Bill 210, Child and Family Services Statute Law Amendment Act, 2006

Chambers, Hon. Mary Anne V. Minister of Children and Youth Services

Versions

Bill 210 2006

An Act to amend the
Child and Family Services Act
and make complementary
amendments to other Acts

Note: This Act amends or repeals more than one Act. For the legislative history of these Acts, see Public Statutes - Detailed Legislative History on www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

1. Paragraph 3 of subsection 1 (2) of the Child and Family Services Act is repealed and the following substituted:

3. To recognize that children's services should be provided in a manner that,

i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

2. (1) Subsection 3 (1) of the Act is amended by adding the following definitions:

"extended family" means persons to whom a child is related by blood, through a spousal relationship or through adoption and, in the case of a child who is an Indian or native person, includes any member of the child's band or native community; ("famille élargie")

"relative" means, with respect to a child, a person who is the child's grandparent, great-uncle, great-aunt, uncle or aunt, whether by blood, through a spousal relationship or through adoption; ("parent")

(2) The definition of "residential service" in subsection 3 (1) of the Act is repealed and the following substituted:

"residential service" means boarding, lodging and associated supervisory, sheltered or group care provided for a child away from the home of the child's parent, other than boarding, lodging or associated care for a child who has been placed in the lawful care and custody of a relative or member of the child's extended family or community, and "residential care" and "residential placement" have corresponding meanings; ("service en établissement", "soins en établissement", "placement en établissement")

(3) Section 3 of the Act is amended by adding the following subsection:

Child's community

(3) For the purposes of this Act, the following persons are members of a child's community:

1. A person who has ethnic, cultural or religious ties in common with the child or with a parent, sibling or relative of the child.

2. A person who has a beneficial and meaningful relationship with the child or with a parent, sibling or relative of the child.

3. Subsection 17 (2) of the Act is repealed.

4. The Act is amended by adding the following section:

Designation of places of safety

18. For the purposes of Part III, a Director or local director may designate a place as a place of safety and may designate a class of places as places of safety.

5. The Act is amended by adding the following section:

Resolution of issues by prescribed method of alternative dispute resolution

20.2 (1) If a child is or may be in need of protection under this Act, a society shall consider whether a prescribed method of alternative dispute resolution could assist in resolving any issue related to the child or a plan for the child's care.

Where child is Indian or native person

(2) If the issue referred to in subsection (1) relates to a child who is an Indian or native person, the society shall consult with the child's band or native community to determine whether an alternative dispute resolution process established by that band or native community or another prescribed process will assist in resolving the issue.

Children's Lawyer

(3) If a society or a person, including a child, who is receiving child welfare services proposes that a prescribed method of alternative dispute resolution be undertaken to assist in resolving an issue relating to a child or a plan for the child's care, the Children's Lawyer may provide legal representation to the child if in the opinion of the Children's Lawyer such legal representation is appropriate.

Notice to band, native community

(4) If a society makes or receives a proposal that a prescribed method of alternative dispute resolution be undertaken under subsection (3) in a matter involving a child who is an Indian or native person, the society shall give the child's band or native community notice of the proposal.

6. (1) The definition of "extended family" in subsection 37 (1) of the Act is repealed.

(2) The definition of "place of safety" in subsection 37 (1) of the Act is repealed and the following substituted:

"place of safety" means a foster home, a hospital, a person's home that satisfies the requirements of subsection (5) or a place or one of a class of places designated as a place of safety by a Director or local director under section 18, but does not include,

(a) a place of secure custody as defined in Part IV, or

(b) a place of secure temporary detention as defined in Part IV. ("lieu sûr")

(3) Paragraph 6 of subsection 37 (3) of the Act is repealed and the following substituted:

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

(4) Section 37 of the Act is amended by adding the following subsection:

Place of safety

(5) For the purposes of the definition of "place of safety" in subsection (1), a person's home is a place of safety for a child if,

(a) the person is a relative of the child or a member of the child's extended family or community; and

(b) a society or, in the case of a child who is an Indian or native person, an Indian or native child and family service authority designated under section 211 of Part X has conducted an assessment of the person's home in accordance with the prescribed procedures and is satisfied that the person is willing and able to provide a safe home environment for the child.

7. (1) Clause 48 (2) (b) of the Act is repealed and the following substituted:

(b) where the child is in a society's care under an order for society wardship under section 57 or an order for Crown wardship under section 57 or 65.2, the hearing shall be held in the society's territorial jurisdiction; and

(2) Clause 48 (2) (c) of the Act is amended by striking out "under section 57" and substituting "under section 57 or 65.2".

8. (1) Clause 51 (2) (b) of the Act is amended by striking out "relating to the child's supervision".

(2) Clause 51 (2) (c) of the Act is amended by striking out "relating to the child's supervision".

(3) Section 51 of the Act is amended by adding the following subsections:

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

9. The Act is amended by adding the following section:

Use of prescribed methods of alternative dispute resolution

51.1 At any time during a proceeding under this Part, the court may, in the best interests of the child and with the consent of the parties, adjourn the proceeding to permit the parties to attempt through a prescribed method of alternative dispute resolution to resolve any dispute between them with respect to any matter that is relevant to the proceeding.

10. (1) Subsection 54 (1) of the Act is repealed and the following substituted:

Order for assessment

(1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

1. The child.

2. A parent of the child.

3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.

Assessor selected by parties

(1.1) An order under subsection (1) shall specify a time within which the parties to the proceeding may select a person to perform the assessment and submit the name of the selected person to the court.

Appointment by court

(1.2) The court shall appoint the person selected by the parties to perform the assessment if the court is satisfied that the person meets the following criteria:

1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments.

2. The person has consented to perform the assessment.

Same

(1.3) If the court is of the opinion that the person selected by the parties under subsection (1.1) does not meet the criteria set out in subsection (1.2), the court shall select and appoint another person who does meet the criteria.

Regulations

(1.4) An order under subsection (1) and the assessment required by that order shall comply with such requirements as may be prescribed.

(2) Subsection 54 (8) of the Act is amended by striking out "or" at the end of clause (b) and by adding the following clause:

(b.1) a proceeding under Part VII respecting an application to make, vary or terminate an openness order; or

11. Section 55 of the Act is amended by striking out "section 57" in the portion before clause (a) and substituting "section 57 or 57.1".

12. (1) Section 56 of the Act is amended by striking out "section 57 or 65" in the portion before clause (a) and substituting "section 57, 57.1, 65 or 65.2".

(2) Section 56 of the Act is amended by striking out "and" at the end of subclause (d) (ii), by adding "and" at the end of clause (e) and by adding the following clause:

(f) a description of the arrangements made or being made to recognize the importance of the child's culture and to preserve the child's heritage, traditions and cultural identity.

13. (1) Subsection 57 (1) of the Act is amended by striking out "one of the following orders" in the portion before paragraph 1 and substituting "one of the following orders or an order under section 57.1".

