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SNL1998 CHAPTER C-11.1

CHILD CARE SERVICES ACT

[To be Rep. by SNL2014 cC-11.01 s41 - not in force]

Amended:

1999 c22 s6; 2001 c36; 2004 cL-3.1 s19; 2006 cR-7.1 s29; 2009 c26 ss4-8; 2010 cC-12.2 s85

CHAPTER C-11.1

AN ACT RESPECTING CHILD CARE SERVICES IN THE PROVINCE

(Assented to June 5, 1998)

Analysis



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Child Care Services Act .

1998 cC-11.1 s1

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Definitions

        2. In this Act

             (a)  "agency" means a family child care agency licensed under subsection 7(6);

         (a.1)  [Rep. by 2009 c26 s4]

             (b)  [Rep. by 2006 cR-7.1 s29]

             (c)  "child" means a child under the age of 13 years;

             (d)  "child care" means the care and supervision of a child for a part of a day by a person other than

                      (i)  the child's parent,

                     (ii)  the child's guardian,

                    (iii)  the child's relative,

                    (iv)  the child's foster parent as defined in the Children and Youth Care and Protection Act, or

                     (v)  a person employed by the parent, guardian, relative or foster parent referred to in subparagraphs (i) to (iv) to care for the child in the child's home;

         (d.1)  "child care service" means a service in which child care is provided;

             (e)  "department" means the department presided over by the minister;

             (f)  "director" means a regional director appointed under section 4;

             (g)  "inspector" means an inspector appointed or designated under section 12;

             (h)  "licence" means a licence issued under section 7;

              (i)  "licensee" means a person or an agency which holds a licence under section 7 of this Act;

              (j)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (k)  "operator" means a person, having the qualifications to be an operator set by the regulations, who directs and manages the operations of a child care service but does not include a person who provides child care in his or her private residence;

         (k.1)  "provider" means a person who is licensed to provide child care, or provides child care with the approval of and under the supervision of an agency, in his or her private residence; and

              (l)  "provincial director" means the Director of Child Care Services appointed under section 5.

1998 cC-11.1 s2; 2001 c36 s1; 2006 cR-7.1 s29; 2009 c26 s4; 2010 cC-12.2 s85

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Non-application

        3. (1) This Act does not apply to

             (a)  a teaching program operating under the Schools Act, 1997 ;

             (b)  a person who provides child care to not more than 6 children at a time for not more than 9 hours a week;

             (c)  a person who operates a program to provide an activity or instruction of an educational, craft, artistic or sport related nature;

             (d)  a person who provides child care for not more than 6 hours a day for fewer than 8 weeks in a 12 week period;

             (e)  a person who provides child care to not more than 4 children at a time or to not more than 3 children at a time, where all 3 are under the age of 24 months; and

             (f)  another person, program or activity that may be prescribed by regulation.

         (1.1)  Notwithstanding paragraph (1)(e), where a person described in that paragraph also cares for or supervises children in a capacity set out in subparagraphs 2(d)(i) to (v), the Act shall apply to that person if the number of children cared for or supervised exceeds 4 in total, or, where all are under the age of 24 months, 3 in total.

             (2)  A child care program for children of school age which is licensed under this Act but takes place in a school operated under the Schools Act, 1997 is exempt from requirements under this Act to undergo periodic fire and environmental health inspection.

             (3)  Notwithstanding paragraphs (1)(b) to (e), a person described in those paragraphs may apply for a licence under subsection 7(2), or may be approved and supervised under subsection 7(6) where the person provides the child care service from his or her private residence, and where either occurs, this Act and the regulations shall apply to that person.

1998 cC-11.1 s3; 2001 c36 s2

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Labrador Inuit rights

      3.1 (1) This Act and regulations made under this Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act or regulations made under this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act or a regulation made under this Act.

             (2)  Where, under this Act or regulations made under this Act, a director issues a licence he or she may add to that licence terms and conditions that the licensee must comply with in order to ensure compliance with the terms and conditions of the Labrador Inuit Land Claims Agreement Act .

