read it carefully before any action or conversation
The Child and Family Services Act
PART III
CHILD PROTECTION
Child in need of protection
17(1) For purposes of this Act, a child is in need of protection where the life, health or emotional well-being of the child is endangered by the act or omission of a person.
Illustrations of child in need
17(2) Without restricting the generality of subsection (1), a child is in need of protection where the child
(a) is without adequate care, supervision or control;
(b) is in the care, custody, control or charge of a person
(i) who is unable or unwilling to provide adequate care, supervision or control of the child, or
(ii) whose conduct endangers or might endanger the life, health or emotional well-being of the child, or
(iii) who neglects or refuses to provide or obtain proper medical or other remedial care or treatment necessary for the health or well-being of the child or who refuses to permit such care or treatment to be provided to the child when the care or treatment is recommended by a duly qualified medical practitioner;
(c) is abused or is in danger of being abused;
(d) is beyond the control of a person who has the care, custody, control or charge of the child;
(e) is likely to suffer harm or injury due to the behaviour, condition, domestic environment or associations of the child or of a person having care, custody, control or charge of the child;
(f) is subjected to aggression or sexual harassment that endangers the life, health or emotional well-being of the child;
(g) being under the age of 12 years, is left unattended and without reasonable provision being made for the supervision and safety of the child; or
(h) is the subject, or is about to become the subject, of an unlawful adoption under The Adoption Act or of a sale under section 84.
S.M. 1986-87, c. 19, s. 8; S.M. 1989-90, c. 3, s. 3; S.M. 1997, c. 47, s. 131.
Reporting a child in need of protection
18(1) Subject to subsection (1.1), where a person has information that leads the person reasonably to believe that a child is or might be in need of protection as provided in section 17, the person shall forthwith report the information to an agency or to a parent or guardian of the child.
Reporting to agency only
18(1.1) Where a person under subsection (1)
(a) does not know the identity of the parent or guardian of the child;
(b) has information that leads the person reasonably to believe that the parent or guardian
(i) is responsible for causing the child to be in need of protection, or
(ii) is unable or unwilling to provide adequate protection to the child in the circumstances; or
(c) has information that leads the person reasonably to believe that the child is or might be suffering abuse by a parent or guardian of the child or by a person having care, custody, control or charge of the child;
subsection (1) does not apply and the person shall forthwith report the information to an agency.
Duty to report
18(2) Notwithstanding the provisions of any other Act, subsection (1) applies even where the person has acquired the information through the discharge of professional duties or within a confidential relationship, but nothing in this subsection abrogates any privilege that may exist because of the relationship between a solicitor and the solicitor\'s client.
S.M. 1989-90, c. 3, s. 4; S.M. 1996, c. 4, s. 3.
Protection of informant
18.1(1) No action lies against a person for providing information in good faith and in compliance with section 18.
Identity of informant
18.1(2) No person shall, except as required in the course of a judicial proceeding, disclose to the family of a child reported in need of protection the identity of the informant under section 18 without the written consent of the informant.
No interference or harassment
18.1(3) No person shall interfere with or harass an informant under section 18.
S.M. 1989-90, c. 3, s. 5.
Reports regarding professionals, etc.
18.2(1) Where the director has reasonable grounds to believe that a person has caused a child to be in need of protection or has failed to report information in accordance with section 18, the director may report the matter to the body or person that governs the professional status of the person or certifies, licenses, or otherwise authorizes or permits the person to carry on his or her work or occupation.
Requirement to investigate
18.2(2) A body or person who receives a report under subsection (1) shall
(a) investigate the matter to determine whether any professional status review or disciplinary proceedings should be commenced against the person; and
(b) on conclusion of the investigation and any proceedings, advise the director of the determination under clause (a), the reasons for the determination, and, if applicable, the results of any professional status review or disciplinary proceedings.
S.M. 1989-90, c. 3, s. 5; S.M. 1997, c. 48, s. 7.
Offences
18.3 Where a person,
(a) through an act or omission of the person, causes a child to be a child in need of protection as provided in section 17;
(b) fails to report information as required under section 18;
(c) discloses the identity of an informant in contravention of subsection 18.1(2); or
(d) interferes with or harasses an informant in contravention of subsection 18.1(3);
the person is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000. or imprisonment for a term of not more than 24 months, or both.
S.M. 1989-90, c. 3, s. 5; S.M. 2005, c. 3, s. 2.
Agency to investigate
18.4(1) Where an agency receives information that causes the agency to suspect that a child is in need of protection, the agency shall immediately investigate the matter and where, upon investigation, the agency concludes that the child is in need of protection, the agency shall take such further steps as are required by this Act or are prescribed by regulation or as the agency considers necessary for protection of the child.
Police to provide information
18.4(1.1) An agency may request from a peace officer, and the peace officer shall provide, any information in the officer\'s possession or control that the agency reasonably believes is relevant to an investigation under subsection (1).
