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Family Law
Who's Minding the Kids? A Parent's Guide
This pamphlet looks at the many legal rights and responsibilities of parents placing their children in informal child care situations. Informal child care means arrangements which do not require the approval of the
Department of Social Development.
Who may care for my child?
The Family Services Act says that a child under twelve years of age cannot be left alone. This means that someone under the age of twelve is too young to be a babysitter. Other than this there are no legal requirements saying who may babysit.
The law also says that children must be left under reasonable care, supervision and control. You have a responsibility to leave your children in the care of a person who is capable of looking after them.
A person’s ability to care for your children will depend on things like the age and needs of your children, the maturity, training and experience of the sitter and the length of time you will be away. For example, a teenager who has taken a babysitting course may provide very good care for your young child for a few hours. The same teenager may not be able to manage the household while you are away for a whole day or longer.
Am I responsible for my child’s actions?
Parents are responsible for controlling the actions of their young children. As a parent you must take reasonable care that they do not cause harm or damage to others. If you do not take reasonable care and your children do something to harm another then you could be legally responsible.
Let’s take an example. You leave your child with a sitter whom you know cannot provide proper supervision. The child runs away from the sitter, onto the road and causes an auto accident. Because the sitter you chose could not properly supervise your child, you would be responsible for the damages. A court could find you to be negligent and order you to pay for any injuries caused by your child.
What if my child gets hurt?
If your children are harmed because of your negligence (failure to take care) then a court may find you legally responsible. If you choose a person to mind your children who seems capable of handling the job, then that person is responsible for protecting your children from harm. If that person’s negligence causes harm to your children then a court could find that person legally responsible.
Could a babysitter sue me?
You are responsible for the condition of your home and the grounds including any dangers which may be present. If a babysitter, or anyone else, is injured on your property a court could find you legally responsible. You must take every reasonable precaution to make sure that anyone who comes on your property is not injured by hazards which you could have prevented.
Am I protected against property damage?
When you invite a babysitter into your home you risk having your property damaged by their negligent or deliberate actions. You should be insured against losses through homeowner’s, tenant’s or other types of insurance. If your babysitter damages your property and your insurance company pays your claim, they could then sue the sitter for negligence. You may wish to discuss this with your insurance agent.
If you suffer property damage not covered by insurance you may have to pay for repairs yourself. You may be able to recover the amount of the damage by taking legal action against the person who caused the damage.
Should a babysitter discipline my child?
Your babysitter is responsible for supervising and controlling your children. To do this he or she may sometimes find it necessary to discipline the children. Talk to your sitter about how you expect them to handle discipline. The law says that a person in a position of authority, such as a sitter, may be justified in using a “reasonable” amount of force to discipline a child. Physically or emotionally punishing a child is generally not acceptable conduct for a child care person. If a person uses force against your child which you feel is unjustified you may wish to seek advice from the local Child Protection Branch of the Department of Social Development or your lawyer.
Do I have responsibilities as an employer?
When you hire a person to mind your children, you are not required to follow provincial labour laws on minimum wages and work standards. You make a contract with your sitter and you must negotiate the terms of the contract such as wages and hours of work. This will be a legally binding agreement which can be enforced by the courts even if it is not in writing.
If you employ a babysitter in your own home, on a regular basis, you may have responsibilities as an employer under Canada’s Income Tax Act, Canada Pension Plan and the Employment Insurance Act.
These laws require you to withhold income tax and E.I. and C.P.P. premiums from your sitter’s wages. You must pay these to the Federal Government. If you are considered to be an employer under any of these laws you will be responsible for the amounts you should have collected and paid during the time of employment.
Contact Canada Revenue Agency and Human Resources and Social Development whenever you wish to employ a person to work for you. The websites are listed below:
Canada Revenue Agency - www.cra-arc.gc.ca/
HR for Employers - www.hrmanagement.gc.ca/gol/hrmanagement/site.nsf/en/index.html
Are child care expenses tax-deductible?
When you calculate your personal income tax the amount of money paid for child care while you are at work is deductible from your income. Get receipts from your babysitter and save them as Canada Revenue Agency may ask you for them later.
Currently, deductions are available for children under the age of seven years. Children with disabilities may also qualify for a disability amount. Also, for any other children who were under 16 at any time in the year you apply, there is a reduced deduction. For specific information on the amount of each deduction, contact the
Canada Revenue Agency.
How can I avoid problems?
You will avoid many problems by following these steps:
- Take great care in choosing your babysitter. Look for a responsible person who will treat your children with care and respect. Carefully check references and hold interviews to help you choose the right person to care for your children.
- Clearly instruct your babysitter on your wishes and any special needs your children may have. Agree on such things as hours, pay, discipline and emergency procedures before you leave.
- Do not assume that everything is OK. Check up on how your child is getting along and being treated. Drop in on your sitter unannounced. Do not ignore any unusual behaviour your children may exhibit.
Following these steps should help you have confidence in the sitter you choose. If you and your babysitter know and agree upon your rights and responsibilities most complications and misunderstandings can be avoided.
Must I look for a government approved day care?
When you choose a child care situation you must decide what would meet your needs, what is available and what you can afford. It is your choice as a parent where you leave your child. If you receive a day care subsidy from the Department of Social Development, the Department requires that you leave your child in a day care situation approved by their Day Care Assistance Program.
If you have any questions about day care approval, regulations and standards, contact the Department at one of these numbers.
Moncton 856-2414
Saint John 1-866-441-4340
Fredericton 1-866-444-8838
Edmundston 735-2842
Restigouche 789-6536
Chaleur 547-2055
Miramichi 624-2108
Péninsule acadienne 336-3054
Public Legal Education and Information Service of New Brunswick (PLEIS-NB) is a non-profit organization. Its goal is to provide New Brunswickers with information on the law. PLEIS-NB receives funding and in-kind support from the federal Department of Justice, the New Brunswick Law Foundation and the New Brunswick Department of Justice and Consumer Affairs. We gratefully acknowledge the cooperation of the New Brunswick Department of Social Development. The booklet does not contain a complete statement of the law or the policies in this area. Both may change from time to time. Anyone needing specific legal advice should contact a lawyer.
Published by:
Public Legal Education and
Information Service of New Brunswick
P.O. Box 6000
Fredericton, N.B.
E3B 5H1
Tel: (506) 453-5369
Fax: (506) 462-5193
Email: pleisnb@web.ca
Revised March 2008
ISBN: 978-1-55396-951-8
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Disclaimer: Please note that our website contains general information about the law. This is not a complete statement of the law on particular topics. We try to update our publications often, but laws change frequently so it is important for you to check to make sure the information is up to date. The information in our publications is not a substitute for legal advice. To receive legal advice about your specific situation, you need to speak to a lawyer.
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