(2) Paragraph 1 of subsection 57 (1) of the Act is repealed and the following substituted:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

(3) Paragraph 3 of subsection 57 (1) of the Act is amended by striking out "section 65" and substituting "section 65.2".

(4) Subsection 57 (2) of the Act is repealed and the following substituted:

Court to inquire

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

(5) Subsection 57 (8) of the Act is repealed and the following substituted:

Terms and conditions of supervision order

(8) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on,

(i) the child's parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

14. The Act is amended by adding the following section:

Custody order

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

Deemed to be order under Children's Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

Order restraining harassment

(3) When making an order under subsection (1), the court may, without a separate application under section 35 of the Children's Law Reform Act,

(a) make an order restraining any person from molesting, annoying or harassing the child or a person to whom custody of the child has been granted; and

(b) require the person against whom the order is made to enter into such recognizance or post such bond as the court considers appropriate.

Same

(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act and may be enforced, varied or terminated only in accordance with that Act.

Appeal under s. 69

(5) Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69.

Conflict of laws

(6) No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada); or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

Application of s. 57 (3)

(7) Subsection 57 (3) applies for the purposes of this section.

15. The Act is amended by adding the following section:

Effect of custody proceedings

57.2 If, under this Part, a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Children's Law Reform Act is stayed except by leave of the court in the proceeding under that Act.

16. Clause 58 (6) (c) of the Act is repealed and the following substituted:

17. (1) Section 59 of the Act is amended by adding the following subsections:

Access after custody order under s. 57.1

(1.1) If a custody order is made under section 57.1 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child's best interests.

Access after supervision order or custody order under s. 65.2 (1)

(1.2) If an order is made for supervision under clause 65.2 (1) (a) or for custody under clause 65.2 (1) (b), the court shall make an order for access by every person who had access before the application for the order was made under section 65.1, unless the court is satisfied that continued contact will not be in the child's best interests.

(2) Subsection 59 (2) of the Act is repealed and the following substituted:

Termination of access to Crown ward

(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

(3) Clause 59 (3) (b) of the Act is repealed and the following substituted:

(b) the court is no longer satisfied that the requirements set out in clauses (2.1) (a) and (b) are satisfied.

(4) Section 59 of the Act is amended by adding the following subsection:

Society may permit contact or communication

(4) If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward.

18. The Act is amended by adding the following section:

Review of access order made concurrently with custody order

59.1 No order for access under section 58 is subject to review under this Act if it is made at the same time as a custody order under section 57.1, but it may be the subject of an application under section 21 of the Children's Law Reform Act and the provisions of that Act apply as if the order had been made under that Act.

19. (1) Subsection 61 (1) of the Act is repealed and the following substituted:

Placement of wards

(1) This section applies where a child is made a society ward under paragraph 2 of subsection 57 (1) or a Crown ward under paragraph 3 of subsection 57 (1) or under subsection 65.2 (1).

(2) Subsections 61 (7) and (8) of the Act are repealed and the following substituted:

Notice of proposed removal

(7) If a child is a Crown ward and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent's right to apply for a review under subsection (7.1); and

(b) if the child is an Indian or native person,

(i) give at least 10 days notice in writing of the proposed removal to a representative chosen by the child's band or native community, and

(ii) after the notice is given, consult with representatives chosen by the band or community relating to the plan for the care of the child.

Application for review

(7.1) A foster parent who receives a notice under clause (7) (a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal.

Board hearing

(8) Upon receipt of an application by a foster parent for a review of a proposed removal, the Board shall hold a hearing under this section.

Where child is Indian or native person

(8.1) Upon receipt of an application for review of a proposed removal of a child who is an Indian or native person, the Board shall give a representative chosen by the child's band or native community notice of receipt of the application and of the date of the hearing.

Practices and procedures

(8.2) The Statutory Powers Procedure Act applies to a hearing under this section and the Board shall comply with such additional practices and procedures as may be prescribed.

Composition of Board

(8.3) At a hearing under this section, the Board shall be composed of members with the prescribed qualifications and prescribed experience.

Parties

(8.4) The following persons are parties to a hearing under this section:

1. The applicant.

2. The society.

3. If the child is an Indian or a native person, a representative chosen by the child's band or native community.

4. Any person that the Board adds under subsection (8.5).

Additional parties

(8.5) The Board may add a person as a party to a review if, in the Board's opinion, it is necessary to do so in order to decide all the issues in the review.

Board decision

(8.6) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision.

No removal before decision

(8.7) Subject to subsection (9), the society shall not carry out the proposed removal of the child unless,

(a) the time for applying for a review of the proposed removal under subsection (7.1) has expired and an application is not made; or

(b) if an application for a review of the proposed removal is made under subsection (7.1), the Board has confirmed the proposed removal under subsection (8.6).

(3) Subsection 61 (9) of the Act is repealed and the following substituted:

Where child at risk

(9) A society may remove the child from the foster home before the expiry of the time for applying for a review under subsection (7.1) or at any time after the application for a review is made if, in the opinion of a local director, there would be a risk that the child is likely to suffer harm during the time necessary for a review by the Board.

(4) Section 61 of the Act is amended by adding the following subsection:

Transitional

(11) This section as it read on the day before this subsection came into force continues to apply in respect of proposed removals and requests for review under section 68 if the notice of the proposed removal of the child was given by the society on or before that day.

20. Subsection 63 (1) of the Act is amended by striking out "under paragraph 3 of subsection 57 (1)" and substituting "under paragraph 3 of subsection 57 (1) or under subsection 65.2 (1)".

21. The Act is amended by adding the following section:

Society's obligation to a Crown ward

63.1 Where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through one of the following:

1. An adoption.

2. A custody order under subsection 65.2 (1).

3. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.

22. Section 64 of the Act is repealed and the following substituted:

Status review

64. (1) This section applies where a child is the subject of an order under subsection 57 (1) for society supervision or society wardship.

Society to seek status review

(2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child's status;

(b) shall apply to the court for a review of the child's status before the order expires, unless the expiry is by reason of subsection 71 (1); and

(c) shall apply to the court for a review of the child's status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision.

Application of cl. (2) (a) and (c)

(3) If a child is the subject of an order for society supervision, clauses (2) (a) and (c) also apply to the society that has jurisdiction in the county or district in which the parent or other person with whom the child is placed resides.

Others may seek status review

(4) An application for review of a child's status may be made on notice to the society by,

(a) the child, if the child is at least 12 years of age;

(b) a parent of the child;

(d) a representative chosen by the child's band or native community, if the child is an Indian or native person.

Notice

(5) A society making an application under subsection (2) or receiving notice of an application under subsection (4) shall give notice of the application to,

(a) the child, except as otherwise provided under subsection 39 (4) or (5);

(b) the child's parent;

(d) any foster parent who has cared for the child continuously during the six months immediately before the application; and

(e) a representative chosen by the child's band or native community, if the child is an Indian or native person.