Report of conclusion
18.4(2) Subject to subsection (3), where an agency concludes, after an investigation under subsection (1), that a child is in need of protection, the agency shall report its conclusion
(a) to the parent or guardian of the child;
(b) where there is no parent or guardian of the child, a person having full-time custody or charge of the child;
(c) to the person, if any, who is identified by the investigation as the person who caused the child to be in need of protection;
(d) in the case of a person under clause (c) whose employment
(i) involves the care, custody, control or charge of children, or
(ii) permits unsupervised access to children,
to the employer or the manager or supervisor at the place of employment;
(e) where the child attends school, to the principal of the school or the superintendent of the school division in which the school is located;
(f) to the child where, in the opinion of the agency, the child is capable of understanding the information and disclosure to the child is in the best interests of the child; and
(g) to the person who reported the information that gave rise to the investigation, except where disclosure is not in the best interests of the child.
Report of conclusion where child not in need of protection
18.4(2.1) Subject to subsection (3), where an agency concludes, after an investigation under subsection (1), that a child is not in need of protection, the agency shall report its conclusion
(a) to the parent or guardian of the child;
(b) where there is no parent or guardian of the child, a person having full-time custody or charge of the child;
(c) to the person, if any, who is identified by the investigation as the person who was alleged to have caused the child to be in need of protection;
(d) to the child where, in the opinion of the agency, the child is capable of understanding the information and disclosure to the child is in the best interests of the child; and
(e) to the person who reported the information that gave rise to the investigation, except where disclosure is not in the best interests of the child.
Restrictions on disclosure
18.4(3) An agency shall not report its conclusion under subsection (2) or (2.1) where a criminal investigation into the matter is pending and the peace officer in charge of the investigation requests the agency not to report its conclusion because it would jeopardize the investigation.
Peace officer to report charges
18.4(4) Where a peace officer lays an information charging a person with an offence under the Criminal Code or under this Act and
(a) the offence is based on alleged acts or omissions by the accused person in relation to a child; and
(b) the employment of the accused person
(i) involves the care, custody, control or charge of children, or
(ii) permits unsupervised access to children;
the peace officer shall immediately advise the employer, or, if the identity of the employer is not known or the employer cannot be promptly reached, the manager or supervisor at the place of employment, that the accused person has been charged.
S.M. 1989-90, c. 3, s. 6; S.M. 1997, c. 48, s. 8.
Reference to child abuse committee
18.5 Where an agency receives information that causes it to believe that a child is or might be abused, the agency shall, in addition to carrying out its duties under subsection 18.4(1), refer the matter to its child abuse committee established under subsection 19(1).
S.M. 1997, c. 48, s. 9.
Director to investigate
18.6 Where an agency receives information that a child was or might have been abused by a person who provides work for or services to the agency or to a child care facility or other place where a child has been placed by the agency, the agency shall, in addition to carrying out its duties under subsection 18.4(1) and section 18.5, immediately report the matter to the director and the director shall investigate the matter and take such further steps as are required by this Act, prescribed by regulation, or as the director considers necessary.
S.M. 1997, c. 48, s. 9.
Agency child abuse committees
19(1) Each agency shall, in accordance with the regulations, establish a child abuse committee to review cases of suspected abuse of a child and to advise the agency concerning what actions, if any, may in its opinion be required to protect the child or other children.
Joint committee
19(2) Agencies may, with the approval of the director, establish a joint committee and that committee shall be the child abuse committee for all the participating agencies.
Actions on referral to committee
19(3) Where a child abuse committee suspects a person of having abused a child, the committee shall, in the prescribed manner, give to the person who is suspected an opportunity to provide information to it and shall
(a) form an opinion whether the person abused the child;
(b) form an opinion whether the name of the person should be entered in the registry; and
(c) report its opinions and, where it has formed the opinion that the person has abused the child, the circumstances of the abuse to the agency.
Review process
19(3.1) Subject to any procedural requirements in the regulations, the proceedings of a committee acting under subsection (3) shall be conducted in an informal manner and no opinion or report of a committee shall be invalidated because of any lack of formality.
Notice of intent to register
19(3.2) On receipt of a report under clause (3)(c) that the committee is of the opinion that a person has abused a child and that the person\'s name should be entered in the registry, the agency shall give notice in the prescribed manner of the opinions and circumstances reported to it, of its intention to submit the name of the person for entry in the registry, and of the right to object under subsection (3.3), to the following persons:
(a) the person who the committee believes has abused the child, where the person is 12 years of age or older;
(b) the parent or guardian of the person who the committee believes has abused the child, where the person has not reached the age of majority;
(c) the parent or guardian of the child;
(d) the child, where the child is 12 years of age or older; and
(e) the director.
Objection to entry in registry
19(3.3) A person who is the subject of a report referred to in subsection (3.2) may, within 60 days of the giving of notice to the person under subsection (3.2), object to the entry of the person\'s name in the registry by
(a) filing with the Court of Queen\'s Bench of Manitoba (Family Division) a notice of application for a hearing together with a true copy of the notice given under subsection (3.2); and
(b) serving a true copy of the notice of application on the agency.
Report to director where no objection
19(3.4) Where no notice of application is received by the agency before the expiration of the 60-day period referred to in subsection (3.3), the agency shall report the name of the person and the circumstances of the abuse to the director for entry in the registry.
Hearing
19(3.5) Where a notice of application is filed and served in accordance with subsection (3.3), the court shall consider the matter by way of a hearing in accordance with subsection (3.6).
