Every person in Manitoba has a duty to help protect children. Anyone who has reasonable grounds to believe that a child is or might be in need of protection, must report the information to an agency or to a parent or guardian of the child. In some cases, the report can only be made to an agency.
The Child Sexual Exploitation and Human Trafficking Act came into effect on April 30, 2012. This Act provides that Protection Orders can be granted in relation to child victims of sexual exploitation. A Protection Order can be requested on behalf of a child by a parent, a child‘s legal guardian or an appropriate child welfare agency.
Child and family services agencies must investigate any information indicating a child is or may be in need of protection and must take any necessary steps to protect the child.
Sometimes, after an investigation, no action is required or an agency may offer voluntary services. At other times, short-term or emergency services may be needed until a parent or guardian can resume caring for the child. Continuing supervision by an agency may be required. This can be arranged informally or the agency can apply to court for an order of supervision. This order gives the agency the right to enter the family home to provide guidance and counselling and to ensure the child is receiving proper care.
How can I report child pornography?
As of April 15, 2009 it is mandatory to report child pornography in Manitoba. Every Manitoban who sees something they believe to be child pornography must report it to www.cybertip.ca.
Cybertip.ca was set up in 2001 by the Canadian Centre for Child Protection, to give the public a way to report illegal content and activities on the Internet, such as child pornography, attempting to lure a child for a sexual or illegal purpose, child sex-tourism or child prostitution. The website, www.cybertip.ca, is now in use across Canada. Anyone who wishes to make a report can do so by either filling out the online reporting form, or by calling toll free at 1-866-658-9022.
What is the Apprehension of Children?
When an agency believes it is necessary to remove a child from the family home to protect the child, it can act without the agreement of the parents. This removal of the child (apprehension) can be done without a warrant or court order. If, after apprehending the child, the agency decides the child should not be returned to the family home, it must file an application with the court within four working days for a protection hearing to be set. At the same time, the agency must advise the court of what arrangements it proposes for the parents to visit with the child until the hearing takes place. If the parents disagree with the agency’s plan for visits, they may ask the court to decide what arrangements are appropriate. The agency must show the court that any restrictions on visits are reasonable.
When an agency believes a child is abused or in danger of being abused, the agency may ask the court for an order to remove the suspected abuser from the home, or an order preventing the suspected abuser from having any contact with the child. Such an order may prevent apprehension of the child or could allow the child to be returned home.
What are protection hearings?
After filing the application for a protection hearing with the court, the agency must give at least two days’ notice of the hearing to:
- the parents or the guardians
- the child, if he or she is 12 years of age or older
- the person in whose home the child was living at the time of apprehension
- the agency serving the appropriate First Nation if the child is or could be registered as a status Indian
What is included in a notice?
The notice must include the reasons for the apprehension. The notice also tells parents or guardians that they must provide the court and the agency with certain information about their financial circumstances. The court can order the parents or guardians to pay support for the child while the child is in temporary agency care. If a parent or guardian fails to provide the financial information, the court may order them to pay the agency up to $5,000, as well as to make support payments.
When are hearings held?
An initial protection hearing must be held within seven days of filing the application, or at the next sitting of the court. Protection hearings can take place in the Court of King’s Bench (Family Division) or in Provincial Court. In the Court of King’s Bench (Family Division), matters are heard by an associate judge of the court and may only remain on the child protection docket for a period of 60 days. If a matter cannot be resolved within 60 days, the matter is scheduled to appear in the Child Protection Intake Court within 30 days.
What happens at Intake Court?
At the Intake Court, both the parents and the Agency appear before a judge and both file briefs outlining their position on the issues for trial. The judge determines whether there are genuine issues that require a trial. The triable issues are:
- Was the child in need of protection at the time or the apprehension?
- Is yes, will the child be in need of protection at the time of trial?
- If yes, what court order is in the child’s best interests?
At Intake Court:
- The parties may settle the matter and an order is entered by consent.
- A default order may be pronounced if a parent does not attend. The parent’s consent to the order the agency is seeking is deemed.
