Children and the Law (3:XII)

A. Relevant Ages

1. Age of Majority

The Age of Majority Act, RSBC 1996, c 7, s 1 provides that the age of majority in B.C. is 19 years. Section 1 also applies to private documents, such as wills. A person’s age is determined by the provisions set forth in s 25(8) of the Interpretation Act, RSBC 1996, c 238.

2. Other Relevant Ages

a) Criminal Liability

A person must be 12 years of age or older to be liable for a criminal offence (Criminal Code, R.S.C. 1985, c 46, s 13). A person between the ages of 12 and 17, inclusive, can be criminally liable as a young offender under the Youth Criminal Justice Act [YCJA].

The YCJA came into force on April 1, 2003. The purpose of the Act is, in part, to repeal and replace the Young Offenders Act, RSC 1985, c Y-1 and to provide principles, procedures, and protections for the prosecution of young persons under criminal and other federal laws. For more information, see Chapter 2: Youth Justice.

b) Attending Restricted and Adult Films (Without Being Accompanied by a Responsible Adult)

In 1997, the Director of Film Classification revised the classification system for motion pictures. A person under the age of 18 years is classified as a minor (Motion Picture Act, RSBC 1996, c 314, s 1). Minors may not view films classified as “Restricted” or “Adult”, and may not view films labelled as “18A” unless accompanied by an adult (Motion Picture Act Regulations, BC Reg 260/86, s 3).

c) Possession and Consumption of Alcohol

A person must be at least 19 years of age to lawfully possess or consume alcohol in B.C. (Liquor Control and Licensing Act, RSBC 1996, c 267, s34).

d) Ability to Obtain a Driver's License

An individual must be 19 to qualify for a driver’s licence. If an individual is between 16 and 18 years of age, a parent or guardian must submit the application for the driver’s licence in the form required by the Insurance Corporation of British Columbia verified by affidavit (Motor Vehicle Act, RSBC 1996, c 318, s 32). The Insurance Corporation of British Columbia (“ICBC”) will never grant a licence to someone under the age of 16. For more information, see Chapter 12, Automobile Insurance (ICBC).

e) Ability to Work

Any person aged 15 years or over may work. A child between the ages of 12 and 14 needs written permission from their parent or guardian prior to working. A child under the age of 12 must have both the written consent of the parent or guardian and the written permission of the Director of Employment Standards prior to working. For more information, see Chapter 9, Employment Law.

= f) Sexual Consent

As of 1890, the age of consent for sexual activity was set at 14 years. Recently, the age of consent in Canada has been changed from 14 to 16 years (Tackling Violent Crime Act, Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, 39th Parliament, 2nd Session, October 2007, effective May 1st, 2008). However, if the sexual activity involves exploitative activity, such as prostitution, pornography or where there is a relationship of trust, authority or dependency, the age of consent is 18 years.

Section 150.1(3) of the Criminal Code provides what is often referred to as a “close in age” or “peer group” exception: a 12 or 13 year old can consent to engage in sexual activity with another person who is less than two years older and with whom there is no relationship of trust, authority or dependency. A 14 or 15 year old can consent to engage in sexual activity with a partner who is less than five years older with whom there is no relationship of trust, authority or dependency. An exception is also available for pre-existing marriages and equivalent relationships.

g) Marriage

Both parties to the marriage must be at least 19 years old. However, the Marriage Act, RSBC 1996, c 282, provides that:

• individuals between the ages of 16 and 19 may marry without the consent of anyone if they are a widower or widow (s 28(1)), and,
• other persons between the ages of 16 and 19 may marry if they have the consent of:
  • a) both parents or of the parent having sole guardianship, or the surviving parent (s 28(1)(a);
  • b) a lawfully appointed guardian of that person (s 28(1)(b));
  • c) the Public Guardian if both parents are dead and there is no lawfully appointed guardian (s 28(1)(c)); or
  • d) a judge of the Supreme Court (usually only where the parent’s consent is unreasonably withheld) (s 28(2)).

