human-rights-of-children-and-youth

Contents
Introduction: Children, Youth and Human Rights........................................................................................... 2
One: Human Rights of Children ...................................................................................................................... 5
Two: Convention Rights and Concepts of Child and Non-Discrimination..................................................... 11
Three: Best Interest of the Child ................................................................................................................... 17
Four: Convention Rights, Best Interest of the Child and Family Law ............................................................ 20
Five: Convention Rights, Best Interests of the Child and Immigration ......................................................... 26
Six: Child’s Right To Protection Against Abuse, Exploitation, Neglect and Harm ......................................... 28
Seven: Child’s Right to Protection against Sexual Abuse .............................................................................. 35
Eight: Children’s Right to Participation in Matters Concerning the Child..................................................... 37
Nine: Other Important Rights of Children..................................................................................................... 40
Conclusion ..................................................................................................................................................... 43
To the Reader
Children have human rights which all adults have under the Charter of Rights and Freedom, Canadian
Human Rights Act and Alberta Human Rights Act. In addition, they also have human rights under the
United Nations Convention on the Rights of the Child. In Canada, domestic laws, policies, programs and
services implement, protect and promote human rights of children for their wellbeing and development.
This booklet provides information on all these issues.
The comic illustrations in this booklet summarize important concepts and are intended as a memory
aid. They do not mean to ridicule or trivialize any situation or individual. If they offend you in any
manner, we ask that you ignore the oversight of the creative team in favour of their intention.
This manual does not offer professional advice. While the information provided in it is wellresearched, we do not guarantee its accuracy. United Cultures of Canada Association will not be
responsible for any loss or damage suffered due to reliance on its contents.
This project would not have been possible without the gracious support of the Human Rights
Education and Multiculturalism Fund. We remain indebted to Nicholas Ameyaw, Senior Consultant,
Community Engagement and Inclusion (CEI), Alberta Culture and Community Spirit, for his valuable
insights, guidance and, above all, his confidence in the project team.
- Amanda Brown, President - United Cultures of Canada Association
Authors: Latika Srivastava, LL.M. Lawyer and Nayanika Kumar, Ph.D
Illustration: Flavio Rojas Designs
Community Education: Amber Khan, MBA
Project Advisors: Amanda Brown and Ellie McGaughey
Introduction: Children, Youth and Human Rights
The words “Children’s Human Rights” may seem
mutually exclusive to some people. Children are
physically and mentally immature and depend on
their parents or legal guardians for survival and
development. They do not have physical, mental or
financial abilities to protect themselves against
abuse, exploitation, violence or neglect.
A legal guardian sexually abuses the child in his care; a mother lacks money to provide food,
clothing, and shelter for her child; an employer keeps a child labourer in a hazardous work
environment that threatens the child’s life and health; a police officer arrests a child and fails to
assist that child in contacting a lawyer; a guardian fails to protect a child in her care against the
violence and abuse by a third party; a negligent mother allows her toddler to walk outside
wearing only a diaper in – 20 degree Celsius weather; a school refuses to admit a student
because of the student’s religion; a registrar refuses to disclose the identity of a child’s
biological father when the child wants to know it - several situations raise the issue of human
rights of children. Does a child have rights to protect his or her interests in these matters?
Should society consider children as individuals capable of having rights?
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If these questions were asked a century ago, we would not have known their answers, but
today, we can proudly say that our children not only have rights but they also have more rights
than adults. The state or government provides strong support for children’s rights and the law
enforces these rights.
Why did we write this booklet?
By creating this booklet, we want to promote awareness about children’s human rights among
children and adults, families and communities, and service providers and educators. We also
want to explain how such rights are enforced in Canada. This awareness may enhance the
confidence of children and foster their ability to advocate for their human rights. It will also
make them more respectful toward the rights of other individuals.
Who can use this booklet?
This information will help families and communities to better understand their responsibilities
toward children. It will increase the ability of the service providers to deal with individuals who
disregard children’s rights. Educators may use this information to create responsible and
enlightened communities that treasure their children.
When a community nurtures, loves, and cares for this most vulnerable segment of humanity,
the community emerges as a compassionate, humane, and morally evolved community.
Why should a society care for its children?
When a society invests its resources in raising its children to become healthy and responsible
adults who have social, intellectual, emotional, and moral abilities, it shapes and secures its
future. As a matter of fact, one can define a society by the way it treats its children. The
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humanity and wisdom of a society are reflected in the system that the society establishes for
raising its children.
When were children’s rights recognized?
Children did not have the status of a human being throughout most of the history.
Traditionally, they were treated as chattels or property of their parents. They did not have any
individual rights and were subject to their parents’ rights. On September 25, 1924, the League
of Nations’ Geneva Declaration of the Rights of the Child, challenged this conventional norm. It
declared:
“… mankind owes to the Child the best that it has to give….”1
On November 20, 1959, the United Nations, which replaced the League of Nations, made
another declaration, known as the United Nations Declaration of the Right of the Child. This
declaration was adopted by 78 member States. Within this declaration, the fundamental
principle underlying the ten rights stated:
“The child is recognized, universally, as a human being who must be able to
develop physically, mentally, socially, morally, and spiritually, with freedom
and dignity.”2
Thirty years later, on November 20, 1989, the United Nations General Assembly adopted the
United Nations Convention on the Rights of the Child (CRC).
What is the United Nations Convention on the Rights of the Child (CRC)?
The United Nations Convention on the Rights of the Child (CRC) is the most widely approved
international convention. Around the world, 194 countries, known as “state parties,”
participate in this convention. Canada signed it in May 1990 and ratified it in 1991.
What role did the Convention play in advancing the rights of children?
The Convention, which represents the fundamental international document relating to the
rights of children, declares the civil, political, economic, cultural, social, and health rights of
children. It acknowledges that while children represent individuals capable of having their own
human rights, special measures are required to protect their rights. Since children are
extremely vulnerable to harm, abuse, exploitation, and neglect because of their physical and
mental immaturity, families, communities and the governments must work together to protect
children.
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One: Human Rights of Children
Before we discuss children’s human rights, we must understand the concept of human rights.
Human rights are fundamental rights to which all human beings are entitled. These rights are
universal, uniform and indivisible. They aim to protect human existence as well as the essential
dignity and worth of a human being. Accordingly, these rights contain greater importance than
other rights and take precedence over other rights in case of a conflict. The governments and
government agencies must not interfere with or take away these rights except when they are
required to do so under the law and in the interest of the society.
What are the human rights of an individual?
The General Assembly of United Nations proclaimed Universal Declaration of Human Rights on
December 10, 1948. The Declaration sets out the fundamental human rights that all nations
must achieve and guarantee to their people. These rights are briefly discussed in the following
part of this chapter.
What is the right to freedom of thought, beliefs, opinion and expression?
A child has right to freedom to express and share one’s thoughts and views and includes
freedom to seek and receive information from others.
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What is the right to life, liberty, and security of a person?
This right comprises access to everything that is essential for physical survival and growth, such
as adequate food, clean water, shelter and medical care. It also includes right to live with
dignity. The right to liberty consists of the right to live without physical restraint and make
personal choices in matters that are fundamentally personal.3 The right to security consists of
rights to safety as well as privacy of one’s body and health.4
What is the right to freedom of peaceful assembly?
This refers to people’s right to collect peacefully and to work for common interests.
What is the right to freedom of association?
This includes a right to form or join a group that works for, promotes or expresses a specific
purpose.
Children have right to freedom of peaceful assembly and right to freedom of association.
What is the right to freedom of conscience and religion?
This is a right to practice and profess one’s own religion
What is the right to be free from discrimination?
Everyone has the right not to be discriminated against on the grounds race, national or ethnic
origin, religion, colour, gender, age, mental or physical disability. It includes non-discrimination
on the analogous grounds of sexual orientation and marital status. These personal
characteristics are described as protected ground by the Alberta Human Rights Act and other
provincial and federal human rights acts.
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What is the right to equal protection of the law and to have equal benefit of the law?
This statement means that the law treats everyone equally and refrains from giving preferential
treatment to one person over another. For example, in a dispute between a king and a pauper,
the law will treat both equally and will not favour the king over the pauper. Similarly, all
persons have equal rights under the law.
What is the right to be treated fairly in the justice system?
This refers to a set of legal rights including the right against arbitrary arrest and detention; a
right against unreasonable search and seizure; the right to retain and instruct a lawyer; the
right to retain and instruct a lawyer to defend oneself in a legal proceedings; the right to have
trial within a reasonable time; the right to be deemed innocent until proven guilty; the right not
to be subjected against any cruel or inhuman treatment or punishment
Are there other rights, too?
In addition to the above rights, human rights also include:

