Textbook Questions Flashcards
(90 cards)
1
Q
Division of property
A
Governed by provincial legislation Includes:- property brought into the marriage- matrimonial home- business assets Can be divided through mediation, arbitration, or court application
2
Q
No authoritative definition of access may range from: - only provision of information about the child - to periodic visitation with the child - to the child residing with the access parent for long periods of time during which the access parent may have nearly full authority over the life of the child and as such may be indistinguishable from a custodial parent
A
Access to children
3
Q
Best interest of the child
A
- safety of the child - opportunity to be a wanted member of a family - child’s mental, emotional, physical, and educational needs and development - child’s sense of continuity and need for permanency with the least possible disruption - child’s cultural, linguistic, racial, and religious heritage views and preferences of the child - effect of any delay in the final disposition
4
Q
Outcomes of child welfare proceedings
A
1) Dismissal or withdrawal- insufficient evidence or new evidence that child is not at risk 2) Supervision Order- court may impose conditions 3) Temporary or Society Wardship- legal guardianship is with child welfare 4) Permanent or Crown Wardship- last resort, child can be adopted
5
Q
Factors to be considered: - emotional ties between the child and the parent claiming custody - the length of time the child has lived in a stable home - plans for the care and upbringing of the child - views and preferences of the child Note that most family law legislation in Canada stipulates that the conduct of a party is only relevant insofar as it affects parenting ability
A
Best interest of the child
6
Q
Process of International Adoption
A
- Intake Information: Acquire information from private adoption firm specializing in international adoption - Application Dossier: Complete dossier information Send to agency for translation, notarizing and authentification Send to child’s country - Homestudy: Contract for private homestudy - Canadian Immigration: Complete sponsorship application - Offer of Child: Receive offer and medical report from child’s country Send written acceptance Receive notice to travel - Receive Child: Travel to country to receive child Finalize adoption papers - Follow up Post-placement supervision visits with adoption social worker Obtain birth certificate and adoption order from Provincial Court
7
Q
1) Public Law:- governs relationship between individuals and society - includes criminal law, constitutional law, and administrative law 2) Private Law or Civil Law:- governs relationships between individuals - includes family law, contract law, and tort law
A
Types of Law
8
Q
Governed by provincial legislation Includes:- property brought into the marriage- matrimonial home- business assets Can be divided through mediation, arbitration, or court application
A
Division of property
9
Q
Aboriginal Family Law: Child Custody and Support
A
- Importance of preserving the child’s cultural identity and link to the Aboriginal community is one factor to be considered in determining the custody and access arrangements that are in the best interests of the child - Federal Child Support Guidelines: when calculating the income of a spouse, the courts may impute income as appropriate under the circumstances, including if the paying spouse is exempt from paying federal and provincial income tax
10
Q
Physical disapline
A
- Criminal Code of Canada Section 43 states:‘Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care if the force does not exceed what is reasonable under the circumstances.’ - Upheld by Supreme Court in 2004- limitations include hitting children with objects or on the head, hitting children under the age of 2 or over the age of 13, and hitting children with disabilities
11
Q
1) International Human Rights Law- e.g. Universal Declaration of Human Rights (1948) 2) Canadian Charter of Rights and Freedoms- Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability 3) Human Rights Statutes
A
Sources of discrimination
12
Q
Custom adoptions of Aboriginal children
A
- Takes place within Aboriginal communities following traditional law - Arrangements may be fluid or temporary - Children often will have continuing contact with birth parents - Adoption agreements may continue to involve the birth parent and may vary in the degree to which parental rights and responsibilities are distributed
13
Q
Age- over the age of 7! Sexual orientation- Civil Marriage Act, 28 June 2005 Relationship- too close by blood or marriage Monogamy Ability to consummate
A
Who can get married
14
Q
Sources of discrimination
A
1) International Human Rights Law- e.g. Universal Declaration of Human Rights (1948) 2) Canadian Charter of Rights and Freedoms- Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability 3) Human Rights Statutes
15
Q
Open vs. Closed Adoptions
A
The level of contact between adopted children and their biological families - Confidential or closed adoptions: - identifying information is not shared- no contact between adopted children and their birth families- now rare in Canada due to changed legislation - Open adoptions: - information is shared and contact is established- frequency and type of contact is highly variable
16
Q
Where discrimination is prohibited
A
Employment Services and facilities Accommodation Contracts
17
Q
Child support
A
Federal child support guidelines - according to the paying parent’s annual income - the number of children in the family - based on studies conducted of the average costs of raising children Must be provided for children under the age of majority as determined by the province of ordinary residence