Rules for hearing
19(3.6) At a hearing,
(a) the agency has the burden of proof on the balance of probabilities;
(b) all parties may be represented by counsel and shall, subject to clauses (c) and (d), be given full opportunity to present evidence and to examine and cross-examine witnesses;
(c) the court is not bound by the rules of evidence in relation to the evidence of a child who the agency alleges was abused by the applicant and may receive the child\'s evidence through hearsay, by way of a recording, a written statement, or in any other form or manner that it considers advisable; and
(d) a child who the agency alleges was abused by the applicant shall not be compelled to testify.
Decision of court
19(3.7) The court shall determine whether the person has abused a child and record the reasons for its decision, and its decision is final and not subject to appeal.
Transitional: no review committee decision
19(3.8) Where, immediately before this subsection comes into force,
(a) a notice has been given under subsection 19.1(3), as it read immediately before the coming into force of this subsection, concerning abuse by a person, and the time within which the person might have made an appeal to the registry review committee has not expired; or
(b) the registry review committee has not given its decision on an appeal by the person;
the agency is deemed to have received a report mentioned in subsection (3.2) with respect to the person and shall give the notice required by that subsection and thereafter the matter shall be dealt with under the provisions of this section.
Transitional: appeal permitted or pending
19(3.9) Where, immediately before this subsection comes into force, the registry review committee has given its decision on a matter but the time within which an appeal to the Court of Queen\'s Bench under subsection 19.2(6), as it read immediately before the coming into force of this subsection, has not expired, or an appeal under that subsection has not been finally disposed of, that subsection continues to apply until the time for an appeal expires or any appeal is finally disposed of.
Report to director re. abuser
19(4) An agency shall report to the director for entry in the registry maintained under section 19.1 the name of a person who has abused a child and the circumstances surrounding the abuse where
(a) the agency has information that the person, in a court in Manitoba, was found guilty of, or pleaded guilty to, an offence involving abuse of a child;
(a.1) the agency has information that the person is, or is likely to be, present in Manitoba and the person, in a court outside Manitoba, was found guilty of, or pleaded guilty to, an offence involving abuse of a child; or
(b) the person has been found by a court in a proceeding under this Act to have abused a child;
(c) repealed, S.M. 1997, c. 48, s. 10.
Where report under subsection (4) not required
19(5) No report is required under subsection (4) where a report concerning the person and circumstances has been made to the director under subsection (6) or (7).
Reporting by court
19(6) Where a person, in a court in Manitoba, is found guilty of, or pleads guilty to, an offence involving abuse of a child, or is found in a proceeding under this Act to have abused a child, the court shall report the name of the person, the circumstances of the abuse and, if applicable, the particulars of the offence and any sentence imposed to the director for entry in the registry.
Reporting by peace officer re offence
19(7) If a peace officer, in the course of conducting an investigation or carrying out other duties, obtains information that a person present, or likely to be present, in Manitoba, was found guilty of, or pleaded guilty to, an offence involving abuse of a child
(a) in a court outside Manitoba; or
(b) in a court in Manitoba prior to the coming into force of this subsection;
the peace officer shall report to the director the name of the person and the details of the offence for entry in the registry maintained under section 19.1.
Excluded offences
19(8) For the purpose of this section, \"offence involving abuse of a child\" does not include an offence excluded from the application of this section by regulation.
S.M. 1987-88, c. 68, s. 1; S.M. 1989-90, c. 3, s. 7 to 9; S.M. 1996, c. 4, s. 4; S.M. 1997, c. 48, s. 10.
Child abuse registry
19.1(1) The director shall establish and maintain a child abuse registry in which the director shall enter the information that is required to be entered pursuant to this Act.
Entry in registry
19.1(2) On receipt of a report under subsection 19(3.4), (4), (6) or (7), the director shall enter the name and circumstances in the registry.
S.M. 1987-88, c. 68, s. 1; S.M. 1989-90, c. 90, s. 3; S.M. 1996, c. 4, s. 5; S.M. 1997, c. 48, s. 11.
19.2 Repealed.
S.M. 1987-88, c. 68, s. 1; S.M. 1997, c. 48, s. 12.
Information confidential
19.3(1) All names and information on the child abuse registry are confidential and the director shall allow access to it only in accordance with this section and section 76.
Access by agencies
19.3(2) An agency, on application to the director, shall be given access to the registry where the director is satisfied that the access is reasonably required to assist the agency
(a) in investigating whether a child is in need of protection;
(b) in assessing any person who provides work for or services to the agency, whether as an employee, foster parent, homemaker, parent aide, volunteer, student trainee or in any other way, or any person who applies or proposes to provide work for or services to the agency; or
(c) in assessing an adoptive applicant.
Access by adoption agency
19.3(2.1) An adoption agency licensed under The Adoption Act, on application to the director, shall be given access to the registry where the director is satisfied that the access is reasonably required to assist the adoption agency
(a) in assessing an adoptive applicant; or
(b) in assessing any person who provides work or services to the adoption agency, whether as an employee, volunteer, student trainee or in any other way, or any person who applies or proposes to provide such work or services to the adoption agency.
Access by peace officers
19.3(3) A peace officer, on application to the director, shall be given access to the registry where the director is satisfied that the access is reasonably required to assist the peace officer in carrying out the officer\'s duties.
Access by employers and others
19.3(3.1) On application by an employer or other person, the director shall disclose to the applicant whether the name of a person is entered in the registry if the director is satisfied that the information is reasonably required to assist the applicant in assessing the person whose work, whether paid or unpaid,
(a) involves or may involve the care, custody, control or charge of a child; or
(b) permits or may permit access to a child.