Right to move in, work in, remain in and to enter and leave one’s own country

Right to help choose and to take part in the government of one’s country

Right to possess and own property

Right to marry and have a family

Right to seek shelter in another country if there is a persecution or a risk of being
persecuted in one’s own country

Right to social security and opportunity to develop skills

Right to education

Right to adequate standard of living and to receive medical care

Right to share in one’s culture and promote it

Right to rest and leisure
How do children and youth have more rights than adults?
Children and youth have more rights than adults. As human beings, children have the same
human rights as adults have under the Universal Declaration of Human Rights and the United
Nations. In addition, they have several other rights under the Convention on the Rights of the
Child. They are also protected under special protocols, such as UN Protocol to Prevent,
Suppress and Punish Trafficking in Person, Specially Women and Children, and Protocol on the
Sale of Children, Child Prostitution and Child Pornography. The CRC includes most of the
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children’s rights declared by these international instruments. This is the reason why we refer to
children’s human rights as CRC or convention rights.
Can children in Canada enforce their Convention Rights?
Yes, children in Canada can enforce their convention rights through domestic law. Since the
parliament and provincial legislatures have not created the CRC, children lack the ability to
directly enforce these rights. However, convention rights have been incorporated into federal
and provincial or territorial legislation and court decisions, which means that children can
enforce these CRC rights through related legislation and court decisions.
What laws in Canada guarantees these rights to children?
In Canada, there is no single document like the CRC that declares all human rights of the child in
one place. However, there are several laws that guarantee these rights to children living in
Canada. The Charter of Rights and Freedom5, Canada Human Rights Act6, provincial or
territorial human rights legislation such as Alberta Human Rights Act7, family law legislation and
the Criminal Code8 of Canada – all these embody the human rights of children given to them
under the international instruments including the CRC. Under these pieces of legislation,
children can enforce their human rights against individuals and government. The following
section briefly describes how these laws protect children’s human rights.
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What are children’s rights against the acts of the government?
Fundamental Human Rights are embodied in the Charter of Rights and Freedoms, which is a
part of the Constitution of Canada. These rights are referred to as Charter Rights. By including
these rights, the constitution guarantees them to all persons, including children, living in
Canada. If federal, provincial, or territorial governments make a law that violates one of the
Charter Rights, you can ask the court to declare such law unconstitutional. Similarly, if an
administrative or executive action of federal, provincial or territorial governments or their
representatives interferes with your Charter Right, you may ask the court to declare such acts
as unconstitutional.
What are children’s rights against the discriminatory acts of Individuals?
The Canadian Human Rights Act protects people against discriminatory acts of non-government
agencies and private individuals in areas where federal government can make laws. In
provinces and territories, provincial human rights legislation protects human rights against acts
of non-governmental agencies and individuals. Alberta has the Alberta Human Rights Act that
protects individuals against the discriminatory acts of individuals in the area where the province
of Alberta can make law, such as tenancy, employment, and goods and services. For example, if
an employer refuses to employ you because you practice a certain religion, the employer is
discriminating against you on the ground of your religion. In this case, the Alberta Human
Rights Act gives you a right to complain about the discriminatory conduct of your employer to
the Human Right Commission in Alberta and receive a remedy.
How does the Criminal Code of Canada protect the rights of the children?
The Criminal Code makes it a crime to subject a child to any kind of harm, neglect, exploitation,
abuse or violence. Any person found guilty of such a crime is severely punished.
How does family law legislation protect the rights of the children?
Family law legislation, which deals with the child custody, access, contact, guardianship and
child support issues, provides that all decisions concerning a child must be made in the “best
interest of the child.” The term best interest of the child is very broad and includes human
rights of the children under the CRC.
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How do courts protect the rights of children?
In matters concerning a child, the courts in Canada make decisions based on primary
consideration of the “best interest of the child”, even when the relating legislation is silent
about a child’s right. Canada is a common law country, and decisions made by a higher court,
are binding on a lower court in the same jurisdiction. The Supreme Court of Canada is the
highest court of the land and its decisions are binding as law, on all other courts in Canada. In
several cases, the Supreme Court has explained the term “ best interest of the child” includes a
child’s ability to use his or her rights under the CRC. This practice has established a precedent
for all other courts, which also use the “best interest of the child” principle in an appropriate
context of children’s interests.
How do governments protect children and their interests?
One of the ways the federal, provincial, and territorial governments protect children and their
interests under the CRC is by offering various programs and services to meet their specific
needs. Some of the examples of these programs and services are: Canada Child Tax Benefit by
federal government, and Family Justice Services and Office of the Child and Youth Advocate in
Alberta.
Several programs and services are offered by federal, provincial and municipal governments
to meet the specific needs of children.
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Two: Convention Rights and Concepts of Child and Non-Discrimination
The CRC has 54 Articles. More than 40 Articles declare rights of the children and the rest discuss
the measures to implement these rights. These are called convention rights. For the sake of
convenience, these rights may be discussed under three broad categories: rights to provision,
rights to protection and right to participation.
What are provision rights?
Provision rights include children’s survival and developmental rights. Children have right to be
provided with everything that is essential for their survival as human beings such as, nutritious
food, clean water, shelter, primary medical care and other things required for an adequate
standard of living. These are called necessaries or necessities of life. Children also have right to
be provided with resources and opportunities for their physical, mental, emotional,
psychological, intellectual, social and cultural growth. Developmental rights include right to
education, rest, play and leisure, right to share one’s culture and cultural activities, right to
know one’s identity and to be associated with one’s parents, right to freedom of religion, faith,
belief, opinion and expressions and right to freedom of association and assembly.
What are protection rights?
Provision rights of the children include the right to be protected against all kinds of harm,
neglect, abuse, violence and exploitation. These ensure protection of children against specific
crimes such as child trafficking, prostitution and pornography. They extend to protect children
who abuse drugs and safeguard the interest of the children who are involved in the criminal
justice system. Children are also protected against cruel punishment. Protection rights address
rehabilitation of the children who are victims of crime and provide special protective measures
for refugee and aboriginal children. Children also have right to be protected in employment.
What are participation rights?
Participation rights primarily include children’s right to express their thoughts and opinions and
their right to access and receive information in matters affecting their interest. These rights
include right to form or be part of an association and right to peaceful assembly. The
participation rights consider a child’s evolving capacity and declare that a child must be heard
and his or her opinion must be duly considered in matters concerning him or her.
What are the basic concepts in the CRC?
There are three concepts that have been consistently used in determining most of the human
rights of children under the convention:
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1. Child,
2. Non-Discrimination, and
3. Best Interests of the Child.
Who is a child under the convention?
The convention defines a child as a person below the age of eighteen except where the laws in
a jurisdiction have established the age of majority as lower than eighteen years. In such
jurisdictions, anyone below the age of adulthood is a child. In Canada, the age of majority
differs from province to province.
In some provinces, adulthood begins at eighteen years; in others, the age of majority is
nineteen. In Alberta, the age of majority is eighteen years.
The needs and abilities of children change with their age; for instance, six year-old children
have different requirements and capabilities than twelve year-old children. For example, a
court will duly consider the views and preferences of a child who is twelve years or older while
deciding a custody matter. Accordingly, programs and services often divide children into groups
of infants, children, adolescents, or youth and young adults to provide age-appropriate services
and to assign age-appropriate responsibilities to children.
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What is the meaning of non-discrimination under the convention?
The concept of non-discrimination indicates a child’s rights to be treated equally and to enjoy
human rights without discrimination. A child must not experience discrimination on any of the
following thirteen grounds: race, language, religion, gender, political or other opinion, colour,
nationality, ethnic or social origin, disability, property, birth, or other status.
How is a child protected from discrimination based on the belief or status of a family
member?
The convention states that the child shall not be discriminated against on the grounds of status,
activities, expressed opinion, or beliefs of the child’s parents, guardians or other family
members. This right prohibits governments from using force or discriminating against a child
because of his or her family’s political or social opposition to their ideologies.
A child must receive protection against any discrimination that is caused by the political or
social affiliation of a family member of the child.
Son denied opportunity to play hockey due to father’s human rights complaint:
The complainant filed a complaint on behalf of his son under section 20 of The
Human Rights Code alleging that his son was denied the opportunity to play
hockey for the respondent because he had previously filed a human rights
complaint against the respondent. The Adjudicator found that the complainant's
first complaint had been filed and was still pending when the respondent refused
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to register the complainant's son's application to play hockey on any of its teams
because there was an active human rights complaint against the respondent
association. Remedy: The complainant was awarded $2,000 to compensate his
son for injury to dignity, feelings and self-respect.9
What laws protect a child against discrimination in Canada?
The Constitution of Canada(S. 15) prohibits government and its representatives from
discriminating against anyone on the grounds of race, religion, ethnic origin, nationality, colour,
sex, age, or mental or physical disability. Moreover, the Constitution also ensures that everyone
is equal before the law and has equal protection and benefit of the law. The Canadian Human
Rights Act prohibits private individuals from discriminating against a person on the grounds of
race, religion, ethnic origin, nationality, colour, sex, sexual orientation, age, disability, family
status, or marital status. In addition, private individuals cannot discriminate against persons
who have been convicted for an offense for which pardon has been granted or for which a
record suspension has been ordered. In the following case, 12-year-old Justine Blainey was
allowed to file a complaint against the Ontario Hockey Association for sex discrimination.
Refused the right to play hockey because she was a girl: Justine Blainey, a
twelve-year old Toronto athlete, was refused the right to play hockey with a
Metro Toronto Hockey League team, which chose her as a player on a
competitive basis, because she is a girl. The rules of the Ontario Hockey
Association, of which her team is an affiliate, require that all members be male.
Justine Blainey attempted to file a complaint alleging sex discrimination with the
Ontario Human Rights Commission but her complaint was refused on the
grounds that section 19(2) of the Ontario Human Rights Code exempts the
matter of sex discrimination in sports from the law and the Commission had no
legal authority to accept the complaint. The Ontario Court of Appeal finds that
the exemption from protection which section 19(2) creates is clearly
discriminatory. With respect to athletic activity, the protection of the Code is
available to all others who complain of discrimination on grounds such as, race,
colour, or ethnic origin. In addition to the exemption only applying to sex
discrimination, the Court finds that it is females who are being denied the right
to full membership and participation in athletic organizations. Section 19(2) of
the Code discriminates directly on the ground of sex, and it also discriminates
indirectly, because the omission of protection adversely affects females. The
Court, by its majority decision, finds that section 19(2) of the Ontario Human
Rights Code is inconsistent with section 15(1) of the Charter and consequently of
no force and effect....The effect of the Court's ruling on section 19(2) of the Code
is to allow Justine Blainey to file a complaint against the Ontario Hockey
Association alleging sex discrimination, and to have her complaint addressed
through the ordinary procedures under the Ontario Human Rights Code.10
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Is there a specific law that protects children against discrimination in Alberta?
In Alberta, the Alberta Human Rights Act prohibits discrimination on the grounds of race,
religious belief, ancestry, place of origin, colour, sex, sexual orientation, disability, family status,
marital status, and source of income in the areas such as goods, services, accommodations, or
facilities that are usually available to the public. This act applies to the areas governed by the
provincial laws of Alberta.
Can a child seek relief if he or she has been discriminated against on a protected ground?