2004 cL-3.1 s19

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Directors

        4. There shall be employed, in the manner prescribed by law, those directors necessary for the purpose of this Act.

2009 c26 s5

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Provincial director

        5. (1) The Lieutenant-Governor-in-Council may appoint an employee of the government of the province to be the provincial director of child care services who shall be responsible for

             (a)  reviewing and establishing province wide policies, programs and standards for child care services;

             (b)  monitoring, evaluating and researching policies, programs and standards with respect to child care in the province;

             (c)  reviewing and establishing standards and qualifications for child care licensees, operators and their employees; and

             (d)  reviewing and establishing the structure and standards of child care licencing and for child care facilities in the province.

             (2)  [Rep. by 2009 c26 s6]

             (3)  [Rep. by 2009 c26 s6]

1998 cC-11.1 s5; 2006 cR-7.1 s29; 2009 c26 s6

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Licence required

        6. (1) A person shall not operate or provide a child care service without

             (a)  having obtained a licence; or

             (b)  where the child care service is provided in a private residence, being under the supervision of an agency.

             (2)  The maximum number of children to whom child care may be provided under a licence is 60.

             (3)  Notwithstanding subsection (2), where a child care service is operated in a private residence, whether under a licence or under the supervision of an agency, the maximum number of children to whom child care may be provided is 8, as set by the requirements in the regulations.

2001 c36 s3

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Application for a licence

        7. (1) An applicant for a licence to operate a child care service shall make the application to a director.

             (2)  A director may issue a licence to a person to operate a child care service where the director is satisfied that the person

             (a)  intends to operate the child care service from premises which comply with health, safety and other standards required by this Act or the regulations, or another Act or regulation of the province;

             (b)  has provided the documents or other information required by the regulations;

             (c)  fulfils the requirements set out in subsection (3) or (4); and

             (d)  fulfils the other requirements for being licensed set by the regulations.

             (3)  An applicant for a licence who identifies himself or herself in the application as the operator or provider of the child care service shall, in addition to the requirements of subsection (2), also satisfy a director that he or she

             (a)  meets the requirements of the regulations with respect to references and security clearances;

             (b)  has the educational, employment experience and other qualifications set by the regulations; and

             (c)  has met the medical qualifications set by the regulations.

             (4)  An applicant for a licence who identifies a person other than himself or herself in the application as the operator of the child care service shall, in addition to the requirements of subsection (2), also satisfy a director that the person

             (a)  meets the requirements of the regulations with respect to references and security clearances;

             (b)  has the educational, employment experience and other qualifications set by the regulations;

             (c)  has met the medical qualifications set by the regulations; and

             (d)  is an operator to whom the applicant has delegated the authority necessary for the effective and efficient management of a child care service and its employees.

             (5)  A person

             (a)  who was employed in a day care licensed under the Day Care and Homemaker Services Act ; or

             (b)  who is employed because properly qualified persons are not available,

may be exempted from the educational qualifications set in the regulations, on the terms and conditions set in the regulations.

             (6)  An applicant for a licence who does not intend to operate the child care service personally but who does not identify a person as the operator may be issued a licence that is conditional on the applicant obtaining the services of an operator who meets the requirements of subsection (4).

             (7)  A corporation incorporated under Part XXI of the Corporations Act may apply to a director for a licence to operate a family child care agency.

             (8)  A director may issue a licence to a corporation to operate a family child care agency where the director is satisfied that the corporation

             (a)  will approve and supervise, in accordance with the regulations, the provision of child care by a person who does not have a licence issued under subsection (2);

             (b)  has provided the documents and other information required by the regulations; and

             (c)  fulfils the other requirements for being licensed set by the regulations.

             (9)  A licence issued under this section may contain the terms and conditions the director issuing it considers appropriate in the circumstances.

          (10)  A licence issued under this section may be renewed or varied by following the process set out in this section for obtaining a new licence.

          (11)  An operator or provider shall

             (a)  permit a parent, guardian or care giver who uses the child care service to enter the premises where child care is provided and provide to him or her the information that the regulations require to be provided; and

             (b)  keep confidential information with respect to users of the child care service unless that information is by law required to be disclosed.

          (12)  A licensee shall, in a prominent and visible place on the premises where child care is provided, display this Act, the regulations and the licence.

