Pushing under-18s onto the street: a Canadian charter analysis of Ontario's welfare-to-work scheme

Abstract

Ontario's social assistance program involves an unconstitutional denial of social assistance to most applicants under 18. The exception involves those who can prove special circumstances involving withdrawal from parental control due to no fault of their own such as due to child abuse. Ontario also unconstitutionally denies protective services to 16 and 17 year olds with some exceptions. In addition, parental support obligations to minors aged 16–17 are ended should the youth withdraw from parental control under any circumstance. It is argued that the state's fiduciary duty to the minor compels state intervention in the protection of the minor's Charter security of the person and equality rights.

Notes

Ontario Works Act, 1997 S.O. 1997, Chapter 25.

Ontario Works: Applicants Under Age 18. Directive 24.0 at 10 (1) (a) (2001). Accessed 6 April 2003 at http//:www.cfcs.gov.on.ca.

Ontario Works: Applicants Under Age 18. Directive 24.0 at 10 (1) (a) (2001). Accessed 6 April 2003 at http//:www.cfcs.gov.on.ca.

See article 1 of the United Nations Convention on the Rights of the Child. Adopted by the U.N. General Assembly, 20 November 1989 and entering into force 2 September 1990. Accessed 31 July 2002 at www.unesco.org/education/eduprog/ecf/html/rights.htm.

Compare the elements of fiduciary duty as set out by the Supreme Court of Canada in Frame v. Smith 1987, 42 D.L.R. (4th) 81 (S.C.C.).

Clea Parfitt and Melinda Munro, ‘Whose Interests Are We Talking About?: A.(C.) v. Critchley and Developments in the Law of Fiduciary Duty’ U.B.C.L. Rev., Vol.33 (1999), pp.199–214.

Clea Parfitt and Melinda Munro, ‘Whose Interests Are We Talking About?: A.(C.) v. Critchley and Developments in the Law of Fiduciary Duty’ U.B.C.L. Rev., Vol.33 (1999), pp.199–214, para.18.

Clea Parfitt and Melinda Munro, ‘Whose Interests Are We Talking About?: A.(C.) v. Critchley and Developments in the Law of Fiduciary Duty’ U.B.C.L. Rev., Vol.33 (1999), pp.199–214, Dr Waters cited at para. 19.

Ontario Child and Family Services Act [OCFSA] R.S.O. 1990, c. C.11, s.47.

Ontario Child and Family Services Act [OCFSA] R.S.O. 1990, c. C.11, s.47.

For information on the demographics and other characteristics of street children as well as welfare issues in regards this group in Canada see, for example: Human Resources Development Canada (HRDC), Pilot Study: The child welfare system and homelessness among Canadian youth (2002). Accessed 23 April 2003 at www.21.hrdc-drhc.gc.ca; M. Geigen-Miller and M. Quick, Failure to protect: The (broken) promise of protection for children aged 16 and 17: Status report on gaps in Canadian child protection services for children aged 16 and 17. (Report of the National Youth in Care Network presented to the United Nations Special Session on Children, 8–10 May 2002). Accessed 23 April 2003 at www.youthincare.ca; Sonja C. Grover, ‘Why aren't these youngsters in school? Meeting Canada's Charter obligations to disadvantaged adolescents’, The International Journal of Children's Rights, Vol.10 (2002), pp.1–37 and ‘On Meeting Canada's Charter Obligations to Street Youth’, The International Journal of Children's Rights, Vol.10 (2002), pp.313–44; K. Covell and R.B. Howe, The challenge of children's rights in Canada (Waterloo: Wilfred Laurier Press 2001); R. Tonkin, Street Youth not Just an Urban Issue in BC (McCreary Center Society 2001). Accessed 1 May 2003 at www/mcs.bc.ca/march 26.htm; B. Leslie and F. Hare, Improving the outcomes for youth in transition from care (Toronto: The Working Group of the Children's Aid Society of Toronto/Covenant House/Ryerson University Research Project 1995–99, 2000).

OCFSA R.S.O. 1990, Chapter C.11.

OCFSA R.S.O. 1990, Chapter C.11, s.43(2).

OCFSA R.S.O. 1990, Chapter C.11, s.43(2).

Ontario Family Law Act R.S.O. 1990, c. F.3, s.31 (1); 1997, c. 20, s.2.

Ontario Family Law Act R.S.O. 1990, c. F.3, s.31 (1); 1997, c. 20, s.31 (2).

Government of Canada. Your guide to the Canadian Charter of Rights and Freedoms. Special edition (the Charter came into effect 17 April 1982). (Government Services Canada Publishers 2002).

Gosselin v. Quebec (Attorney General) [2002] S.C.J. No.85 at para. 55.

Young v. Young [1993] 4 S.C.R. 3, case summary per L'Heureux Dube.

Per Cory, Iacobucci and Major, JJ: B (R.) v. Children's Aid of Metropolitan Toronto [1995] 1 S.C.R. 315.

See the Ontario Works Act (1997), the OCFSA (1990) and the Ontario Family Law Act (1990).

B(H) Next Friend v. Alberta (Director of Child Welfare) S.C.C.A. No. 196, ABCA 109. Leave to appeal to the S.C.C. dismissed 2002 S.C.C.A. No. 196.

Canadian Charter of Rights and Freedoms, 1982, s.7.

Gosselin v.Quebec (Attorney General).

Gosselin v.Quebec (Attorney General).

See Vriend v. Alberta 1 S.C.R. 494.

See Eldridge v. British Columbia (Attorney General) 3 S.C.R. 624.

L'Heureux-Dube and McLachlin (dissenting): Rodriguez v. British Columbia (Attorney General) 3 S.C.R. 519.

L'Heureux-Dube and McLachlin (dissenting): Rodriguez v. British Columbia (Attorney General) 3 S.C.R. 519.

Leslie and Hare (note 11); K. Covell. Canada's Non-Governmental Associations Report (Submitted to the UN General Assembly Special Session on Children, 19–21 September 2001). Accessed 1 May 2003 at www.rightsofchildren.ca.

Covell (note 30).

Geigen-Miller and Quick (note 11).

N. Trocme, Canadian incidence study of reported child abuse and neglect: Final report (N. Trocme principal investigator, 2001). Accessed at www.hc-c.gc.ca.

Leslie and Hare (note 11).

HRDC, Pilot Study (note 11).

HRDC, Pilot Study (note 11).

Covell (note 30).

HRDC, Pilot Study (note 11).

Ontario Government News Release, Welfare reforms give people on welfare a hand-up (2001). Accessed 6 April 2003 at www.premier.gov.on.ca.

See B(R) v. Children's Aid of Metropolitan Toronto and SCC refusal to intervene to block the State's exercise of patris patraie jurisdiction in the case of a 16 year old in B(H) Next Friend v. Alberta (Director of Child Welfare).

See R. v. Oakes 1 S.C.R. 103.