If a child has been discriminated against contrary to s. 15 of the Constitution, the child
may go to the court for relief
If a child has been discriminated against contrary to any provision of the Canadian
Human Rights Act, the child may go to the Human Rights Commission of Canada
If a child has been discriminated against contrary to the provisions of the Alberta Human
Rights Act, the child may go to the Human Rights Commission of Alberta.
Children can seek support of the law if they have experienced discrimination.
In the following case, the Human Rights Tribunal in Ontario struck out the definition of age in
Section 10 of the Ontario Human Rights Code and decided to consider 245 complaints alleging
discrimination against children with autism on the intersecting grounds of age and disability.
245 children filed a complaint with the Ontario Human Rights Commission that
Ontario discriminated against them on the ground of age as it restricted its
public service known as Applied Behaviour Analysis ("ABA") or Intensive
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Behavioural Intervention ("IBI") to children between the ages of 2 and 6 who
have autism or Asperger's Disorder. It refused to provide the service to children
over the age of 6. In defence, Ontario argued that under the Human Rights Code
of Ontario, the children could not file a complaint with the tribunal being under
age of 18, The Tribunal found that the blanket exclusion under the Code of
children under 18 from access to the human rights system is not necessary to
protect them. The mentally ill are a highly vulnerable group, as are children. The
intersection of the complainants' age and mental disability exacerbate their
vulnerability. Precluding them from gaining access to the human rights system
perpetuates their unfair social characterization as less worthy members of the
community. That effect is exacerbated by the fact that children have no civil
remedy for age discrimination unless the alleged violator is government. The
Tribunal concluded that the restrictive definition of age violates s. 15 of the
Charter. And its breach cannot be justified in a free and democratic society
under s. 1. The Tribunal struck the definition of age in s. 10(1) of the Code, and
declared it of no force and effect for the purposes of the complaints in these
proceedings. It allowed children to file complaint.11
Is age always a protected ground?
In some areas, age may not be a protected ground. For example, the Alberta Human Rights Act
does not provide protection against discrimination on the ground of age in the area of tenancy
and goods, services, accommodations, or facilities. For example, discrimination does not apply
in the following situations:



if a landlord refuses to rent you an accommodation in an “adults only” residential
building because you are not an adult;
if a shopkeeper refuses to sell you cigarettes or alcohol because you are below
eighteen years of age; or
if you can’t get a driver’s licence because you are below eighteen years of age
Age is not a protected ground
in the area of goods, services,
accommodation or facilities
and residential and
commercial tenancy. For
more information on these
topics, read UCCA’s booklets:
“Human Rights in Goods,
Services, Accommodation or
Facilities” and “Human Rights
in Residential and
Commercial Tenancy.
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Three: Best Interest of the Child
The best interest of the child refers to a situation wherein a child is able to exercise his or her
provisions, protection and participation rights to the full extent possible. Due to physical,
mental and intellectual immaturity, children lack the ability to protect their own interests. That
is why the Convention directs that in all matters concerning a child, the authorities must make
decisions in the best interests of the child. The “best interests of the child” is a test for
correctness of such decisions. All governmental and non-governmental agencies and
institutions, including the courts of law and law-making authorities, are bound by this principle.
These bodies must use this principle as a primary consideration in matters affecting the child.
Governments, service providers and courts must take the responsibility to safeguard and
protect a child’s best interests in all matters within their jurisdictions.
What are the best interests of the child?
The best interests of the child include the following:



Safety and wellbeing of the child
A secure environment that would permit the child to grow as a productive and useful
member of the society by achievement of child’s full potential as an individual
Care of child’s physical, medical, psychological, emotional, social and educational needs
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






