Law Times

Law Times • February 27, 2017 Page 9 www.lawtimesnews.com New child protection legislation under scrutiny BY JUDY VAN RHIJN For Law Times C hild advocates are wel- coming a proposed revamp of the laws af- fecting children in need following the introduction in December 2016 of Bill 89: Sup- porting Children, Youth and Families Act, 2016. With the current legislation more than 30 years old, lawyers say an update is well overdue. "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 direc- tion. A lot of thought has gone into making the new legislation child focused." The preamble of the bill spe- cifically emphasizes that "chil- dren are individuals with rights to be respected and voices to be heard." It also commits the govern- ment to provide services that are "child-centred" and "build on a family's strengths, respect their diversity and the principle of in- clusion, (and) help maintain con- nections 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 en- sure it's one of the best statutes," says Kavassalis. The private bar is also scruti- nizing 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 To- ronto family and child protec- tion lawyer. "It's important that practitio- ners 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 cas- es where kids should have been listened to and weren't, which resulted in really bad things hap- pening, even death. The pream- ble says that the judge must con- sider their views and preferences and decide what weight to give them," he says. Before, Schuman says, chil- dren's views were included if they could be ascertained. "With this bill, you can't just brush it off and say you can't de- termine 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 devel- opment makes it unhelpful." Kavassalis says she is pleased with the emphasis on support- ing 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 op- tion 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 provin- cial 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, her- itages 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 overrepre- sented in child protection mat- ters," 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] herit- age." Gagné is pleased that the ex- clusion of Métis children has finally been corrected. However, she is concerned about the def- inition 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 Toron- to 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 FOCUS John Schuman says he is pleased with the increased emphasis on the inclusion of children's views and preferences, in a provincial bill focused on children in need. See Modernization, page 12 Tel: 905-841-5717 www.bolandhowe.com THE PROOF IS IN THE PRECEDENTS. Jury Verdict (Nov 2016) Elder v. HCSW Property Management et al. Jury Verdict (May 2016) Derry v. The Cadillac Fairview Corporation SLIPPERY WALKWAY CASE? Consider referring your client to us. Tim Boland Darcy Romaine Untitled-2 1 2016-12-08 9:24 AM Childview_LT_Nov7_16.indd 1 2016-11-01 4:13 PM

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