18
Q
- Defined by provincial statute - Ranges from cohabitation in a relationship of some permanence of parents of a child to cohabitation for not less than three years - Courts and legislatures have begun to extend property rights, support obligations, and statutorily defined benefits to cohabiters - In most jurisdictions the concept of illegitimacy with respect to children has been abolished
A
Common Law Marriage
19
Q
Types of Discrimination
A
1) Direct discrimination:- a rule, practice, preference, or restriction makes a distinction that is based on a group stereotype 2) Adverse-effect discrimination:- a rule or standard which is on its face neutral, and which will apply equally to all people, but which has a discriminatory effect on one group 3) Systemic discrimination:- results from the application of established practices and policies that have a negative impact on a particular group 4) Harassment
20
Q
Collaborative family law
A
- Dispute-resolution process - Only the parties and their lawyers commit themselves to reaching a negotiated outcome (no neutral mediator) - Cardinal rule: parties agree that litigation will not be commenced during the course of the negotiation and if they are unable to resolve the dispute the lawyers must withdraw from representing their clients in any subsequent litigation
21
Q
When is a child at risk (and needs to be reported)?
A
- Child abuse: violence, mistreatment, or neglect a child or adolescent may experience while in the care of someone they trust or on whom they depend - Includes physical abuse, sexual abuse and exploitation, neglect, and emotional abuse
22
Q
1) Delegated agencies: - have authority to provide a full range of family support and guardianship services- common model on reserves 2) Other agencies: - are not legally delegated to investigate abuse and provide protection services- work in a voluntary capacity - primarily in urban centres
A
Types of Aboriginal Agencies
23
Q
- Safeguards for ensuring adoptions are conducted in a manner that reflects the best interest of the child and the child’s fundamental rights - Ensure the rights of adopting parents and protect them from those who seek improper financial gain - Protect birth parents from exploitation and undue pressure - Protect children from abduction, sale, and trafficking
A
Hague Convention on Protection of Children and Co-operation in Respect to Intercountry Adoption
24
Q
- Dispute-resolution process - Only the parties and their lawyers commit themselves to reaching a negotiated outcome (no neutral mediator) - Cardinal rule: parties agree that litigation will not be commenced during the course of the negotiation and if they are unable to resolve the dispute the lawyers must withdraw from representing their clients in any subsequent litigation
A
Collaborative family law
25
Types of mediation
- Closed mediation:- mediator will prepare a report on the settlement agreement or states that no settlement was reached - anything said in the course of a closed mediation is not admissible as evidence in any proceeding without the consent of both parties - Open mediation:- the mediator’s report may include anything that the mediator considers relevant and anything said in the mediation may be admitted as evidence in proceedings regardless of whether the parties consent
26
Consent to marriage
1) Understanding- capacity (including incapacity due to alcohol/drugs) 2) Duress- fear 3) Mistake or Fraud- fraudulent identity- lack of knowledge of law or custom
27
- A distinction whether intentional or not Based on grounds relating to personal characteristics of the individual or group - Has the effect of imposing burdens, obligations, or disadvantages not imposed upon others - Or withholds or limits access to opportunities, benefits, and advantages available to other members of society
Definition of Discrimination
28
Marriage is not just a social contract: - It is a status that is conferred by the state - The law of marriage governs the creation and dissolution of marriages and attaches certain legal rights and obligations to marriage - There are both federal and provincial laws that govern marriage
Define Marriage
29
Race, Colour, and Place of Origin Religion and Creed Sex Age Disability Marital and Family Status Sexual Orientation Social Condition Criminal Record
Prohibited grounds for discrimination
30
1) It is important for social workers to have a solid working knowledge of the legal system and Canadian laws in order to assist their clients, comply with the law, and participate in the Canadian legal system 2) Human rights law, family law, child protection, adoption, consent and capacity, mental illness, youth criminal justice, victims of violence, immigrants and refugees, social workers in the courts, and liability for social workers are all areas of law relevant to social work practice in Canada
Law for Social Work practice in Canada
31
- Throughout Canada, legislation imposes the responsibility on individuals to report suspected child abuse or neglect perpetrated by parent, caregiver, or guardian - This duty supersedes the ethical and legal obligation to maintain confidentiality - Duty cannot be delegated to another person
Reporting child abuse
32
Harassment Defintions
1) Quid pro quo: - a benefit is contingent upon participation in an activity 2) Hostile environment: - an individual is required to endure to continue working in the place of employment, to continue residing in the place of accommodation- jokes, pictures, etc.