Child’s need for stability, taking into consideration child’s age and stage of development
Cultural and religious heritage and cultural, religious, linguistic and spiritual upbringing
and ties,
Provision for necessaries and special needs of child
The nature, strength and stability of the relationship between the child and parents or
guardians and other members of the family
Ability and willingness of the parents or guardian to take care of the survival, wellbeing
and development of the child
The views of the child if child is capable of forming such views taking into consideration
the age and maturity of the child
Past incidence of domestic violence and its effect on the safety of the child and other
members of the family
Legislation and decisions of the Canadian courts establish clear guideline that the best
interests of the child receive primary consideration in all matters related to the child.
What are the specific factors under the CRC that are considered as best interests of a child?
Besides the factors discussed above, the CRC specifically states certain factors to be in the best
interest of the child and that the child is entitled to claim them as his or her human rights.
These rights may only be taken away from the child when circumstances indicate that these
factors no longer support the child. For example, when a child is at risk of being harmed by a
violent parent, the child’s best interests involve staying away from the abusive parent. In this
case, the child’s right to be united with that parent will not be in his best interest of the child
and should be removed. A list of such rights is given below.
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
The child has a right to be united with the parents. A child shall be separated from his
or her parents only when it is in the best interest of the child. (Article 9.1)

The child has a right to have access to both parents. A non-custodial parent shall be
denied access to the child if it is in the best interest of the child. (Article 9.3)

Parents shall take into account the best interest of the child in the upbringing of the
child. (Article 18)

Continuity in upbringing of the child and the child’s association with his or her ethnic,
cultural, religious and linguistic background, should be maintained. Preserving the
cultural identity of a child is in the best interest of the child. (Article 20.1)

The State also, shall give due regard to the cultural identity of the child who is in the
State’s custody as usually, it will be in the best interest of the child.

In an adoption of the child, the best interest of the child must be the fundamental
concern. When a child is adopted by parents belonging to a culture different from the
culture of the adopted child, the adoptive parents are not permitted to cut off that
child from his/ her cultural roots. Preserving cultural identity serves the best interest of
the child.

A child who is accused of a crime must not be kept in the same facility as adults
accused of a crime, unless it is in the best interest of child. (Article 37)

A child who is accused of a crime is entitled to a fair trial. Fair trial gives both parties an
opportunity to be heard by the judge. In case of a child, a court-hearing may upset him
or her, and generate negative emotions such as fear, anger, helplessness, grief,
repentance, frustration, shock, disgust, hatred etc. because of his or her tender age or
any special circumstances. In appropriate cases, the court may dispense with the
requirement of hearing, to protect the best interest of the child. (Article 40)

Hague Convention on the Civil Aspect of International Child Abduction deals with the
custody dispute between parents where a parent abducts the child from the custody of
other parent, and takes the child to another country. In such matters, the custody shall
be given to the parent who is capable to safeguard best interest of the child.
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Four: Convention Rights, Best Interest of the Child and Family Law
The fundamental principles of the CRC inform the basis of family law and other legislation
addressing the interests of the children in Canada. These principles include the following:
 the child is entitled to all rights that are available to human beings;
 the child needs special care and assistance from family, community, and
government due to their young age as well as their physical and mental immaturity;
 the family is the natural environment for the upbringing and growth of a child;
 the family has primary responsibility for the care, protection, and wellbeing of the
child; and
 the community and the government must support the family in raising the child.
How is the principle of “best interests of the child” applied to the family law?
The Divorce Act12 states that in making a custody or access order, a court shall take only the
best interest of the child in consideration. The Family Law Act13 and Child, Youth and Family
Enhancement Act14 mention several factors for determining the best interests of the child.
Family law legislation in other provinces and territories has similar provisions.
The term “best interest of the child” refers to overall wellbeing of the child that is evidenced
by various factors that are alike under CRC and laws of Canada.
20
The Family Law Act lists some factors that a court must consider for making a decision in the
best interest of the child when deciding which parent will have custody of a child after divorce
or separation. These factors include:








Needs and circumstances of the child;
Emotional, physical and psychological safety;
Child’s need for stability;
History of care for the child;
Cultural, religious and spiritual upbringing of the child;
Views and preferences of the child if they can be ascertained;
Past incidences of domestic violence in the family and its impact on the relationship
of the child and other family members, the safety of child and other family members,
the wellbeing of the child, and the bonding between the child and other family
members; and
Willingness and ability of a parent to take care of the child and co-operate with
other parties in matters affecting the child.
In a custody matter, best interest of the child is the only consideration and the court may
grant a child’s custody to the parent who is capable and willing to provide protection, care,
guidance, and supervision as well as opportunities for education, extra-curricular activities
and overall growth of the child.
21
How do the CRC principles protect the interest of the child in family law matters?
Families are primarily responsible for the care, wellbeing, and development of the child. The
Divorce Act governs divorce, separation, child custody, and access as well as spousal and child
support matters. This legislation applies to all of Canada, including Alberta. In Alberta, the
Family Law Act also governs custody, access, and contact as well as parenting and child and
spousal support issues. Both of these acts state that the parents and legal guardians are
primarily responsible for the upbringing, care, and development of the child. The separation or
divorce between the parents must not disrupt the life of a child. Accordingly, parents and
guardians must continue to fulfill their parental obligations even after the termination of their
relationship. Parents must provide food, clothing, housing, medical care, education, and extracurricular activities for their child within their financial means.
Parents and guardians are also responsible for the child’s safety and must cooperate with
each other to provide emotional, social, and psychological support for the child.
How is CRC followed in custody and access matters?
The law provides that custody and access represent the child’s rights to receive care and
support from the parents and to maintain an association and connection with them. However,
no such rights exist for the parents. Any decision concerning these issues must be childcentered and made in the best interest of the child. The Family Law Act states that the judge
22
shall hear and give due consideration to the child’s views and preferences in a custody and
access matter if the child is mature enough to form and express his or her opinions .Review the
following case:
In one case that involved the determination of a non-custodial parent’s access to
the child, the court emphasized that in custody and access matters, the “best
interest of the child” is the only consideration.15 It explained that the best
interest of the child does not equate with the absence of harm or the prospect of
harm to the child. It refers to the selection of positive factors that will enhance
and promote the physical, psychological, emotional, social, and cultural wellbeing
of the child.
In the above case, the court further held that the best interest of the child requires that the
child’s relationship with both parents must be maintained despite divorce or separation. If the
non-custodial parent’s access to the child is not in the child’s best interests, then the protection
of the child’s interests should be considered more important than the wishes and interests of
the non-custodial parent.
The convention practices the principle that the family is primarily responsible for a child but
governments must support the family in performing this responsibility.
23
What happens if parents seeking divorce have not made appropriate arrangements for
children?
In divorce proceedings a judge shall not grant divorce to parents of a child until the judge is
satisfied that the parents have made adequate arrangements to support the child. Such
arrangements include living arrangements, financial support for the child, plans to share the
responsibility for the child, and arrangement for the child to spend quality time with the noncustodial parent.
How is a child’s interest protected after the child’s parents have separated?
The divorce or separation of parents can have a serious impact on children. In Alberta, Family
Justice Services provide programs and services to educate parents on how they can help the
children deal with divorce or separation. These services are offered by the Government of
Alberta, the Ministry of Justice and the Solicitor General. Family Justice Services offers a
Parenting After Separation Seminar (PAS) to teach parents to look after their child’s needs after
separation or divorce. Spouses applying for a divorce or separation in the Court of Queen’s
Bench must file a certificate that they have attended the “Parenting After Separation Seminar”
if they have children of the marriage. The Provincial Court may also direct a parent or guardian
to attend PAS before deciding upon their application relating to parenting or access issues.
Are parents responsible for providing financial support to a child who is a full-time student?
A child who is a
full-time
student and
requires
financial
support from
his or her
parents must
receive support
from the
parents within
their financial
means.
24
Under the Divorce Act, child support includes supporting a child who is a full-time student even
after the child has become an adult. The Family Law Act states that parents and guardians must
extend financial support within their means to a child who is less than eighteen years old and is
a full-time student. A child who has reached adult status but lacks self-sufficiency due to a
physical or mental disability has the right to receive support from both parents.
What is the meaning of child support receiving preference over spousal support?
When a judge decides that a parent is responsible for both spousal and child support but the
liable parent lacks the means to pay both types of support, the court will order the parent to
pay child support.
How does the government protect a child’s right to financial support from a separated
parent?
The government protects and enforces a child’s right to receive consistent financial support for
their survival and wellbeing from a separated parent. In Alberta, the government runs a
Maintenance Enforcement Program (MEP) to facilitate and ensure a parent’s continued
financial support. When a child support or spousal support order is filed with the MEP, the MEP
will monitor and redirect the support payments from the payer (the person who pays support)
to the payee (the person who receives support). Maintenance Enforcement can take several
steps to elicit support payments. It can arrange direct receipt of payments from the parent’s
employer. It can directthe motor vehicle registry to suspend the driver’s license of the payer. It
can also apply to the federal government to refuse federal licences, such as passport, to a payer
until the payer’s arrears are paid.
Can a child be represented by an independent lawyer in a family law matter concerning his or
her interest?
The law gives the child the right to be represented by his or her own lawyer in a family law
matter that concerns him or her. The Child, Youth and Family Enhancement Act, a statute of
Alberta, states that a child shall have the right to be represented by an independent lawyer in a
court proceeding for a temporary or permanent guardianship order. Alberta Justice, a branch of
the government, appoints and finances the lawyer. See also page 37 of this resource.
25
Five: Convention Rights, Best Interests of the Child and Immigration
The best interest of the child principle has been widely supported by the legislation and policies
in Canada, but it can be subordinated to other factors and may not be the sole basis for the
final decision of a matter.16The Citizenship and Immigration Act, which governs these matters,
does not specifically state that immigration authorities must consider the best interests of the
child when deciding on applications to remain in Canada on humanitarian and compassionate
grounds. However, the Supreme Court has held that the best interest of the child is a primary
consideration in decision of an application for stay of a removal order.
How is the principle of “best interests of the child” applied to immigration matters in
Canada?
The best interest of the child represents a “due consideration” in decisions of immigration
matters that affect a child. For example, a child who is a legal resident of Canada may be
separated from her parents if the parents are removed from Canada for lacking a legal status to
live in Canada. A child who is asked to leave Canada because the child is not a legal resident
may lose the protection, welfare, and growth opportunity available to him or her in Canada. In
both cases, the best interest of the child will be affected.
The best interest of a child is only a primary but not the sole consideration for deciding a case
in immigration matters.
In one case, the Supreme Court held that Canada is a party to the UN Convention on the Rights
of the Child and committed to respect the principles of the Convention.17Immigration
authorities ordered the removal of a woman who was found to be living in Canada for eleven
years without a legal status. She had four children born in Canada. The removal order was set
aside and the court directed the authorities to reconsider the application. The court specifically
held that when a removal decision will affect a child, the “best interest of the child” should be a
primary consideration and should be given “special attention” by the decision maker. However,
the Court also ruled that the best interest of the child is only a primary but not the sole
consideration for deciding such matters.
Can a removal order against a parent be enforced even if it results in separation from the
child?
In deportation proceedings, the child’s best interest is just one of many factors to be
considered. If other factors justify deportation, the deportation may be ordered even when it is
against the best interest of the child.
A person applied for the stay of a removal order against her until the
determination of her application to stay in Canada on humanitarian and
26
compassionate grounds. She also alleged that her child, who was legally residing
in Canada, would be separated from her. The Federal Court held that Courts
interpret and apply a law in a manner consistent with the convention and must
consider the best interest of the child in matters affecting the child. However,
the Immigration Act specifically provides for the removal of persons without a
legal status to stay in Canada. The government may order such removal even if it
separates such persons from their children who are legally resident in Canada.18
In another case the court noted that the best interest of the child is not the only factor to
consider when deciding whether a removal order is valid or not.
A mother and her children challenged their removal from Canada on the ground
that it violated the convention rights of children because, 1- it was not in the
best interests of the children, and 2-the children’s views were not taken into
consideration. The court held that their removal order was valid because, 1- the
best interest of the child is not the sole factor that decides such matters and
other factors justified the removal; and 2- the children’s view was represented
by their representatives in the proceedings.19
Can misrepresentation of facts regarding family status when applying for Canadian
immigration disallow an applicant from sponsoring her children?
Misrepresentation is a serious offence, which can lead to disallowing an applicant from
sponsoring his or her children.
In this case, the applicant was prevented from sponsoring her children in Canada
because, at the time of her immigration to Canada, she lied and misrepresented
the fact that she had no children or dependents in the Philippines. She sought to
challenge on the ground that this provision of the Immigration and Refugee
Protection Act20 violated the convention right of her children to be reunited with
the parent. The court held that the Immigration and Refugee Protection Act did
not violate the right of the children and the applicant could still go to the
Philippines and reunite with her children.21
27
Six: Child’s Right To Protection Against Abuse, Exploitation, Neglect and
Harm
The Convention on the Rights of the Child directs all member countries to ensure the safety of
the child through appropriate laws, policies, programs, and services. This broad and general
principle underlies all of the rights of children, ensuring their protection against specific harms.
Due to their vulnerable age, children lack the ability to protect themselves. Protection rights
involve the children’s rights to seek protection from all types of harm, exploitation, violence,
and abuse.
What are the protection rights of a child under CRC ?
The protection rights of a child include the following:





Protection of Life – Maximum protection for survival and development(Article 6)
Protection Against Trafficking and International Abduction - Illicit Transfer and
Abduction of Children Abroad (Article 11)
Protection Against Abuse, Harm, Neglect, or Exploitation in Care and Custody of the
Parents or Lawful Guardian (Article 19)
Prevention of Exploitative Use of Children for Unlawful Sexual Activities, Pornography,
or Prostitution (Article 34)
Protection Against Arbitrary and Unlawful Interference with Privacy, Family, or
Correspondence or Unlawful Attack on Honour and Reputation (Article16 )
28
Do children in Canada have protection rights similar to CRC?
Children in Canada have all the protection rights as stated in CRC. The Criminal Code of Canada
and other laws protect a child against all kinds of harm, exploitation, neglect, abuse and
violence. The Criminal Code of Canada defines the acts or omissions that constitute crimes in
Canada and describe the punishment for these crimes.
Can parents who fail to provide a child in their care with food, clothing and shelter or basic
medical care, be punished under the Criminal Code?
Food, clothing, shelter, and medical treatment are required for the survival of a human being.
Parents, foster parents, or heads of a family must provide these to a child in their care who is
below the age of sixteen years and lacks other means of acquiring these necessities. If
caregivers fail to provide the basic needs without any lawful reason and endanger the life or
health of the child or cause permanent injury to the child, the caregivers may be sentenced to
jail for a maximum of eighteen months or five years.22Being violent toward the child and
causing injury and sexually abusing, exploiting or assaulting the child are also serious crimes.
If parents or guardians caring for a child under the age of ten abandon that child in a way that
puts the child’s life or health in danger, these adults are committing a very serious crime for
which they may be punished with imprisonment from eighteen months to five years.
29
Under what circumstances will the child welfare system get involved?
Each province in Canada has laws that protect the welfare of children who lack guardians or
parents that can care for and support the child. In Alberta, The Child, Youth and Family
Enhancement Act establishes a child welfare system and allows authorities to intervene when a
child is in “need of intervention” or in the following situations:23