Six-month period

(6) No application shall be made under subsection (4) within six months after the latest of,

(a) the day the original order was made under subsection 57 (1);

(b) the day the last application by a person under subsection (4) was disposed of; or

(c) the day any appeal from an order referred to in clause (a) or the disposition referred to in clause (b) was finally disposed of or abandoned.

Exception

(7) Subsection (6) does not apply if the court is satisfied that a major element of the plan for the child's care that the court applied in its decision is not being carried out.

Interim care and custody

(8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody.

23. (1) Subsection 65 (1) of the Act is amended by striking out "or" at the end of clause (b), by adding "or" at the end of clause (c) and by adding the following clause:

(d) make an order under section 57.1.

(2) Subsection 65 (2) of the Act is repealed.

24. The Act is amended by adding the following sections:

Status review, Crown ward and former Crown wards

65.1 (1) This section applies where a child is a Crown ward or is the subject of an order for society supervision under clause 65.2 (1) (a) or a custody order under clause 65.2 (1) (b) .

Society to seek status review

(2) The society that has or had care, custody or supervision of the child,

(a) may apply to the court at any time, subject to subsection (9), for a review of the child's status;

(b) shall apply to the court for a review of the child's status before the order expires if the order is for society supervision, unless the expiry is by reason of subsection 71 (1); and

(c) shall apply to the court for a review of the child's status within five days after removing the child, if the society has removed the child,

(i) from the care of a person with whom the child was placed under an order for society supervision described in clause 65.2 (1) (a), or

(ii) from the custody of a person who had custody of the child under a custody order described in clause 65.2 (1) (b).

Application of cl. (2) (a) and (c)

(3) Clauses (2) (a) and (c) also apply to the society that has jurisdiction in the county or district,

(a) in which the parent or other person with whom the child is placed resides, if the child is the subject of an order for society supervision under clause 65.2 (1) (a); or

(b) in which the person who has custody resides, if the child is the subject of a custody order under clause 65.2 (1) (b).

Others may seek status review

(4) An application for review of a child's status under this section may be made on notice to the society by,

(a) the child, if the child is at least 12 years of age;

(b) a parent of the child;

(d) the person to whom custody of the child was granted, if the child is subject to an order for custody described in clause 65.2 (1) (b);

(e) a foster parent, if the child has lived continuously with the foster parent for at least two years immediately before the application; or

(f) a representative chosen by the child's band or native community, if the child is an Indian or native person.

When leave to apply required

(5) Despite clause (4) (b), a parent of a child shall not make an application under subsection (4) without leave of the court if the child has, immediately before the application, received continuous care for at least two years from the same foster parent or from the same person under a custody order.

Notice

(6) A society making an application under subsection (2) or receiving notice of an application under subsection (4) shall give notice of the application to,

(a) the child, except as otherwise provided under subsection 39 (4) or (5);

(b) the child's parent, if the child is under 16 years of age;

(c) the person with whom the child was placed, if the child is subject to an order for society supervision described in clause 65.2 (1) (a);

(d) the person to whom custody of the child was granted, if the child is subject to an order for custody described in clause 65.2 (1) (b);

(e) any foster parent who has cared for the child continuously during the six months immediately before the application; and

(f) a representative chosen by the child's band or native community, if the child is an Indian or native person.

Six-month period

(7) No application shall be made under subsection (4) within six months after the latest of,

(a) the day the order was made under subsection 57 (1) or 65.2 (1), whichever is applicable;

(b) the day the last application by a person under subsection (4) was disposed of; or

(c) the day any appeal from an order referred to in clause (a) or a disposition referred to in clause (b) was finally disposed of or abandoned.

Exception

(8) Subsection (7) does not apply if,

(a) the child is the subject of,

(i) an order for society supervision described in clause 65.2 (1) (a),

(ii) an order for custody described in clause 65.2 (1) (b), or

(iii) an order for Crown wardship under subsection 57 (1) or clause 65.2 (1) (c) and an order for access under section 58; and

(b) the court is satisfied that a major element of the plan for the child's care that the court applied in its decision is not being carried out.

No review if child placed for adoption

(9) No person or society shall make an application under this section with respect to a Crown ward who has been placed in a person's home by the society or by a Director for the purposes of adoption under Part VII, if the Crown ward still resides in the person's home.

Interim care and custody

(10) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody.

Court order

65.2 (1) If an application for review of a child's status is made under section 65.1, the court may, in the child's best interests,

(a) order that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months;

(b) order that custody be granted to one or more persons, including a foster parent, with the consent of the person or persons;

(c) order that the child be made a ward of the Crown until wardship is terminated under this section or expires under subsection 71 (1); or

(d) terminate or vary any order made under section 57 or this section.

Variation, etc.

(2) When making an order under subsection (1), the court may, subject to section 59, vary or terminate an order for access or make a further order under section 58.

Same

(3) Any previous order for Crown wardship is terminated if an order described in clause (1) (a) or (b) is made in respect of a child.

Terms and conditions of supervision order

(4) If the court makes a supervision order described in clause (1) (a), the court may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

Access

(5) Section 59 applies with necessary modifications if the court makes an order described in clause (1) (a), (b) or (c).

Custody proceeding

(6) Where an order is made under this section or a proceeding is commenced under this Part, any proceeding respecting custody of or access to the same child under the Children's Law Reform Act is stayed except by leave of the court in the proceeding under that Act.

Rights and responsibilities

(7) A person to whom custody of a child is granted by an order under this section has the rights and responsibilities of a parent in respect of the child and must exercise those rights and responsibilities in the best interests of the child.

25. (1) Clause 66 (1) (c) of the Act is amended by striking out "section 65" and substituting "section 65.2".

(2) Subsection 66 (2) of the Act is amended by striking out "subsection 64 (2) or give any other direction" and substituting "subsection 65 (1) or give any other direction".

26. Section 68 of the Act is repealed and the following substituted:

Complaint to society

68. (1) A person may make a complaint to a society relating to a service sought or received by that person from the society in accordance with the regulations.

Complaint review procedure

(2) Where a society receives a complaint under subsection (1), it shall deal with the complaint in accordance with the complaint review procedure established by regulation, subject to subsection 68.1 (2).

Available to public

(3) A society shall make information relating to the complaint review procedure available to any person upon request.

Society's decision

(4) Subject to subsection (5), the decision of a society made upon completion of the complaint review procedure is final.

Application for review by Board

(5) If a complaint relates to one of the following matters, the complainant may apply to the Board in accordance with the regulations for a review of the decision made by the society upon completion of the complaint review procedure:

1. An alleged inaccuracy in the society's files or records regarding the complainant.

2. A matter described in subsection 68.1 (4).

3. Any other prescribed matter.

Review by Board

(6) Upon receipt of an application under subsection (5), the Board shall give the society notice of the application and conduct a review of the society's decision.

Composition of Board

(7) The Board shall be composed of members with the prescribed qualifications and prescribed experience.

Hearing optional

(8) The Board may hold a hearing and, if a hearing is held, the Board shall comply with the prescribed practices and procedures.