33
Definition of Discrimination
- A distinction whether intentional or not Based on grounds relating to personal characteristics of the individual or group - Has the effect of imposing burdens, obligations, or disadvantages not imposed upon others - Or withholds or limits access to opportunities, benefits, and advantages available to other members of society
34
Domestic Contracts
- Marriage contracts: - parties who are already married or about to be married - may address any issue that might arise during the course of the marriage or on the breakdown of the marriage- except custody/access and limitations on a spouse’s rights regarding the matrimonial home - Separation agreements: - following relationship breakdown- may deal with any and all matters that are relevant to the settlement of their affairs
35
Who can adopt in Canada
- Over the age of majority - Resident of the province - Same-sex or heterosexual couples - Single or married
36
Canadian Constitution
Divides legislative and judicial powers 1) Federal Government:- trade, entry of persons into Canada, national defence, and criminal 2) Provincial/Territorial Government:- education, property, civil rights, and hospitals 3) Municipal/local Government:- smoking, pesticide use, parking, and construction
37
Under the Indian Act treaty payments can be redirected to former spouse if the person: 1. has deserted his spouse or common-law partner or family without sufficient cause; 2. has conducted himself in such a manner as to justify the refusal of his spouse or common-law partner or family to live with him; or 3. has been separated by imprisonment from his spouse or common-law partner and family.
Aboriginal Family Law: Spousal Support
38
- Over the age of majority - Resident of the province - Same-sex or heterosexual couples - Single or married
Who can adopt in Canada
39
Federal child support guidelines - according to the paying parent’s annual income - the number of children in the family - based on studies conducted of the average costs of raising children Must be provided for children under the age of majority as determined by the province of ordinary residence
Child support
40
- Marriage contracts: - parties who are already married or about to be married - may address any issue that might arise during the course of the marriage or on the breakdown of the marriage- except custody/access and limitations on a spouse’s rights regarding the matrimonial home - Separation agreements: - following relationship breakdown- may deal with any and all matters that are relevant to the settlement of their affairs
Domestic Contracts
41
Types of Aboriginal Agencies
1) Delegated agencies: - have authority to provide a full range of family support and guardianship services- common model on reserves 2) Other agencies: - are not legally delegated to investigate abuse and provide protection services- work in a voluntary capacity - primarily in urban centres
42
1) Intervening party:- make application and describe the interest, the intended submissions, the usefulness to the court and prejudice suffered if the motion is not granted 2) Amicus curiae:- a friend of the court—not a legal party to the case- an impartial aid to the judge- the court or a judge may appoint an amicus curiae where they believe the person or organization will provide a valuable expertise or perspective
Social advocacy in the courts
43
Who can get married
Age- over the age of 7! Sexual orientation- Civil Marriage Act, 28 June 2005 Relationship- too close by blood or marriage Monogamy Ability to consummate
44
Divides legislative and judicial powers 1) Federal Government:- trade, entry of persons into Canada, national defence, and criminal 2) Provincial/Territorial Government:- education, property, civil rights, and hospitals 3) Municipal/local Government:- smoking, pesticide use, parking, and construction
Canadian Constitution
45
What is adoption
- The creation of a legal relationship between a parent and child by order of the court - The adopted child ceases to be the child of the biological parent - Severs the legal rights between the biological parents and the child - Acquires all inheritance rights from adoptive parent equal to that of biological children
46
- Takes place within Aboriginal communities following traditional law - Arrangements may be fluid or temporary - Children often will have continuing contact with birth parents - Adoption agreements may continue to involve the birth parent and may vary in the degree to which parental rights and responsibilities are distributed
