|Canadian Child Welfare:
Trends and Issues in Placement and Reporting
The Canadian child welfare system is not one system but many. Each of the ten provinces and the two territories (Yukon and Northwest Territories) has its own legislation. Further, Aboriginal peoples are in process of developing agreements with government concerning the way child welfare is funded and delivered. Because of the geography and settlement history of this country, various regions of Canada have emphasized different traditions and concepts in formulating legislation, agreements and service delivery models. Also, differences between the two founding cultures of Canada, French and English, have resulted in the development of somewhat different approaches to child welfare.
Nevertheless, it is quite possible to discuss Canadian child welfare as a single entity; that is, the system in this country does express characteristics held more or less in common throughout. It is a system premised on the belief that parents bear the primary responsibility for the welfare of their children, and a concomitant right to raise their children in accordance with their own wishes. It is a residual system, one which deals with the most serious problems of care and which generally intervenes with the most vulnerable of families. It is a system which provides more investigation than preventive or treatment service. And it is an underfunded system, one which requires service providers to respond to the greatest crises, while overlooking or postponing attention to other serious, high risk situations. It is also a system beginning to question itself.
In this chapter the Canadian child welfare system will be examined. Included are a brief overview of definitions of abuse; legislation and reporting arrangements; analysis of historical and current trends in the reporting; investigation and handling of abuse reports; and an exploration of issues in contemporary Canadian child welfare.
Defining Child Abuse
Historical and Legislative Context:
Harris and Melichercik (1986: 160) describe the origins of child welfare in Canada as a gradually evolving response to social and economic conditions of the 19th century. Two traditions were drawn upon, they maintain, as the basis for child welfare provisions. One was the idea held by some ancient societies that children are the property of their parents. The other tradition is parens patriae, or the State as parent of the nation, the British doctrine allowing intervention into the private family for the protection of children. Legislation developed in English Canada has tended to emphasize the second tradition, involving government intervention for the protection of children, while Quebec has focused more strongly on the parental rights tradition.
Through the 19th century, many of the statutes passed in Upper Canada (now Ontario) presaged the passage of explicit child welfare legislation. These were focused on the care of children judged to be delinquent, destitute or abandoned. In 1891 the first Children's Aid Society was established in Toronto, and in 1893, Ontario passed An Act for the Prevention of Cruelty to and Better Protection of Children. Other Canadian provinces soon followed suit, and within a few years other provinces (except Quebec) developed similar legislation, which remains the basic framework for child welfare legislation today. Up to the present time, child welfare remains primarily within the jurisdiction of the 10 Canadian provinces and two territories (Yukon and Northwest Territories), with the federal government involved in a funding role and in criminal prosecutions via the Canadian Criminal Code. (See Appendix 1 for a list of the child welfare legislation of each of these jurisdictions.)
In Quebec, the Catholic Church exerted considerable influence on child welfare and other social welfare activity up to the early 1960s, with State involvement other than in private matters being discouraged. The role of the provincial government was primarily one of funding, with private agencies carrying out the administrative role. French Civil Law, which was the governing tradition in Quebec, placed the Church in a paramount position with respect to social welfare, including a strong reliance on the Church to step in when parents failed. Quebec did not initiate study of child protection as a separate service until 1933. After this, various child protection societies, bureaux and legislation were developed along side Church involvement in child protection, but it was not until 1979 that the Youth Protection Act came into force. This legislation, essentially similar to other Canadian Acts, recognized children as "legal subjects" and brought under one Act authority for protection of children in Quebec.
Legislation in most provinces originally focused itself on child neglect, although cruelty to children was also stressed. In Ontario's legislation, punishment in the form of a fine or imprisonment for cruelty, including both abuse and neglect, could be imposed. The family was viewed as the proper source of nurture for children of a dependent age, and foster care was seen as the best form of alternate care. Changes in legislation evolved gradually over the first half of the century. However, Ontario and other provinces retained the language of the protection mandate much as it was articulated in the original legislation until mid century, when changes in legislation began to focus attention on the "best interests of the child." In Canada, as elsewhere, changes in legislation were introduced to respond to the "discovery" of the battered child in the 1960's (Kempe et al, 1962), notably the addition of reporting laws in all jurisdictions except the Yukon.