          (13)  A person providing a child care service under the supervision of an agency shall, in a prominent and visible place on the premises where child care is provided, during the time that child care is provided, display this Act, the regulations and the licence of the supervising agency.

          (14)  A licence is not transferable or assignable.

2001 c36 s3

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Refusal to issue a licence

        8. (1) A director may refuse to issue or renew a licence where he or she reasonably believes that

             (a)  the applicant does not meet the requirements for obtaining a licence set out in section 7;

             (b)  the child care service that is the subject of the application would not be operated in accordance with this Act and the regulations;

             (c)  a person has made a false or misleading statement in the application for a licence or in documents submitted in support of the application; or

             (d)  the corporation applying for a licence to act as an agency would be unable to approve and supervise the child care services it proposes to as required by this Act and the regulations.

             (2)  Where a licence or the renewal of a licence is refused under subsection (1), the director shall, in writing, immediately notify the applicant for the licence of the refusal and shall provide to the applicant the reasons for the refusal.

2001 c36 s3

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Violation orders

        9. (1) Where a director is satisfied that a licensee is not operating a child care service in compliance with this Act, the regulations, or the terms and conditions of his or her licence, he or she may, in writing, order the licensee to take the remedial action that the director considers necessary to bring the service into compliance with this Act, the regulations, or the terms and conditions of his or her licence and may set a time limit within which the action is required to be taken.

             (2)  Where a director is satisfied that an agency is not complying with or is not able to carry out its duties and functions under this Act, the regulations, or the terms and conditions of its licence, he or she may order the agency to take the remedial action necessary to bring the agency, or a child care service operated under the supervision of the agency, into compliance with this Act, the regulations, or the terms and conditions of its licence and may set a time limit within which the action is required to be taken.

             (3)  Where a director makes an order against an agency under subsection (2) because of the failure of a child care service under its supervision to operate in accordance with this Act or the regulations, the agency

             (a)  shall take whatever measures are required to bring the operation of the child care service into conformity with this Act or the regulations;

             (b)  may set a time limit within which the measures are to be taken;

             (c)  shall provide a copy of the order to a person operating the child care service who shall post the order in the same manner as a licence under subsection 7(13); and

             (d)  may, if the child care service is not brought into conformity with this Act or the regulations, withdraw from supervising the child care service by providing notice of the withdrawal in writing to the person operating the service.

             (4)  An order made under subsection (1) or (2) shall be served upon a licensee in the manner and time required by the regulations.

             (5)  A licensee shall post an order made by a director under this section in a prominent and visible place on the premises where child care is provided.

             (6)  Where an order is made under subsection (2) because of the failure of the agency to comply with this Act, the regulations or the terms of its licence, the agency shall provide a copy of the order to each person operating a child care service under its supervision and each person shall post the order in the same manner as a licence under subsection 7(13).

2001 c36 s3

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Suspension and cancellation

      10. (1) Where in the opinion of a director, a child care service or an agency is not being operated in accordance with this Act, the regulations or the terms and conditions of its licence or as ordered by the director, the director may vary, suspend or cancel the licence issued with respect to the child care service or agency.

             (2)  Where a director varies, suspends or cancels a licence, he or she shall, in the manner required by the regulations, notify the licensee of his or her decision.

             (3)  A licensee whose licence has been varied, suspended or cancelled under this section shall immediately after being notified of the variation, suspension or cancellation operate in accordance with the variation or cease to operate the child care service in accordance with the suspension or cancellation.

             (4)  Where a director suspends or cancels the licence of an agency under this section, a child care service operating under the supervision of the agency shall, immediately after being notified of the suspension or cancellation, cease to operate.

             (5)  Notwithstanding subsection (4), where a director suspends or cancels an agency's licence but is of the opinion that a child care service being operated under the supervision of the agency is being operated in conformity with this Act and the regulations, he or she may issue a temporary licence to the provider of the service to permit the service to operate for a period not to exceed 6 months.

             (6)  A director may suspend a licence for not more than 30 days after which time the director shall renew the licence, with or without conditions, or shall cancel the licence.

2001 c36 s3

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Alterations

      11. (1) A licensee operating a child care service shall not alter the space where the child care service is operated unless he or she first submits to the director the plans of the proposed alteration and receives from the director an approval of those plans.