Custom adoptions of Aboriginal children
47
Aboriginal Family Law
- Governed by the federal and provincial laws that are applicable to all other citizens in Canada with two exceptions - First, Aboriginal customary marriages and divorces have been recognized at law - Second, First Nations may have some jurisdiction over marriage and divorce through the self-government agreements negotiated among Canada, the relevant province or territory, and a First Nation community
48
Administrative Bodies
1) Delegated authority- Can make subordinate legislation (regulations) 2) Tribunals and Boards:- Human Rights Commission, Immigration and Refugee Board 3) Professional Regulatory Bodies:- e.g. Regulatory bodies that license social workers
49
- Closed mediation:- mediator will prepare a report on the settlement agreement or states that no settlement was reached - anything said in the course of a closed mediation is not admissible as evidence in any proceeding without the consent of both parties - Open mediation:- the mediator’s report may include anything that the mediator considers relevant and anything said in the mediation may be admitted as evidence in proceedings regardless of whether the parties consent
Types of mediation
50
- The creation of a legal relationship between a parent and child by order of the court - The adopted child ceases to be the child of the biological parent - Severs the legal rights between the biological parents and the child - Acquires all inheritance rights from adoptive parent equal to that of biological children
What is adoption
51
- Governed by the federal and provincial laws that are applicable to all other citizens in Canada with two exceptions - First, Aboriginal customary marriages and divorces have been recognized at law - Second, First Nations may have some jurisdiction over marriage and divorce through the self-government agreements negotiated among Canada, the relevant province or territory, and a First Nation community
Aboriginal Family Law
52
1) Recognize any economic advantages or disadvantages arising from marriage or breakdown 2) Apportion any financial consequences arising from the care of any child of the marriage 3) Relieve any economic hardship of the spouses arising from the breakdown of the marriage 4) Promote the economic self-sufficiency of each spouse within a reasonable period of time
Spousal support principles
53
Define Marriage
Marriage is not just a social contract: - It is a status that is conferred by the state - The law of marriage governs the creation and dissolution of marriages and attaches certain legal rights and obligations to marriage - There are both federal and provincial laws that govern marriage
54
- Child abuse: violence, mistreatment, or neglect a child or adolescent may experience while in the care of someone they trust or on whom they depend - Includes physical abuse, sexual abuse and exploitation, neglect, and emotional abuse
When is a child at risk (and needs to be reported)?
55
- Intake Information: Acquire information from private adoption firm specializing in international adoption - Application Dossier: Complete dossier information Send to agency for translation, notarizing and authentification Send to child’s country - Homestudy: Contract for private homestudy - Canadian Immigration: Complete sponsorship application - Offer of Child: Receive offer and medical report from child’s country Send written acceptance Receive notice to travel - Receive Child: Travel to country to receive child Finalize adoption papers - Follow up Post-placement supervision visits with adoption social worker Obtain birth certificate and adoption order from Provincial Court
Process of International Adoption
56
Hague Convention on Protection of Children and Co-operation in Respect to Intercountry Adoption
- Safeguards for ensuring adoptions are conducted in a manner that reflects the best interest of the child and the child’s fundamental rights - Ensure the rights of adopting parents and protect them from those who seek improper financial gain - Protect birth parents from exploitation and undue pressure - Protect children from abduction, sale, and trafficking
57
Types of adoption