Related legislation has affected child welfare activity significantly. In 1984, the proclamation of the federal Young Offenders Act relieved child welfare authorities of direct responsibility for delinquent youth. In 1982, the Canadian Charter of Rights and Freedoms was introduced. It is a constitutional document which profoundly affects many aspects of Canadian society, including child welfare. According to Bala et. al. (1991: 5) the Charter has already been used to restrict the authority of child protection workers to apprehend children without warrants. It has also been used to ensure parental rights to a judicial hearing within a reasonable time when children have been apprehended. In general, the Charter has increased emphasis on the enforcement of rights through due process. Child protection work procedures as well as legislation and philosophy have been significantly altered as a result, a change sometimes referred to as the "legalization" of child welfare. The introduction of Bill C-15, which amends the sexual assault provisions in Criminal Code of Canada and certain aspects of the Canada Evidence Act, have also affected child welfare practice. This legislation facilitates the laying of charges and the giving of evidence by children in cases of sexual abuse. Changes introduced by this Bill mean that child protection workers are more often involved in criminal court proceedings and work closely with police on a regular basis.
Child welfare work before the 1960s involved considerable attention to juvenile delinquency and behaviour management, work with unmarried mothers and adoption (Wharf, 1993: 123) and "fairly obvious" cases of abuse and neglect (Bala, et. al, 1991: 3). Publicity accompanying the identification of the battered child syndrome during and after the 1960s moved the issue of abuse to the centre of child welfare attention. Child neglect, which had been the original impetus behind child protection legislation, has moved to the far background, although neglect cases have continued to the present to constitute the largest single category of cases handled by child protection agencies (Federal-Provincial Working Group, 1994; Trocme and Tam, 1994). At present child abuse rather than neglect is the framing concept for all legislation in Canada, and neglect now appears as a sub-category of abuse. Other subcategories are physical abuse; sexual abuse and exploitation, recently gaining in attention; and emotional abuse and neglect. In other words, "abuse" now has a generic meaning, as the main framing concept in child protection, and specific meanings, usually discussed as physical, sexual or emotional abuse, and neglect. The primary, secondary and tertiary levels of attention to issues in child welfare over time could be depicted as follows:
Table 1: Protection Issues: Historical Trends
1890s 1960s 1970s 1980s 1990s
Neglect/cruelty "Battered child" Physical abuse Sexual abuse
Extra familial sexual abuse
Neglect Emotional abuse
Alongside the identification of various forms of abuse, a debate has developed about definitions of abuse in relation to intrusion by child welfare authorities into the private family. This debate involves questions of whether the rather broad and vague definitions of abuse found in legislation in the 1960s and 70s allowed social workers too broad a mandate to interfere in family matters. At about the same time, Aboriginal groups began to speak out publicly about the damaging effects of discretionary use of intrusive power in the hands of child welfare agencies and also about the ethnocentric views of white middle class social workers in defining abuse and neglect. In the early 1980s these debates became part of a public consultation conducted by the Ontario provincial government as part of the process of revamping its child protection laws. In general, social workers argued for continuing broad definitions of abuse on grounds that families would otherwise be denied needed services. Social workers argued that they were capable of and trained to judge risk. Members of the legal profession, along with some client groups, argued that a criterion of mere risk, as construed by a social worker, left the door open for abuse of families by the authorities. They argued that definitions of abuse and neglect should be narrow, specific and clear to prevent unwarranted intrusion into private family life. In the Ontario legislation that followed, the key criteria for defining abuse became "harm" and "substantial risk of harm", criteria favouring the narrow definitional approach. Also encoded in the new legislation was the "least intrusive" principle, directing authorities to take the least intrusive action consonant with protecting children from harm.
Another definitional debate of the 1980s concerned physical abuse. It was noted that the Criminal Code of Canada, as well as tradition, allowed reasonable discipline to be administered by parents and some others. For child welfare workers, this provision of the Code brought into question the difference between discipline and abuse. By this time, many middle class workers had come to feel that the administration of physical punishment was unacceptable, especially if the discipline resulted in bruising or other marks. Certainly many parents disagreed, and felt supported by the Code. Particularly in Canada's immigration reception centres, the issue of differentiating between discipline and abuse arose in relation to culturally different parenting practices which allowed for fairly substantial and frequent force in disciplining children.
