power has its legal limits. If they cross a certain line, the state has a duty to step in and give you protection. While not everyone agrees on how much power the law should have to intervene in family situations, or on when it should do so and in what way, if government authorities find out that you are not being taken care of properly or are being treated very harshly or abused in some way, they will step in and try to help you.

Like most matters that relate to family law, child welfare (also called child protection) falls under provincial or territorial jurisdiction. Each province or territory has its own child welfare system, so the laws and procedures differ from one place to another. In addition, many Indigenous communities provide child welfare services, although, as a general rule, these services must operate in accordance with provincial or territorial legislation. Traditionally, this applied even if those services were based upon a First Nations reserve. This is changing, however. In 2019, in response to the Truth and Reconciliation Commission’s Calls to Action, the federal government passed Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019, c 24. In force since 1 January 2020, it aims to hand over authority for child welfare services to Indigenous governments.¹ In 2021, the Cowessess First Nation of Saskatchewan became the first Indigenous community to make use of the new law and establish an independent child welfare system. We should note that, as of this writing, the act is under appeal with the Supreme Court of Canada, because the Québec government believes that it infringes provincial jurisdiction.

In Canada, child welfare services are provided by government agencies, the names of which vary from one province or territory to another. In Ontario, for example, child welfare is the responsibility of the Ontario Association of Children’s Aid Societies, while other jurisdictions use names like “Child Protection Services” or “Child and Family Services” (see the list in appendix C). These agencies employ social workers who are trained in helping children and families cope with difficult problems, including family violence. For the sake of convenience, we will refer to all these various agencies as “social services,” and, as an example of legislation, we will use the law of Nova Scotia, where child welfare falls under the Children and Family Services Act.

When do social services step in?

The law in Canada mainly cares about protecting young people from two kinds of behaviour, child abuse and child neglect. Precisely what qualifies as abuse or neglect is a matter of definition, and what some people might consider abusive may not necessarily be what the law views as abusive. As a general rule, though, the law protects youth from the following:

• Physical abuse: This occurs when a parent, teacher, or a person who is taking care of a child inflicts (or threatens to inflict) violence on the child, including beating, kicking, and punching the child or using a weapon or dangerous object against him or her, especially if the physical force leaves cuts or bruises or causes more serious injury. As we explained in chapter 3, however, guardians—although not other people—still have the right to inflict mild corporal punishment on their children, within rules laid down by the Supreme Court.

• Emotional abuse: This covers a wide range of behaviour that undermines a child’s right to feel respected and loved. If parents or caregivers constantly say unkind things to a child or threaten to give the child away to someone else, this is emotional abuse. So is ignoring or not showing any interest in a child, treating a child in a degrading or humiliating way, placing highly unreasonable expectations on a child, or doing any other thing that creates an unhealthy psychological environment for a growing child and thus hinders his or her normal development.

• Sexual abuse: This refers to any sexual contact with a child by a parent, teacher, or other person in a position of trust or authority toward the child. This includes not only having sex with a child but also touching the child’s body in a sexual way, displaying one’s private body parts for a sexual reason, showing a child pornographic images, or using the child to create pornography.

• Neglect: A parent or other caregiver who regularly fails to give a child the things that he or she needs in order to grow up safe and healthy is guilty of neglect. Neglect can include not giving the child enough food, clothing, shelter, or medical care; not adequately supervising the child; raising the child in an unhealthy, unhygienic, or dangerous environment; failing to educate the child; not meeting any of the child’s emotional needs; not teaching a child to distinguish right from wrong; or not giving him or her sufficient time for rest or exercise.

In some provinces and territories, the law defines child abuse and neglect in greater detail than in others. The terms “child abuse” and “child neglect” may not always be used; instead, the law may speak of a child’s being “in need of protection.” In Nova Scotia, for example, section 22(2) of the Children and Family Services Act contains a long list of situations in which the law considers a child to be “in need of protective services.”