- Statutory adoption with parental consent - Statutory adoption without parental consent- for instance, Crown wards - Third-party adoptions- unrelated people, often through an agency - Adoptions by relatives of the child - Custom adoption
58
- Education and information services—including information on child development, attachment issues, parenting, and available resources - Clinical counselling services—including child, couple, and family counselling - Financial and other material services—including subsidies, medical care, and respite care
Possible post-adoptive services
59
1) Dismissal or withdrawal- insufficient evidence or new evidence that child is not at risk 2) Supervision Order- court may impose conditions 3) Temporary or Society Wardship- legal guardianship is with child welfare 4) Permanent or Crown Wardship- last resort, child can be adopted
Outcomes of child welfare proceedings
60
Common Law Marriage
- Defined by provincial statute - Ranges from cohabitation in a relationship of some permanence of parents of a child to cohabitation for not less than three years - Courts and legislatures have begun to extend property rights, support obligations, and statutorily defined benefits to cohabiters - In most jurisdictions the concept of illegitimacy with respect to children has been abolished
61
Social advocacy in the courts
1) Intervening party:- make application and describe the interest, the intended submissions, the usefulness to the court and prejudice suffered if the motion is not granted 2) Amicus curiae:- a friend of the court—not a legal party to the case- an impartial aid to the judge- the court or a judge may appoint an amicus curiae where they believe the person or organization will provide a valuable expertise or perspective
62
Grounds for divorce
1. Living separate and apart for at least one year immediately before and at the time of the granting of the divorce judgment 2. The other spouse has committed adultery 3. The other spouse has inflicted physical or mental cruelty making continued cohabitation intolerable
63
1) Delegated authority- Can make subordinate legislation (regulations) 2) Tribunals and Boards:- Human Rights Commission, Immigration and Refugee Board 3) Professional Regulatory Bodies:- e.g. Regulatory bodies that license social workers
Administrative Bodies
64
- Importance of preserving the child’s cultural identity and link to the Aboriginal community is one factor to be considered in determining the custody and access arrangements that are in the best interests of the child - Federal Child Support Guidelines: when calculating the income of a spouse, the courts may impute income as appropriate under the circumstances, including if the paying spouse is exempt from paying federal and provincial income tax
Aboriginal Family Law: Child Custody and Support
65
- Before a petition for a divorce can be filed, must certify that reconciliation and mediation have been discussed with their client Exception: cases of domestic abuse - Family mediation is a cooperative dispute-resolution process in which an impartial third party, the mediator, assists the parties to reach mutually acceptable solutions to one or more of the issues between them
Mediation
66
1) Quid pro quo: - a benefit is contingent upon participation in an activity 2) Hostile environment: - an individual is required to endure to continue working in the place of employment, to continue residing in the place of accommodation- jokes, pictures, etc.
Harassment Defintions
67
Types of Law
1) Public Law:- governs relationship between individuals and society - includes criminal law, constitutional law, and administrative law 2) Private Law or Civil Law:- governs relationships between individuals - includes family law, contract law, and tort law
68
Child custody
1) Sole custody- one parent has legal rights and responsibilities 2) Joint custody- shared rights and responsibilities 3) Shared custody- joint custody where child spends at least 40% of time with each parent 4) Split custody- each parent has at least one child living with them
69
Aboriginal Family Law: Spousal Support
Under the Indian Act treaty payments can be redirected to former spouse if the person: 1. has deserted his spouse or common-law partner or family without sufficient cause; 2. has conducted himself in such a manner as to justify the refusal of his spouse or common-law partner or family to live with him; or 3. has been separated by imprisonment from his spouse or common-law partner and family.
