Wednesday, November 25, 2009

Enforcement Provisions for Child and Family Services Act

Many of Ontario's laws have what are called Offence Provisions contained with in them. They are basically paragraphs (called sections) that tell a person if it is an offence for them to do something or not to do something when they are supposed to.

The Child and Family Services Act which governs or controls how child protection services are to be dealt with only contains a few offence provisions in it that allow citizens to press what are called "Provincial Offence Charges" (not Criminal Code offences) against someone who has committed the offence shown. (usually sexual or physical abuse of a child)

However, there is nothing in the Act which forces the Children's Aid Societies and foster homes to obey all parts of their governing legislation (the Child and Family Services Act)

Therefore, I propose that before March 2010 (when the Ministry of Children and Youth Services in Ontario is supposed to review the Child and Family Services Act) that every citizen who is interested in protecting children in foster care from abusive or neglectful behaviour by Children's Aid Societies, their staff, and foster and group homes, that they write a letter to the Minister of Children and Youth Services asking that a new offence provision be added to the Child and Family Services Act which could be used by citizens to hold officials accountable by allowing them to press provincial offences charges against those wrongdoers where doing so would have to be approved by a Justice of the Peace with appropriate supporting evidence.

If you write such a letter to the Minister of Children and Youth Services and you want your letters to be made available to the media and to the public (individuals letters to the Ministry are not available to people via FIPPA requests) you have to include a copy of your letter to me at johndunn@afterfostercare.ca so that we can collect them and publish them on our website.

Your letter could be similar to this.

Minister of Children and Youth Services
Ministry of Children and Youth Services
M-1B114, Macdonald Block
900 Bay Street
Toronto ON M7A 1N3
Canada

Hon. Laurel Broten

Many of Ontario's laws have offence provisions contained within in them. As you are aware, offence provisions are basically paragraphs or sections of an Act which tell a person or corporation if it is an offence for them to do something or not to do something when they are required to do so and these provisions allow citizens or officials to enforce those provisions by bringing evidence of such offences to a Justice of the Peace under section 23 of the Provincial Offences Act

The Ontario Child and Family Services Act has a provision which protects child welfare staff from liability when something goes wrong, unless you can prove they did the wrongdoing in "bad faith" which is an exceptionally high bar to meet as doing so would require getting evidence which might only have been discussed within the walls of the agency or in their records or e-mails which are not accessible by clients or public. That provision is shown below for your convenience.

CFSA
Protection from personal liability
15. (6) No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty. R.S.O. 1990, c. C.11, s. 15 (6).


The reason for this protection provision being put in place was due to a policy decision to encourage people to work in the child welfare field without fear of getting sued repeatedly by the many clients they deal with, however, it has also encouraged a culture of invincibility among Children's Aid Societies and their staff and directors which has often led to illegal conduct, not following provisions of the Acts they are subject to, and other forms of wrong doing.

Suggested Child and Family Services Act Amendment
Therefore, I would like to suggest to you during the 2010 mandatory review of the Child and Family Services Act by your Ministry that offence provisions be added to the Act to ensure that everyone complies with all parts of the Act in both the public interest, and in the best interests of children and youth in care.

A sample taken from section 58 of the Vital Statistics Act (regarding adoption records) of an appropriate provision to be added to the Child and Family Services Act is provided below which would ensure child welfare officials obey the statute which governs them.

General offence
58. Every person guilty of any act or omission in contravention of this Act or the regulations for which no penalty is otherwise provided is guilty of an offence and on conviction is liable to a fine of not more than $50,000 for an individual or $250,000 for a corporation. 2001, c. 21, s. 14; 2002, c. 18, Sched. E, s. 9 (5).


CC: Andrea Horwath - NDP Child Welfare Critic
Sylvia Jones - PC Child Welfare Critic
Various Media Outlets


Yours truly

John Dunn

1 comment:

  1. Excellent idea. There should also be civil liability and penalties involved as well.

    ReplyDelete