As the above list suggests, the situations in which the law intervenes are usually pretty extreme. A parent may be strict or emotionally somewhat distant, but this does not amount to child abuse, nor is failing to fulfill a child’s wants (as opposed to his or her needs) considered neglect. Regardless of what’s going on, though, a person can always contact social services, and, at times, social workers may seek to interpret legal definitions rather broadly, so as to enable them to become involved in less extreme situations. Generally speaking, however, they must follow strict rules about when they are allowed to intervene and how. In an emergency situation, they can act quickly, but they will not usually make a serious intervention into a family without a thorough investigation that involves fact-gathering and consultation. In some provinces, once you’re 16, social services will step in only if you agree to it.

Anyone can report child abuse or neglect to the police or to social services. In fact, all over Canada, there are laws that require people who know or even suspect that someone is abusing or neglecting a child to report it to the authorities. In Nova Scotia, section 23 of the Children and Family Services Act orders any person “who has information, whether or not it is confidential or privileged, indicating that a child is in need of protective services” to report it immediately. Those who fail to do so can face a fine of up to $2,000 and/or imprisonment for up to six months. Section 24 further specifies that any professional (such as a doctor, teacher, member of the clergy, or youth worker) who has reason to suspect possible child abuse or neglect must immediately contact the authorities or face a fine of up to $5,000 and/or imprisonment for up to a year.

Until what age can social services help me?

Until fairly recently, in quite a few places, the cut-off point for social services was 16. That is, social services would intervene only when an incident involved a child under that age—although once the case was opened, it could remain open even after a young person turned 16 (usually until he or she became a legal adult). At this point, however, in almost every province or territory, social services will take you as a new case until you reach the age of majority. In 2017, Nova Scotia extended most child protection services to all those under 19 (the age of majority in that province), and, at the start of 2018, Ontario adopted a similar policy.

There are just a few remaining exceptions. In Saskatchewan, social services normally accepts only children under 16 as new cases, but they will do so for 16- or 17-year-olds in circumstances that Child and Family Services considers exceptional. In addition, social services will provide financial and housing assistance, and possibly other protection, to 16- or 17-year-olds whose parents are unwilling to take care of them or who cannot live with their families. In other jurisdictions, even though social services will accept minors aged 16 or over as new cases, the procedures for dealing with youth of that age may differ, as may the services available to them.

In some circumstances, young people who are already in the care of social services can continue to receive help even after they reach the age of majority, especially if they are still studying or are otherwise in the midst of transitioning into adult life. These days, even a young person who was spared abuse or neglect while growing up often needs more time to establish financial independence. For children who were not as lucky, recovering from their childhood can take even longer.

How can social services help me?

The kind of help that social workers can provide depends on the nature of the problem. In an emergency—if, for example, a child is in physical danger or in need of immediate medical attention—their first priority will be to get the child to a place of safety. Otherwise, they will probably do one or more of the following:

• Talk with a child’s parents or guardians, explain what a child needs and why what they are doing is unacceptable, and try to convince them to change their behaviour

• Offer advice to parents or guardians about how to solve problems that relate to their child’s upbringing

• Arrange for individual or family counselling

• If a child is too young to be left alone, arrange for a “homemaker”—that is, a person who will come in and take care of the child when there’s no one else around

• Recommend that a child be removed from the family home and placed in protective custody (a foster home or group home)

Depending on the situation, a social worker may find other ways to mediate between you and your parents or to offer additional forms of support. What social workers cannot do is force your parents to change their rules, nor can they demand that your parents change their behaviour. However, once social services has become involved, your parents know that they are under scrutiny. If the situation fails to improve—and especially if it deteriorates—social services can have you taken away from your family. The unspoken threat of losing their child is a powerful incentive for many parents to try to do better.

Social workers also cannot punish your parents for anything they do. They can help you get out of a dangerous situation and into a safer place, but they do not have any direct power over adults. Only the police and judges have that, and only in some situations. “Child abuse” and “child neglect” are not, in themselves, federal crimes. In order for those who are guilty of abuse or neglect to be punished, the specific type of abuse or neglect must be a criminal or a provincial offence—injuring or abandoning a child, for example, or not providing the necessaries of life, or not sending a child to school. Child abuse as such may also be a provincial offence, in which case it can carry penalties for the offender within that province. But, while social workers can certainly notify the police and provide evidence in court, they cannot themselves punish someone.

