The Supreme Court Of British Columbia has issued a ruling that has all the potential to put hundreds of thousands of parents and children in jeopardy.1
The case involves a working mother who had left her son home alone after school on weekdays until 5 P.M. A provincial court judge had ruled that the mother must ensure that her son is supervised at all times while at home, however the mother appealed that decision.
Justice Robert Punnett of B.C.’s Supreme Court upheld the “interim supervision order” in the case, taking the side of the social workers who’d brought the matter before the courts.
It started in January of 2014, when social workers learned – by one means or another – the the mom was leaving her eight-year-old son at home alone after school. A social worker visited the home, and tried to enlist the mother’s cooperation by having her sign a “safety plan,” which the mother refused. When the mother refused to sign the safety plan, the social worker asked to speak with her son, an offer the mother similarly refused.
Failing to cooperate by refusing to sign a safety plan is quite-nearly certain to ruffle the feathers of any social worker, and this one was no exception. Off she ran to her local provincial court for an “interim presentation hearing,” during which the Director of Child and Family Services thoughtfully provided an application for a supervision order, asking that the family be “supervised” for six months. As the Supreme Court’s opinion explains it:
The social worker gave evidence at the presentation hearing, testifying that, in her opinion “children who are eight years of age do not have the cognitive ability to be left unsupervised,” citing various risks, including accidental poisoning or fires, which could arise “regardless of [A.K.]’s level of maturity.” She did not agree that some children eight or nine years’ of age would be capable of staying alone. On the strength of that evidence, the trial judge accepted that children under the age of ten could not be safely left alone, therefore establishing that there were reasonable grounds to believe that A.K. required protection, and that such protection could be effected by a supervision order.
The Supreme Court further explains that, “The Director notes that the proceeding before the trial judge was a presentation hearing, not a protection hearing, and that the Director is only required at a presentation hearing to provide admissible evidence which, if believed by the protection hearing judge, could lead to a finding that the child is in need of protection.”
In other words, it was only a preliminary hearing, held ex parte the dependent mom. The Supreme Court ruling continued on to say:
Given the purpose and nature of a presentation hearing, the trial judge relied on the experience of the social worker, the exhibits filed respecting young children and the fact that the only evidence before the Court was that of the Director, in reaching his conclusion that there was admissible evidence sufficient to make a supervision order pending a protection hearing. It is at the protection hearing that the issue of leaving the child unattended for an extended period is to be addressed.
So, for now the order stands, and aprotection hearing is presumably scheduled to be heard at some point in the future. All the while, the family remains under “supervision.”
As for the Supreme Court’s view of all this, “If and when the protection hearing proceeds and the appellant wishes to appeal the result of that hearing, a separate appeal on the record of that hearing is the appropriate way in which to proceed.”
It appears that Canada’s higher Courts have yet to draw a “bright line,” however that may change if the current case should rise once again to the level of an appeal – a possibility that the British Columbia Supreme Court itself left open as a possibility.
A review of Canadian caselaw provides precious little guidance. A ruling issued on August 22, 2013, by the Provincial Court of Alberta references a lower court ruling ordering that a child who was the subject of a contentious separation was not to be left unsupervised by either parent until he had attained the age of 12. A close reading of the case, however, reveals that the court’s lack of sympathy toward the parents in that particular case stemmed largely from the continuing acrimony between them.2
In 2012, the Supreme Court Of Nova Scotia, Family Division, ordered that a 13-year-old boy was not to be left overnight, or to be otherwise left unsupervised at his mother’s home. This decision had more to do with the boy being one of three children who were deemed truant and otherwise problematic by the courts.3
With regard to the question on hand, the Government of Alberta provides this sage advice online:
The Children’s Aid Society of Halton, Ontario, provides this rather conflicting advice online:
In plain English, while there is no law specifically defining the age at which a child may be left home alone, if a social worker deems fit, your child may well be removed from your care for purposes of “child protection,” and you may also find yourself facing criminal penalties.
Anxious to see whether there was something – anything – on the web that could serve as a more definitive guidance document with respect to this issue, I happened on an Information Sheet assembled this year by researchers at McGill University’s Centre for Research on Children and Families.4
McGill University’s researchers did a remarkable job, providing a read that should satisfy the majority of people wanting to know more about this thorny issue. The Issue Paper explains that, “Parents are required to adequately provide for the supervision of their children at all times as they are ultimately responsible for their children’s safety.”
The Issue Paper continues on to explains that, “the definition of ‘child’ under welfare Acts is linked to the age of majority in seven provinces and territories. One territory defines child as a person under 18 where the age of majority is 19. The remaining five provinces and territories define child as either being or appearing to be under the age of 16.” However, the inquiry does not end there, rather,
The majority of provinces and territories do not limit the age at which a child can be left alone in their statutory rules. However, in two provinces (Manitoba and New Brunswick), the welfare Acts state that a parent cannot leave a child under the age of 12 unattended without making provision for adequate supervision. In Ontario, the statutory limit is 16 years. When it comes to leaving a child unattended in a vehicle, only Quebec establishes a statutory age limit (seven years).
Unsupervised children in need of protection
The McGill Issue Paper explains that there are widely divergent interpretations of what constitutes a “lack of supervision” for purposes of a “child in need of protection” order to issue. For the most part, it left to the interpretation of the individual caseworkers and the judges:
Expressions vary widely across jurisdictions and include inability or unwillingness to provide adequate care, supervision or control of the child, failing to supervise and protect the child adequately, leaving a child unattended for an unreasonable length of time and failing to make adequate provision for the child’s care, and abandoning, deserting or losing a child. The burden of proof lies with the party bringing the case forward, i.e., the State through its Child Services Department. The State needs to prove (1) the child’s age, for those provinces that have an age limit, (2) that the child was left unattended and (3) that as a consequence, the child was in danger or suffered harm. However, in Ontario, the burden is reversed if the child is und er ten years. In that case, the State would simply need to prove (1) that the child was under the age of ten years and (2) that the child was left unattended; the parents need then to prove that the child was not in danger.
Possible criminal sanctions
Unbeknownst to hundreds of thousands of parents would work 9 to 5, and leave their children at home alone for even a short period of time after school, the threat of potential criminal sanctions is severe in certain provinces. Adding to the confusion, the McGill researchers note, is that there is conflicting information online provided both by some provincial governments, as well as Children’s Aid Society’s. Regardless of what other information may be online, the reality is a stark one:
When a person in charge of a child is found guilty under a Welfare Act, that person commits an offence and may be liable to a fine, imprisonment or both. As listed on Table 1, most provinces and territories provide for such an offence and for the subsequent possibility of penalties: a fine ranging from a minimum of $240 to a maximum of $50,000; imprisonment ranging from a minimum of 3 months to a maximum of 24 months or both a fine and imprisonment; only New Brunswick does not provide for both. Of the provinces and territories that allow for a fine, only two provinces do not also allow for imprisonment (Quebec and Prince Edward Island). No such offence and penalty are provided for in the Welfare Acts of two provinces and one territory (i.e., British Columbia, Nova Scotia and Yukon.)