- A summary judgment motion date may be set if there is no settlement and the court determines there is no genuine issue for trial.
- A trial date is set and a pre-trial date is also set one month before the trial.
What happens at trial?
A pre-trial conference is a meeting of the parties, their lawyers and a judge to try to resolve the case and to ensure the matter is ready for trial.
At the trial, a judge must decide whether a child was in need of protection at the time of apprehension and whether the child remains in need of protection. If so, the judge must also decide what order should be made to protect the child. The agency, through its lawyer, will ordinarily present evidence supporting the apprehension and the plan for the child.
Parents and guardians have the right to be represented by a lawyer, give evidence themselves and call witnesses to give evidence on their behalf. In fact, the agency may require the parents to give evidence even if they would prefer not to, by serving the parents with notice to that effect. Because these proceedings are very serious, parents or guardians should always seek legal advice.
Children in these cases who are 12 and older may also participate in the proceedings and/ or have legal representation. Others who are entitled to be notified may ask the court for the right to participate.
After hearing all the evidence and submissions, a judge who finds that a child is in need of protection, may:
- order that the child be returned home under agency supervision, subject to any conditions and for the period of time the judge considers necessary
- order that the child be placed with another person or that another person have guardianship, subject to any conditions and for the period of time the judge considers necessary
- make a temporary order of guardianship
- make a permanent order of guardianship
What is a temporary order of guardianship?
Under this type of order, the agency becomes the child’s guardian and will be responsible for the child for a specific period of time. A temporary order of guardianship cannot be longer than six months for a child who was under five years of age at the date of apprehension, and 12 months for any child between five and 12 years of age at the date of apprehension. For older children, temporary orders of guardianship cannot exceed 24 months. In addition, there are limits on the total time that younger children can be in agency care under temporary orders of guardianship.
Unless the order states otherwise, the parents are entitled to reasonable visits with the child. If the agency and the parents cannot agree on visits, either may ask the court to determine appropriate visiting arrangements.
While a temporary order of guardianship is in effect, the agency and the family are expected to try to work together to resolve the problems that required the child to be in agency care. If they are able to do so before the order ends, the parents or the agency may ask the court to terminate the order and have the child returned home. However, if after trying to work with the family, the agency does not think the child should be returned home, it may ask the court to extend the temporary order of guardianship for another specific period. In some cases, the agency may ask to be made the permanent guardian of the child.
What is a permanent order of guardianship?
Where a judge makes a permanent order of guardianship, the agency becomes the child’s permanent guardian, taking the place of the parents. The agency makes all decisions about the child’s care and may place the child for adoption. The parents’ rights and responsibilities with respect to the child are ended.
It is entirely up to the agency to determine whether the parents will be allowed to visit the child. However, if the child has not been placed for adoption, the parents may apply to the court for an order allowing them visits. The court will decide what visiting arrangements, if any, should be made.
Although the rights and responsibilities of the parents end when a permanent order of guardianship is made, an agency or a parent may ask the court to terminate the permanent order. An application by a parent may be made only if the child has not been placed for adoption, and if at least one year has elapsed since the parent’s right to appeal the permanent order of guardianship would have ended, or if there was an appeal, at least one year since the appeal was finalized.
Any order made by a judge in a protection hearing may be appealed to the Manitoba Court of Appeal within 21 days of the signing of the order.
How are laws changing to meet the needs of Indigenous families?
On February 28, 2019, the Government of Canada introduced Bill C-92: An Act respecting First Nations, Inuit and Metis children, youth and families (the Act). The Act received Royal Assent on June 21, 2019 and comes into force on January 1, 2020. Under the Act, Indigenous communities and groups will be free to develop policies and laws based on their particular histories, cultured and circumstances. Through the Act, national principles such as the best interest of the child, cultural continuity and substantive equality have been established to help guide the provision of Indigenous child and family services.
The Act represents a new chapter in the history of Canada and its relationship with Indigenous children, youth and families.