When would I be taken away from my parents?

Young people are sometimes afraid to report abuse and neglect because they don’t want to be taken away from their parents and put into a foster home. As you can see from the list above, however, removing you from your family home is only one option, and, except in an emergency situation, it is usually the last option that social services will consider. In order to take this action, a social worker does not ordinarily need your permission (especially if you are under 16), and it may be that you don’t agree with the decision. If social services does take you into care, however, this is likely to be only a temporary safety measure, lasting until a judge either orders that you stay in their care for a longer period or else decides that you can be returned to your parents. For example, section 33(4) of Nova Scotia’s Children and Family Services Act states: “Where a child has been taken into care pursuant to this Section, an agency has the temporary care and custody of the child until a court orders otherwise or the child is returned to the parent or guardian.”

In addition, while you are living in a foster home or group home, you will in many cases have the right to meet with your parents from time to time, and they may be given a chance to have significant input into raising you and making decisions about you. Protective custody is not meant to be permanent: social workers today are trained to do all they can to help families stay together. Typically, you will be kept in a foster home only until your family situation has improved: once the authorities feel that your parents are able to take proper care of you, you will be returned to your home. (There have, unfortunately, been cases in which a child was returned to a parent who continued to abuse the child afterward. Should this ever happen to you, you should contact social services.) Children usually stay in the permanent care of the state only in extreme situations—if both parents have died, for example, or have committed a serious crime against a child or have shown themselves absolutely unfit or unwilling to take care of their child—and then only if no other relatives are willing or able to take the child in.

For the most part, children are taken into protective custody only when their health, safety, or mental or moral development appears to be at serious risk. All the same, while this is unlikely in the case of relatively minor incidents, the fact is that any time social services is summoned to deal with a situation involving abuse or neglect, there is a chance that they will want to take a child into protective custody—and if you are considering reporting anything to social services, you need to be aware that this could happen. Before making such a decision, however, the social worker will ask lots of questions and proceed very carefully, often consulting with a supervisor. You should also be aware that, regardless of what the social worker decides, your parents could be angry with you for bringing social services into your family situation. They may think that you have no right to imply that they are not good parents or to call their power over you into question. But you should never put up with serious abuse or neglect. If you often feel unsafe, unwell, frightened, sad, or hungry, these are good reasons to let the authorities help you.

How much say do I have in what happens to me?

This depends on your age, as well as on where you live, as provinces and territories have different laws about the age at which the authorities must take the views of a young person into account. In Nova Scotia, section 37 of the Children and Family Services Act says that, if you are 16 or older, you will normally be entitled to have your say in decisions about whether to take you into protective custody, and, if so, where to place you. You can also ask for a lawyer to represent you in court. If you are at least 12 but under 16, you can ask that the court allow you to have a say in the process; if the judge agrees, a litigation guardian will be appointed to represent you. In fact, regardless of a child’s age, the court can decide to appoint a litigation guardian, if this appears to be in the child’s best interests, or someone else may ask the court to do so.

Where will I live if I am taken into protective custody?

If you are taken away from your parents, you may be placed with a relative, such as a grandparent, uncle, or aunt. If there is no adult family member who is willing to take care of you and whom the court trusts will do so responsibly, you will be placed either in a foster home—an ordinary household in which adults take care of one or a few young people and try to create a family-like environment—or else in a somewhat larger group home. Old-style orphanages, which housed dozens of abandoned or orphaned children, no longer exist.

If you are to be placed temporarily in foster care, it will be up to social services to decide where you will live. In making this decision, social services will, as far as this is feasible, look for a setting in which you will feel comfortable and welcome. According to section 44(3) of Nova Scotia’s Children and Family Services Act, when selecting a foster home or group home, social services is expected to keep several factors in mind: whether it is possible to keep you with your brothers and sisters (if they, too, have been placed in protective care); your need to be able to keep in touch with relatives and friends; your cultural, racial, and linguistic heritage; and your need to be able to continue your education and the practice of your religion. If you are of Indigenous ancestry, the first thing they should consider is a kinship placement (that is, placing you with a relative). If this is not possible, they should try to place you with someone from within your community who is an approved foster parent, and, if this isn’t possible either, they should try to find an Indigenous foster parent in some other community.