             (2)  A provider under the supervision of an agency shall not alter the space where the child care service is provided unless he or she first submits to the agency the plans of the proposed alteration and receives from the agency an approval of those plans.

2001 c36 s3

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Inspectors

      12. (1) A director may appoint a person or designate an employee of the government as an inspector for the purpose of this Act.

             (2)  An inspector appointed or designated under this section shall have the qualifications and experience that may be required by regulation.

2001 c36 s3; 2006 cR-7.1 s29; 2009 c26 s7

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Inspection

      13. (1) Where it is reasonably necessary to ensure compliance with this Act and the terms and conditions applicable to a licence, an inspector may

             (a)  at reasonable times enter the premises of a child care service or an agency and inspect the premises of the agency or child care service and the condition of children found there;

             (b)  require the production of books, records or other documents applicable to the child care service or agency and may examine those books, records or documents or remove them for the purpose of making copies of them;

             (c)  perform tests, take photographs or make audio and audio-visual recordings with respect to the child care service or agency; and

             (d)  inquire into all matters relating to the child care service or agency, its employees, former employees and volunteers.

             (2)  Where an inspector removes books, records or other documents under paragraph (1)(b), he or she shall give to the person from whom those items were taken a receipt for those items and shall immediately make copies of those items and return the originals to the person who was given the receipt.

             (3)  A director may require an inspection of a child care service or agency annually or more frequently where he or she considers that inspection necessary and may require annual or more frequent inspections of a child care service or an agency for health, safety, fire and other reasons by inspectors or other officers operating under another Act of the province.

             (4)  A licensee or person found on the premises referred to in this section and section 14 shall give the inspector or other person the reasonable help necessary to enable the inspector or other person to carry out his or her duties and functions under this Act or the regulations and shall provide the information that the inspector or other person may reasonably require.

2001 c36 s3

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Search with warrant

      14. (1) Where an inspector or another person acting under this Act believes on reasonable grounds that a person is contravening or has contravened this Act the inspector may, with a warrant issued under subsection (2), enter a premises where a child care service or an agency is being operated and do all those things referred to in section 13.

             (2)  A provincial court judge who is satisfied on oath or affirmation that there are reasonable grounds for believing that a contravention of this Act or the regulations has occurred may issue a warrant authorizing an inspector or other person named in the warrant to enter a premises where a child care service or an agency is being operated and search for and inspect anything that will provide evidence with respect to a contravention of this Act or the regulations and to do all those things referred to in section 13.

2001 c36 s3

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Telewarrant

      15. (1) Where, in the opinion of a director or an inspector it would not be practical to appear before a provincial court judge to apply for a warrant, the director or inspector may make the application by telephone, facsimile or other means of telecommunication.

             (2)  Where the information on which an application for a warrant is based is submitted by telephone, facsimile or other means of telecommunication, the information shall be given under oath or affirmation, and the oath or affirmation may be administered by telephone, facsimile or other means of telecommunication.

             (3)  The information submitted by telephone, facsimile or other means of communication shall include

             (a)  a statement of the circumstances that make it impracticable for the director or inspector to appear personally before a provincial court judge; and

             (b)  a statement of the director's or inspector's grounds for believing that a person has contravened this Act or the regulations.

             (c)  [Rep. by 2001 c36 s4]

             (4)  The sworn or affirmed information submitted by telephone, facsimile or other means of telecommunication by a director or an inspector shall specify the name of the person giving evidence, the facts ascertained and the manner and location in which evidence was received, and a record of that information shall be filed by the provincial court judge with the clerk of the court over which the judge presides.