No person under the age of 16 can marry unless the marriage is shown to a Supreme Court judge to be expedient and in the interest of the parties (s 29). If the parent or guardian “unreasonably or from undue motives refuses or withholds consent to the marriage,” a minor may apply to court for a declaration to allow the marriage (s 28(2)).

Section 28(6) provides that a marriage of a minor must not be solemnized, and a license must not be issued, unless a birth certificate or other satisfactory proof of age has been produced to the issuer of marriage licenses or to the religious representative.

However, s 30 provides that failure to comply with ss 28 or 29 will not invalidate a marriage that has taken place. In other words, if someone manages to get married at 15 and obtains a valid marriage license, the marriage is valid.

h) Ability to Make a Will

Under s 36 of the Wills, Estates and Succession Act, RSBC 2009, c 13, a will made by a person under the age of 16 is not valid unless he or she is on active service with the Canadian Armed Forces or any armed forces of the British Commonwealth of Nations or any ally of Canada. For more information, see Chapter 16, Wills and Estates.

B. Child Abduction

1. Criminal Code

Sections 280 to 285 of the Criminal Code deal with the offences of abduction. Section 282(1)provides that:

Everyone who, being the parent, guardian or person having the lawful care or charge of a person under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that person in contravention to the custody provisions of a custody order in relation to that person made by a court anywhere in Canada with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person of the possession of that person is guilty of an indictable offence (maximum 10 years imprisonment)... or an offence punishable on summary conviction.

Section 283 creates a similar offence for circumstances in which there is no custody order.

NOTE: One should be especially careful when giving advice in custody disputes to avoid inadvertently giving advice that may lead to the commission of these offences. If there is evidence that a parent may abduct a child, or if there is evidence that visits are very “disturbing and harmful”, access may be denied. See Re Sharp (1962), 36 DLR (2d) 328 (BCCA).

2. Child Abduction Convention

The Hague Convention on the Civil Aspects of International Child Abduction enables a person whose custody rights have been violated to apply to a “Central Authority” (each party to the convention must create such a body) for the voluntary return of the child, or to apply for a court order. Keep in mind that not every country is a signatory to the Hague Convention. Applications can be made either in the person’s jurisdiction or in the jurisdiction to which the child has been abducted.

Each Central Authority has several tasks:

• i) to discover the whereabouts of the child;
• ii) to take precautions to prevent harm to the child;
• iii) to encourage voluntary return of the child or some other agreeable arrangement;
• iv) to facilitate administrative processes; and
• v) to arrange for legal advice where necessary.

It appears that the Convention applies where the parents are formally separated and the child has been in the sole custody of one parent.

Finally, it should be noted that the Central Authority does not decide the merits of any custody order. It is merely an enforcement agency.

A federal coordinator of the Department of Justice deals with abductions to France, Switzerland, Portugal and Canada. The contact number is (613) 995-6426.

If the child has been taken to another jurisdiction, contact the Department of External Affairs, 125 Sussex Drive Ottawa, K1A 0G2. Attention: J.L.A. The contact number is (613) 995-8807.

A further resource in the case of abductions and violations of custody orders is the office of the Child Youth and Family Advocate, 600-595 Howe Street, Vancouver, BC. The contact number is (604) 775-3203.

C. Discipline

The Criminal Code (s 43) allows a parent, a person standing in the place of a parent, or a school teacher to discipline a child, by way of correction, provided that only reasonable force is used. However, section 76(3) of the School Act, RSBC 1996, c 412 requires that teachers ensure the discipline is similar to that of a kind, firm, and judicious parent, and must not include the use of corporal punishment.

The Supreme Court of Canada examined s 43 in Canadian Foundation for Children, Youth and the Law v. Canada, [2004] SCC 4, 16 C.R. (6th) 203. The Court held that section 43 does not violate the constitutional rights of children. The discipline must be “by way of correction” meaning “only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour” (para 24). Furthermore, the Court provided a comprehensive definition of “reasonable force”:

Generally, section 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver's frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered.

D. Child Protection

Under the Child, Family and Community Service Act [CFCSA], a Director or member of the municipal or provincial police forces can apprehend any child under the age of 19 years when the child is believed to be in need of protection or care. Section 6 lists conditions justifying temporary protective custody under this Act.