The child, while in the custody of a parent or guardian, is at the risk of being or has
been, abused, sexually abused, exploited, neglected, or injured by the parents/
guardian;
The child, while in the custody of a parent or guardian, is at the risk of being or has
been abused sexually abused, exploited, neglected, or injured by a third person;
The child is lost or abandoned or the parents or guardians are deceased; or
Parents or guardians are not able or willing to take care of the child
Can a child be removed from his or her home for reasons of safety?
The government acts as the guardian of a child who lacks a parent or guardian or who has a
parent or guardian that lacks the desire or ability to care for or to protect the child.
30
Under the Child, Youth and Family Enhancement Act, intervention services assist the family of
the child to improve the situation and make the home a safe place for the child to live. If the
situation does not improve or the child’s safety is at risk, intervention services may remove
the child from the custody of the parent or guardian to a safe place where the child can
receive proper care. On the director’s application, the court may grant a temporary or
permanent guardianship for the child so that another guardian may take care of the child. In
such matters, the child has a right to be represented by an independent lawyer in the court
proceedings.
Is it a crime for a parent or a guardian to take away the child from the lawful custody or care
of the other parent or guardian?
When parents or guardians take a child below the age of fourteen from the custody of the other
parent or guardian, they are committing a crime, especially in the presence of a court custody
order. Even without a court custody order, parents or guardians that take a child out of the
lawful care of the other parent or guardian are still committing a crime. The parent or guardian
who commits abduction may be punished with imprisonment that may extend to ten years. 24
Abduction involves taking a child out of the custody and against the will of a parent or
guardian.
31
Abduction of a child under the age of fourteen may result in a maximum punishment of ten
years in prison. On the other hand, adults that abduct an unmarried child under the age of
sixteen may receive a maximum of five years in prison.25
Do I need to report child abuse if I know about it?
Anyone that has knowledge of a child experiencing abuse must report it. The failure to report
child abuse is an offence that may be punished under the Child, Youth, and Family
Enhancement Act with a fine and/or imprisonment. In the following case, the court disagreed
with the argument of a guardian, who maintained that the act of taking the child from her
custody violated her guardian’s rights:
A director under the Child Welfare Act (now Child, Youth and Family
Enhancement Act) applied to the court for an order to take a child from the
custody of the guardian without notifying the guardian. The guardian
challenged the law as being unconstitutional since it violated her fundamental
right to life and liberty (s.7), in the Alberta Court of Appeal. The court did not
agree with the guardian on the ground that this law aimed to protect a child
from harm and shows consistency with the provisions of Article 19 of
convention.26
Do parents or school teacher have a right to use “reasonable force” to discipline a child?
Use of “reasonable” force by way of correction toward a child by a parent or school teacher in
not an offence and is justified under section 43 of the Criminal Code.
32
Section allowing “reasonable” force toward children valid in the “best interest”
of the child: [T]he Foundation challenged section 43 of the Criminal Code as
unconstitutional, as it allowed use of “reasonable” force toward children by
parents and school teacher by way of correction. They argued that this provision
is not in the “best interest” of children, and thus, violates constitutional principle
of fundamental justice which requires legislation affecting children to be in their
“best interest”. Madam Justice McLachlin, writing for a majority of five judges,
define the term “best interest” of the child, and held that the section 43 is valid
as being in the “best interest” of child. She also held that the term “best interest
of child” must be interpreted with reference to the CRC. 27
How does the principle of “best interest” apply when a child has committed a crime?
In this case the Alberta Provincial Court acquitted a minor for theft because articles 18 and 27
define the responsibilities of the parents in the development of the child and the right of the
child to an adequate standard of living.:
The child had a legal right to be in the home and eat the food there. This case
involved an accused minor, R.D., who was charged with breaking and entering
as well as theft. R.D. had been kicked out of his house by his father and told he
did not have permission to come into the house. R.D. was invited back inside
the house several times in order to eat. However, on the day in question, R.D.
entered his father's home through a window. The only items taken were
groceries. The Alberta Provincial Court acquitted R.D. of the charge. As his
father had not taken the steps to legally dissolve his obligations to provide R.D.
with the necessities of life, R.D. had a legal right to be in the home and eat the
food there.28
How is a child who has committed a crime protected from cruel and inhumane punishment?
The legislation recognizes that young offenders should be dealt with outside of the
conventional court system and should not be subjected to the same treatment and punishment
as adult offenders due to young age, immaturity, and impressionable mind. The Youth Criminal
Justice Act29 (YCJA) creates special provisions for young offenders who are under seventeen
years of age. The main focus of this act is to make young offender realize that they are
accountable for their wrongful conduct, and to give them an opportunity to correct themselves.
Consider the following case in which the Court noted Canada’s international commitments
supporting clemency toward youths. In this case, a claim was being considered for extradition
of two young Canadian men accused to the United States for murdering three family members
of one of the accused. The disputed issue was whether the extradition could be ordered
unless the US assured that the death penalty would not be imposed or carried out under Article
6 of the extradition treaty between the two countries.30
33
“…some degree of leniency for the youth is an accepted value in administration
of justice.” In a unanimous ruling, the Supreme Court upheld the decision of the
British Columbia Court of Appeal which set aside the Minister of Justice’s
decision and ordered the Minister to seek assurances from the United States as a
condition of surrender…the Court noted Canada’s international commitments
supporting clemency toward youths who were under 18 years of age at the time
of the offence of which they have been accused (Article 37(a) of the Convention
on the Rights of the Child). Because the young men accused were 18 years old at
the time of the offence, the Court recognized that here, as in the United States,
they would be held fully responsible for their acts. However, it concluded that
the importance that Canada places on the rights of the child justifies considering
their relative youth to be a mitigating circumstance, although, as the court
pointed out, one of limited weight (para. 93).
How does the YCJA deal with young offenders outside of the criminal justice system?
The YCJA introduces extrajudicial measures and extra- judicial sanctions for correcting them.
Such measures generally include a warning or caution not to commit the offence again and
mandatory participation in a community program or agency that may assist the young person in
correcting the offending behaviour and preventing reoffending.
Can a child abusing drugs be protected?
Protection of Children abusing Drugs31 (PChAD) is an Alberta law that protects children abusing
alcohol or drugs. If guardians or parents of children who are abusing alcohol or drugs think that
because of such abuse the children are likely to cause psychological or physical harm to
themselves or physical harm to other person, they may request the court for a protective order.
Under such order the children will be kept in a protective house for a period not exceeding 10
days where they will receive counselling and help to detoxify their body.
34
Seven: Child’s Right to Protection against Sexual Abuse
The act of abusing, exploiting, or assaulting a child in a sexual manner is a very serious offence
under the Criminal Code that carries a minimum jail term if the child is below the age of sixteen
years. Some examples of sexual assault under the Code include:

Sexual assault with a weapon on a child is punishable with a minimum of five years in
jail (s. 272)

Sexual assault that injures, disfigures, maims, or endangers the life of the victim is
considered an aggravated sexual assault. The minimum punishment for aggravated
criminal assault is five years in jail.