Non-application

(9) The Statutory Powers Procedure Act does not apply to a hearing under this section.

Board decision

(10) Upon completing its review of a decision by a society in relation to a complaint, the Board may,

(a) in the case of a review of a matter described in paragraph 1 of subsection (5), order that a notice of disagreement be added to the complainant's file;

(b) in the case of a matter described in subsection 68.1 (4), make any order described in subsection 68.1 (7), as appropriate;

(d) confirm the society's decision; or

(e) make such other order as may be prescribed.

Notice of disagreement

(11) A notice of disagreement referred to in clause (10) (a) shall be in the prescribed form if the regulations so provide.

No review if matter within purview of court

(12) A society shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

Transitional

(13) This section as it read immediately before the day this subsection came into force continues to apply in respect of complaints made to a society before that day and of any reviews requested of the Director before that day.

Complaint to Board

68.1 (1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section; or

(b) where the person first makes the complaint to the society under section 68, submit the complaint to the Board before the society's complaint review procedure is completed.

Notice to society

(2) If a person submits a complaint to the Board under clause (1) (b) after having brought the complaint to the society under section 68, the Board shall give the society notice of that fact and the society may terminate or stay its review, as it considers appropriate.

Complaint to Board

(3) A complaint to the Board under this section shall be made in accordance with the regulations.

Matters for Board review

(4) The following matters may be reviewed by the Board under this section:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68 (1) as required under subsection 68 (2).

2. Allegations that the society has failed to respond to the complainant's complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

4. Allegations that the society has failed to comply with clause 2 (2) (a).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant's interests.

6. Such other matters as may be prescribed.

Review by Board

(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter.

Application

(6) Subsections 68 (7), (8) and (9) apply with necessary modification to a review of a complaint made under this section.

Board decision

(7) After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

No review if matter within purview of court

(8) The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

27. Subsection 71 (2) of the Act is repealed.

28. The Act is amended by adding the following section:

Extended Care

Extended care

71.1 (1) A society may provide care and maintenance to a person in accordance with the regulations if,

(a) a custody order under subsection 65.2 (1) or an order for Crown wardship was made in relation to that person as a child; and

(b) the order expires under section 71.

Same, Indian and native person

(2) A society or agency may provide care and maintenance in accordance with the regulations to a person who is an Indian or native person who is 18 years of age or more if,

(a) immediately before the person's 18th birthday, he or she was being cared for under customary care as defined in section 208; and

(b) the person who was caring for the child was receiving a subsidy from the society or agency under section 212.

29. Paragraph 5 of subsection 74 (3.1) of the Act is repealed and the following substituted:

5. An order with respect to access or supervision on an application under section 64 or 65.1.

5.1 A custody order under section 65.2.

30. (1) Subsection 80 (1) of the Act is repealed and the following substituted:

Restraining order

(1) Instead of making an order under subsection 57 (1) or section 65.2 or in addition to making a temporary order under subsection 51 (2) or an order under subsection 57 (1) or section 65.2, the court may make one or more of the following orders in the child's best interests:

1. An order restraining or prohibiting a person's access to or contact with the child, and may include in the order such directions as the court considers appropriate for implementing the order and protecting the child.

2. An order restraining or prohibiting a person's contact with the person who has lawful custody of the child following a temporary order under subsection 51 (2) or an order under subsection 57 (1) or clause 65.2 (1) (a) or (b).

(2) Subsection 80 (3) of the Act is repealed and the following substituted:

Duration of the order

(3) An order made under subsection (1) shall continue in force for such period as the court considers in the best interests of the child and,

(a) if the order is made in addition to a temporary order under subsection 51 (2) or an order made under subsection 57 (1) or clause 65.2 (1) (a), (b) or (c), the order may provide that it continues in force, unless it is varied, extended or terminated by the court, as long as the temporary order under subsection 51 (2) or the order under subsection 57 (1) or clause 65.2 (1) (a), (b) or (c), as the case may be, remains in force; or

(b) if the order is made instead of an order under subsection 57 (1) or clause 65.2 (1) (a), (b) or (c) or if the order is made in addition to an order under clause 65.2 (1) (d), the order may provide that it continues in force until it is varied or terminated by the court.

(3) Clause 80 (5) (a) of the Act is repealed and the following substituted:

(a) extend the order for such period as the court considers to be in the best interests of the child, in the case of an order described in clause (3) (a); or

31. Section 83 of the Act is amended by striking out the portion before clause (a) and substituting the following:

Offence

83. If a child is the subject of an order for society wardship under subsection 57 (1) or an order for society supervision or Crown wardship under that subsection or subsection 65.2 (1), no person shall,

. . . . .

32. Subsection 103 (2) of the Act is repealed and the following substituted:

When child a Crown ward

(2) A child in care who is a Crown ward is not entitled as of right to speak with, visit or receive visits from a member of his or her family, except under an order for access made under Part III or an openness order or openness agreement made under Part VII.

33. (1) The definition of "relative" in subsection 136 (1) of the Act is repealed.

(2) Subsection 136 (1) of the Act is amended by adding the following definitions:

"birth parent" means a person who satisfies the prescribed criteria; ("père ou mère de sang")

"birth relative" means,

(a) in respect of a child who has not been adopted, a relative of the child, and

(b) in respect of a child who has been adopted, a person who would have been a relative of the child if the child had not been adopted; ("parent de sang")

"birth sibling" means, in respect of a person, a child of the same birth parent as the person, and includes a child adopted by the birth parent and a person whom the birth parent has demonstrated a settled intention to treat as a child of his or her family; ("frère ou soeur de sang")

"openness agreement" means an agreement referred to in section 153.6; ("accord de communication")

"openness order" means an order made by a court in accordance with this Act for the purposes of facilitating communication or maintaining a relationship between the child and,

(a) a birth parent, birth sibling or birth relative of the child,

(b) a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or a member of the child's extended family or community, or

(c) if the child is an Indian or native person, a member of the child's band or native community who may not have had a significant relationship or emotional tie with the child in the past but will help the child recognize the importance of his or her Indian or native culture and preserve his or her heritage, traditions and cultural identity; ("ordonnance de communication")

34. Section 140 of the Act is repealed.

35. The Act is amended by adding the following sections:

Limitation on placement by society

141.1 A society shall not place a child for adoption until,

(a) any outstanding order of access to the child made under subsection 58 (1) of Part III has been terminated; and

(b) if the child is a Crown ward,

(i) the time for commencing an appeal of the order for Crown wardship under subsection 57 (1) or 65.2 (1) has expired, or

(ii) any appeal of the order for Crown wardship has been finally disposed of or abandoned.

Where child an Indian or native person

141.2 (1) If a society intends to begin planning for the adoption of a child who is an Indian or native person, the society shall give written notice of its intention to a representative chosen by the child's band or native community.

Care plan proposed by band or native community

(2) Where a representative chosen by a band or native community receives notice that a society intends to begin planning for the adoption of a child who is an Indian or native person, the band or native community may, within 60 days of receiving the notice,

(a) prepare its own plan for the care of the child; and

(b) submit its plan to the society.