Director to provide information re register
19.3(4) The director shall provide to any person who applies any information contained on the registry respecting that person other than information that may identify a person who made a report under subsection 18(1.1).
Objection to information
19.3(5) Subsections 76(9), (10) and (11) apply with such modifications as the circumstances require to a person who has been given information under subsection (4).
S.M. 1987-88, c. 68, s. 1; S.M. 1990-91, c. 12, s. 2; S.M. 1997, c. 47, s. 131; S.M. 1997, c. 48, s. 13.
Removal of identifying information re abused
19.4(1) The director shall delete from the registry all identifying information relating to a child who is listed as an abused child upon that child attaining 18 years of age.
Removal of identifying information re abuser
19.4(2) Subject to subsection 19.2(8), the director shall remove from the registry all identifying information relating to a person who is listed as an abuser on the later of the day on which
(a) 10 years have elapsed since the last entry relating to the person; or
(b) the child who was abused attains 18 years of age.
S.M. 1987-88, c. 68, s. 1.
19.5 Repealed.
S.M. 1987-88, c. 68, s. 1; S.M. 1989-90, c. 90, s. 3; S.M. 1997, c. 48, s. 15.
Application for an order not to contact child
20(1) Where an agency has reasonable and probable grounds to believe that a person has subjected a child to abuse or is likely to subject a child to abuse, it may apply to court for an order that the person
(a) cease to reside in the same premises in which a child resides;
(b) refrain from any contact or association with a child.
Notice of application
20(2) The agency shall give 7 clear days notice of the hearing on a prescribed form to
(a) the parents or guardian of the child;
(b) any adult residing in the same premises as the child;
(c) the person against whom the order is sought; and
(d) the child where the child is 12 years of age or more.
Order
20(3) Upon completion of the hearing, a judge, if satisfied that the person against whom the order is sought has subjected the child to abuse or is likely to subject the child to abuse, may grant the order with such conditions as the judge considers appropriate for a period not to exceed 6 months.
Extension of order
20(4) On application at any time by an agency, a judge may extend the order under subsection (3) for further periods each of which shall not exceed 6 months.
Consent orders
20(5) Where all the parties consent, a judge or master may, without receiving further evidence, make an order under subsection (3) or (4).
Agency to serve copies of order
20(6) The agency shall cause a true copy of the order to be served upon all persons served with notice of the application.
Offence
20(7) Any person who violates the provisions of an order made under this section is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000. or imprisonment for a term of not more than 24 months, or both.
S.M. 2005, c. 3, s. 3.
Apprehension of a child in need of protection
21(1) The director, a representative of an agency or a peace officer who on reasonable and probable grounds believes that a child is in need of protection, may apprehend the child without a warrant and take the child to a place of safety where the child may be detained for examination and temporary care and be dealt with in accordance with the provisions of this Part.
Entry without warrant in certain cases
21(2) The director, a representative of an agency or a peace officer who on reasonable and probable grounds believes
(a) that a child is in immediate danger; or
(b) that a child who is unable to look after and care for himself or herself has been left without any responsible person to care for him or her;
may, without warrant and by force if necessary, enter any premises to investigate the matter and if the child appears to be in need of protection shall
(c) apprehend the child and take the child to a place of safety; or
(d) take such other steps as are necessary to protect the child.
Warrant to search for child
21(3) On application, a judge, master or justice of the peace who is satisfied that there are reasonable and probable grounds for believing there is a child who is in need of protection, may issue a warrant authorizing an agency or a peace officer
(a) to enter, by force if necessary, a building or other place specified in the warrant and search for the child; and
(b) if the child appears to be in need of protection,
(i) to apprehend the child and to take the child to a place of safety, or
(ii) to take such other steps as are necessary to protect the child.
Child need not be named
21(4) It is not necessary in the application or the warrant to describe a child by name.
Assistance of peace officer
21(5) The director or a representative of an agency who needs assistance in apprehending a child may seek the assistance of a peace officer and the peace officer shall provide the assistance.
S.M. 2005, c. 8, s. 11.
Child in care may be apprehended
22(1) The fact that a child is under the care of an agency or in a treatment centre, hospital or day care facility or the fact that an agency has placed a homemaker or parent aide in the home in which the child has been left does not prevent
(a) a person authorized to do so from apprehending the child as provided in this Part; or
(b) a judge from finding the child to be in need of protection.
Child remaining in hospital as a patient
22(2) Where a child is a patient in a hospital, the person who apprehended the child under this Part may, if so advised by a duly qualified medical practitioner, leave the child in the hospital; and for the duration of the hospitalization the hospital shall be deemed to be a place of safety.
Notification of agency
23 Where a child is apprehended under this Part by a person other than a representative of the agency having jurisdiction in the area where the child was apprehended, the person apprehending shall forthwith notify that agency and provide all particulars with respect to the child.
Parents to be notified of apprehension
24 Where a child has been apprehended and brought to a place of safety, an agency shall make reasonable efforts to notify the parents or guardian of the apprehension of the child.