1998 cC-11.1 s15; 1999 c22 s6; 2001 c36 s4

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Regulations

      16. The minister may make regulations

             (a)  respecting the premises, equipment and standards required for child care services caring for differing ages of children;

             (b)  respecting the standards and other criteria to be met by an applicant for a licence before being granted a licence;

             (c)  providing for different types of child care services and types of licences and prescribing different procedures and requirements for different child care services and licences based upon the age of the children, the type of child care provided and the type of premises from which a service may be operated or provided and including the length of time for which a licence is to be in effect;

             (d)  respecting the duties and functions of an agency and respecting the number of child care services which an agency may supervise;

             (e)  respecting the qualifications and duties of inspectors appointed or designated under this Act;

             (f)  respecting the operation of a child care service or the provision of child care including staffing requirements, program content, health, safety and nutrition standards, and emergency procedures of the service;

             (g)  requiring inspections at prescribed times by inspectors and by other health and safety personnel operating under another Act of the province;

             (h)  prescribing the duties, responsibilities and obligations of a licensee or person operating a child care service or providing child care with respect to children in the care of the licensee or person, parents and guardians of those children, employees of the licensee or person operating a service or providing child care, or an agency which is responsible for a child care service;

              (i)  prescribing the hours of operation of child care services;

              (j)  respecting terms and conditions applicable to licences issued under this Act;

             (k)  prescribing the staff requirements for a child care service, prescribing the educational and other qualifications required by operators, staff, providers and volunteers for different types of child care services, including requirements for references, security clearances and medical qualifications;

              (l)  prescribing the maximum number of children to which child care may be provided in a child care service based upon the type of service and the ages of children cared for by that service;

           (m)  approving educational requirements, certification levels, training and courses of instruction for agencies, operators and other persons;

             (n)  respecting requirements for admission of a child to a child care service;

             (o)  respecting child care service premises including the renovation, alteration, construction, size, sanitation, safety and health requirements;

             (p)  respecting the records to be maintained by a licensee or operator of child care service or by a provider;

             (q)  respecting insurance required by a person to operate a child care service, to provide child care or to operate an agency;

         (q.1)  respecting the manner and time of service for the purpose of subsection 9(4);

         (q.2)  respecting the manner of giving notice for the purpose of subsection 10(2);

         (q.3)  respecting persons, programs or activities who or that are exempted from the application of this Act;

         (q.4)  respecting the terms and conditions under which a person may be exempted from the educational requirements set in the regulations for the purpose of subsection 7(5);

         (q.5)  exempting a child care service from some or all of the requirements of this Act and the regulations where, on the coming into force of this Act, the child care service was licensed under the Day Care and Homemaker Services Act and in operation;

              (r)  respecting the conditions, terms and manner in which claims for funds may be made to the department and respecting the manner in which claims for those funds are to be calculated and paid out;

             (s)  prescribing the powers and duties of a director and inspectors with respect to the issuance of warnings and orders for remedial action to child care services;

              (t)  respecting telewarrants; and

             (u)  generally to give effect to the purposes of this Act.

1998 cC-11.1 s16; 2001 c36 s5; 2006 cR-7.1 s29; 2009 c26 s8

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Fees and forms

      17. The minister may set fees and establish forms for the purposes and administration of this Act.

1998 cC-11.1 s17

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Protection from liability

      18. A person is not liable for anything done or omitted to be done in good faith in the exercise or performance of a power, duty or function conferred by or under this Act.

1998 cC-11.1 s18

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Offence

      19. A person who does not comply with or contravenes this Act, or an order made under section 9 or makes a false statement in an application, return, form or record required under this Act is guilty of an offence and liable on summary conviction

             (a)  for a first offence to a fine of not less than $500 and not more than $2000 or to imprisonment for not more than 60 days or to both a fine and imprisonment; and

             (b)  for a subsequent offence, to a fine of not less than $2000 and not more than $5000 or to imprisonment for not more than 90 days or to both a fine and imprisonment.

1998 cC-11.1 s19; 2001 c36 s6

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Transitional

      20. A day care licence issued under the Day Care and Homemaker Services Act shall continue in force as if it were a licence issued under this Act until that licence expires, is to be renewed or one year after the coming into force of this Act, whichever occurs first.

1998 cC-11.1 s20

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SN1995 cP-37.1 Amdt.

      21. Paragraph 4(4)(c) of the Health and Community Services Act is repealed and the following substituted:

             (c)  Child Care Services Act ;

1998 cC-11.1 s21

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RSN1990 cD-2 Rep.

      22. The Day Care and Homemaker Services Act is repealed.

1998 cC-11.1 s22

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Commencement

      23. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.  (In force Jun. 1/99)

1998 cC-11.1 s23