Condition for placement

(3) A society shall not place a child who is an Indian or native person with another person for adoption until,

(a) at least 60 days after notice is given to a representative chosen by the band or native community have elapsed; or

(b) if a band or native community has submitted a plan for the care of the child, the society has considered the plan.

36. Section 144 of the Act is repealed and the following substituted:

Decision to Refuse to Place Child or
to Remove Child after Placement

Decision of society or licensee

144. (1) This section applies if,

(a) a society decides to refuse an application to adopt a particular child made by a foster parent, or other person; or

(b) a society or licensee decides to remove a child who has been placed with a person for adoption.

Notice of decision

(2) The society or licensee who makes a decision referred to in subsection (1) shall,

(a) give at least 10 days notice in writing of the decision to the person who applied to adopt the child or with whom the child had been placed for adoption;

(b) include in the notice under clause (a) notice of the person's right to apply for a review of the decision under subsection (3); and

(i) give at least 10 days notice in writing of the decision to a representative chosen by the child's band or native community, and

(ii) after the notice is given, consult with the band or community representatives relating to the planning for the care of the child.

Application for review

(3) A person who receives notice of a decision under subsection (2) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the decision subject to subsection (4).

Where no review

(4) If a society receives an application to adopt a child and, at the time of the application, the child had been placed for adoption with another person, the applicant is not entitled to a review of the society's decision to refuse the application.

Board hearing

(5) Upon receipt of an application under subsection (3) for a review of a decision, the Board shall hold a hearing under this section.

Where child is Indian or native person

(6) Upon receipt of an application for review of a decision relating to a child who is an Indian or native person, the Board shall give a representative chosen by the child's band or native community notice of the application and of the date of the hearing.

Practices and procedures

(7) The Statutory Powers Procedure Act applies to a hearing under this section and the Board shall comply with such additional practices and procedures as may be prescribed.

Composition of Board

(8) At a hearing under subsection (5), the Board shall be composed of members with the prescribed qualifications and prescribed experience.

Parties

(9) The following persons are parties to a hearing under this section:

1. The applicant.

2. The society.

3. If the child is an Indian or a native person, a representative chosen by the child's band or native community.

4. Any person that the Board adds under subsection (10).

Additional parties

(10) The Board may add a person as a party to a review if, in the Board's opinion, it is necessary to do so in order to decide all the issues in the review.

Board decision

(11) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision.

Subsequent placement

(12) After a society or licensee has made a decision referred to in subsection (1) in relation to a child, the society shall not place the child for adoption with a person other than the person who has a right to apply for a review under subsection (3) unless,

(a) the time for applying for a review of the decision under subsection (3) has expired and an application is not made; or

(b) if an application for a review of the decision is made under subsection (3), the Board has confirmed the decision.

No removal before Board decision

(13) Subject to subsection (14), if a society or licensee has decided to remove a child from the care of a person with whom the child was placed for adoption, the society or licensee, as the case may be, shall not carry out the proposed removal of the child unless,

(a) the time for applying for a review of the decision under subsection (3) has expired and an application is not made; or

(b) if an application for a review of the decision is made under subsection (3), the Board has confirmed the decision.

Where child at risk

(14) A society or licensee may carry out a decision to remove a child from the care of a person with whom the child was placed for adoption before the expiry of the time for applying for a review under subsection (3) or at any time after the application for a review is made if, in the opinion of a Director or local director, there would be a risk that the child is likely to suffer harm during the time necessary for a review by the Board.

Transitional

(15) This section as it read immediately before the day this subsection came into force continues to apply where a request to adopt a child or a decision to remove a child was made before that day.

37. Subsections 145 (3) and (4) of the Act are repealed and the following substituted:

Director to review

(3) A Director who receives a notice under subsection (1) or (2) shall conduct a review in accordance with the regulations.

38. The Act is amended by adding the following sections:

Openness Orders

Application to make openness order

145.1 (1) If a child who is a Crown ward is the subject of a plan for adoption, and no access order is in effect under Part III, the society having care and custody of the child may apply to the court for an openness order in respect of the child at any time before an order for adoption of the child is made under section 146.

Notice of application

(2) A society making an application under this section shall give notice of the application to,

(a) the child, except as otherwise provided under subsection 39 (4) or (5);

(b) every person who will be permitted to communicate with or have a relationship with the child if the order is made;

(d) any society that will supervise or participate in the arrangement under the openness order.

Openness order

(3) The court may make an openness order under this section in respect of a child if the court is satisfied that,

(a) the openness order is in the best interests of the child;

(b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and

(i) the society,

(ii) the person who will be permitted to communicate with or have a relationship with the child if the order is made,

(iii) the person with whom the society has placed or plans to place the child for adoption, and

(iv) the child if he or she is 12 years of age or older.

Termination of openness order if Crown wardship terminates

(4) Any openness order made in respect of a child terminates if the child ceases to be a Crown ward by reason of an order made under subsection 65.2 (1).

Application to vary or terminate openness order

145.2 (1) A society or a person with whom a child has been placed for adoption may apply to the court for an order to vary or terminate an openness order made under section 145.1.

Time for making application

(2) An application under this section shall not be made after an order for the adoption of the child is made under section 146.

Notice of application

(3) A society or person making an application under this section shall give notice of the application to,

(a) the child, except as otherwise provided under subsection 39 (4) or (5);

(b) every person who is permitted to communicate with or have a relationship with the child under the openness order;

(c) any person with whom the society has placed or plans to place the child for adoption, if the application under this section is made by the society; and

(d) any society that supervises or participates in the arrangement under the openness order that is the subject of the application.

Order to vary openness order

(4) The court shall not make an order to vary an openness order under this section unless the court is satisfied that,

(a) a material change in circumstances has occurred;

(b) the proposed order is in the child's best interests; and

Order to terminate openness order

(5) The court shall not terminate an openness order unless the court is satisfied that,

(a) a material change in circumstances has occurred;

(b) termination of the order is in the child's best interests; and

Consent of society required

(6) The court shall not direct a society to supervise or participate in the arrangement under an openness order without the consent of the society.

Alternative dispute resolution

(7) At any time during a proceeding under this section, the court may, in the best interests of the child and with the consent of the parties, adjourn the proceedings to permit the parties to attempt through a prescribed method of alternative dispute resolution to resolve any dispute between them with respect to any matter that is relevant to the proceeding.

Temporary orders

(8) The court may make such temporary order relating to openness as the court considers to be in the child's best interests.

39. The Act is amended by adding the following sections:

Varying or terminating openness orders after adoption

153.1 (1) Any of the following persons may apply to the court to vary or terminate an openness order after an order for adoption has been made under section 146:

1. An adoptive parent.

2. A person who is permitted to communicate or have a relationship with a child under the order.

3. Any society that supervises or participates in the arrangement under the openness order that is the subject of the application.