70
Reporting child abuse
- Throughout Canada, legislation imposes the responsibility on individuals to report suspected child abuse or neglect perpetrated by parent, caregiver, or guardian - This duty supersedes the ethical and legal obligation to maintain confidentiality - Duty cannot be delegated to another person
71
Access to children
No authoritative definition of access May range from: - only provision of information about the child - to periodic visitation with the child - to the child residing with the access parent for long periods of time during which the access parent may have nearly full authority over the life of the child and as such may be indistinguishable from a custodial parent
72
Arbitration
- An independent arbiter decides the rights and obligations of the parties - Parties appoint arbitrator - Parties may choose a formal (e.g. court case) or informal (e.g. roundtable conference) hearing - Conducted in private; only the parties, their counsel, and witnesses may attend - Faster than proceeding through court - Less expensive than the courts
73
- An independent arbiter decides the rights and obligations of the parties - Parties appoint arbitrator - Parties may choose a formal (e.g. court case) or informal (e.g. roundtable conference) hearing - Conducted in private; only the parties, their counsel, and witnesses may attend - Faster than proceeding through court - Less expensive than the courts
Arbitration
74
Possible post-adoptive services
- Education and information services—including information on child development, attachment issues, parenting, and available resources - Clinical counselling services—including child, couple, and family counselling - Financial and other material services—including subsidies, medical care, and respite care
75
1) Sole custody- one parent has legal rights and responsibilities 2) Joint custody- shared rights and responsibilities 3) Shared custody- joint custody where child spends at least 40% of time with each parent 4) Split custody- each parent has at least one child living with them
Child custody
76
Best interest of the child
Factors to be considered: - emotional ties between the child and the parent claiming custody - the length of time the child has lived in a stable home - plans for the care and upbringing of the child - views and preferences of the child Note that most family law legislation in Canada stipulates that the conduct of a party is only relevant insofar as it affects parenting ability
77
The level of contact between adopted children and their biological families - Confidential or closed adoptions: - identifying information is not shared- no contact between adopted children and their birth families- now rare in Canada due to changed legislation - Open adoptions: - information is shared and contact is established- frequency and type of contact is highly variable
Open vs. Closed Adoptions
78
- Criminal Code of Canada Section 43 states:‘Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care if the force does not exceed what is reasonable under the circumstances.’ - Upheld by Supreme Court in 2004- limitations include hitting children with objects or on the head, hitting children under the age of 2 or over the age of 13, and hitting children with disabilities
Physical disapline
79
1) Understanding- capacity (including incapacity due to alcohol/drugs) 2) Duress- fear 3) Mistake or Fraud- fraudulent identity- lack of knowledge of law or custom
Consent to marriage
80
Employment Services and facilities Accommodation Contracts
Where discrimination is prohibited
81
1. Living separate and apart for at least one year immediately before and at the time of the granting of the divorce judgment 2. The other spouse has committed adultery 3. The other spouse has inflicted physical or mental cruelty making continued cohabitation intolerable
Grounds for divorce
82
- Statutory adoption with parental consent - Statutory adoption without parental consent- for instance, Crown wards - Third-party adoptions- unrelated people, often through an agency - Adoptions by relatives of the child - Custom adoption
Types of adoption
83
Complaint process
Filing a complaint Settlement? Investigation Tribunal Hearing Remedies? (monetary or non monetary) Appeal or Judicial Review
84
Filing a complaint Settlement? Investigation Tribunal Hearing Remedies? (monetary or non monetary) Appeal or Judicial Review
Complaint process
85
- safety of the child - opportunity to be a wanted member of a family - child’s mental, emotional, physical, and educational needs and development - child’s sense of continuity and need for permanency with the least possible disruption - child’s cultural, linguistic, racial, and religious heritage views and preferences of the child - effect of any delay in the final disposition
Best interest of the child
86
Prohibited grounds for discrimination
Race, Colour, and Place of Origin Religion and Creed Sex Age Disability Marital and Family Status Sexual Orientation Social Condition Criminal Record
87
Spousal support principles
1) Recognize any economic advantages or disadvantages arising from marriage or breakdown 2) Apportion any financial consequences arising from the care of any child of the marriage 3) Relieve any economic hardship of the spouses arising from the breakdown of the marriage 4) Promote the economic self-sufficiency of each spouse within a reasonable period of time
88
Mediation
- Before a petition for a divorce can be filed, must certify that reconciliation and mediation have been discussed with their client Exception: cases of domestic abuse - Family mediation is a cooperative dispute-resolution process in which an impartial third party, the mediator, assists the parties to reach mutually acceptable solutions to one or more of the issues between them
89
Law for Social Work practice in Canada
1) It is important for social workers to have a solid working knowledge of the legal system and Canadian laws in order to assist their clients, comply with the law, and participate in the Canadian legal system 2) Human rights law, family law, child protection, adoption, consent and capacity, mental illness, youth criminal justice, victims of violence, immigrants and refugees, social workers in the courts, and liability for social workers are all areas of law relevant to social work practice in Canada
90
1) Direct discrimination:- a rule, practice, preference, or restriction makes a distinction that is based on a group stereotype 2) Adverse-effect discrimination:- a rule or standard which is on its face neutral, and which will apply equally to all people, but which has a discriminatory effect on one group 3) Systemic discrimination:- results from the application of established practices and policies that have a negative impact on a particular group 4) Harassment
Types of Discrimination
