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Roger Townsend's Legal Resources

ONTARIO

Child and Family Services Act
Criminal Offences Committed by Children Under 12 Had charge

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In Ontario, children under 12 who commit criminal offences are dealt with under the Child and Family Services Act return to crap.

If the offence is a minor one the child may be apprehended by a police officer and will be returned to the parent so that the parent can deal with appropriate consequences.

If the child has on more than one occasion committed an assault or damaged property and the parent has either encouraged the inappropriate behaviour or has not adequately provided supervision, then Children's Aid Society, the police, or another person can commence proceedings to ask the Court to find the child to be "in need of protection".

Similar proceedings can be commenced if a child under 12 has has killed or seriously injured another person or caused serious damage.

A child protection worker, including a police officer, can apprehend such a child without a warrant and bring the child to a foster home or hospital. In certain circumstances the child can be placed in open detention similar to that under the Young Offenders Act.

The child's matter must be brought to Court as soon as practicable after apprehension and in any event within 5 days.

A show cause hearing, somewhat similar to a bail hearing, will take place and an interim order of custody can be made pending the full hearing to determine if the child is "in need of protection"

If the Court finds the child to be "in need of protection" the Court may order a psychological or other assessment and the child may be ordered back into the custody of a parent subject to the supervision of Children's Aid Society, the child may be made a Society Ward of Children's Aid for a fixed period of time, or the child may be made a permanent Crown Ward.

 

Excerpts from the Child and Family Services Act, R.S. O. 1990, c. C.11, as amended by S.O. 1992, c. 32, and S.O. 1993, c. 27

See also May 1999 amendments not yet in force

PART III

CHILD PROTECTION

 

37. (1)

In this Part,

(f) "place of safety" means a foster home , a hospital, and a place or one of a class of places designated as such by a Director under subsection 17(2) of Part I (Flexible Services), but does not include,

(a) a place of secure custody as defined in Part IV (Young Offenders), or

(b) a place of secure temporary detention as defined in Part IV.

 

Return to Child Protection Law

37. (2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by that person's failure to care and provide for or supervise and protect the child adequately;

(b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a);

(c) the child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child;

(d) there is a substantial risk that the child will be sexually molested or sexually exploited as described in clause (c);

(e) the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment;

(f) the child has suffered emotional harm, demonstrated by severe,

(i) anxiety,
(ii) depression,
(iii) withdrawal, or
(iv) self-destructive or aggressive behaviour,

and the child's parent or person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;

(h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition;

(i) the child has been abandoned, the child's parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provisions for the child's care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody;

Killed or seriously injured another person or caused serious damage

(j) the child is less than twelve years old and has killed or seriously injured another person or caused serious damage to another person's property, services or treatment are necessary to prevent a recurrence and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, those services or treatment;

More than one occasion injured another person or caused loss or damage

(k) the child is less than twelve years old and has on more than one occasion injured another person or caused loss or damage to another person's property, with the encouragement of the person having charge of the child or because of that person's failure or inability to supervise the child adequately; or

Parent unable to care for the child

(l) the child's parent is unable to care for the child and the child is brought before the court with the parent's consent and, where the child is twelve years of age or older, with the child's consent, to be dealt with under this Part.

Return to Child Protection Law

 

39. (5)

A child less than twelve years of age who is the subject of a proceeding under this Part is not entitled to receive notice of the proceeding or to be present at the hearing unless the court is satisfied that the child,

(a) is capable of understanding the hearing; and

(b) will not suffer emotional harm by being present at the hearing.

and orders that the child receive notice of the proceeding and be permitted to be present at the hearing. Return to Child Protection Law

 

Application by Children's Aid Society

40. (1) A society may apply to the court to determine whether a child is in need of protection.

Warrant to apprehend child

(2) A justice of the peace may issue a warrant authorizing a child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a child protection worker's sworn information that there are reasonable and probable grounds to believe that,

(a) the child is in need of protection; and

(b) a less restrictive course of action is not available or will not protect the child adequately.

Application by police or member of the public for order to produce or apprehend child

(4) Where the court is satisfied, on a person's application upon notice to a society, that there are reasonable and probable grounds to believe that,

(a) a child is in need of protection, the matter has been reported to the society, the society has not made an application under subsection (2) or apprehended the child under subsection (7); and

(b) the child cannot be protected adequately otherwise than by being brought before the court,

the court may order,

(c) that the person having charge of the child produce him or her before the court at the time and place named in the order for a hearing under subsection 47(1) to determine whether he or she is in need of protection; or

(d) where the court is satisfied that an order under clause (c) would not protect the child adequately, that a child protection worker employed by the society bring the child to a place of safety.