Leave

(2) Despite paragraph 2 of subsection (1), a person who is permitted to communicate or have a relationship with a child under an openness order shall not make an application under subsection (1) without leave of the court.

Jurisdiction

(3) An application under subsection (1) shall be made in the county or district,

(a) in which the child resides, if the child resides in Ontario; or

(b) in which the adoption order for the child was made if the child does not reside in Ontario, unless the court is satisfied that the preponderance of convenience favours having the matter dealt with by the court in another county or district.

Notice

(4) A person making an application under subsection (1) shall give notice of the application to every other person who could have made an application under that subsection with respect to the order.

Child 12 or older

(5) A child 12 years of age or more who is the subject of an application under this section is entitled to receive notice of the application and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the application and not be permitted to be present at the hearing.

Child under 12

(6) A child less than 12 years of age who is the subject of an application under this section is not entitled to receive notice of the application or to be present at the hearing unless,

(a) the court is satisfied that the child is capable of understanding the hearing and will not suffer emotional harm by being present at the hearing; and

(b) the court orders that the child receive notice of the application and be permitted to be present at the hearing.

Order to vary openness order

(7) The court shall not make an order to vary an openness order under this section unless the court is satisfied that,

(a) a material change in circumstances has occurred;

(b) the proposed order is in the child's best interests; and

Order to terminate openness order

(8) The court shall not terminate an openness order unless the court is satisfied that,

(a) a material change in circumstances has occurred;

(b) termination of the order is in the child's best interests; and

Consent of society required

(9) The court shall not direct a society to supervise or participate in the arrangement under an openness order without the consent of the society.

Alternative dispute resolution

(10) At any time during a proceeding under this section, the court may, in the best interests of the child and with the consent of the parties, adjourn the proceedings to permit the parties to attempt through a prescribed method of alternative dispute resolution to resolve any dispute between them with respect to a matter relevant to the proceeding.

Appeal of order to vary or terminate openness order

153.2 (1) An appeal from a court's order under section 145.2 or 153.1 may be made to the Superior Court of Justice by,

(a) the child if the child had legal representation in a proceeding under section 145.2 or 153.1; or

(b) any person who was entitled to notice of the application to vary or terminate the openness order that is the subject of the appeal.

Temporary order

(2) Pending final disposition of the appeal, the Superior Court of Justice may on any party's motion make a temporary order in the child's best interests that varies or suspends an openness order.

No time extension

(3) No extension of the time for an appeal shall be granted.

Further evidence

(4) The court may receive further evidence relating to events after the appealed decision.

Place of hearing

(5) An appeal under this section shall be heard in the county or district in which the order appealed from was made.

Application of s. 151

153.3 Subsections 151 (1) and (2) apply with necessary modifications to proceedings under sections 145.1, 145.2, 153.1 and 153.2.

Child may participate

153.4 A child who receives notice of a proceeding under section 145.1, 145.2, 153.1 or 153.2 is entitled to participate in the proceeding as if he or she were a party.

Legal representation of child

153.5 (1) A child may have legal representation at any stage in a proceeding under section 145.1, 145.2 or 153.1, and subsection 38 (2) applies with necessary modifications to such a proceeding.

Children's Lawyer

(2) Where the court determines that legal representation is desirable, the court may, with the consent of the Children's Lawyer, authorize the Children's Lawyer to represent the child.

40. The Act is amended by adding the following section:

Openness Agreements

Who may enter into openness agreement

153.6 (1) For the purposes of facilitating communication or maintaining relationships, an openness agreement may be made by an adoptive parent of a child or by a person with whom a society or licensee has placed or plans to place a child for adoption and any of the following persons:

1. A birth parent, birth relative or birth sibling of the child.

2. A foster parent of the child or another person who cared for the child or in whose custody the child was placed at any time.

3. A member of the child's extended family or community with whom the child has a significant relationship or emotional tie.

4. An adoptive parent of a birth sibling of the child or a person with whom a society or licensee has placed or plans to place a birth sibling of the child for adoption.

5. If the child is an Indian or native person, a member of the child's band or native community who may not have had a significant relationship or emotional tie with the child in the past but will help the child recognize the importance of his or her Indian or native culture and preserve his or her heritage, traditions and cultural identity.

When agreement may be made

(2) An openness agreement may be made at any time before or after an adoption order is made.

Agreement may include dispute resolution process

(3) An openness agreement may include a process to resolve disputes arising under the agreement or with respect to matters associated with it.

Views and wishes of child

(4) Where the views and wishes of the child can be reasonably ascertained, they shall be considered before an openness agreement is made.

41. Section 157 of the Act is amended by adding the following subsection:

Validity of adoption order not affected by openness order or agreement

(2) Compliance or non-compliance with the terms of an openness order or openness agreement relating to a child does not affect the validity of an order made under section 146 for the adoption of the child.

42. Subsection 158 (2) of the Act is amended by striking out "as if the adopted child had been born to the adopted parent" after clause (b).

43. The Act is amended by adding the following section:

Consultation in specified cases

213.1 A society or agency that proposes to provide a prescribed service to a child who is an Indian or native person or to exercise a prescribed power under this Act in relation to such a child shall consult with a representative chosen by the child's band or native community in accordance with the regulations.

44. Section 214 of the Act is amended by adding the following subsection:

Standards of service, etc.

(5) In regulations made under subsection (4), the Minister,

(a) may exempt one or more societies from anything that is prescribed under that subsection;

(b) may prescribe standards of services that only apply to one or more societies provided for in the regulations;

(c) may prescribe procedures and practices that are only required to be followed by one or more societies provided for in the regulations.

45. Section 216 of the Act is amended by adding the following clauses:

(a.1) respecting the procedures to be followed by a society for the purposes of subsection 37 (5);

. . . . .

(b.1) governing when an assessment may be ordered under section 54, the scope of an assessment, and the form of an assessment report;

(b.2) respecting applications for a review by the Board under subsection 61 (7.1);

(b.3) prescribing additional practices and procedures for the purposes of subsection 61 (8.2);

(b.4) prescribing the qualifications or experience a member of the Board is required to have in order to conduct reviews under subsection 61 (8), 68 (6) or 68.1 (5);

(b.5) respecting the making of complaints to a society under subsection 68 (1) or to the Board under subsection 68.1 (1);

(b.6) governing the complaint review procedure that societies are required to follow when dealing with a complaint under subsection 68 (1);

(b.7) prescribing matters for the purposes of paragraph 3 of subsection 68 (5) and paragraph 6 of subsection 68.1 (4);

(b.8) prescribing additional orders that may be made by the Board for the purposes of clauses 68 (10) (e) and 68.1 (7) (f);

(b.9) prescribing practices and procedures for the purposes of hearings conducted by the Board under subsection 68 (8) or during a review of a complaint under section 68.1;

46. Subsection 220 (1) of the Act is amended by adding the following clauses:

(a.1) prescribing criteria for the purposes of the definition of "birth parent" in subsection 136 (1);

. . . . .