The twelve jurisdictions within Canada have each developed their own child protection legislation and definitions (Appendix A). There are of course many similarities among them. These include the idea that families are responsible for the care, supervision and protection of their children; that children have rights which must be protected; that governments are responsible to protect children from harm; that the 'best interest of the child' is a guiding decision principle; and that the least intrusive form of intervention must be provided (Federal-Provincial Working Group, 1994: 7). All provinces also rely on some version of defining a child "in need of protection" or defining conditions signalling endangerment of "safety and development of the child". In addition to legislation, each jurisdiction has policy manuals, guides and protocols providing working definitions of abuse and specifying criteria and procedures to be used in making determinations of abuse. In some cases manuals help to clarify definitions which remain vague and broad in the actual legislation. They also tend to express the common practice understandings of social workers in the field. Saskatchewan's manual, for instance, suggests that a criterion for determining a child in need of protection is care which departs from that "reasonably expected of any parent". New Brunswick's guidelines suggest that the definition of a child in need of protection includes the caretaker's failure to anticipate injury or danger to a child. Although seldom mentioned in legislation, the problem of determining whether an event could have been anticipated is certainly one that preoccupies many protection workers.
Over the past two decades, most Canadian jurisdictions have in some way engaged in the debate concerning "intervention" into private family life by child welfare authorities The two primary positions taken in legislation are generally thought of as the "interventionist" model, which provides relatively broad and vague powers to social workers to intervene without warrant and to offer service; and the more legalized, non-interventionist approach which narrows the grounds and procedures for intervention. According to Bala, et al. (1991), only two provinces, Ontario and Alberta, have taken the non-interventionist approach, which is favoured in their book. Barnhorst's (1986) analysis suggests instead that Canadian jurisdictions can be viewed on a continuum between these two approaches. Using this method, Barnhorst found all but four jurisdictions, British Columbia, Newfoundland, Saskatchewan and the Northwest Territories, had adopted the non-interventionist approach to some degree. In other words, both philosophy and practice have tended to move in the direction of non-intervention, a model in keeping with rights-based beliefs and due process. Effects that flow from it include the framing of narrower definitions of abuse, accompanied by more attention to investigative processes; the 'least intrusive' approach to service provision; increased attention to legal procedures in the processing of cases; and fewer children taken into care.
Among other jurisdictional differences in definitions of abuse is the definition of children by age. Table 2 shows the maximum age of coverage in child protection legislation in Canada's 12 jurisdictions.
Table 2: Age of Child as Defined in Canadian Child Protection Legislation
Newfoundland under 16
Prince Edward Island under 18
Nova Scotia under 16
New Brunswick under 19
Quebec under 18
Ontario under 16
Manitoba under 18
Saskatchewan under 16
Alberta under 18
British Columbia under 19
Yukon under 18
Northwest Territories under 18
Source: Jurisdictional Protection Legislation (Appendix A)
The ages shown, of course, refer only the definition of a child. For various purposes such as extension of wardship, other ages are specified in various jurisdictions (Federal Provincial Working Group, 1994: 14-15). It should also be mentioned that one province, New Brunswick, includes an unborn child in the definition of a child for protection purposes.
In general, definitions of abuse continue to rely heavily on understandings that the parent or guardian bear chief or exclusive responsibility for the protection and care of the child. All provincial protection legislation designates caretakers of the child, including parents, guardians, and "the person in whose charge a child is", as responsible parties. Clauses assume or state a wide variety of responsibilities this person must assume, including provision of basic needs, protection of children from all forms of abuse by others, the taking of "reasonable precautions" to safeguard children, and the provision of remedies for various problems. Only Nova Scotia extends some responsibility to strangers in a clause related to the Child Abuse Registry. This provision is intended to help safeguard children in the community as well as at home. The following sections discuss the four main types of abuse now identified in legislation and practice.
Specific reference to physical abuse occupies a surprisingly small space in most provincial legislation. Only Alberta provides a comprehensive list of "observable injuries" counting as abuse, while other provinces refer to injury or risk of injury. Yukon legislation defines a physically abused child as one whose parent or caregiver "beats, cuts, burns or otherwise abuses" him or her. Quebec uses the much broader phrases "violence" and "physical ill-treatment", while Saskatchewan omits all wording concerning physical abuse in order to avoid restrictions on what may be counted as abuse. Although legislation in a number of jurisdictions remains vague or even silent in its specification of physical abuse, policy manuals and other guidelines used by workers spell out the meaning of abuse in more detail, often including lists of injuries from cuts and bruises to internal injuries that may signify abuse.
In practice, the generally accepted definition of physical abuse has been "non accidental physical injury", a term used to include not only intentional acts but recklessness (Falconer and Swift, 1983). In legislation the concept of nonaccidental injury still defines physical abuse in many statutes. As mentioned, Canada's Criminal Code includes a clause providing that teachers, parents and guardians are "justified in using force by way of correction toward a pupil or child ... if the force does not exceed what is reasonable under the circumstances". This legislation allowing use of force against a child continues to complicate the determination of what constitutes abuse, for it sanctions an indeterminate amount of physical discipline and does not address the issue of harm to the child. It also provides a strong defence for those who condone the use of force. The Northwest Territories statute, for instance, differentiates "reasonable disciplinary force" from physical abuse in language that could be seen to allow "reasonable force" even if some injury is sustained by the child. Other jurisdictions make this distinction in their policy guides and manuals.