Authority to enter premise to apprehend child.

(6) A child protection worker authorized to bring a child to a place of safety by a warrant issued under subsection (2) or an order made under clause (4)(d) may at any time enter any premises specified in the warrant or order, by force if necessary, and may search for and remove the child.

Apprehension without warrant.

(7) A child protection worker who believes on reasonable and probable grounds that,

(a) a child is in need of protection; and

(b) there would be a substantial risk to the child's health or safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain a warrant under subsection (2),

may without a warrant bring the child to a place of safety.

 

Police assistance

(8) A child protection worker acting under this section may call for assistance of peace officer.

 

Consent to examine child.

(9) A child protection worker acting under subsection (7) or under a warrant issued under subsection (2) or an order made under clause (4)(d) may authorize the child's medical examination where a parent's consent would otherwise be required.

 

Place in open temporary detention

(10) Where a child protection worker who brings a child to a place of safety under this section believes on reasonable and probable grounds that no less restrictive course of action is feasible, the child may be detained in a place of safety that is a place of temporary detention as defined in Part IV (Young Offenders).

 

Right of entry

(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child.

 

Regulations re power of entry

(12) A child protection worker authorized to enter premises under subsection (6) or (11) shall exercise the power of entry in accordance with the regulations.

 

Peace officer has powers of child protection worker.

(13) Subsections (2), (6), (7), (10), (11), and (12) apply to a peace officer as if the peace officer were a child protection worker.

 

 

Protection from personal liability

(14) No action shall be instituted against a peace officer or child protection worker for any act done in good faith in the execution or intended execution of that person's duty under this section or for an alleged neglect or default in the execution in good faith of that duty.

Return to Child Protection Law

 

 

Warrant to apprehend child in care

41. (1) A justice of the peace may issue a warrant authorizing a peace officer or child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a peace officer's or child protection worker's sworn information that,

(a) the child is actually or apparently under the age of sixteen years and has left or been removed from a society's lawful care and custody without its consent; and

(b) there are reasonable and probable grounds to believe that there is no course of action available other than bringing the child to a place of safety that would adequately protect the child.

 

Apprehension of child in care who has gone A.W.O.L. from C.A.S. placement.

(4) A peace officer or child protection worker who believes on reasonable and probable grounds that,

(a) a child is actually or apparently under the age of sixteen years and has left or been removed from a society's lawful care and custody without its consent; and

(b) there would be a substantial risk to the child's health or safety during the time necessary to obtain a warrant under subsection (1),

may without a warrant bring the child to a place of safety.

 

 

Apprehension of child who has gone A.W.O.L. from place of open temporary detention

(5) Where a child is detained under this Part in a place of safety that has been designated as a place of open temporary detention as defined in Part IV (Young Offenders) and leaves the place without the consent of,

(a) the society having care, custody and control of child; or

(b) the person in charge of the place of safety,

a peace officer, the person in charge of the place of safety or the person's delegate may apprehend the child without a warrant.

(6) A person who apprehends a child under subsection (5) shall,

(a) take the child to a place of safety to be detained until the child can be returned to the place of safety the child left; or

(b) return the child or arrange for the child to be returned to the place of safety the child left.

Return to Child Protection Law

 

Apprehension of child under twelve who has committed a criminal offence

42. (1) A peace officer who believes on reasonable and probable grounds that a child actually or apparently under twelve years of age has committed an act in respect of which a person twelve years of age or older could be found guilty of an offence may apprehend the child without a warrant and on doing so,

(a) shall return the child to the child's parent or other person having charge of the child as soon as practicable; or

(b) where it is not possible to return the child to the parent or other person within a reasonable time, shall take the child to a place of safety to be detained there until the child can be returned to the parent or other person.

 

Notice to parent, etc

(2) The person in charge of a place of safety in which a child is detained under subsection (1) shall make reasonable efforts to notify the child's parent or other person having charge of the child of the child's detention so that the child may be returned to the parent or other person.

 

Where child not returned to parent within twelve hours.

(3) Where a child detained in a place of safety under subsection (1) cannot be returned to the child's parent or other person having charge of the child within twelve hours of being taken to the place of safety, the child shall be dealt with as if the child had been taken to a place of safety under subsection 40(7) and not apprehended under subsection (1).

Return to Child Protection Law

 

Authority to enter

44. (1) A person authorized to bring a child to a place of safety by a warrant issued under subsection 41 (1) or 43 (2) may at any time enter any premises specifies in the warrant, by force, if necessary, and may search for and remove the child.