Care while under apprehension
25(1) Where a child has been apprehended, an agency
(a) is responsible for the child\'s care, maintenance, education and well-being;
(b) may authorize a medical examination of the child where the consent of a parent or guardian would otherwise be required; and
(c) may authorize the provision of medical or dental treatment for the child if
(i) the treatment is recommended by a duly qualified medical practitioner or dentist,
(ii) the consent of a parent or guardian of the child would otherwise be required, and
(iii) no parent or guardian of the child is available to consent to the treatment.
Child\'s consent required if 16 or over
25(2) Notwithstanding clause (1)(b) or (c), if the child is 16 years of age or older, an agency shall not authorize a medical examination under clause (1)(b) or medical or dental treatment under clause (1)(c) without the consent of the child.
Application to court to authorize examination or treatment
25(3) An agency may apply to court for an order
(a) authorizing a medical examination of an apprehended child where the child is 16 years of age or older and refuses to consent to the examination; or
(b) authorizing medical or dental treatment for an apprehended child where
(i) the parents or guardians of the child refuse to consent to the treatment, or
(ii) the child is 16 years of age or older and refuses to consent to the treatment.
Notice of application
25(4) The agency shall notify the parents or guardians of the child and the child, if the child is 16 years of age or older, of the time and place at which an application under subsection (3) is to be heard, and shall do so not less than two days before the time fixed for the hearing.
Abridging notice
25(5) Notwithstanding subsection (4), the court may authorize the giving of a shorter period of notice.
If court documents not filed before hearing
25(6) A judge may hear an application referred to in subsection (3) even though the agency has not filed documents initiating the application in the court if
(a) the judge is satisfied that the life or health of the child would be seriously and imminently endangered by waiting for the necessary court documents to be filed before the application is heard; and
(b) the agency undertakes to file the necessary documents in the court within 24 hours after the hearing.
Evidence received by telephone
25(7) Where an application is made under subsection (3), the judge may receive evidence from a person by telephone or other means of telecommunication if the judge is satisfied that the life or health of the child would be seriously and imminently endangered by waiting to receive the person\'s evidence in person.
Court order authorizing examination or treatment
25(8) Subject to subsection (9), upon completion of a hearing, the court may authorize a medical examination or any medical or dental treatment that the court considers to be in the best interests of the child.
Child\'s consent to order required if 16 or older
25(9) The court shall not make an order under subsection (8) with respect to a child who is 16 years of age or older without the child\'s consent unless the court is satisfied that the child is unable
(a) to understand the information that is relevant to making a decision to consent or not consent to the medical examination or the medical or dental treatment; or
(b) to appreciate the reasonably foreseeable consequences of making a decision to consent or not consent to the medical examination or the medical or dental treatment.
Protection from liability
25(10) If a child is examined or treated under this section, no liability attaches to the agency, the hospital or other facility where the examination or treatment is provided, or the person examining or treating the child by reason only that a parent or guardian of the child, or the child, did not consent to the examination or treatment.
S.M. 1995, c. 23, s. 2.
Leaving child pending protection hearing
26(1) The director, a representative of an agency or a peace officer who on reasonable and probable grounds believes that a child is in need of protection, may leave the child with or return the child to the person in whose charge the child is and notify that person that an application respecting the child will be made to court pursuant to the provisions of this Part.
Agency to be notified
26(2) A person who proceeds under subsection (1) shall forthwith notify the agency having jurisdiction where the child is and provide all particulars with respect to the child.
Deemed apprehension
26(3) Notwithstanding the fact that the child has been left with or returned to the person in whose charge the child was under subsection (1) the child shall solely for the purposes of a hearing under subsection 27(1) be deemed to be under apprehension.
Application to court for protection hearing
27(1) The agency shall, within 4 juridical days after the day of apprehension or within such further period as a judge, master or justice of the peace on application may allow, make an application for a hearing to determine whether the child is in need of protection.
Access pending protection hearing
27(2) The agency shall at the time of making the application under subsection (1) state at what times, if any, and on what conditions it will allow access by the parents or guardian to the child pending the hearing.
Hearing re access by parents or guardian
27(3) Where the parents or guardian do not consent to the access provided by the agency, they may make application to court for a hearing to determine what access provisions are appropriate in the circumstances.
Burden of proof
27(4) The agency shall bear the burden of proof at the hearing under subsection (3) that any limitation of access is reasonable.
Variation of order
27(5) Either party may make an application for a variation of an order under subsection (3) at any time on the grounds that there has been a change in circumstances since the order was granted justifying a change in access or that the access permitted has been shown to be in practice contrary to the best interests of the child.
S.M. 2005, c. 8, s. 11.
Transfer of proceedings to another court
28(1) A judge or master who on application made prior to a hearing under this Part is satisfied that it is appropriate may transfer any proceedings under this Part to a court in another jurisdiction.
Another agency carrying case
28(2) On application made prior to a hearing under this Part by the agency that apprehended the child, a judge or master may order that another agency be substituted for the agency that apprehended for the purposes of the hearing.
S.M. 2005, c. 42, s. 3.
Date when application returnable
29(1) An application under subsection 27(1) shall be returnable within seven juridical days of being filed, or, where there is no sitting of the court in which the application was filed in that period, on the date of the next sitting of the court, or within such further period as a judge, master or justice of the peace may, on application, allow.
Adjournment
29(2) Upon application, a judge, master or justice of the peace may adjourn the hearing from time to time as may be required.