Definitions of traditional forms of child neglect continue to occupy the most space in most legislation. Variations on themes concerning abandonment, children found in unfit and improper circumstances, failure of caretakers to provide necessities, lack of supervision and guidance, delinquent behaviour by the child, denial of medical care and failure to send a child to school are included in most provincial Acts. A few provinces still include some of the original wording defining neglect, for instance "a child found begging" (Northwest Territories). A recent addition to the definition of neglect in some provincial statutes is failure to provide appropriate treatment or remedies for children's emotional mental or physical developmental needs (eg. Ontario). The policy guidelines of various jurisdictions expand upon these definitions somewhat. Northwest Territories guidelines specify the line between poverty and neglect through use of the phrase "failure to use available resources" in caring for a child. Prince Edward Island's policy specifies neglect as a phenomenon that goes on over a "substantial period of time", an understanding that is quite common in practice across the country (Swift, in press).
In practice, neglect has traditionally been defined in terms of care which is it assumed should be given by the parent. With attention focused on abuse, little has been written about neglect, especially from a Canadian perspective, with the result that understandings developed by Americans such as Polansky (1972, 1981) and Kadushin (1988) dominate thinking about it. Because of both class and cultural differences between social workers and clients, the definition of neglect imposed in practice has been criticized as ethnocentric. In fact, Native people have considered that inappropriate application of neglect has accounted for the apprehension and subsequent loss of many Native children by their families. The problem of distinguishing neglect from poverty has plagued workers for decades. To a small extent Kadushin's idea of community neglect has been employed to help workers identify deprivation children suffer because their parents are unable to provide. Recently, the problems of parental and especially of maternal addiction, housing and domestic violence have become more frequently discussed as features of neglect (Swift, in press; Cohen-Schlanger, et. al, 1993).
Emotional and psychological abuse have been recognized for many years but have been considered difficult to define and prove. As O'Hagan (1993) has written, understanding and defining this arena has been impeded by the use of "imprecise derivatives" used by professionals. These include "emotional neglect", "psychological abuse" and "emotional maltreatment". O'Hagan differentiates between emotional and psychological dimensions of abuse, and argues that legislation should too. However, review of legislation shows that such a distinction has not yet been made explicit in any jurisdiction's statute.
Issues related to emotional abuse are, however, increasingly incorporated in legislation. A common definition appears in Nova Scotia's Act, which defines emotional harm or risk of harm, as "demonstrated by anxiety, depression, withdrawal, or self-destructive behaviour". Alberta's statute includes a list of causes of such harm, including rejection, deprivation of affection, domestic violence, inappropriate criticism and the mental state of the caregiver, including drug abuse. Another format is endangerment of the "emotional and mental health and development of the child" (Prince Edward Island). Only the Northwest Territories requires in its legislation that a psychiatric assessment be conducted to establish that a child's development is threatened. A relatively recent addition in several provinces is the inclusion of domestic violence and even "disharmony" as conditions possibly causing emotional harm. Policy guidelines additionally specify conditions of emotional harm. Saskatuchewan policy, for instance, mentions withholding of affection, threats and terrorism as circumstances indicating abuse. The Northwest Territories includes a definition of emotional neglect in its guidelines: "Lack of attention to the emotional and social needs of a child to the extent that s/he is not able to see himself as a person of worth, dignity and value". Again, this notion is one familiar to social workers and commonly referred to in daily practice.
Sexual abuse, according to Wells (1990) was not considered a serious problem until the late 1970s. Until then, victims were considered to be unreliable witnesses, an idea supported by Freud's theories about sexual abuse as fantasy. In 1984, the Badgley Report was published (Government of Canada, 1984). This well-publicized report found that in Canada one of two females and one of three males were victims of unwanted sexual acts, ranging from witnessing exposure to sexual attack, and that four in five of these acts occurred in childhood. The report also stated that most assailants were known to the child, and were often family members. These dramatic findings put child sexual abuse at the forefront of the child welfare agenda. Findings also challenged previous views of sexual abuse as primarily involving father-daughter incest with intercourse. The Report included in its notion of "unwanted sexual acts" many behaviours which had previously not been conceptualized as abuse. Among the consequences of this report were concerns that ordinary acts of caring for children might come to be construed as abuse.