 

Right of entry

(2) A person authorized under subsection 41 (4) or (5) or 42 (1) who believes on reasonable and probable grounds that a child referred to in the relevant subsection is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child.

(3) A person authorized to enter premises under this subsection shall exercise the power of entry in accordance with the regulations.

 

Police assistance

(4) A child protection worker acting under section 41 or 43 may call assistance of a peace officer.

 

Consent to examine child

(5) A child protection worker who deals with a child under subsection 42(3) or 43(5) as if the child had been taken to a place of safety may authorize the child's medical examination where a parent's consent would be otherwise be required.

 

Place of open temporary detention

(6) Where a person who brings a child to a place of safety under section 41 or 42 believes on reasonable and probable grounds that no less restrictive course of action is feasible, the child may be detained in a place of safety that is a place of open temporary detention as defined in Part IV (Young Offenders).

 

Protection from personal liability.

(7) No action shall be instituted against a peace officer or child protection worker for any act done in good faith in the execution or intended execution of that person's duty under this section or section 41,42 or 43 or for an alleged neglect or default in the execution in good faith of that duty. Return to Child Protection Law

 

Time of detention limited.

46. (1) As soon as practicable, but in any event within five days after a child is brought to a place of safety under section 40 or subsection 79(6) or a homemaker remains or is placed on premises under subsection 78(2),

(a) the matter shall be brought before a court for a hearing under subsection 47(1) (child protection hearing);

(b)the child shall be returned to the person who last had charge of the child or, where there is an order for the child's custody that is enforceable in Ontario, to the person entitled to custody under the order; or

(c) a temporary care agreement shall be made under subsection 29 (1) of Part II (Voluntary Access to Services).

 

 

Place of open temporary detention.

(2) Within twenty-four hours after a child is brought to a place of safety that is a place of open temporary detention, or as soon there after as is practicable, the matter shall be brought before a court for a hearing and the court shall,

(a) where it is satisfied that no less restrictive course of action is feasible, order that the child remain in the place of open temporary detention for a period or periods not exceeding a aggregate of thirty days and then be returned to the care and custody of the society;

(b) order that the child be discharged from the place of open temporary detention and returned to the care and custody of the society; or

(c) make an order under subsection 51 (2) (temporary care and custody).

Return to Child Protection Law

 

 

Child protection hearing

47. (1) Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57. Return to Child Protection Law

 

 

Adjournment

51. (1) The court shall not adjourn a hearing for more than thirty days,

(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or

(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.

 

 

Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions relating to the child's supervision as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions relating to the child's supervision as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Young Offenders), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of society.

(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable and probable founds to believe that there is a substantial risk to the child's health or safety and that the child can not be protected adequately by an order under clause (2)(a) or (b).

(4) Where the court makes an order under clause (2)(d), section 62 (parental consents) applies with necessary modifications.

 

Access

(5) An order made under clause (2)(c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

 

Variation

(6) The court may at any time vary or terminate an order made under subsection (2).

 

Evidence on adjournments

(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances. Return to Child Protection Law

 

Assessments

54. (1) Where a child has been found to be in need of protection the court may order that within a specified time,

(a) the child; or

(b) a parent or a person, except a foster parent, in whose charge the child has been or may be,

attend before and undergo an assessment by a specified person who is qualified, in the court's opinion, to perform medical, emotional, developmental, psychological, educational or social assessment and has consented to perform the assessment.

Return to Child Protection Law

 

 

Available orders where child found in need of protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:

1. Supervision Order. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and nor more than twelve months.

2. Society wardship. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. Crown wardship. That the child be made a ward of the Crown, until the warship is terminated under section 65 or expires under subsection 71(1), and be placed in the care of the society.

4. Consecutive orders of society wardship and supervision. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

(2) In determining which order to make under subsection (1), the court shall ask the parties what efforts the society or another agency or person made to assist the child before intervention under this Part.

 

Least restrictive alternative

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that less restrictive alternative, including non-residential services and the assistance referred to in subsection (2),

(a) have been attempted and have failed;

(b) have been refused by the person having charge of the child; or

(c) would be inadequate to protect the child.

 

 

Community placement to be considered

(4) Where the court decides that is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 subsection (1) with the consent of the relative or other person.

 

 

Terms and conditions of a supervision order

(8) Where the court makes a supervision order under paragraph 1 of subsection (1), the court may impose reasonable terms and conditions relating to the child's care and supervision on,

(a) the person with whom the child is placed or to whom the child is returned;

(b) the supervising society;

(c) the child; and

(d) any other person who participated in the hearing.

 

Where no court order necessary

(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

with out a warrant

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