S.M. 1997, c. 48, s. 16; S.M. 2005, c. 8, s. 11.
Notice of hearing
30(1) The agency shall give two clear days notice of the date the application under subsection 27(1) is returnable or is set for hearing, together with particulars of the grounds that are alleged to justify a finding that the child is in need of protection, to
(a) the parents;
(b) the guardians;
(c) the child where the child is 12 years of age or more;
(d) the person in whose home the child was living at the time of apprehension or immediately prior to placement in hospital or other place of safety; and
(e) the agency serving the appropriate Indian band if the agency making the application has reason to believe that the child is registered as an Indian under the Indian Act (Canada);
and no further notice is required to be given by the agency thereafter.
Notice regarding filing of financial information
30(1.1) A notice to a parent or guardian under subsection (1) shall also notify the parent or guardian of the requirements of subsection (1.2).
Filing and service of financial information
30(1.2) A parent or guardian who is given notice under subsection (1) shall, within 10 days of the giving of notice to the parent or guardian, file with the court and serve on the agency the financial information prescribed by the regulations, and, on application without notice, a judge or master may order the parent or guardian to file and serve such information.
Penalty for not filing financial information
30(1.3) Where a parent or guardian fails to comply with subsection (1.2), a judge may, in addition to or in substitution for any other order, on application by the agency order that the parent or guardian pay to the agency an amount not exceeding $5,000. and any such order may be enforced as a judgment of the court.
Reduction in time of notice and waiver of notice
30(2) Notwithstanding subsection (1), a person entitled to receive notice under that subsection may agree
(a) to a reduction in the number of days within which notice shall be given; or
(b) to a complete waiver of notice at any time up to and including the hearing of the application notwithstanding that the hearing may be in progress.
Service of notice
30(3) Unless a judge or master on application directs some other manner of effecting service, notice under subsection (1) shall be
(a) by personal service in the case of an individual; and
(b) in the case of the agency serving the Indian band, either by delivery to an officer of that agency or by registered mail addressed to the head office of that agency.
Judge may dispense with service of notice
30(4) Where under subsection (1) an agency is required to serve a notice of hearing upon an individual, a judge or master may abridge the time for or dispense with service of notice or may direct a manner of effecting substitutional service on that individual.
S.M. 1997, c. 48, s. 17.
Application to intervene
31(1) Prior to the commencement of a hearing under subsection 27(1) and upon giving two clear days notice to the persons entitled to notice under subsection 30(1) any person may apply to court to intervene in the proceedings.
Order
31(2) Upon being satisfied that the person applying under subsection (1)
(a) has or has had a significant relationship with the child; and
(b) can make a significant contribution to the hearing which will be in the child\'s best interests;
a judge or master may order that the person intervene in the proceedings upon the terms and conditions and with the rights and privileges the judge or master determines.
S.M. 1997, c. 48, s. 18.
32(1) Repealed, S.M. 1997, c. 48, s. 19.
Order for further particulars
32(2) A person who is not satisfied with the particulars provided under subsection 30(1) may apply to court for an order that the agency provide further particulars.
Queen\'s Bench rules re: discovery not to apply
32(3) The rules of the Court of Queen\'s Bench regarding examination for discovery and examination of documents do not apply to a hearing under this Part.
S.M. 1997, c. 48, s. 19.
Presence of child under 12 not required
33(1) In proceedings under this Part, the presence of a child less than 12 years of age is not required unless a judge or master on application so orders.
Presence of child 12 or over required
33(2) In proceedings under this Part, the presence of a child 12 years of age or older is required unless a judge or master on application orders that the child not be present.
Right to counsel
34(1) Subject to subsections (1.1) and (2), a judge or a master shall, before the commencement of a hearing under section 27, advise any person who was given notice of the hearing under section 30 and who is present at the hearing that the person has the right to be represented by legal counsel.
Legal counsel for parent who is a child
34(1.1) Where a parent of a child who is the subject of a hearing under section 27 is a child and is 12 years of age or older, the parent has the right to retain and instruct legal counsel in respect of the hearing without having a litigation guardian appointed for the parent.
Counsel for child
34(2) In the case of the child who is the subject of the hearing, a judge or master may order that legal counsel be appointed to represent the interests of the child and, if the child is 12 years of age or older, may order that the child have the right to instruct the legal counsel.
Factors affecting need for counsel for child
34(3) In making an order under subsection (2), the judge or master shall consider all relevant matters including,
(a) any difference in the view of the child and the views of the other parties to the hearing;
(b) any difference in the interests of the child and the interests of the other parties to the hearing;
(c) the nature of the hearing, including the seriousness and complexity of the issues and whether the agency is requesting that the child be removed from the home;
(d) the capacity of the child to express his or her views to the court;
(e) the views of the child regarding separate representation, where such views can reasonably be ascertained; and
(f) the presence of parents or guardians at the hearing.
S.M. 1992, c. 29, s. 24; S.M. 1993, c. 48, s. 4.
Cross-examination of parents
35 Notwithstanding any other provision of this or any other Act, an agency may, by serving notice of its intention to do so 14 days before a hearing under this Part, or such shorter period as the court may allow, call the parent or guardian or both of the child who is the subject of an application under this Part as a witness and any person so called shall be treated as a hostile witness.