Within seven days after the child’s removal, a Director must attend Supreme or Provincial Court for a presentation hearing. The Director must, if possible, inform the child, if 12 years of age or over, andeach parent of the time, date, and place of the hearing. If the situation warrants it, a hearing may result in temporary (or permanent) custody of the child being given to the Director or some other agency.

1. Principles

The CFCSA codifies child protection remedies available in B.C. It also gives specific rights to children in care under the Act (section 70). The Representative for Children and Youth Act, SBC 2006, c 29 s 6 provides that it is the responsibility of the Representative to:

• support, assist, inform and advise children and their families respecting designated services;
• monitor, review, audit and conduct research on the provision of a designated service by a public body or director for the purpose of making recommendations to improve the effectiveness and responsiveness of that service, and comment publicly on any of these functions
• review, investigate and report on the critical injuries and deaths of children as set out in Part 4

The guiding principles in section 2 of the CFCSA provide that:

• children are entitled to be protected from abuse, neglect, harm, or threat of harm;
• the family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;
• if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;
• the child’s views should be considered when decisions relating to that child are made;
• kinship ties to extended family should be maintained;
• the cultural identity of Aboriginal children should be preserved; and
• decisions relating to children should be made and implemented in a timely manner.

B.C. Children and Youth Review: An Independent Review of B.C.'s Child Protection System (April 7, 2006) recommends a number of changes to the sections discussed in this chapter, including the appointment of a Representative for Children and Youth. The full report can be viewed online at http://www.cecw-cepb.ca/publications/946.

2. Best Interests of the Child

Section 4 of the Child, Family and Community Service Act [CFCSA] defines “best interests of the child” somewhat differently than does the Family Relations Act and the FLA. Factors that must be considered under the CFCSA include:

• the child’s safety;
• the child’s physical and emotional needs and level of development;
• continuity in child care;
• the quality of relationships with parents;
• the child’s cultural, racial, linguistic and religious heritage;
• the child’s views; and
• the effect on the child of any delays in making a decision.

Section 4(2) mandates that, in assessing the best interests of Aboriginal children, the importance of preserving the child’s cultural identity must be considered.

The CFCSA definition of when a child needs protection includes the following (s 13):

• situations where there is a risk of physical or sexual abuse, harm, or exploitation;
• emotional harm by a parent’s conduct;
• deprivation of necessary health care;
• situations where the parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care; and
• where the child has been abandoned and adequate provision has not been made for the child’s care.

See s 13 for a complete enumeration of circumstances where children need protection.

3. Duty to Report Need for Protection

The Child, Family and Community Service Act [CFCSA] (s 14(1)) requires someone who believes a child is being or is likely to be physically harmed, sexually abused, or exploited to report the matter to the Ministry of Children and Family Development. The Helpline for Children (310-1234) provides 24-hour access to social workers in case of an emergency.

Reports to the Ministry are anonymous. No action lies against a person making a report unless it is made maliciously or without reasonable grounds. Failure to report cases of abuse or exploitation constitutes an offence (s 14(3)), even when the information was confidential or privileged, except for when the information was obtained through a solicitor-client relationship (s 14(2)). The Director under the CFCSA must assess the information reported (s 16). Case law has demonstrated that the duty of the director to act is actually broader than the legislated duty: see BS v British Columbia (Director of Children, Family, and Community Services), [1998] 8 WWR 1 (BCCA).

E. Removal

Under the Child, Family and Community Service Act [CFCSA], the Ministry for Children and Families has different options to deal with an unattended child (s 25), or a lost or runaway child (s 26). Pursuant to these sections, the Ministry can take the child for up to 72 hours without formally removing the childfrom his or her parents. Furthermore, the Ministry can take a child away to provide essential health care without legally removing the child, provided that the Ministry first obtains a court order under s 29 of the CFCSA. In situations where there are reasonable grounds to believe that the child’s health or safety are in immediate danger, a police officer may take charge of the child (s 27).

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