(b.1) governing applications for review under subsection 144 (3);

(b.2) prescribing additional practices and procedures for the purposes of subsection 144 (7);

(b.3) prescribing the qualifications or experience a member of the Board is required to have in order to conduct reviews under subsection 144 (8);

(b.4) governing procedures to be followed by a Director in making a review under subsection 145 (3), what types of decisions and directions the Director is authorized to make after conducting a review, and any consequences following as a result of a decision or direction;

. . . . .

(c.1) defining "openness" for the purposes of,

(i) openness orders under Part VII,

(ii) openness agreements under section 153.6;

(c.2) governing openness orders under Part VII;

47. Clause 222 (f) of the Act is repealed and the following substituted:

(f) exempting from any or all provisions of Part IX or the regulations, either indefinitely or for any time that may be provided for in the regulations,

(i) a children's residence or a prescribed class of children's residences,

(ii) premises or a prescribed class of premises where residential care is provided under the authority of a licence,

(iii) a person or class of persons who place children for adoption,

(iv) a person or class of persons who provide residential care under the authority of a licence;

48. Section 223 of the Act is amended by adding the following clauses:

(c) governing consultations with bands and native communities under sections 213 and 213.1 and prescribing the procedures and practices to be followed by societies and agencies and the duties of societies and agencies during the consultations;

(d) prescribing services and powers for the purposes of section 213.1.

49. The Act is amended by adding the following sections:

Regulations: methods of dispute resolution

223.1 (1) The Lieutenant Governor in Council may make regulations,

(a) prescribing methods of alternative dispute resolution for the purposes of this Act, defining methods of alternative dispute resolution, and governing procedures for and the use of prescribed methods of alternative dispute resolution;

(b) respecting qualifications of persons providing a prescribed alternative dispute resolution service;

Same

(2) A regulation made under subsection (1) may prescribe different methods of alternative dispute resolution, different definitions of methods of alternative dispute resolution and different procedures for prescribed methods of alternative dispute resolution for the purposes of different provisions of this Act.

Regulations: transitional

223.2 The Lieutenant Governor in Council may make regulations governing transitional issues that may arise due to the enactment of the Child and Family Services Statute Law Amendment Act, 2006 and facilitating the implementation of provisions that are enacted or re-enacted by that Act, and without restricting the generality of the preceding, may make regulations,

(a) respecting alternative dispute resolution and legal representation for children for the purposes of section 20.2 if a form of alternative dispute resolution commenced before that section came into force;

(b) respecting circumstances in which subsections 51 (3.1) and (3.2) do not apply in respect of the placement of a child;

(c) respecting types of terms and conditions that may be imposed for the purposes of sections 51, 57 and 65.2 and persons or classes of persons subject to terms and conditions under those sections;

(d) respecting assessments for the purposes of section 54 that were made or commenced before this section came into force;

(e) respecting orders that may be made under section 57, 57.1 or 65.2;

(f) respecting circumstances in which sections 57.2 and 59.1 will not apply;

(g) respecting circumstances in which section 59 as it read before subsection 59 (2.1) came into force will apply;

(h) respecting applications under sections 64 and 65.1;

(i) respecting the provision of care and maintenance under subsection 71 (2);

(j) respecting reviews by a Director under section 145.

50. Part XII of the Act is amended by adding the following section:

Review re: aboriginal issues

226. Every review of this Act shall include a review of provisions imposing obligations on societies when providing services to a person who is an Indian or native person or in respect of children who are Indian or native persons, with a view to ensuring compliance by societies with those provisions.

Complementary Amendments

51. (1) Section 26 of the Children's Law Reform Act is amended by adding the following subsection:

Exception

(1.1) Subsection (1) does not apply to an application under this Part that relates to the custody of or access to a child if the child is the subject of an application or order under Part III of the Child and Family Services Act, unless the application under this Part relates to,

(a) an order in respect of the child that was made under subsection 57.1 (1) of the Child and Family Services Act;

(b) an order referred to in subsection 57.1 (3) of the Child and Family Services Act that was made at the same time as an order under subsection 57.1 (1) of that Act; or

(c) an access order in respect of the child under section 58 of the Child and Family Services Act that was made at the same time as an order under subsection 57.1 (1) of that Act.

(2) Section 28 of the Act is amended by adding the following subsections:

Exception

(2) If an application is made under section 21 with respect to a child who is the subject of an order made under section 57.1 of the Child and Family Services Act, the court shall treat the application as if it were an application to vary an order made under this section.

Same

(3) If an order for access to a child was made under Part III of the Child and Family Services Act at the same time as an order for custody of the child was made under section 57.1 of that Act, the court shall treat an application under section 21 relating to access to the child as if it were an application to vary an order made under this section.

52. (1) Subsection 47 (1) of the Education Act is amended by striking out "is a ward of a children's aid society, is in the care of a children's aid society or is a ward of a training school" and substituting "is under the care or supervision of a children's aid society, receives child protection services from a children's aid society or resides in a children's residence or foster home within the meaning of the Child and Family Services Act".

(2) Subsection 47 (2) of the Act is amended by striking out "is a ward of a children's aid society, is in the care of a children's aid society or is a ward of a training school" and substituting "is under the care or supervision of a children's aid society, receives child protection services from a children's aid society or resides in a children's residence or foster home within the meaning of the Child and Family Services Act".

53. Subsection 28 (2) of the Vital Statistics Act is amended by striking out "as if the adopted person had on the date and in the place of birth recorded in the original registration been born to the adopting parent" in the portion after clause (b).

Commencement

54. (1) Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.

Same

(2) Sections 1 to 53 come into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

55. The short title of this Act is the Child and Family Services Statute Law Amendment Act, 2006.

EXPLANATORY NOTE

This Explanatory Note was written as a reader's aid to Bill 210 and does not form part of the law. Bill 210 has been enacted as Chapter 5 of the Statutes of Ontario, 2006.

The Bill amends the Child and Family Services Act to permit courts to make custody orders for children in need of protection and openness orders for Crown wards who are the subject of a plan for adoption. Several amendments are made throughout the Act to ensure that, where specified actions, decisions or plans are made in relation to a child who is an Indian or native person, the child's band or native community receives notice of the proposed action, decision or plan or is consulted or allowed to participate in the proposed action, decision or plan. The Bill makes additional amendments to the Act and complementary amendments to the Children's Law Reform Act, the Education Act and the Vital Statistics Act.

Section 1 of the Act sets out the purposes of the Act. Paragraph 3 of subsection 1 (2) of the Act is amended to provide that one of the purposes of the Act is to recognize that children's services should be provided in a manner that takes into account cultural, emotional and spiritual differences among children, that provides for early assessment, planning and decision-making and that takes into consideration the participation of the child's relatives and members of the child's community.

New sections 20.2 and 51.1 of the Act provide for the use of alternative dispute resolution methods before and during proceedings under Part III of the Act and provide for representation by the Children's Lawyer where alternative dispute resolution is proposed. New sections 145.2 and 153.1 of the Act (described below) provide for the use of alternative dispute resolution on applications to vary or terminate openness orders.

