Legal Studies 1030

Section 2 - The Law and the Best Interests of Children

Lesson 10 - Child Neglect and Abuse

In Canada, children have legal protection from child abuse, which is any form of behaviour that endangers the development, security or survival of a child. The main forms of abuse are:

  1. Child Neglect: Failure to look after a child's physical, emotional, and psychological needs - for example, failure to provide adequate food, clothing, shelter, sleep, medical care, and emotional warmth.
  2. Physical Abuse: Deliberate physical force used against a child - for example, shaking, choking, hitting, biting, kicking, burning, or poisoning
  3. Sexual Abuse: Sexual activity with a child - for example, incest, inappropriate touching, juvenile prostitution, intercourse, sexual exploitation, involving a child in the production of pornography.
  4. Emotional Abuse: Attacks on a child's sense of self-worth - for example, constant yelling, insults, rejection, terrorizing, or humiliation. This can be the most difficult type of abuse to identify and prove.

Procedures for reporting child abuse vary throughout Canada, but you can report child abuse to any of the following authorities:

  • Children's Aid Society;
  • Provincial Child Welfare Agency;
  • Social Workers;
  • Police;
  • Crown Prosecutors.

To encourage people to report suspected cases of neglect and abuse, provincial and territorial legislation treats the information received as confidential - the identity of the person making a report is not revealed unless it is necessary for a court hearing.

Can you think of other authorities where you live to whom you could report child abuse?

Child Custody:

When parents split up, custody means which parent the child/children will live with; this parent will have care and control of the children. Therefore, the non-custodial parent is the parent that does not live with the children and who may or may not have access to the children. Access is the non-custodial parent's right to information and to visitation with the child/children.

If the care and control of the child/children is shared by both parents, this is known as joint custody.

How does a judge in Canada determine custody and access, and what is in the best interests of the child? Here are some key factors judges consider:

  1. The child's needs (mental, emotional and physical health).
  2. The stability of the home environment - in other words, is the home a safe, positive environment for the child?
  3. The belief that keeping siblings together as often as possible is a good thing.
  4. The parent-child relationships; do the parent and child bond (connect on an emotional level) with one another?
  5. The child's culture and religion.
  6. The parenting abilities of each parent and each parent's plan for the child's care.
  7. Parental conduct - for example; is there any alcohol abuse or drug abuse by either of the parents? Is either parent abusive toward the children?
  8. The support available from relatives, grandparents, neighbours, and friends.
  9. The child's wishes, depending on age and maturity.

(For you to think about: What would you consider to be the three most important factors here for a judge to consider in a custody issue, and why?)

We have said that access is the non-custodial parent's right to information and to visitation with the child/children. Consider the following case study - what happens if the parent who has custody wishes to move away?

Case study: Custody - Bjornson v Creighton

Easier for custodial parents to move with their children:

In Bjornson v Creighton (2002), O.J. No. 4364, the Ontario Court of Appeal allowed the custodial mother to move from Waterloo to Calgary with her 6 year old son. This was despite the fact that the father was, according to the court, a loving parent who frequently saw his son and was active in his son's upbringing.

While the court did not go as far as automatically allowing custodial parents to move their children, the court made it very difficult for these moves to be opposed. In the past, courts have rejected such moves on the grounds that it is in the best interests of children to have maximum contact with both parents. In this case, the court gave much less weight to this factor, and stressed the importance of preserving the child's primary care-giving environment.

As well, the father was required to pay $23,000 of the mother's legal costs, in addition to his own legal costs of $25,000.

Opposing a custodial parent's move has always been difficult. This case has made it even more difficult and expensive than before.

(For you to think about: The judge here made two important decisions: one regarding custody, and one regarding legal costs. Do you agree with the judge's decisions here? Why or why not?)