Proceedings informal
36 Proceedings under this Part may be as informal as a judge or master may allow and no order under this Part shall be set aside because of any lack of formality at the hearing or for any other technical reason not affecting the merits of the case.
Power of court
37(1) A judge or master may for the purposes of a hearing under this Part
(a) compel on his or her own motion the attendance of any person and require that person to give evidence under oath and to produce such documents and things as may be required;
(b) accept evidence by affidavit;
(c) accept as evidence a report completed by a duly qualified medical practitioner, dentist, psychologist or registered social worker as evidence without proof of the signature or authority of the person signing it.
Court may direct investigation
37(2) In a proceeding under this Part, and upon being satisfied that it is necessary in order to determine the best interests of the child, a judge or master may direct an investigation into any matter by a person who has had no previous connection with the parties to the proceeding or to whom each party consents.
Refusal to co-operate
37(3) Where the court directs an investigation pursuant to subsection (2) and a party refuses to co-operate with the investigator, the investigator shall so report to the court which may draw any inference therefrom it considers appropriate.
Orders of the judge
38(1) Upon the completion of a hearing under this Part, a judge who finds that a child is in need of protection shall order
(a) that the child be returned to the parents or guardian under the supervision of an agency and subject to the conditions and for the period the judge considers necessary; or
(b) that the child be placed with such other person the judge considers best able to care for the child with or without transfer of guardianship and subject to the conditions and for the period the judge considers necessary; or
(c) that the agency be appointed the temporary guardian of a child under 5 years of age at the date of apprehension for a period not exceeding 6 months; or
(d) that the agency be appointed the temporary guardian of a child 5 years of age or older and under 12 years of age at the date of apprehension for a period not exceeding 12 months; or
(e) that the agency be appointed the temporary guardian of a child of 12 years of age or older at the date of apprehension for a period not exceeding 24 months; or
(f) that the agency be appointed the permanent guardian of the child.
Consent orders
38(2) Where all persons who have received notice under subsection 30(1) consent, a judge or master may, without receiving further evidence, make an order respecting the child under subsection (1), and a person who was served but does not appear or with respect to whom an order was made dispensing with service is deemed to consent.
Child support orders
38(3) Where an order is made under clause (1)(b), (c), (d) or (e) with respect to a child, the judge at the time of making the order, or any judge at a subsequent time, shall order the parent or guardian to pay to the agency such maintenance for the child by way of lump sum, periodic payments, or both, as is appropriate.
Factors in making order
38(3.1) Subsection 15(3.4) applies with such modifications as the circumstances require to an order under subsection (3).
Maintenance effective from provision of services
38(3.2) An order under subsection (3) may be made effective from the date of the apprehension of the child.
Variation of order
38(4) Upon application made by any person who is affected by an order made under subsection (3) and upon sufficient cause being shown, a judge may alter, vary, or discharge the order.
Effective date of order
38(5) An order made under this section is effective from the date of pronouncement.
Right to enter home
38(6) Where a judge or master makes an order under clause (1)(a) or (b) any representative of the agency under whose supervision the child is placed has the right to enter the home where the child is to provide guidance and counselling and to ascertain that the child is being properly cared for and maintained and any person who obstructs the representative in so doing is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000. or imprisonment for a term of not more than 24 months, or both.
Further apprehension of child
38(7) Where an agency that is authorized pursuant to subsection (1) to exercise supervision over a child finds that the child is not being properly cared for and maintained or that the child is in need of protection, the child may be apprehended notwithstanding the order made under subsection (1).
Distribution of order
38(8) A copy of an order made under subsection (1) or (2) shall be mailed or delivered by the court to
(a) the director;
(b) the agency;
(c) the parents and guardian unless they were served substitutionally or service was dispensed with;
(d) the child where the child is 12 years of age or older;
(e) the agency serving the Indian band with which the child is registered, if applicable; and
(f) any person granted status under section 31.
S.M. 1997, c. 48, s. 20; S.M. 2005, c. 3, s. 4.
Joint orders prohibited
38.1 No court shall make an order under which the director or an agency is appointed the guardian of a child jointly with any other person.
S.M. 1997, c. 48, s. 20.
Access by parents during temporary order
39(1) Where a judge or master makes an order under clause 38(1)(b), (c), (d) or (e), the parents or guardian shall have reasonable access to the child.
Application to determine access during temporary order
39(2) Where the parents or guardian and the agency are unable to agree as to what constitutes reasonable access to the child, either party may make an application to the judge or master who made the order for an order determining what provisions as to access are appropriate in the circumstances and the agency shall bear the burden of proof that any limitation of access is reasonable.
Access by parents during permanent order
39(3) Subject to subsection (4), where a judge makes an order under clause 38(1)(f) the agency shall have complete discretion as to the access, if any, which the parents or guardian shall have to the child.
Application to determine access where permanent order
39(4) Where the parents or guardian are dissatisfied as to the access, if any, which the agency is willing to grant them under subsection (3) they may make an application to the judge who made the order for an order determining what provisions as to access, if any, are appropriate.
Variation of order under subsec. (2) or (4)
39(5) Either party may make a further application to the judge or master who made the order under subsection (2) or (4) for a variation of the order on the grounds that there has been a change in circumstances or that the access permitted has been contrary to the best interests of the child.
No application where child placed for adoption
39(6) No application shall be made under subsection (4) or (5) where the child has been placed for adoption under The Adoption Act.