In the event that a court orders a child to be placed in the permanent custody of the state, social services will generally look for a foster family that is similar in background to the child’s original family. For example, in Nova Scotia, section 47(5) of the Children and Family Services Act orders that such a child “shall be placed with a family of the child’s own culture, race, religion or language,” provided that one can be found within a reasonable period of time. Failing that, the child is to be placed “in the most suitable home available.” In this case, social services will seek a family that will accept and respect the child’s cultural differences. Moreover, once children are placed in permanent custody, they are usually available for adoption (a process we discussed in chapter 3).

What rights do I have in protective custody?

Foster parents are not allowed to treat you in any way they like; they are expected to treat you decently and respect your basic rights. In most provinces (as a minimum in Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Ontario, and Saskatchewan), and in all the territories, they are forbidden either by the law or by foster care policy to use any form of corporal punishment, even the relatively mild forms that your actual parents are allowed. In Nova Scotia, a foster home or group home must meet strict fire safety standards and contain an adequate number of rooms and other facilities. You must not be restrained, except as a last resort to control physically aggressive or out-of-control behaviour, and you must be provided with regular meals and all necessary medication (Nova Scotia Regulation 265/2016, sections 23–29). You should also be allowed to practice your religion.² At the same time, it is your responsibility to behave properly while you are in the home. You are expected to know and obey the rules and to understand that, if you break them, you can be punished in some appropriate fashion.

Either your social worker or the person with whom you are placed should make sure that you understand the rights that children in your province or territory have when they are in protective custody. In Nova Scotia, for example, the law requires that “a child-caring facility must provide the children residing in the facility with written information concerning the facility and the rights and obligations of each child while a resident in the facility” and that this information “must be appropriate to their age and their level of comprehension” (Nova Scotia Regulation 265/2016, ss. 21[1] and 21[2]).³ They should also explain to you how to make a complaint if the foster parents or the people who run the group home fail to respect your rights. If you have reason to believe that the adults who are supposed to be taking care of you are neglecting or abusing you, you should definitely let your social worker know and file a complaint.

When you reach the age at which you can withdraw from parental control—which, in many places, is 16 (see table 2)—you can normally leave foster care of your own free will, although, depending on the province, there may be an official procedure that you will have to follow. In addition, some protection orders specify that they can be enforced for longer, most often until you reach the age of majority.

What if I am still in protective custody when I reach the age of majority?

If you have not been returned to your parents or adopted by the time you become a legal adult, you will have to plan to leave protective custody and be on your own. Depending on the province or territory, it may be possible for you to continue to receive support under certain circumstances, and there may also be services and programs available to help you make the transition to adulthood. In Nova Scotia, section 48(1) of the Children and Family Services Act specifies that an order for permanent care and custody ends when one of four things happen: you reach the age of majority (19, in Nova Scotia); you are adopted; you get married; or an application is made to the court to terminate permanent custody and the court approves it. (The following subsections lay out the terms under which such an application can be made.) If, however, you are disabled, then, when you turn 19, the court can order the care to continue until you turn 21.

Sadly, some parents get away with abusing or neglecting their children for a long time before someone finally notices. And, even when someone does, child welfare systems are themselves far from perfect. Too often, social services are inadequately funded by provincial or territorial governments, which makes it difficult for them to do their job in the way that they would like. While social workers generally mean well, they may be handling far too many cases, and, despite regulations, foster parents and group homes sometimes break the rules, whether intentionally or unintentionally. Needless to say, we hope that you will never be abused or neglected—especially not to the point that a judge feels it necessary to order you to be placed in protective custody. All the same, in some cases, foster care, even if far from ideal, is a much safer and healthier alternative for youth to staying where they are.