Having sex with one’s child, grandchild, brother, or sister is called incest, which
represents a serious offence when involving children. The minimum punishment for
this offence is five years. (s. 155)

Having anal or oral sex with a child is a serious crime known as bestiality. The minimum
punishment for this offence is a six-month or one-year prison term (s.160 (3))
Is it a crime to represent a child in a sexual way?
The representation of a child in a sexual way constitutes pornography, which may include the
following:



representing a child having sexual activity in a visual form;
showing the sex organs or anal regions of a child in a visual form; or
promoting sexual activity with a child in written material.
The production, distribution, or possession of child pornography comprises a crime. Child
pornography may be punished with a minimum imprisonment of 6 months to 1 year.32In this
case, a child involves any person below eighteen years of age.
Law prohibited pornography even when it entailed the restriction on a person’s right to
freedom of expression.
In one case, a person who was convicted of the offence of possessing child pornography
challenged the law that declared child pornography to be a crime. He argued that by reading
and possessing child pornography, he was exercising his constitutional right to freedom of
expression. He believed that the child pornography law denied him his constitutional right and
therefore was unconstitutional. The court did not agree with him. It held that that law is a good
35
law because it protects children. Furthermore, the law is a reasonable restriction on the right of
freedom of expression. The court also said that Canada supports the CRC and is responsible to
protect children against pornography.33
Can a person be punished for performing actions in the home of a child when such actions
corrupt the child, such as a sexual or immoral acts or habitual drinking?
Since children have impressionable minds, adults must refrain from doing anything that may set
a poor example for them. A person who commits an immoral activity in the home of a child is
guilty of a crime to corrupt him or her. Such immoral acts include adultery, habitual
drunkenness, or any other vice. The corruption of a child is a serious crime and may be
punished with a maximum of two years in jail.34
Is it a crime to provide a child with material that has sexual content?
The act of providing a child with sexually explicit material is punishable with a minimum
imprisonment of 30 days or 90 days in jail.35
Is luring a child on the Internet an offence?
The action of luring a child on Internet for a sex-related purpose is a crime that is punishable
with a minimum of 90 days or 30 days in jail.
Does an Internet-based agreement between two or more persons to commit sex offences
against a child constitute a crime?
If two or more persons agree to commit a sex offence against a child via telecommunications,
they commit a crime for which the minimum punishment may be 90 days to one year in jail.36
Is indecent exposure a crime?
If a person exposes his or her genital organs to a child under the age of sixteen, that person
may be punished with a jail term for a minimum of 30 days or 90 days.37
Is trafficking in child an offence in Canada?
The trafficking of children is a very serious offence in Canada. In simple language, trafficking
includes the unlawful taking, transferring, transporting, or controlling a child for exploiting him
or her for sex or labour. The trafficking of a child may be punished with a maximum jail term of
life.38
36
Eight: Children’s Right to Participation in Matters Concerning the Child
The CRC declares the right of the child to express his or her own view and to have the view duly
considered in a matter concerning him or her in a judicial or administrative proceeding.
However, the child must be capable of forming his or her own view and has a right to be heard
directly or through a representative.39
Do Alberta courts consider children’s opinion and wishes when deciding a custody, access, or
guardianship matter?
In Alberta, when a child is mature enough to form an opinion, the court must hear that
opinion.
If a child is mature enough to form an opinion, the court must consider the child’s wishes while
deciding a custody, access, or guardianship matter concerning the child under the Child, Youth
and Family Enhancement Act, Family Law Act and Divorce Act. The court must give the child’s
opinion due consideration but such opinion is not binding on the court. Also, the child’s opinion
is not the sole ground on which the court will base its decision.
37
When a court ordered that the case be reheard and decided after taking child’s view and best
interest into consideration
The Child Advocate on behalf of a N.S., a sixteen year-old child suffering from a
mental disorder and substance abuse, challenged a court order. This order
granted the Director of the Family and Children Services permanent custody of
N.S. The challenge was made on the ground that the court failed to consider the
views of N.S. The Yukon Supreme Court allowed the appeal and ordered that the
matter should be reheard and decided after taking the child’s view and best
interest into consideration.40
Will a court respect the view of a child who does not want to accept medical treatment on
the grounds of his or her religion?
In a case where a child’s life and safety are endangered, the court and other authorities will
take any action or decision necessary to protect and save the child. In such situations, they can
ignore the child’s wishes.
The court decided that the convention right of a child does not oblige the court to follow a
child’s wish if this wish may put the child’s life or health in danger
In this case, a seriously sick child who needed a blood transfusion to save her life
refused to have the transfusion because of her religious belief. The child welfare
authorities under the provision of Manitoba child welfare law apprehended the
38
child. They received permission from the court to proceed with the blood
transfusion treatment against her wishes and permission. The child later
challenged the Manitoba law on the ground, among other grounds that it
violated her convention right to have her views duly considered. The Supreme
Court held the law as valid because the convention right of the child does not
oblige a court or other authority to follow a child’s wish in situations that may
endanger the child’s life or health.41
Can a child participate and represent his or her views by a lawyer in legal proceedings?
Under the Child, Youth and Family Enhancement Act, a child has a right for representation by
an independent counsel in a legal matter that concerns his or her rights.
In family law matters that involve custody or access issues, in an appropriate case a court may
allow the child to be represented by an independent lawyer. In the following case, the court
ruled that a child has a right to a litigation representative who can instruct the lawyer on the
child’s behalf.
In this case, the court held that a twelve year-old boy who is a party to the legal
proceeding has a right to receive a notice of the proceeding and to represent his
case in the court either directly or through a lawyer. Also, if child is not able to
give instruction to the lawyer, he has a right to have a litigation representative
who can instruct the lawyer on the child’s behalf. The child has a right to express
his view and to have it duly considered by the court.42
39
Nine: Other Important Rights of Children
The parents or guardians must also provide the children within their means, resources and
opportunity for physical, mental, psychological, educational, cultural and social development.
This includes a child’s right to education and to participate in extra-curricular and cultural
activities and a right to play, rest and leisure. This also includes a child’s right to have his or her
identity as an individual, and right to know and maintain relationship with the parents. In this
chapter, we will talk about some of these special rights.
A child has right to rest and leisure
What are a child’s right regarding the child’s own identity and relationship with parents?
The CRC acknowledges a child as an individual capable of having his or her own identity. The
child has a right to have a name and a nationality. Since a child’s parents are an integral part of
his or her identity, the children have the following rights under the CRC:




Right to know the parents and be cared for by them (Articles 7 & 8)
Right to acquire a nationality (Articles 7 & 8)
Right to maintain association with and not to be separated from parents(Article 9)
Right to know the whereabouts of the parents. For example, if the parent has been
separated from the child by a government action, the government shall inform the child
40


or other family member of the whereabouts of the parent except when such disclosure
is not in the interest of the child.
Right to be united with the parents if separated from them (Article 10)
Right to be taken care of by both parents.
Does a child in Alberta have a right to know the identity of his or her birth parent?
In Alberta, a child has the convention right to know the identity of his or her biological parents.
The child may ask a court to declare the identity of his or her parents or to order a DNA test.
However, this child’s right cannot interfere with the privacy right of a person who is not a
parent of the child. The following case provides an example of this situation:
In one case for paternity declaration, the Court of Appeal in Quebec ordered the
defendant to submit to a DNA test. The court relied on Article 7, which
recognizes “as far as possible, the child’s right to know and be cared for his or
her parents.”43
Does a child have a right to maintain a relationship and direct contact with both parents
when they are not living together?
A child has the right to maintain personal relations and direct contact with both parents when
the parents are separated.44In Alberta, family law contains the basic rule that both parents
should be awarded joint guardianship of young children in the instance of separation or divorce
unless special circumstances give the sole guardianship to one parent.
Both parents have the common responsibility for a child’s upbringing (Article 18).
In one case involving guardianship, the Court of Appeal of Alberta held that
family law in Alberta ensures that the child has a right to maintain a relationship
41
and direct contact with both parents. This court also held that both parents are
equally responsible for the upbringing and development of the child. These
rights of a child can only be taken away when it is in the best interest of the child
under Articles 9 & 18.45
Does the convention give a child the right to access private information of someone who is
not the legal parent of the child?
No, the convention does not provide any such right to the child. Consider the following case as
an example.
In a case, the child who was adopted at the age of 5 months, on reaching
adulthood, tried to find the name and identity of the person who she believed to
be her father from a registrar who had this information. The registrar refused to
disclose this information to her under the provisions of Child and Family Services
Act. She challenged the provisions of the act in the Ontario Superior Court of
Justice on various grounds, including the ground that it violated her convention
right to know the identity of her parents. The Court held that the convention did
not give a child an unfettered right to access private information of a third party
who is not the legal parent of the child while searching for the identity of her
parent. Thus, the convention cannot override the express provision of a
Statute.46
The court allowed a DNA test to confirm paternity of a father who was paying child support.
In one case, a person who was considered the natural father of a child was
making child support payments for the child under a court order. Subsequently
he insisted on a DNA test to confirm that he was the natural father of the child.
The Nova Scotia Family court held that his doubts as to paternity were genuine
and a DNA test was appropriate. Also, the court ruled that it was in the best
interest of child to know the identity of her father.47
42
Conclusion
Rights without authority to enforce them are meaningless. Convention and Protocols are
international agreements and can be enforced in Canada only when they are adopted in the
Canadian law made by the Canadian parliament, provincial legislatures and courts. Throughout
this booklet, we have discussed how most of the concepts and fundamental principles in the
Convention on the Rights of the child have been incorporated into Canadian law and are
enforceable in Canada. Additionally, Canada also runs many program and services to protect,
enforce and promote children’s human right.
What is the Office of Child and Youth Advocate Alberta?
In 2011, Alberta created a law entitled Children and Youth Advocate Act.48 This law makes
human rights of children more meaningful and effective, especially for those children who are
most vulnerable. The specific focus of this law is to promote children’s right to participate in
decision-making in matters affecting them. Under the authority of this Act, an Office of Child
and Youth Advocate, Alberta has been established.
Who can receive help from the Office of Child and Youth Advocate Alberta?
The office is an independent organization that supports the vulnerable children. It advocates for
youths who are in difficult situations due to any of the following reasons:



They are receiving intervention services under the Child, Youth And Family Enhancement
Act because either they don’t have any parents or guardians to take care for them or
their parents or guardians have failed or neglected to care for them; or
They are victims of sexual exploitation and receiving services under the Protection of
Sexually Exploited Children Act; or
They are involved with the criminal justice system
How does the Office help children and youth?
The Office tries to help children and youth by



Educating them about their rights and interest;
Hearing their opinion regarding a matter concerning them and presenting these
opinion before the decision- making authorities and advocating for children and
youth;
Researching and making recommendation to the legislature regarding children’s
rights;
43


Investigating the cases of death or serious injury to a child in the care and custody of
the government; and
Directly reporting to the legislative assembly, voicing the concerns and views of the
children and making individual, systemic and policy recommendations.
How can I contact this Office?
If you are a young person who needs support but does not know where to go or what to do, the
Office will be willing to help you. In Edmonton, it is located at #600, 9925 109- Street NW. In
Calgary, it is located at # 403, 297- 8435. You can call them Toll- Free: (800) 661-3446 or email
[email protected]. You can also contact their cell number (780) 422-6056 for
Northern Alberta and (403) 297-8435 for Southern Alberta. Other provinces and territories also
provide these services.
Who monitors children’s rights at international level?
United Nations Committee on the Rights of Child monitors the implementation of children’s
rights by member countries to the Convention in their territories. All member countries are
required to submit one initial and subsequent periodic report on implementation of children’s
rights in their country to this Committee. The Committee reviews the reports, raises concerns if
any, and makes recommendation for better implementation of the convention rights of the
children. The Committee also encourages non-governmental organizations to report
implementation of children’s right in their country. This encourages independent reporting on
these matters.
How is the United Nations Committee on the Rights of Child constituted?
The Committee consists of eighteen members who are experts in human rights and selected
from member countries. They work independently and do not represent their country. The
Committee submits its yearly report to the Third Committee of the United Nations General
Assembly. The Third Committee may adopt a resolution on the rights of the child that is
supported by the reports. The Committee also monitors optional protocols on the rights of the
child, such as the protocol on involvement of children in the armed conflicts, the protocol on
the sale of children, the protocol on child prostitution and child pornography. On December 19,
2011, it signed a third protocol on communication procedure allowing individual children to
make complaint directly to the committee about violation of their rights. It came into effect in
April 2014.
44
Our commitment:
As you have seen, there exists an extensive network of measures for implementing human
rights of children and youth at international and national levels. We need to be aware of these.
We also need to contribute our efforts to advance them because there is no better way of
ensuring a good future for mankind than ensuring safety and wellbeing of our children. This
booklet is an humble effort on part of the United Cultures of Canada Association to promote
the understanding of the rights of children and youth leading to successful implementation of
these rights at all levels and in all aspects of life.
45
1
Geneva Declaration of Human Rights, Adopted on 26 September, 1926, by League of Nations –www.undocument.net/gdrc1924htm
2
United Nations General Assembly in Resolution 1386 (XIV)
3
R. v. Clay [2003] 3 S.C.R. 735
4
R. v. Morgentalor, [1988] 1 S.C.R.30
5
Constitution Act, 1982
6
R.S.C. , 1985, c. H-6
7
R.S.A., 2000, c. A-25.5
8
R.S.C. 1985, c. C-46
9
Richard v. Brandon Youth Hockey Assn. Inc. (2006)(Adjudication); Manitoba Human Rights Commission Annual
Report 2006
10
Blainey v. Ontario Hockey Association Cited: (1986), 7 C.H.R.R. D/3529 (Ont. C.A.)
11
Arzem v. Ontario (Ministry of Community and Social Services (No. 6)Cited:(2006),56 C.H.R.R. D/426,2006 HRTO 17
12
R.S.C. 1985, c3
13
S.A. 2003, c F-4.5
14
R.S.A. 2002, c. C-12
15
The Supreme Court of Canada briefly defined the best interest of the child in Young v. Young, (1993) 4 S.C.R. 3.
16
Canadian Foundation for Child, Youth and Law v. Canada (Attorney General)[2004] 1 S.C.R. 76
17
Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII, 699 (SCC); [1999] 2 S.C.R. 817
18
Martinez v. Canada (Minister of Citizenship and Immigration) , [2003] F.C.J. No. 1695
19
Manalang v. Canada (Minister of Public Safety and Emergency Preparedness) , [2007] F.C.J. No. 1763
20
S.C. 2001 c-27
21
De Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655
22
C.C.s. 215
23
Child, Youth And Family Enhancement Services, RSA 2000 c C -12 s.1(2)
24
C.C. ss. 282 & 283
25
C.C. ss. 280 & 281
26
T. v. Alberta (Director of Child Welfare) 82 Alta. L. R. (3d) 39
27
In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
28
R. v. R.D. (2005), 39 Alta. L.R. (4th) 187
29
S.C. 2002, c.1
30
Minister of Justice Appellant. v. Glen Sebastian Burns and Atif Ahmad Rafay; In United States v. Burns, [2001] 1
S.C.R. 283, 2001 SCC 7.
31
S.A. 2005, c. P-27.5
32
C.C.s. 163.1(4)
33
R. v. Sharpe, (para. 171)
34
C.C.s. 17
35
C.C.s. 171
36
C.C. s. 171.2
37
C.C. s. 173.2
38
C. C. s. 279
39
Convention of Rights of the Child Articles 12 & 3 (1)
40
(Litigation Guardian of) v. Yukon (Director of Family and Children's Services), [2004] Y.J. No. 40
41
A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30
42
Nova Scotia (Minister of Community Services) v. S.C.P. [2006] N.S.J. No. 567
43
A.P. v. L.D., 18 the Court of Appeal of Québec
44
CRC Articles 9 & 18
45
In V.L. v. D.L., [2001] A.J. No. 1259 ABCA 241
46
Ontario v. Marchand (2006), 81 O.R. (3d) 172 S.C.J
47
H.R.C. v. S.M.H., [2003] N.S.J. No. 393
48
Statute of Alberta 2011, C—11.5” in 2011
46
United Cultures of Canada Association
303, 9488 – 51 Avenue, Edmonton AB T6E 5A6
Phone: 780 756 3979 Email: [email protected]
Website: www.ucca.ca