Where judge unable to act
39(7) Where the judge or master who made the order is unable for any reason to hear an application under subsection (2), (4) or (5) any judge of the same court may hear the application.
S.M. 1997, c. 47, s. 131.
Further hearings
40(1) Notwithstanding an order under clause 38(1)(a), (b), (c), (d) or (e), any judge may, at any time the order is in force and upon application by the agency, parent or guardian of the child or person with whom the child was placed under clause 38(1)(b), hold further hearings to determine whether the child would be in need of protection if returned to the parents or guardian.
Former order deemed to be continued
40(2) Where the date fixed for the hearing of an application under subsection (1) falls on or after the expiry date of the former order, the former order shall be deemed to continue until the application is either withdrawn or is disposed of.
Further orders
40(3) Upon the conclusion of the hearing, the judge,
(a) if satisfied that the child would not be in need of protection, shall order that the child be returned to the parents or guardians;
(b) if satisfied that the child would be in need of protection, shall extend the previous order or make any of the other orders under section 38.
Consent orders
40(3.1) Where all persons who have received notice of an application under subsection (1) consent, a judge or master may, without receiving further evidence, make an order respecting the child under subsection (3), and a person who was served but does not appear or with respect to whom an order was made dispensing with service is deemed to consent.
Provisions of Part apply
40(4) The provisions of this Part apply with the necessary changes to a hearing under this section.
S.M. 1997, c. 48, s. 21.
Maximum period of temporary guardianship
41(1) The total period of temporary guardianship shall not exceed
(a) 15 months with respect to a child under 5 years of age; or
(b) 24 months with respect to a child 5 years of age or older and under 12 years of age.
Extension of guardianship for child over 12
41(2) A judge may extend the order of guardianship of a child 12 years of age or over for further periods not exceeding 24 months each.
Age for purposes of subsecs. (1) and (2)
41(3) A child who was under 5 years of age when apprehended, shall be deemed for the purposes of clause (1)(a) to be a child under 5 years of age even if at the time of making the order the child is 5 years of age or more but in all other cases the court shall be governed by the age of the child at the time of making the order.
Child in care of the agency appearing
42 The judge or master making an order that an agency shall be a guardian shall appoint as guardian either the agency appearing at the hearing or another agency when the agency appearing files that other agency\'s consent.
Appeal from order of master
43(1) An order of a master under this Part may be appealed to a judge of the Court of Queen\'s Bench of Manitoba (Family Division) within 21 days from the date on which the master signed the order appealed against or within such further time as a judge of that court may allow.
Notice of appeal from master
43(2) A true copy of a notice of appeal filed under subsection (1) shall be served personally or by registered mail or by such other means as a judge may direct within 10 days from the date of filing thereof upon
(a) all parties affected thereby; and
(b) the director.
Hearing de novo
43(3) An appeal under subsection (1) shall be a hearing de novo.
S.M. 1987-88, c. 34, s. 2; S.M. 1997, c. 48, s. 22.
Appeal from order of a judge
44(1) An order of a judge under this Part may be appealed to the Court of Appeal within 21 days from the date on which the judge signed the order appealed against.
Extension of time for appeal
44(2) The time for appeal under subsection (1) may be extended by a judge of the Court of Appeal sitting in chambers if good cause is shown for the delay and if the child has not been placed for adoption.
Filing and service of notice of appeal
44(3) Within 10 days from the date of the filing of the notice of appeal a true copy thereof shall be served personally or by registered mail or by such other means as the court may direct, upon
(a) all parties affected thereby; and
(b) the director.
Status of child during appeal
44(4) Where a judge has found that a child is not in need of protection or made an order under clause 38(1)(a) or (b) the agency shall release the child from its care and control in accordance with the terms of the order within 14 days of the date on which the judge pronounced the order, unless within that period it obtains from a judge of the Court of Appeal in chambers an order that the child remain in the care and control of the agency pending the disposition of the appeal.
Effect of order of permanent guardianship
45(1) An order of permanent guardianship operates as an absolute termination of parental rights and obligations and the agency may, following the expiration of the allowable period of appeal under section 44, place the child for adoption in accordance with The Adoption Act.
Termination of permanent guardianship on application
45(2) The agency having permanent guardianship of a child may apply to court for an order that the guardianship be terminated.
Application by parents to terminate permanent guardianship
45(3) The parents of a child with respect to whom an order of permanent guardianship has been made may apply to court for an order that the guardianship be terminated if
(a) the child has not been placed for adoption; and
(b) one year has elapsed since the expiry of the parents\' right to appeal from the guardianship order or, if an appeal was taken, since the appeal was finally disposed of.
Order
45(4) A judge hearing the application under subsection (2) or (3) may
(a) terminate the permanent order and return the child to the parents; or
(b) terminate the permanent order and make an order under clause 38(1)(a), (b), (c), (d) or (e); or
(c) dismiss the application.
No application for another year
45(5) Where the judge dismisses the application, the parents may not bring another application under subsection (3) until 1 year has elapsed from the dismissal.
S.M. 1997, c. 47, s. 131; S.M. 1997, c. 48, s. 23.
Family member assuming care
46 Where prior to apprehension a member of the child\'s family had in fact assumed care and control of the child, that member has the same rights as a guardian under this Part.
47 Repealed. |