Section 37 of the Act is amended to include the home of a relative of a child and a home of a member of the child's extended family or community as a place of safety for temporary placement following an apprehension, subject to an assessment of the home conducted in accordance with the regulations by the society or, if the child is an Indian or native person, by an Indian or native child and family service authority designated under section 211.

Sections 51 and 57 of the Act are amended to permit the court, when making a supervision order in respect of a child, to impose terms and conditions on any person who puts forward a plan for the care and custody of the child or a plan for access to the child or on any person who would participate in one of these plans. New section 65.2 of the Act (described below) contains similar provisions.

Section 54 of the Act currently gives the court the power in a protection proceeding under Part III of the Act to order an assessment of a specified individual by an assessor who, in the opinion of the court, meets certain criteria. Section 54 is amended to allow the parties to the proceedings to select an assessor. The court will appoint the selected assessor or, in specified circumstances, appoint another assessor. The order and the assessment shall be carried out in accordance with the regulations.

Section 56 is amended to ensure that a plan for a child's care prepared by a society includes a description of arrangements that are being made to recognize and preserve the child's heritage, traditions and culture.

Currently, if a court finds a child in need of protection under Part III of the Act and it is in the child's best interests for the court to make a custody order, the order can be made only under a separate application under the Children's Law Reform Act. New section 57.1 of the Act permits the court to make a custody order under Part III of the Child and Family Services Act, granting custody of the child to a person other than a foster parent. The court may include in the custody order an order restraining any person from molesting, annoying or harassing the child or the person having custody of the child. Any appeal of the custody order or of any concurrent restraining or access order is under section 69 of the Act; but, any subsequent review of these orders can be made only by way of an application under the Children's Law Reform Act, as if the orders had been made originally under that Act.

If a custody order is made under section 57.1 or new 65.2 of the Act (described below), new subsections 59 (1.1) and (1.2) of the Act provide for access orders to permit continued contact with any person, including a person who previously cared for the child.

If a child is made a Crown ward, existing access orders must terminate, but a new access order may be made under the rules in new subsection 59 (2.1) of the Act.

New subsection 59 (4) of the Act permits a society to allow contact or communication between a person and a Crown ward if it is in the child's best interests and there is no openness order or access order in effect with respect to the person and the Crown ward.

Amendments to subsections 61 (7) and (8) of the Act provide for a new review procedure in relation to a decision by a society to remove a child who is a Crown ward from the care of a foster parent with whom the child has lived for at least two years. Currently, the decision is reviewed by the society under section 68 of the Act with a possible further review by the Director. The amendments provide that the decision be reviewed by the Board and that the review be conducted in accordance with specified requirements and include a hearing conducted in accordance with the Statutory Powers Procedure Act.

New section 63.1 imposes an obligation on societies to assist Crown wards develop an enduring relationship within a family by way of adoption, custody order or, if the child is an Indian or native person, through a plan for customary care as defined in Part X.

Section 64 of the Act is repealed and re-enacted to limit status reviews to children who are subject to orders under subsection 57 (1) of the Act for society supervision or society wardship. Section 65 of the Act is amended to permit custody orders to be made under section 57.1 of the Act on a status review.

New sections 65.1 and 65.2 of the Act provide for status reviews of children who are Crown wards or who were previously Crown wards and are subject to orders, including custody orders, made under new section 65.2. The procedure for a status review under section 65.1 is similar to the current procedure under section 64 of the Act. Under section 65.2 of the Act, the court may make a supervision order, an order granting custody to any person, including a foster parent, or an order for Crown wardship. Any prior order for Crown wardship terminates if a supervision or custody order is made.

Section 68 of the Act relates to how societies are to deal with complaints made by persons who sought or received services from a society. Currently, section 68 requires societies to develop complaint review procedures which are approved by the Director and which include a review of the complaint by the society's board of directors and a further review by the Director. The amendments provide that the complaint review procedures to be followed by societies upon receipt of a complaint be established by regulation. If the complaint relates to certain specified matters, the decision of the society made in accordance with the prescribed complaint review procedure may be reviewed by the Board. The new section 68.1 provides that, for other specified matters, the complaint may be made directly to the Board or transferred to the Board before the completion of the society's complaint review procedure. The amendments provide that a review by the Board under section 68 or 68.1 be conducted in accordance with specified requirements.

Section 80 of the Act is amended so that a restraining order may be made not only to prohibit or restrain a person's access to or contact with a child but also to prohibit or restrain a person's contact with a person having lawful custody of the child. The restraining order is no longer limited to six months but may be ordered for such period as the court determines is in the best interests of the child.

Section 140 of the Act is repealed. Subsection 140 (2) of the Act is re-enacted with amendments in the new section 141.1. Subsection 140 (3) of the Act is re-enacted with amendments in the new section 141.2. Section 141.2 of the Act ensures that a band or native community that receives notice from a society that a child who is an Indian or native person is to be placed for adoption is given an opportunity to prepare its own plan for the care of the child and submit it to the society.

The re-enactment of section 144 of the Act establishes a new review procedure that applies when a society decides not to place a child with a particular person for adoption or a society or licensee decides to remove a child who has been placed for adoption. Currently, such decisions are reviewed by the Director. The amendments to section 144 provide that the Board shall conduct these reviews in accordance with specified requirements and shall hold a hearing in accordance with the Statutory Powers Procedure Act.

If a child who is a Crown ward has been or may be placed for adoption, the society may apply to the court for an openness order under new section 145.1 of the Act before an adoption order is made. The court may make an openness order only with the consent of the parties. The society or a person with whom a child is placed for adoption may apply under new section 145.2 of the Act to vary or terminate an openness order, but only before an adoption order is made.

After adoption, the adoptive parent, the person who is permitted by the openness order to communicate or have a relationship with the child or a society that participates in or supervises the arrangement under the openness order may apply to the court under new section 153.1 of the Act to vary or terminate the openness order.

New section 153.5 of the Act provides for legal representation of a child in a proceeding relating to an openness order.

New section 153.6 of the Act permits parties to negotiate and enter into their own openness agreements before or after adoption.

New section 213.1 of the Act requires a society or agency to consult with a band or native community whenever it proposes to provide a prescribed service to a child who is an Indian or native person or to exercise a prescribed power under the Act in relation to such a child.

New section 226 of the Act requires that every review of the legislation undertaken under section 224 include a review of the provisions of the Act that impose obligations on societies with respect to Indians or native persons.

Complementary Amendments

Amendments to sections 26 and 28 of the Children's Law Reform Act relate to new section 57.1 of the Child and Family Services Act.

The amendments to section 47 of the Education Act revise wording to accord with terminology used in the Child and Family Services Act.

Section 28 of the Vital Statistics Act is amended so that if an adoptive parent reregisters an adopted child's birth, the birth registration will no longer read as if the adopted child had been born to the adoptive parent.

[38] Bill 210 As Amended by Standing Committee (PDF)